El Paso Electric Co.

National Labor Relations Board - Board Decisions

Aug 18, 2010

355 N.L.R.B. 544 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 95
544
El Paso Electric Company and International Broth-
erhood of Electrical Workers, Local Union 960,
AFL–CIO. Cases 28–CA–21111, 28–CA–21217,
and 28–CA–21309
August 18, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On September 21, 2007, Administrative Law Judge
George Carson II issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief. The
Respondent filed cross-exceptions, a supporting brief,
and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions, as further discussed below, and to adopt
the recommended Order as modified below.
We affirm the judge’s conclusion that the Respon-
dent’s CEO, Gary Hedrick, violated Section 8(a)(5) of
the Act by dealing directly with a bargaining unit em-
ployee about a contract proposal that was the subject of
ongoing negotiations with the Union.2 This issue arose
from an encounter between employees and Hedrick on
the evening of October 24, 2006. At that time, a bargain-
ing session was taking place inside an El Paso office

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s recommendation to dismiss
complaint allegations 6(a), 7(b), (e), (j), (k), (l), (n), and (o).
2 With respect to all other issues contested before us, we affirm the
judge’s conclusions for the reasons set forth in his decision, except that
in affirming the judge’s conclusion that Sec. 10(b) bars the allegation
that the Respondent violated Sec. 8(a)(5) by unilaterally changing its
lunch and breaktime rule, we find that the Union’s filing of a grievance
on May 18, 2006, without more, proves that it had actual notice of the
rule change outside of the 6-month limitations period.
In affirming the judge’s finding that the Respondent violated Sec.
8(a)(5) by making a material, substantial, and significant change in
employee work preparation time when it required employees to leave
the work yard 5 minutes earlier in the morning, we disagree with our
dissenting colleague’s interpretation of the testimony of employee
Alfredo Gardea. We find that the more reasonable interpretation of
Gardea’s testimony is that, before and after the change, work prepara-
tion takes 20 to 25 minutes, but employees were now being required to
do that work in 15 minutes. Absent evidence that Gardea or any other
employee was failing to comply with this requirement, the lack of
disciplinary action is insignificant.
building. A group of employees gathered outside the
building to demonstrate support for their union negotia-
tors. When Hedrick arrived with his wife for dinner at a
nearby restaurant, the employees saw him and began to
chant his name. Hedrick approached them while his wife
went inside the restaurant.
According to the credited testimony of employee
Roseanne Enriquez, Hedrick quieted the group and said,
“[H]e was there to find out what our concerns were, to
find out what it is we wanted.” Enriquez asked him
about the Respondent’s driving policy proposal, which
provided that if an employee required to drive on the job
was uninsurable or ineligible to drive due to the em-
ployee’s driving history or medical condition, the Re-
spondent could adjust the employee’s wages commensu-
rate with the duties performed.3 Enriquez complained
that the Respondent’s proposal was too ambiguous.
Hedrick answered that he understood the policy involved
“a matter of insurability and—being able to certify driv-
ers.” Hedrick told Enriquez that “he’d check into it.”
Enriquez, who was not part of the Union’s negotiating
team, said that if Hedrick “would get that driving policy
changed, he’d get a signed contract.”
Union negotiators heard about Hedrick’s presence and
joined the group about 15 minutes after Hedrick’s arri-
val. Although Hedrick spoke with employee negotiator
Linda Montes about a subcontracting proposal, there is
no evidence that he discussed the driving policy proposal
with any negotiator. However, as Hedrick left the scene,
he again told Enriquez that he would “check into that
driving policy.”
Enriquez further testified that she phoned Hedrick on
October 27 and asked him if he had had a chance to
study the driving policy. According to Enriquez, Hed-
rick said, “[T]hat he had seen the policy and that it was
what he thought, that it was insurability and certify-
ability [sic], but that he, also, agreed that the wording
was too ambiguous. And he told me, I’ve told them [Re-
spondent’s negotiators] to tighten up the language and
resubmit it.”
Hedrick admittedly met with the Respondent’s nego-
tiators on October 25. He testified that the negotiators
gave him a bargaining update and he told them about his
encounter with the picketers. When asked by the Re-
spondent’s counsel if he directed the negotiators to pur-
sue a particular strategy with respect to any issues dis-
cussed with the picketers, Hedrick acknowledged dis-
cussing some of these issues, but said that in the end the
discussion did nothing to change “our existing course.”

3 The Union had rejected this proposal at the parties’ previous bar-
gaining session on October 18.
EL PASO ELECTRIC CO. 545
He said the discussion was “just to confirm in my own
mind my understanding [that] our position was correct.”
Although there is no indication that the driving policy
was discussed at the October 24 bargaining session, at
the next session on November 6, the Respondent submit-
ted a revised proposal which stated that in cases of unin-
surability or ineligibility due to “the employee’s medical
condition, the Company will address the situation as ap-
propriate and may reassign the employee.” A November
7 negotiations update email from the Respondent’s pub-
lic relations department to employees said that the Re-
spondent had continued to “preserve the substance of its
prior [overall contract] proposal, except for a concession
on its Driving proposal, where the Company removed the
wage adjustment for medical conditions.”
The established criteria for finding that an employer
has engaged in unlawful direct dealing are “(1) that the
[employer] was communicating directly with union-
represented employees; (2) the discussion was for the
purpose of establishing or changing wages, hours, and
terms and conditions of employment or undercutting the
Union’s role in bargaining; and (3) such communication
was made to the exclusion of the Union.” Permanente
Medical Group, 332 NLRB 1143, 1144 (2000), citing
Southern California Gas Co., 316 NLRB 979 (1995).
Although the judge did not specifically mention these
criteria in his analysis, Enriquez’ credited testimony
clearly shows that criteria (1) and (3) were met because
Hedrick twice communicated directly with her to the
exclusion of the Union; first, while she was picketing
with other employees on October 24 prior to the arrival
on the scene of union negotiators, and again in a tele-
phone conversation on October 27.
As for the second criterion, the credited testimony
shows that Hedrick asked the employees what they
wanted, even as contract negotiations were simultane-
ously taking place inside the building where the Union’s
supporters were gathered. Then, on two occasions Hed-
rick and Enriquez discussed the Respondent’s driving
policy proposal, a mandatory bargaining subject which
covered possible wage adjustments and discipline if an
employee required to drive on the job was uninsurable or
ineligible to drive due to the employee’s driving history
or medical condition. On October 24, Enriquez told
Hedrick that the proposal was “too ambiguous” and “if
he would get that driving policy changed, he’d get a
signed contract.” On October 27, Hedrick told Enriquez
that he had “told them [Respondent’s negotiators] to
tighten up the language and resubmit it.”
It is immaterial whether Enriquez saw the revised driv-
ing policy proposal the Respondent submitted to the Un-
ion on November 6 or whether that proposal represented
the “tightening” envisioned by Enriquez. What matters
is that Hedrick invited unit employees’ comments about
what they wanted and responded to Enriquez’ sugges-
tions for modification of a proposal that the Union had
already rejected at the bargaining table. “[A]n employer
has a fundamental right . . . to communicate with its em-
ployees concerning its position in collective-bargaining
negotiations,” United Technologies Corp., 274 NLRB
1069, 1074 (1985), but is obligated “to deal with the em-
ployees through the union, and not with the union
through the employees.” General Electric Co., 150
NLRB 192, 195 (1964). In this case, Hedrick dealt with
the Union through Enriquez, thereby undercutting the
Union’s status as exclusive bargaining representative, in
violation of Section 8(a)(5) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, El Paso
Electric Company, El Paso, Texas, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs accordingly.
“(a) Before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:

“Including: The employees of El Paso Electric Com-
pany working in the following classifications in the
Power Supply Operating Departments: Janitors,
Apprentice Operator, Operator, Inside Operator, Senior
Operator, and Working Supervisor; the employees of
El Paso Electric Company working in the following
classifications in the Power Supply Division Mainte-
nance Department: Insulator, Helper, Helper/Appren-
tice, Apprentice Mechanic, Apprentice Electrician, Ap-
prentice Laboratory Technician, Apprentice Instrumen-
tation Technician, Mechanic, Electrician, Laboratory
Technician, Instrumentation Technician, Electronic
Specialist, Predictive Maintenance Technician, Work-
ing Supervisor, Vibration Specialist, Level II, Vibration
Specialist, Level III, and Working Supervisor-Vibra-
tion Specialist; the employees of El Paso Electric
Company working in the following classifications in
the Transmission and Distribution Division, Distri-
bution Construction, Distribution Operations,
Transmission Design and Maintenance: Helper,
Helper/Apprentice, Apprentice Lineman, Apprentice
Cable Splicer, Apprentice Equipment Operator, Line-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546
man, Cable Splicer, Equipment Operator, and Working
Supervisor; the employees of El Paso Electric Com-
pany working in the following classifications in the
Transmission and Distribution Division Meter Test-
ing/Service: Helper, Helper/Apprentice, Apprentice
Meter Technician, Meter Technician, Meter Laboratory
Specialist, Service Worker, Inspector-Wiring and Me-
ter Service Order Worker, and Working Supervisor; the
employees of El Paso Electric Company working in the
following classifications in the Transmission and Dis-
tribution Division Substation and Relay Depart-
ment: Helper, Helper/Apprentice, Apprentice Electri-
cian, Apprentice Equipment Operator, Apprentice Re-
lay Technician, Equipment Operator, Electrician, Relay
Technician, Relay Specialist, and Working Supervisor;
the employees of El Paso Electric Company working in
the following classifications in the Transmission and
Distribution Division Communications Department:
Helper, Helper/Apprentice, Apprentice Communica-
tion Technician, Communication Technician, and
Working Supervisor; the employees of El Paso Electric
Company working in the following classifications in
the Administrative Division Garage Section: Janitor,
Helper, Tool and Material Handler, Senior Tool and
Material Handler, Apprentice Mechanic, Mechanic,
Technician, and Working Supervisor; the following
employees of El Paso Electric Company working in the
following classifications in the Treasury Services
Warehouse Section: Fuel Handler, Warehouse Helper,
Tool and Material Handler, Senior Tool and Material
Handler, Material Handler, Senior Material Handler,
Material Truck Operator, Working Supervisor, and
Working Supervisor-Power Supply; and Miscellane-
ous: Laborer (Temporary), and Laborer (After 1 Year)
employees; all full-time and regular part-time Meter
Readers, and Collectors, Technician-Sr. Electri-
cal/Technician-Sr. HVAC/Technician-Jr. Electrical/
Technician-Sr. Maintenance/Technician-Maintenance/
Clerk-Facilities Services VI; and all full-time and regu-
lar part-time Customer Service Representatives I, II, III
and Customer Service-Clerk-Telephone Center em-
ployees employed by the El Paso Electric Company at
the telephone center at 100 N. Stanton, El Paso, Texas,
and the outlying offices including Chelmont, Fabens
and Van Horn, Texas, and Anthony, Hatch, and Las
Cruces, New Mexico.

Excluding: All other employees, office clerical em-
ployees, dispatchers, professional employees, guards
and supervisors as defined in the Act.”

2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER SCHAUMBER, dissenting in part.
Contrary to my colleagues, I would reverse the judge’s
findings that the Respondent violated Section 8(a)(5) of
the Act by (1) unilaterally changing the amount of time
allowed for its service department employees to leave the
yard in the morning, and (2) directly dealing with unit
employees.1 I shall consider these issues in turn.
1. On June 2, 2006,2 John Day took over from Jack
Diehl as the supervisor of the Respondent’s service de-
partment employees at its Las Cruces, New Mexico facil-
ity. Prior to June 2, employees could take between 20–
25 minutes to leave the yard after the morning meeting.
At the morning meeting on June 2, with Diehl present,
Day announced that he expected employees to leave the
yard within 15 minutes after the end of the morning
meeting. The majority adopts the judge’s finding that the
Respondent violated Section 8(a)(5) by unilaterally
changing the time employees had to leave the yard from
20 minutes to 15 minutes. I disagree.
Alfredo (Fred) Gardea, the only service department
employee to testify about this issue, testified that prior to
June 2 “it would take 20, 25 minutes” to get ready to
leave the yard after the morning meeting. Gardea then
testified that “[i]t still does” and that “[i]t’s kind of hard
to do it in 15 minutes.”
In finding that the new rule effectively shortened
preparation time by 5 minutes, the judge relied only on
Gardea’s testimony that preparations “would take 20, 25
minutes . . . [and] [i]t’s kind of hard to do it in 15 min-
utes.” The judge did not discuss Gardea’s testimony that
“it still does” take “20, 25 minutes.” Further, the judge
did not refer to Gardea’s testimony that he has never
been disciplined for violating the 15-minute rule or
Diehl’s testimony that he did not think that Day made
any changes to the work rule on June 2.
The Respondent asserts that the import of Gardea’s
testimony is that it took Gardea 20 to 25 minutes to get
out of the yard before Day took over and it still takes him
that long. In my view, this is an entirely reasonable in-
terpretation of Gardea’s testimony in light of his further
testimony that “[i]t’s kind of hard to do it in 15 minutes.”
Since the Respondent has not disciplined Gardea or any
other service department employee for taking that
amount of time after the introduction of the 15-minute
rule, and Dahl testified that Day made no changes, I
would find that the Respondent allowed the employees to
take the same amount of time to leave the yard in the
morning after June 2 as it did before and that Day’s
June 2 announcement did not constitute a “material, sub-

1 I agree with my colleagues as to the disposition of all other issues.
2 All dates refer to 2006.
EL PASO ELECTRIC CO. 547
stantial, and significant” change in the time allotted to
leave the yard in the morning.3 I would reverse the judge
and dismiss this allegation.
2. Contrary to my colleagues, I would also find that the
evidence does not support the judge’s finding of direct
dealing by the Respondent’s CEO, Gary Hedrick. While
the majority correctly states that the Employer communi-
cated twice with employee Enriquez, it does not explain
that the communications were instigated principally by
the employee, nor does it sufficiently focus, in my view,
on the nature of the communications.
On October 24, Gary Hedrick, the Respondent’s CEO,
was on his way into a restaurant with his wife when he
heard a group of employees chanting his name. The em-
ployees were waiting outside a nearby building where
negotiations for a new collective-bargaining agreement
were in progress. Walking over to the group, Hedrick
asked the employees what they wanted. Employee Rose-
anne Enriquez testified that since Hedrick was standing
in front of her, she initiated a conversation by telling him
that the language of the Respondent’s driving policy, a
specific bargaining proposal, was “too ambiguous.”
Hedrick responded that his understanding of the driving
policy was one of insurability and being able to certify
drivers, and that “he’d check into it.” According to
Enriquez, when asked why negotiations were taking so
long, Hedrick responded that “he wasn’t dealing with
that, that he had employees that were taking care of that.”
At some point, the union’s negotiators, who had learned
that Hedrick was outside, came out and joined the group.
Hedrick discussed their concerns also, including those of
employee/negotiator Linda Montez.4 As Hedrick left the
group, he told Enriquez that he would “check into that
driving policy.”
On October 27, Enriquez made an unsolicited call to
Hedrick to inquire about the driving policy. Hedrick
responded that he had checked into it and that he had told
the negotiating team to “tighten up the language and re-
submit it.” At the November 6 negotiating session, the
Respondent submitted a revised driving policy proposal
that included a concession—it removed a wage adjust-
ment for medical conditions.
The conduct at issue here falls far short of “[G]oing
behind the back of the exclusive bargaining representa-

3 As explained in Pan American Grain Co., 343 NLRB 318, 331
(2004):
The Board has made clear that in order to constitute a unilateral
change that violates the Act, the employer’s action must be a material,
substantial, and significant change that has a real impact on, or causes
a significant detriment to, the employees or their working conditions.
4 At sec. II,C of his decision, the judge used the terms “callous” and
“executive greed” to describe certain of Hedrick’s remarks to Montez.
I find these comments inappropriate and disavow them.
tive to seek the input of employees on a proposed change
in working conditions.” Allied-Signal, Inc., 307 NLRB
752, 753 (1992). In Allied-Signal, for example, without
even notifying the union, the employer formed an em-
ployee task force to discuss the limits on management’s
proposed smoking ban and any penalties that might be
imposed for violating it. And in General Electric Co.,
150 NLRB 192, 195 (1964), cited by the majority, the
employer used a broad-based direct marketing campaign
to employees away from the bargaining table to promote
support for its bargaining proposals and to disparage any
conflicting proposals by their union bargaining represen-
tative. Nothing like that happened here. Instead, as
would any good employer interested in the concerns of
his employees, Hedrick took the time to listen to
Enriquez’ inquiries and to respond to them. Since the
inquiries concerned a subject of bargaining, Hedrick’s
responses were brief and vague. In sum, Hedrick
showed concern for an employee, not the subject of bar-
gaining about which she inquired, which at all times re-
mained exclusively within the province of the Union’s
representatives to negotiate with the Respondent.
Under these circumstances, Hedrick’s conduct surely
did not undercut the Union’s role in bargaining. I would
therefore dismiss the allegation that the Respondent en-
gaged in direct dealing with employees in violation of
Section 8(a)(5) of the Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain with the International
Brotherhood of Electrical Workers, Local Union 960,
AFL–CIO, the exclusive collective-bargaining represen-
tative of the employees in the unit, by directly dealing
with you regarding proposals being negotiated by your
Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 548
WE WILL NOT unilaterally, without notice to or bar-
gaining with the International Brotherhood of Electrical
Workers, Local Union 960, AFL–CIO, reduce the prepa-
ration time allowed to bargaining unit employees in the
service department at Las Cruces, New Mexico, who are
represented by that Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of you in the exercise of
your rights set forth above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:

Including: The employees of El Paso Electric Com-
pany working in the following classifications in the
Power Supply Operating Departments: Janitors,
Apprentice Operator, Operator, Inside Operator, Senior
Operator, and Working Supervisor; the employees of
El Paso Electric Company working in the following
classifications in the Power Supply Division Mainte-
nance Department: Insulator, Helper, Helper/Appren-
tice, Apprentice Mechanic, Apprentice Electrician, Ap-
prentice Laboratory Technician, Apprentice Instrumen-
tation Technician, Mechanic, Electrician, Laboratory
Technician, Instrumentation Technician, Electronic
Specialist, Predictive Maintenance Technician, Work-
ing Supervisor, Vibration Specialist, Level II, Vibration
Specialist, Level III, and Working Supervisor-Vibra-
tion Specialist; the employees of El Paso Electric
Company working in the following classifications in
the Transmission and Distribution Division, Distri-
bution Construction, Distribution Operations,
Transmission Design and Maintenance: Helper,
Helper/Apprentice, Apprentice Lineman, Apprentice
Cable Splicer, Apprentice Equipment Operator, Line-
man, Cable Splicer, Equipment Operator, and Working
Supervisor; the employees of El Paso Electric Com-
pany working in the following classifications in the
Transmission and Distribution Division Meter Test-
ing/Service: Helper, Helper/Apprentice, Apprentice
Meter Technician, Meter Technician, Meter Laboratory
Specialist, Service Worker, Inspector-Wiring and Me-
ter Service Order Worker, and Working Supervisor; the
employees of El Paso Electric Company working in the
following classifications in the Transmission and Dis-
tribution Division Substation and Relay Depart-
ment: Helper, Helper/Apprentice, Apprentice Electri-
cian, Apprentice Equipment Operator, Apprentice Re-
lay Technician, Equipment Operator, Electrician, Relay
Technician, Relay Specialist, and Working Supervisor;
the employees of El Paso Electric Company working in
the following classifications in the Transmission and
Distribution Division Communications Department:
Helper, Helper/Apprentice, Apprentice Communica-
tion Technician, Communication Technician, and
Working Supervisor; the employees of El Paso Electric
Company working in the following classifications in
the Administrative Division Garage Section: Janitor,
Helper, Tool and Material Handler, Senior Tool and
Material Handler, Apprentice Mechanic, Mechanic,
Technician, and Working Supervisor; the following
employees of El Paso Electric Company working in the
following classifications in the Treasury Services
Warehouse Section: Fuel Handler, Warehouse Helper,
Tool and Material Handler, Senior Tool and Material
Handler, Material Handler, Senior Material Handler,
Material Truck Operator, Working Supervisor, and
Working Supervisor-Power Supply; and Miscellane-
ous: Laborer (Temporary), and Laborer (After 1 Year)
employees; all full-time and regular part-time Meter
Readers, and Collectors, Technician-Sr. Electrical/
Technician-Sr. HVAC/Technician-Jr. Electrical/Tech-
nician-Sr. Maintenance/Technician-Maintenance/Clerk
-Facilities Services VI; and all full-time and regular
part-time Customer Service Representatives I, II, III
and Customer Service-Clerk-Telephone Center em-
ployees employed by the El Paso Electric Company at
the telephone center at 100 N. Stanton, El Paso, Texas,
and the outlying offices including Chelmont, Fabens
and Van Horn, Texas, and Anthony, Hatch, and Las
Cruces, New Mexico.

Excluding: All other employees, office clerical em-
ployees, dispatchers, professional employees, guards
and supervisors as defined in the Act.

WE WILL rescind the unilateral change made in the
terms and conditions of unit employees by restoring the
practice of permitting Las Cruces service department
employees 20 minutes preparation time before leaving
the facility.

EL PASO ELECTRIC COMPANY

Mara-Louise Anzalone, Esq., for the General Counsel.
Daniel C. Dargene and Jarrett R. Andrews, Esqs., for the
Respondent.
Felipe Salazar Jr., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in El Paso, Texas, on July 31 and August 1, 2007,
pursuant to a consolidated complaint that issued on May 31,
EL PASO ELECTRIC CO. 549
2007.1 The complaint alleges two threats in violation of Section
8(a)(1) of the National Labor Relations Act (the Act), several
unilateral changes to the terms and conditions of employment
of unit employees in violation of Section 8(a)(1) and (5) of the
Act and, pursuant to certain alleged changes, the warning of
two employees and the discharge of one employee in violation
of Section 8(a)(1) and (5) of the Act, as well as two instances of
direct dealing in violation of Section 8(a)(1) and (5) of the Act.2
The Respondent’s answer denies any violation of the Act and
affirmatively pleads a 10(b) defense. I find that the Respondent
has established that defense with regard to certain allegations. I
find that the Respondent violated the Act by engaging in direct
dealing with employees and making one unilateral change.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, El Paso Electric Company, a Texas corpo-
ration, is engaged in the generation, transmission, and distribu-
tion of electricity in the States of Texas and New Mexico. The
Company annually derives gross revenues in excess of
$250,000 and annually purchases and receives goods and prod-
ucts valued in excess of $50,000 directly from points outside
the State of Texas. The Respondent admits, and I find and con-
clude, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Inter-
national Brotherhood of Electrical Workers, Local Union 960,
AFL–CIO (the Union), is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The parties’ collective-bargaining history dates from 1944.
Their prior collective-bargaining agreement expired on June 15,
2006. Shortly before the commencement of the hearing herein,
the parties agreed upon the terms of a successor agreement. The
current unit includes employee classifications that voted for
union representation in 2003 and 2004. Unfair labor practices
arising from the Respondent’s opposition to the organizational
effort of the Union with regard to customer service representa-
tives (CSRs) were found by the Board in El Paso Electric Co.,
350 NLRB 151 (2007). The Respondent’s initial opposition to
inclusion in the historical bargaining unit of the employees who
chose to be represented by the Union in 2003 and 2004 resulted

1 All dates are in 2006, unless otherwise indicated. The charge in
Case 28–CA–21111 was filed on December 5. The charge in Case 28–
CA–21217 was filed on January 30, 2007. The charge in Case 28–CA–
21309 was filed on April 5, 2007.
2 The General Counsel, at the hearing, withdrew subpar. 7(g) which
alleged the transfer of bargaining unit work at the Company’s Anthony,
New Mexico warehouse. Counsel’s posthearing brief withdraws sub-
par. 7(f) which alleged the reassignment of the Scottsdale Operating
Crew to new reporting locations and alteration of their job duties.
in unfair labor practice findings by Administrative Law Judge
John McCarrick in El Paso Electric Co., JD(SF)–03–07, which
is currently pending before the Board. Only one allegation
herein relates to either of the foregoing decisions.
The employees of the Company perform various tasks asso-
ciated with an electrical utility including the installation and
maintenance of transmission lines, meter reading, and billing
and collections. The parties stipulated that the following unit
(the unit) and in which all of the represented employees are
included, is an appropriate unit:

Including: The employees of El Paso Electric Company
working in the following classifications in the Power Supply
Operating Departments: Janitors, Apprentice Operator, Op-
erator, Inside Operator, Senior Operator, and Working Super-
visor; the employees of El Paso Electric Company working in
the following classifications in the Power Supply Division
Maintenance Department: Insulator, Helper,
Helper/Apprentice, Apprentice Mechanic, Apprentice Electri-
cian, Apprentice Laboratory Technician, Apprentice Instru-
mentation Technician, Mechanic, Electrician, Laboratory
Technician, Instrumentation Technician, Electronic Specialist,
Predictive Maintenance Technician, Working Supervisor, Vi-
bration Specialist, Level II, Vibration Specialist, Level III, and
Working Supervisor-Vibration Specialist; the employees of El
Paso Electric Company working in the following classifica-
tions in the Transmission and Distribution Division, Dis-
tribution Construction, Distribution Operations, Trans-
mission Design and Maintenance: Helper,
Helper/Apprentice, Apprentice Lineman, Apprentice Cable
Splicer, Apprentice Equipment Operator, Lineman, Cable
Splicer, Equipment Operator, and Working Supervisor; the
employees of El Paso Electric Company working in the fol-
lowing classifications in the Transmission and Distribution
Division Meter Testing/Service: Helper, Helper/Apprentice,
Apprentice Meter Technician, Meter Technician, Meter Labo-
ratory Specialist, Service Worker, Inspector-Wiring and Me-
ter Service Order Worker, and Working Supervisor; the em-
ployees of El Paso Electric Company working in the follow-
ing classifications in the Transmission and Distribution Di-
vision Substation and Relay Department: Helper,
Helper/Apprentice, Apprentice Electrician, Apprentice
Equipment Operator, Apprentice Relay Technician, Equip-
ment Operator, Electrician, Relay Technician, Relay Special-
ist, and Working Supervisor; the employees of El Paso Elec-
tric Company working in the following classifications in the
Transmission and Distribution Division Communications
Department: Helper, Helper/Apprentice, Apprentice Com-
munication Technician, Communication Technician, and
Working Supervisor; the employees of El Paso Electric Com-
pany working in the following classifications in the Adminis-
trative Division Garage Section: Janitor, Helper, Tool and
Material Handler, Senior Tool and Material Handler, Appren-
tice Mechanic, Mechanic, Technician, and Working Supervi-
sor; the following employees of El Paso Electric Company
working in the following classifications in the Treasury Ser-
vices Warehouse Section: Fuel Handler, Warehouse Helper,
Tool and Material Handler, Senior Tool and Material Han-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550
dler, Material Handler, Senior Material Handler, Material
Truck Operator, Working Supervisor, and Working Supervi-
sor-Power Supply; and Miscellaneous: Laborer (Temporary),
and Laborer (After 1 Year) employees; all full-time and regu-
lar part-time Meter Readers, and Collectors, Technician-Sr.
Electrical/Tech-nician-Sr. HVAC/Technician-Jr. Electri-
cal/Technician-Sr. Maintenance/Technician-
Maintenance/Clerk-Facilities Services VI; and all full-time
and regular part-time Customer Service Representatives I, II,
III and Customer Service-Clerk-Telephone Center employees
employed by the El Paso Electric Company at the telephone
center at 100 N. Stanton, El Paso, Texas, and the outlying of-
fices including Chelmont, Fabens and Van Horn, Texas, and
Anthony, Hatch, and Las Cruces, New Mexico.

Excluding: All other employees, office clerical employees,
dispatchers, professional employees, guards and supervisors
as defined in the Act.

