Public Service Company of New Mexico

National Labor Relations Board - Administrative Judge Opinions

Jun 22, 2012

28-CA-023391 (N.L.R.B. Jun. 22, 2012)

JD(SF)-28-12
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
PUBLIC SERVICE COMPANY OF
NEW MEXICO
and Cases 28-CA-23391
28-CA-66164
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION No. 611,
AFL-CIO
TABLE OF CONTENTS
Statement of the Case ............................................................................................................1
Findings of Fact..............................................................................................................2
I. Jurisdiction.................................................................................................................2
II. Alleged Unfair Labor Practices ................................................................................2
A. Complaint Allegations ......................................................................................2
B. Summary of Previous Decisions ........................................................................3
C. Background and Respondent’s Operations ........................................................3
1. Facilities......................................................................................................3
2. Company and Union Personnel ..................................................................4
III. Factual Findings and Decision .................................................................................5
A. Alleged Changes to Informal Step of the Collective Bargaining Agreement ....5
1. Facts .............................................................................................................6
2. Decision and Analysis..................................................................................11
B. Alleged Changes to Union Agents’ Access and Related Threats.......................15
1. Facts Relating to Tafoya ..............................................................................16
2. Analysis and Conclusions ............................................................................19
a. Tafoya’s Access ....................................................................................19
b. Alleged Threats.....................................................................................20
3. Allegations Relating to Fitzgerald ...............................................................21
a. Facts ......................................................................................................21
b. Analysis and Conclusion ......................................................................23
C. Alleged Changes to Meter Reader Schedules ....................................................24
1. Facts .............................................................................................................24
2. Analysis and Conclusion..............................................................................24
D. Alleged Refusal to Process Eric Cox’s Discrimination Complaint....................24
1. Facts .............................................................................................................25
2. Analysis and Conclusion..............................................................................26
JD(SF)-28-12
E. Alleged Denial of Cox’s Representative of Choice by Tom Mitchell...............29
1. Facts .............................................................................................................29
2. Analysis and Conclusion..............................................................................30
F. Alleged Conduct Related to Supervisor Dale Smyth..........................................30
1. Facts .............................................................................................................31
2. Analysis and Conclusions ............................................................................32
a. Alleged Interrogation about Union Activities.......................................32
b. Alleged Threats, Misrepresentation about Weingarten Rights, and
Denial of Representation ......................................................................33
i. Smyth Telling Cox to Come to his Office......................................33
ii. Alleged Comment Regarding Futility of Board Charges..............34
iii. Alleged Threat of Unspecified Reprisals .....................................35
iv. Alleged Misrepresentation of Weingarten Rights and Denial
of Union Representation at Investigative Interview.....................35
c. Alleged Imposition of More Onerous Working Conditions .................36
G. Alleged Interrogation by Gary Cash .................................................................36
1. Facts .............................................................................................................36
2. Analysis and Conclusion..............................................................................36
H. Marie Plant Interview.........................................................................................37
1. Facts .............................................................................................................37
2. Analysis and Conclusions ............................................................................39
a. Alleged Threat ......................................................................................39
b. Denial of Union Representation ...........................................................39
I. Requests for Information .....................................................................................40
1. E-mail Regarding Marie Plant .....................................................................41
2. Medical Appointments and Paid Time Off..................................................42
a. Facts ......................................................................................................42
b. Analysis and Conclusion ......................................................................42
3. Rex Foss Discipline .....................................................................................44
a. Facts ......................................................................................................44
b. Analysis and Conclusion ......................................................................44
4. Crew Changes ..............................................................................................44
a. Facts ......................................................................................................44
b. Analysis and Conclusion ......................................................................45
5. Safety Manual Violations and Discipline ....................................................46
a. Facts ......................................................................................................46
b. Analysis and Conclusion ......................................................................46
6. Policy Requiring Management’s Approval for Visitors ..............................46
a. Facts ......................................................................................................47
b. Analysis and Conclusion ......................................................................47
7. Unscheduled Absences ...............................................................................48
a. Facts ......................................................................................................48
b. Analysis and Conclusion ......................................................................49
8. Denial of Tafoya Visit Before Work ...........................................................49
a. Facts ......................................................................................................49
b. Analysis and Conclusion ......................................................................50
Conclusions of Law...............................................................................................................50
Remedy..................................................................................................................................52
ORDER..................................................................................................................................53
APPENDIX ...........................................................................................................................57
JD(SF)-28-12
Albuquerque, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
PUBLIC SERVICE COMPANY OF
NEW MEXICO
and Cases 28-CA-23391
28-CA-66164
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION
NO. 611, AFL-CIO
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, Local 611, or Union) filed the
charge in Case 28-CA-23391 on March 4, 2011 and the Acting General Counsel issued the
complaint on May 31. Public Service Company of New Mexico (PNM, Respondent, or
Company) filed a timely answer1 on June 21 denying all material complaint allegations 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 issued an Order denying the motion on
November 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-66164 on October 5, 2011. The Acting
General Counsel consolidated the cases and issued a consolidated complaint on October 31.

1 Respondent requested, and was granted, an extension of time to file the answer.
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Respondent 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 demeanor of the witnesses, and
after considering the briefs filed by the PNM and the Acting General Counsel,2 I make the
following.
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
twelve months and at all material times it derived gross revenues 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 Section 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning 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, Transmission, Distribution,
Production, Meter Reader, and Collector departments in the divisions and jobs referenced
in Respondent's collective-bargaining agreement with the Union effective by its terms
from May 1, 2009, through April 30, 2012.
PNM admits Local 611 is a Section 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.
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 representation, 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

2 The Union did not file a brief.
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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 disputes.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-23148. 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 Commission] 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 five-and-a-half month delay in responding to it was unreasonable. The Board
affirmed Judge Litvack’s decision on May 24, 2011. 356 NLRB No. 60 (2011).
On February 12, 2012, ALJ Schmidt issued a decision 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
investigation, and unilaterally implementing certain policies. Both 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

3 There was also a previous case from 2001, where the Board upheld 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.
Pub. Serv. Co. of N.M., 337 NLRB 193 (2001).
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PNM’s primary place of business is Albuquerque, but it operates a number of facilities
throughout New Mexico. Relevant to this decision are the Edith Service Center (ESC) in
Albuquerqure, the San Juan Generating Station in Farmington, and the Belen Office.
A variety of employees work out of the ESC, which encompasses roughly 12 acres and
contains multiple buildings, including the Administration building, Line Department building,
Meter Department building and a warehouse. (Tr. 749–50).4 The employees who work at the
ESC include: Linemen who maintain overhead and underground lines; Substation Electricians
who maintain large power equipment; Communications Technicians who maintain radio
communications; Relay Journeymen who maintain PNM’s protective relaying schemes; and
Meter Journeymen who install metering equipment. (Tr. 746–47). The ESC also stores a large
volume of materials and equipment. (Tr. 751–52).
The San Juan Generating Station in Farmington is a coal-fired power plant that covers
roughly 30–35 acres. The Administration 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). Employees required to access the controlled sites must pass a criminal background
check and received swipe cards permitting them to enter through a turnstile. (Tr. 464).
2. Company and Union Personnel
PNM has roughly 1,800 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 non-Union employees. Employees
covered by the collective bargaining agreement (CBA) may only be terminated for just cause,
whereas non-Union employees may be terminated for any reason. There are also differences in
other terms and conditions of employment, such as entitlement to bypass overtime, required
training, and compensation. (Tr. 600–03). On the other hand, certain policies apply to all
employees alike, regardless of Union membership. (Tr. 631; CP 2).
Laurie Monfiletto is the Director of Human Resources for the utility portion of PNM. (Tr.
581). In that capacity, she oversees employee relations, labor relations, staffing, and
learning/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. 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. McIntyre has been the Human Resources
Supervisor at the San Juan Generating Station since February 2010. She supervises Padilla, who
holds the title of Senior Human Resources Consultant. (Tr. 582–83, 901, 929, 1007).

