El Paso Electric Company

National Labor Relations Board - Administrative Judge Opinions

Apr 4, 2005

28-CA-019551 (N.L.R.B. Apr. 4, 2005)

JD(SF)-28-05
El Paso, Texas

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES

EL PASO ELECTRIC COMPANY

and Cases: 28-CA-19551
28-CA-20017

INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
LOCAL UNION 960, AFL-CIO

Mara Anzalone, Atty., Counsel for the General Counsel,
Region 28, Phoenix, Arizona.
Dan C. Dargene and Jarrett R. Andrews, Attys.,
Winstead, Sechrest & Minick,
Counsel for Respondent, Dallas, Texas.
Felipe Salazar, Business Manager, Charging Party,
El Paso, Texas.

DECISION

I. Statement of the Case

Lana H. Parke, Administrative Law Judge. This matter was tried in El Paso, Texas on
February 15 and 16, 20051 upon Order Consolidating Cases, Consolidated Complaint and
Notice of Hearing (the Complaint) issued November 19, 2004 by the Regional Director of
Region 28 of the National Labor Relations Board (the Board) based upon charges filed by
International Brotherhood of Electrical Workers, Local Union 960, AFL-CIO (the Union or the
Charging Party).2 The Complaint, as amended, alleges El Paso Electric Company
(Respondent) violated Sections 8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act). Respondent essentially denied all allegations of unlawful conduct.

II. Issues

1. Did Respondent independently violate Section 8(a)(1) of the Act by threatening to
discharge or to make unspecified reprisals against employees if they engaged in
protected activities?
1 All dates herein are 2004 unless otherwise specified.
2 At the hearing, Counsel for the General Counsel amended the Complaint to allege Yvonne
Garcia, office team leader, as supervisor and agent of Respondent within the meaning of
Sections 2(11) and 2(13) of the Act, which allegation Respondent denied.

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2. Did Respondent violate Section 8(a)(3) of the Act by issuing an unsatisfactory
performance evaluation to and discharging Cecelia Rodriguez on July 7, and by
issuing a written warning to Sira Fanely (Ms. Fanely) on September 29?
3. Did Respondent violate Section 8(a)(5) of the Act by promulgating and implementing
changes concerning the following terms and condition of employment without prior
notice to the Union and without affording the Union an opportunity to bargain
regarding the changes: attendance rules, lunch break schedules, cashier shortage
and overage rules, and monitoring of employees.

III. Jurisdiction

Respondent, a Texas corporation, with an office and place of business in El Paso, Texas
has, at all relevant times, been a public utility engaged in the generation, transmission, and
distribution of electricity in the states of Texas and New Mexico. During the 12-month period
ending July 14, Respondent annually purchased and received goods valued in excess of
$50,000 directly from points outside the State of Texas. Respondent admits, and I find, it has at
all relevant times been an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and the Union has been a labor organization within the meaning of
Section 2(5) of the Act.3

IV. Findings of Fact

A. Supervisory/Agency Status of Yvonne Garcia

Respondent employs about 66 customer service representatives (CSRs) in several
locations. About 44 work in the downtown El Paso call center, and the remainder work in
outlying offices, including the Chelmont, Fabens, and Van Horn, Texas offices. At all times
material hereto, Rose Lowe (Ms. Lowe) has been the CSR supervisor of the Texas outlying
offices and since March 2004, Yvonne Garcia (Ms. Garcia) has been the Chelmont office CSR
team leader. As such, she oversaw the work of the Chelmont CSRs. She had the authority to
enforce work rules and brought employee work issues to the attention of Ms. Lowe, who
decided what disciplinary action should be applied. Ms. Garcia made work assignments and
could take a CSR off one job and assign her to another. She was in charge of the Chelmont
office during the absences of Ms. Lowe, usually two days a week. She could correct
employees when they make mistakes or point out infractions of work rules. She could not hire,
transfer, suspend, lay off, recall, promote, discharge, or discipline other employees or grant or
deny overtime to employees without supervisory approval. Respondent did not permit
Ms. Garcia to attend the June 7 meeting because it did not want supervisory team leader-type
people present, as the CSRs might feel inhibited in bringing up issues.

During the 2004 union campaign, Ms. Garcia handed out campaign literature for
Respondent that explained what the company could do in the absence of a union. She also
distributed “Payday” candy bars with a missing portion to represent how union dues decreased
a paycheck.

3 Unless otherwise explained, findings of fact herein are based on party admissions,
stipulations, and uncontroverted testimony.

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B. Hiring and Training of CSRs in 2004

Prior to January 2004, in the Chelmont office, Respondent utilized the services of
several workers referred by a temporary labor agency as cashiers. In 2004, Respondent did
away with all temporary positions, combined cashier and CSR duties, and hired five full-time
CSRs. Cecelia Rodriguez (Ms. Rodriguez), who had previously held a temporary cashier
position with Respondent was among the five new hires whom Respondent employed on
January 12 and was assigned to the Chelmont office as were new hires Tanya Walker
(Ms. Walker) and Angelina Ornelas (Ms. Ornelas), both of whom were still employed by
Respondent at the time of the hearing. All new CSRs had to complete a six-month probationary
period before being permanently hired.

Respondent planned for Ms. Rodriguez, Ms. Walker, and Ms. Ornelas, seriatim, to
attend four to six weeks of training at the Fabens office, a site 63 miles from Ms. Rodriguez’
home, where each could receive one-on-one training. Ms. Rodriguez attended training for nine
days, after which she experienced transportation problems. Respondent agreed that she could
be the last CSR to attend training.4 Thereafter, Respondent sent Ms. Ornelas and then
Ms. Walker for training. In mid April, Ms. Rodriguez’ informed supervision that her
transportation dilemma had resolved, and she was ready to go to training.5 Ms. Lowe told
Ms. Rodriguez that Respondent would wait and see how the vacation schedule went before
sending her to training. Ms. Lowe provided Ms. Rodriguez with training materials, and other
CSRs helped Ms. Rodriguez under Ms. Lowe’s observation. Although Ms. Lowe did what she
could to help her learn the job, Ms. Rodriguez reported to Ms. Lowe that she needed more
training. Respondent never rescheduled Ms. Rodriguez for training at Fabens.

C. The Union Campaign

During the spring of 2004, the Union commenced an organizing campaign among
Respondent’s CSRs. During the course of the campaign, Respondent conducted meetings
among employees at various locations where CSRs worked. On June 7, Gary Hedrick
(Mr. Hedrick), Chief Executive Officer and President of Respondent, spoke to nine to ten CSRs
at Respondent’s Chelmont office with the purpose of convincing them it was not in their best
interests to vote for the Union in the upcoming election. Speaking for about 15-20 minutes,
Mr. Hedrick told the CSRs he was not antiunion, that he believed unions were created to
redress significant problems in America and that they held a proud and proper place in its
4 Ms. Rodriguez testified that Respondent interrupted the Fabens training for all employees
in January and did not restart it until March. The record does not support her testimony in this
regard.
5 Ms. Garcia testified that when Ms. Walker was about to return from training, and it was
Ms. Rodriguez’ turn to go, Ms. Rodriguez told Ms. Garcia and Ms. Lowe that she was still
unable to attend training because of transportation problems. Ms. Lowe did not corroborate that
testimony but testified that Ms. Rodriguez never indicated to her a willingness to return to
training. Ms. Lowe also testified, as set forth below, that Ms. Rodriguez said she needed more
training. After that complaint, Ms. Lowe neither scheduled Ms. Rodriguez to complete training
nor pointed out that Ms. Rodriguez’ transportation situation had made training impossible. The
absence of so logical a response suggests that Respondent was aware that transportation
concerns no longer prevented Ms. Rodriguez from completing training. Given the inconsistent
testimony and the inherent incongruity of their accounts, I do not credit either Ms. Garcia or
Ms. Lowe on this point. Rather, I accept Ms. Rodriguez’ testimony that she informed her
supervisor she was able to attend training.

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history. He said he thought most of the problems unions were created to address no longer
existed and were, in fact, against the law. He told the CSRs he thought unionization was
cumbersome and restrictive, and in the present competitive environment of the electric utility
industry, it was the wrong time to be thinking about making Respondent’s business processes
slower, more cumbersome, and inflexible. Such would only interfere with Respondent’s ability
to compete in a dynamic and changing industry where a company needed to make quick
decisions and move one direction or the other quickly, which could not be done in a union
environment. Mr. Hedrick told the group Respondent was prepared to pay and treat them fairly
and in his view they would not get any fairer treatment through unionization. After these
remarks, Mr. Hedrick opened the meeting to questions.