With the exception of the events of September 13, the com-
plaint allegations relate to discrete incidents. For clarity and
consistency, I shall address the four allegations arising from the
September 13 events and, thereafter, separately address the
remaining complaint allegations, incorporating when necessary
any prior finding.
B. The Events of September 13 (Complaint
Subparagraphs 6(a), 7(b), (k), and (l))
1. Facts
These allegations arise from events at the Company’s Las
Cruces, New Mexico facility (the Las Cruces yard) on Septem-
ber 13. On that day, a severe storm, with at least one tornado
actually touching down, crossed the Las Cruces area. Some
electrical construction crews began responding to calls of out-
ages. Other crews, upon direction from their supervisors, re-
turned to the Las Cruces yard before 4 p.m. The shift ended at 4
p.m.
The expired collective-bargaining agreement, article V, sec-
tion 3,A, provided that “[p]rearranged overtime is defined as
overtime to be worked when an employee is notified during the
employee’s regularly scheduled hours.” Prearranged overtime
is paid at time and one half. Article V, sections 2,A and B pro-
vides that during emergencies employees are required to fulfill
the Company’s obligation to maintain and restore service to its
customers and that they shall be paid double time if “called
out,” i.e., called in to work after their shift.
The crews who returned to the yard went to the lunchroom.
Shop Steward Edward Trujillo estimated that there were a total
of at least 10 employees present, but the record does not estab-
lish the number of crews included in that number. Trujillo re-
calls that Construction Crew Supervisor Jack Diehl told the
crews, “We need all you guys to stay.” The time that this direc-
tion was given is unclear; however, it was before 4 p.m.
Trujillo objected because Diehl made it “a global thing where
everybody has to stay, standby.” Diehl acknowledges that he
informed Shop Steward Trujillo that he intended to “have them
[the crews] stand by,” and that Trujillo immediately objected,
stating that “there was no standby in the contract and that they
did not have to do that.”
Construction Manager Art Garcia, who has responsibilities
both in El Paso and at Las Cruces, was in El Paso when the
storm struck. He came to the Las Cruces facility and, upon
arrival, asked Shop Steward Trujillo to speak with him. They
met in a vacant office.
Trujillo recalls that Garcia opened the conversation by stat-
ing, “What’s this that you guys don’t want to standby.” Trujillo
responded that, if the Company wanted the employees to work,
“put us to work but don’t just hold me here.” He then referred
to the negotiations for the prior collective-bargaining agree-
ment, in which the parties had agreed to a beeper system so that
employees could be called in, noting that the Company had
“wanted the beepers and that’s what those are for. You guys got
the people to cover this kind of stuff.” Trujillo testified that
Garcia responded, “You guys are going to have to stay. . . . If
not, you’re going to force me to use disciplinary action.”
Trujillo stated that he did not want any unit employee to get in
trouble, and claims that he asked how many employees the
Company actually needed, and upon being told four, that he
obtained four volunteers. As discussed below, I do not credit
that testimony.
Garcia recalls that he asked Trujillo, “What’s going on
here?” Trujillo responded that the employees did not have to
stay that “there’s no standby.” Garcia acknowledged that he
was aware that the term standby did not appear in the collec-
tive-bargaining agreement stating, “I realize that we don’t have
a standby in the clause,” but “our job is . . . to get service back
to our customers.” Garcia then asked, “[W]hy are you guys
declining to stay?” Trujillo repeated, “[W]e don’t have
standby.” Garcia pointed out that this had occurred before, that
“[w]e’ve asked for volunteers and we’ve had—people—during
a storm . . . here in El Paso and Las Cruces.” Trujillo asked
why the Company could not “let us go home and then you can
page us out?” Garcia responded that he hoped that Trujillo was
“not misleading these guys and telling them not to work . . .
because it’s insubordination. I’m going to instruct the supervi-
sors to go out there and appoint and I hope that you let them
really make the right decision.” Supervisor Diehl appointed
four employees to work.
Employee Donald (Woody) Grubbs was one of the employ-
ees appointed by Supervisor Diehl. He recalls that “it was 4:00
and we were walking out the door and I was approached by
Jack Diehl and he told me, I’m appointing you to stay and
work.” Grubbs replied that he could not, “I need to go home.”
Trujillo intervened, telling Diehl that he ought to let Grubbs go
to address a problem at his home, when, contemporaneously,
employee Loring White volunteered to stay. All four of the
employees appointed by Diehl were appointed shortly after 4
p.m., and all of them were paid double time.
When asked whether, “[p]rior to that day,” he had asked em-
ployees to standby under similar circumstances,” Diehl an-
swered, “Yes.” He denied previously receiving any objection
from the Union “with respect to those requests,” and Trujillo
did not dispute that testimony.
Although Trujillo denied that he was familiar with the term
“standby,” documentary evidence in the form of overtime slips
confirm that employees had worked overtime on “storm
standby,” “standby,” and “storm watch.”
EL PASO ELECTRIC CO. 551
Employee Woody Grubbs acknowledged having been dis-
patched due to a storm while in the field and “if you were al-
ready working you would usually stay.” When asked whether
he was “ever asked to stay after your shift to stand by and see if
the storm required emergency work,” Grubbs answered, “No.”
Asked whether that ever changed, Grubbs related the occasion
noted above when Diehl appointed him to stay and employee
White volunteered to stay for him.
Diehl testified that he had previously asked employees to
standby under similar circumstances, but he was not asked
whether he had ever directed employees to standby. The record
suggests that, in the past, the Company had sought and obtained
volunteers in these circumstances. Garcia was told, on Septem-
ber 13, that no employees were volunteering. The absence of
volunteers, according to the uncontradicted testimony of em-
ployee Grubbs, resulted from individual decisions, not any
action by the Union.
2. Analysis and concluding findings
The foregoing facts are the predicate for four complaint alle-
gations. Subparagraph 6(a) alleges that Construction Manager
Garcia threatened employees with unspecified reprisals if they
did not comply with the Respondent’s changed work rules,
policies, and practices regarding standby duty. Subparagraph
7(b) alleges that the Respondent promulgated and implemented
changes to its work rules, policies, and practices regarding
standby duty. Subparagraph 7(l) alleges that Garcia “bypassed
and dealt directly with its employees in the Unit by soliciting
employees to agree to perform work in a manner not provided
for in the parties’ expired collective-bargaining agreement or
consist with . . . past practice.” Subparagraph 7(k) alleges that
the Respondent denied employees double time for performing
work outside their normal shifts and required several named
employees to work standby duty.
I shall address the foregoing allegations in reverse order.
Garcia and Trujillo agree that the term “standby” does not ap-
pear in the contract, but the overtime slips in evidence establish
that employees were familiar with the term. The absence of that
term in the contract is meaningless because the expired contract
provides for prearranged overtime at time and one half and call
in pay at double time. The Respondent had the right to require
that employees work outside of their normal hours. The only
question was when work was assigned and, therefore, at what
rate it was going to be paid. The General Counsel’s brief does
not address the uncontraverted evidence that, following the
conversation between Trujillo and Garcia, the employees ap-
pointed after the shift ended were not told to “standby”; they
were, according to Grubbs, appointed “to stay and work.” Be-
cause they were appointed after the shift ended at 4 p.m., all
were paid double time. I shall recommend that subparagraph
7(k) be dismissed.
There is no evidence that Garcia bypassed the Union. The
General Counsel’s argument that Garcia dealt with Head Shop
Steward Trujillo as an individual ignores the evidence that this
was a pay dispute predicated upon the absence of the word
“standby” in the contract. In dealing with Steward Trujillo,
Garcia neither bypassed the Union nor otherwise dealt directly
with any employees. I shall recommend that subparagraph 7(l)
be dismissed.
There was no unilateral change. The crews in the lunchroom
did not volunteer to stay. The brief of the General Counsel does
not address the provisions of the expired collective-bargaining
agreement that gave the Respondent the right to assign over-
time during regular working hours. The Respondent had the
right to assign prearranged overtime. In the absence of volun-
teers, Diehl told the employees, “We need all you guys to stay.”
Shop Steward Trujillo protested. This was, quite simply, a pay
dispute. Confirmation that the Union’s protest was predicated
upon pay is confirmed by Garcia’s credible testimony that
Trujillo asked why the Company could not “let us go home and
then you can page us out?” Even if Diehl’s direction that all of
the crews stay be viewed as an announcement of a unilateral
change, it was never implemented. The Respondent did not,
after giving the “global” direction to standby, pay the employ-
ees at time and one half. The employees left at 4 p.m. while
Shop Steward Trujillo was protesting to Construction Manager
Garcia, who directed that individual employees be appointed to
work. Thus, even if the “global thing” was unprecedented, the
Respondent did not act upon it but made specific job assign-
ments and, because those assignments were made after 4 p.m.,
the employees were paid double time. I shall recommend that
the allegation of a unilateral change be dismissed.
Employee Grubbs’ testimony contradicts the testimony of
Trujillo that Trujillo obtained four volunteers. I credit Garcia
that Trujillo asked why the Company could not let the employ-
ees go home and then “page us out,” thereby entitling them to
double time. I further credit Garcia that he hoped that Trujillo
was not misleading the employees, because a refusal to work
would constitute insubordination. Contrary to the complaint
allegation, there was no threat of unspecified reprisals if em-
ployees did not comply with changed work rules relating to
standby duty. Shop Steward Trujillo was informed that the
failure of employees to work upon receiving an overtime as-
signment would be considered insubordination. Assignment of
overtime was consistent with past practice and was specifically
set out in the expired collective-bargaining agreement. I shall
recommend that this allegation be dismissed.
C. Alleged Threat (Complaint Subparagraph 6(b))
The complaint alleges that Chief Executive Officer (CEO)
Gary Hedrick threatened employees with loss of employment
through subcontracting out their work because they had en-
gaged in union or other protected activities.
On the evening of October 24, representatives of the Com-
pany and the Union were engaged in contract negotiations. A
number of employees, as they had done on previous occasions,
gathered in a public “triangle of space” in front of the Plaza
Theater and across from the Centre Building, in which the ne-
gotiations were occurring, to show support for the negotiating
team of the Union. On this particular evening, CEO Hedrick
and his wife had decided to dine at a restaurant that was located
adjacent to the area in which the supportive demonstration was
occurring. Upon hearing the employees chant his name, Hed-
rick requested his wife to enter the restaurant and obtain their
