Dish Network Corporation v. NLRB

Case: 18-60522 Document: 00515353494 Page: 1 Date Filed: 03/20/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-60522

FILED

March 20, 2020

Lyle W. Cayce

DISH NETWORK CORPORATION, Clerk

Petitioner / Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent / Cross-Petitioner.

On Petition for Review and Cross-Petition

for Enforcement of an Order of the

National Labor Relations Board

Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

DISH negotiated with a labor union for more than four years.

Eventually, DISH got tired and determined the parties were at an impasse.

The question presented is whether the National Labor Relations Board had

substantial evidence to gainsay DISH’s impasse determination and penalize

the employer for refusing still more years of negotiation. It did not.

I.

It’s easy to see how the parties tired of this years-long negotiation. We

do our best to summarize the events that turned a relatively simple dispute

into a contentious multi-round National Labor Relations Board (“NLRB” or

“Board”) proceeding and cross-petitions for review in federal court.

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A.

DISH Network Corporation (“DISH”) provides its customers with

satellite TV. Local branches serve as hubs for technicians who conduct

installations and repairs. Before 2009, DISH generally paid its employees by

the hour with minor incentives.

In 2009, DISH experimented with a new compensation scheme for

employees at two of its Dallas-Fort Worth locations: Farmers Branch and

North Richland Hills. Under the Quality Performance Compensation (“QPC”)

payment scheme, employees were paid a lower hourly wage with greater

performance-based incentives. DISH’s employees hated QPC. They hated it so

much that they unionized to oppose it at both of the affected branches. The

Communication Workers of America, AFL-CIO (“the Union”), became the

designated collective bargaining representative of the affected employees.

Bargaining over an initial contract began in July of 2010. For a time, it

appeared the parties might agree to eliminate QPC and replace it with a

different incentive-based payment plan (known as “Pi”). According to one of the

negotiators, as of March 22, 2013, “We were at Pi—they were at Pi.”

Things went haywire in July 2013. That’s when the Union changed its

position on QPC. Instead of opposing the QPC compensation scheme—which

was the entire basis for the Union’s existence—the union now demanded to

keep it. Why, you might wonder? In a word: Technology. As the district court

explained in a related case:

QPC paid employees based on performance metrics that DISH was

unable to adjust due to collective bargaining. As DISH improved

its processes and technologies, DISH technicians were able to

complete tasks more quickly and thus earn more under the QPC

incentive program. As a result, the wages of unit technicians

increased by about $17,000 between 2013 and 2015. In 2015,

Union members were making, on average, $19,000 more than their

non-unionized peers.

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Kinard ex rel. NLRB v. DISH Network Co., 228 F. Supp. 3d 771, 775 (N.D. Tex.

2017) (quotation omitted). As the district court noted, 1 the gap between Union

employees and others grew over time. Union technicians working under QPC

made 14 percent more than their non-union peers in 2013, then 41 percent

more in 2014, and 43 percent more in 2015. Eventually, the technicians who

were making more under QPC were working less than their non-union peers.

By 2015, the gap was about 200 hours on average.

In addition to creating these horizontal disparities, QPC also produced

vertical anomalies. One high-earning technician with an interest in

management acknowledged that moving up the company ladder would have

decreased his pay. So, as one might imagine, the Union fought hard to keep

QPC. DISH tried to get rid of it. After the Union’s change of heart, the parties

made progress on some other issues. But on QPC, they made little headway.

B.

By November 2014, the parties had conducted approximately 25 face-to-

face bargaining sessions over the course of more than four years. And they were

no closer to an agreement on QPC than when they started. So, at a meeting on

November 18, 2014, DISH made a “final proposal” that included the

elimination of QPC. The final proposal said, “[DISH] rejects continuation of

QPC.” Not surprisingly, that session also adjourned without an agreement.

More bargaining sessions had been scheduled for early December, but the

Union had to cancel those meetings. The Union asked to reschedule, and

DISH’s lead negotiator responded by saying that DISH had “provided a final

offer for [the Union] to accept or reject.” DISH further emphasized that, if the

1 The parties’ first appearances in federal court concerned injunctive relief granted

during the NLRB’s adjudication of unfair labor charges against DISH. See Kinard ex rel.

