NLRB Dismisses Dish Arguments in Unlawful Firing Appeal

Dish Network's blanket prohibition against workers soliciting in work areas during nonwork time "flies in the face of settled precedent" that makes it unlawful for employers to require prior approval to take part in activities protected by the National Labor Relations Act, the National Labor Relations Board (NLRB) said in a brief (in Pacer) filed Monday with the 10th U.S. Circuit Court of Appeals. The brief is in a pair of consolidated appellate cases, with Dish petitioning the court to review a board order issued in March against it and the NLRB cross-applying for enforcement of that order requiring the company to rehire a worker it fired and to rescind its solicitation policy. In its brief, the NLRB also rejected Dish's argument the agency must apply the special industry rules that cover retail establishments and permit more restrictive solicitation bans, since the Colorado call center at the heart of the complaint is not a retail establishment and there is no common area where employees and customers physically mix. And it said the evidence was clear the terminated worker was let go for soliciting coworkers to join a lawsuit regarding Dish's wage practices, contrary to Dish's claims the discharge was for putting a customer on silent mode. The NLRB dismissed Dish arguments the agency failed to show unlawful motivation, improperly relied on "generalized" animus against the worker and should have relied on Dish's business judgment for the firing. The agency said Dish mischaracterizes its analysis, which focused in part on the close timing between the employee's soliciting workers and his subsequent firing, and it isn't required to show additional animus beyond whatever animus was behind the contested action itself, such as animus against the employee personally. Dish didn't comment Tuesday.