4 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R” for
Respondent’s exhibit; “GC” for Acting General Counsel’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.
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Ray Mathes is PNM’s Labor Relations Manager. He supervised 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 Representative, 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
Department and Distribution Operations, a position Tom Mitchell assumed in April 2011.5 (Tr.
832, 861). Dale Smyth was a Supervisor of the Line Department until his retirement in
December 2011. (Tr. 805). Ralph Pesce is a Supervisor in the Construction 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 Fitzgerald is also an Assistant
Business Manager with the IBEW, servicing 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 determinations, into separate sections below. In preface, I will
state that in reaching my conclusions, I often had the impression that both parties were blindly
and stubbornly digging in their heels, caring more about who could exert the most power and be
technically “right” rather than trying to come to a workable solution. In my view, a change in
this dynamic is long overdue.
A. Alleged Changes to Informal Step of the Collective Bargaining Agreement

5 Dale Smyth served as interim manager after Nawman left the position and before Mitchell
assumed it on a permanent basis.
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Complaint allegation 9(d) alleges that since on or about July 7, 2011, a more precise date
being unknown to the Acting General Counsel, the Respondent has unilaterally implemented the
following changes to the Informal Step of the contractual grievance 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 representatives on company time; and
(4) requiring more than one supervisor be present during Informal 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 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 supervisor of the grievant, who will attempt to adjust the grievance 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 occurrence of the alleged event on which it is based;
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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 grievance
5. The signature of the grievant, or steward, along with the date the grievance was
presented to the supervisor.
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 1). The informal step, also referred to as Step 1, generally 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 employee 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 supervisor cannot get an answer in time to avoid threatening the 15-
day time limit, the supervisor will grant an extension. (Tr. 595–96). Oldham, McIntyre, and
Padilla share this view. (Tr. 926–29, 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 experience
with the informal step. Though not using precisely the same words, they all recounted that prior
to the alleged changes, 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, 220–24, 266, 273–
74, 351–52, 405, 407, 412, 422–23; 1079–80; JT 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 7). Because 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
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untimely.6 (Tr. 163, 413). Tafoya testified that, from 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 supervisors at PNM. Because of this,
starting in May, Monfiletto began a series of supervisor trainings by the Management Associated
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 supervisors a document dated October 25, 2011,
called “Informal Grievance Guidelines for Supervisors.” 8 (Tr. 362; GC 3; R A). The document
gives guidelines for supervisors involved to handle Step 1 grievances. The bullet point items the
Union most contests are:
ï‚· 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 convenient for you.
Ensure second supervisor is available and/or attends the meeting, if you feel is
needed.
ï‚· 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.
ï‚· Do not accept a written grievance until the informal process has occurred.
ï‚· Have the employee/union steward identify the section(s) of Articles allegedly being
violated, and ask them to explain how they were violated. If the employee/union
steward cannot provide this information, document what they said.
ï‚· 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 (Management
chain/HRBP).
ï‚· 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 indicate 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.
ï‚· If you have had the informal meeting but have not yet provided the employee or
union steward with the Company response, and the union steward presents a written

6 Although Respondent contends that the Union controls when the grievance is brought, this
is not always the case, as there was testimony 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 3 is a previous version dated October 6. Padilla testified that he and Otero co-authored
the document. (Tr. 973).
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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 grievance if it is not resolved at the Informal Step.
ï‚· 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 3; R 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 informal process and getting grievances settled at the lowest
possible level. (Tr. 1035). She perceived the training as providing supervisors with a better
understanding of how to follow the CBA. (Tr. 1034–35). Padilla perceived the MARC training
and the guidelines as consistent with the CBA, but not consistent with how grievances were
actually being processed. (Tr. 974).
Jamie Shockey was a member of the Union for five 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 steward, 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 supervisor 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. 1109–10).
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
approximately two 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

9 McIntyre did not provide Fitzgerald with the materials from the MARC training. (Tr.
1037).
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grievance. (Tr. 411). Fitzgerald advised Patscheck to file the grievance the following day with
Woolsey’s regular supervisor, Shockey. (Tr. 353–54). 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. 1088–89). 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 grievances. (Tr.
36–38).
In late September, Glenn Miller, an employee in the meter reader department, notified
Tafoya that supervisor Steve Kniffen would not sign in receipt of a grievance. Tafoya came to
Respondent’s headquarters and spoke with Kniffen. He explained 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 Respondent’s property. When Tafoya explained that he was there as a
representative, Morgan told him he was not allowed on Respondent’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, 908–09). 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 responded that these grievances had not been through the first step, and he would
not sign them.10 (Tr. 45–47, 910–11).
Cox noticed that since the Fall of 2011, the Union meets with two supervisors, they
require a scheduled meeting, and they 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. 220–24. 266, 280).
Clay Cash works as an ICE journeyman, instrument control electrician at PNM’s San
Juan facility. He has served as a Union steward for roughly 7 years. (Tr. 402). He observed that

10 He did sign grievances that the supervisor had signed on the Step 1 form.
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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 behalf of Fitzgerald. (Tr. 403–05). 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 Vozza 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 respond, Fitzgerald presented
Padilla with the Step 2 forms. Padilla would not receive the unsigned Step 2 grievances, and
suggested that the Union re-file the Step 1 grievance. (Tr. 355–56).
On October 18, 2011, Barnard processed a grievance for employee 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. 427–28).
2. Decision and Analysis
Well-settled law provides that an employer may not change the terms and conditions of
employment of represented employees 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 therein
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 employment” 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 subject for
collective bargaining.
See also Westinghouse Electric Corp., 141 NLRB 733, 735–736 (1963), reversed on other
grounds 325 F.2d 126 (7th Cir. 1963). Accordingly, unilateral action by an employer that

11 The team manager is above the supervisor in the chain-of-command. (Tr. 424-45).
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substantially 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
custom. See Citizens Hotel Co., 138 NLRB 706, 712-713 (1962), enforced, 326 F.2d 501 (5th
Cir. 1962); Frontier Homes Corporation, 153 NLRB 1070, 1072-73; Cent. Ill. Pub. Serv. Co.,
139 NLRB 1407, 1415 (1963), enforced, 324 F.2d 916 (7th Cir. 1963). Regular and longstanding
practices that are neither random nor intermittent become terms and conditions of employment
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 Distrib. of Del., 334 NLRB 409, 411 (2001). This is no less true where the
practice is denominated a “privilege,” voluntarily instituted or bestowed by the employer. Cent.
Ill. Pub. Serv. 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. Phila. Coca-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
requirements 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.
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.