NRLB v. DISH Network Corp., 890 F.3d 608, 610 (5th Cir. 2018).

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Union couldn’t meet as scheduled or offer a counterproposal, DISH would

“consider the bargaining to be at an impasse.”

The Union responded with a counterproposal. Under the terms of the

counterproposal, all technicians employed by DISH at the time would retain

QPC for the length of the contract. So everyone who had QPC would keep QPC

going forward. Any new hires, however, would be paid according to a different

plan.

DISH rejected the Union’s counterproposal and insisted that its final

offer was indeed its “last, best[,] and final offer.” After finding out that the

Union’s lead negotiator was unavailable for the rest of December, DISH’s lead

negotiator asked the Union to take DISH’s final offer to its members for a vote.

He stated, “Once we know whether DISH’s final offer is accepted or rejected,

we can discuss if further bargaining is warranted.” The Union refused to take

the final offer to its members and asked for another bargaining session. The

next day, December 31, 2014, DISH’s lead negotiator replied and explained

that his partner would take over for the rest of the negotiations. He also said

that DISH’s new representative would “be getting back to [the Union]

sometime after the new year.”

C.

A year’s silence ensued—there was no contact between the parties until

after the next new year. In January 2016, DISH’s new lead negotiator sent a

letter to ask whether the Union would accept DISH’s final offer. The letter also

stated that since that final offer was indeed “[DISH’s] final offer, it does not

appear at this point that further bargaining would be productive.”

In response, the Union again asked for yet another bargaining session.

DISH’s replacement negotiator said he understood the Union’s response as a

rejection of DISH’s final offer. He also observed that the parties had been

bargaining since 2011, and that in his view, DISH and the Union were “at a

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standstill.” He asked the Union to explain whether it disagreed; otherwise,

DISH would “implement its last, best[,] and final proposal.” In response, the

Union demanded another meeting. In early April 2016, DISH said that

“further bargaining would be futile,” and DISH would implement its final

offer—and nix QPC—no later than April 23, 2016.

On April 23, 2016, DISH did exactly that. With QPC gone, unit

technicians saw their wages drop significantly. Seventeen employees quit.

D.

The Union brought a complaint to the NLRB and alleged that DISH

committed unfair labor practices. An administrative law judge (“ALJ”)

determined DISH unlawfully declared an impasse. In the ALJ’s view, the

Union’s November 2014 counterproposal—that existing employees could keep

QPC but new hires could not—constituted a “white flag.” The ALJ asserted

that DISH’s technicians had a “very high [annual] attrition rate” that ranged

from 116 percent to 13 percent. The ALJ repeatedly cited the 116 percent figure

to support his premise that the relevant attrition rate was “very high.” Given

such high attrition rates, the ALJ surmised that under the Union’s

counterproposal, DISH “would have attained most of what it wanted on wages

in the short term,” and “eventually abolishing QPC would have become an

easier selling point.” That is, if a high percentage of employees left and were

replaced by new employees who didn’t receive QPC, then QPC would quickly

become less expensive for DISH and less important to the Union. According to

the ALJ, the Union’s counterproposal to phase out QPC prevented impasse.

And because there was no impasse, the ALJ said, DISH violated Section 8(a)(5)

of the National Labor Relations Act (“the Act” or “NLRA”) by eliminating QPC.

The ALJ also found that DISH violated Section 8(a)(3) of the Act when it

constructively discharged 17 employees. On his theory, DISH did so by

presenting the employees with a Hobson’s Choice of quitting or “continuing to

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work under greatly diminished conditions that flowed from the violation of [the

employees’] rights.”

The NLRB affirmed all of the ALJ’s findings and conclusions. But the

Board noted that the ALJ had not explicitly applied the proper test for impasse

analysis. So the Board applied that test and reached the same conclusion—

there was no impasse in negotiations. In its impasse analysis, the Board

acknowledged that by December 2014, the parties had bargained hard for four

years. Moreover, the Board recognized that QPC “remained the most

important issue of disagreement.” But according to the Board, “[e]ven if the

parties may have been near a valid impasse then,” the Union’s white flag

changed everything. As to constructive discharge, the Board’s decision simply

included a footnote adopting the ALJ’s rationale and finding.

