Public Service Company of New Mexico

National Labor Relations Board - Board Decisions

Mar 27, 2014

360 N.L.R.B. 573 (N.L.R.B. 2014)

PUBLIC SERVICE CO. OF NEW MEXICO 573
360 NLRB No. 45
Public Service Company of New Mexico and Interna-
tional Brotherhood of Electrical Workers, Local
Union No. 611, AFL–CIO. Cases 28–CA–023391
and 28–CA–066164
March 27, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On June 22, 2012, Administrative Law Judge Eleanor
Laws issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
and the Charging Party filed answering briefs, and the
Respondent filed reply briefs to the answering briefs.
The General Counsel filed exceptions and a supporting
brief, the Respondent filed an answering brief, and the
General Counsel filed a reply brief. The Charging Party
filed an exception with supporting argument and the Re-
spondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.2
Since the 1970s, the Respondent has recognized Inter-
national Brotherhood of Electrical Workers, Local Union
No. 611, AFL–CIO (the Union), as representative of a
multifacility bargaining unit of “all employees of the
Company’s Electric, Water, Transmission, Distribution,
Production, Meter Reader and Collector departments.”
This case involves allegations that the Respondent com-
mitted numerous violations of Section 8(a)(5), (3), and
(1) of the Act affecting unit employees at three facilities
over an extended period from approximately 2010
through 2011.
The judge found merit in most allegations and dis-
missed the remainder. Except for the few allegations
discussed here, we affirm the judge’s findings and con-
clusions for the reasons set forth in her decision.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We have modified the judge’s recommended Order to conform to
the violations found and to reflect the Board’s standard remedial lan-
guage. We have also substituted a new notice to conform to the modi-
fied Order.
I.
The judge found, and we agree, that the Respondent
violated Section 8(a)(1)3 on a number of occasions by
threatening4 and interrogating5 employees about their
union activities, by denying employee Eric Cox his statu-
tory right to an available union representative of his
choice, and by refusing to meet with the Union and em-
ployee Cox regarding a discrimination complaint Cox
had filed.6 We further agree with the judge that the Re-
spondent violated Section 8(a)(5) and (1) by failing to
provide the Union with relevant information it request-
ed.7
II.
For the following reasons, we reverse the judge’s dis-
missal of the allegation that the Respondent unlawfully
refused to furnish the Union with an email referred to by
Consultant Joann Garcia and Supervisor Chris Jaramillo
in a meeting at the Belen Office with employee and Un-
ion Steward Marie Plant.
The facts are undisputed. The email referring to Plant
came to light after Plant served as an employee’s repre-

3 In the absence of exceptions, we affirm the judge’s dismissal of
Sec. 8(a)(1) allegations that the Respondent’s supervisor, Dale Smyth,
told employees it would be futile for them to go to the Board and mis-
represented their rights to union representation under NLRB v.
Weingarten, Inc., 420 U.S. 251, 256–257 (1975), and that Human Re-
sources Consultant Joann Garcia threatened employees with unspeci-
fied reprisals.
4 Because we adopt, in the absence of exceptions, the judge’s find-
ing that the Respondent violated Sec. 8(a)(1) by Manager Jeff Na-
wman’s threat to employees that Union Business Agent Edward Tafoya
was not allowed in the Respondent’s facilities, we find it unnecessary
to pass on the finding of a substantially identical threat by a security
guard at Nawman’s direction. This additional finding would be cumu-
lative and would not materially affect the remedy. See BCE Construc-
tion, Inc., 350 NLRB 1047 (2007).
5 We agree with the judge that the Respondent violated Sec. 8(a)(1)
by Supervisor Dale Smyth’s asking employee Eric Cox about the po-
tential grievances Cox was investigating on behalf of other employees
and by Supervisor Gary Cash’s asking Cox what union business he had
been discussing with Tafoya. Member Johnson finds it unnecessary to
pass on the latter violation involving Cash because he finds it would be
cumulative of the former and would not affect the remedy.
6 In adopting the judge’s analysis, we find it unnecessary to pass on
whether Cox’s complaint was a grievance under the terms of the collec-
tive-bargaining agreement, because that characterization does not affect
our disposition of this allegation. Regardless of how it is characterized,
we find the complaint is encompassed under the language of the par-
ties’ collective-bargaining agreement.
7 In the absence of exceptions, we adopt the judge’s findings that
the Respondent violated Sec. 8(a)(5) and (1) by refusing to provide
information about crew changes and about its policy requiring employ-
ees to obtain management permission to escort visitors in the Edith
Service Center, the latter of which the judge erroneously omitted from
her Conclusions of Law and Order. Also in the absence of exceptions,
we adopt her dismissal of allegations concerning the Respondent’s
refusal to provide information concerning the Respondent’s decision to
deny Tafoya access to the Edith facility.
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sentative in an investigation regarding that employee’s
alleged misuse of company credit cards. The Respond-
ent subsequently discharged the employee for that of-
fense. The email, written by a nonunion employee in
connection with the Respondent’s investigation, alleged
that Plant had considered engaging in the same type of
misconduct. The Respondent informed her about the
email, but maintained that it would neither investigate
the matter nor discipline Plant in connection with the
email. Nevertheless, the Respondent informed Plant that
the email would be kept “on file,” and refused to provide
Plant with a copy upon both her and the Union’s re-
quests.
The judge found that the General Counsel had not es-
tablished that the email was “necessary or relevant for
the Union to carry out its statutory duties,” noting that, at
the time of the Union’s request, there was no pending or
potential grievance relating to Plant; nor was there pend-
ing discipline or fact-finding relating to potential disci-
pline. The judge concluded that the mere potential for
such future activity was not enough to render the email
relevant to the Union’s statutory duties. We disagree.
It is well established that an employer has a general
obligation “to provide information that is needed by the
bargaining representative for the proper performance of
its duties.” NLRB v. Acme Industrial Co., 385 U.S. 432,
435–436 (1967) (citation omitted). “Where the Union’s
request is for information pertaining to employees in the
bargaining unit, that information is presumptively rele-
vant and the Respondent must provide the information.”
Disneyland Park, 350 NLRB 1256, 1257 (2007). “The
standard for relevancy is a ‘liberal discovery-type stand-
ard,’ and the sought-after evidence need not be necessari-
ly dispositive of the issue between the parties but, rather,
only of some bearing upon it and of probable use to the
labor organization in carrying out its statutory responsi-
bilities.” Sands Hotel & Casino, 324 NLRB 1101, 1109
(1997) (citations omitted), enfd. 172 F.3d 57 (9th Cir.
1999) (Table). Indeed, “the union is not required to
demonstrate that the information sought is accurate, non-
hearsay, or even ultimately reliable.” Asarco, Inc., 316
NLRB 636, 643 (1995), enfd. in relevant part 86 F.3d
1401 (5th Cir. 1996), quoted in Postal Service, 337
NLRB 820, 822 (2002). Most significantly, there is no
requirement that there be a pending grievance before
information may be considered relevant to a union’s stat-
utory duties. The union is entitled to information to as-
sess whether it should exercise its representative function
and whether the information will warrant further action,
such as filing a grievance or bargaining about a disputed
matter. Ohio Power Co., 216 NLRB 987, 991 (1975),
enfd. 531 F.2d 1381 (6th Cir. 1976).
The contents of an employee’s personnel file unques-
tionably constitute relevant information as “intrinsic to
the core of the employer-employee relationship.” Flem-
ing Cos., 332 NLRB 1086, 1086–1087 (2000) (citations
omitted). Information retained about an employee for
potential future use is relevant for a union’s performance
of its representative functions irrespective of its place-
ment. Consolidated Diesel Co., 332 NLRB 1019, 1020
fn. 7 (2000), enfd. on other grounds 263 F.3d 345 (4th
Cir. 2001). Id.
Applying these well-established principles, we find the
email here is presumptively relevant to the Union’s statu-
tory duty to represent Plant, a bargaining unit employee,
in any possible future dispute with the Respondent over
the retained information. See Disneyland Park, supra.
Garcia informed Plant that she would be keeping the
letter “on file,” with no explanation of why the Respond-
ent was retaining it, suggesting that the email might be
used in the future for some purpose. See Consolidated
Diesel, supra. Thereafter, the Respondent steadfastly
refused to provide either Plant or the Union with the
email. Because the email implied that Plant might have
engaged in misuse of company fuel cards, which her
former coworker had done and was discharged for, the
email carried the potential for future effects on Plant’s
continued employment. Under these circumstances, we
find that the email is relevant to the Union’s representa-
tion of Plant and that the Respondent violated Section
8(a)(5) and (1) by failing to furnish it to the Union.8
III.
Finally, we agree with the judge, for the reasons she
states, that the Respondent violated Section 8(a)(5) and
(1) by making various material, substantial, and signifi-
cant changes to the informal step of the grievance pro-
cess.9 The changes were the Respondent’s requirement
that supervisors would not go forward with discussions
unless the grievances were described with particularity,
the refusal of the supervisors to sign receipt of the writ-
ten grievances after meeting with the stewards, and the
requirement that more than one supervisor be present
during the initial grievance meetings. Concerning the
requirement that more than one supervisor be present, the

8 Member Johnson joins his colleagues under the specific facts pre-
sented in this case. To establish relevance, he relies primarily on Re-
spondent’s statement to Plant indicating that the Respondent would
keep the email for some unspecified future purpose related to Plant, a
unit employee. See Consolidated Diesel, supra.
9 In dismissing the related allegation that the Respondent did not di-
rect supervisors to refuse to talk about grievances on company time,
which dismissal we adopt, the judge inadvertently referred to complaint
par. 9(d)(2) instead of 9(d)(3) on p. 14, LL. 30 of her decision, as noted
in the General Counsel’s exceptions.
PUBLIC SERVICE CO. OF NEW MEXICO 575
collective-bargaining agreement itself confirms that this
was a change because it refers to only one supervisor,
“the immediate supervisor of the grievant,” being present
at the informal step initial meetings. We find the change
unlawful because, in conjunction with the other two un-
lawful changes, it created a new tier in the informal step,
further complicating grievance processing. As the judge
found, “what was once an informal discussion between
the steward and the supervisor is now a more formal and
protracted affair.” Accordingly, we find that all three of
these changes to longstanding practices created unprece-
dented procedural hurdles and clearly impeded the pro-
cessing of grievances.10
AMENDED CONCLUSIONS OF LAW
1. Insert the following as Conclusion of Law 3(f):
The Company policy that requires employees to get
management’s permission to escort visitors into the Edith
Service Center.
2. Insert the following as Conclusion of Law 3(g):
The email referred to by Human Resources Consultant
Joann Garcia and Supervisor Chris Jaramillo in a meet-
ing with Marie Plant and placed in a Plant “investiga-
tion” file by Garcia.
3. Substitute the following for Conclusion of Law 6:
By unilaterally changing the requirement for the Union’s
representatives to access its San Juan Generating Station

10 We reject our dissenting colleague’s suggestion that we refrain
from considering the cumulative effect of these three changes on the
grievance process because each was listed separately in par. 9(d) of the
complaint. Under the circumstances, it is appropriate to analyze these
related allegations in the context of the complaint as a whole, rather
than in isolation. See, e.g., Nicholas Morrone & Robert M. Verbosky
(Nick & Bob Partners), 340 NLRB 1196, 1198–1200 (2003) (in finding
Sec. 8(a)(5) violations, individual complaint allegations were not
viewed in isolation, but were considered in context). In light of the
clear impact of these changes on employees’ terms and conditions of
employment, we find that the General Counsel met his burden of proof.
Member Johnson disagrees with the judge’s finding that the Re-
spondent’s requirement that more than one supervisor be present during
the initial meetings of the informal step grievance process was a mate-
rial, substantial, and significant change in violation of Sec. 8(a)(5) and
(1). He notes that the complaint alleges each change in the informal
step grievance process as a discrete violation, and this, in his view,
precludes considering simply the cumulative effect of all the Respond-
ent’s changes in the informal step grievance process. Member Johnson
further finds that the General Counsel failed to carry his burden of
proof in connection with this particular allegation. Thus while supervi-
sors may have called in another supervisor or manager, Member John-
son relies on the absence of record evidence showing that the additional
supervisor requirement, unlike the other changes to the process, in any
way delayed or hindered the informal step discussions, or created ob-
stacles for grievants or union stewards. See North Star Steel Co., 347
NLRB 1364, 1367 (2006) (General Counsel failed to carry burden
when he offered no evidence that a transfer of work adversely affected
any employee).
in Farmington, New Mexico, on October 4, 2011, Re-
spondent violated Section 8(a)(1) and (5) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Public Service Company of New Mexico,
Albuquerque, New Mexico, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion activities.
(b) Threatening employees if they engage in activities
on behalf of the Union.
(c) Refusing to meet with employees regarding dis-
crimination complaints because they insist on having
their union representatives present.
(d) Denying unit employees the right to have the avail-
able union representative of their choice represent them
during investigatory interviews.
(e) Failing and refusing to recognize and bargain with
International Brotherhood of Electrical Workers, Local
Union No. 611, AFL–CIO (the Union) as the exclusive
collective-bargaining representative of the employees in
the following unit:
All employees of the Respondent’s Electric, Water,
Transmission, Distribution, Production, Meter Reader,
and Collector departments in the divisions and jobs ref-
erenced in Respondent’s collective-bargaining agree-
ment with the Union effective by its terms from May 1,
2009, through April 30, 2012.
(f) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant to the Union’s performance of its
functions as the collective-bargaining representative of
the Respondent’s unit employees.
(g) Changing terms and conditions of employment of
its unit employees without first notifying the Union and
giving it an opportunity to bargain.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Union in a timely manner the follow-
ing information requested by the Union:
(i) The total number of medical appointments
scheduled and approved by supervision for any and
all medical appointments for bargaining unit or non-
bargaining unit employees who are subject to the
Company’s policy; the total number of medical ap-
pointments scheduled and approved by supervision
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for any and all medical appointments for bargaining
unit or nonbargaining unit employees who are sub-
ject to the Company’s PTO policy and were required
to provide a doctor’s note to verify a medical ap-
pointment; the names, classifications and work loca-
tions of any and all PNM employees who are subject
to the Company’s PTO policy; and bargaining unit
or nonbargaining unit employees who have sched-
uled a medical appointment with their supervisor;
requested on or about January 4, 2011;
(ii) The discipline issued to Rex Foss for viola-
tions of Company policies including “Do the Right
Thing” that occurred as a result of Mr. Foss’ in-
volvement in the Carlisle and Montgomery leak in-
cident; requested on or about January 7, 2011;
(iii) Information pertaining to crew changes, in-
cluding who from management made the decisions
and how employees were informed of the decisions;
requested on or about January 27, 2011;
(iv) A list of any employees, bargaining unit or
otherwise, who have been discharged by the Com-
pany for violation of the Employee Safety Manual; a
list of any employees, bargaining unit or otherwise,
who have been discharged by the Company for vio-
lations of “other established safety procedures;” a
list of any employees, bargaining unit or otherwise,
who have been disciplined by the Company for vio-
lation of the Employee Safety Manual; and a list of
any employees, bargaining unit or otherwise, who
have been disciplined by the Company for violation
of “other established safety procedures;” requested
on or about December 2 and 14, 2010;
(v) The Company policy that requires discipline
to be administered if any employee has been charged
with 40 hours of “unscheduled absences” and the
date that policy became effective; the “unscheduled
time off requirements” referred to in Eric Morgan’s
email of January 25, 2011, and the policy that con-
tains those requirements; the policy that requires
employees to preapprove for PTO on any day that is
not designated a regular work day by the collective-
bargaining agreement; the definition of “unsched-
uled absence” and the Company policy that contains
the definition; the names, classifications and work
locations of any and all PNM employees, bargaining
unit or nonbargaining unit, who have been disci-
plined for accruing 40 hours of “unscheduled ab-
sences” from April 1, 2008, or the date the policy
became effective, to March 1, 2011, whichever peri-
od is shorter; requested on or about March 18, 2011;
(vi) The Company policy that requires employees
to get management’s permission to escort visitors in-
to the Edith Service Center; requested on or about
January 11 and 24, and February 7, 2011; and
(vii) The email referred to by Consultant Joann
Garcia and Supervisor Chris Jaramillo in a meeting
with Marie Plant and placed in a Plant “investiga-
tion” file by Garcia; requested on or about October
7, 11, 18, and 25, 2010.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the bargaining unit.
(c) Rescind the following changes in the terms and
conditions of employment for its unit employees that
were unilaterally implemented:
(i) The July 2011 changes to the initial stage of
the Informal Step of the grievance procedure requir-
ing the presence of more than one supervisor in
meetings, requiring stewards to explain in detail
which articles of the contract are alleged to be vio-
lated and how these articles have been violated, and
resulting in supervisors and managers refusing to
sign for receipt of grievances that have been put into
writing after oral grievances have been presented;
(ii) The January 2011 changes to the access un-
ion agents had to its Edith Service Center in Albu-
querque, New Mexico; and the October 4, 2011
changes to the access union agents had to its San
Juan Generating Station in Farmington, New Mexi-
co.
(d) Within 14 days after service by the Region, post at
its facilities located in the State of New Mexico, copies
of the attached notice marked “Appendix.”11 Copies of
the notice, on forms provided by the Regional Director
for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event

11 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
PUBLIC SERVICE CO. OF NEW MEXICO 577
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facilities
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since October 7, 2010.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply with this Order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate you about your
union activities.
WE WILL NOT threaten you if you engage in activities
on behalf of the Union.
WE WILL NOT refuse to meet with you regarding dis-
crimination complaints because you insist on having
your union representative present.
WE WILL NOT deny you the right to have the available
union representative of your choice represent you during
investigatory interviews.
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Electrical Workers,
Local Union No. 611, AFL–CIO (the Union) as the ex-
clusive collective-bargaining representative of our em-
ployees in the following bargaining unit:
All employees of the Respondent’s Electric, Water,
Transmission, Distribution, Production, Meter Reader,
and Collector departments in the divisions and jobs ref-
erenced in Respondent’s collective-bargaining agree-
ment with the Union effective by its terms from May 1,
2009, through April 30, 2012.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT change your terms and conditions of
employment without first notifying the Union and giving
it an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on or about October
7, 11, 18, and 25, and December 2 and 14, 2010; and
January 4, 7, 11, 24, and 27, February 7, and March 18,
2011.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the bargaining unit.
WE WILL rescind the July 2011 changes in the terms
and conditions of employment for our unit employees
that were unilaterally implemented, including changing
the initial stage of the informal step of the grievance pro-
cedure by requiring the presence of more than one super-
visor in meetings, and requiring stewards to explain in
detail which articles of the contract are alleged to be vio-
lated and how these articles have been violated, and re-
sulting in supervisors and managers refusing to sign for
receipt of grievances that have been put into writing after
oral grievances have been presented.
WE WILL rescind the changes in the terms and condi-
tions of employment for our unit employees that were
unilaterally implemented in January 2011 concerning the
access union agents had to our Edith Service Center in
Albuquerque, New Mexico; and on October 4, 2011,
concerning the access union agents had to our San Juan
Generating Station in Farmington, New Mexico.
PUBLIC SERVICE COMPANY OF NEW MEXICO
Frederic D. Roberson, Esq., for the Acting General Counsel.
Paula G. Maynes, Esq. and K. Janelle Haught, Esq., for the
Respondent.
John L. Hollis, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Albuquerque, New Mexico, on November 15–18, 2011,
and January 18–19, 2012. The International Brotherhood of
Electrical Workers, Local Union No. 611, AFL–CIO (IBEW,
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local 611, or the Union) filed the charge in Case 28–CA–
023391 on March 4, 2011, and the Acting General Counsel
issued the complaint on May 31. Public Service Company of
New Mexico (PNM, Respondent, or the Company) filed a time-
ly answer1 on June 21 denying all material complaint allega-
tions and setting forth its defenses. Respondent filed an
amended answer on June 29, clarifying the job titles of various
individuals connected to the complaint allegations. On October
11, Respondent filed a second amended and a motion to dismiss
portions of the complaint, arguing that certain issues had been
previously litigated. The Board National Labor Relations
Board (the Board) issued an Order denying the motion on No-
vember 10. Respondent renewed the motion at the hearing, and
I denied it pursuant to the Board’s order.
The Union filed the charge in Case 28–CA–066164 on Octo-
ber 5, 2011. The Acting General Counsel consolidated the
cases and issued a consolidated complaint on October 31. Re-
spondent filed a timely answer on November 14, denying all
material allegations and setting forth its defenses.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by PNM and the Acting General Counsel,2 I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Mexico corporation, with its principal
office and place of business in Albuquerque, New Mexico,
purchases, produces, transmits, and sells electricity. During the
past 12 months and at all material times it derived gross reve-
nues in excess of $500,000 and purchased and received goods
valued in excess of $50,000 directly from points outside the
State of New Mexico. Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the National Labor Relations Act) (the
Act) and that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Complaint Allegations
All of the complaints allege that Local 611 is the exclusive
bargaining representative of the employees in the following
unit (unit):
All employees of the Respondent’s Electric, Water, Transmis-
sion, Distribution, Production, Meter Reader, and Collector
departments in the divisions and jobs referenced in Respond-
ent’s collective-bargaining agreement with the Union effec-
tive by its terms from May 1, 2009, through April 30, 2012.
PNM admits Local 611 is a 2(5) labor organization that it has
recognized as the exclusive representative certain employees
covered by a series of bargaining agreements, including the
agreement effective from May 2009 through April 30, 2012.