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.
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385 U.S. 421, 428 (1967); Resco Prods., Inc, 331 NLRB 1546 (2000). In Resco, the Board
described its method of interpreting 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 evidence, such as the
parties' bargaining history and past practice. 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 precise enough to fit either specific approach to a T. Respondent
contends that its interpretation is correct, citing to the contractual 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 written 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 interpretations and the Union’s interpretations, as advanced by the Acting
General Counsel, are generally plausible. 14
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

13 The language of Article 10 states that the oral meeting at the informal Step is with the
“immediate supervisor” and the employee and/or steward. 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. 920-21; R Br.
62). The language of Article 10 clearly sets forth separate time limits. (JT 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 Article 10. The last sentence of the
informal step states, “If the grievance is not satisfactorily adjusted at the informal step it shall be
referred to Step Two.” (JT 1; R Br. 62). However, these examples do not necessitate a finding
that Respondent’s interpretation is wholly implausible.
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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. Local 181, Brewery
Workers, 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 contrary, for
the reasons set forth herein at footnote 13, its interpretation seems the more plausible one. In any
event, the Union’s interpretation 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 established that the manner of processing the informal step that existed
prior to the changes that began during the summer of 2011 was a longstanding past practice.
Respondent further advances a business justification argument, 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 reasonable interpretations of the relevant part
of the CBA. Accordingly, 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
significant.” Alamo Cement Co., 281 NLRB 737, 738 (1986); Flambeau Airmold Corp., 334
NLRB 165, 171 (2001). The General Counsel bears the burden of establishing this. N. 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 refused to talk about grievances with Union representatives “on
company time” as alleged in the consolidated complaint. Accordingly, 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 them. I do not find this to be a “material, substantial, and significant” 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 schedule time to discuss grievance, or that
any grievances were untimely 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

15 Indeed, Respondent conducted the MARC training and distributed the guidelines based on
its view that this practice was incorrect.
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all testified about specific informal grievances where the immediate supervisor called in another
supervisor or manager. Cox and Cash provided specific 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, involving more than just the immediate
supervisor on management’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 handling 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.
Majestic Towers, Inc., 353 NLRB No. 29 (2008). Specifically, the Acting General Counsel
presented evidence that after the expiration of the supervisor’s 15-day time to respond at the
informal 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 management,
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, however, 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 supervisor’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. 472–73). The supervisors’ refusal to sign in receipt of grievances, even if they
thought the oral part of the 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 Section 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 violated Section 8(a)(1) and (5)
when:

16 GC 7 makes clear that signing in receipt does not mean the 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.
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(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 escort visitors on the Respondent’s Edith facility premises.
(b) In about January 2011, a more precise date being unknown to the Acting General
Counsel, the Respondent implemented 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 implemented and enforced new
policies concerning Union agents’ and representatives’ access to the Respondent’s San
Juan Generating Station facility, thereby restricting and limiting Union agents’ and
representatives’ access to the Respondent’s facility.
The complaint, at paragraph 5, further alleges that Respondent 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 security guard, whose precise
identity is unknown to the Acting General Counsel, and speaking at the direction of Jeff
Nawman, herein called Nawman, at the Respondent’s Edith facility, threatened
employees by informing them that Tafoya was not allowed on company property.
(i) On or about January 25, 2011, the Respondent, by Nawman, at the Respondent’s Edith
facility, threatened employees 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 previous litigation. Judge Schmidt provided a thorough
summary of Tafoya’s historical access in his decision at pp. 40–42, which I will not reiterate
here. In sum, PNM took steps in 2008 to address security lapses at the ESC, one of which was a
new access policy for visitors. (Tr. 752–55, 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 6:00
a.m. and 6:00 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:

17 Judge Schmidt found this unilateral change violated Section 8(a)(1) and (5).
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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 visitors 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. Employees
will be required to pick up and return visitors at either the main service gate (E-4) or the
front lobby of the Administration Building. Visitor badges should be returned to Security
at the end of the visit.
(Tr. 99; JT 2-1; Schmidt decision at 42).
During a Monday morning safety briefing in late 2010, Supervisor Don Wilkerson
informed a group of 10–15 employees, including Cox, that the Company had come up with a
new policy 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. 231–32). Union
steward 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 supervisor, 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, 228–31). 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 property,
and asked him to leave. (Tr. 58–59, 169-71, 230–32). Tafoya told Nawman that he had followed
procedures by signing in and having Cox escort him. Nawman responded that, per PNM policy,
Cox was required to get permission from management to escort Tafoya onto the premises. (Tr.
58–59). Tafoya asked Nawman for a copy of this policy but he did not provide one.18 (Tr. 60;
Jt. Ex. 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
requesting a copy of it. He also asked for information regarding how the policy was
communicated to supervisors and employees. 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 specifies the access control, and provided him with a copy of it.
(Tr. 574; JT 2; CP 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 deviating from their

18 Tafoya also later asked Cindy Castro for a copy. (Tr. 60).
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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 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 Control memo does not address management’s approval for visitors. (Tr. 573–74; CP
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 waiting, and Garcia signed him in as a
visitor. As Tafoya and Garcia were walking down the hall inside the Administration building, a
security guard approached and told Tafoya he had instructions from Nawman not to allow
Tafoya inside the building.19 (Tr. 340–41). During the first part of April 2011, Garcia observed
Nawman, in the hallway by the Line Department, tell Tafoya he was not allowed on Company
property. (Tr. 339, 343).
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
expectation.” (Tr. 789). Nawman learned of the changes to visitor 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 11 forward, Tafoya was required to have management approval for access
to the ESC. (Tr. 137–38, 789). Whether management needed to actually escort him while he was
on the property depended on the supervisor involved. According to Tafoya, some supervisors
sent the steward to escort him while others had a supervisor escort him throughout his visit.
(Tr. 137-38).