One Board member dissented. He would have found that an impasse

existed at least by April 23, 2016, and that as a result of that impasse, DISH

“lawfully implemented the terms of its final offer.” Because that conduct was

lawful, he would have found “no support” for constructive discharge under the

theory proffered by the ALJ and accepted by the majority of the Board.

DISH petitioned for review of the Board’s conclusions on unlawful

implementation and constructive discharge. The Board cross-petitioned for

enforcement of its order. 2

2 The NLRB may be the only agency that needs a court’s imprimatur to render its

orders enforceable. NLRB v. Thill, Inc., 980 F.2d 1137, 1142 (7th Cir. 1992) (“Unlike the

orders of other agencies, the Board’s orders are not self-executing.”); see also Mitchellace, Inc.

v. NLRB, 90 F.3d 1150, 1159 (6th Cir. 1996) (similar); E.I. Du Pont De Nemours & Co. v.

NLRB, 682 F.3d 65, 71 (D.C. Cir. 2012) (Randolph, J., concurring in part and concurring in

the judgment) (same). Congress has long limited the Board’s powers in this way, though the

Board wasn’t always alone in being so limited. As the Seventh Circuit explained, “the curious

impotence of unenforced orders of the Board is the result of a decision by the Congress that

enacted the Wagner Act to give the Board it was creating the same procedures as the Federal

Trade Commission then had.” NLRB v. P*I*E Nationwide, Inc., 894 F.2d 887, 892 (7th Cir.

1990). And for “both agencies, the denial of teeth to the agency’s orders was a swap for

procedural informality.” Ibid. The Administrative Procedure Act brought more formality to

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II.

This case turns on the Board’s finding that DISH prematurely declared

an impasse. We hold the Board lacked substantial evidence to so find.

Ultimately, “[w]hether an impasse exists depends on whether, in view of

all the circumstances of the bargaining, further discussions would be futile.”

Gulf States Mfg. Inc. v. NLRB, 704 F.2d 1390, 1398 (5th Cir. 1983). That’s a

fact-specific inquiry. Carey Salt Co. v. NLRB, 736 F.3d 405, 411 (5th Cir. 2013).

We review the Board’s findings of fact for substantial evidence. Id. at

410. Congress has defined substantial evidence in terms of “the record

considered as a whole.” 29 U.S.C. § 160(e)–(f) (emphasis added). It follows,

then, that “a flawed reading of the record” provides no substantial evidence for

a finding. Carey Salt, 736 F.3d at 420. And because the evidence must be

viewed in light of the whole record, “[t]he substantiality of evidence must take

into account whatever in the record fairly detracts from its weight.” Universal

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Finally, the evidence “must

be substantial, not speculative, nor derived from inferences upon inferences.”

Brown & Root, Inc. v. NLRB, 333 F.3d 628, 639 (5th Cir. 2003). The Board’s

no-impasse finding flunks these standards.

A.

First, it’s a long- and well-settled proposition of substantial-evidence

review that the NLRB cannot build its decision on a foundational error of fact.

For example, in Carey Salt, we addressed an ALJ’s misreading of the record

administrative proceedings; thereafter, Congress gave the FTC enforcement power. Ibid. But

Congress never did the same for the NLRB. Ibid. Thus, what was true in 1938 remains true

today: “The Board is given no power of enforcement. Compliance is not obligatory until the

court, on petition of the Board or any party aggrieved, shall have entered a decree enforcing

the order as made, or as modified by the court.” In re NLRB, 304 U.S. 486, 495 (1938); see

also 29 U.S.C. § 160(e)–(f). And now, as then, when a court “enforces” an order, “[t]he order

issued by the court is an injunction, enforceable by contempt.” P*I*E Nationwide, Inc., 894

F.2d at 893.

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and stated that the “ALJ’s flawed factual findings regarding the company’s

‘movement’ do not provide substantial evidence in support of the Board’s no-

impasse finding.” 736 F.3d at 421. We went on to note that the Board’s

analysis, built on the ALJ’s flawed factual foundation, “was erroneous, and,

therefore, no substantial evidence therein can support the Board’s no-impasse

finding.” Id. at 421 n.16.