There is no dispute that only CSRs Ms. Rodriguez, Sira Fanely (Ms. Fanely), and
Rosalba Vargas (Ms. Vargas) spoke up during the question and answer period of the meeting
with Ms. Rodriguez and Ms. Fanely being the most vocal. While witnesses to the meeting
gave somewhat varying versions of Mr. Hedrick’s responses to questions, credible consensus
establishes the following:

Of all the campaign meetings Mr. Hedrick held with CSRs, the employee exchange in
the Chelmont meeting was the most intense. To use Mr. Hedrick’s words, Ms. Rodriguez asked
“lots of questions very quickly,” and her interchange with him was “spirited” and “fast and
furious.” Relating a past experience where a supervisor had forced her to stay at work although
she was so ill she later required hospitalization, Ms. Rodriguez, in Mr. Hedrick’s opinion, “kind of
dominat[ed] the meeting” with a repetitious discussion that frustrated Mr. Hedrick. When
Ms. Rodriguez admitted not using internal company processes to complain, Mr. Hedrick said it
was impossible for Respondent to deal with problems of which they were not made aware.
Ms. Rodriguez and Ms. Fanely, supported by Ms. Vargas also brought up time off and equal
treatment issues. 6

Ms. Fanely said job descriptions should be updated because some CSRs were not being
appropriately compensated. Mr. Hedrick encouraged employees to use company processes to
address work issues. One of the three vocal CSRs said, “Well, but if you talk and it doesn’t get
fixed, then an employee might…turn to the union as a last resort.” One of the three CSRs
pointed out that the union had a grievance process. Ms. Fanely said she would vote for the
union so that issues and grievances could be investigated outside the company.

Witnesses to the meeting dispute whether and/or how Mr. Hedrick responded to
Ms. Rodriguez’ expressed opinion that conditions in her former unionized job had been better
than those at Respondent. Ms. Vargas and Nora Munoz (Ms. Munoz), the latter of whom
testified as a witness for Respondent, remembered Mr. Hedrick asking Ms. Rodriguez why, if
work had been so good with her former employer, she had left. Ms. Rodriguez, Ms. Fanely, and
Ms. Ornelas recalled that Mr. Hedrick asked why Ms. Rodriguez did not return to that job.
Ms. Walker and Ms. Ornelas testified, essentially, that Mr. Hedricks told the CSRs that if they
were not happy there, they could look for other jobs where there was a better work environment.
Ms. Munoz recalled that Mr. Hedrick said lot of people would like to work for Respondent, which
she interpreted as notice that if employees did not like the conditions at Respondent, there were
others to replace them. Mr. Hedrick denied telling any employee that she should return to her
former employer.

6 Specifically, Ms. Rodriguez complained that favoritism existed and that in past she had
been refused time off while coworker, Hilda Bautista, was granted leave.

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I find that each employee witness attempted sincerely and candidly to recount all that
she remembered of what was said at the meeting. The inability of these witnesses to recount
the entire employee/management exchange at the June 7 meeting and the absence of
completely corroborative testimony on every point is no basis for disbelieving individual
recollections, and I do not discount any employee testimony. Given the differing versions of the
meeting, I am unable to determine which account most closely reflects Mr. Hedrick’s
statements. However, after considering all of the testimony and allowing for the reality that
honest witnesses may recall parts but not the whole of what is said in a meeting, I conclude that
Mr. Hedrick did convey to employees the message that if CSRs were unhappy with
Respondent, they should seek other employment.

Witnesses to the meeting also disagree whether and/or how Mr. Hedrick told
Ms. Rodriguez, Ms. Fanely, and Ms. Vargas that he believed they would vote for the Union to
spite him. Ms. Rodriguez testified that at the conclusion of the meeting, Mr. Hedrick said to
Ms. Rodriguez, Ms. Fanely, and Ms. Vargas, “Well, I know you three will vote for the Union just
to get back at me.” Ms. Fanely recalled that just before he ended the meeting, Mr. Hedrick
turned his chair toward Ms. Rodriguez, Ms. Fanely, and Ms. Vargas and asked, “Are you guys
going to vote union just to get back at me?” Ms. Walker testified that Mr. Hedrick said to
Ms. Fanely and Ms. Vargas, “Because you’re not happy, so instead of coming to me, you are
going to go vote yes for the union.” Neither Ms. Vargas nor Ms. Ornelas recalled any such
comment, although Ms. Ornelas said Mr. Hedrick, laughing, asked Ms. Fanely, “Oh, is that why
you are going to vote for the Union, just for having a day off?” While I am unable to determine
specifically what Mr. Hedrick may have said about voting for the Union, I find he expressed an
expectation that Ms. Rodriguez, Ms. Fanely, and Ms. Vargaws would vote for the Union in the
upcoming election.

Both Ms. Lowe and Ms. Garcia were aware that Ms. Rodriguez and Ms. Fanely got
upset with Mr. Hedrick in the meeting: following the meeting, Ms. Rodriguez told Ms. Garcia that
she was displeased at how unprofessional Mr. Hedrick had been, and Ms. Lowe told
Ms. Vargas she knew what had occurred in the meeting. About six weeks after the meeting,
Respondent promoted Ms. Vargas to a CSR-2 position.

A representation election conducted by the Board on August 20 resulted in the
certification and corrected certification on August 30 and November 19, respectively, of the
Union in the following unit of Respondent’s employees:

All full-time and regular part-time customer service representatives I, II, III and
customer service-clerk-telephone center [employees] 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.

D. The July 7 Unsatisfactory Performance Evaluation
and Termination of Ms. Rodriguez

Sometime in March, Ms. Lowe and Ms. Garcia met with Ms. Rodriguez for her three-
month progress review. Ms. Lowe told Ms. Rodriguez she was doing “pretty good.” she praised
Ms. Rodriguez’ performance in connecting customers and communicating effectively with them.
She said nothing about any attitude problems but reminded her, as she did all employees, to
watch her tardiness or “schedule adherence.” Ms. Rodriguez said she did not feel she had
sufficient training to be comfortable in the job. Ms. Lowe said the best way to learn was on the
job.

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Beginning at least in March, Ms. Rodriguez told coworkers she did not like the way the
Chelmont office was running, that she thought supervision showed favoritism to CSR Hilda
Bautista (Ms. Bautista), especially with regard to attendance. On May 28, Ms. Rodriguez sent
the following email to Ms. Lowe, protesting denial of leave:

ROSE I KNOW I AM SUPPOSE TO CHECK IN ADVANCE IF I CAN HAVE
SOME TIME OFF. WELL I ASKED BACK IN APRIL IF I COULD HAVE THE 16TH
OF AUGUST OFF FOR THE FIRST DAY OF SCHOOL. I WAS TOLD NO
BECAUSE LUCY WAS OFF!

HILDA ASKED FOR JUNE 1ST & 2ND TODAY…IT WAS APPROVED! BY THE
WAY SHE CALLED IN SICK ON WEDNESDAY I WAS OUT AND THEN SHE
LEFT TODAY FRIDAY EARLY.

I AM VERY UPSET BECAUSE I AM ASKING ALMOST 3 MONTHS IN
ADVANCE AND I GET A NO BECAUSE LUCY IS ON VACATION.

SOMETHING IS WRONG HERE. MAYBE WE NEED TO TALK ABOUT THIS
WHEN YOU GET BACK.

Ms. Lowe responded as follows:

…I apologize for any confusion. I am always trying to do things to improve our
operations, but it’s trial and error. I do not see a problem with you taking the 16th
of August off and I will let the others know that it is possible to let more than one
person off per office.

At the June 7 meeting with Mr. Hedrick, Ms. Rodriguez expressed negative opinions of
CSR working conditions, as described above. Ms. Garcia heard Ms. Rodriguez complain to
other employees about conditions at Respondent compared to her previous employment.

In early July, Ms Lowe filled out “Probationary Employee’s Six Month Rating Sheet” for
Ms. Rodriguez, evaluating her in the following job performance areas as follows:

1. Job knowledge: Does employee know job requirements well? NO
2. Quality of work: Is quality of work good? NO
3. Quantity of work: Is quantity of work meeting standards? NO
4. Safety: Does employee try to work safely and follow safety rules? YES
5. Initiative: Is employee a “Self-Starter”? NO
6. Dependability: Can you count on the employee to follow
instructions and to do what you expect? NO
7. Conduct: Does employee follow conduct rules? NO
8. Punctuality: Is employee at work on time regularly? NO
9. Cooperation: Does employee try to work as a team member? NO
10. Does employee meet established standards regularly? NO
11. Has this employee been fully trained in his/her job? NO
12. Is employee making satisfactory progress in training? NO

The attached explanation of the evaluation ratings, reads in pertinent part:

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Ceci did not complete the [required] four to six weeks training at the Fabens
office location. Although her training [was scheduled to] commence in January at
Fabens, Ceci gave personal transportation problems as the reason why she
could not continue…By mid-March or April there still was no resolution so we
began her training at the Chelmont office. This has been a slower process
because customer activity at Chelmont is the busiest of all EPE outlying offices
and inhibits and lengthens the training process. Meanwhile, the rate of errors in
Ceci’s work and the level of assistance she needs to perform her duties affect
EPE’s level and quality of customer service. She has not met the level of skill
and knowledge expected within six months.