1 Respondent requested, and was granted, an extension of time to
file the answer.
2 The Union did not file a brief.
The consolidated complaints allege that Respondent violated
Section 8(a)(1) of the Act by threatening employees in various
ways, denying union representation to employees, conducting
interviews after denying union representation, refusing to meet
with an employee because of his insistence on union represen-
tation, denying an employee the union representative of his
choice, misrepresenting Weingarten rights, and interrogating
employees about their union activity. The complaints further
alleges that Respondent violated Section 8(a)(1) and (3) by
imposing more onerous working conditions on an employee.
Finally, the complaints allege that Respondent violated Section
8(a)(1) and (5) by failing to provide the Union with various
requested information, implementing new policies regarding
union business agents’ access to company property, requiring
meter readers to work on Saturdays, and implementing changes
to the grievance process.
B. Summary of Previous Decisions
This decision culminates, for the time being anyway, the
third recent go-round for these parties over some similar dis-
putes.3 Because the previous decisions address some related
and analogous complaints, I will briefly summarize them here.
On March 2, 2011, Administrative Law Judge (ALJ) Burton
Litvack issued a decision in Case 28–CA–023148. He found
that PNM violated the Act by its delay in responding to the
following information requests:
(1) the discipline (if any) issued to Dave Delorenzo and Kelly
Bouska for their violations of [Public Regulations Commis-
sion] PRC and State of New Mexico regulations and statutes
regarding a gas leak at the intersection of Montgomery and
Carlisle in Albuquerque, New Mexico and their violation of
Respondent’s Do The Right Thing policy, and
(2) discipline issued to any of Respondent’s employees for
violations of PRC and State of New Mexico regulations and
statutes since January 2008.
He found the information requested was relevant to the Union’s
representative function, and that Respondent’s 5-1/2-month
delay in responding to it was unreasonable. The Board affirmed
Judge Litvack’s decision on May 24, 2011. 356 NLRB 316
(2011).
On February 12, 2012, ALJ William Schmidt issued a deci-
sion in Case 28–CA–022655. He found that PNM violated the
Act by failing to provide certain requested information, and by
unilaterally restricting Union Assistant Business Manager Ed
Tafoya’s access to one of its facilities. Judge Schmidt found
that PNM had not violated the Act with regard to certain other
information requests, removing and throwing away a union
posting from a bulletin board, removing Union Steward Eric
Cox from a meeting and subjecting him to a disciplinary inves-
tigation, and unilaterally implementing certain policies. Both

3 There was also a previous case from 2001, where the Board up-
held the ALJ’s finding that Respondent violated the Act by failing to
bargain over certain decisions and their effects, requiring employees to
wear uniforms, and eliminating the meter service technician position.
Public Service Co. of New Mexico, 337 NLRB 193 (2001).
PUBLIC SERVICE CO. OF NEW MEXICO 579
parties filed exceptions and, at the time of this decision, the
matter was pending before the Board.
C. Background and Respondent’s Operations
1. Facilities
PNM’s primary place of business is Albuquerque, but it op-
erates a number of facilities throughout New Mexico. Relevant
to this decision are the Edith Service Center (ESC) in Albu-
querqure, the San Juan Generating Station in Farmington, and
the Belen Office.
A variety of employees work out of the ESC, which encom-
passes roughly 12 acres and contains multiple buildings, includ-
ing the administration building, line department building, meter
department building, and a warehouse. (Tr. 749–750.)4 The
employees who work at the ESC include: linemen who main-
tain overhead and underground lines; substation electricians
who maintain large power equipment; communications techni-
cians who maintain radio communications; relay journeymen
who maintain PNM’s protective relaying schemes; and meter
journeymen who install metering equipment. (Tr. 746–747.)
The ESC also stores a large volume of materials and equip-
ment. (Tr. 751–752.)
The San Juan Generating Station in Farmington is a coal-
fired power plant that covers roughly 30–35 acres. The admin-
istration building sits in the parking lot outside of a fence that
encompasses the plant. Inside the fence are generation assets,
auxiliary assets, shops, and offices. (Tr. 366.) The control
rooms and distributive control system shop have been secure
sites under North American Electric Reliability Corporation
(NERC) regulations since January 2011. (Tr. 374, 464.) Em-
ployees required to access the controlled sites must pass a crim-
inal background check and received swipe cards permitting
them to enter through a turnstile. (Tr. 464.)
2. Company and union personnel
PNM has roughly 1800 employees, 635 of whom belong to
the IBEW. (Tr. 605.) Some company policies apply to all
employees, regardless of union status, while others do not. For
example, a different discipline policy applies to union versus
nonunion employees. Employees covered by the collective-
bargaining agreement (CBA) may only be terminated for just
cause, whereas nonunion employees may be terminated for any
reason. There are also differences in other terms and conditions
of employment, such as entitlement to bypass overtime, re-
quired training, and compensation. (Tr. 600–603.) On the
other hand, certain policies apply to all employees alike, re-
gardless of union membership. (Tr. 631; CP Exh. 2.)
Laurie Monfiletto is the director of human resources for the
utility portion of PNM. (Tr. 581.) In that capacity, she over-
sees employee relations, labor relations, staffing, and learn-
ing/development issues. She supervises six employees: four
business partners who are assigned to PNM’s business units, a
labor relations representative, and a disability specialist. (Tr.

4 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R.” for Respondent’s exhibit; “GC” for Acting General Coun-
sel’s exhibit; “CP” for charging party’s exhibit; “Jt.” for joint exhibit;
“AGC Br.” for the Acting General Counsel’s brief; and “R. Br.” for
Respondent’s brief.
582.) The business representatives are: JoAnn Garcia for the
marketing customer service group; Sonia Otero for the electric
service business unit (EBSU); and Tim Padilla and Eleanor
(Ellie) McIntyre for the generation part of the business. McIn-
tyre has been the human resources supervisor at the San Juan
Generating Station since February 2010. She supervises Pa-
dilla, who holds the title of senior human resources consultant.
(Tr. 582–583, 901, 929, 1007.)
Ray Mathes is PNM’s labor relations manager. He super-
vised Cindy Castro, who worked for PNM as a labor relations
consultant from November 2009 to April 2011. (Tr. 528.)
Castro’s work included tracking grievances and responding to
requests for information from the Union. She was responsible
for labor relations of the meter readers, collectors and the
ESBU. (Tr. 528.) Mick Oldham, senior labor relations repre-
sentative, also reports to Mathes. (Tr. 901, 904.)
Jeff Nawman has been PNM’s manager of the substation
communications and relay departments since February 2011.
(Tr. 743.) He was previously the manager of the line depart-
ment and distribution operations, a position Tom Mitchell as-
sumed in April 2011.5 (Tr. 832, 861.) Dale Smyth was a su-
pervisor of the line department until his retirement in December
2011. (Tr. 805.) Ralph Pesce is a supervisor in the construc-
tion and maintenance department. (Tr. 806.) Ernie Rodarte is
the compliance manager at the San Juan facility. (Tr. 943.)
Ed Tafoya works for the Union as an assistant business
agent, servicing the State of New Mexico. He has held this
position since October 2002. In this capacity, he negotiates
contracts, represents members in the grievance and arbitration
processes, and deals with management on various other issues
that arise. He also represents members in meetings from which
the employee reasonably perceives discipline may ensue. (Tr.
31–32.) Tafoya primarily services employees working in the
EBSU at PNM’s Albuquerque and Belen offices, and oversees
approximately 20 union stewards. (Tr. 37.) Shannon Fitzger-
ald is also an assistant business manager with the IBEW, ser-
vicing members in the power production units at PNM’s San
Juan, Afton and Reeves Generating Stations, and overseeing
approximately 20 union stewards. (Tr. 350.) Prior to assuming
this position, he had been a journeyman mechanic, and had
served as a union steward since late 1984 or early 1985. (Tr.
352.)
Finally, many of the allegations concern Eric Cox, who
worked for PNM as a journeyman lineman until early 2009,
when he moved from the line department to the maintenance
department. (Tr. 221, 855.) Cox has been a union steward
since 2006. (Tr. 221.)
III. FACTUAL FINDINGS AND DECISION
Because of the numerous allegations, I have broken down
my factual findings and conclusions, including credibility de-
terminations, into separate sections below. In preface, I will
state that in reaching my conclusions, I often had the impres-
sion that both parties were blindly and stubbornly digging in
their heels, caring more about who could exert the most power

5 Dale Smyth served as interim manager after Nawman left the posi-
tion and before Mitchell assumed it on a permanent basis.
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and be technically “right” rather than trying to come to a work-
able solution. In my view, a change in this dynamic is long
overdue.
A. Alleged Changes to Informal Step of the
Collective-Bargaining Agreement
Complaint allegation 9(d) alleges that since on or about July
7, 2011, a more precise date being unknown to the Acting Gen-
eral Counsel, the Respondent has unilaterally implemented the
following changes to the informal step of the contractual griev-
ance and arbitration procedures:
(1) requiring stewards at the initial stage of the Informal Step
to explain in detail which articles of the contract are alleged to
be violated and how these articles have been violated;
(2) refusing to sign in receipt of grievances that have been put
to writing after oral grievances have been presented;
(3) refusing to talk about grievances with Union representa-
tives on company time; and
(4) requiring more than one supervisor be present during In-
formal Step grievance meetings.
1. Facts
PNM and the IBEW have a long history together. They have
been parties to successive collective-bargaining agreements
since the 1970s. The current CBA runs from May 1, 2009,
through April 30, 2012. (Jt. Exh. 1.)
The grievance process is set forth in the CBA at article 10. It
is a three-step process, with each step requiring a higher level
of approval for resolution. The first step, referred to as the
informal step in the CBA, is at issue here. The relevant section
of article 10 is part B, which states in full:
B. Informal Step. Any employee, or designated member of
a group of employees, having a grievance, as defined herein,
shall first take up the grievance orally with the immediate su-
pervisor of the grievant, who will attempt to adjust the griev-
ance informally.
In this Informal Step, prior to the grievance being reduced to
writing, grievance settlements will be considered as non-
binding precedent setting unless otherwise mutually agreed.
Any employee may request the presence of a Union steward
to represent the employee in the grievance.
If the grievance is not adjusted to the satisfaction of the
grievant at this informal step, it shall be reduced to writing, on
the appropriate forms and presented to the supervisor no later
than fifteen (15) days after the occurrence of the event giving
rise to the grievance.
Any grievance which is reduced to writing shall include the
following matters:
1. A statement of the grievance and all facts or events
upon which it is based, as well as the date of occur-
rence of the alleged event on which it is based;
2. The specific provision of the Agreement which is
alleged to be at issue;
3. The remedy sought by the grievant for resolution of
the grievance;
4. The names of all employees involved in the griev-
ance;
5. The signature of the grievant, or steward, along
with the date the grievance was presented to the super-
visor.
The supervisor shall respond, in writing, no later than fifteen
(15) days after being presented with the grievance. If there is
no response from the supervisor, the grievance shall proceed
to Step Two.
If the grievance is not satisfactorily adjusted at the informal
step it shall be referred to Step Two.
(Jt. Exh. 1.) The informal step, also referred to as step 1, gen-
erally takes place in the supervisor’s office or in the area where
the employee works. (Tr. 34.) The time limits can be extended
upon the parties’ mutual agreement. (Tr. 161.)
Monfiletto testified as to her understanding of the informal
step. She stated that the supervisor, union steward, and em-
ployee talk through the issue. If they can come to a remedy, the
grievance goes away. If the supervisor says he or she cannot
remedy the situation, the grievance is reduced to writing. A
supervisor who does not know whether or not he or she can
meet the remedy asks for more time to get the information they
need before moving to the written part of step 1. If the supervi-
sor cannot get an answer in time to avoid threatening the 15-
day time limit, the supervisor will grant an extension. (Tr.
595–596.) Oldham, McIntyre, and Padilla share this view. (Tr.
926–929, 957, 1035, 1058.)
Business Agents Tafoya and Fitzgerald, as well as Union
Stewards Eric Cox, Clay Cash, Mike Patscheck, and Allen
Barnard all testified regarding their understanding of and expe-
rience with the informal step. Though not using precisely the
same words, they all recounted that prior to the alleged chang-
es, the informal step involved the supervisor and union steward
sitting down to talk about the alleged violation to see if they
could settle it. If they could not resolve it easily then and there,
it was reduced to writing, and the supervisor signed that he had
received the grievance. Stewards commonly had the written
part of the informal step filled out when they went into the
initial meeting with the supervisor. Once the supervisor signed
in receipt of the grievance, he or she had 15 days to respond.
The steward then signed in receipt of the response, and if the
grievance was not resolved, it proceeded to step 2. (Tr. 34–48,
117, 220–224, 266, 273–274, 351–352, 405, 407, 412, 422–
423; 1079–1080; Jt. Exh. 1.)
The step 1 form has two separate lines for the supervisor to
sign and date; one indicating the date of receipt and another
indicating the date of the response. (Tr. 318; GC Exh. 7.) Be-
cause the supervisors must sign in receipt within 15 days of the
alleged violation, the Union had concerns that if they would not
sign until 15 days from the oral part of step 1, the grievances
would be untimely.6 (Tr. 163, 413.) Tafoya testified that, from

6 Although Respondent contends that the Union controls when the
grievance is brought, this is not always the case, as there was testimony
PUBLIC SERVICE CO. OF NEW MEXICO 581
the Union’s perspective, the decision of whether or not to agree
to an extension is at the steward’s discretion, and depends upon
the steward’s impression of whether the request is made in
good faith.7 (Tr. 163.) After signing in receipt, the supervisor
could let the employee know at a later time whether he/she
could remedy the grievance. According to Tafoya, this was
how Respondent processed the informal grievance from 1977
until mid-2011. (Tr. 34–38.)
During the summer of 2011, there were many new supervi-
sors at PNM. Because of this, starting in May, Monfiletto be-
gan a series of supervisor trainings by the Management Associ-
ated Results Company (MARC). (Tr. 592, 611, 971.) The
MARC training gives a history of labor relations, and provides
guidance on handling difficult conversations. (Tr. 624.)
PNM’s human resources department also distributed to its su-
pervisors a document dated October 25, 2011, called “Informal
Grievance Guidelines for Supervisors.”8 (Tr. 362; GC Exh. 3;
R. Exh. A.) The document gives guidelines for supervisors
involved to handle step 1 grievances. The bullet point items the
Union most contests are:
 You are not obligated to hear a grievance on a walk-
in basis. Schedule a time for the informal meeting
with the employee and the union steward that is con-
venient for you. Ensure second supervisor is available
and/or attends the meeting, if you feel is needed.
 Document the meeting as thoroughly as possible. Be
sure to follow MARC documentation process on page
52 under Chronological-Time-Sequence Note Taking
in your MARC manual.
 Do not accept a written grievance until the informal
process has occurred.
 Have the employee/union steward identify the sec-
tion(s) of Articles allegedly being violated, and ask
them to explain how they were violated. If the em-
ployee/union steward cannot provide this infor-
mation, document what they said.
 Do not state that you cannot meet the remedy at this
time, but instead ask for time to further research
and/or obtain approval or communicate up (Manage-
ment chain/HRBP).
 If at any time before the informal process has been
completed a union steward presents a step 1 written
grievance and requests you to sign it, you should in-
dicate the informal Step has not been completed, that
you are attempting to follow the contract grievance
procedure, and that you will sign the Step 1 grievance
if the matter is not resolved in the Informal Step.
 If you have had the informal meeting but have not yet
provided the employee or union steward with the

that sometimes the employee does not raise the grievance with the
Union until the end of the time period due to leave, schedules, or other
reasons.
7 For example, Barnard said he would give extensions to supervisors
if he felt it would be worthwhile for them to go talk to someone else.
(Tr. 431.)
8 GC Exh. 3 is a previous version dated October 6. Padilla testified
that he and Otero coauthored the document. (Tr. 973.)
Company response, and the union steward presents a
written grievance, you must state that you have not
denied the remedy at this point and still consider this
grievance at the Informal Step, and are attempting to
follow the contract that you will sign Step 1 griev-
ance if it is not resolved at the Informal Step.
 If a union steward asks if you are refusing to sign for
the written grievance, restate that you are attempting
to follow the contract, have not denied the remedy,
and will attempt to settle at the Informal Step, but you
will sign Step 1 grievance if the matter is not resolved
at the Informal Step.
 If the union steward gives you a written grievance
with “refused to sign” noted on it, continue to work at
addressing the grievance at the Informal Step.
(GC Exh. 3; R. Exh. A; emphasis in original.) The guidelines
were distributed to all supervisors with unit employees.9 (Tr.
593, 611.) Content in the guidelines had been discussed with
individual supervisors previously on a piecemeal basis. (Tr.
616.)
Before the MARC training, McIntyre believed the Union and
the Company were not doing a good job implementing the in-
formal process and getting grievances settled at the lowest pos-
sible level. (Tr. 1035.) She perceived the training as providing
supervisors with a better understanding of how to follow the
CBA. (Tr. 1034–1035.) Padilla perceived the MARC training
and the guidelines as consistent with the CBA, but not con-
sistent with how grievances were actually being processed. (Tr.
974.)
Jamie Shockey was a member of the Union for 5 years until
he became a supervisor in late May or June 2011. He served as
a union steward and was trained by Fitzgerald and others on
handling grievances. (Tr. 1078.) In his experience as a stew-
ard, supervisors generally did not ask for more time when he
would present the oral grievance at the step 1 meeting. (Tr.
1080.) On one occasion involving an intoxicated employee the
supervisor asked for, and was granted, additional time. (Tr.
1082.) Shockey took the MARC training after he became su-
pervisor in or around early June 2011. He did not view it as a
departure from the contract, and opined it was intended to get
supervisors to follow the contract. (Tr. 1083.) He did see it as
a departure from how the informal step had previously been
handled. (Tr. 1109–1110.)
According to Tafoya, PNM also trained employees on the
MARC principles 12 years ago. The Union did not agree to
abide by the MARC principles then or now. (Tr. 49–50.)
Tafoya’s objection to the MARC principles is based on his
perception that they formalize the intended informal nature of
the first step. He elaborated that the MARC principles advise
supervisors to bring in a witness, schedule grievance meetings,
and “go up the ladder” before answering grievances. (Tr. 107.)
Mike Patscheck works as an instrument control electrician
(ICE) journeyman in the maintenance department at PNM’s
San Juan facility. He has served as a union steward for approx-