So here. The Board’s decision rested on its determination that the

Union’s November 2014 counterproposal was a “white flag” of surrender. But

the “white flag” characterization in turn rested on an unsound factual

foundation from the ALJ.

The ALJ found an attrition rate of 116 percent is “very high”—but that

rate occurred at a nonunionized, non-QPC branch. If the ALJ had considered

the relevant data, he would’ve found that unionized QPC technicians generally

had lower attrition rates than their non-union, non-QPC peers. And the

relevant data thus supported DISH: QPC workers had a marginal incentive

not to leave the company because they could make more money while working

less. The relevant data likewise undermined the “white flag” characterization

of the counterproposal: The comparatively low attrition at unionized QPC

branches meant that the Union wasn’t giving up all that much by agreeing to

phase out QPC for new employees.

The Board then built its no-impasse decision on the ALJ’s factual error.

In the Board’s view, “very high” attrition rates made the Union’s concession of

no QPC for new employees a “white flag” that warranted more negotiations:

Particularly significant to our determination that impasse had not

been reached was the Union’s substantial movement on the QPC

issue and [DISH’s] refusal to meet and confer even once over this

meaningful counterproposal by the Union on the most important

issue separating the parties.

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(Emphasis added). That characterization of the “meaningful counterproposal”

as “substantial movement” flows straight from the ALJ’s misreading of the

record. The ALJ erred, and the Board doubled down. Two wrongs can’t make

the Board right.

B.

Relatedly, “[t]he substantiality of evidence must take into account

whatever in the record fairly detracts from its weight.” Universal Camera, 340

U.S. at 488. To survive substantial evidence review, then, the Board has to

consider “contradictory evidence or evidence from which conflicting inferences

could be drawn.” Id. at 487. Take Entergy Miss., Inc. v. NLRB, 810 F.3d 287

(5th Cir. 2015), for example. In that case, the NLRB concluded that certain

employees did not exercise independent judgment. Id. at 296–97. Even if that

conclusion could be supported by the portions of the record cited by the Board,

we held the Board lacked substantial evidence merely because it failed to

grapple with countervailing portions of the record. Id. at 297–98. After all, we

must review the Board’s decisions “on the record considered as a whole.” 29

U.S.C. § 160(e)–(f) (emphasis added).

Given that the Board’s white-flag theory depended on unit technicians

maintaining “a very high attrition rate,” the Board had an independent

obligation to consider evidence that those attrition rates were relatively low

and falling over time. 3 That’s especially true because unionized QPC

3 It’s no answer to say that the ALJ at one point cited the correct attrition rates for

the unit branches for 2014 and 2015 and also described those rates as “high.” That’s because

the ALJ’s white-flag theory depended on high attrition rates making it “probable that new

hires receiving non-QPC rates would soon become the majority . . . . [and] eventually

abolishing QPC would have become an easier selling point.” But the actual attrition rates at

the unit branches simply don’t suggest the same imminent change or easy elimination of

QPC.

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employees were making more money while working fewer hours than their

non-union, non-QPC peers.

DISH presented evidence to explain why those factors contributed to

declining attrition rates at union branches. DISH’s Regional Director testified

that unit technicians had relatively lower attrition rates because “they were

making really good money and [so] they were staying because of that.” And

employees knew QPC was a good deal. One unit technician reckoned an

employee would thrive under Pi only if he could “sell[ ] ketchup popsicles to a

lady with white gloves.” Suffice it to say that QPC gave unit technicians plenty

of reason to stick around, and the evidence shows they did so.

And DISH gave the Board plenty of notice that the ALJ used the wrong

attrition data. DISH raised the problem in its briefing before the Board in

bolded, underlined, and italicized font. But DISH’s printed shout fell on deaf

ears. The Board’s decision simply didn’t address the mistake the ALJ made or

any of DISH’s arguments on that point. That oversight compounds the original

error. See Lord & Taylor v. NLRB, 703 F.2d 163, 169 (5th Cir. 1983).

C.