Shortly after employment, Ceci expressed her inability to report to work at
7:45 a.m. Her children had started school and she needed to drop them off at
8:00 a.m. Understanding that this was a temporary situation until she could
make other arrangements, I changed her reporting time from 7:45 a.m. to
8:15 a.m. In spite of this accommodation, she reported late (after 8:15 a.m.) on
numerous occasions, of which four were documented. On another occasion, I
advised all CSRs to come in at 7:30 a.m. because the company had been closed
three straight days due to a holiday and it would take extra time to process night
depository payments on a timely basis. Ceci reported to work at 8:15 a.m. I was
in my office with the Chelmont office leader. I asked Ceci if she had forgotten
that I directed everyone to report early that day. Ceci responded, “Rose, I told
you that I can’t come in before 8:15 a.m.” Then she walked off.7

Ceci’s conduct at work the last six months has not been conducive to positive,
professional working relationships and a team environment.

Ceci has displayed a noticeable negative attitude towards others in the way she
talks to co-workers and sometimes, even customers. She has been loud, rude
and has projected negative body language such as rolling her eyes and
shrugging her shoulders. She has been particularly condescending towards her
coworkers.
….
All vacation schedules were turned in by February 1. Ceci was angry because
one of the days she requested was unavailable. She sent me an inflammatory
note on May 28, because she was still pressing for the unavailable day upcoming
in August. I responded with a note to let her know circumstances had changed; I
could probably permit her to take the day off and we should talk about it when I
returned from the Fabens office a day or two later. In spite of my note, Ceci was
quiet and moody with co-workers to the point of not even exchanging simple
7 No evidence was presented as to when this incident occurred, and there is no evidence
that Ms. Rodriguez was disciplined as a result. Ms. Rodriguez testified without contradiction
that on one occasion Ms. Lowe said she wanted all CSRs at work by 7:45. Ms. Rodriguez
received permission from Ms. Garcia to come in at 8:15, but when she reported at that time,
Ms. Lowe said in an abrupt manner, “Didn’t I tell you to get here at 7:45?” When Ms. Rodriguez
said she had cleared it with Ms. Garcia, Ms. Lowe said, “Well, the next time I tell you, you be
here at 7:45.” It is reasonable to infer that the two accounts reflect the same incident. I accept
Ms. Rodriguez’ version. No one corroborated any such insubordination as described by
Ms. Lowe, and if Ms. Rodriguez had flouted Ms. Lowe’s authority as represented, it is
improbable that further action, or at least comment, would not have ensued.

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greetings. When I returned and we met, she stated…, “I am not the same person
I was before.” I replied, “Ceci, we all have bad days.” She said, “No, this is the
way I am now.”

Ceci’s conduct has not had a positive effect on team environment and spirit. She
has looked for the negative in others and has even challenged why others ask
questions related to job functions. She has shown a defensive attitude when
being questioned about work processes and tasks.

It is not recommended that this employee become a regular employee.

At the hearing, Ms. Lowe explained the basis of her twelve-criteria assessment of
Ms. Rodriguez, as follows:

1. Job Knowledge: Ms. Rodriguez still required a lot of help to “complete her training
and to do the basics as far as customer service, and general information for
customers.” She was still making errors.
2. Quality of work: Ms. Rodriguez averaged two errors a day.
3. Quantity of work: Ms. Rodriguez’ non-cashier customer walk-ins were “very minimal
compared to the amount that the others were taking.”
4. Safety: Ms. Rodriguez worked safely.
5. Initiative: Ms. Rodriguez required help with a lot of accounts. “She couldn’t just start
looking things up. We had to walk her through it.”
6. Dependability: “On occasions we needed [extra help with] different things, and it
wasn’t there.”
7. Conduct: “[T]his goes to our code of conduct, attitude, that falls in the respective of
the attitude, and because she had several incidents, not witnessed just by me but by
others, she did not meet the conduct.”
8. Punctuality: Occasionally Ms. Rodriguez was late and missed work for various
doctor appointments and other things.
9. Cooperation: Ms. Rodriguez “did her work, got her stuff done, and would go.
She…seldom worked with the others.”
10. Meet established standards: Ms. Lowe gave no specific explanation other than as set
forth above.
11. Fully trained: Ms. Rodriguez did not complete her training.
12. Satisfactory progress: Ms. Lowe gave no specific explanation other than as set forth
above.

With regard to attitude, Ms. Lowe testified that Ms. Rodriguez was angry and showed
she disliked being at work, saying, “I really hate being here.” When Ms. Lowe told her she was
just having a bad day, Ms. Rodriguez replied on several occasions, “No, this is the way I am
now.” Ms. Lowe also testified that Ms. Rodriguez “answer[ed] Yvonne or … some of the CSRs
[in a negative] tone of voice, the body language, the roll of the eyes, suggestions, and stuff like
that…” Ms. Garcia also thought Ms. Rodriguez had a negative attitude in that she “constantly
complain[ed] about how things were done at El Paso Electric compared to her previous
employment [in a bank].” Ms. Garcia noticed Ms. Rodriguez criticized Respondent to other
CSRs in her presence and said she did not like to work for the company. Ms. Lowe never told
Ms. Rodriguez her attitude was a problem prior to her discharge.

During 2004, all CSRs, even nonprobationary employees, made mistakes, but the
probationary employees made more than the seasoned employees. Both Ms. Lowe and
Ms. Garcia believed Ms. Rodriguez’ errors predominated. Ms. Lowe did not, however, single

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out Ms. Rodriguez for counseling about mistakes but told all three new hires they needed to
improve in customer training, saying they were making some errors. At the hearing,
Respondent presented records of CSR mistakes showing the following:

During the period June 24 through July 1, Ms. Rodriguez made ten mistakes.
During the period June 1 through October 28, Ms. Walker made nine mistakes.
During the period April 20 through December 14, Ms. Ornelas made 12 mistakes.

The above documentation of CSR mistakes is not clearly reliable. Respondent did not explain
why it selected three different demonstrative periods; there is no evidence that mistake
documentation was automatic or consistent rather than discretional, and Ms. Fanely and
Ms. Ornelas observed that Ms. Garcia, who openly pointed out CSRs’ mistakes, did so more
frequently to Ms. Walker and Ms. Ornelas than to Ms. Rodriguez. Moreover, Ms. Ornelas
testified that Ms. Garcia pointed out to her far more mistakes than the proffered records
identified. I cannot, therefore, give significant weight to this documentation. Prior to her
discharge, Respondent did not inform Ms. Rodriguez she was making an unacceptable number
of mistakes.

With regard to employee attendance, Ms. Lowe looked for patterns, such as Monday,
Friday, or before or after payday tardiness. She did not notice any such pattern with
Ms. Rodriguez, but she explained why she focused on Ms. Rodriguez’ absences: “[T]here was
quite—a couple, and I noticed that the doctor appointments, and because she was on probation
they have to be there. It’s a little bit more – it’s different when you’re on probation than when
you’re a seasoned employee.” Employee time-off records from January through June show that
Ms. Rodriguez did miss more time than the other two probationary CSRs; the records also show
that Ms. Bautista missed more time (by approximately 100 hours) than any other CSR. Prior to
her discharge, Respondent did not inform Ms. Garcia she was missing too much work.

Ms. Lowe testified that she also terminated Ms. Rodriguez because she was “not a
team player,” which Ms. Lowe explained as an unwillingness to cooperate or to stay after hours
and help out other workers. Ms. Lowe never spoke to Ms. Rodriguez specifically about not
helping her coworkers but told all the employees they had to help each other. Ms. Lowe’s
testimony regarding Ms. Rodriguez’ work ethic and attitude was contradicted by another of
Respondent’s witnesses, Ms. Munoz. Ms. Munoz, a Fabens’ CSR who at various relevant times
filled temporary details to the Chelmont office, testified that Ms. Rodriguez preferred cashiering
to customer service, which she was having difficulty with. However, Ms. Munoz observed
Ms. Rodriguez to be “peppy, outgoing, very hard working…[and that she] picked up a lot of the
slack there.”

After receiving input from Ms. Garcia, Ms. Lowe discussed her decision with Judy
Kummrow (Ms. Kummrow) and with Dahlia De Los Santos (Ms. De Los Santos) of Human
Resources. Ms. Kummrow agreed Respondent should terminate Ms. Gonzalez for the following
reasons: failure to complete the CSR training, poor job performance, “unavailability to conduct
business,” and an “attitude in the workplace that was not conducive to a teamwork
environment.”

On July 7, Ms. Lowe and Ms. De Los Santos, Respondent’s Human Resources
representative, met with Ms. Rodriguez. Ms. Lowe told Ms. Rodriguez that she had not passed
her probation and that Respondent would not keep her as a full time employee, as she was not
a good fit for the job. When Ms. Rodriguez asked why, Ms. Lowe went through each item of
Ms. Rodriguez’ end-of-probation review. Ms. Lowe told Ms. Rodriguez she was not a team
player, did not get along well with others, and made working at Chelmont difficult.