9 McIntyre did not provide Fitzgerald with the materials from the
MARC training. (Tr. 1037.)
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
imately 2 years. (Tr. 410.) On July 7, 2011, Patscheck met
with Acting Supervisor Dennis Mitchell to process a grievance
for employee Perry Woolsey. After the verbal discussion,
Mitchell said he could not meet the remedy, but would not sign
in receipt of the step 1 grievance. (Tr. 411.) Fitzgerald advised
Patscheck to file the grievance the following day with Wool-
sey’s regular supervisor, Shockey. (Tr. 353–354.) On July 8,
Shockey, Mitchell, Patscheck, and Woolsey met. (Tr. 1084.)
Woolsey’s grievance involved an alleged change to his job
description, and he sought a severance package of roughly 9–10
months’ pay as a remedy. (Tr. 1086.) Shockey stated this
would probably go beyond his or anyone at the plant’s ability to
remedy, but stated he would find out what human resources had
to say about it. (Tr. 1087.) Though he did not feel he could
meet the remedy, Shockey wanted to know where the Company
stood in a pending reorganization process before he responded,
so he did not sign in receipt of the grievance. (Tr. 1088–1089.)
Patscheck testified this was a change from how Respondent
processed the roughly 50 grievances he had previously filed.
(Tr. 410, 412.)
In early September 2011, Tafoya began receiving complaints
from other stewards who reported to him that supervisors were
not “signing in receipt” of grievances at the informal step.
Instead, the supervisors were requiring employees to go
through the CBA and explain which articles were allegedly
violated and why, and they would not sign in receipt of griev-
ances. (Tr. 36–38.)
In late September, Glenn Miller, an employee in the meter
reader department, notified Tafoya that Supervisor Steve Kniff-
en would not sign in receipt of a grievance. Tafoya came to
Respondent’s headquarters and spoke with Kniffen. He ex-
plained to Kniffen how he thought the CBA had been violated,
and asked if Kniffen could meet the remedy. In response,
Kniffen contacted his supervisor, Eric Morgan. Morgan joined
the meeting, and asked Tafoya what he was doing on Respond-
ent’s property. When Tafoya explained that he was there as a
representative, Morgan told him he was not allowed on Re-
spondent’s property. Neither Morgan nor Kniffen signed in
receipt of the grievance. Instead, Morgan asked Tafoya to
schedule a time to sit down and discuss the matter. Tafoya
responded that they could arrange a meeting at a later time, but
he believed that was beyond what was required at the informal
step. (Tr. 39–44.)
Since Kniffen would not sign in receipt of the grievance,
Tafoya decided to send it to the second step. He reduced the
grievance to writing on the second step form and called Mick
Oldham to meet. On September 30, 2011, Tafoya and Oldham
met in the lobby of Respondent’s headquarters building. (Tr.
45–47, 908–909.) Tafoya explained that he had a couple of
grievances where the supervisor would not sign in receipt, and
he wanted to process them up to the second step. Oldham re-
sponded that these grievances had not been through the first
step, and he would not sign them.10 (Tr. 45–47, 910–911.)
Cox noticed that since the fall of 2011, the Union meets with
two supervisors, they require a scheduled meeting, and they

10 He did sign grievances that the supervisor had signed on the step
1 form.
will not answer whether or not they can remedy the grievance.
In addition, Cox testified that Supervisors Smyth, Mary Ann
Brandon, and Ralph Pesce would not process grievances unless
he explained the violation “line by line, article by article.” (Tr.
220–224. 266, 280.)
Clay Cash works as an ICE journeyman, instrument control
electrician at PNM’s San Juan facility. He has served as a un-
ion steward for roughly 7 years. (Tr. 402.) He observed that in
the fall of 2011, supervisors were making the stewards go
through grievances “article by article” at the informal step and
they were not signing in receipt of the grievances. (Tr. 403.)
On August 23, after Cash finished the oral part of the informal
step, Bob Vozza would not sign a grievance Cash filed on be-
half of Fitzgerald. (Tr. 403–405.) Vozza told Cash he had 15
days to sign the grievance. (Tr. 404.) Cash’s understanding
was that the Union has 15 days to file the grievance. At that
point, after the supervisor signs stating that he has received the
grievance, he or she has 15 days to come back with an answer.
(Tr. 405.) Cash tried to show Vozza this in the CBA, but Voz-
za did not change his position. (Tr. 405.)
Allen Barnard, who has worked with PNM for 29 years, is an
environmental process operator at PNM’s San Juan facility. At
the time of the hearing, he had been a union steward for about
10 months. (Tr. 421.) On October 8, 2011, Barnard had some
grievances involving employees Brian Donisthrope and Mike
Pronio. Barnard asked to meet with Supervisor Troy Bateman,
and Bateman responded that he was too busy and would need to
get with his team manager.11 (Tr. 424, 430.) The next day,
Barnard met with Batemen and the team manager, Joel Roundy.
Bateman asked for more time before he signed in receipt of the
grievance, but Barnard would not grant it. (Tr. 378.) Barnard
wrote on the form that the supervisor would not sign, and gave
him a copy. After the 15 days passed for the supervisor to re-
spond, Fitzgerald presented Padilla with the step 2 forms. Pa-
dilla would not receive the unsigned step 2 grievances, and
suggested that the Union re-file the step 1 grievance. (Tr. 355–
356.)
On October 18, 2011, Barnard processed a grievance for em-
ployee Bret Cartwright. He met with Supervisor Jeff Cuffee
and they could not settle the matter. Barnard signed the written
grievance and gave it to Cuffee to sign that he had received it.
Cuffee did not sign in receipt of the grievance and left it on the
table. (Tr. 427–428.)
2. Decision and analysis
Well-settled law provides that an employer may not change
the terms and conditions of employment of represented em-
ployees without providing their representative with prior notice
and an opportunity to bargain over such changes. See NLRB v.
Katz, 369 U.S. 736, 747 (1962). A grievance procedure is a
mandatory subject of bargaining and, hence, a unilateral change
there likewise constitutes a refusal to bargain. As the Board
stated in Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962):
A method for presenting and adjusting grievances which deal
with “wages, hours, and other terms and conditions of em-

11
The team manager is above the supervisor in the chain-of-
command. (Tr. 424–425.)
PUBLIC SERVICE CO. OF NEW MEXICO 583
ployment” is manifestly related to those matters. In accord
with Board and court decisions, we find that . . . a grievance
procedure [is a matter] related to “wages, hours, and other
terms and conditions of employment” within the meaning of
Section 8(d) of the Act and, therefore, [is a] mandatory sub-
ject for collective bargaining.
See also Westinghouse Electric Corp., 141 NLRB 733, 735–
736 (1963), revd. on other grounds 325 F.2d 126 (7th Cir.
1963). Accordingly, unilateral action by an employer that sub-
stantially changes a contractual grievance procedure violates
Section 8(a)(5) and (1) of the Act. Motoresearch Co., 138
NLRB 1490, 1492 (1962); Athey Prods. Corp., 282 NLRB 203,
207 (1986).
The fact that a particular working condition or benefit is not
expressly embodied in the governing collective agreement is
immaterial where satisfactorily established by practice or cus-
tom. See Hotel Texas, 138 NLRB 706, 712–713 (1962), enfd.
326 F.2d 501 (5th Cir. 1964); Frontier Homes Corp., 153
NLRB 1070, 1072–1073; Central Illinois Public Service Co.,
139 NLRB 1407, 1415 (1962), enfd. 324 F.2d 916 (7th Cir.
1963). Regular and longstanding practices that are neither
random nor intermittent become terms and conditions of em-
ployment even if not addressed in a collective-bargaining
agreement. As such, these past practices cannot be changed
without offering the unit employees’ collective-bargaining
representative notice and an opportunity to bargain, absent clear
and unequivocal waiver of this right. Sunoco, Inc., 349 NLRB
240, 244 (2007), citing Granite City Steel Co., 167 NLRB 310,
315 (1967); Queen Mary Rest. Corp. v. NLRB, 560 F.2d 403,
408 (9th Cir. 1977); Exxon Shipping Co., 291 NLRB 489, 493
(1988); DMI Distribution of Delaware, 334 NLRB 409, 411
(2001). This is no less true where the practice is denominated a
“privilege,” voluntarily instituted or bestowed by the employer.
Central Illinois Public Service Co., 139 NLRB at 1415. A past
practice must occur with such regularity and frequency that
employees could reasonably expect the “practice” to continue
or reoccur on a regular and consistent basis. Philadelphia Co-
ca-Cola Bottling Co., 340 NLRB 349, 353–354 (2003); Eugene
Iovine. Inc., 328 NLRB 294, 297 (1999).
As cited above, Respondent’s witnesses admit, and I find,
that there was a longstanding practice of handling the informal
step of the grievance process as the union witnesses described
it. I further find that this practice changed during the summer
of 2011.12 In response, Respondent asserts rather that the
guidelines it distributed were suggestions rather than require-
ments on how supervisors handle grievances. It also contends
that the supervisors’ subsequent adherence to the guidelines
was simply an attempt to bring the informal step in line with
the CBA.

12 While there was testimony regarding occasional deviations from
the general practice, such as occasional extensions of time and the
occasional presence of more than one supervisor, the evidence shows
the informal step was generally handled in the same manner prior to the
changes. Likewise, after the summer of 2011, the informal step was
sometimes handled the way it was before, but the evidence shows it
generally was handled in conformity with the guidelines.
I will first briefly address the argument that the guidelines
were merely optional. It is clear from the testimony of several
union stewards and Tafoya, detailed above, that supervisors
abided by them regularly. The MARC training principles
and/or the guidelines for supervisors therefore may have been
optional in theory, but evidence shows they were implemented
in practice most of the time. In other words, there was a change.
Next, Respondent argues that any changes attendant to the
MARC training and supervisor guidelines merely were attempts
to enforce the contract as written. It is well settled that the
Board has the authority to interpret the terms of a collective-
bargaining agreement to determine whether an unfair labor
practice has been committed. NLRB v. C & C Plywood Corp.,
385 U.S. 421, 428 (1967); Resco Products, Inc., 331 NLRB
1546 (2000). In Resco, the Board described its method of in-
terpreting collective-bargaining agreements as follows:
In interpreting a contract, the parties’ intent underlying the
contract language is paramount and is given controlling
weight. To determine the parties’ intent, the Board looks to
both the contract language and to the relevant extrinsic evi-
dence, such as the parties’ bargaining history and past prac-
tice. When there is no extrinsic evidence, the Board looks to
the ordinary meaning of relevant contract terms as applied to
the facts of the case.
331 NLRB at 1548.
The parties interpret the requirements of the informal step
somewhat differently. The language of the contract is not pre-
cise enough to fit either specific approach to a T. Respondent
contends that its interpretation is correct, citing to the contrac-
tual language and testimony of human resource officials and a
supervisor for support. As an example, Respondent claims the
union stewards’ practice of coming to the oral part of the step
with the written grievance already prepared is noncompliance
with the CBA. The Union claims that this practice is consistent
with the contract, because the stewards do not present the writ-
ten grievance to the supervisor until they have discussed the
matter and the supervisor is unable to meet the remedy. The
Union, of course, disputes much of Respondent’s interpretation,
and points to the contract language as well as past practice. For
example, the Union deems the practice of having the supervisor
“communicate up (Management chain/HRBP)” if he or she
cannot independently meet the remedy as inconsistent with the
informal step and consistent with step 2. Respondent sees it as
consistent with the informal step.13 As with the numerous other
points of disagreement, I find that both Respondent’s interpre-
tations and the Union’s interpretations, as advanced by the
Acting General Counsel, are generally plausible.14

13 The language of art. 10 states that the oral meeting at the informal
step is with the “immediate supervisor” and the employee and/or stew-
ard. Respondent argues in its brief that this precludes having a union
business agent present (R. Br. 66–67), but takes the position that it does
not preclude having additional supervisors or managers present.
14 Oldham’s testimony, cited in Respondent’s brief, that “the time
limit for the oral step is bundled with the ‘15 days’ for either party, and
that there is not a separate time for the oral part of Step 1 versus the
written part of Step 1” is an implausible interpretation. (Tr. 920–221;
R. Br. 62.) The language of art. 10 clearly sets forth separate time
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To borrow from ALJ Wilks’ decision in Dearborn Country
Club, 298 NLRB 915, 920 (1990), “[d]isposition of this case
does not necessitate an arbitral-like process of interpreting what
I find to be equally plausible contract interpretations. The past
practice is clear and unambiguous.” “Where past practice has
established a meaning for language that is used by the parties
[in their agreement], the language will be presumed to have the
meaning given it by past practice.” Pan-Adobe, Inc., 222
NLRB 313, 325 (1976) (quoting Pekar v. Brewery Workers
Local 181, 311 F.2d 628, 636 (6th Cir. 1962), cert. denied 373
U.S. 912 (1963)). There is nothing in the contract that obviates
the Union’s interpretation of the informal step. On the contra-
ry, for the reasons set forth here at footnote 13, its interpretation
seems the more plausible one. In any event, the Union’s inter-
pretation had clearly become the past practice.15 Accordingly,
Respondent’s argument that its approach is mandated by the
CBA fails, and I find the Acting General Counsel has estab-
lished that the manner of processing the informal step that ex-
isted prior to the changes that began during the summer of 2011
was a longstanding past practice.
Respondent further advances a business justification argu-
ment, discussing the benefits of improved adherence to the
CBA. (R. Br. 69–72.) There are two problems with this. First,
as discussed directly above, the parties have different reasona-
ble interpretations of the relevant part of the CBA. According-
ly, Respondent has not shown that the changes would yield
improved adherence. Second, the argument does not justify
bypassing the Union and implementing the changes to
longstanding past practices unilaterally. McCottor Motors Co.,
291 NLRB 764, 769 (1988).
Finding a change in the terms and conditions of employment
does not end the inquiry, however, because the duty to bargain
only arises if the changes are “material, substantial and signifi-
cant.” Alamo Cement Co., 281 NLRB 737, 738 (1986); Flam-
beau Airmold Corp., 334 NLRB 165, 171 (2001). The General
Counsel bears the burden of establishing this. North Star Steel
Co., 347 NLRB 1364, 1367 (2006).
Turning now to consider the specific allegations, the Acting
General Counsel did not submit evidence that supervisors re-
fused to talk about grievances with union representatives “on
company time” as alleged in the consolidated complaint. Ac-
cordingly, I recommend dismissal of the complaint allegation at
paragraph 9(d)(2).
A closely related issue that was not raised in the complaint
but was fully litigated, however, was that supervisors required
union representatives to schedule informal step meetings with

limits. (Jt. Exh. 1.) In addition, Respondent’s argument in its brief that
there are informal and formal procedures in step 1 and that Cash’s
interpretation of the grievance process as “informal step, second step,
arbitration” is wrong, is conclusory, and is belied by the fact that the
contract itself calls the entire first step “Informal Step” and the phrase
“Step 1” appears nowhere in art. 10. The last sentence of the informal
step states, “If the grievance is not satisfactorily adjusted at the infor-
mal step it shall be referred to Step Two.” (Jt. Exh. 1; R. Br. 62.)
However, these examples do not necessitate a finding that Respond-
ent’s interpretation is wholly implausible.
15 Indeed, Respondent conducted the MARC training and distribut-
ed the guidelines based on its view that this practice was incorrect.
them. I do not find this to be a “material, substantial, and sig-
nificant” change. The evidence showed that this did occur, but
that supervisors also would meet the steward on the fly if it was
convenient. Had the supervisors been unwilling to schedule a
meeting without undue delay, then the change would arguably
meet the standard. The Acting General Counsel, however, did
not submit evidence that supervisors were unwilling to sched-
ule time to discuss grievance, or that any grievances were un-
timely as a result.
I find that the Acting General Counsel has met his burden
with respect to the remainder of the allegations in paragraph
9(d), particularly when the individual allegations are considered
together. Stewards Cox, Cash, Miller, Patscheck, and Barnard,
and Union Business Agent Tafoya all testified about specific
informal grievances where the immediate supervisor called in
another supervisor or manager. Cox and Cash provided specif-
ic examples of meetings where the supervisor would not go
forward with the discussion unless they described the grievance
line by line and article by article. Cox, Cash, Miller, Patscheck,
Barnard, and Tafoya each provided examples of meetings
where the supervisor would not sign in receipt of the written
grievance after meeting with the steward and not being able to
meet the requested remedy. All told, the evidence shows that
what was once an informal discussion between the steward and
the supervisor is now a more formal and protracted affair, in-
volving more than just the immediate supervisor on manage-
ment’s behalf at the initial meeting, and potentially involving
human resources and/or higher-level management down the
line. This is a significant change from the past practice of han-
dling the informal step.
Moreover, the evidence shows that the net effect of these
changes resulted in failure to process some grievances. Refusal
to process a grievance violates Section 8(a)(5) of the Act. Ma-
jestic Towers, Inc., 353 NLRB 304 (2008). Specifically, the
Acting General Counsel presented evidence that after the expi-
ration of the supervisor’s 15-day time to respond at the infor-
mal step, Tafoya gave Oldham and Padilla certain grievances
that the respective supervisors would not sign for as received.
Oldham and Padilla would not process these grievances at step
2, even though Tafoya explained that the supervisor had failed
to sign the grievance after the initial meeting with the steward.
As with much of the dealings between the Union and manage-
ment, this standstill represents yet another ill-advised battle of
wills. Given my finding that the supervisors’ refusal to sign
that they received a grievance deviates from past practice
grounded in a reasonable interpretation of the contract, howev-
er, Respondent loses this one. It is important to note that, at
any point between the time the steward presented the written
grievance to the supervisor and the expiration of the supervi-
sor’s 15-day time period to respond, the supervisor could have
taken the very steps that he/she claimed justified the initial
failure to sign in receipt of the grievance. In fact, prior to the
changes, when the supervisor came back with a response that
he/she could meet the remedy after the Union presented the
written grievance to the supervisor but before expiration of the
supervisor’s 15-day response time, the Union would withdraw
the grievance. (Tr. 472–473.) The supervisors’ refusal to sign
in receipt of grievances, even if they thought the oral part of the
PUBLIC SERVICE CO. OF NEW MEXICO 585
informal step should be continued, does not excuse complete
inaction during the 15-day response time.16 These practices
amount to a refusal to process grievances in violation of Sec-
tion 8(a)(5).
Based on the foregoing, I find the Acting General Counsel
has met his burden to prove that Respondent violated Section
8(a)(1) and (5) by making unilateral changes to the informal
step of the grievance process.
B. Alleged Changes to Union Agents’ Access
and Related Threats
Paragraph 9 of the complaint alleges that Respondent violat-
ed Section 8(a)(1) and (5) when:
(a) In about January 2011, a more precise date being unknown
to the Acting General Counsel, the Respondent implemented
a new policy requiring employees to obtain permission to es-
cort visitors on the Respondent’s Edith facility premises.
(b) In about January 2011, a more precise date being un-
known to the Acting General Counsel, the Respondent im-
plemented a new policy requiring all Union agents obtain
permission before entering the Respondent’s Edith facility
premises.
(e) Since on or about October 4, 2011, the Respondent im-
plemented and enforced new policies concerning Union
agents’ and representatives’ access to the Respondent’s San
Juan Generating Station facility, thereby restricting and limit-
ing Union agents’ and representatives’ access to the Respond-
ent’s facility.
The complaint, at paragraph 5, further alleges that Respond-
ent violated Section 8(a)(1) when:
(g) On or about January 20, 2011, the Respondent, by Gary
Cash, herein called Cash, at the Respondent’s Edith facility,
threatened employees by informing them that Union Assistant
Business Manager Ed Tafoya, herein called Tafoya, was not
allowed on the property to represent them.
(h) On or about January 24, 2011, the Respondent, by a secu-
rity guard, whose precise identity is unknown to the Acting
General Counsel, and speaking at the direction of Jeff Na-
wman, herein called Nawman, at the Respondent’s Edith fa-
cility, threatened employees by informing them that Tafoya
was not allowed on company property.
(i) On or about January 25, 2011, the Respondent, by Na-
wman, at the Respondent’s Edith facility, threatened employ-
ees by informing them that Tafoya was not allowed on the
Respondent’s property.
1. Facts relating to Tafoya
The progressive narrowing of Union Business Agent Ed
Tafoya’s access to PNMs property has been the subject of pre-
vious litigation. Judge Schmidt provided a thorough summary
of Tafoya’s historical access in his decision at pages 40–42,
which I will not reiterate here. In sum, PNM took steps in 2008

16 GC Exh. 7 makes clear that signing in receipt does not mean that
the supervisor has responded one way or the other, as there is space for
the response, as well as a separate line to sign and date.
to address security lapses at the ESC, one of which was a new
access policy for visitors. (Tr. 752–755, 777.) Though Tafoya
previously enjoyed unfettered access to meet with his members
at the ESC, he agreed, under the policy, to have the same access
as contractors. He was given a badge that permitted him access
between the hours of 6 a.m. and 6 p.m. In August 2009,
Tafoya’s access was changed to that of a visitor.17 Pursuant to
a January 15, 2009 Security and Access Control memo from the
General Services Group/Security, the policy with regard to
visitors is as follows:
Visitors: All visitors will be required to sign in with Security
or at the front desk of the Administration Building. Visitor’s
badges or stickers will be issued to visitors by Security or by
an ESC employee. Employees will be required to escort visi-
tors at all times within the ESC compound. Visitors can be
pre-announced to Security by calling 241–3642 and Security
will provide notification when the visitor has arrived. Em-
ployees will be required to pick up and return visitors at either
the main service gate (E-4) or the front lobby of the Admin-
istration Building. Visitor badges should be returned to Secu-
rity at the end of the visit.
(Tr. 99; Jt. Exh. 2-1; Schmidt decision at p. 42.)
During a Monday morning safety briefing in late 2010, Su-
pervisor Don Wilkerson informed a group of 10–15 employees,
including Cox, that the Company had come up with a new poli-
cy requiring employees to get management’s approval prior to
letting visitors into the ESC. Cox asked for a copy of the policy
but Wilkerson did not provide it. (Tr. 231–232.) Union Stew-
ard Bert Garcia asked Smyth for a copy of the policy but he
never received it. (Tr. 341.)
In early January 2011, an unidentified working foreman
called Tafoya and asked him to come and review a new email
policy Respondent was implementing. The working foreman
stated that he had his crew with him, and they shared a concern
about the policy. While on the phone, Tafoya heard the super-
visor, Gary Cash, state that Tafoya was not allowed on PNM
property. (Tr. 52–55.) At a later point, Tafoya and Castro
worked out a time with Cash to come and have Tafoya review
the policy with employee Joe Montano. (Tr. 770.)
On January 10, 2011, Tafoya went to the ESC to investigate
a potential grievance. Union Steward Eric Cox signed Tafoya
in and escorted him to the new service delivery (NSD) crew
room to speak with an employee, John Vigil. (Tr. 55–58, 171,
228–231.) When Nawman saw Tafoya, he stopped and asked
why he was visiting the facility. Tafoya informed Nawman he
was investigating a potential grievance. Nawman told Tafoya,
in the presence of employees John Vigil, Jerry Serna, and Cox,
that he needed permission from management to be on the prop-
erty, and asked him to leave. (Tr. 58–59, 169–171, 230–232.)
Tafoya told Nawman that he had followed procedures by sign-
ing in and having Cox escort him. Nawman responded that, per
PNM policy, Cox was required to get permission from man-
agement to escort Tafoya onto the premises. (Tr. 58–59.)