Even if we set aside the Board’s reliance on the wrong attrition rates, its

decision still would not rest on substantial evidence. That’s because

“[s]uspicion, conjecture, and theoretical speculation register no weight on the

substantial evidence scale.” NLRB v. Mini-Togs, Inc., 980 F.2d 1027, 1032 (5th

Cir. 1993). For example, in Brown & Root, an employer refused to hire 48

employees after a series of contentious meetings over their plans to unionize.

In finding the employer violated the NLRA, the Board pointed to specific

statements and specific meetings to show the employer acted with “anti-union

animus.” Brown & Root, 333 F.3d at 641. We nonetheless granted the

employer’s petition for review because the Board’s string of inferences and

speculation did not sum to substantial evidence. See ibid. & n.10.

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This case is easier. The ALJ’s speculation involved an inferential chain

that began with a flawed premise. First, in light of DISH’s “very high” attrition

rates, the ALJ asserted that DISH would have saved a lot money by accepting

the Union’s counterproposal. Next, the ALJ posited that those same “very high”

attrition rates “meant that in a short time, the majority of the [union workers]

would have likely . . . turned over and no longer earn[ed] QPC wages.” And

that, in turn, “would have likely set in motion the wholesale elimination of

QPC in future bargaining for a successor contract.” The ALJ’s musings on

potential cost savings and shifting intra-Union dynamics are ill-founded

speculation about what could have happened. It warrants “no weight on the

substantial evidence scale.” Mini-Togs, 980 F.2d at 1032.

The same is true of the supposition that if DISH “had been willing to

meet about this substantial giveback, the give and take of bargaining might

have led everyone closer to an agreement.” (Emphasis added). The bare

possibility that something might have clicked during later negotiations does

not offer any support for the Board’s finding. Cf. TruServ Corp. v. NLRB, 254

F.3d 1105, 1116 (D.C. Cir. 2001) (rejecting Board’s reliance on “its intuitive

belief that, upon further bargaining, each side would have made additional

concessions”). As Judge Sentelle once put it, “ ‘You never know’ is no substitute

for substantial evidence.” Erie Brush & Mfg. Corp. v. NLRB, 700 F.3d 17, 23

(D.C. Cir. 2012).

III.

The NLRB offers several counterarguments. Some are properly before

us. Others are not. We reject them all.

A.

We start with the Board’s procedurally proper arguments. The Board

contends that DISH acted in “bad faith” by refusing to negotiate after the

Union budged on QPC. It’s true that an employer cannot act in bad faith and

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then pretend the parties are at an impasse. See 29 U.S.C. § 158(d). We so held

in Carey Salt, for example. There, we found that the employer’s bad faith

provided an independent basis for the Board’s conclusion that no impasse had

taken place. See Carey Salt, 736 F.3d at 413.

But to preclude impasse, bad faith must precede impasse. That’s because

once a good-faith impasse occurs, it suspends “the duty to bargain in good

faith.” Id. at 425; accord Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227,

232 (D.C. Cir. 1996). Here, there is no dispute that DISH bargained in good

faith right up to the point that the Union rejected DISH’s “final offer” and made

a counterproposal. Of course, “merely labeling an offer as ‘final’ is not

dispositive,” TruServ Corp., 254 F.3d at 1115, since negotiators sometimes

engage in gamesmanship by deploying multiple “final offers.” See Chi.

Typographical Union No. 16 v. Chi. Sun-Times, Inc., 935 F.2d 1501, 1508 (7th

Cir. 1991). But nothing in the record before us suggests that DISH’s final offer

was anything other than DISH’s “last, best, and final offer” made after years

of “the kind of good-faith, hard bargaining that characterizes impasse.”

TruServ Corp., 254 F.3d at 1116. And the rejection of this kind of final offer is

a telltale sign of impasse. Id. at 1115–16; cf. Carey Salt, 736 F.3d at 416. All of

the Board’s allegations of bad faith come after DISH’s final offer was rejected.

So the question is whether DISH had some additional obligation to continue

negotiating in good faith after that point. We have never interpreted the NLRA

to impose such an obligation, and we refuse to do it today. 4

The NLRB next contends that the Union’s willingness to move a little on

QPC precludes impasse, since impasse requires both parties to be unwilling to

4 For much the same reason, we reject the Board’s equivocal statement that “[t]o the

extent that [DISH] also conditioned further bargaining on the Union’s submitting [DISH’s]

offer to unit employees for a ratification vote . . . [DISH] also evinced a lack of good faith.”