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E. The September 29 Disciplinary Warning to Ms. Fanely

Ms. Fanely, employed since August 21, 2002, was an outspoken union supporter in
2004 and wore a union pin during the summer. Although Ms. Lowe denied knowing Ms. Fanely
was a union supporter during 2004, she admitted that Ms. Fanely was the only CSR who wore a
union pin, which she brought to Ms. Lowe’s attention, saying, “Do you like my pin?” Ms. Fanely
frequently complained to Ms. Lowe that she had to do much of Ms. Garcia’s job without
compensation. She also complained to Ms. Lowe, on behalf of Ms. Walker and Ms. Ornelas,
that the two new CSRs had to do their follow-up work during their lunch and break time.

Ms. Garcia testified that beginning in March, after she was named office team leader,
Ms. Fanely developed a negative attitude: she was not “a team leader;” she was defensive; she
protested that certain tasks were not her “job;” she didn’t say “good morning,” and she slammed
drawers.

On July 22, Respondent met with Ms. Fanely for her six-month written review, at which
Ms. Garcia was present. Despite Ms. Garcia’s perception of Ms. Fanely’s ongoing negativity,
the review was glowing. In pertinent part, the review reads:

[Ms. Fanely] has assisted her fellow team members showing them how to
analyz[e] customer concerns and issues with a favorable outcome…[Ms. Fanely]
is diligent about following rules and regulations. She tries to insure that the other
employees are aware of any changes that have taken place or brings it to the
supervisor’s attention…[Ms. Fanely] is well aware of her job duties and continues
to provide good customer service. She is helpful to her fellow co-workers and is
willing to change her reporting hours as needed…

Although the July 22 review contained no criticism of Ms. Fanely and cited no behavior
or work issue needing improvement, according to Ms. Lowe, sometime in July Ms. Fanely’s
work attitude began to deteriorate. Ms. Lowe enumerated the following as evidence of
unacceptable attitude:

(1) Ms. Fanely’s became quiet and rude as evidenced by her turning her back on her
supervisor while she was speaking or by not responding.
(2) At Ms. Fanely’s July 22 six-month review, Ms. Fanely questioned why Ms. Garcia
was present.8
(3) On one occasion in August Ms. Fanely stayed overtime although Ms. Garcia
specifically refused permission. The following day, Ms. Fanely told Ms. Lowe of it,
“throwing” papers at Ms. Lowe to demonstrate what she had worked on. When
8 Ms. Lowe testified that Ms. Fanely “really [made] a fuss” over Ms. Garcia being present.
However, Ms. Lowe’s contemporaneous memo notes that although Ms. Fanely “appeared
angry,” she merely said, “I thought this was just the supervisor and me.”

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(4) Ms. Lowe told Ms. Fanely her conduct was insubordinate, Ms. Fanely walked away.9
(5) At an August 24 one-on-one meeting with supervisors regarding statistics keeping,
Ms. Fanely was defensive, gave short answers, seemed angry, and would not make
eye contact.
(6) Complaints from other workers that Ms. Fanely was rude and abrupt, specifically, the
following:
(a) In her exit interview of September 9, Ms. Bautista said Ms. Fanely would not
respond when spoken to, told employees to slow down and not work so hard,
and would not help with daily operations unless Ms. Lowe was present.10
(b) At about the same time, Ms. Munoz, at the Chelmont office on temporary
assignment, reported to Ms. Lowe that Ms. Fanely, in the break room, had
said, “I hate her. I hate Hilda. I f—ing hate her.” Ms. Munoz said she did not
want to work at Chelmont any more, as it was not a good work
environment.11
(c) On September 21, Respondent held a code-of-conduct training session with
CSRs, including Ms. Fanely. Ms. Kummrow and Ms. Lowe were also
present. When the presenter, Alva Telles, stated that employee medical
information was confidential and that a supervisor could not contact an
employee’s doctor, Ms. Fanely said that sometime in the past, a supervisor
had contacted her doctor. Ms. Kummrow responded that the incident had
happened years ago and had been corrected. Ms. Fanely said that she
needed to know because she did not want it to happen again. Following the
meeting, Grace Valdespino, Anthony office team leader, reported in an email
to Ms. Kummrow, later forwarded to Ms. Lowe, that while sitting beside
Ms. Fanely in the meeting, she “felt an aura [of tension] around her…Her
comment gave me the impression that she is still holding a grudge or still
angry about that supervisor calling her personal physician to verify an
9 Ms. Lowe’s contemporaneous memo of the incident notes that Ms. Fanely “shuffled”
papers to show Ms. Lowe what she had worked on. Ms. Lowe testified that she told Ms. Fanely
she had an attitude they needed to try and resolve, but the memo reflects no such statement.
Although Ms. Fanely admitted she stayed late on August 10 without permission, she essentially
testified that she intended to work without compensation and that she reported as much to
Ms. Lowe, who thereafter increased follow-up time for everyone. Ms. Fanely denied that
Ms. Lowe said she was insubordinate. Based on Ms. Lowe’s manner and demeanor in
testifying, her erroneous denial that she knew Ms. Fanely supported the Union, and the
inconsistency between her memo and her oral testimony, I credit Ms. Fanely’s account.
10 Ms. Lowe was aware that Ms. Bautista had an uncongenial relationship with a number of
CSRs. Ms. Lowe noted in a memorandum that Ms. Munoz complained of Ms. Vargas and
Ms. Ornelas being “sarcastic” toward Ms. Bautista, of employees whispering behind her back,
and of employees slowing their work. Ms. Munoz testified “there was tension [in the Chelmont
office] because of [Ms. Bautista],” and “we all felt frustration towards [Ms. Bautista].” Ms. Munoz
attributed the whispering and work slowdown to employees’ anger toward their supervisors; she
testified that the subject of Ms. Bautista being treated better than other employees was often
discussed among the Chelmont employees. Ms. Munoz observed that Ms. Fanely “kept to
herself more” and that “nobody was speaking to anybody, the work was just being left behind.”
11 Ms. Munoz said that while in the breakroom, she overheard Ms. Fanely speaking
“maybe…to herself” regarding Ms. Bautista. When Ms. Munoz asked what had happened,
Ms. Fanely declined to explain. The following week, Ms. Munoz told Ms. Lowe about the
incident, as well as describing the tension she felt in the office and giving her opinion that the
work wasn’t being done.

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illness…After the meeting…Elva…asked [Ms. Fanely] a question which was
answered with a minimal response, which I felt was discourteous…I left the
meeting with an impression that [Ms. Fanely] is not moving forward with full
commitment to the company.”

On September 29, Ms. Lowe, in the presence of Sandra Alvarez, Human Resources
representative, Manny Hernandez (Mr. Hernandez), Labor Relations representative, and Felipe
Salazar (Mr. Salazar), union representative, issued a written disciplinary warning to Ms. Fanely,
which reads in pertinent part:

You have made statements and exhibited other behavior in the office that
displays dislike or anger towards others. You also openly resist coaching and
instruction from the office leadership. This behavior is offensive, creates an
uncomfortable work environment, and is in violation of Company policy. As a
result of your behavior, you are receiving a written warning which will be placed
in your personnel file for a period of five years.

In the future you are expected to refrain from abusive, threatening, insubordinate,
or inappropriate behavior towards your fellow employees, customers, or
management…

Ms. Lowe accused Ms. Rodriguez of having used foul language on September 9, which
offended another employee and of having been rude and angry toward Elva Telles in the
September 21 meeting.12 Ms. Lowe also told Ms. Fanely she was rude toward Ms. Garcia
during “coaching”, that she was disruptive, defensive, negative, and verbally abusive, and that a
relief employee had reported feeling uncomfortable around her. Ms. Lowe said she had no
problem with Ms. Fanely’s work but only with her attitude. Mr. Salazar requested additional
details such as witness names, which Mr. Hernandez declined to provide.

F. Alleged Unilateral Changes

At a CSR meeting on August 23, without prior notification to or bargaining with
the Union, Ms. Lowe distributed a list of practices and procedures (the list) to CSRs and,
inter alia, discussed the following:

1. Employees’ lunch hours would change as of September 1 from three
lunch “shifts” to five shifts with shift rotation on the first of each month.
2. CSR transactions would be monitored and “kept as part of [employee
files] and review[ed] for immediate corrections as needed.”13
3. Employees would be noted as late, even if only by one minute, and late
time would be “deducted from [employee] time sheets and [would be] at
no pay.”
4. Employees would be permitted no more than three cashier shortages or
overages per six-month review period.14
12 There is no evidence Elva Telles ever complained about Ms. Fanely’s conduct.
13 Ms. Vargas noticed no change in Respondent’s review or overview of CSR work since the
August 23 meeting, although she presumed Respondent was keeping track of it.
14 According to Ms. Lowe, she “reminded” the employees of that rule. Ms. Fanely,
Ms. Vargas, and Ms. Walker testified that prior to the meeting, they had known of no such rule.
As of the hearing date, no discipline had been instituted as a result of shortage/overage errors.

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A day or so after the meeting, Ms. Fanely gave Mr. Salazar a copy of the list.
Mr. Salazar telephoned Marcelo Rios (Mr. Rios), an employee relations representative of
Respondent and objected to Respondent’s changes in CSR employment terms and
conditions without negotiating with the Union. A few days later, Mr. Salazar met with
Mr. Rios, who told him Respondent had no intention of changing the working rules and
that it was just a misunderstanding. Mr. Salazar asked for something in writing
stipulating that the rules set forth in the list were not going to be implemented. Mr. Rios
refused. Thereafter, Respondent adhered to the new schedule of lunch hours.