17 Judge Schmidt found this unilateral change violated Sec. 8(a)(1)
and (5).
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Tafoya asked Nawman for a copy of this policy but he did not
provide one.18 (Tr. 60; Jt. Exh. 3.)
A series of written exchanges ensued. On January 11, Tafoya
sent an email to Cindy Castro and Nawman, recounting his
conversation with Nawman about the policy, and formally re-
questing a copy of it. He also asked for information regarding
how the policy was communicated to supervisors and employ-
ees. Castro responded in a letter dated January 20. In pertinent
part, she stated that the January 15, 2009 Security and Access
Control memo from the General Services Group/Security speci-
fies the access control, and provided him with a copy of it. (Tr.
574; Jt. Exh. 2; CP Exh. 5). She also sent him an email on
February 2, reiterating what she said in her letter, and adding
that employees must check with their supervisors when deviat-
ing from their assigned work. Castro further informed Tafoya
that the Company did not have information regarding how the
policy was distributed to supervisors or employees. Tafoya
replied on February 7, asking Castro to clarify that there was no
written policy requiring management approval to escort visitors
onto PNM property. He additionally asked her to clarify how
and when employees and management learned of the policy,
and notified her that he was investigating a possible grievance
related to the matter. Castro responded that his access to the
ESC was pending a decision from an ALJ, and that PNM’s
position remained unchanged. Tafoya reiterated his request on
February 11. Castro responded on February 16, stating simply,
“The Company stands by its previous responses.” (Jt. Exh. 2;
Tr. 61.) Castro testified that, by referencing to the Security and
Access Control memo, she advised Tafoya there was no written
policy requiring management’s approval to escort visitors. (Tr.
536.) She did not recall directly telling Tafoya that there was
no written policy requiring employees to obtain management’s
permission to escort visitors onto the ESC premises. (Tr. 573.)
Castro did not recall seeing such a policy, and the Access Con-
trol memo does not address management’s approval for visi-
tors. (Tr. 573–574; CP Exh/ 5.)
On an unidentified date, Bert Garcia, who was a steward at
the time, received a request from Joe Pesce, who was then a
working foreman, to sign Tafoya in so he could meet with him.
Pesce drove Garcia to the security gate where Tafoya was wait-
ing, and Garcia signed him in as a visitor. As Tafoya and Gar-
cia were walking down the hall inside the administration build-
ing, a security guard approached and told Tafoya he had in-
structions from Nawman not to allow Tafoya inside the build-
ing.19 (Tr. 340–341.) During the first part of April 2011, Gar-
cia observed Nawman, in the hallway by the line department,
tell Tafoya he was not allowed on company property. (Tr. 339,
343.)

18 Tafoya also later asked Cindy Castro for a copy. (Tr. 60.)
19 There was a separate incident when Nawman instructed a guard to
escort Tafoya off the premises. Nawman, however, left the area and did
not hear what, if anything, the guard said to Tafoya. He therefore did
not know whether any employees heard the guard speak to Tafoya. (Tr.
766.) Tafoya did not testify about this incident. The only specific testi-
mony the General Counsel elicited about a guard’s statement to Tafoya
came from Bert Garcia, and I will therefore infer this comment is the
basis for complaint allegation 5(h).
Nawman testified that prior to January 2011, any employee
at the ESC could meet Tafoya at the front desk, sign him in,
and escort him, though this practice was “certainly not our ex-
pectation.” (Tr. 789.) Nawman learned of the changes to visi-
tor access from Mathes and his boss, Kirk Moser, but he could
not recall or even approximate when. (Tr. 800.) He thinks
Moser told him verbally. (Tr. 801.)
From January 2011 forward, Tafoya was required to have
management approval for access to the ESC. (Tr. 137–138,
789.) Whether management needed to actually escort him
while he was on the property depended on the supervisor in-
volved. According to Tafoya, some supervisors sent the stew-
ard to escort him while others had a supervisor escort him
throughout his visit. (Tr. 137–138.)
Cox observed a contractor named Bizzell enter the property
without following the new protocol. He saw people from the
blood drive come and go without escorts. (Tr. 301.) He has
also seen Ken Harger, a retired foreman, at PNM’s facilities
without an escort. (Tr. 322.)
2. Analysis and conclusions
a. Tafoya’s access
As a condition of employment, the method of access by em-
ployees to their representatives for grievance resolution is a
matter related to “wages, hours, and other terms and conditions
of employment” within the meaning of Section 8(d) of the Act
and is a mandatory subject of bargaining. Bethlehem Steel Co.,
136 NLRB 1500, 1502 (1962), enfd. 320 F.2d 615, 620 (3d Cir.
1963). See also Westinghouse Electric Corp., 141 NLRB 733,
735–736 (1963), revd. on other grounds 325 F.2d 126 (7th Cir.
1963); Motoresearch Co., 138 NLRB 1490, 1492 (1962); J &
H Rainwear, 273 NLRB 497 (1984), and Houston Coca-Cola
Bottling Co., 265 NLRB 766, 778 (1982).
The CBA does not address the level of access union officials,
including business agents, may have at PNM’s facilities. Ac-
cordingly, the analysis turns to whether, by past practice, access
became a term or condition of employment. The legal frame-
work, set forth above in the discussion of changes to the infor-
mal step of the grievance process, governs this analysis. It is
undisputed that traditionally the Union had virtually unencum-
bered access to the plant for a variety of reasons. As Judge
Schmidt observed, “the evidence shows a longstanding practice
of granting union agents access to PNM’s private property for
the purpose of providing service to the employees the Union
represents.” (Smith decision at p. 42.) As in the prior case,
Nawman, a PNM manager with a long tenure at the ESC, ad-
mitted as much. In addition, Tafoya’s testimony on his past
practice of meeting with employees, investigating grievances,
filing grievances, attending investigatory interviews, meeting
with supervisors, and conducting other union business inside
Respondent’s facility since 2002 was not contradicted.
By requiring management approval for employees to escort
for Tafoya into the ESC or before Tafoya could enter the ESC,
PNM unilaterally removed a “real and substantial benefit” the
Union previously enjoyed. Granite City Steel Co., 167 NLRB
310, 315 (1967). Having a manager aware each time an em-
ployee requests to talk to Tafoya and requiring him to be es-
corted would clearly inhibit the kind of candid exchanges pos-
PUBLIC SERVICE CO. OF NEW MEXICO 587
sible between the represented employees and their union
agents. Such a requirement is a way to make certain managers
know when and with whom meetings between the union agent
and unit employees occur. The same is true for the requirement
that Tafoya contact a manager before entering the ESC.
Respondent asserts that requiring management permission
for Tafoya to access the ESC is part and parcel of requiring
employees to obtain management permission before leaving
their assigned duties. (R. Br. 57.) There was no evidence pre-
sented, however, that this requirement was limited to employ-
ees who were on the clock or employees who had not already
received supervisory permission to address union matters dur-
ing working hours. In addition, Respondent asserts in its brief
that the issue was previously litigated and decided by Judge
Schmidt. The issues, however, are different, with the level of
access here being even more restricted than in the previous
case. Finally, Respondent alleges a business justification, cit-
ing management’s right to prevent unwarranted interruption of
PNM’s operations. This, however, does not excuse the duty to
bargain. McCottor Motors Co., 291 NLRB 764, 769 (1988).
Accordingly, I find the unilaterally-implemented changes to
Tafoya’s access to PNM’s property in January 2011 are materi-
al and significant, and therefore violate Section 8(a)(1) and (5).
Ernst Home Centers, 308 NLRB 848, 849 (1992); see also
Turtle Bay Resorts, 355 NLRB 1272 (2010); Sacramento Un-
ion, 291 NLRB 540 (1988).
b. Alleged threats
The Board’s longstanding test to determine if there has been
a violation of Section 8(a)(1) of the Act is whether the employ-
er engaged in conduct which might reasonably tend to interfere
with the free exercise of employee rights under Section 7 of the
Act. American Freightways Co., 124 NLRB 146 (1959). Em-
ployer conduct that violates Section 8(a)(1) of the Act includes
threats to exclude union agents from a jobsite. Swardson Paint-
ing Co., 340 NLRB 179 (2003). In specifically assessing
whether a remark constitutes a threat, the appropriate test is
“whether the remark can reasonably be interpreted by the em-
ployee as a threat.” Smithers Tire & Auto. Testing of Texas,
308 NLRB 72 (1992). Further, “It is well settled that the test of
interference, restraint, and coercion under Section 8(a)(1) of the
Act does not turn on the employer’s motive or on whether the
coercion succeeded or failed.” American Tissue Corp., 336
NLRB 435, 441 (2001) (citing NLRB v. Illinois Tool Works,
153 F.2d 811, 814 (7th Cir. 1946)).
With regard to Cash’s statement, I agree with Respondent
that the Acting General Counsel has not presented sufficient
evidence to prove this allegation. As Respondent notes, the
“working foreman” was not identified. Based on a later meet-
ing Cash arranged with Tafoya and Montano, it most likely was
Montano, but Montano did not testify about this incident. No
other employee who was present testified about it either.
Though Tafoya heard voices of crew members in the back-
ground, the evidence does not establish that any of them were
listening to the phone conversation between Tafoya and Cash
or that they were subsequently informed of it. Accordingly, I
recommend dismissal of complaint allegation 5(g).
By contrast, the other statements, detailed above, occurred in
the presence of union employees. Garcia overheard the securi-
ty guard’s comment that Nawman instructed him not to let
Tafoya on the property. Nawman’s statements in the NSD
crew room were made in the presence of other employees.
Respondent asserts that the contested comments were merely
enforcement of the rule requiring management’s permission for
Tafoya to access PNM’s premises. Given my finding that the
rule was unlawfully unilaterally promulgated, however, reli-
ance on such cannot provide a valid reason for the statements
enforcing the rule. Villa Avila, 253 NLRB 76, 82 (1980).
The Board ruled on a similar issue in Frontier Hotel & Casi-
no, 309 NLRB 761 (1992), enfd. in relevant part NLRB v. Un-
believable, Inc., 71 F.3d 1434, 1438 (9th Cir. 1995).20 There,
the Board affirmed the ALJ’s finding that ejection of union
representatives from the hotel’s premises interfered with union-
related communications and coerced employees in violation of
Section 8(a)(1) of the Act. Id. at 766; see also ABF Freight
System, Inc., 325 NLRB 546, 562 (1998). In the present case,
expulsion of the union representative from the premises took on
the character of a threat (and its impact on Sec. 7 rights was
magnified) by the presence of union employees who witnessed
the denial of access to their representative. Accordingly, I find
that the Acting General Counsel has met his burden to prove
that Respondent threatened employees’ Section 7 rights by
sending the message that the person charged with administering
their collectively bargained rights was no longer allowed inside
Respondent’s facility. I therefore find that, by the conduct
alleged in complaint paragraphs 5(h) and (i), Respondent vio-
lated Section 8(a)(1) of the Act.
3. Allegations relating to Fitzgerald
a. Facts
Prior to October 2011, Union Business Agent Fitzgerald
went to the San Juan facility most Tuesdays. He would call
human resources employees, drive to the plant, get a temporary
placard from the security guard to put on his dashboard, and
enter the plant. (Tr. 366, 932.) Fitzgerald would conduct
whatever business he needed to without an escort. When he
was done, he would return his placard and leave. (Tr. 367.)
McIntyre was aware of this practice, having been informed of it
by her predecessor, as well as having observed it for a year.
(Tr. 1069–1070.) Employees also knew Fitzgerald visited on
Tuesdays. (Tr. 1098.) Fitzgerald generally met with supervi-
sors in their offices. (Tr. 360.)
Employees receive two breaks and a 30-minute lunch. (Tr.
1055, 1065.). Fitzgerald visited employees in the shops and in
the control rooms, and conducted union business when employ-
ees were on breaks when possible. In the shops, he would talk
to employees in the breakroom for varying amounts of time.
(Tr. 1099.) Some unit employees, such as plant operators in the
secure control rooms, do not get formal breaks. Fitzgerald
talked to employees in the control room both before and after it
was a NERC-secured site. He would sign in, and an employee

20 In Frontier Hotel, there was an access provision in the applicable
CBA. Here, established past practice renders this a distinction without a
difference.
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with a swipe card would escort him. (Tr. 443–444.) His visits
in the control rooms were varied in time but were usually rela-
tively brief. (Tr. 1100–1101.)
McIntyre started as human resources director at San Juan in
February 2010. In early 2011, she spoke with Mathes and the
plant director, Greg Smith, about wanting to make sure em-
ployees were not coming off the job to talk to Fitzgerald. She
perceived his routine access to the plant as “odd” based on her
labor background. (Tr. 1042–1045.)
An internal election within the IBEW resulted in a brief and
temporary changing of the guard. Between July 15 and Sep-
tember 9, 2011, Jim Speight, a newly-elected business manag-
er, employed his own assistants and stewards to represent the
Local 611’s members. (Tr. 158–159.) Most relevant here,
Aaron King served as the assistant business manager for mem-
bers at the San Juan Generating Facility from July 27 to mid-
September 2011. (Tr. 159; 382.) During that time period, Fitz-
gerald returned to his position of journeyman mechanic.21 (Tr.
373.) Prior to King taking over as assistant business manager
in the summer of 2011, King was in McIntyre’s office to get
paperwork started for his leave of absence from his job with
PNM. He, McIntyre, and Padilla discussed access to the plant.
(Tr. 383, 1023.) According to King, McIntyre did not like that
Fitzgerald came to PNM unannounced. (Tr. 383.) King stated
that when the new administration was in place, they would
work to compromise on a number of things. King told McIn-
tyre that he would call and let them know when he would be
coming, and that he would conduct most union business at the
union hall. (Tr. 383–384, 942, 1023.) Padilla and McIntyre
offered King space in the administration building to meet with
unit members. (Tr. 391–392, 938, 1023.) King was not in
office long enough to take Padilla up on this offer, but had no
problem with the plan. (Tr. 392, 968.) King viewed it as a
courtesy rather than a requirement. (Tr. 395.) King did not
perceive that he and anyone from PNM entered into any
agreement over his access to PNM’s property. (Tr. 386.) Pa-
dilla perceived that he and King agreed about the changed ac-
cess, but did not view it as binding on Fitzgerald. (Tr. 952–
953, 970.) McIntyre did not view King’s acceptance of the
offer to meet with unit members in the administrative building
as an agreement. (Tr. 1052.) During King’s 6–8 weeks as
assistant business manager, he had about three meetings with
Padilla to discuss grievances. (Tr. 391–392, 938.)
On October 4, 2011, Fitzgerald returned as assistant business
manager. He arrived at the San Juan Generating Station, where
the security guard checked his ID and directed him to the admin
building. After signing in, Fitzgerald started on his way to find
Padilla, at which point the guard told him he needed to have
Padilla escort him onto the property. (Tr. 356–357.) Fitzgerald
and the guard tried to call Padilla, but neither received a re-
sponse. Fitzgerald then signed out, took off his badge, and
drove around to the front gate to attend to other work. The
guard at the front gate said he was ordered to deny Fitzgerald
access. (Tr. 357.) Fitzgerald went back to the union hall.
When he got ahold of Padilla and asked what was going on,