table. He crossed the street and spoke with the employees. As
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552
hereinafter discussed, he spoke with several employees. The
conversation relevant to this allegation occurred between Hed-
rick and employee Linda Montes.
The Union’s negotiating committee, which included Busi-
ness Agent Felipe Salazar, President David Barraza, and em-
ployee Linda Montes, learned of Hedrick’s presence, took a
recess from negotiations, and went outside. Montes approached
Hedrick and referred to the Hewitt Study, a study that related to
fair compensation and to which the Company had referred dur-
ing the organizational campaign among the customer service
representatives (CSRs) in 2004. As set out in the decision of
Judge McCarrick, JD(SF)–03–07, slip op. at 50, one of the
initial proposals by the Company in the collective-bargaining
agreement being negotiated gave the Company the right to
subcontract the jobs of the CSRs. After referring to the Hewitt
Study, Montes asked, “[W]hat had changed, that now because
of negotiations they want to subcontract us out. They want to
get rid of us so that they can hire a contractor at $7.00 an hour.”
Hedrick replied, “Linda, you’re getting over paid. I’m not lim-
ited to just your position. . . . I’ll get rid of any and all positions
so that the board of directors and myself can earn more
money.”
Employee Rosanne Enriquez, at some point, overheard Hed-
rick state that “if he could save 15% by subcontracting out
work, he would subcontract out work to save 15% of a depart-
ment’s budget.”
Hedrick did not recall the name of CSR Montes. He did re-
call speaking with employee Enriquez after she was named at
the hearing. He acknowledged also speaking with other em-
ployees. He denied discussing the wage rate of CSRs or stating
that he would “get rid of any and all jobs so the board of direc-
tors can make more money.” He acknowledges that he “may
have pointed out . . . that there was a call center here in El Paso
that was taking calls for several utilities from out of town and
so that it [subcontracting] was a, you know, kind of a wave of
the future.” He denied stating that he would subcontract if it
would save the Company money because “there are lots of
other issues that have to do with quality of service,” and that he
did not “think I would have . . . made just that naked statement
. . . in general, the discussions have not been solely about dol-
lars in terms of the subcontracting issue.” I do not credit Hed-
rick.
Montes had a specific question related to what she perceived
as an inconsistency between the Company’s representations
during the organizational campaign and its bargaining position
relating to subcontracting. I credit her clear recollection of Hed-
rick’s response. The remark overheard by employee Enriquez
regarding saving “15% of a department’s budget” is consistent
with Hedrick’s reference to the “any and all positions” to which
Montes testified. Hedrick’s comments relating to cost savings
by subcontracting were not directed to or limited to CSRs. The
callous answer of Hedrick, that Montes was being overpaid and
that he would “get rid of any and all positions” so that the board
of directors and he could receive more compensation, was
stated in economic terms relating to “all positions.” It was not
stated in terms of the CSRs having selected the Union as their
collective-bargaining representative. Although reflecting execu-
tive greed rather than concern for employees, Hedrick’s re-
marks did not “threaten loss of employment through subcon-
tracting . . . because . . . [the employees] engaged in Union . . .
activities.” I shall recommend that this allegation be dismissed.
D. Alleged Unilateral Changes (Complaint
Subparagraphs 7(a) and (c)–(f)
1. Subparagraph 7(a)
Subparagraph 7(a) of the complaint alleges that “[i]n or
about July . . . the Respondent promulgated and implemented
changes to its work rules, policies, and practices regarding em-
ployees’ lunch breaks and use of the Respondent’s vehicles.”
Although the record does not establish the exact date, some-
time after Hector Puente assumed the position vice president of
transmission and distribution, he directed all of his subordinate
managers to inform the employees whom they supervised that
they would no longer be permitted to drive company vehicles in
order to transport themselves to local restaurants or pick up
food to be consumed at the location at which they were work-
ing. It is undisputed that there was no notice to or bargaining
with the Union regarding this change in employee working
conditions. Insofar as employees were disciplined for violating
that unilaterally imposed rule, it constituted a significant
change in working conditions. The change occurred prior to
June 5, more than 6 months before the filing of the first charge
herein on December 5. Section 10(b) of the Act and Board
precedent preclude finding a violation if the Union was on no-
tice of the change more than 6 months prior to the filing of the
charge.
The Union was on notice insofar as it related to meter read-
ers in El Paso. Supervisor Manny Prado announced the prohibi-
tion to the meter readers in early May and meter reader and
Shop Steward David Aguilera filed a grievance over the change
on May 18.
The probative evidence also establishes that the Union was
on notice of the change insofar as it related to employees work-
ing in the Las Cruces yard. Although employees Woody
Grubbs and Huey Miles placed the announcement of the change
in the latter part of 2006, their testimony was not specific, and I
do not credit it. Employee Alfredo (Fred) Gardea, an employee
in the service department, attended a meeting of employees in
February at which Supervisor Danny Sanchez announced that
employees could not take company vehicles to lunch. He re-
calls that Head Shop Steward Edward Trujillo was present at
that meeting. When John Day, the newly appointed service
department supervisor, announced the prohibition about taking
vehicles to lunch as well as other rules on June 2, Gardea was
already aware of the prohibition because of the February meet-
ing at which Sanchez had announced it. Trujillo did not address
this allegation in his testimony, and he did not deny that he was
present at the meeting in February at which Sanchez announced
the prohibition.
The Respondent’s answer pleads Section 10(b) and its brief
argues that this allegation is barred by Section 10(b). The brief
of the General Counsel does not address the 10(b) issue or the
evidence that Shop Steward Aguilera filed a grievance regard-
ing the change on May 18 and that Head Shop Steward Trujillo
was present when the prohibition was announced by Sanchez at
Las Cruces. The Respondent has established its affirmative
EL PASO ELECTRIC CO. 553
defense with regard to the promulgation of the rule prohibiting
the use of company vehicles to travel to restaurants for lunch or
to pick up food. I shall recommend that this allegation be dis-
missed.
2. Subparagraph 7(c)
The brief of the General Counsel does not address this alle-
gation of repromulgation of the foregoing rule in October. The
only evidence of repromulgation is a document titled “Working
Line Orders” issued by Las Cruces Service Department Super-
visor John Day in either July or August stating that employees
are not to “stop at RESTAURANTS to eat in or drive through
to pick up food.” The initial promulgation of the rule was out-
side of the 10(b) period, and the rule does not impinge upon
Section 7 rights. The repromulgation changed nothing. I shall
recommend that this allegation be dismissed.
3. Subparagraph 7(d)
This allegation relates to four alleged changes in work rules
affecting the service department at Las Cruces regarding (1) a
time deadline for leaving the yard; (2) employee communica-
tions with customers; (3) the manner in which work on line
orders was performed and reported; and (4) employees’ ability
to swap work assignments.
Prior to June 2, Jack Diehl was supervisor of the seven em-
ployees in the service department, plus two to five employees
who rotated into and out of that department as needed, a total of
from 9 to 12 employees. Although Diehl had certain expecta-
tions, he did not formalize them into directives. Rather, he han-
dled matters on a case-by-case basis. Thus, if it came to his
attention that an employee had too much nonproductive time,
Diehl would counsel the employee regarding reducing “yard
time,” i.e., time in the yard rather than in the field, or spending
too much time talking with customers. This is reflected upon
the coaching worksheet of employee Fred Gardea who was
counseled regarding reducing “yard time” on June 18, 2004,
and again on June 27, 2005. Gardea admitted that Diehl also
spoke with him regarding conversations with customers.
On June 2, when John Day became supervisor of the service
department, Diehl introduced him, and Day spoke with the
employees regarding his expectations. He went over a list of
bullet points on a computer generated document that he had
created. Consistent with that list, Day informed the employees
that he expected them to leave the yard within 15 minutes fol-
lowing the morning meeting in which assignments were given.
He reannounced the prohibition of taking company vehicles to
restaurants. With regard to work assignments, he requested that
all swapping of assignments be done before the employees left
the yard so that the dispatch clerk was aware of any changes.
In a separate meeting on June 23, Day cautioned employees
regarding spending too much time talking to customers.
In July or August, he could not state a specific date, Day is-
sued a document titled “Working Line Orders” setting out “the
duties you are expected to perform when working line orders.”
The document restates the expectations noted above and added
additional expectations including “notify Supervisor of the
status of the work” when an employee was not able to complete
an assignment and “not drive around town to burn up time.”
Day gave no notice to the Union or any shop steward with
regard to the subjects he addressed in June or in the Working
Line Orders. There is no evidence that the Union was on notice
of these changes that related only to employees in the service
department under Day’s supervision for more than 6 months
prior to the filing of the charge, and the Respondent does not
argue that these allegations are barred by Section 10(b). Never-
theless, in order to establish a violation of the Act, the General
Counsel must establish that the expectations that Day commu-
nicated did, in fact, constitute “material, substantial, and sig-
nificant” changes. Fred Gardea, who has worked in the service
department for over 24 years, was the only service department
employee to testify. Thus, in making the following findings, I
am relying upon the testimony of former Supervisor Diehl,
current Supervisor Day, and Gardea.
Regarding having to leave the yard within 15 minutes of be-
ing released, Gardea explained that employees, after being
released from the daily meeting in which work assignments
were distributed, would check the truck, load stuff, get ice, and
use the restroom. The foregoing preparations for leaving for the
day “would take 20, 25 minutes . . . [and] [i]t’s kind of hard to
do it in 15 minutes.” Dielh’s morning meetings generally lasted
no more than 10 minutes, and he expected employees to have
left the yard by 8 a.m., leaving them with 20 minutes of prepa-
ration time. Thus, this change effectively shortened the prepara-
tion time of employees by 5 minutes. I view the employees’
preparation time as a term and condition of employment analo-
gous to cleanup time. Before changing such a working condi-
tion, an employer is obligated to give notice to and bargain with
the Union. See Concord Docu-Prep, Inc., 207 NLRB 981, 987
(1973). By unilaterally requiring service department employees
to leave the yard within 15 minutes, the Respondent violated
Section 8(a)(1) and (5) of the Act.
The allegation relating to communications with customers is
more complicated. On June 23, Day reminded the employees