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 testimony 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).
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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 employees 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), enforced, 320 F.2d
615, 620 (3d Cir. 1963). See also Westinghouse Electric Corp., 141 NLRB 733, 735-736 (1963),
reversed 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 Hous. 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. Accordingly, the analysis turns to whether, by past practice, access
became a term or condition of employment. The legal framework, set forth above in the
discussion of changes to the informal step of the grievance process, governs this analysis. It is
undisputed that traditionally the Union had virtually unencumbered 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 42). As in the prior case, Nawman, a
PNM manager with a long tenure at the ESC, admitted 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 employee requests to talk to Tafoya and requiring him to be
escorted would clearly inhibit the kind of candid exchanges possible between the represented
employees and their union agents. Such a requirement is a way to make certain mangers 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 presented, however, that this requirement
was limited to employees who were on the clock or employees who had not already received
supervisory permission to address Union matters during 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, citing management’s right to
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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
material and significant, and therefore violate Section 8(a)(1) and (5). Ernst Home Ctrs., 308
NLRB 848, 849 (1992); see also Turtle Bay Resorts, 355 NLRB No. 207 (2010); Sierra Publ’g
Co., 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 employer engaged in conduct which might reasonably tend to interfere
with the free exercise of employee rights under Section 7 of the Act. Am. Freightways Co., 124
NLRB 146 (1959). Employer conduct that violates Section 8(a)(1) of the Act includes threats to
exclude union agents from a jobsite. Swardson Painting 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 employee as a threat.”Smithers Tire and Auto.
Testing of Tex., 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.” Am. Tissue Corp., 336 NLRB 435, 441 (2001)
(citing NLRB v. Ill. 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 meeting 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 background, 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 security 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,
reliance 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 & Casino, 309 NLRB 761 (1992)
enforced in relevant part, NLRB v. Unbelievable, 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

20 In Frontier Hotel, there was an access provision in the applicable CBA. Here, established
past practice renders this a distinction without a difference.
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violation of Section 8(a)(1) of the Act. Id. at 766; see also ABF Freight Sys., 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 Section 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 paragraph 5(h) and (i),
Respondent violated 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. 1069–70).
Employees also knew Fitzgerald visited on Tuesdays. (Tr. 1098). Fitzgerald generally met with
supervisors 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 employees
were on breaks when possible. In the shops, he would talk to employees in the break room 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 with a swipe
card would escort him. (Tr. 443–44). His visits in the control rooms were varied in time but were
usually relatively brief. (Tr. 1100–01).
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
employees 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. 1042–45).
An internal election within the IBEW resulted in a brief and temporary changing of the
guard. Between July 15 and September 9, 2011, Jim Speight, a newly-elected Business Manager,
employed his own assistants and stewards to represent the Local 611’s members. (Tr. 158–59).
Most relevant here, Aaron King served as the Assistant Business Manager for members at the
San Juan Generating Facility from July 27 to mid-September 2011. (Tr. 159; 382). During that
time period, Fitzgerald returned to his position of Journeyman Mechanic.21 (Tr. 373). Prior to

21 Fitzgerald had to undergo a seven-year criminal background check pursuant to NERC
regulations when he resumed his work at PNM.
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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
McIntyre 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. 383–84, 942, 1023). Padilla and McIntyre
offered King space in the Administration building to meet with Unit members. (Tr. 391–92, 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). Padilla perceived that he and King agreed about the changed
access, but did not view it as binding on Fitzgerald. (Tr. 952–53, 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. 391–92, 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. 356–57). Fitzgerald
and the guard tried to call Padilla, but neither received a response. 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, Padilla apologized for
the way things had transpired, but explained that PNM was changing his access. (Tr. 358, 951).
Fitzgerald made an appointment to come back at 1:00 that afternoon. He arrived, signed in,
received a badge, and Padilla escorted 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 employee 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, 454–55, 954). Under the new rule, Padilla, McIntyre, or Ernie Rodarte, the compliance
manager, needed to escort him whenever 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 during
King’s tenure. (Tr. 458–59, 978).
Cash observed vendors and contractors walking around the plant unescorted. (Tr. 459–
60). Lloyd Beebe, a business agent from the Local 611 who represents contractor MJ Electric’s
construction electricians, appeared on the property unescorted in or around October 2011. (Tr.
462, 503). Beebe continued, 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).
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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 reasons
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 compliance manager now must escort Fitzgerald to
meetings. Respondent’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 particularly 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. 458–59, 978). Likewise, 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 discussions 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 office 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 precluded 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 production 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
Fitzgerald was causing a disturbance down in the shop when Carroll 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
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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 business 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, four-day per week schedule, with the regular
work week as Monday through Thursday or Tuesday through Friday. (JT 1).
Meter Readers reported to Tafoya they were being required to work mandatory overtime
and these hours were being scheduled on Saturday. Respondent, after imposing mandatory
overtime 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 sufficient 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 collectors. 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 sufficient 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 burden in this regard, I recommend dismissal of
complaint paragraph 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:
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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 representative be present
during any such meetings.
1. Facts
In or around late April/early May 2010, Cox filed a complaint 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. 636–37). 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 supervisor, 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 visited.22 (Tr. 640–41). 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 person to contact about his complaint, and stating that nobody had 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 investigation 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 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 witness 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 investigated together, and they
believed Tafoya had the right to serve as Cox’s Union representative, not just as a witness. He
also memorialized Cox’s request to have Sonia Otero participate in the investigation, and stated

22 Cox called Lee and left him a voicemail that he was on leave. (Tr. 643).
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 underlying 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 information to offer as a witness.
(Tr. 126).
26 Lee clarified that Tafoya could serve as a witness to the proceeding and remain in the
room with Cox. (Tr. 660).
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that the Company would make her available to help with the race discrimination claim. Lee
concluded that he would speak with management about next steps, and get back to Cox. (Tr.
643–51; GC 2).
Cox forwarded Lee’s email to Tafoya for response. On October 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 investigation 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 representative, and that he discussed the
decision to bifurcate the investigation with Porter and Haught. (Tr. 658–59). 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 2).
On November 2, 2010, Lee sent an email to Cox acknowledging 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 delay 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 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 discrimination complaint alleges a
violation of the CBA. He further argues that Cox’s complaint falls within the CBA’s definition
of a grievance, thereby invoking Cox’s right to representation. (ACG 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 investigation that Cox initiated could not

27 Respondent does not argue that Cox abandoned his race discrimination complaint, and,
assuming Cox sent this e-mail (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.
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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 1). Respondent’s “Do the Right Thing” policy also contains an Equal Employment
Opportunity (EEO) provision prohibiting unlawful discrimination. (CP 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 Agreement or to the application of a specific policy to a
specific employee.” That same section permits employees to have a “Union steward” represent
them in the grievance process. Finally, Article 10 provides: “The following procedure shall be
the exclusive means by which either party may seek to resolve any dispute or grievance arising
under the provisions of this Agreement.”(JT 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 investigation of Cox’s
discrimination complaint and therefore does not confer upon him any representation rights.
Complaints regarding contract violations are generally processed as grievances. Indeed,
there is a lengthy body of caselaw that discusses when deferral to the grievance and arbitration
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 complaint, 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 Prods., 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

28 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). As Respondent asserts, 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.
29 Respondent did not present a deferral argument or analysis.
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grievance.30 It is not clear to whom Cox initially presented his discrimination complaint or
whether he asked that it be routed through any particular 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 Relations and/or the Legal Department, who
knew about the complaint, 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 evidence to refute the contractual
language that brings Cox’s complaint 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 been processed as a grievance, is also a matter of contract
interpretation. 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 adjudicated.31 The Board has consistently held that it will not defer one issue if it is
closely related to another issue that is not deferrable. Everlock Fastening Sys., 308 NLRB 1018 ,
1019, n. 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
framework 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
established a past practice of representing Unit members in the grievance process. (Tr. 31-32,
506). Accordingly, I find that Respondent violated Section 8(a)(1) by conditioning the
investigation of Cox’s discrimination complaint on his being unrepresented.
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 contended
that PNM offered to bifurcate the proceeding to permit Tafoya to serve as witness to the union
animus complaint misstates 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