IV. Discussion

A. Supervisory/Agency Status of Yvonne Garcia

Section 2(11) of the Act defines a "supervisor" as any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent judgment. "The
possession of even one of those attributes is enough to convey supervisory status, provided the
authority is exercised with independent judgment, not in a merely routine or clerical manner."
Arlington Electric, Inc., 332 NLRB 74 (2000), quoting Union Square Theatre Management, 326
NLRB 70, 71 (1998).

Of those powers enumerated in section 2(11) of the Act, the only one possessed by
Ms. Garcia related to her authority responsibly to direct the Chelmont office CSRs. Ms. Garcia
made work assignments and could take a CSR off one job and assign her to another. She was
in charge of the Chelmont office during the absences of Ms. Lowe, usually two days a week.
There is not, however, sufficient evidence to determine whether Ms. Garcia exercised her
limited authority with independent judgment and not in a merely routine or clerical manner.
Such is the crucial question in deciding her supervisory status. As the United States Supreme
Court noted, "The statutory term 'independent judgment' is ambiguous with respect to the
degree of discretion required for supervisory status...It falls clearly within the Board's discretion
to determine, within reason, what scope of discretion qualifies."15 The Board is careful not to
give too broad an interpretation to the statutory term "independent judgment" because
supervisory status results in the exclusion of the individual from the protections of the Act. Tree-
Free Fiber Co., 328 NLRB 389 (1999); McGraw-Hill Broadcasting Co., Inc., 329 NLRB 454, 459
(1999).

There is no evidence Ms. Garcia independently devised work plans or determined where
or on what tasks CSRs were to work rather than following a system prescribed by Respondent.
Accordingly, I cannot find the General Counsel met his burden of proving Ms. Garcia was a
supervisor of Respondent within the meaning of the Act at any time relevant hereto.16

15 NLRB v. Kentucky River Community Care, 121 S. Ct. 1861, 1867-1868 (2001).
16 As the party asserting Ms. Garcia’s supervisory status, the General Counsel carries the
burden of proving it. Kentucky River Community Care, Inc., 121 S. Ct. 1861, 1866-1867 (2001);
Dean & Deluca New York, Inc., 338 NLRB 1046, 1047 (2003) (“The party asserting
[supervisory] status must establish it by a preponderance of the evidence [citations omitted]”).

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With regard to agency, Section 2(13) of the Act provides:

In determining whether any person is acting as an "agent" of another person so
as to make such other person responsible for his acts, the question of whether
the specific acts performed were actually authorized or subsequently ratified shall
not be controlling.

The Board has noted, “When applied to labor relations… agency principles must be
broadly construed in light of the legislative policies embedded in the Act."17 The Board adopts
the concept of apparent authority and applies the common law principles of agency when
determining whether apparent authority is created, i.e., there must be some manifestation by the
principal to create a reasonable basis for believing the principal has granted authority. In Re
D&F Industries, Inc., 339 NLRB 618, 619 (2003).

Ms. Garcia oversaw the work of the Chelmont CSRs, had the authority to enforce work
rules, and brought employee work issues to the attention of Ms. Lowe. Two days a week,
Ms. Garcia was in charge of the Chelmont office when Ms. Lowe was absent. She corrected
employees when they made mistakes and pointed out infractions of work rules. During the
union campaign, Respondent excluded Ms. Garcia along with Ms. Lowe and other “supervisory
team leader-type” employees from its June 7 meeting, so as not to inhibit the CSRs.
Respondent also utilized Ms. Garcia in its union campaign by having her distribute campaign
literature and “Payday” candy bars that illustrated the bite union dues took from paychecks. On
a daily basis, she conveyed information and decisions pertaining to production and work rules to
the CSRs, moving the employees among workstations as needed. She administered
Respondent's overtime and time off policies and enforced work rules. Importantly, Ms. Garcia
relayed employee issues to Ms. Lowe. Thus Ms. Garcia served as a conduit between
management and the CSRs. In these circumstances, Respondent placed Ms. Garcia in a
position where employees could reasonably believe she acted for management. Ibid; Mid-South
Drywall Co., Inc., 339 NLRB 480 (2003). Accordingly, I find the General Counsel met his
burden of proving Respondent vested Ms. Garcia with apparent authority to act as its agent
within the meaning of the Act at relevant times. Therefore, knowledge possessed by Ms. Garcia
concerning employees’ protected activity is attributable to Respondent.

B. Alleged Independent 8(a)(1) Violations

The General Counsel alleges that in the course of the June 7 meeting, Mr. Hedrick
threatened to discharge employees and threatened employees with unspecified reprisals if they
engaged in union or concerted activities. There is no dispute that employees who asked
questions, complained, or otherwise commented on Respondent’s conditions of employment at
that meeting were engaged in protected activity. The question is whether Mr. Hedrick’s implicit
suggestion that unhappy CSRs should seek other employment and his expressed expectation
that Ms. Rodriguez, Ms. Fanely, and Ms. Vargas would vote for the Union violated Section
8(a)(1) of the Act as threats.

17 Longshoremen ILA (Coastal Stevedoring Co.), 313 NLRB 412, 415 (1933), remanded 56
F.3d 205 (D.C. Cir. 1995).

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In determining whether a statement constitutes a threat in violation of Section 8(a)(1) of the Act,
the Board does not consider subjective factors but rather whether, under all the circumstances,
the statement reasonably tends to restrain, coerce, or interfere with employees' rights
guaranteed under the Act. Reeves Bros. Inc., 320 NLRB 1082, 1084 (1996); Sunnyside Home
Care Project, 308 NLRB 346, fn. 1 (1992).

It would be reasonable for employees to infer from Mr. Hedrick’s remarks that
employees who disagreed with Respondent’s policies were “unhappy” and that unhappy
employees were not likely to be comfortable in continued employment with Respondent. It is
true that Mr. Hedrick did not state explicitly that Respondent would discharge or unfavorably
regard and/or evaluate unhappy employees. However, by telling employees that those who
were displeased with working conditions at Respondent should explore other employment
opportunities, Mr. Hedrick equated employee unhappiness with tenuous job security. Further,
by telling Ms. Rodriguez, Ms. Fanely, and Ms. Vargas he anticipated they would vote for the
Union, Mr. Hedrick communicated his belief that they were “unhappy” employees, subject to the
ramifications of that label. Accordingly, I conclude Mr. Hedrick implicitly threatened employees
with reprisals if they continued to engage in protected activities. See Paper Mart, 319 NLRB 9
(1995); Jack August Enterprises, Inc., 232 NLRB 881 (1977).

C. The Unsatisfactory Performance Evaluation and Termination of Ms. Rodriguez

The question of whether Respondent violated the Act in issuing an unsatisfactory
performance evaluation to and terminating Ms. Rodriguez rests on its motivation. The Board
established an analytical framework for deciding cases turning on employer motivation in Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982). To prove an employee was disciplined and/or discharged in violation of Section
8(a)(3), the General Counsel must first persuade, by a preponderance of the evidence, that an
employee's protected conduct was a motivating factor in the employer's decision. If the General
Counsel is able to make such a showing, the burden of persuasion shifts "to the employer to
demonstrate that the same action would have taken place even in the absence of the protected
conduct." Wright Line, supra at 1089. The burden shifts only if the General Counsel establishes
that protected conduct was a "substantial or motivating factor in the employer's decision."
Budrovich Contracting Co., 331 NLRB 1333 (2000). Put another way, "the General Counsel
must establish that the employees' protected conduct was, in fact, a motivating factor in the
[employer's] decision." Webco Industries, 334 NLRB 608, fn. 3 (2001).

The elements of discriminatory motivation are union activity, employer knowledge, and
employer animus. Farmer Bros. Co., 303 NLRB 638, 649 (1991). Here, these elements are
clearly met: Ms. Rodriguez and Ms. Fanely openly signified union leanings by their comments to
management in the June 7 meeting; Mr. Hedrick affirmed his awareness of their prounion views
when he expressed an expectation that Ms. Rodriguez, Ms. Fanely, and Ms. Vargas would vote
for the Union in the upcoming election, and Mr. Hedrick demonstrated animus toward
employees’ union sympathies and protected activities when he suggested that unhappy CSRs
should seek other employment. Accordingly, I find the General Counsel has met his initial
burden by “making a showing sufficient to support the inference” that Ms. Rodriguez’ protected
activities were motivating factors in Respondent’s decisions to unfavorably evaluate and to
discharge her. Tom Rice Buick, Pontiac & GMC Truck, 334 NLRB 785, 786, fn. 6 (2001).
However, a finding that the General Counsel has met his initial burden does not mean that
Ms. Rodriguez’ evaluation or discharge was in fact “unlawfully motivated.” Id. As the Board has
noted, “The existence of protected activity, employer knowledge of the same, and animus…may
not, standing alone, provide the causal nexus sufficient to conclude that the protected activity
was a motivating factor for the adverse employment action.” Shearer’s Foods, Inc., 340 NLRB

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No. 132, at slip op. 2, fn. 4 (2003); see also American Gardens Management Company, 338
NLRB 644, 645 (2002). The General Counsel’s establishment of those factors does, however,
shift the burden to Respondent to demonstrate that it would have unfavorably evaluated and
discharged Ms. Rodriguez even in the absence of her protected activities.