21 Fitzgerald had to undergo a 7-year criminal background check
pursuant to NERC regulations when he resumed his work at PNM.
Padilla apologized for the way things had transpired, but ex-
plained that PNM was changing his access. (Tr. 358, 951.)
Fitzgerald made an appointment to come back at 1 that after-
noon. He arrived, signed in, received a badge, and Padilla es-
corted him into the administration building. (Tr. 359.) Clay
Cash was also present. Padilla informed Fitzgerald that when
he needed to talk to any of the stewards or employees, the em-
ployee would be called up to meet with him in a room in the
administration building. If Fitzgerald needed to be elsewhere
on the PNM property, Padilla would escort him. (Tr. 446, 454–
455, 954.) Under the new rule, Padilla, McIntyre, or Ernie
Rodarte, the compliance manager, needed to escort him when-
ever he came to the facility, and they would make a meeting
room available to him in the admin building. (Tr. 981.) In a
meeting about a week later, Padilla said that the Union had not
acquiesced to the loss of any rights to access the property dur-
ing King’s tenure. (Tr. 458–459, 978.)
Cash observed vendors and contractors walking around the
plant unescorted. (Tr. 459–460.) Lloyd Beebe, a business
agent from the Local 611 who represents contractor MJ Elec-
tric’s construction electricians, appeared on the property unes-
corted in or around October 2011. (Tr. 462, 503.) Beebe con-
tinued, through the time of the hearing, to have the same access
Fitzgerald previously had. (Tr. 509, 511, 935.) Contractor Jim
Washburn does not require an escort. (Tr. 963.) Other vendors
have varying degrees of access. Some have temporary swipe
cards, others use visitors’ badges. (Tr. 1063.)
b. Analysis and conclusion
Respondent admits, and I find, that Fitzgerald had a practice
of visiting the San Juan facility on Tuesdays and had wide-
ranging access once there. (R. Br. 73; 963, 1019, 1021.) The
legal framework discussed above regarding Tafoya’s access
applies here, and accordingly I find Fitzgerald’s access prior to
the changes constitutes a past practice. Likewise, for the rea-
sons articulated above, I find the unilateral changes Respondent
implemented are material, substantial and significant. The
rationale is even more compelling than in Tafoya’s situation,
since here either human resources management or the compli-
ance manager now must escort Fitzgerald to meetings. Re-
spondent’s argument that once escorted, Fitzgerald could meet
with the employee in a private room misses the point entirely,
as articulated in the discussion of Tafoya’s access.
Respondent’s argument that King “constructively agreed” to
restrictions on the Union’s access is wholly unavailing and
baseless in light of the evidence presented. Though no law was
cited to support this argument, I will address it with the brevity
it is due. King was not yet acting as a union business agent
when he had the discussions with McIntyre and Padilla at issue.
Respondent’s argument that because King was wearing a suit
and driving a union truck, Padilla, a seasoned human resources
employee who knew King had yet to take office, somehow
believed King could bind the Union is absurd. This is particu-
larly true considering Padilla’s own testimony that he did not
consider any arrangement he made with King as binding on
Fitzgerald. In a meeting about a week later, Padilla said that
the Union had not acquiesced to the loss of any rights to access
the property during King’s tenure. (Tr. 458–459, 978.) Like-
PUBLIC SERVICE CO. OF NEW MEXICO 589
wise, McIntyre did not view King’s acceptance of the offer to
see employees in the administration building as an agreement.
(Tr. 1052.) Finally, King testified he did not view the discus-
sions he had with Padilla or McIntyre about access as an
agreement. (Tr. 386.) Apparently, nobody perceived there was
an agreement.
Respondent cites to the NERC regulations to support the
changes. First, these regulations became applicable in January
2011, yet no changes took place until August. Second, the
NERC regulations apply to very few of the worksites at the San
Juan facility yet the changes were not limited to these sites.
Finally, Fitzgerald obtained the requisite background check to
access NERC-regulated sites during his brief period out of of-
fice when he returned to work as a journeyman mechanic. He
was permitted access when he lacked the required clearance,
and, as Respondent noted, he was also permitted access to the
NERC-secured control room after the changes. (R. Br. 77.)
Respondent did not present evidence, as it argued in its brief,
that Fitzgerald’s access to the NERC-controlled sites was pre-
cluded by Federal law. This position would be most difficult to
support in light of the evidence regarding his continued access
after the law took effect.
Lastly, Respondent pointed to concerns about productivity.
The evidence that Fitzgerald interfered with employee produc-
tion is scant at best. On one occasion, when Padilla saw three
people talking with Fitzgerald, he asked whether they had work
to do. Fitzgerald replied that if they did, they were free to go.
(Tr. 936.) Supervisor Rick Carroll once complained that Fitz-
gerald was causing a disturbance down in the shop when Car-
roll would not receive a request for information. He did not
mention anything about production. (Tr. 961.) McIntyre had a
few conversations with Fitzgerald about employees needing to
limit their visiting time to lunch and breaks. Fitzgerald, in a
manner that McIntyre characterized as respectful, agreed and
told her that his purpose was to be available during lunch and
breaks. (Tr. 1020.) There was no evidence that any employee
suffered production deficiencies from working on union busi-
ness with Fitzgerald. Any business justification lacks merit for
the same reasons articulated in Tafoya’s case. See McCottor
Motors Co., 291 NLRB 764, 769 (1988).
Based on the foregoing, I find Respondent violated Section
8(a)(1) and (5) of the Act when it changed Fitzgerald’s access
as alleged.
C. Alleged Changes to Meter Reader Schedules
Complaint paragraph 9(c) alleges that Respondent violated
Section 8(a)(1) and (5) of the Act when:
On or about January 3, 2011, the Respondent implemented a
new requirement that meter-reading employees have to work
on Saturdays.
1. Facts
Article 15A of the collective-bargaining agreement contains
a provision that defines the working hours for meter readers
and collectors. Under this provision, employees who work an
8-hour schedule work a 40-hour week with regular work hours
on Monday through Friday. Collectors may be assigned a 10-
hour per day, 4-day per week schedule, with the regular work-
week as Monday through Thursday or Tuesday through Friday.
(Jt. Exh. 1.)
Meter readers reported to Tafoya they were being required to
work mandatory overtime and these hours were being sched-
uled on Saturday. Respondent, after imposing mandatory over-
time on Saturdays, notified employees that failure to report on
those days would be considered unscheduled absences. (Tr.
101.)
2. Analysis and conclusion
I find that the Acting General Counsel has not produced suf-
ficient evidence to prove this allegation. The contract provision
it cites to, section 15A, sets forth the schedules for regular work
hours. What is at issue, however, is the requirement to work
overtime, not the regular schedule. Section 15A is silent as to
overtime, but overtime work is contemplated in article 17A,
which sets forth the overtime rates for meter readers and collec-
tors. Tafoya testified that the meter readers complained to him
about being required to work overtime on Saturday in January
2011. There was simply not testimony or other evidence suffi-
cient to prove that this requirement violated the collective-
bargaining agreement or that it deviated from established past
practice. As the Acting General Counsel has not met his bur-
den in this regard, I recommend dismissal of complaint para-
graph 9(c).
D. Alleged Refusal to Process Eric Cox’s
Discrimination Complaint
Complaint paragraph 5(e) alleges that Respondent violated
Section 8(a)(1) of the Act as follows:
Since about October 7, 2010, the Respondent has refused to
meet with the Union and its employee Eric Cox, herein called
Cox, regarding a complaint Cox filed regarding his working
conditions because Cox has insisted that his Union representa-
tive be present during any such meetings.
1. Facts
In or around late April/early May 2010, Cox filed a com-
plaint with PNM alleging discrimination based on his race and
union activity, i.e., his status as a Black steward. He asked
Tafoya to represent him. PNM assigned Tommy Lee, human
resources director at PNM Resources in Las Colinas, Texas, to
investigate the complaint. (Tr. 636–637.) Glenn Porter, vice
president of human resources, chose Lee because he had no
prior connections with the Union or local management. (Tr.
628.) Lee attempted to meet with Cox on Wednesday, June 1,
in Albuquerque. He called and emailed both Cox and his su-
pervisor, Mark Martinez, to confirm availability. Martinez,
informed Lee that Cox had already take leave for Thursday and
was thinking of taking Wednesday off too. Cox did take leave
on Wednesday, and was therefore not at work when Lee visit-
ed.22 (Tr. 640–641.) For reasons that are less than clear, Lee
and Cox did not make contact with each other until Cox sent
Lee an email on September 29, asking if Lee was the right per-
son to contact about his complaint, and stating that nobody had

22 Cox called Lee and left him a voicemail that he was on leave.
(Tr. 643.)
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gotten back to him.23 (Tr. 643.) The next day, Lee responded,
and ultimately scheduled a meeting for October 7, 2010, at
PNM headquarters. (Tr. 226, 643, 647.) The parties met on
October 7, but, as described in more detail below, the investiga-
tion did not move forward. This is because Cox did not agree
to proceed without Tafoya as his representative. Cox wanted
Sonia Otero to conduct the investigation because he believed
Lee had been influenced by Ray Mathes,24 and Cox wanted the
investigation processed as a single allegation of discrimination
based on race and union animus. (GC Exh. 2.)
On October 8, 2010, Lee sent Cox an email summarizing his
understanding of the meeting. He stated that PNM was ready
and willing to investigate his complaint, but that Tafoya could
not serve as a witness or representative during the investigation
into the race discrimination complaint.25 Lee further informed
Cox that he could choose a PNM employee to serve as a wit-
ness for the race discrimination investigation, and that Tafoya
could serve as a witness during the investigation regarding
union animus.26 Lee noted that Tafoya and Cox were adamant
that the race and union animus complaints should be investigat-
ed together, and they believed Tafoya had the right to serve as
Cox’s union representative, not just as a witness. He also me-
morialized Cox’s request to have Sonia Otero participate in the
investigation, and stated that the Company would make her
available to help with the race discrimination claim. Lee con-
cluded that he would speak with management about next steps,
and get back to Cox. (Tr. 643–651; GC Exh. 2.)
Cox forwarded Lee’s email to Tafoya for response. On Oc-
tober 29, 2010, Tafoya reiterated that Cox did not want the
complaint split into two separate investigations. He expressed
his belief that Ray Mathes, manager of labor relations, was a
party to the complaint, and therefore should not have any input
into the investigation. According to Tafoya and Cox, Lee had
stated at the meeting that his decision to bifurcate the investiga-
tion was made in concert with Legal Counsel Janelle Haught,
Porter, and Mathes. (Tr. 128, 227.) Lee testified that he,
Mathes, and Porter discussed whether to permit a union repre-
sentative, and that he discussed the decision to bifurcate the
investigation with Porter and Haught. (Tr. 658–659.) Tafoya
stated that he would continue to act as Cox’s representative,
and he asked Lee to provide him with the policy he was relying
on to prohibit his involvement. He noted that any investigation
may affect Cox’s terms and conditions of employment, and
therefore his request for union representation was legitimate.
Tafoya further related the parties’ responsibilities to abide by
article 8 of the CBA. He concluded by requesting a meeting to
address Cox’s concerns. (GC Exh. 2.)

23 Not surprisingly, each side lays the blame on the other. Because
the complaint allegation runs from October 7 forward, however, the
prior communications snafus are immaterial.
24 Cox testified he thought Mathes was part of the problem underly-
ing his complaint, and the only person he trusted at PNM was Otero.
(Tr. 293, 295.)
25 Tafoya testified that he told Lee and Otero that he had infor-
mation to offer as a witness. (Tr. 126.)
26 Lee clarified that Tafoya could serve as a witness to the proceed-
ing and remain in the room with Cox. (Tr. 660.)
On November 2, 2010, Lee sent an email to Cox acknowl-
edging receipt of Tafoya’s October 29 correspondence. He
clarified that he had spoken to Mathes prior to their meeting,
but he did not “follow advice” from him as Tafoya had alleged.
He reiterated that he intended to bifurcate the investigation, and
that union representation for the race discrimination claim was
unwarranted. He recommended that they proceed with the
separate investigations rather than allow a process issue to de-
lay the Company in its attempts to address his concerns. Lee
concluded by informing Cox that he had set up a meeting for
November 10 to discuss the race discrimination complaint.
(GC Exh. 4.) Lee met with Cox and Tafoya on November 10,
offered to take Cox’s statement about the race discrimination
claim with Tafoya in the next room. If it came to light that
Tafoya had relevant knowledge, Lee would interview him. (Tr.
653.) The parties maintained their respective positions, and the
investigation did not ensue. (Tr. 68.) Lee learned that Cox’s
unfair labor practice charges alleging PNM failed to investigate
his complaint were dropped, and asked Cox if he still wanted to
pursue his race discrimination claim. Lee testified that Cox sent
him a simple email back: “No.”27 (Tr. 654–656.)
2. Analysis and conclusion
The Acting General Counsel contends that Cox’s discrimina-
tion complaint alleges a violation of the CBA. He further ar-
gues that Cox’s complaint falls within the CBA’s definition of
a grievance, thereby invoking Cox’s right to representation.
(AGC Br. 51–53.) Respondent argues that the CBA does not
address representation for the investigation of an employee’s
own complaint. Respondent further contends that the investiga-
tion that Cox initiated could not reasonably lead to his own
discipline, and therefore he had no right to representation under
Weingarten.28 (R. Br. 17–18.)
In support of its argument, the Acting General Counsel
points to articles 8 and 10 of the CBA. Article 8, at section A,
incorporates Respondent’s requirement to abide by Federal and
State laws regardless of an employee’s race, religion, color,
sex, age, or national origin into the contract. (Jt. Exh. 1.) Re-
spondent’s “Do the Right Thing” policy also contains an Equal
Employment Opportunity (EEO) provision prohibiting unlaw-
ful discrimination. (CP Exh. 2.) The CBA, article 10, defines a
grievance as “a dispute between the parties hereto with respect
to interpretation or application of the provisions of the Agree-
ment or to the application of a specific policy to a specific em-
ployee.” That same section permits employees to have a “un-
ion steward” represent them in the grievance process. Finally,
article 10 provides: “The following procedure shall be the

27 Respondent does not argue that Cox abandoned his race discrimi-
nation complaint, and, assuming Cox sent this email (which was not
produced at the hearing), I find his response to Lee indicates he did not
want to go forward as before, i.e., unrepresented.
28 NLRB v. J. Weingarten, 420 U.S. 251 (1975). As Respondent as-
serts, Lee testified it was “inconceivable” that Cox could face discipline
for bringing his complaint. Civil Rights law does share this view. Title
VII of the Civil Rights Act of 1964 (Title VII) protects employees from
employer retaliation for opposing or complaining about, inter alia, race
discrimination, and provides a comprehensive remedial scheme for any
violations. See 42 U.S.C. § 2000e-3.
PUBLIC SERVICE CO. OF NEW MEXICO 591
exclusive means by which either party may seek to resolve any
dispute or grievance arising under the provisions of this
Agreement.” (Jt. Exh. 1.) The crux of the argument, therefore,
is that PNM was required to process Cox’s complaint as a
grievance and permit Tafoya to represent him. Respondent
contends the CBA does not address representation for the in-
vestigation of Cox’s discrimination complaint and therefore
does not confer upon him any representation rights.
Complaints regarding contract violations are generally pro-
cessed as grievances. Indeed, there is a lengthy body of case
law that discusses when deferral to the grievance and arbitra-
tion process is appropriate. See Collyer Insulated Wire, 192
NLRB 837 (1971), and its progeny. In most such cases, the
employer requests dismissal of an unfair labor practice com-
plaint, arguing deferral to the grievance/arbitration process.
This case is somewhat upside down. Respondent never sought
to process either the underlying discrimination complaint, or
the complaint regarding representation in the investigation of
the discrimination complaint, as grievances.29 It is not clear
whether Cox or Tafoya presented the discrimination complaint
as a grievance, though Tafoya referenced article 8 of the CBA
in his correspondence with Lee. A threshold issue therefore
arises then of whether Cox’s discrimination complaint should
have been processed as a grievance.
As discussed above, it is well settled that the Board has the
authority to interpret the terms of a collective-bargaining
agreement to determine whether an unfair labor practice has
occurred. NLRB v. C & C Plywood Corp., 385 U.S. 421, 428
(1967); Resco Prodtss, Inc., 331 NLRB 1546 (2000). I find
that the CBA, through articles 8 and 10, mandated PNM to
process the discrimination complaint as a grievance. Cox did
not file a discrimination charge with a Federal or State agency.
Instead, he raised his complaint internally. Cox, as a union
steward, should have known that his complaint fell under the
CBA, and asked for it to be processed as a grievance.30 It is not
clear to whom Cox initially presented his discrimination com-
plaint or whether he asked that it be routed through any particu-
lar forum. The evidence shows, however, that the complaint
made its way to Porter, the vice president of human resources.
Porter, and other individuals from human resources, labor rela-
tions, and/or the legal department, who knew about the com-
plaint, plainly should have known that it implicated the CBA
and, in turn, the grievance process. The evidence does not
indicate that Porter, or anyone else involved in the complaint,
intentionally violated the CBA by the manner in which it chose
to process Cox’s discrimination complaint. It is more likely
that bypassing the grievance process was an oversight by all
involved. Nonetheless, Respondent did not present any evi-
dence to refute the contractual language that brings Cox’s com-
plaint within the ambit of a grievance. Based on the foregoing, I
find that Cox’s complaint was a grievance under the terms of
the CBA.
Whether Cox had a right to representation in the grievance
process, like the question of whether the complaint should have

29 Respondent did not present a deferral argument or analysis.
30 Neither party submitted a written discrimination complaint, which
leads me to infer Cox complained orally, at least initially.
been processed as a grievance, is also a matter of contract in-
terpretation. Respondent does not argue that the issue should
have been deferred to the grievance process. Even if it had, the
allegation that Tafoya was not permitted to represent Cox in his
discrimination complaint is closely related to many other issues
regarding Cox’s representational rights and Tafoya’s access,
both in this complaint and the complaint Judge Schmidt adjudi-
cated.31 The Board has consistently held that it will not defer
one issue if it is closely related to another issue that is not de-
ferrable. Everlock Fastening Systems, 308 NLRB 1018 1019
fn. 8 (1992); 15th Ave. Iron Works, 301 NLRB 878, 879
(1991).32 The language of the CBA authorizes representation
in the grievance process by a union steward. The legal frame-
work for establishing a past practice is discussed earlier in this
decision, and is hereby incorporated. It is abundantly clear, and
I find, that Tafoya and other union business agents had estab-
lished a past practice of representing unit members in the griev-
ance process. (Tr. 31–32, 506.) Accordingly, I find that Re-
spondent violated Section 8(a)(1) by conditioning the investiga-
tion of Cox’s discrimination complaint on his being unrepre-
sented.
Respondent raised some other points on the matter that merit
discussion. Lee asserted that his practice has been to “not have
a non-employee to represent or be involved in a meeting with
an employee that brings an allegation forward,” (Tr. 697),
Lee’s past practice at companies not party to the CBA between
PNM and the Local 611 lacks relevance. Respondent also con-
tended that PNM offered to bifurcate the proceeding to permit
Tafoya to serve as witness to the union animus complaint mis-
states the facts. Cox alleged that he was discriminated against
as a Black steward, and always wanted this to be processed as a
single allegation. The “offer” to bifurcate was in reality a re-
quirement to bifurcate in a manner that Cox believed misstated
his claim. (Tr. 123; GC Exh. 2.)33 Finally, in light of my ruling
that the Cox’s discrimination complaint is properly processed
as a grievance, which confers the right to representation aside
and apart from Weingarten, I need not address whether or not
Cox had a reasonable expectation of discipline for bringing his
complaint and/or meeting with Lee.34

31 Judge Schmidt found unlawful the restrictions placed on Tafoya’s
access to PNM’s facilities in the latter part of 2009.
32 In addition, as with requests for information, the denial of repre-
sentation complaint alleges interference with the grievance procedure to
which the employer urges deference.
33 Courts have recognized so-called “plus” claims, where race or
any basis protected by Title VII, coupled with another characteristic, is
the alleged basis discrimination. See Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971) (sex plus preschool age children); Hicks v. Gates
Rubber Co., 833 F.2d 1406 (10th Cir.1987) (sex plus race); Jefferies v.
Harris County Community Action Assn., 615 F.2d 1025 (5th Cir.1980)
(race plus gender). In a recent case, Craig v. Yale University School of
Medicine, 838 F.Supp.2d 4 (D. Conn. 2011), the court found the plain-
tiff stated a cognizable claim of discrimination based on “race plus
gender” but not based on gender alone.
34 I agree with Respondent that Cox had no right to insist that cer-
tain individuals conduct the investigation. As Cox would not go for-
ward without representation, however, this issue never became ripe,
and is not part of the instant complaint.
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E. Alleged Denial of Cox’s Representative of Choice
by Tom Mitchell
The complaint, at paragraph 5(f), alleges that Respondent vi-
olated the Section 8(a)(1) Act as follows:
On or about March 28, 2011, the Respondent, by Tom Mitch-
ell, herein called Mitchell, at the Respondent’s facility located
on Edith Boulevard in Albuquerque, New Mexico, herein
called Respondent’s Edith facility, denied the request of its
employee Cox to be represented by the Union during an in-
terview, by refusing to allow Cox to be represented by the
Union representative of his choice who was present and avail-
able.
1. Facts
In March 2011,35 Mitchell, Cox’s supervisor, told him he
was to report to human resources. At the time, Cox was in the
NSD crew room, which was a 3–5 minute walk to the human
resources office. On his way to the meeting, Cox called Tafoya
to represent him. (Tr. 233–235.) When Cox arrived, Monfilet-
to, Mitchell, and Bert Garcia, a union steward, were present.36
Monfiletto informed Cox that Joan Schueller, the business part-
ner for Shared Services, reported that he had been disruptive
and rude while representing an employee on a grievance a cou-
ple weeks prior. (Tr. 236, 256, 303, 606.) Cox responded that
he wanted Tafoya to represent him, and that Fred Martinez
would also be acceptable. Management initially responded that
Garcia was present and could represent Cox. (Tr. 235–237.)
According to Monfiletto, when Cox insisted on a different rep-
resentative, he was given a 5-minute break to get either Tafoya
or Martinez. (Tr. 589.) Tafoya was outside the gates of the
locked perimeter, and Cox went to talk to him. (Tr. 235–238.)
After 5 minutes, Cox had not returned to the meeting. (Tr.
590.) Mitchell came out and told him it was time to go back to
the meeting. Tafoya sought to attend as Cox’s representative,
but Mitchell told him he was not allowed to be on PNM proper-
ty and he could not represent Cox at the interview. (Tr. 71,
239, 339.) Cox returned to the meeting with Garcia under pro-
test. (Tr. 240.) The CBA does not address whether the em-
ployee has the right to choose his or her union representative.
PNM’s practice was to accommodate if it would not delay the
investigation. (Tr. 588, 808.)
The investigation concluded with Monfiletto determining
that Cox had not been disrespectful or rude, and had not violat-
ed any policy. (Tr. 592.)
2. Analysis and conclusion
“The selection of an employee’s representative belongs to
the employee and the union, in the absence of extenuating cir-
cumstances. . . .” Barnard College, 340 NLRB 934, 935
(2003), (citing In re Anheuser-Busch, Inc., 337 NLRB 3 (2001),
enfd. 338 F.3d 267 (4th Cir. 2003), cert. denied 541 U.S. 973
(2004), and Pacific Gas & Electric Co., 253 NLRB 1143
(1981). In Consolidation Coal Co., 307 NLRB 976 (1992), the
Board found an employer violated an employee’s Weingarten