“to limit their time with and talking to customers.” Gardea testi-
fied that Day told the employees that he did not “want us to talk
to customers,” and that he protested. Day acknowledged that,
when he addressed this issue, one employee protested and that
he explained that “socializing was what I meant to call it.” That
clarification is reflected in the working line orders’ document
which directs employees “not to stop and visit with customers.”
As the General Counsel’s brief points out, Diehl, when he was
supervisor, “wanted my employees to be cordial and friendly.”
Not cited in the brief is Diehl’s testimony that work had to be
done, other customers needed their orders completed, and that
he did speak with employees about “spending too much time
visiting with customers.” Gardea confirmed that Diehl, when he
was supervisor, spoke to him about having conversations with
customers “just to kind of remind me.” The evidence fails to
establish any substantive change with regard to conversations
with customers. I shall recommend that this allegation be dis-
missed.
Prior to Day becoming supervisor, employees had not been
required to call in to advise that they were going to be unable to
finish a job. Diehl had no such requirement. He “would usually
ask them” if he needed to know. Although the daily computer
records would reveal whether the work was completed, per-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554
sonal notification that a job had not been finished would obvi-
ously be useful to Day in determining assignments for the fol-
lowing day. Gardea, although confirming that the call in re-
quirement was a change, did not testify to any inconvenience
caused by the requirement. In short, this was not a “material,
substantial, and significant” change that would trigger a bar-
gaining obligation. Berkshire Nursing Home, 345 NLRB 220
(2005). I shall recommend that this allegation be dismissed.
The final change alleged in the complaint relates to swapping
work assignments. Diehl explained that the dispatcher had to be
notified in order to move a job assignment from “one truck to
another truck.” When Diehl was supervisor, “they had to go
through me to do the swaps.” Day required that employees do
any swaps “prior to leaving the facility because it makes no
sense to go back in the building . . . and everything associated
with it.” Gardea did not address this allegation. There is no
evidence that Day’s expectation that all swaps be made before
leaving the facility had any significant impact upon the working
condition of employees. There is no evidence that Day ever
refused a request to swap an assignment made from the field.
The absence of testimony by Gardea regarding this allegation
confirms the absence of any impact. This was not a “material,
substantial, and significant” change. I shall recommend that this
allegation be dismissed.
Although not set out as a specific allegation, the General
Counsel’s brief addresses Gardea’s testimony concerning the
direction in the working line orders’ document that employees
“not drive around town to burn up time.” The brief cites the
testimony of Gardea that, in the past, Diehl “didn’t want us in
the yard” prior to 4 p.m., and that sometimes employees would
just drive around. The General Counsel does not cite the testi-
mony of Gardea that the prohibition has had no impact because
“Las Cruces is getting bigger and . . . you don’t really have
time to do that.” Insofar as this evidence arguably relates to the
allegation regarding the manner in which work is performed
and reported, I find, consistent with the testimony of Gardea,
that the prohibition has had no impact because employees no
longer “have time to do that,” and therefore it does not consti-
tute a “material, substantial, and significant” change. I shall
recommend that this allegation be dismissed.
4. Subparagraph 7(e)
Subparagraph 7(e) alleges the February 2007 promulgation
of a rule regarding the retention of disciplinary letters in em-
ployee personnel files.
The General Counsel’s brief does not address this allegation.
The only evidence proffered in support of this allegation was
the testimony of Jesus Manuel Marrufo who had his driving
privileges suspended for 14 months in 1995 or 1996. At the
time of the suspension, Marrufo recalls that Tony Guel, his
supervisor at the time, told him that his “driving privileges were
suspended because I had three incidents in three years.” The
foregoing statement, following his third accident, establishes
only that statement of fact by his former supervisor. If he had
had the three chargeable accidents in a 2-year period, his super-
visor might well have informed him that his privileges were
suspended because he had three accidents in 2 years.
In October, Marrufo was involved in an accident. Soon
thereafter, Marrufo met with his current supervisor, Refugio
Chavez, and a representative from the safety department. He
was informed that the accident had been determined to be a
chargeable accident and that “it was going to be on my driving
record for five years.” Marrufo questioned the 5-year period
asking, “[W]hat happened to the three years that they had be-
fore.” Chavez replied that 5 years “was the policy now,” that it
“was going to stay in my file for five years and that if I got two
more within the five years” that his driving privileges would be
suspended. The statement of Chavez that 5 years “was the pol-
icy now” does not specify whether he was referring to docu-
ment retention or chargeable accident calculation.
Marrufo recalls seeing no document either in the 1990s or in
October. Marrufo was unaware of whether there was a “differ-
ence between the Company policy as to how long it keeps those
documents in your personnel file and how long it holds those
incidents against you, as a part of your driving record.” Numer-
ous warnings to various employees in 2005 and 2006 state that
the disciplinary warning “will remain in your employee file for
five years.”
The complaint allegation is that “[i]n or about February,
2007, . . . the Respondent promulgated a rule regarding the
retention of disciplinary letters in employees’ personnel files.”
Documentary evidence establishes that for at least 2 years the
Respondent had been informing employees that the document
reflecting discipline would be retained for 5 years. Marrufo’s
testimony that he was told that “this was going to stay in my
file for five years and that if I got two more [chargeable acci-
dents] within the five years” his driving privileges would be
suspended may arguably establish a change regarding the pe-
riod over which chargeable accidents were calculated, but that
is not the complaint allegation. There is no evidence that disci-
plinary letters were kept for less than 5 years in 1995 or 1996.
There is no complaint allegation of a change in the relevant
period regarding suspension of driving privileges. The evidence
before me does not establish any change relating to the reten-
tion of disciplinary letters. I shall recommend that this allega-
tion be dismissed.
E. Alleged Adverse Employment Actions (Complaint
Subparagraphs 7(j) and (o))
1. Subparagraph 7(j)
Complaint subparagraph 7(j) alleges that the Respondent is-
sued written warnings to employees David Aguilera and Paul
Lopez pursuant to its unilaterally imposed rule regarding
lunchbreaks and use of the Respondent’s vehicles. As discussed
above, Shop Steward Aguilera filed a grievance on May 18
shortly after the change was announced.
It is undisputed that Aguilera and Lopez violated the unilat-
erally imposed rule on June 22 when they took a company truck
to a restaurant and had the misfortune to encounter Vice Presi-
dent Puente. Both received an oral reprimand and a notation in
their subsequent annual evaluations reflecting that they had
received discipline. Thus, although not written warnings as
alleged in the complaint, the oral reprimands constituted disci-
pline of which a record was made.
EL PASO ELECTRIC CO. 555
The new rule, although unilaterally imposed, was imposed
outside the 10(b) period, and it does not impinge upon Section
7 rights. The brief of the Respondent does not address the issue
of discipline. The cases cited in the brief of the General Coun-
sel are inapposite. In Randolph Children’s Home, 309 NLRB
341 (1992), Administrative Law Judge Raymond Green spe-
cifically rejected the respondent’s 10(b) defense and found that
the rule in question was not unambiguously communicated to
employees until January 30, 1991, within the 10(b) period. Id.
at 344. Unlike the situation in Rahco, Inc., 265 NLRB 235
(1982), the oral warnings administered to Aguilera and Lopez
did not constitute a newly instituted and formalized disciplinary
policy. The unilaterally imposed rule herein does not impinge
upon employee Section 7 rights; thus, its maintenance and en-
forcement does not constitute a separate violation of the Act.
See Eagle-Picher Industries, 331 NLRB 169, 174 (2000). Di-
rectly on point is the Board decision in Wald Mfg. Co., 176
NLRB 839, 841 (1969), in which no violation was found with
regard to the nondiscriminatory enforcement of work rules that
had been unilaterally promulgated prior to the 10(b) period. I
shall recommend that this allegation be dismissed.
2. Subparagraph 7(o)
The complaint alleges that the Respondent discharged em-
ployee Carlos Robles pursuant to changed rules regarding the
combining of breaks found to have been promulgated unilater-
ally in El Paso Electric Co., JD(SF)–03–07, decided by Judge
McCarrick. That case is currently pending before the Board;
however, it is not relevant to my finding herein.
In December, the date is not specified, the company truck to
which meter reader Robles was assigned was “spotted on the
Wal-Mart parking lot on Mesa Street” between 1:15 and 1:30
p.m., a distance of more than 15 miles from his assigned work
area. Supervisor of Meter Reading and Collections Gregory
Gonzales received a call from another supervisor asking
whether one of the company trucks, unit 3006, should have
been in that area. The truck was assigned to Robles who was on
the east side of town, not the west side where the Wal-Mart was
located. Gonzales checked the output from Robles’ handheld
computer upon which meter readings were recorded and noted
that there was a “12, 13 minute gap, early on in the route,”
which may or may not have been a morning break, and then a
final reading at 12:44 p.m.
Gonzales met with Robles who denied having taken the ve-
hicle to Wal-Mart. Notwithstanding the denial, given the identi-
fication of the vehicle in the parking lot between 1:15 and 1:30
p.m., coupled with the fact that Robles took no meter readings
after 12:44 p.m., and that Robles was the only employee as-
signed to that vehicle, Gonzales determined that he had done
so. The company employee handbook, at page 16, provides that
company property should be used for business purposes only.
The meter reading manual, page 9, states that company vehicles
are provided to meter readers for their “daily transportation to
and from their routes.” Insofar as an employee leaves his route
and takes a company vehicle to an unassigned destination on
personal business, the foregoing policies are violated.
On or about February 14, Gonzales met with Robles, his
shop steward, and Angie Arreola from human resources and
“presented the document indicating that he had violated the
leaving the area policy again and this had already been the sec-
ond incident regarding this . . . and advised him, because of this
continued action, that he was being separated from the com-
pany on that day.” The document to which Gonzales referred
was not identified or offered into evidence. Employee Carlos
Robles was not presented as a witness and did not testify, thus
the testimony of Gonzales regarding what he stated to Robles is
uncontradicted.
The unilateral change alleged in the complaint, as found in
El Paso Electric Co., JD(SF)–03–07, related to prohibiting
employees from combining their morning, afternoon, and
lunchbreaks. The General Counsel argues that the “Respondent
has simply tried to repackage this discharge as something other