Respondent contends that as Ms. Lowe made the decision unfavorably to evaluate and
to terminate Ms. Rodriguez, the General Counsel must show Ms. Lowe knew of Ms. Rodriguez’
union activity. Respondent’s argument is flawed. Mr. Hedrick knew or suspected that
Ms. Rodriguez favored the Union, which knowledge, in the present circumstances, must be
imputed to Respondent generally, Springfield Air Center, 311 NLRB 1151 (1993); Dobbs
International Services, Inc., 335 NLRB 972 (2001). Moreover, while there may be no direct
evidence that Ms. Lowe knew Ms. Rodriguez supported the Union,

[i]t is well established that, in the absence of direct evidence, an employer's
knowledge of an employee's union activities may be proven by circumstantial
evidence from which a reasonable inference may be drawn. Such circumstances
may include the employer's demonstrated knowledge of general union activities,
the employer's demonstrated union animus, the timing of the discipline or
discharge, and pretextual reasons for the discipline or discharge asserted by the
employer [citations omitted]. D&F Industries, at 622.

Both Ms. Lowe and Ms. Garcia knew what had occurred in the June 7 meeting.18 Both
were also aware that Ms. Rodriguez criticized Respondent to other employees and said she did
not like working for the company. It is reasonable to infer that Ms. Lowe must have known or at
least strongly suspected that an employee as outspokenly critical of Respondent as
Ms. Rodriguez, was likely to support the Union in its contemporaneous representation
campaign. Moreover, Ms. Lowe based the unfavorable evaluation and consequent discharge
on the following pretextual reasons, which, of themselves, evidence knowledge of and animus
toward Ms. Rodriguez’ protected activities:

1. Ms. Rodriguez’ failure to complete the four to six weeks training at the Fabens office.
Ms. Lowe agreed to place Ms. Rodriguez at the end of the new CSR training queue
but when her turn came, decided instead to train her on the job at Chelmont. For
Respondent to identify incomplete training for which Respondent was responsible as
a basis for poor evaluation/discharge is blatant pretextuality.
2. Ms. Rodriguez’ time and attendance problems. Although Ms. Rodriguez used more
time-off hours than Ms. Walker or Ms. Ornelas, she missed far less time than
Ms. Bautista did. While Ms. Lowe asserted that probationary employees’ attendance
was more closely monitored than regular employees, there is no evidence any
probationary CSR was so informed, and Ms. Lowe never told Ms. Rodriguez her time
and attendance was a problem. Therefore, I conclude this asserted reason was also
pretextual.
3. Ms. Rodriguez’ poor job performance. Respondent’s evidence that Ms. Rodriguez
was responsible for more customer service errors than the other probationary
employees is questionable. Moreover, prior to Ms. Rodriguez’ discharge, Ms. Lowe
never informed her that her error rate was unacceptable or attempted to reinstitute
the missed training. In fact, at her three-month progress review, Ms. Lowe told

18 In contending that there is no evidence Ms. Lowe heard about Ms. Rodriguez’
participation in the June 7 meeting, Respondent has ignored Ms. Vargas’ testimony, which I
credit, that Ms. Lowe admitted to her that she knew what had occurred in the meeting.

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Ms. Rodriguez she was doing “pretty good” and praised her customer
communication skills. To delay criticism of employee performance until the hour of
discharge, as Respondent did here, creates a strong inference of pretextuality.
4. Ms. Rodriguez’ “attitude in the workplace was not conducive to a teamwork
environment.” In March, Ms. Low praised Ms. Rodriguez’ interaction with customers
and identified no attitude problem. Four months later, without any intervening
comment or counseling, Ms. Lowe implicitly recanted her positive March assessment
and asserted in Ms. Rodriguez’ six-month rating sheet that her “conduct at work the
last six months ha[d] not been conducive to positive, professional working
relationships and a team environment [emphasis added].” Ms. Lowe did not explain
why her opinion of Ms. Rodriguez changed so drastically between March and July,
and her description of Ms. Rodriguez’ poor attitude was vague, relying on such
nonspecific terms as “negative body language,” moody, angry, and condescending.
In contrast, Respondent’s witness, Ms. Munoz, described Ms. Rodriguez as “peppy,
outgoing, very hard working” and commended her for picking up the slack at the
Chelmont office. Given the contradictory accounts of Ms. Rodriguez’ attitude as well
as Ms. Lowe’s nebulous and tergiversating depiction, I can only conclude that this
proffered reason for discharge was, like the others, pretextual.

Respondent points out that Ms. Vargas, who engaged in conduct at the June 7 meeting
“virtually identical” to that of Ms. Rodriguez and Ms. Fanely and was a well-known union
supporter, was promoted following the meeting. This promotion, Respondent argues, militates
against a finding that union animus could have motivated its termination of Ms. Rodriguez.
While Ms. Vargas did speak up, Ms. Rodriguez and Ms. Fanely were the clearly the meeting’s
cynosures. Of the comments made at the meeting, Sylvia Porter, Respondent’s assistant
general counsel, could only recall specifically those made by Ms. Rodriguez and Ms. Fanely;
Mr. Hedrick described Ms. Rodriguez as being clearly upset, and he admittedly was frustrated
that she “dominat[ed] the meeting” with a discourse he could not stem and which he perceived
to be aimlessly repetitious. Thus Ms. Vargas’ participation in the meeting cannot be said to
parallel that of either Ms. Rodriguez or Ms. Fanely. Moreover, it is well established that
evidence of unlawful discrimination is not disproved simply because not all union supporters are
adversely affected. Volair Contractors, 341 NLRB No. 98, fn. 17 (2004).

Respondent correctly asserts that the Act cannot insulate an employee from the
consequences of disruptive conduct, and I also recognize the fact that an employer may desire
to retaliate against employees or to curtail union activities does not, of itself, establish the
illegality of a discharge. If an employee provides an employer with sufficient cause for dismissal
by engaging in conduct that would, in any event, have resulted in termination, the fact the
employer welcomes the opportunity does not render the discharge unlawful. Avondale
Industries, Inc., supra; Klate Holt Company, 161 NLRB 1606, 1612 (1966). Further, it is well
established the Board "cannot substitute its judgment for that of the employer and decide what
constitutes appropriate discipline.” Detroit Paneling Systems, Inc., 330 NLRB 1170, 1171 fn. 6
(2000) and cases cited therein. Nonetheless, the Board’s role is to ascertain whether an
employer’s proffered reasons for disciplinary action are the actual ones. Ibid.

Respondent argues that it has satisfied its affirmative defense burden by demonstrating
that Ms. Rodriguez would have been terminated notwithstanding her protected activity. In
meeting its burden, Respondent must show that Ms. Rodriguez’ termination would have (not just
could have) occurred regardless of her dissatisfaction with Respondent and her support of the
Union. Yellow Enterprise Systems, Inc. 342 NLRB No. 77, slip op. 1 (2004); Avondale
Industries, Inc., 329 NLRB 1064 (1999); T&J Trucking Co., 316 NLRB 771 (1995). Inasmuch
as I have concluded that the asserted reasons for Ms. Rodriguez’ termination are pretextual, it

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follows that they cannot form a legitimate basis for Ms. Rodriguez’ discharge. Moreover, the
specific behavior Respondent cites as demonstrating Ms. Rodriguez’ bad “attitude,” for which
she was fired, is protected: complaining about how the Chelmont office was run, making
negative comments about Respondent, and objecting to Ms. Lowe about disparate leave
treatment, an issue that engendered protest from many employees. Ms. Rodriguez’ attitude, as
perceived by Ms. Garcia and Ms. Lowe, is so integrally connected with Ms. Rodriguez’ protected
complaints about working conditions, that her discharge on that basis is unlawful under the Act
regardless of Respondent’s motivation, unless Respondent can show that Ms. Rodriguez
engaged in misconduct. While Respondent may genuinely have believed that Ms. Rodriguez’
discontent and complaining constituted misconduct, that is not sufficient to justify her discharge
under. In Burnup & Sims, 379 U.S. 21 (1964), the Supreme Court affirmed the Board's rule that
an employer violates Section 8(a)(1) by discharging or disciplining an employee based on its
good faith, albeit mistaken, belief the employee engaged in misconduct in the course of
protected activity. Id. at 23-24. The evidence herein does not establish that Ms. Rodriguez
engaged in misconduct. There is no evidence her attitude was disruptive to employee relations,
caused dissension, adversely affected any employee’s work performance, disturbed or hindered
the work, or was beyond the bounds of what is protected by the Act.19 Indeed, no supervisor
even mentioned her attitude to her prior to her discharge.