35 Cox testified it was “maybe May” but the complaint alleges it was
March, and Respondent notes the date as March 28. (R. Br. 18.)
36 Mitchell brought Garcia to the meeting. (Tr. 586.)
rights when it denied the employee his specifically requested
union representative when that representative was available
and ready to proceed. See also GHR Energy Corp., 294 NLRB
1011, 1042 (1989). In Anheuser-Busch, the Board agreed with
the trial judge’s finding that the employer violated the Act by
refusing an employee’s request for an alternate representative
because that person was on his lunchbreak. The evidence
showed that the desired representative was due to return to
work in 15 minutes and “there was nothing about the allega-
tions . . . that demanded instant attention.” Anheuser-Busch,
337 NLRB at 11.
There were no extenuating circumstances present here, as
Tafoya was available and ready to represent Cox. Respondent
asserts that Monfiletto did not know Tafoya was available. This
doesn’t matter, as Mitchell knew Tafoya was present at the
facility and ready to proceed. Respondent notes that Cox was
represented and no discipline was imposed. This misses the
point, however. Clearly, Respondent saw the interview as in-
voking Cox’s Weingarten rights, as management had secured
the presence of Union Steward Bert Garcia. The fact that Gar-
cia was present and qualified does not eradicate the decision to
deny Cox his available representative of choice. Accordingly, I
find Respondent violated Section 8(a)(1) of the Act by denying
Cox the available union representative of his choice.
F. Alleged Conduct Related to Supervisor
Dale Smyth
In complaint paragraph 5, the Acting General Counsel alleg-
es that Respondent violated Section 8(a)(1) of the Act with
regard to the following actions by Supervisor Dale Smyth:
(k) On or about June 2, 2011, the Respondent, by Dale Smyth,
herein called Smyth, at the Respondent’s Edith facility:
(1) Interrogated employees regarding their Union ac-
tivities by questioning them about discussions employees
had with Union representatives;
(2) Threatened employees by informing them they
were being taken into a management office to be ques-
tioned about their Union activities;
(3) Threatened employees by telling them it would be
futile for them to go to the Board because the Respondent
was not going to abide by the National Labor Relations
Act;
(4) Misrepresented to employees that they had rights
pursuant to Weingarten only when the Respondent was
going to issue actual discipline to them; and
(5) Threatened employees with unspecified reprisals
by telling them there would be consequences if they did
not reveal the details of their Union activities to the Re-
spondent.
(l) On or about June 2, 2011, the Respondent, by Smyth, at
the Respondent’s Edith facility, denied the request of its em-
ployee Cox to be represented by the Union during an inter-
view.
The complaint, at paragraph 6, further alleges that Respond-
ent violated Section 8(a)(1) and (3) when on or about June 2,
2011, Respondent imposed more onerous working conditions
PUBLIC SERVICE CO. OF NEW MEXICO 593
on Cox by requiring him to go to a management office to be
questioned about his union activities.
1. Facts
On June 2, 2011, Cox was in the NSD crew room speaking
to a few maintenance employees, including Joe Montano, about
some potential overtime bypass grievances.37 He had received
permission from his supervisor, Ralph Pesce, the previous day.
(Tr. 247–249, 1129, 1135.) Pesce, who was at this point in
time the maintenance supervisor, was absent on June 2. Line
Department Supervisor Dale Smyth was acting for Pesce but
Cox was not aware of this. (Tr. 317, 809.) Smyth was similar-
ly unaware that Pesce had granted Cox time to work on griev-
ances. Pesce had not left him a note, and nobody else had in-
formed him about it.38 (Tr. 820.)
For the couple weeks prior, Cox had been away on union
business. Smyth came in and asked if Cox was “here today”
and Cox responded that he was but he was investigating some
grievances. (Tr. 248–249, 261.) Unaware that Cox had been
granted union time on June 2, Smyth had assigned him to a
crew because he had seen him earlier that morning.39 (Tr. 812.)
Smyth asked what the grievances were and which employees
they concerned. (Tr. 79–80, 247–249, 811, 1130.) Cox would
not give specifics, but Smyth continued to question him about
the grievances. According to Montano, Smyth’s tone of voice
became progressively more aggressive. (Tr. 1131.) Smyth
stated he needed to speak to Cox alone in a manner Cox per-
ceived as agitated. Cox called Tafoya because he was con-
cerned the meeting could lead to discipline. (Tr. 249–520.)
Cox and Montano went to Smyth’s office, and Cox informed
Smyth that Tafoya was out front and needed to be signed in.
Smyth responded that Cox did not need a union representative
because the meeting could not lead to positive discipline. (Tr.
251, 314, 811.) At the time Smyth was not contemplating the
pursuit of discipline. (Tr. 814-816.)
Cox went out to talk to Tafoya, who made calls to some
managers, including Smyth and Mitchell. Smyth called Tafoya
back. (Tr. 80, 253, 819.) Tafoya told Smyth he was on speaker
phone in his car and Cox was present. Smyth and Tafoya went
back and forth to no avail. According to Cox and Tafoya,
Smyth stated there would be “consequences” if Cox would not
answer his questions about the grievances. (Tr. 255.) Tafoya
told Smyth that was why he needed to be present as Cox’s un-
ion representative and told Smyth he was violating the National
Labor Relations Act by questioning Cox and was forcing him
to file charges. (Tr. 255.) Smyth told Tafoya he had filed un-
fair labor practice charges against him before and Tafoya could
do it again because it did not bother him. (Tr. 165.) After they
hung up, Mitchell came out and talked to Tafoya and Cox, and

37 Other employees present were Joe Connors, Isaac Padilla, and
Gilbert Padilla. (Tr. 312, 1129.)
38 Mitchell testified that employees have the responsibility to enter
information such as time permitted to work on grievances into PNM’s
electronic system, Telestaff. (Tr. 876.) There is no evidence that
Smyth accessed the Telestaff records on June 2, however, and Smyth’s
testimony did not address the Telestaff records.
39 A couple days later, Pesce told Smyth that Cox had let him know
he had union business that morning. (Tr. 845.)
told them that he wanted to find out what had happened and
work though the issues rather than escalate them. (Tr. 863.)
He informed Cox that he did not have to discuss the specific
grievances with Smyth. (Tr. 255, 835.)
2. Analysis and conclusions
a. Alleged interrogation about union activities
In assessing the lawfulness of an interrogation, the Board
applies the totality of circumstances test adopted in Rossmore
House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). This
test involves a case-by-case analysis of various factors, includ-
ing those set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964): (1) the background, i.e., whether the employer has a
history of hostility toward or discrimination against union ac-
tivity; (2) the nature of the information sought; (3) the identity
of the interrogator, i.e., his or her placement in the Respond-
ent’s hierarchy; (4) the place and method of the interrogation;
and (5) the truthfulness of the interrogated employee’s reply.
See, e.g., Sproule Construction Co., 350 NLRB 774, 774 fn. 2
(2007); Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1
(2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005). The
Board also considers whether the interrogated employees are
open and active union supporters. See, e.g., Gardner Engineer-
ing,Inc., 313 NLRB 755, 755 (1994), enfd. as modified on oth-
er grounds 115 F.3d 636 (9th Cir. 1997). These factors “are not
to be mechanically applied”; they represent “some areas of
inquiry” for consideration in evaluating an interrogation’s le-
gality. Rossmore House, 269 NLRB at 1178 fn. 20. Though
most of the case law regarding interrogation arises in the con-
text of organizing campaigns, the Board has found that interro-
gations intended to interfere with an employee’s right to file
and process a grievance may violate Section 8(a)(1). See, e.g.,
Pabst Brewing Co., 254 NLRB 494, 495 (1981).
Cox was an active and open union supporter, a factor that
weighs in Respondent’s favor. Most of the other factors, how-
ever, weigh in Cox’s favor or are neutral. The history of hostil-
ity, at least as of late, is glaring, resulting in poor behavior all
around. In light of the recent violations that PNM has accrued,
both in this decision and in prior decisions, I find this weighs
slightly in Cox’s favor. The nature of the information sought
was the substance of potential employee grievances. It is self-
evident that employees may not want a supervisor to know that
they are contemplating a grievance. This factor therefore
weighs in Cox’s favor. The identity of the interrogator was a
supervisor, who, at the time of the interrogation, Cox believed
was outside his chain-of-command. Given Smyth and Cox’s
history, this factor would be neutral but for Smyth’s superviso-
ry status giving him elevated standing in PNM’s hierarchy.
The soured relationship between Smyth and Cox, evident from
Judge Schmidt’s decision, has plainly spawned mistrust and
miscommunication. Cox did not come out and say that Pesce
had granted him union time. Smyth did not come out and say
that he was acting for Pesce and that he had assigned Cox to a
crew. Things likely would have proceeded more smoothly if
the lines of communication approached normalcy. While both
parties bear some responsibility for escalating what really was a
simple misunderstanding, Smyth’s supervisory status tips the
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
“identity of the interrogator” factor in Cox’s favor. The place
and method of the interrogation weigh in Cox’s favor. As
Montano observed, Cox became noticeably agitated in the NSD
crew room, where other employees were present, and then or-
dered Smyth to come to his office to meet with him one-on-
one. Finally, the fifth Bourne factor speaks best to interroga-
tions during organizing campaigns. As a corollary, however, I
find Cox’s decision not to respond to Smyth’s questions, which
Mitchell ultimately supported, weighs in Cox’s favor. I am
also mindful of Board case law holding that it is a violation of
Section 8(a)(1) for employers to tell employees to disclose
union activity of other employees. Bloomington-Normal Seat-
ing Co., 339 NLRB 191, 193 (2003); Tawas Industries, 336
NLRB 318, 322 (2001).
Respondent argues that Cox is not susceptible to being intim-
idated by Smyth based on Cox’s conduct at a meeting that was
the subject of an allegation in the case tried before Judge
Schmidt. This does not mean Smyth did not interrogate Cox
about the grievances he was working on with the employees.
Moreover, Mitchell, who saw Cox right after Smyth had ques-
tioned him, described Cox as “very shaken up.” (Tr. 863.)
As noted, both parties bear some responsibility for the multi-
ple miscommunications that occurred on June 2. However,
considering the factors above, I find that Smyth’s questioning
Cox about the substance of potential grievances he was investi-
gating on behalf of employees he represents was an unlawful
interrogation in violation of Section 8(a)(1) of the Act.
b. Alleged threats, misrepresentation about Weingarten
rights, and denial of Representation
(i) Smyth telling Cox to come to his office
For many of the same reasons set forth directly above, I find
Smyth threatened Cox and the other employees by telling Cox
to come to his office to discuss the union grievances he was
working on in the NSD crew room. There is some dispute in
the testimony as to the chain of events. According to Smyth, he
peeked his head in the door of the NSD room and Cox told him
that he needed a little more time for union business. Smyth
replied, “[O]kay, as soon as you’re done come see me in my
office.” (Tr. 810–811.) According to Montano, Smyth made
multiple inquiries in the NSD crew room asking specifically
what union business and what grievances Cox was investigat-
ing. When Cox did not respond, Smyth stated, in an aggressive
tone, that he needed to speak with Cox alone. (Tr. 1130–1132.)
Cox’s recollection is consistent with Montano’s. (Tr. 247–
249.) I credit Montano’s testimony because it was specific and
his demeanor was open and straightforward. In addition, based
on the history between Smyth and Cox, Montano is the most
objective person to have observed the encounter. Moreover,
the Board has recognized that the testimony of a current em-
ployee which contradicts statements of supervisors is likely to
be particularly reliable because these witnesses are testifying
adversely to their pecuniary interests. Gold Standard Enter-
prises, 234 NLRB 618, 619 (1978); Federal Stainless Sink Div.
of Unarco, 197 NLRB 489, 491 (1972); Gateway Transporta-
tion Co., 193 NLRB 47, 48 (1971); Georgia Rug Mill, 131
NLRB 1304, 1305 fn. 2 (1961). That Smyth acted aggressively
is further corroborated by Mitchell’s testimony that Cox ap-
peared very shaken up after the encounter with Smyth. Finally,
Montano’s testimony is more plausible than Smyth’s because
what occurred in the NSD crew room led Cox to believe he
needed representation to meet with Smyth, as evidenced by the
fact that he called Tafoya. Accordingly, I find that Smyth’s
statement was a threat to employees, conveying the message
that management will demand to know the substance of meet-
ings with union officials, including stewards. As such, I find it
violated Section 8(a)(1) of the Act.
(ii) Alleged comment regarding futility of
Board charges
Taken in context, I do not find that Smyth threatened Cox or
Tafoya by stating that filing charges with the National Labor
Relations Board would be futile. Smyth denied making such a
statement, and this denial is uncontroverted. (Tr. 816.) Tafoya
testified that Smyth’s comment was that he (Tafoya) had filed
charges before, and he could file them again, and it would not
bother Smyth. This was in response to Tafoya saying he was
going to file charges against Smyth on the heels of an unpro-
ductive back and forth argument between them.
This case can be distinguished from cases where the Board
has found comments about the futility of going to the Board
violated the Act. In 7 UP Bottling Co., 261 NLRB 894 (1982),
a violation was found where a manager informed an employee
that it had cost the respondent $1000 to visit the Board’s offices
to discuss a charge and told the employee to “make all the alle-
gations you want, nothing is going to change.” Likewise, the
Board found a violation in Mesker Door, Inc., 357 NLRB 591
(2011), where the plant manager told employees that the Union
charges had cost more than $200,000 in legal fees, observing
that the comment sent the message that filing charges was a
futile act that cost employees bonuses. See also Great Western
Produce, 299 NLRB 1004 (1990).
The situation here involved Smyth, a first-level supervisor,
who told the Union’s seasoned business agent to go ahead and
file charges against him because it would not bother him.
There was no reference to the cost of filing grievances, and no
statement that PNM’s policies would not change as a result of
Board charges. The comment was made over the telephone,
with only Tafoya and Cox on the line, after Tafoya and Smyth
had been arguing back and forth to no avail. I do not find it
rises to the level of a threat, when taken in context, that Tafoya
filing charges with the Board would be futile. Accordingly, I
recommend dismissal of paragraph 5(k)(3) of the complaint.
(iii) Alleged threat of unspecified reprisals
According to Tafoya and Cox, Smyth stated there would be
consequences if Cox refused to tell Smyth what specific griev-
ances he was working on and what employees they concerned.
(Tr. 255.) Smyth did not recall saying anything of this nature.
(Tr. 843.) I credit Cox on this point, because his recollection is
more specific, and Smyth’s testimony was merely that he did
not recall such a comment. Because the interrogation regarding
the potential grievances Cox was working on was unlawful, it
follows and I find that the threat of discipline for failing to
respond to the questions comprising the interrogation likewise
PUBLIC SERVICE CO. OF NEW MEXICO 595
interferes with Section 7 rights and therefore violates Section
8(a)(1).
(iv) Alleged misrepresentation of Weingarten rights
and denial of union representation at
investigative interview
The issues of misrepresentation of Cox’s Weingarten rights
and denial of Cox’s right to union representation at an investi-
gative interview on June 2 are inextricably intertwined, and
therefore I will address them together.
In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Supreme
Court held that, under Section 7 of the Act, 29 U.S.C. § 157, an
employee who reasonably believes that an interview will result
in disciplinary action against him or her has the right, upon
request, to be accompanied at that interview by a union official.
The reasonableness of a belief that discipline may result must
be measured based on “objective standards under all the cir-
cumstances of the case.” Id. at 257. The Court found the ac-
tion of an employee seeking the assistance of his or her union
representative during a confrontation with an employer clearly
falls within Section 7 of the Act. Id. at 260.
Given that the meeting Smyth wanted to have with Cox re-
lated to what I have found to be an unlawful interrogation, cou-
pled with Cox’s reluctance to answer Smyth’s questions about
the union business he was conducting, I find it was reasonable
for Cox to believe that discipline may ensue. I do not find,
however, that Smyth’s initial comment to Cox that he did not
need a representative was a misrepresentation of Cox’s
Weingarten rights in violation of the Act. Smyth made the
comment based on his belief, at the time, that no discipline
could result from the meeting. Moments later, Smyth agreed to
get Cox a steward. (Tr. 252.) No interview ever occurred, and
the only further communication involved Tafoya talking to
Smyth on a speakerphone with Cox present. Under these spe-
cific facts, I do not find that Cox’s Section 7 rights were inter-
fered with as alleged. To find otherwise would require viewing
Smyth’s comment with monocular vision and in isolation from
what transpired immediately following it. Accordingly, I rec-
ommend dismissal of the allegations set forth in complaint
paragraphs 5(k)(4) and (1)–(n).
c. Alleged imposition of more onerous
working conditions
The complaint, at paragraph 6, alleges that Respondent vio-
lated Section 8(a)(1) and (3) when on or about June 2, 2011,
Respondent imposed more onerous working conditions on Cox
by requiring him to go to a management office to be questioned
about his union activities.
I find this one-time request to go to Smyth’s office too insig-
nificant to establish the imposition of an onerous working con-
dition. See W.D. Manor Mechanical Contractors, Inc., 357
NLRB 1526, 1527 (2011); Aladdin Gaming, LLC, 345 NLRB
585, 622 (2005). I therefore recommend dismissal of this alle-
gation.
G. Alleged Interrogation by Gary Cash
The complaint, at paragraph 5(j), alleges Respondent violat-
ed Section 8(a)(1) of the Act when:
On or about May 10, 2011, the Respondent, by Gary Cash, at
the Respondent’s Edith facility, interrogated employees re-
garding their Union activities by questioning them about dis-
cussions employees had with Union representatives.
1. Facts
In April 2011, Cox and Tafoya met at a table outside the
PNM perimeter to discuss some grievances. Gary Stone, vice
president of operations, had stopped briefly to talk. (Tr. 74,
242.) After Cox returned to the NSD crew room, Gary Cash
and Supervisor Don Wilkerson entered. According to Cox,
Cash stated he had gotten a call from Tom Ruth, the line de-
partment director, stating that Stone had wanted to know what
Tafoya and Cox were discussing. (Tr. 242–243, 309.) Cox
responded that they were discussing union business. Cash
asked for specifics, but Cox declined to provide them. When
pressed, Cox stated that he needed to get Tafoya to represent
him. (Tr. 244.) Cash set up a meeting for 1 p.m. that same day.
Tafoya represented Cox at the meeting, with Cash and James
Aragon, who was Cox’s acting supervisor that day, present.
Cash asked Cox what he and Tafoya were discussing, and Cox
replied, “Union business.” Cash asked more specifically what
union business they were discussing, and ultimately Tafoya told
Cash he thought he was conducting an unlawful interrogation.
(Tr. 74–77, 246, 310.) According to Tafoya, Cash replied that
he really didn’t care what Cox and Tafoya were discussing, but
the vice president had asked him to “report back up the line.”
(Tr. 78.)
2. Analysis and conclusion
The legal framework governing interrogations set forth
above is hereby incorporated. Taking into account the totality
of the circumstances, I find that Cash asking Cox what union
business he had been discussing with Tafoya was an unlawful
interrogation. Supervisors Cash and Wilkerson were both pre-
sent when Cox was initially questioned in the NSD crew room.
Cash told Cox that Ruth, the line department director, had
called him and told him that Vice President Stone wanted to
know what Cox and Tafoya were discussing. The later meeting
also took place with two supervisors, Cash and Aragon, pre-
sent. Cash informed Tafoya and Cox that the inquiry was on
behalf of a PNM vice president. Tafoya and Cash are both
clearly open and active in their union support, a factor which
weighs in Respondent’s favor. Moreover, unlike the Smyth
interrogations, Cash did not ask the questions at issue in the
presence of other employees. (Tr. 242.) Given that the ques-
tions originated from a very high place in PNM’s organization-
al hierarchy and sought to elicit information regarding employ-
ee grievances, however, I find they were unlawful.40 Despite
the fact that Cash stated he really did not care what Cox and
Tafoya were discussing, the comments undeniably sent a mes-
sage to Cox that his activities as a union steward were being
monitored. This would plainly tend to coerce Cox in the exer-
cise of his and other employees’ Section 7 rights, and I there-