30 Neither party submitted a written discrimination complaint, which leads me to infer Cox
complained orally, at least initially.
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 representation complaint alleges
interference with the grievance procedure to which the employer urges deference.
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was in reality a requirement to bifurcate in a manner that Cox believed misstated his claim. (Tr.
123, GC 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
E. Alleged Denial of Cox’s Representative of Choice by Tom Mitchell
The complaint, at paragraph 5(f), alleges that Respondent violated the section 8(a)(1)
Act as follows:
On or about March 28, 2011, the Respondent, by Tom Mitchell, 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 interview, by refusing to allow Cox to be represented
by the Union representative of his choice who was present and available.
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.
233–35). When Cox arrived, Monfiletto, Mitchell and Bert Garcia, a Union steward, were
present.36 Monfiletto informed Cox that Joan Schueller, the Business Partner for Shared
Services, reported that he had been disruptive and rude while representing an employee on a
grievance a couple 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. 235–37). According to
Monfiletto, when Cox insisted on a different representative, he was given a five-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. 235–38). After five minutes, Cox had not returned to the

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 pre-school age children); Hicks v. Gates
Rubber Co., 833 F.2d 1406 (10th Cir.1987) (sex plus race); Jefferies v. Harris Cnty. Cmty.
Action Ass'n, 615 F.2d 1025 (5th Cir.1980) (race plus gender). In a recent case, Craig v. Yale
Univ. Sch. of Med., No. 3:10cv1600(JBA), 2011 WL 6748515 (D. Conn. December 22, 2011),
the Court found the plaintiff 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 certain individuals conduct the
investigation. As Cox would not go forward without representation, however, this issue never
became ripe, and is not part of the instant complaint.
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).
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meeting. (Tr. 590) Mitchell came out and told time 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
property and he could not represent Cox at the interview. (Tr. 71, 239, 339). Cox returned to the
meeting with Garcia under protest. (Tr. 240). The CBA does not address whether the employee
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 violated 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 circumstances…” Barnard Coll., 340 NLRB 934, 935 (2003), (citing
In re Anheuser-Busch, Inc., 337 NLRB 3 (2001), enforced, 338 F.3d 267 (4th Cir. 2003), cert.
denied 541 U.S. 973 (2004), and Pac. 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 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 lunch break. The evidence showed that
the desired representative was due to return to work in 15 minutes and “there was nothing about
the allegations . . . 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 invoking Cox’s Weingarten rights, as
management had secured the presence of Union steward Bert Garcia. The fact that Garcia 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 alleges 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 activities by questioning them about
discussions employees had with Union representatives;
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(2) Threatened employees by informing them they were being taken into a
management office to be questioned 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
Respondent.
(l) On or about June 2, 2011, the Respondent, by Smyth, at the Respondent’s Edith
facility, denied the request of its employee Cox to be represented by the Union during an
interview.
The complaint, at paragraph 6, further alleges that Respondent violated 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.
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. 247–49, 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 similarly unaware that Pesce had granted Cox time to work on
grievances. Pesce had not left him a note, and nobody else had informed 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. 248–49, 261). Unaware that Cox had been granted Union time on June 2, Smyth

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.
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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; 247–49, 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 perceived as agitated. Cox called
Tafoya because he was concerned the meeting could lead to discipline. (Tr. 249–50). 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. 814-16).
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 Union 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 unfair 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 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 n. 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, including 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 activity; (2) the nature of the information sought; (3) the identity of
the interrogator, i.e., his or her placement in the Respondent's hierarchy; (4) the place and
method of the interrogation; and (5) the truthfulness of the interrogated employee's reply. See,
e.g., Sproule Constr. Co., 350 NLRB 774, 774 n. 2 (2007); Grass Valley Grocery Outlet, 338
NLRB 877, 877 n. 1 (2003), affd. mem. 121 F. App’x. 720 (9th Cir. 2005). The Board also
considers whether the interrogated employees are open and active union supporters. See, e.g.,
Gardner Eng’g, 313 NLRB 755, 755 (1994), enforced as modified on other 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 legality. Rossmore House, 269
NLRB at 1178, n. 20. Though most of the caselaw regarding interrogation arises in the context

39 A couple days later, Pesce told Smyth that Cox had let him know he had Union business
that morning. (Tr. 845).
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of organizing campaigns, the Board has found that interrogations 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, however, weigh in Cox’s favor or are neutral. The history of hostility,
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
supervisory 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 “identity of the interrogator”
factor in Cox’s favor. The place and method of the interrogation weigh in Cox’s favor. As
Montano observed, Smyth became noticeably agitated in the NSD crewroom, where other
employees were present, and then ordered Smyth to come to his office to meet with him one-on-
one. Finally, the fifth Bourne factor speaks best to interrogations 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 caselaw
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 Seating Co., 339 NLRB 191, 193 (2003);
Tawas Indus., 336 NLRB 318, 322 (2001).
Respondent argues that Cox is not susceptible to being intimidated 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
questioned him, described Cox as “very shaken up.” (Tr. 863).
As noted, both parties bear some responsibility for the multiple 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 investigating 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
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working on in the NSD crew room. There is some dispute in the testimony as to 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, “okay, as soon as you’re done come
see me in my office.” (Tr. 810–11). According to Montano, Smyth made multiple inquiries in the
NSD crew room asking specifically what union business and what grievances Cox was
investigating. When Cox did not respond, Smyth stated, in an aggressive tone, that he needed to
speak with Cox alone. (Tr. 1130–32). Cox’s recollection is consistent with Montano’s. (Tr. 247-
49). 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 employee which contradicts statements of supervisors is likely to be
particularly reliable because these witnesses are testifying adversely to their pecuniary interests.
Gold Standard Enters., 234 NLRB 618, 619 (1978); Fed. Stainless Sink Div. of Unarco Indus.,
Inc., 197 NLRB 489, 491 (1972); Gateway Transp. Co., 193 NLRB 47, 48 (1971); Ga. Rug Mill,
131 NLRB 1304, 1305, n. 2 (1961). That Smyth acted aggressively is further corroborated by
Mitchell’s testimony that Cox appeared very shaken up after the encounter with Smyth. Finally,
Montano’s testimony is more plausible than Smyth’s because what occurred in the NSD
crewroom led Cox to believe he needed representation to meet with Smyth, as evidenced by the
fact that he called Tafoya. Accordingly, I find that Cox’s statement was a threat to employees,
conveying the message that management will demand to know the substance of meetings 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 unproductive 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 7UP 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
allegations you want, nothing is going to change.” Likewise, the Board found a violation in
Mesker Door, Inc., 357 NLRB No. 59 (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 W.
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
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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 grievances 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 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 investigative interview on June 2 are inextricably intertwined, and
therefore I will address them together.
In NLRB v. J. Weingarten, Inc., 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 circumstances of the
case.” Id. at 257. The Court found the action 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 related to what I have found to be
an unlawful interrogation, coupled 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 specific facts, I do not find that Cox’s Section 7
rights were interfered 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 recommend dismissal of the allegations set forth in complaint paragraphs 5(k)(4)
and 5(1)-(n).
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c. Alleged Imposition of More Onerous Working Conditions
The complaint, at paragraph 6, alleges that Respondent violated 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 insignificant to establish the
imposition of an onerous working condition. See W.D. Manor MechContractors, Inc., 357 NLRB
No. 128, slip op. at 2 (2011); Aladdin Gaming, LLC, 345 NLRB 585, 622 (2005). I therefore
recommend dismissal of this allegation.
G. Alleged Interrogation by Gary Cash
The complaint, at paragraph 5(j), alleges Respondent violated 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 regarding their Union activities by questioning them
about discussions 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 Department
Director, stating that Stone had wanted to know what Tafoya and Cox were discussing. (Tr. 242–
43, 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 1:00 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 present 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, present. Cash informed Tafoya and Cox that
the inquiry was on behalf of a PNM Vice President. Tafoya and Cash are both clearly open and
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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 questions originated from a very high place in PNM’s organizational
hierarchy and sought to elicit information regarding employee 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 message to Cox that his activities as a Union
steward were being monitored. This would plainly tend to coerce Cox in the exercise of his and
other employees’ Section 7 rights, and I therefore find Cash conducted an unlawful interrogation
in violation of Section 8(a)(1).
H. Marie Plant Interview
The complaint, at paragraph 5(a) and (b), alleges that Respondent 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 located in Belen, New Mexico, herein called the
Respondent’s Belen facility, and threatened employees with unspecified reprisals because
they engaged in union and other concerted activities.
(b) On or about October 7, 2010, the Respondent, by Garcia and Chris Jaramillo, herein
called Jaramillo, at the Respondent’s Belen facility, denied the request of its employee
Marie Plant, herein called Plant, to be represented by the Union during an interview.
1. Facts
Marie Plant works in PNM’s Belen office as a collector. She reports to Chris Jamarillo,
who works in Albuquerque. Jamarillo visits the Belen office a couple times a month. (Tr. 715–
17). 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. 683–86).
Joann Garcia, the human resources consultant for marketing and customer service, conducted the
factfinding investigation, and Jamarillo was also present. At some point, Plant asked for a
restroom 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 non-Union 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. 699–70). Prior to
the meeting, Garcia had consulted with labor relations, and they determined Plant would not be
investigated or disciplined in connection with the email. (Tr. 701).