than what ALJ McCarrick found to be a straight-out violation
of the Act,” referring to the unilaterally imposed rule prohibit-
ing combining breaks.
Supervisor Gonzales admitted that, in addition to leaving his
work area, Robles did also violate the break rules. The General
Counsel argues that leaving his work area “was inexorably tied
to this fact,” and that the record is “devoid of any written evi-
dence that the reason for Robles’ discharge was ‘leaving the
work area.’” Although no “written evidence” was offered, there
is no testimonial evidence that Robles was discharged for any
reason other than that to which Supervisor Gonzales testified.
His uncontradicted testimony is that he met with Robles, his
shop steward, and Arreola from human resources, “presented
the document indicating that he had violated the leaving the
area policy again and this had already been the second incident
regarding this,” and that he then “advised him, because of this
continued action, that he was being separated from the com-
pany on that day.” Insofar as neither Robles nor his shop stew-
ard testified, I have no basis for finding that Gonzales stated
anything other than the words to which he testified or for con-
cluding that Robles was discharged for any reason other than,
as he was told by Gonzales, for violating “the leaving area pol-
icy again.”
Violation of the unilaterally imposed prohibition regarding
combining breaks was not the basis for the discharge of Robles.
His use of a company vehicle for other than transportation to
and from his route permitted him to be identified miles from his
assigned work area, and he had been disciplined previously for
leaving his assigned area. In the absence of any testimonial
evidence disputing the foregoing, I cannot conclude that Robles
was discharged for any reason other than leaving his work area,
which is what he was told by Gonzales. The General Counsel
has not established that Robles was terminated pursuant to a
unilaterally promulgated rule. I shall recommend that this alle-
gation be dismissed.
F. Allegations of Bypassing the Union (Complaint
Subparagraphs 7(m) and (n)
Subparagraph 7(m) alleges that the Respondent, by CEO
Gary Hedrick, bypassed the Union and dealt directly with em-
ployees, and subparagraph 7(n) alleges that, based upon that
direct dealing, the Respondent “implemented proposals . . .
thereby undermining the Union’s status as the exclusive collec-
tive bargaining representative of the Unit.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556
As already discussed, on the evening of October 24, a group
of unit employees gathered in a public area across from the
Centre Building in order to demonstrate support for the negoti-
ating team of the Union. CEO Hedrick and his wife had come
to dine at a restaurant across from where the supportive demon-
stration was occurring. Upon hearing the employees chant his
name, Hedrick requested his wife to enter the restaurant and
obtain their table. He crossed the street and spoke with the em-
ployees.
Meter and Laboratory Specialist Roseanne Enriquez testified
that Hedrick walked into the group, and “put his hands in the
air, palms down, and motioned for us to be quiet, at which time
we fell quiet.” He then stated that “he was there to find out
what our concerns were, to find out what it is we wanted.” Hed-
rick testified, “I think I said something in the nature of, you
know, do you want to chant or do you want to talk?” I credit the
clear and credible of testimony of Enriquez over what Hedrick
thinks he said “something in the nature of.”
When no one immediately answered, Enriquez spoke to Hed-
rick about the “driving policy,” a proposal relating to driving
privileges that the Company was insisting be in the contract.
Enriquez told Hedrick that the proposal was “too ambiguous,”
and he answered that his understanding was that it was a matter
of “insurability and—being able to certify drivers.” The con-
versation continued, and Hedrick told Enriquez that “he’d
check into it.” Enriquez, although obviously not on the union
negotiating committee which was meeting at that very time,
told Hedrick that “if he would get that driving policy changed,
he’d get a signed contract.”
The negotiating committee of the Union learned of Hedrick’s
presence and, after he had been speaking with employees for
about 15 minutes, came out of the Centre Building into the
group. Hedrick did not recall speaking specifically with any of
them, but, as discussed above, committee member Linda Mon-
tes spoke with him. In addition to the driving policy, Hedrick
acknowledged speaking with an employee who had been se-
verely injured and about subcontracting. After speaking with
various employees for over half an hour, Hedrick left. As he
was leaving he told Enriquez that he would “check into that
driving policy.”
Enriquez did not receive a call from Hedrick. On Friday, Oc-
tober 27,, she called him and asked whether he had looked into
the driving policy proposal. Hedrick, who did not recall this
call, told Enriquez that he had looked into it, that “as he
thought, that it was insurability and certifiability but that he,
also, agreed that the wording was too ambiguous.” He told
Enriquez that he had “told them,” presumably the negotiating
team of the Company, “to tighten up the language and resubmit
it.”
Paul Garcia, spokesperson for the Company during the nego-
tiations, acknowledged that he and some members of the nego-
tiating committee met with Hedrick on the day following those
conversations, because “we wanted to talk to him what was
going on. He basically just told us this was what transpired.”
Garcia denied being directed to take any action relative to ne-
gotiations as a result of Hedrick’s conversations. Despite that
denial, Garcia admitted that at the next negotiating session, on
November 6, the company provided a “proposal on . . . the
driving policy.” On November 7, the Respondent’s public rela-
tions department, by email, gave employees an update on nego-
tiations stating that the Company had continued “to preserve
the substance of its prior proposal, except for a concession on
its Driving proposal, where the Company removed the wage
adjustment for medical conditions.”
As counsel for the General Counsel correctly argues, citing
Outdoor Venture Corp., 336 NLRB 1006, 1011 (2001), “where
a high-ranking company official ‘visits’ with employees on a
picket line and engages them in discussion on ‘a wide range of
matters which were also subjects of discussion in contract ne-
gotiations,’ such conduct undermines the employees’ collec-
tive-bargaining representative and constitutes unlawful direct
dealing.”
The Respondent, citing Georgia Power Co., 342 NLRB 192
(2004), argues that an “employer may lawfully consult with its
own employees in formulating proposals for bargaining.” Id. at
193. In that case, the employer assured the union that the con-
sultation was limited to the crew leader selection process and
informed the committee with which it consulted that “they were
not to negotiate or to even get into the subject matter of nego-
tiations.” Ibid. In Permanente Medical Group, 332 NLRB 1143
(2000), cited as precedent by the Board in Georgia Power Co.,
supra, the consultation related to “the design phase of a pro-
gram” that would “yield only a proposal to be presented to the
union for bargaining.” Ibid. In this case the proposals were
already on the table. Hedrick was not seeking to formulate pro-
posals.
Hedrick dealt directly with employees rather than their bar-
gaining agent. After telling the employees that “he was there to
find out” what their concerns were, “what it is we wanted,” he
spoke with the employees about various proposals that were the
subject of negotiations. “The Respondent ‘may not seek to
determine for himself the degree of support or lack thereof,’
which exists for a position that it seeks to advance in negotia-
tions with the employee bargaining representative.” Harris-
Teeter Super Markets, 310 NLRB 216, 217 (1993), citing Obie
Pacific, 196 NLRB 458, 459 (1972). The obligation of the em-
ployer is to deal with the employees’ collective-bargaining
representative and not seek “to inform itself by direct dealings
with employees how certain of its bargaining proposals sit with
the employees, as opposed to their agent at the bargaining ta-
ble.” Northwest Pipe & Casing Co., 300 NLRB 726, 733
(1990). Any argument that Hedrick was not seeking to deter-
mine how the proposals sat with the employees is belied by his
assurance to Enriquez that he would “check into that driving
policy” and his informing her that he had told “them” to
“tighten up the language and resubmit it.”
Subparagraph 7(n) alleges as a separate violation the presen-
tation of a proposal based upon Hedrick’s direct dealing. Board
precedent holds that it is of “no consequence that the Respon-
dent did not change its position” after hearing from the em-
ployees. Harris-Teeter Super Markets, supra at 217. As a mat-
ter of logic, the obverse, that a change of position is of no con-
sequence, would preclude the finding of a violation, and the
General Counsel cites no case in which a violation was found
based upon alteration of a bargaining proposal as a result of
direct dealing. The vice is the direct dealing. The presentation
EL PASO ELECTRIC CO. 557
of what the Respondent’s own document characterizes as a
concession following Hedrick’s direct dealing simply under-
scores the significance of the encounter and the sound rationale
established by precedent that direct dealing undermines the
status of the collective-bargaining representative. I shall, there-
fore, recommend that subparagraph 7(n) be dismissed. The
Respondent, by engaging in direct dealing with unit employees
as alleged in subparagraph 7(m) of the complaint, violated Sec-
tion 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. By bypassing the Union and dealing directly with em-
ployees regarding proposals being negotiated by their collec-
tive-bargaining representative, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
2. By unilaterally, without notice to or bargaining with the
Union, reducing the preparation time allowed to unit employees
in the service department at Las Cruces, the Respondent has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist, take certain affirmative action, and post an appropriate
notice. The General Counsel, both in the complaint and in the
brief, seeks special remedies including a broad order, publica-
tion of the notice in both English and Spanish, and the reading
of the notice. I concur that publication of the notice in both
English and Spanish is appropriate. The violations found herein
do not support the imposition of additional special remedies.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, El Paso Electric Company, El Paso, Texas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Brotherhood of
Electrical Workers, Local Union 960, AFL–CIO as the exclu-
sive collective-bargaining representative of the employees in

3 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 pur-
poses.
the unit, by directly dealing with employees regarding propos-
als being negotiated by the Union.
(b) Unilaterally, without notice to or bargaining with the Un-
ion, reducing the preparation time allowed to unit employees in
the service department at Las Cruces.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the unilateral change made in the terms and con-
dition of employment of the unit employees in the service de-
partment at Las Cruces, New Mexico, by restoring the practice
of permitting them 20 minutes preparation time before leaving
the facility.
(b) Within 14 days after service by the Region, post at its fa-
cilities in El Paso, Texas, and Las Cruces, New Mexico, in both
English and Spanish, copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the 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 employ-
ees employed by the Respondent at any time since June 2,
2006.
(c) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

4 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”