Again, such conduct must precede impasse to preclude impasse.

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compromise. See Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1186 (5th Cir. 1982)

(“[F]or a deadlock to occur, neither party must be willing to compromise.”). Yet

not every concession precludes impasse. See Carey Salt, 736 F.3d at 422 (noting

that it’s not true that “any kind of extended concession, despite rejection and

remote chances of fueling future talks, precludes impasse” (emphasis added));

Grinnell Fire Prot. Sys. Co. v. NLRB, 236 F.3d 187, 200 (4th Cir. 2000) (“The

Board has repeatedly held that inconsequential modifications that fail to

address the heart of the employer’s demands cannot forestall impasse.”); E. I.

Du Pont & Co., 268 NLRB 1075, 1076 (1984). The Board’s contrary position

would allow one party to prolong negotiations by responding to every “final

offer” by conceding just a wee bit more. That would be particularly untenable

in a case like this one because every prolongation would give the Union

everything it wanted—namely, preservation of QPC—for the length of the

prolongation.

Lastly, the Board highlighted the Union’s repeated demands for another

bargaining session as a reason for finding no impasse. But “a vague request by

one party for additional meetings, if unaccompanied by an indication of the

areas in which that party foresees future concessions, is equally insufficient to

defeat an impasse where the other party has clearly announced that its

position is final.” TruServ Corp., 254 F.3d at 1117. In this case, DISH had long

been clear that its final offer was indeed final. The Union’s repeated requests

for additional meetings did not suggest any change in its position on QPC.

Under the Act, parties are not required “engage in fruitless marathon

discussions.” NLRB v. Am. Nat’l Ins. Co., 343 U.S. 395, 404 (1952). DISH was

not obligated to do so here.

B.

The rest of the NLRB’s arguments are barred by SEC v. Chenery Corp.,

332 U.S. 194 (1947). It’s “a simple but fundamental rule . . . that a reviewing

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court, in dealing with a determination or judgment which an administrative

agency alone is authorized to make, must judge the propriety of such action

solely by the grounds invoked by the agency.” Id. at 196. That means we look

to what the agency said, not what it might have said. And it means we “may

not accept appellate counsel’s post hoc rationalizations for agency action;

Chenery requires that an agency’s discretionary order be upheld, if at all, on

the same basis articulated in the order by the agency itself.” Burlington Truck

Lines, Inc. v. United States, 371 U.S. 156, 168–69 (1962).

We recognize that the NLRB, in particular, struggles with this rule. 5 In

this case, the NLRB’s brief used figures conspicuously absent from the actual

decision of the Board to support the Board’s view of the Union’s

counterproposal. “At an attrition rate of 30.5% . . . only 33.6% of unit employees

would still be under QPC at the expiration of the 3-year contract.” That’s

simply not what the Board or the ALJ said. So we can’t affirm on those grounds.

That’s one Chenery problem.

Appellate counsel next defends the Board’s no-impasse finding by

pointing to DISH’s contemporaneous communications with the Union,

suggesting those show neither party thought impasse existed. But the Board’s

analysis of the parties’ contemporaneous understanding focused entirely on

the Union’s perspective. It’s too late in the game for the NLRB to add a gloss

to that part of its decision.

5 According to one professor who spent four years working in the NLRB’s Appellate

Court Branch, the frequency of the practice manifested itself in shorthand shoptalk: The

“Board’s appellate attorneys typically refer to a rationale not explicitly contained in a Board

decision as a ‘post hoc.’ ” Jeffrey M. Hirsch, Defending the NLRB: Improving the Agency’s

Success in the Federal Courts of Appeals, 5 FIU L. REV. 437, 448 n.45 (2010). Prof. Hirsch

also suggested several ways for the Board to improve its decisions so it would stop “forcing

the Board’s appellate attorneys to create justifications, which—as courts are often quick to

note—they are not supposed to do under Chenery.” Id. at 448.