40 While the individuals who ordered and/or did the questioning may not have known with
certainty that Tafoya and Cox were discussing employee grievances, this is obviously a
foreseeable topic of discussion between a steward and business agent.
41 Montoya’s first name is Jason but he goes by Mike, his middle name. (Tr. 210).
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On October 7, 2010, Jamarillo and Garcia were at the Belen complaint 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 Garcia also
participated in the meeting. (Tr. 178, 687, 719). According 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 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.
According 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 because
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 provide
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 Mr. Wisneski. There were a couple of follow up
meetings but the parties maintained their respective positions. (JT 3; Tr. 537).

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 B).
43 Plant elaborated on this comment occurring in the context of being 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,
212-13).
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. 557-58).
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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 reprisals Garcia made to Plant or any employees because they
engaged in Union or other concerted activities. The Acting General Counsel likewise does not
make an argument to support this allegation in its brief. Accordingly, I recommend dismissal of
complaint paragraph 5 (a).
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 representation, as the right to such
representation is triggered only upon request. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 257
(1975). In Sw. Bell Tel. 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 Ill. Bell Tel. 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 requested 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 Garcia’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 representative, 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 Montoya 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 meeting might turn into something that would
trigger Weingarten rights:
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Indeed, if the employer engages in any conduct beyond merely informing the employee
of a previously made disciplinary decision, the full panoply of protections accorded the
employee 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 action, 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
compensation, such conduct would remove the meeting from the narrow 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 conversation 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 paragraph 5(b)–(d).
I. Requests for Information
The Acting General Counsel Alleges that Respondent violated 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 relationship 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 Indus. 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 collective-bargaining agreement, (b)
enforcing provisions of a collective-bargaining agreement, and (c) processing grievances. Am.
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 Mar. Corp., 292 NLRB 236 (1985). 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 violation 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), enforced, 603
F.2d 1310 (8th Cir. 1979).
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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. U.S. Postal Serv., 337 NLRB 820, 822 (2002). “The [labor organization] is
entitled to the information in order to determine whether it should exercise its representative
function in the pending matter, that is, whether the information will warrant further processing of
the grievance or bargaining about the disputed matter.” Ohio Power Co., 216 NLRB 987, 991
(1975), enforced, 531 F.2d 1381 (6th Cir. 1976).
Information concerning employees in the bargaining unit and their terms and conditions
of employment, is deemed “so intrinsic 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 furnished on
request to employees' collective-bargaining representatives unless the employer establishes
legitimate affirmative defenses to the production of the information. Metta Electric, 349 NLRB
1088 (2007); U.S. 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 material sought. Disneyland Park, 350 NLRB at1257; Richmond Health Care,
332 NLRB 1304, 1305, n. 1 (2000).
1. E-mail Regarding Marie Plant
The complaint, at paragraph 8(a), alleges that the Union violated Section 8(a)(1) by
failing to provide the following information:
Since on or about October 7, 11, 18 and 25, 2010, the Union, by oral and written
requests, has requested that the Respondent 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 e-mail are discussed fully in context above.
I find that the Acting General Counsel has not established that the e-mail 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 fact-
finding related to potential discipline related to Plant. (Tr. 537-38). No grievance was filed, and
presently there is no potential grievance, as Plant was not aggrieved. I agree with Respondent’s
position that the e-mail may become relevant if, in the future, Plant is subject to investigation or
discipline in connection with the e-mail. The mere potential for such, however, is not enough to
render the e-mail relevant to the Union’s representational 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.
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Based on the foregoing, I recommend dismissal of the allegation set forth in paragraph
8(a).
2. Medical Appointments and Paid Time Off
Paragraph 8(b) of the complaint alleges that the Union violated Section 8(a)(1) when it
failed to provide information regarding non-unit employees who were disciplined under
Respondent’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)
balance. (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 appointments for employees bargaining unit or non bargaining unit
who are subject to the Company’s PTO policy
• The total number of medical appointment 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 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 supervisor.
• 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 5). Respondent provided the information of Unit employees but omitted any
information pertaining to non-Unit employees. Tafoya requested the information pertaining to
non-Unit 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 non-
Unit employees, it was incumbent for the Union to have established the relevancy of such
material. In this regard, “to demonstrate relevance, the General Counsel must present evidence
either (1) that the union demonstrated 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.
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As in the requests at issue before Judge Litvack, Tafoya explained that PNM’s internal
paid time off (PTO) policy applied to Unit employees and non-Unit 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 differences between Unit and non-Unit employees, such as the
requirement to join the Union, the at-will status of non-Unit employees 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 differences, 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 non-Unit employees involving other rules and
policies at PNM that applies to all employees. Pub. Serv. Co. of N.M., 356 NLRB No. 160
(2011). See also U.S. Postal Serv., 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 information to support a disparate
treatment theory based on differences between Union and non-Union 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. U.S.
Postal Service, supra (information request regarding supervisor’s attendance relevant to Union’s
claim of disparate treatment 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 non-Union 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 non-
Unit employees. This, however, was not used as a justification for denying Tafoya’s request and
no evidence was presented to support this defense.46 Respondent further argues that, under the
CBA’s terms, information regarding non-Unit employees is always irrelevant. This contention 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 policy 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 universe of potential grievances.
After reviewing the record as a whole, the Union demonstrated, through Tafoya’s letter,
the relevance of its requests insofar as they concerned information regarding non-Unit
employees. Pub. Serv. Co. of N.M., 356 NLRB No. 160; U.S. Postal Serv.,310 NLRB 391, 392