Accordingly, Respondent not having met its burden of demonstrating that it would have
given Ms. Rodriguez an unfavorable evaluation and discharged her even in the absence of her
protected conduct, I find Respondent violated Section 8(a)(3) and (1) of the Act by doing so.

C. The Disciplinary Warning to Ms. Fanely

The Wright Line analysis utilized in resolving the issues related to Ms. Rodriguez applies
to the discipline Respondent imposed on Ms. Fanely. The General Counsel must prove the
elements of discriminatory motivation regarding Ms. Fanely’s disciplinary warning: union activity,
employer knowledge, and employer animus. The General Counsel has satisfied its burden.
Ms. Fanely along with Ms. Rodriguez revealed her union sympathies in the June 7 meeting, and
Mr. Hedrick evidenced both knowledge and animus, as set forth above. In addition to her role in
the June 7 meeting, Ms. Fanely was a prominent union adherent: she was the only CSR to wear
a union button, which she brought to Ms. Lowe’s attention. Ms. Fanely also engaged in other
protected activities, such as remonstrating with Ms. Lowe against Respondent permitting two
new CSRs to work on their own time.

Respondent argues that Ms. Fanely has been a known union supporter for years without
retaliation from Respondent, which vitiates the General Counsel’s contention that union animus
prompted the disciplinary warning. Respondent’s argument is unpersuasive; an employer may
alter its union stance at any time, and the Board has noted that an employer’s past indifference
to union activity does not preclude a discrimination finding. Yellow Ambulance Service, supra at
slip op. 3. Accordingly, I find the General Counsel has made “a showing sufficient to support
the inference” that Ms. Fanely’s protected activities were motivating factors in Respondent’s
19 Respondent describes Ms. Rodriguez’ email to Ms. Lowe in which she protested leave
disparity as “insubordinate.” Not only is there nothing in the email that suggests
insubordination, Ms. Lowe’s response shows no displeasure, and there is no evidence she ever
expressed any dissatisfaction with either the email or Ms. Rodriguez’ request for time off.
Accordingly, I find Ms. Rodriguez’ email was not insubordinate.

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decision to issue her a disciplinary warning. The burden of persuasion thus shifts "to
[Respondent] to demonstrate that the same action would have taken place even in the absence
of [Ms. Fanely’s] protected conduct." Wright Line, supra at 1089.

Respondent argues that, even assuming the General Counsel met its Wright Line
burden, Respondent would have disciplined Ms. Fanely regardless of any union animus
because of her unacceptable “attitude,” as described by Ms. Lowe’s following summary:

(1) Quietness and rudeness to her supervisor.
(2) Questioning why the office team leader was present during her July
review.
(3) Insubordination in staying overtime in August.
(4) Defensive, angry manner in an August meeting with supervisors.
(5) Coworker complaints.

In determining whether Respondent met its burden, I do not consider whether Respondent’s
discipline of Ms. Fanely was either wise or well supported but only whether Respondent has
shown it would have disciplined Ms. Fanely notwithstanding her union or other protected
activity. See West Limited Corp., 330 NLRB 527, fn. 5 (2000).

Respondent does not dispute that Ms. Fanely was an excellent worker; it takes issue
only with her attitude, which Respondent asserts underwent a dramatic change in 2004. There
is inconsistency in Respondent’s evidence as to when Ms. Fanely’s attitude changed from
excellent to unacceptable: Ms. Garcia dates the deterioration in March; Ms. Lowe claimed it
started sometime in July. Documentary evidence doesn’t support either timing. As of July 22,
the date of Ms. Fanely’s six-month review, Respondent was fully satisfied with Ms. Fanely’s
work, and Ms. Fanely’s written review reflected no attitude problems. In the review, Ms. Lowe
praised Ms. Fanely as “helpful to her fellow co-workers” and “diligent about following rules and
regulations,” the apparent antithesis of an attitude problem. Ms. Garcia was present during the
review, and there is no evidence she objected to or even presented any differing view as to
Ms. Lowe’s assessment of Ms. Fanely. Consequently, I discount Ms. Garcia’s testimony that
Ms. Fanely exhibited attitude problems beginning in March. I also discount Ms. Lowe’s
testimony that the problems began in July. For Ms. Lowe’s timing to be accurate, Ms. Fanely
would have had to make an attitudinal volte-face in the nine days of July remaining after
Ms. Lowe gave her a glowing review. The likelihood of that happening is so inherently
incongruous, that I cannot accept it without persuasive supporting evidence, which Respondent
has not provided.20 With regard to Respondent’s contention that Ms. Fanely was rude to her
supervisors, Respondent has not supported the accusation with reliable details. As set forth
above, I have discounted Ms. Garcia’s testimony to that effect, and the vagueness of
Respondent’s rudeness accusations and the lack of specific supporting evidence thereof
constitute additional evidence of pretext. I do not accept, therefore, that Respondent was
dissatisfied with Ms. Fanely’s attitude in or before July, and I find Respondent’s unreliable
assertion of it is evidence of pretext.

20 Ms. Fanely’s alleged behavior at the review does not provide supporting evidence. Not
only have I declined to accept Ms. Lowe’s account of Ms. Fanely’s behavior, Ms. Fanely’s
apparent displeasure at the presence of Ms. Garcia could not have come as a surprise to
Ms. Lowe since Ms. Fanely frequently complained of having to do much of Ms. Garcia’s job,
which, given the favorable review, apparently had not diminished Ms. Lowe’s good opinion of
Ms. Fanely.

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On August 20, Respondent’s CSRs selected the Union as their bargaining
representative in a Board-conducted election. Thereafter, according to Respondent, Ms. Fanely
exhibited defensiveness and angry brusqueness at an August 24 meeting with supervisors. I
cannot give credence to Respondent’s proffered evidence of that. No supervisor pointed out to
Ms. Fanely that her manner or conduct in the August 24 meeting was objectionable until
Ms. Lowe issued the September 29 warning. As for the email from Lucy Estrada to Ms. Lowe
commenting on Ms. Fanely’s “negative” responses at the August 24 meeting, several factors
persuade me to place scant confidence in it: Respondent has not explained why Ms. Estrada
waited for over three weeks to express her disapproval of Ms. Fanely’s behavior, and the email
itself reads like a belated documentation of the incident. Both the tone of the email and its
timing create a reasonable inference that Respondent was attempting to strengthen a weak and
pretextual complaint against Ms. Fanely. Respondent’s accusation that Ms. Fanely was
insubordinate when she worked overtime in August is similarly untrustworthy. Respondent
clearly did not think the incident merited discipline when it occurred, and, in fact, Ms. Lowe
condoned Ms. Fanely’s action. For Respondent now to cite Ms. Fanely’s conduct in that
instance as insubordination is additional evidence of pretext. It remains to consider
Respondent’s claims that coworker complaints about Ms. Fanely justified the discipline.

Respondent cites three employee reports it relied on in disciplining Ms. Fanely:
Ms. Bautista and Ms. Munoz’ September 9 reports and Ms. Valdespino’s report of discourtesy to
a guest presenter on September 21. As to Ms. Bautista’s complaint, Respondent conducted no
investigation of her assertions, even though Respondent had to have known circumstances
existed that might account for Ms. Bautista’s criticism of Ms. Fanely or at least impact her
credibility. Ms. Lowe must have known there was bad blood between Ms. Bautista and nearly
every other CSR; Ms. Munoz told her the CSRs were sarcastic toward Ms. Bautista and
whispered behind her back. Ms. Munoz also told Ms. Lowe that “nobody was speaking to
anybody, the work was just being left behind.” There was nothing in Ms. Munoz’ report to link
low morale or work slowdown to Ms. Fanely; her comments were, rather, an indictment of the
entire office. It is reasonable, therefore, to expect that if Respondent were sincerely interested
in arriving at the truth and improving morale, it would not have accepted Ms. Bautista’s
condemnation of Ms. Fanely so readily. Respondent’s failure to conduct any further inquiry
suggests Respondent had a less innocent objective. As for Ms. Munoz’ report that Ms. Fanely
had angrily expressed her dislike toward Ms. Bautista in the breakroom, very little inquiry would
surely have elicited the ameliorating information that Ms. Fanely made the comments to herself,
did not attempt to involve or abuse any other employee, and declined to gossip about
Ms. Bautista. Respondent’s failure to conduct any investigation into that incident and its failure
to give Ms. Fanely an opportunity to explain her alleged conduct before imposing discipline
significantly support a finding that Respondent’s motivation in issuing a warning to her was
discriminatory. See Midnight Rose Hotel & Casino, Inc., 343 NLRB No. 107, slip op.3 (2004).

Finally, Ms. Valdespino’s criticism of Ms. Fanely’s September 21 conduct is so vague
and trivial that Respondent’s reliance upon it is nearly inexplicable. Ms. Valdespino accused
Ms. Fanely of radiating an “aura” of tension, of giving the impression of unwillingness to “[move]
forward with full commitment to the company,” and of giving the code-of-conduct trainer a
minimal response, which Ms. Valdespino--not the trainer--thought discourteous. The only
accusation of any substance is that relating to rudeness to the trainer. However, there is no
evidence Respondent made any attempt to find out from the trainer if Ms. Fanely’s manner had
offended her, and Ms. Valdespino’s description of the rudeness doesn’t permit a reasonable
inference that Ms. Fanely had been, as Respondent asserted in the disciplinary meeting, rude
and angry toward the trainer.