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Likewise, Chenery precludes us from affirming on the basis of two

grounds suggested by the Union—the passage of time and presence of a new

negotiator for DISH. We’ve said those factors can be relevant to impasse

analysis. See Gulf States Mfg., 704 F.2d at 1399 (noting “the mere passage of

time may also be relevant” to a finding on impasse); Raven Servs. Corp. v.

NLRB, 315 F.3d 499, 505 (5th Cir. 2002) (noting a change in key personnel

may impact impasse analysis). Here, however, the passage of time weighed in

favor of impasse. First, the Board noted that as of December 2014, “the parties

had bargained in numerous sessions for more than 4 years over a first

collective-bargaining agreement,” and that suggested “the parties may have

been near a valid impasse . . . .” And at no point did the Board’s analysis

suggest the presence of a new negotiator weighed against finding impasse.

Maybe, if the Board’s decision had relied on the arguments now marshalled in

the briefs, “we would have a far different case to decide. But as it is, we cannot

accept appellate counsel’s post hoc rationalizations for agency action; for an

agency’s order must be upheld, if at all, on the same basis articulated in the

order by the agency itself.” Fed. Power Comm’n v. Texaco Inc., 417 U.S. 380,

397 (1974) (quotation omitted).

IV.

Having addressed the factual basis for the Board’s decision, we dispose

of its legal conclusions in short order. We begin with unlawful implementation

and turn next to constructive discharge.

A.

The Board says DISH violated § 8(a)(5) of the Act by unlawfully

implementing its final offer in the absence of a good-faith impasse. 6 But as we

6 Another provision of the Act, § 8(a)(1), prohibits employers from interfering with

employees’ exercise of their rights under the Act. 29 U.S.C. § 158(a)(1). Such interference

constitutes an unfair labor practice. Ibid. As a result, “an employer who violates Section

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Case: 18-60522 Document: 00515353494 Page: 16 Date Filed: 03/20/2020

No. 18-60522

said in Carey Salt, “when an employer and union bargain to impasse, the

employer may unilaterally implement changes in contract terms, so long as the

changes were previously offered during negotiations.” Carey Salt, 736 F.3d at

411. The Board’s finding that DISH acted unlawfully in implementing its final

offer depended on the Board’s finding that there was no impasse in

negotiations. Both fall together.

B.

Next, constructive discharge. On that issue, the Board purported to

“adopt, for the reasons stated by the judge, his finding that [DISH] violated

Sec. 8(a)(3) and (1) by constructively discharging 17 employees . . . .” 7 But as

the Board itself said, that conclusion relied on DISH’s “unlawful unilateral

reductions in [employees’] wages and health benefits.” So the Board’s

constructive discharge finding rested on its unlawful implementation finding,

which in turn rested on its no-impasse finding. Again, they all fall together. 8

* * *

DISH’s petition for review is GRANTED, and the corresponding portions

of the Board’s cross-petition for enforcement are DENIED. Those portions of

the Board’s order that DISH did not challenge are ENFORCED. See Sara Lee

Bakery, 514 F.3d at 429.

8(a)(5) also commits a ‘derivative’ violation of Section 8(a)(1).” Sara Lee Bakery Grp., Inc. v.

NLRB, 514 F.3d 422, 427 n.3 (5th Cir. 2008). That’s why the Board found that DISH “violated

Section[s] 8(a)(5) and (1) by unilaterally changing unit employees’ terms and conditions of

employment.” (Emphasis added).

7 The ALJ framed his constructive discharge finding solely in terms of § 8(a)(3). But

the Supreme Court has explained that “[a]lthough §§ 8(a)(1) and (a)(3) are not coterminous,

a violation of § 8(a)(3) constitutes a derivative violation of § 8(a)(1).” Metro. Edison Co. v.

NLRB, 460 U.S. 693, 698 n.4 (1983). Because we reject the constructive discharge finding in

its entirety, this variation between the ALJ’s findings and the Board’s decision is immaterial.

8Because the premise of the constructive discharge finding fails, we need not consider

whether the ALJ’s theory of a Hobson’s Choice constructive discharge conflicts with our

decision in Elec. Mach. Co. v. NLRB, 653 F.2d 958 (5th Cir. 1981).

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