45 Respondent cites to Tafoya’s knowledge of its “standing objection” to providing
information on non-Unit employees, based in part on Judge Litvack’s decision. That decision,
however, found that PNM delayed in providing requested information on non-Unit employees.
The Board affirmed this decision in May 2011. 356 NLRB No. 60 (2011). The blanket standing
objection is apparently misplaced.
46 The request does not seek any medical documentation or any specific medical information.
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(1993); U.S. Postal Serv., 301 NLRB 709, 711–712 (1991);. As such, I find that PNM’s failure
to provide this information violates Section 8(a)(1) of the Act.
3. Rex Foss Discipline
Paragraph 8(c) alleges that Respondent violated Section 8(a)(1) of the Act when it did not
provide information in connection with the following request:
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 2). Tafoya requested information regarding employees who had
been disciplined for safety violations. 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 non-Unit
employees. (Tr. 538–39). 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 medical appointments and PTO of
non-Unit employees relevant, I find the information regarding Foss’s discipline is relevant. See
Public Serv. Co. of N.M. 356 NLRB No. 60 (2011); See also U.S. Postal Serv., 332 NLRB 635
(2000). With regard to Respondent’s argument that the issue has been previously litigated, 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. Accordingly, 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 furnish 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
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observations. (Tr. 285). On January 27, 2011, Tafoya sent the following request for information
to Castro:
ï‚· Who from management met with employees to discuss the reasons for the changes?
ï‚· Who were the employees management met with?
ï‚· When and where did these meetings take place?
ï‚· What were the reasons for changes that management gave to the employees that they met
with?
(JT 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. 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 provided some information to Tafoya on February 2,
including the crew change schedule, and noted in non-specific fashion that any other information
either did not exist or was not relevant. (Tr. 546; JT 7). Tafoya followed up on February 3,
noting what he perceived as holes or deficiencies. (JT 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. 840–41). Another
reason was that the craft supervisor, Mark Martinez, had requested that Cox move to his group.
(Tr. 853–54). In addition, 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 alleging that the crew changes
were made to retaliate against some of his members for their outspokenness. (Tr. 92).
Respondent asserts that “apparently” no grievance was filed on the issue. (R Br. 50). Tafoya
stated he filed one, and Castro stated 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 discretion 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 grievance’s merits, not to whether it needs
to respond to an information request. See Island Creek Coal Co., 292 NLRB 480, 487 (1989),
enforced, 899 F.2d 1222 (6th Cir. 1990)(unpublished table decision) (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 representation function and concerned
changes to the work assignments of Unit members, I find it was presumptively relevant, and
Respondent’s failure to provide a full response violates Section 8(a)(1).
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5. Safety Manual Violations and Discipline
Paragraph 8(e) asserts that Respondent violated Section 8(a)(1) by filing to respond to an
information request as follows:
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 non-Unit 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 beginning 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 4). Tafoya filed a
grievance on behalf of Nunn. (Tr. 98). Tafoya requested the information above in an e-mail to
Castro dated December 2, 2010. (JT 4). Castro provided information related to Unit employees,
but did not provide information regarding non-Unit 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
analysis set forth in the section above regarding the request information related to medical
appointments and paid time off. Accordingly, I find Respondent violated Section 8(a)(1) by
failing to provide information regarding non-Unit employees.
6. Policy Requiring Management’s Approval for Visitors
Paragraph 8(f) of the complaint alleges a violation of Section 8(a)(1) for failure to
respond to the following information request:
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Since on or about January 11 and February 9 and 11, 2011, the Union, by oral and written
request, respectively, has requested that the Respondent furnish the Union with the
following 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 response, Castro stated that the January 15, 2009 Security and
Access Control memo from the General Services Group/Security specifies the access control,
and provided him with a copy of it. (Tr. 574; JT 2; CP 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 visitors 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. Employees
will be required to pick up and return visitors at either the main service gate (E-4) or the
front lobby of the Administration Building. Visitor badges should be returned to Security
at the end of the visit.
(Tr. 99; JT 2-1; Schmidt decision at 42).
Castro also sent Tafoya an e-mail 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 approval 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 responses.” (JT 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
management’s permission to escort visitors onto the ESC premises. (Tr. 573).
b. Analysis and Conclusion
Respondent did not raise a relevancy argument, and the request for this information
plainly relates to the Union’s access to represent its members. I therefore find it is relevant.
Respondent 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 e-mails comprised the response,
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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, particularly since the policy is silent as to
any requirement for management to approve visitors. The additional response that employees
must check with their supervisors before deviating from their work assignments is likewise non-
responsive, as Tafoya had previously accessed the facility without management’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 baffling. 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 question 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)(1) 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 information regarding absences. The specific requests are detailed
below.
a. Facts
In the Fall of 2010 meter readers were told they were required to work mandatory
overtime on Saturdays. The Union, through Tafoya, filed a grievance. (Tr. 92–93, 100). On
February 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
information he did receive raised an issue with regard to absences and employee discipline that
he wanted to investigate. Specifically, 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 3) If the Supervisor did not
approve an employee’s request, the employee was charged with an unscheduled absence. (Tr.
102). Under Respondent’s Absences From Work policy, employees charged with unscheduled
absences can use their PTO if available. (CP 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:
ï‚· 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.
ï‚· 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.
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ï‚· The names classifications and work locations of any and all PNM employees,
bargaining unit or non bargaining 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 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 non-Unit
employees. (JT 8; CP 3).
Castro, who left PNM on April 9, 2011, testified at the hearing that she had meetings
with Tafoya regarding the Saturday-schedule issue, and she thought she had responded to the
request. (Tr. 548). There is no record evidence of a response.
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 employees. With regard to the other
employees, the Acting General Counsel has established that Union and non-Union employees
were subject to the same absence policy. (CP 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 request. However, no response
was submitted, and Castro offered 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)(1) by failing
to respond to this information request.
8. Denial of Tafoya Visit Before Work
Lastly, paragraph 8(h) alleges that Respondent violated Section 8(a)(1) 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. 901–02). 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. 904–06). 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:
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ï‚· The names of the Company management that made the decision to deny me access to the
service center before normal working hours.
ï‚· 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 request for the names of the managers
involved, and that PNM did not rely on any documentation. He advised Tafoya to explain the
relevance of this information and stated that he would then consider the request. (JT 9).
b. Analysis and Conclusion
Oldham responded, on April 7, 2011, that no documents were relied upon in making the
decision at issue. (JT 9). Accordingly, I recommend dismissal of this part of the complaint
allegation.
With regard to the names of the managers that decided to deny 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 relevant. 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. Nat’l
Sea Prods., 260 NLRB 3 (1982). Tafoya did not respond to Oldham’s request to explain the
relevance of the information, and no explanation was elicited at the hearing. Accordingly, neither
the Acting General Counsel nor the Union established the relevance of the information
requested.
The relevance burden may be established by showing that a logical foundation and a
factual basis exist for such an information 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 responsibilities. U.S. Postal Serv.,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
premises, 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 Section 2(2), (6), and (7) of the Act.
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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, Transmission, Distribution,
Production, Meter Reader, and Collector departments in the divisions and jobs referenced
in Respondent’s collective-bargaining agreement with the Union effective by its terms
from May 1, 2009, through April 30, 2012.
3. By failing to provide Local 611 with the following relevant 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
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 supervisor;
(b) 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;
(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 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”; and
(e) 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
bargaining 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, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and
(5) of the Act.
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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 violated
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 representative, 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 labor practices alleged this
consolidated proceeding.
11. The unfair labor practices described above affect commerce 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 designed to effectuate the policies of the Act.
Affirmatively Respondent must forthwith furnish the information necessary and relevant
to the performance of Local 611’s duties as the exclusive collective bargaining representative of
Respondent’s employees that it unlawfully withheld.
Respondent must restore the method of processing the informal step of the grievance
procedure set forth in the collective 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 substantially
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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 existed from January until August 2009.47 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 equivalent to that which existed
from January until August 2009 until it negotiates alternate access procedures 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 equivalent 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.
Respondent must process employee Eric Cox’s discrimination 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.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended48
ORDER
The Respondent, Public Service Company of New Mexico, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
a. Refusing to bargain with Local 611 as the exclusive representative of the
employees in the following appropriate unit:
All employees of the Respondent’s Electric, Water, Transmission, Distribution,
Production, Meter Reader, and Collector departments in the divisions and jobs
referenced in Respondent’s collective-bargaining agreement with the Union effective
by its terms from May 1, 2009, through April 30, 2012.