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Inasmuch as Respondent’s evidence of Ms. Fanely’s alleged transgressions suffers from
the above-described deficiencies, I cannot give it significant weight. Accordingly, I find that
Respondent has failed to show it would have taken action against Ms. Fanely in the absence of
her protected activities and that Respondent violated Section 8(a)(3) of the Act by issuing a
written disciplinary warning to Ms. Fanely on September 29.

D. The alleged Unilateral Changes

Respondent at no time discussed any term or condition of unit employees’ employment
with the Union. Therefore, if Respondent’s modifications of the following employment matters
are material, substantial, and significant changes to unit wages, hours, and other terms and
conditions of employment, they constitute unilateral changes in violation of Section 8(a)(5) of the
Act: 21

1. Change in employee lunch hour schedules.
2. Monitoring of CSR transactions for review and correction.
3. Notation of employee tardiness.
4. Restriction of employees to no more than three cashier shortages or overages per six-
month review period.

Respondent argues that the General Counsel has not met its burden of proving that the
changes alleged in the complaint are actually alterations of Respondent’s former and
established practices. I agree with Respondent that the General Counsel has not shown that
items 2 and 3, the monitoring of CSR transactions and notation of employee tardiness, are
significant changes. The evidence shows that Respondent conducted some method of
monitoring transactions, i.e., a number of witnesses related supervisor notification of mistakes
they had made, and Respondent’s attendance records show notation of employee absences in
small increments. While it may be that some alteration of past procedure occurred with regard
to mistake monitoring and tardiness recordation, where the change is merely a tightening of
existing standards or discipline, pre-implementation bargaining is not required. See Bath Iron
Works Corp, 302 NLRB 898 at 901 where the Board cited with approval the finding of Trading
Port, 224 NLRB 980 (1976) that where the standards [of productivity/efficiency] and sanctions
remained the same, the related “tightening of the application of existing disciplinary sanctions
did not require bargaining with the union.”

However, the evidence reveals that Respondent’s change in CSR lunch hour schedules
was a significant departure from past practice and impacted unit conditions of employment. See
Meat Cutters Local Union 189 v. Jewell Tea Co., 381 U.S. 676, 691 (1965), Eugene Iovine, Inc.,
328 NLRB 294 (1999). Likewise, Respondent’s institution of a cashier shortage and overage
limitation was a departure from past practice and presumably provided new grounds for
discipline, thus impacting job security. Bath Iron Works Corp., supra; see also Brimar
Corporation, 334 NLRB 1035 (2001). Accordingly, I find that Respondent violated Sections
8(a)(5) and (1) of the Act when it unilaterally changed CSR lunch hour schedules and altered
cashier shortage and overage limitations.

21 NLRB v. Katz, 369 U.S. 736 (1962); NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958);
NLRB v. Dothan Eagle, 434 F.2d 93 (5th Cir. 1970); In Re Beverly Health and Rehabilitation
Service, 335 NLRB 635 (2001).

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Conclusions of Law

1. Respondent violated Section 8(a)(1) of the Act by impliedly threatening employees with
reprisals if they continued to engage in union or other protected activities.

2. Respondent violated Section 8(a)(3) and (1) of the Act on July 7 by issuing an unsatisfactory
performance evaluation to and by discharging Ms. Rodriguez.

3. Respondent violated Section 8(a)(3) and (1) of the Act on September 29 by issuing a written
disciplinary warning to Ms. Fanely.

4. The following unit of Respondent's employees is appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the Act:

All full-time and regular part-time customer service representatives I, II, III and
customer service-clerk-telephone center [employees] 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.

5. The Union has been at all times since August 20, and is, the exclusive bargaining
representative of the employees in said unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.

6. Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act by unilaterally changing terms
and conditions of employment for employees in the above unit commencing August 23.

7. The unfair labor practices set forth above affect commerce within the meaning of Section
8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act.

8. Respondent has not violated the Act as otherwise alleged in the complaint.

Remedy

Having found that Respondent has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

Respondent having discriminatorily discharged Cecilia Rodriguez, it must offer her
reinstatement insofar as it has not already done so and make her whole for any loss of earnings
and other benefits, computed on a quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).

Respondent having unlawfully refused to bargain with the Union about certain terms and
conditions of employment of represented employees, Respondent must rescind its unilaterally
altered CSR lunch hour schedules and cashier shortage and overage limitations instituted on
August 23. Respondent shall also make whole any employee for any loss of earnings and other

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benefits suffered as a result of its unlawful changes, computed as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended22

ORDER

Respondent, El Paso Electric Company, its officers, agents, successors, and assigns,
shall

1. Cease and desist from

(a) Impliedly threatening employees with reprisals if they continued to engage in union
or other protected activities.
(b) Issuing unsatisfactory performance evaluations to or discharging any employee for
engaging in union or other protected activities.
(c) Issuing written disciplinary warnings to or otherwise disciplining any employee for
engaging in union or other protected activities.
(d) Unilaterally changing terms and conditions of employment for employees in the
following unit (the unit):

All full-time and regular part-time customer service representatives I, II, III
and customer service-clerk-telephone center [employees] 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.

(e) 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.

1. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) Rescind its unilaterally altered CSR lunch hour schedules and cashier shortage and
overage limitations instituted on August 23 and notify the Union and the unit
employees in writing that it has done so.
(b) Make whole employees in the unit, with interest, for any loss of earnings and other
benefits that they may have suffered due to the Respondent's altered CSR lunch
hour schedules and cashier shortage and overage limitations instituted on
August 23.
(c) Within 14 days from the date of this Order, insofar as it has not already done so,
offer Cecilia Rodriguez full reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
22 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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(d) Make Cecilia Rodriguez whole for any loss of earnings and other benefits suffered
as a result of the discrimination against her in the manner set forth in the remedy
section of the decision.
(e) Expunge from its files any reference to the discriminatory unsatisfactory
performance evaluation issued to, and the discharge of, Cecilia Rodriguez and
thereafter notify her in writing that this has been done and that neither the evaluation
nor the discharge will be used against her in any way.
(f) Expunge from its files any reference to the discriminatory written warning issued to
Sira Fanely, and thereafter notify her in writing that this has been done and that the
discipline will not be used against her in any way.
(g) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(h) Within 14 days after service by the Region, post at its El Paso telephone center and
its outlying offices in Texas and New Mexico, copies of the attached notice marked
“Appendix.”23 Copies of the notice, on forms provided by the Regional Director for
Region 28 after being signed by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are
customarily posted. 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, Respondent has gone out of
business or closed the facilities involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees
and former employees employed by Respondent at any time since June 7, 2004.
(i) 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 Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, at San Francisco, CA: April 4, 2005

Lana H. Parke
Administrative Law Judge

23 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.”
JD(SF)-28-05
El Paso, Texas
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 do anything that interferes with these rights. More particularly,
WE WILL NOT unilaterally change terms and conditions of employment of employees in the
following unit, including CSR lunch hour schedules and cashier shortage and overage
limitations:

All full-time and regular part-time customer service representatives I, II, III
and customer service-clerk-telephone center [employees] 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.

WE WILL NOT discharge any of you for supporting International Brotherhood of Electrical
Workers, Local Union 960, AFL-CIO (the Union) or for engaging in other protected activities.
WE WILL NOT issue unsatisfactory performance evaluations to any of you for supporting the
Union or for engaging in other protected activities.
WE WILL NOT issue written disciplinary warnings to any of you for supporting the Union or for
engaging in other protected activities.
WE WILL NOT tell employees they are unhappy or suggest they seek other employment or
otherwise impliedly threaten them with reprisals if they engage in union or other protected
activities.
WE WILL NOT In any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights listed above.

JD(SF)-28-05
El Paso, Texas
WE WILL rescind the CSR lunch hour schedules and cashier shortage and overage limitations
we unilaterally changed on August 23; WE WILL reimburse any employee for any loss they
suffered due to these changes, and WE WILL notify the Union in writing that this has been
done.
WE WILL, within 14 days from the date of the Board’s Order, insofar as we have not already
done so, offer Cecilia Rodriguez full reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to her seniority or any other rights
or privileges previously enjoyed, and WE WILL make Cecilia Rodriguez whole for any loss of
earnings and other benefits suffered as a result of the discrimination against her.
WE WILL within 14 days from the date of the Board’s Order, expunge from our files any
reference to the discriminatory unsatisfactory performance evaluation issued to, and the
discharge of, Cecilia Rodriguez and thereafter notify her in writing that this has been done and
that the evaluation and discharge will not be used against her in any way.
WE WILL within 14 days from the date of the Board’s Order, expunge from our files any
reference to the discriminatory written disciplinary warning issued to Sira Fanely, and thereafter
notify her in writing that this has been done and that the discipline will not be used against her in
any way.

El Paso Electric Company
(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, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
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.