40 While the individuals who ordered and/or did the questioning
may not have known with certainty that Tafoya and Cox were discuss-
ing employee grievances, this is obviously a foreseeable topic of dis-
cussion between a steward and business agent.
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fore find Cash conducted an unlawful interrogation in violation
of Section 8(a)(1).
H. Marie Plant Interview
The complaint, at paragraphs 5(a) and (b), alleges that Re-
spondent violated Section 8(a)(1) as follows:
(a) On or about October 7, 2010, the Respondent, by JoAnn
Garcia, herein called Garcia, at the Respondent’s facility lo-
cated in Belen, New Mexico, herein called the Respondent’s
Belen facility, and threatened employees with unspecified re-
prisals because they engaged in union and other concerted ac-
tivities.
(b) On or about October 7, 2010, the Respondent, by Garcia
and Chris Jaramillo, herein called Jaramillo, at the Respond-
ent’s Belen facility, denied the request of its employee Marie
Plant, herein called Plant, to be represented by the Union dur-
ing an interview.
1. Facts
Marie Plant works in PNM’s Belen office as a collector. She
reports to Chris Jamarillo, who works in Albuquerque. Jamaril-
lo visits the Belen office a couple times a month. (Tr. 715–
717.) Plant became a union steward in 2008. In that capacity,
she represented Joe Wisneski during an investigation regarding
his misuse of the company credit card to buy gas for personal
use, an infraction for which he was ultimately terminated on
September 14, 2010. (Tr. 683–686.) Joann Garcia, the human
resources consultant for marketing and customer service, con-
ducted the factfinding investigation, and Jamarillo was also
present. At some point, Plant asked for a rest room break. After
time had passed, Jamarillo and Garcia found Plant and
Wisneski meeting in a room, and Plant responded they were not
ready to return to the interview. (Tr. 686, 709.) In connection
with the investigation, employee Mike Montoya, a nonunion
coordinator, had sent an email stating Wisneski had told him
that Plant had instructed Wisneski not to answer questions, and
not to admit he was stealing gas.41 (Tr. 687, 691, 724.) Castro
told Garcia to convey the information in Montoya’s email to
Plant next time she saw her. (Tr. 699–670.) Prior to the meet-
ing, Garcia had consulted with labor relations, and they deter-
mined Plant would not be investigated or disciplined in connec-
tion with the email. (Tr. 701.)
On October 7, 2010, Jamarillo and Garcia were at the Belen
office to do an investigation of another employee. (Tr. 718,
689.) Jamarillo asked Plant if she had a few minutes, and they
went to the community office adjacent to Plant’s office.42 Gar-
cia also participated in the meeting. (Tr. 178, 687, 719.) Ac-
cording to Plant, early in the meeting she twice asked if she
needed a steward, and was told she did not because the meeting
was only informational. (Tr. 179, 188.) Garcia did not recall
Plant asking if she needed a union representative. (Tr. 692,
694.) Plant testified that Garcia was holding a piece of paper in

41 Montoya’s first name is Jason but he goes by Mike, his middle
name. (Tr. 210.)
42 Plant testified the meeting was October 8, which was clearly a
mistake in light of other testimony and Garcia’s October 7 written
summary of the meeting. (R. Br.)
her hand and reading from it. (Tr. 179.) Jamarillo and Garcia
testified that Garcia was not holding anything when she spoke
with Plant. (Tr. 692, 720.) Garcia and Jamarillo informed
Plant about Montoya’s email. (Tr. 180, 691.) According to
Plant, they also told her that the email stated that she (Plant)
had at one time thought of using the company card for fuel
purchases.43 (Tr. 180.) Garcia did not recall telling this to
Plant. (Tr. 701.) Plant asked for a copy of the letter. Accord-
ing to Plant, Garcia told her to go through the appropriate
channels to make the request. (Tr. 182.) Garcia recalled that
she simply told Plant she did not have the letter with her and
“that was it.” (Tr. 692.)
Plant recalled that Garcia said she was keeping the letter “on
file.” (Tr. 182.) Garcia denied making this statement. (Tr.
711.) In fact, Garcia has the email “in an investigation file on
all investigations I have.” When asked the name of the file,
Garcia responded, “Well, it is everything that has to do with
Marie Plant.” (Tr. 711.) Plant wanted a copy of the letter be-
cause she was concerned that by keeping it on file, PNM could
use it for future positive discipline. (Tr. 186.) Plant viewed the
meeting as informational until she was told the letter was being
kept on file, at which point she regretted not having a steward
present and feared her job was in jeopardy. (Tr. 188.)
On October 11, Plant wrote to request a copy of the letter or
a response that the request was being denied by October 15.
On October 18, Tafoya sent Garcia a letter stating that she had
not responded to Plant’s request for information, and giving a
revised deadline of the following Wednesday. He advised that
if she did not respond, he would consider it as a refusal to pro-
vide information. Garcia responded that she had sent Plant’s
correspondence to “Labor.” Assuming “Labor” meant Cindy
Castro, Tafoya contacted her and renewed his request. On
October 19, Castro responded, telling Tafoya that she was not
going to provide the letter based on her assessment that it was
privileged attorney work product.44 (Tr. 537.) She told Tafoya
he could get the same information by speaking to Wisneski.
There were a couple of followup meetings but the parties main-
tained their respective positions. (Jt. Exh. 3; Tr. 537.)
2. Analysis and conclusions
a. Alleged threat
I agree with Respondent that the Acting General Counsel did
not present evidence regarding any threat of unspecified repris-
als Garcia made to Plant or any employees because they en-
gaged in union or other concerted activities. The Acting Gen-
eral Counsel likewise does not make an argument to support
this allegation in its brief. Accordingly, I recommend dismissal
of complaint paragraph 5(a).

43 Plant elaborated on this comment occurring in the context of be-
ing approached by a homeless person for money and having him point
out that she had a card. She shared this with Jamarillo at the time of the
incident, and with Jamarillo and Garcia at the meeting. (Tr. 187, 212–
213.)
44 Castro testified she received legal advice on whether to produce
the letter, but she did not know whether Montoya received legal advice
to draft the letter. (Tr. 557–558.)
PUBLIC SERVICE CO. OF NEW MEXICO 597
b. Denial of union representation
An employee’s right to representation under Weingarten is
discussed above and incorporated into this section.
A threshold issue is whether Plant requested union represen-
tation, as the right to such representation is triggered only upon
request. NLRB v. J. Weingarten, 420 U.S. 251, 257 (1975). In
Southwestern Bell Telephone Co., 227 NLRB 1223, 1227
(1977), the Board held that an employee asking the question of
whether he should obtain union representation was sufficient to
trigger a request for representation. See also Illinois Bell Tele-
phone Co., 251 NLRB 932, 938 (1980) (employee asking a
supervisor if someone from the union should be present during
the interview sufficient to trigger Weingarten).
There is conflicting testimony regarding whether Plant re-
quested union representation. Plant testified that she twice
asked whether she needed a steward. Garcia testified that Plant
never inquired about the need for a steward. I discredit Gar-
cia’s statement that Plant never asked if she needed a steward.
At the hearing, I asked Garcia, “Did you, or anybody that you
heard, at the outset of the meeting, inform her that you had
already talked to HR and there had been a predetermination that
no discipline and no investigation was going to ensue?” Garcia
responded, “The only thing we told her was that nothing was
going to happen, and there would not be a need to get one.”
(Tr. 712.) I can only infer that “one” is a steward, and that
Garcia therefore told Plant she did not need a steward. Counsel
for PNM asked Jamarillo whether Plant requested a steward, to
which he replied she did not. (Tr. 721.) Later testimony casts
doubt on this. I asked, “When, during this meeting, you advised
her there wouldn’t be discipline, was that in response to her
inquiry as to whether she would need a steward?” His response
was, “I can’t recall specifically, no. I am not sure.” (Tr. 722.)
I therefore credit Plant’s testimony that she inquired as to
whether she needed a steward, as it was unequivocal and
straightforward.
I find, however, that Plant was not entitled to a union repre-
sentative, because the meeting was “held solely for the purpose
of informing the employee of, and acting upon, a previously
made disciplinary decision.” Baton Rouge Water Works Co.,
246 NLRB 995, 997 (1979). The Acting General Counsel has
not established that the meeting consisted of anything more
than Garcia and Jamarillo informing her of the statements Mon-
toya had made, and of human resources’ decision that Plant
would not be disciplined in connection with the matter. The
Board in Baton Rouge spelled out when an informational meet-
ing might turn into something that would trigger Weingarten
rights:
Indeed, if the employer engages in any conduct beyond mere-
ly informing the employee of a previously made disciplinary
decision, the full panoply of protections accorded the employ-
ee under Weingarten may be applicable. Thus, for example,
were the employer to inform the employee of a disciplinary
action and then seek facts or evidence in support of that ac-
tion, or to attempt to have the employee admit his alleged
wrongdoing or to sign a statement to that effect, or to sign
statements relating to such matters as workmen’s compensa-
tion, such conduct would remove the meeting from the nar-
row holding of the instant case, and the employee’s right to
union representation would attach. In contrast, the fact that
the employer and employee thereafter engaged in a conversa-
tion at the employee’s behest or instigation concerning the
reasons for the previously determined discipline will not,
alone, convert the meeting to an interview at which the
Weingarten protections apply.
Id. Respondent engaged in no further conduct at the meeting
sufficient to convert it into a Weingarten interview.
The Acting General Counsel asserts that Respondent held the
meeting with Plant in hopes that she would reveal facts and/or
evidence to assist Respondent in determining whether to issue
her discipline. This is speculation, however, and not supported
by evidence. The Acting General Counsel cites to Exxon Co.,
223 NLRB 203 (1976), to support a contention that the Board
has found Weingarten applicable to investigations regarding
alleged dishonesty. Plant, however, was not investigated. The
Acting General Counsel adduced no evidence that Garcia or
Jamarillo asked her questions or otherwise sought to gather
information from her. Accordingly, I recommend dismissal of
complaint paragraphs 5(b)–(d).
I. Requests for Information
The Acting General Counsel Alleges that Respondent violat-
ed Section 8(a)(1) and (5) of the Act by failing to respond to
various requests for information from the Union. The requests
are each analyzed separately below.
Pursuant to Section 8(a)(5), each party to a bargaining rela-
tionship is required to bargain in good faith. And part of that
obligation is that both sides are required to furnish relevant
information upon request. NLRB v. Acme Industrial Co., 385
U.S. 432 (1967). In relation to information sought during the
term of an existing contract, a union’s responsibilities include:
(a) monitoring compliance and effectively policing the collec-
tive-bargaining agreement, (b) enforcing provisions of a collec-
tive-bargaining agreement, and (c) processing grievances.
American Signature, Inc., 334 NRB 880, 885 (2001). If the
information sought relates to the processing of a grievance (or
potential grievance), the legal test is whether the information is
relevant to the grievance and the determination of relevancy is
made based on a liberal, discovery type of standard. Acme, 385
U.S. at 437; Knappton Maritime Corp., 292 NLRB 236 (1988).
Like a flat refusal to bargain, “[t]he refusal of an employer to
provide a bargaining agent with information relevant to the
Union’s task of representing its constituency is a per se viola-
tion of the Act” without regard to the employer’s subjective
good or bad faith. Brooklyn Union Gas Co., 220 NLRB 189,
191 (1975); Procter & Gamble Mfg. Co., 237 NLRB 747, 751
(1978), enfd. 603 F.2d 1310 (8th Cir. 1979).
In determining possible relevance, the Board does not pass
upon the merits, and the labor organization is not required to
demonstrate that the information is accurate, not hearsay, or
even, ultimately reliable. Postal Service, 337 NLRB 820, 822
(2002). “The [labor organization] is entitled to the information
in order to determine whether it should exercise its representa-
tive function in the pending matter, that is, whether the infor-
mation will warrant further processing of the grievance or bar-
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gaining about the disputed matter.” Ohio Power Co., 216
NLRB 987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976).
Information concerning employees in the bargaining unit and
their terms and conditions of employment, is deemed “so in-
trinsic to the core of the employer-employee relationship” so as
to be presumptively relevant. Disneyland Park, 350 NLRB
1256, 1257 (2007); Sands Hotel & Casino, 324 NLRB 1101,
1109 (1997). Presumptively relevant information must be fur-
nished on request to employees’ collective-bargaining repre-
sentatives unless the employer establishes legitimate affirma-
tive defenses to the production of the information. Metta Elec-
tric, 349 NLRB 1088 (2007); Postal Service, 332 NLRB 635
(2000). However, when the requested information does not
concern subjects directly pertaining to the bargaining unit, such
material is not presumptively relevant, and the burden is upon
the labor organization to demonstrate the relevance of the mate-
rial sought. Disneyland Park, 350 NLRB at 1257; Richmond
Health Care, 332 NLRB 1304, 1305 fn. 1 (2000).
1. Email regarding Marie Plant
The complaint, at paragraph 8(a), alleges that the Union vio-
lated Section 8(a)(5) by failing to provide the following infor-
mation:
Since on or about October 7, 11, 18 and 25, 2010, the Union,
by oral and written requests, has requested that the Respond-
ent furnish the Union with the letter referred to by Garcia and
Jaramillo in an October 7, 2010 meeting with employee Plant,
who was told such letter would be maintained on file.
The facts related to the email are discussed fully in context
above.
I find that the Acting General Counsel has not established
that the email is necessary or relevant for the Union to carry out
its statutory duties. As Respondent correctly points out, Plant
received no discipline. Castro provided unrebutted testimony
that at the time of the request, there was no pending grievance
related to Plant, and there was also no pending discipline or
factfinding related to potential discipline related to Plant. (Tr.
537–538.) No grievance was filed, and presently there is no
potential grievance, as Plant was not aggrieved. I agree with
Respondent’s position that the email may become relevant if, in
the future, Plant is subject to investigation or discipline in con-
nection with the email. The mere potential for such, however,
is not enough to render the email relevant to the Union’s repre-
sentational function.
Respondent asserted an attorney work-product privilege in
response to the request. It did not argue this defense in its brief,
and because of my finding that the Acting General Counsel
failed to establish relevance, there is no current need to address
it.
Based on the foregoing, I recommend dismissal of the alle-
gation set forth in paragraph 8(a).
2. Medical appointments and paid time off
Paragraph 8(b) of the complaint alleges that the Union vio-
lated Section 8(a)(5) when it failed to provide information re-
garding nonunit employees who were disciplined under Re-
spondent’s paid time off (PTO) policy. The specific requests
appear below.
a. Facts
On December 6, 2010, Plant told Jamarillo she had a medical
appointment on December 8. Jamarillo asked her to bring in a
doctor’s note due to her having a low paid time off (PTO) bal-
ance. (Tr. 183.) The Union filed a grievance and requested the
following information:
• The total number of medical appointments scheduled
and approved by supervision for any and all medical ap-
pointments for employees bargaining unit or non bar-
gaining unit who are subject to the Company’s PTO pol-
icy.
• The total number of medical appointment scheduled and
approved by supervision for any and all medical ap-
pointments for employees bargaining unit or non bar-
gaining unit who are subject to the Company’s PTO pol-
icy and were required to provide a Doctor’s note to veri-
fy a medical appointment.
• The names, classifications and work locations of any and
all PNM employees who are subject to the Company’s
PTO policy, bargaining unit or non bargaining unit who
have scheduled a medical appointment with their super-
visor.
• The names, classifications and work locations of any and
all PNM employees who are subject to the Company’s
PTO policy, bargaining unit or non bargaining unit who
have been required to provide a Doctor’s note to verify a
medical appointment.
(Tr. 88; Jt. Exh. 5.) Respondent provided the information of
unit employees but omitted any information pertaining to non-
unit employees. Tafoya requested the information pertaining to
nonunit employees based on his belief that they are subject to
the same rules and policies as unit employees. (Tr. 89.)
b. Analysis and conclusion
In the above circumstances, to the extent that the Union
sought information about nonunit employees, it was incumbent
for the Union to have established the relevancy of such materi-
al. In this regard, “to demonstrate relevance, the General
Counsel must present evidence either (1) that the union demon-
strated relevance of the nonunit information, or (2) that the
relevance of the information should have been apparent to the
Respondent under the circumstances.” Disneyland, 350 NLRB
at 1258.
As in the requests at issue before Judge Litvack, Tafoya ex-
plained that PNM’s internal paid time off (PTO) policy applied
to unit employees and nonunit employees alike.45 Respondent
offered no evidence to dispute the applicability of the PTO
policy to all employees. Instead, it points to some of the differ-
ences between unit and nonunit employees, such as the re-

45 Respondent cites to Tafoya’s knowledge of its “standing objec-
tion” to providing information on nonunit employees, based in part on
Judge Litvack’s decision. That decision, however, found that PNM
delayed in providing requested information on nonunit employees. The
Board affirmed this decision in May 2011. 356 NLRB 316 (2011).
The blanket standing objection is apparently misplaced.
PUBLIC SERVICE CO. OF NEW MEXICO 599
quirement to join the Union, the at-will status of nonunit em-
ployees versus the good cause requirement to terminate a union
employee, differences in disciplinary policies and the ability to
change terms and conditions of employment. These differ-
ences, however, do not change the unrefuted evidence that the
PTO policy applies to all employees, regardless of union status.
The Board affirmed Judge Litvack’s decision finding that the
Union established the relevancy of requests for information
regarding discipline of nonunit employees involving other rules
and policies at PNM that applies to all employees. Public Ser-
vice Co. of New Mexico, 356 NLRB 1275 (2011). See also
Postal Service, 332 NLRB 635 (2000) (information regarding
supervisor relevant where it concerned policy that applied to all
employees). The instant request is no different.
Respondent asserts in its brief that it need not provide infor-
mation to support a disparate treatment theory based on differ-
ences between union and nonunion employees, as it did in the
case before Judge Litvack. (R. Br. 44.) This mischaracterizes
the grievance, which pertained to disparate treatment regardless
of union status. In any event, this argument is without merit.
Postal Service, supra (information request regarding supervi-
sor’s attendance relevant to union’s claim of disparate treat-
ment of supervisors and bargaining unit members). Respondent
also argues that it is not impeding the Union’s ability to pursue
the grievance process by withholding information regarding
nonunion employees. This misses the point, as the Union’s
request concerns getting at the evidence required to prove a
grievance, not the right to pursue one.
Respondent further asserts that the request would intrude on
the privacy concerns of nonunit employees. This, however,
was not used as a justification for denying Tafoya’s request and
no evidence was presented to support this defense.46 Respond-
ent further argues that, under the CBA’s terms, information
regarding nonunit employees is always irrelevant. This conten-
tion is unsupported. Respondent points out that a grievance
under the CBA is limited to a dispute between the Union and
the Company about applications of the CBA or a specific poli-
cy to a specific employee. The CBA does not set parameters
regarding the evidence that might be used to prove a grievance.
Indeed, it is inconceivable that it could set such parameters,
given the various possible unique factual scenarios in the uni-
verse of potential grievances.
After reviewing the record as a whole, the Union demon-
strated, through Tafoya’s letter, the relevance of its requests
insofar as they concerned information regarding nonunit em-
ployees. Public Service Co. of New Mexico, 356 NLRB 1275;
Postal Service, 310 NLRB 391, 392 (1993); Postal Service, 301
NLRB 709, 711–712 (1991). As such, I find that PNM’s fail-
ure to provide this information violates Section 8(a)(5) of the
Act.
3. Rex Foss’ discipline
Paragraph 8(c) alleges that Respondent violated Section
8(a)(5) of the Act when it did not provide information in con-
nection with the following request:

46 The request does not seek any medical documentation or any spe-
cific medical information.
Since on or about December 8, 2010, the Union, by written
request, has requested that the Respondent furnish it with the
following information:
The discipline issued to Rex Foss for violations of Company
policies including Do the Right Thing that occurred as a result
of Mr. Foss’s involvement in the Carlisle and Montgomery
leak incident.
a. Facts
PNM maintains a policy called “Do the Right Thing” that
addresses ethics and compliance standards. It applies to all
employees and officers, the board of directors, and company
affiliates. (Tr. 480; CP Exh. 2.) Tafoya requested information
regarding employees who had been disciplined for safety viola-
tions. At the time, there were pending grievances regarding the
discipline of employees Kenny Nunn and Art Montano. (Tr.
86, 98.) Castro responded by providing him information on
unit employees, but did not provide this information for nonunit
employees. (Tr. 538–539.) Tafoya testified that he made the
request in an effort to determine if the policy was being applied
consistently. (Tr. 149.)
b. Analysis and conclusion
For the same reasons I find the information related to medi-
cal appointments and PTO of nonunit employees relevant, I
find the information regarding Foss’ discipline is relevant. See
Public Service Co. of New Mexico 356 NLRB 1275 (2011); see
also Postal Service, 332 NLRB 635 (2000). With regard to
Respondent’s argument that the issue has been previously liti-
gated, the Board issued a November 10, 2011 Order denying
Respondent’s motion to dismiss on the basis of res judicata. As
the Board has ruled on the matter, any argument that the ruling
was erroneous is properly addressed to the Board. According-
ly, I find that Respondent violated Section 8(a)(1) of the Act by
failing to provide the information in complaint paragraph 8(c).
4. Crew changes
Paragraph 8(d) alleges that Respondent has refused to fur-
nish the Union with information, detailed below, pertaining to a
crew change.
a. Facts
At some point in 2010, Cox was removed from his duties
working on a “trouble truck” in Belen and assigned to a
maintenance crew. When Cox asked his supervisor, Gary
Cash, about it, Cash responded that the crew change affected all
employees. This was not consistent with Cox’s observations.
(Tr. 285.) On January 27, 2011, Tafoya sent the following
request for information to Castro:
• Who from management met with employees to dis-
cuss the reasons for the changes?
• Who were the employees management met with?
• When and where did these meetings take place?
• What were the reasons for changes that management
gave to the employees that they met with?
(Jt. Exh. 7.) Tafoya requested the information so that he could
process a grievance alleging that the crew changes were made
in retaliation for employees engaging in union activity. (Tr.
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
92.) Castro did not think there was a grievance on the issue
during her tenure with PNM. (Tr. 545.) Castro asked Smyth to
provide her with the crew change makeup, but not the reasons
for the changes, and he complied. (Tr. 842.) Castro then pro-
vided some information to Tafoya on February 2, including the
crew change schedule, and noted in nonspecific fashion that
any other information either did not exist or was not relevant.
(Tr. 546; Jt. Exh. 7.) Tafoya followed up on February 3, noting
what he perceived as holes or deficiencies. (Jt. Exh. 7.)
Smyth testified that one of the reasons Cox was transferred
to the maintenance crew was because, as a union steward, he
was taking time off to do union business. (Tr. 840–841.) An-
other reason was that the craft supervisor, Mark Martinez, had
requested that Cox move to his group. (Tr. 853–854.) In addi-
tion, PNM regularly rotates people through different jobs for
cross-training purposes. (Tr. 854, 867.)
b. Analysis and conclusion
Tafoya requested the information to process a grievance al-
leging that the crew changes were made to retaliate against
some of his members for their outspokenness. (Tr. 92.) Re-
spondent asserts that “apparently” no grievance was filed on the
issue. (R. Br. 50.) Tafoya stated he filed one, and Castro stat-
ed she did not think one was filed while she worked at PNM.
Tafoya’s specific recollection outweighs Castro’s equivocal
testimony, and I therefore find Tafoya filed a grievance. In
addition, Castro responded to the part of the request she
deemed relevant, which suggests she knew Tafoya was entitled
to at least some of the information he requested.
Respondent argues that it was within management’s discre-
tion to make the periodic crew changes, and the changes did not
have a material effect on wages, hours, or working conditions.
(R. Br. 50.) This argument goes to PNM’s view of the griev-
ance’s merits, not to whether it needs to respond to an infor-
mation request. See Island Creek Coal Co., 292 NLRB 480,
487 (1989), enfd. mem. 899 F.2d 1222 (6th Cir. 1990) (Board
does not pass on the merits of a union’s claim in determining
whether information relating to the processing of a grievance is
relevant). Moreover, Smyth’s testimony that one of the reasons
Cox was transferred related to his duties as a union steward
lends support to the validity of the request.
Because the request was related to the Union’s representa-
tion function and concerned changes to the work assignments
of unit members, I find it was presumptively relevant, and Re-
spondent’s failure to provide a full response violates Section
8(a)(5).
5. Safety manual violations and discipline
Paragraph 8(e) asserts that Respondent violated Section
8(a)(5) by filing to respond to an information request as fol-
lows:
Since on or about December 2 and 16, 2010, the Union, by
written request, has requested that the Respondent furnish the
Union with the following information:
• A list of any employees bargaining unit or otherwise
who have been discharged by the Company for violation
of the Employee Safety Manual.
• A list of any employees bargaining unit or otherwise
who have been discharged by the Company for violation
of “other established safety procedures.”
• A list of any employees bargaining unit or otherwise
who have been disciplined by the Company for violation
of the Employee Safety Manual.
• A list of any employees bargaining unit or otherwise
who have been disciplined by the Company for violation
of “other established safety procedures.”
a. Facts
Respondent’s safety procedures apply to unit and nonunit
employees alike. (Tr. 149.) Unit employee Kenny Nunn was
terminated for safety violations including failure to participate
in or initiate a documented “tailboard conference” prior to be-
ginning a job; failure to wear rubber gloves while working on
energized (electrified) equipment; removing power from a 480-
volt meter while alone; and failure to wear a face shield when
required. (Jt. Exh. 4.) Tafoya filed a grievance on behalf of
Nunn. (Tr. 98.) Tafoya requested the information above in an
email to Castro dated December 2, 2010. (Jt. Exh. 4.). Castro
provided information related to unit employees, but did not
provide information regarding nonunit employees, asserting
that they are not similarly situated to Nunn.
b. Analysis and conclusion
Tafoya’s testimony that PNM’s safety procedures apply to
all employees, regardless of union status, is unrebutted. (Tr.
149.) I incorporate by reference the legal framework and anal-
ysis set forth in the section above regarding the request infor-
mation related to medical appointments and paid time off.
Accordingly, I find Respondent violated Section 8(a)(5) by
failing to provide information regarding nonunit employees.
6. Policy requiring management’s approval
for visitors
Paragraph 8(f) of the complaint alleges a violation of Section
8(a)(5) for failure to respond to the following information re-
quest:
Since on or about January 11 and February 9 and 11, 2011,
the Union, by oral and written request, respectively, has re-
quested that the Respondent furnish the Union with the fol-
lowing information:
The Union requests the policy that requires employees to get
management’s permission to escort visitors into the service
center.
a. Facts
The facts surrounding this information request are set forth
fully above in the section regarding Tafoya and Fitzgerald’s
access to PNM’s property. I will summarize the most pertinent
facts here.
On January 11, 2011, Tafoya sent an email to Cindy Castro
and Nawman requesting a copy of the policy at issue. In re-
sponse, Castro stated that the January 15, 2009 Security and
Access Control memo from the General Services
PUBLIC SERVICE CO. OF NEW MEXICO 601
Group/Security specifies the access control, and provided him
with a copy of it. (Tr. 574; Jt. Exh. 2; CP Exh. 5.) It states:
Visitors: All visitors will be required to sign in with Security
or at the front desk of the Administration Building. Visitor’s
badges or stickers will be issued to visitors by Security or by
an ESC employee. Employees will be required to escort visi-
tors at all times within the ESC compound. Visitors can be
pre-announced to Security by calling 241-3642 and Security
will provide notification when the visitor has arrived. Em-
ployees will be required to pick up and return visitors at either
the main service gate (E-4) or the front lobby of the Admin-
istration Building. Visitor badges should be returned to Secu-
rity at the end of the visit.
(Tr. 99; Jt. Exh. 2-1; Schmidt decision at p. 42.)
Castro also sent Tafoya an email on February 2, reiterating
what she said in her letter, and adding that employees must
check with their supervisors when deviating from their assigned
work. Tafoya replied on February 7, asking Castro to clarify
that there was no written policy requiring management approv-
al to escort visitors onto PNM property. Castro responded that
his access to the ESC was pending a decision from an ALJ, and
that PNM’s position remained unchanged. Tafoya reiterated
this request on February 11. Castro responded on February 16,
stating simply, “The Company stands by its previous respons-
es.” (Jt. Exh. 2; Tr. 61.) Castro testified that through these
exchanges, she advised Tafoya there was no written policy
requiring management’s approval to escort visitors. (Tr. 536.)
She also testified that she had no recollection of telling him
there was no written policy requiring employees to obtain man-
agement’s permission to escort visitors onto the ESC premises.
(Tr. 573.)
b. Analysis and conclusion
Respondent did not raise a relevancy argument, and the re-
quest for this information plainly relates to the Union’s access
to represent its members. I therefore find it is relevant. Re-
spondent asserts that it responded to the request by telling
Tafoya there was no policy. However, this is not the case.
Castro’s testimony was that her emails comprised the response,
but she did not recall telling Tafoya there was no policy. She
merely referred to the Security and Access control memo, set
forth in relevant part above. Tafoya did not ask for that policy,
however, so providing him with it was not responsive, particu-
larly since the policy is silent as to any requirement for man-
agement to approve visitors. The additional response that em-
ployees must check with their supervisors before deviating
from their work assignments is likewise nonresponsive, as
Tafoya had previously accessed the facility without manage-
ment’s consent to visit with employees before work and during
breaks. It would have been extremely simple to just state there
was no such policy, and Respondent’s failure to do so is baf-
fling. Then, in response to Tafoya’s request for clarification,
Castro notified him that his access was under litigation and
PNM’s position remained unchanged. Again, it begs the ques-
tion as to why Respondent never simply and directly responded
that there was no specific policy. Based on the foregoing, I
find Respondent violated Section 8(a)(5) when it declined to
inform the Union, for nearly a year, that there was no policy
responsive to Tafoya’s request.
7. Unscheduled absences
Complaint paragraph 8(g) asserts that, since on or around
March 23, 2011, Respondent failed to provide requested infor-
mation regarding absences. The specific requests are detailed
below.
a. Facts
In the fall of 2010, meter readers were told they were re-
quired to work mandatory overtime on Saturdays. The Union,
through Tafoya, filed a grievance. (Tr. 92–93, 100.) On Feb-
ruary 20, 2011, Tafoya sent Castro a request for information
pertaining to the schedules of meter readers. Castro responded
with some, but not all, of the requested information. The in-
formation he did receive raised an issue with regard to absences
and employee discipline that he wanted to investigate. Specifi-
cally, employees are subject to discipline if they incur 40 hours
of unscheduled absences and not reporting to work on Saturday
exposed Meter Readers to discipline. (Tr. 101.) Meter readers
were required to notify their supervisor if they desired to
schedule a Saturday off and use paid time off (PTO). (Tr. 102;
CP Exh. 3.) If the supervisor did not approve an employee’s
request, the employee was charged with an unscheduled ab-
sence. (Tr. 102.) Under Respondent’s Absences From Work
policy, employees charged with unscheduled absences can use
their PTO if available. (CP Exh. 3.) According to Tafoya,
Respondent was not allowing meter readers to use PTO days
for unscheduled absences. (Tr. 102.) Tafoya therefore sent a
second request on March 23, asking for:
• The Company policy that requires discipline to be
administered if any employee has been charged with
40 hours of “unscheduled absences” and the date that
policy became effective.
• The “unscheduled time off requirements” referred to
in Eric Morgan’s email of 1/25/11 and the policy that
contains those requirements.
• The policy that requires employees to Pre-Approve
for PTO on any day that is not designated a regular
work day by the CBA.
• The definition of “unscheduled absence” and the
company policy that contains the definition.
• The names classifications and work locations of any
and all PNM employees, bargaining unit or non bar-
gaining unit who have been disciplined for accruing
40 hours of “unscheduled absences” from April 1,
2008 or the date the policy became effective to March
1, 2011 whichever period is shorter.
(Tr. 93–95; Jt. Exh. 8.) In the request, Tafoya informed Castro
that he was investigating a grievance, and explained that the
absence policy at issue applied to both unit as well as nonunit
employees. (Jt. Exh. 8; CP Exh. 3.)
Castro, who left PNM on April 9, 2011, testified at the hear-
ing that she had meetings with Tafoya regarding the Saturday-
schedule issue, and she thought she had responded to the re-
quest. (Tr. 548.) There is no record evidence of a response.
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b. Analysis and conclusion
The request, which Tafoya made to investigate a possible
grievance related to one he had filed in connection with the
meter readers’ changed schedule, concerned employee absences
and discipline. It is presumptively relevant as to the unit em-
ployees. With regard to the other employees, the Acting Gen-
eral Counsel has established that union and nonunion employ-
ees were subject to the same absence policy. (CP Exh. 3.) I
therefore incorporate by reference the legal framework and
analysis set forth above regarding the requested information
related to medical appointments and paid time off.
Castro stated that she thought she had responded to the re-
quest. However, no response was submitted, and Castro of-
fered no testimony regarding the contents of the response she
thought she provided. Because Respondent failed to produce or
even describe its response, I infer that there is no such response.
Accordingly, I find Respondent violated Section 8(a)(5) by
failing to respond to this information request.
8. Denial of Tafoya visit before work
Lastly, paragraph 8(h) alleges that Respondent violated Sec-
tion 8(a)(5) by failing to provide information regarding the
decision not to permit Tafoya to come to the ESC to meet with
members before work hours on March 28, 2011.
a. Facts
On March 25, 2011, Tafoya told Oldham that he wanted to
come to the ESC the following Monday before the work shift to
talk to his members. (Tr. 901–902.) There was no specific
purpose for his visit. (Tr. 903.) Oldham called Smyth, who
was interim manager. Smyth said it was a really busy week
because the CEO was visiting, and offered to let Tafoya visit
after the shift on Monday, or in the morning any day during the
following week. (Tr. 904–906.) On March 28, 2011, Tafoya
sent an email to Castro and Mick Oldham, senior labor relations
representative, requesting information regarding his access to
the ESC before working hours. Oldham responded with some
of the information, but Tafoya contended that he did not furnish
the following requested information:
 The names of the Company management that made
the decision to deny me access to the service center
before normal working hours.
 Any and all documentation the Company relied upon
in making the decision to deny my request for access
to the service center before normal working hours.
Oldham explained that he did not see the relevance of the re-
quest for the names of the managers involved, and that PNM
did not rely on any documentation. He advised Tafoya to ex-
plain the relevance of this information and stated that he would
then consider the request. (Jt. Exh. 9.)
b. Analysis and conclusion
Oldham responded, on April 7, 2011, that no documents
were relied upon in making the decision at issue. (Jt. Exh. 9.)
Accordingly, I recommend dismissal of this part of the com-
plaint allegation.
With regard to the names of the managers that decided to de-
ny him the right to visit that morning, Oldham asked Tafoya to
explain why he needed this information. In this context, with
no purpose for Tafoya to come to the ESC other than to visit
with his members, coupled with the offer for Tafoya to visit
any afternoon that week or any morning the following week, I
do not find the information requested to be presumptively rele-
vant. The inability to talk to Tafoya that particular Monday
morning did not impact a term or condition of any particular
member’s employment where there was no investigation or
grievance that needed Tafoya’s attention. National Sea Prod-
ucts, 260 NLRB 3 (1982). Tafoya did not respond to Oldham’s
request to explain the relevance of the information, and no ex-
planation was elicited at the hearing. Accordingly, neither the
Acting General Counsel nor the Union established the rele-
vance of the information requested.
The relevance burden may be established by showing that a
logical foundation and a factual basis exist for such an infor-
mation request. That burden is satisfied by a showing that there
is a probability the requested information is relevant and would
be of use to a bargaining representative in carrying out its re-
sponsibilities. Postal Service, 310 NLRB 391, 391–392 (1993).
I recognize that this denial is part and parcel of Respondent’s
overall move to change its practices with regard to Tafoya’s
access. Tafoya’s ever-waning access is part of the lengthy
complaint at issue in this correspondingly lengthy decision.
This specific denial is an enforcement of the policy requiring
management’s permission for Tafoya to access PNM’s premis-
es, which, as explained above, I have found to be unlawful.
The allegation above pertains to information Tafoya wanted for
a possible grievance. The topic of management permission for
Tafoya to access the ESC has been adjudicated as part of this
complaint, there is no pending grievance, and any potential
grievance would be redundant. Accordingly, I recommend
dismissal of complaint paragraph 8(h).
CONCLUSIONS OF LAW
1. Respondent, Public Service Company of New Mexico, is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Local 611 is a labor organization within the meaning of
Section 2(5) of the Act that serves as the exclusive collective-
bargaining representative of the following appropriate unit of
employees within the meaning of Section 9(a) of the Act:
All employees of the Respondent’s Electric, Water, Transmis-
sion, Distribution, Production, Meter Reader, and Collector
departments in the divisions and jobs referenced in Respond-
ent’s collective-bargaining agreement with the Union effec-
tive by its terms from May 1, 2009, through April 30, 2012.
3. By failing to provide Local 611 with the following rele-
vant information it requested:
(a) The total number of medical appointments scheduled and
approved by supervision for any and all medical appointments
for employees bargaining unit or non bargaining unit who are
subject to the Company’s policy; The total number of medical
appointments scheduled and approved by supervision for any
and all medical appointments for employees bargaining unit or
PUBLIC SERVICE CO. OF NEW MEXICO 603
non bargaining unit who are subject to the Company’s PTO
policy and were required to provide a doctor’s note to verify a
medical appointment; The names, classifications, and work
locations of any and all PNM employees who are subject to the
Company’s PTO policy, bargaining unit or non bargaining unit
who have scheduled a medical appointment with their supervi-
sor.
(b) The discipline issued to Rex Foss for violations of com-
pany policies including “Do the Right Thing” that occurred as a
result of Foss’ involvement in the Carlisle and Montgomery
leak incident.
(c) Information pertaining to crew changes, including who
from management made the decisions and how employees were
informed of the decisions.
(d) A list of any employees bargaining unit or otherwise who
have been discharged by the Company for violation of the em-
ployee safety manual; a list of any employees bargaining unit
or otherwise who have been discharged by the Company for
violation of “other established safety procedures; a list of any
employees bargaining unit or otherwise who have been disci-
plined by the Company for violation of the employee safety
manual; a list of any employees bargaining unit or otherwise
who have been disciplined by the Company for violation of
“other established safety procedures.”
(e) The Company policy that requires discipline to be admin-
istered if any employee has been charged with 40 hours of “un-
scheduled absences” and the date that policy became effective;
The “unscheduled time off requirements” referred to in Eric
Morgan’s email of 1/25/11 and the policy that contains those
requirements; The policy that requires employees to preapprove
for PTO on any day that is not designated a regular workday by
the CBA; The definition of “unscheduled absence” and the
company policy that contains the definition; the names classifi-
cations and work locations of any and all PNM employees,
bargaining unit or nonbargaining unit who have been disci-
plined for accruing 40 hours of “unscheduled absences” from
April 1, 2008, or the date the policy became effective to March
1, 2011, whichever period is shorter, Respondent engaged in
unfair labor practices within the meaning of Section 8(a)(1) and
(5) of the Act.
4. By unilaterally making changes to the informal step of the
contractual grievance and arbitration procedures in or around
July 2011 by: (a) requiring stewards at the initial stage of the
informal step to explain in detail which articles of the contract
are alleged to be violated and how these articles have been
violated; (b) refusing to sign in receipt of grievances that have
been put to writing after oral grievances have been presented;
and (c) requiring more than one supervisor be present during
informal step grievance meetings, Respondent violated Section
8(a)(1) and (5) of the Act.
5. By unilaterally changing the requirement for Local 611
representatives to access its ESC facility in Albuquerque, New
Mexico, in January 2011, Respondent violated Section 8(a)(1)
and (5) of the Act.
6. By unilaterally changing the requirement for Local 611
representatives to access its San Juan Generating facility in
Farmington, New Mexico, on July 15, 2011, Respondent vio-
lated Section 8(a)(1) and (5) of the Act.
7. By threatening and interrogating employees, as set forth
herein, Respondent violated Section 8(a)(1) of the Act.
8. By refusing to process a discrimination complaint by unit
employee Eric Cox unless he proceeded without his union rep-
resentative, Respondent violated Section 8(a)(1) of the Act.
9. By denying unit employee Eric Cox’s request to have his
union representative of choice represent him at an investigatory
interview on March 28, 2011, Respondent violated Section
8(a)(1) of the Act.
10. Respondent did not engage in any other of the unfair la-
bor practices alleged this consolidated proceeding.
11. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, my recommended order requires them to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Affirmatively, Respondent must forthwith furnish the infor-
mation necessary and relevant to the performance of Local
611’s duties as the exclusive collective-bargaining representa-
tive of Respondent’s employees that it unlawfully withheld.
Respondent must restore the method of processing the in-
formal step of the grievance procedure set forth in the collec-
tive-bargaining agreement as it existed prior to July 2011. In
the event Respondent has altered its method of processing the
informal step of the grievance process in the meantime, it will
be required to process informal grievances in a manner substan-
tially equivalent to that which existed prior to July 2011 until it
negotiates alternate procedures or reaches a lawful impasse
attempting to do so.
Respondent must restore the ability of Local 611 agents to
access its ESC facility in Albuquerque, New Mexico, as it ex-
isted from January until August 2009.47 In the event Respond-
ent has altered its access procedures in the meantime, it will be
required to provide Local 611 representatives with a form of
access substantially equivalent to that which existed from Janu-
ary until August 2009 until it negotiates alternate access proce-
dures applicable to representatives of Local 611 or reaches a
lawful impasse attempting to do so.
Respondent must restore the ability of Local 611 agents to
access its San Juan Generating Facility in Farmington, New
Mexico, as it existed prior to the changes that took place on
July 15, 2011. In the event Respondent has altered its access
procedures in the meantime, it will be required to provide Local
611 representatives with a form of access substantially equiva-
lent that which existed prior to July 15, 2011, until it negotiates
alternate access procedures applicable to representatives of
Local 611 or reaches a lawful impasse attempting to do so.

47 Though the instant complaint alleges unlawful changes only from
January 2011, the appropriate remedy is in accordance with the prior
changes that Judge Schmidt found unlawful.
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent must process employee Eric Cox’s discrimina-
tion complaint, allowing him to be represented by the union
representative of his choice.
Respondent will also be required to post the notice attached
as Appendix A in order to inform employees of the outcome of
this matter.
[Recommended Order omitted from publication.]