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.
48 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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b. Refusing to provide Local 611 with the information it requests that is necessary
and relevant to the performance of its duties as the exclusive collective bargaining representative
of the employees in the above unit.
c. Changing past practices that affect the terms and conditions of employment of its
employees in the above unit without the prior consent of Local 611 or a lawful impasse in
negotiations over any proposed change.
d. Coercively interrogating any employee about the union activities of that employee
or any other employee.
e. Threatening employees for engaging in union activity.
f. Denying employees the right to have Union representation for complaints covered
by the collective bargaining agreement’s grievance procedure;
g. Denying employees the right to have the available Union representative of their
choice represent them during investigatory interviews
h. In any like or related manner interfering with, restraining, or coercing employees
inthe 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. Within 14 days of this Order, provide Local 611 with the following information
necessary and relevant to the performance of its representative functions:
(i) 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 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 supervisor;
(ii) 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;
(iii) information pertaining to crew changes, including who from management made
the decisions and how employees were informed of the decisions;
(iv) 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
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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”; and
(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 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 bargaining 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.
b. Within 14 days of this Order, restore the method of processing the informal step of
the grievance procedure set forth in the collective bargaining agreement as it existed prior to
July 2011, or in the event Respondent has altered its manner of processing the informal step,
process informal grievances in a manner substantially equivalent to that which existed prior to
July 2011.
c. Within 14 days of this Order, restore the access Local 611 agents had to its Electric
Service Center facility in Albuquerque, New Mexico, to that which existed from January until
August 2009, or in the event Respondent has generally altered its access procedures, provide
Local 611 agents with a form of access substantially equivalent to that which existed between
January and August 2009.
d. Within 14 days of this Order, restore the access Local 611 agents had to its San
Juan Generating facility in Farmington, New Mexico, to that which existed prior to changes
implemented in the summer of 2011, or in the event Respondent has generally altered its access
procedures, provide Local 611 agents with a form of access substantially equivalent that which
existed prior to the changes in the summer of 2011.
e. Within 14 days of this Order, commence investigation of Eric Cox’s discrimination
complaint in accordance with the terms of the collective bargaining agreement, permitting him to
be represented by the Union representative of his choice.
f. Within 14 days after service by the Region, post at its facilities located in the State
ofNew Mexico, copies of the attached notice marked “Appendix.”49 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 and maintained for 60 consecutive days in conspicuous

49 If this Order is enforced by a judgment of a 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.”
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places including all places where notices to employees are customarily posted. In addition to
physical posting of paper notices, the notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed a facility involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former employees of
Respondent at any time since March 31, 2009.
g. Within 21 days after service by the Region, file with the Regional Director a sworn
certification 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.
IT IS FURTHER ORDERED that the consolidated complaint be dismissed insofar as it
alleges violations of the Act not specifically found.
Dated, Washington, D.C., June 22, 2012.
_________________________
Eleanor Laws
Administrative Law Judge
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 violated 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain with Local 611 as the exclusive representative of our
employees in the following appropriate unit:
All employees of the Respondent’s Electric, Water, Transmission, Distribution,
Production, Meter Reader, and Collector departments in the divisions and jobs referenced
in Respondent’s collective-bargaining agreement with the Union effective by its terms
from May 1, 2009, through April 30, 2012.
WE WILL NOT refuse to provide Local 611 with the information it requests that is necessary
and relevant to the performance of its duties as the exclusive collective bargaining representative
of the employees in the above unit.
WE WILL NOT refuse to bargain collectively with the Union by unilaterally changing our past
practice in order to prohibit Edward Tafoya and Shannon Fitzgerald, the nonemployee Union
Assistant Business Managers, from having access to the facilities.
WE WILL NOT change past practices that affect the terms and conditions of employment of our
employees in the above unit without the prior consent of Local 611 or a lawful impasse in
negotiations over any proposed change.
WE WILL NOT interrogate employees concerning their and other employees union or
protected/concerted activities.
WE WILL NOT deny employees the right to Union representation during investigatory
interviews covered by Weingarten or during the processing of employee complaints covered by
the grievance procedure in the collective bargaining agreement.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL restore the manner in which supervisors process the informal step of the grievance
procedure that existed prior to July 2011.
WE WILL restore the access Local 611 agents had to our Electric Service Center facility in
Albuquerque, New Mexico, to that which existed from January until August 2009.
WE WILL restore the practices and conditions prevailing before July 15, 2011 in Farmington,
regarding the Union’s access to our property for purposes of discharging its function as the
representative of our employees.
WE WILL permit Unit employees to have the available Union representative of their choice
represent them in investigatory interviews under Weingarten and in any complaint that falls
within the definition of a grievance in the collective bargaining agreement.
PUBLIC SERVICE COMPANY
OF NEW MEXICO
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.