Public Service Company of New Mexico

National Labor Relations Board - Administrative Judge Opinions

Feb 17, 2012

28-CA-022655 (N.L.R.B. Feb. 17, 2012)

JD(SF)–08–12
Albuquerque, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES – SAN FRANCISCO BRANCH OFFICE
PUBLIC SERVICE COMPANY OF NEW MEXICO
Cases 28-CA-22655
and 28-CA-22759
28-CA-22997
28-CA-23046
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL UNION NO. 611, AFL-CIO
Liza Walker-McBride, Atty., for the Acting General Counsel
with the brief by David T. Garza, Atty.,
Jeffrey L. Lowry and Thomas L. Stahl, Attys.,
(Rodey, Dickason, Sloan, Akin & Robb, P.A.)
Albuquerque, New Mexico, for Respondent.
John L. Hollis, Atty., (Law Offices of John L. Hollis)
Albuquerque, New Mexico, for Local 611.
DECISION
Statement of the Case
WILLIAM L. SCHMIDT, Administrative Law Judge. I heard this consolidated proceeding
over the course of 8 days between August 31 and November 5, 2010, at Albuquerque, New
Mexico. Together the separate complaints issued by the Regional Director for Region 28
allege, on the basis of charges filed by the International Brotherhood of Electrical Workers,
Local Union No. 611, AFL-CIO (Charging Party, Union, Local 611), that Public Service
Company of New Mexico (Respondent, Company, PNM) engaged in numerous violations of
Section 8(a)(1), (3), and (5) of the National Labor Relations Act (Act). Respondent’s timely
answers deny that it engaged in the unfair labor practices alleged. On the entire record,
including my observation of the demeanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel, PNM, and Local 611, I make the following
Findings of Fact
I. Jurisdiction
Respondent, a New Mexico corporation, with a principal office and place of business in
Albuquerque, New Mexico, has been engaged in the purchase, production, transmission, and
retail sale of electricity. During the 12-month period ending May 19, 2010, Respondent derived
gross revenues in excess of $500,000 from its primary business operations. During the same
12-month period Respondent purchased and received at its various facilities in the State of New
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Mexico, goods valued in excess of $50,000 directly from locations outside the State of New
Mexico. Accordingly, I find that Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that it would effectuate the purposes of the
Act for the Board to exercise its statutory jurisdiction to decide this labor dispute.
II. Alleged Unfair Labor Practices
A. The Charges and the Pleadings
All of the complaints allege that Local 611 is the exclusive bargaining representative of
the employees in the following unit (unit):
All employees of the Respondent’s Electric, Water, Transmission, Distribution,
Production, Meter Reader, and Collector departments in the divisions and jobs
referenced in Respondent’s collective-bargaining agreement with the Union effective by
its terms from May 1, 2009, through April 30, 2012.
PNM admits Local 611 is a Section 2(5) labor organization that it has recognized as the
exclusive representative certain employees covered by a series of bargaining agreements,
including the agreement effective from May 2009 through April 30, 2012.
The amended consolidated complaint in Cases 28-CA-22655 and 28-CA-22759 is based
on charges filed by Local 611 on August 26 and October 29, 2009, respectively. This complaint,
issued on March 24, 2010, alleges that PNM violated Section 8(a)(1) and (5) of the Act by failing
or refusing to provide Local 611 with all or most of the information sought in nine separate
requests made between March 31 and October 1, 2009. It also alleges that PNM violated the
same statutory provisions by unilaterally changing six separate terms and conditions of
employment affecting the unit employees.
The complaint in Case 28-CA-22997, issued on June 30, 2010, is based on a charge
filed by Local 611 on April 12, 2010. As amended at the hearing, it alleges that PNM violated
Section 8(a)(1) and (5) by failing or refusing to provide Local 611 with the information sought in
two additional requests it made on February 12 and March 26, 2010.
Local 611 filed the charge in Case 28-CA-23046 on May 19, 2010, and the Regional
Director issued a complaint in that case on July 30. It alleges that PNM violated Section 8(a)(1)
by the conduct of a supervisor who removed union-prepared Weingarten forms from bulletin
board at its Electric Service Center (ESC) on Edith Boulevard in Albuquerque and informed
employees that the forms had been removed because they induced employees to refuse to
cooperate with workplace investigations. This complaint also alleges that PNM violated Section
8(a)(1) and (3) by removing a union steward from an employee training meeting and by
subsequently conducting a disciplinary investigation concerning the steward’s conduct. Finally,
this complaint alleges that PNM violated Section 8(a)(1) and (5) by failing or refusing to provide
Local 611 with the information it requested about that investigation.
B. The Independent 8(a)(1) Allegations
Paragraph 5(a) of the complaint in Case 28-CA-23046 alleges, in effect, that sometime
in April 2010 Supervisor Dale Smyth confiscated Weingarten notice forms from the Union’s
bulletin boards at PNM’s ESC facility in Albuquerque. Paragraph 5(b) alleges that Smyth told
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employees he had removed the Weingarten because they obstructed PNM’s workplace
investigations by inducing a lack of cooperation by employees.1
1. Relevant facts
The foremen’s office at the ESC in Albuquerque has four desks and serves as a location
where 16 or so employees perform their paperwork. PNM management posts a variety of work-
related notices (bargaining proposals, bargaining progress reports, overtime rosters, crew
assignments, safety information and tool information) a bulletin board located in the foremen’s
office. Employees also post personal notices on that board.
In mid-April 2010, Union Steward Eric Cox posted one or more copies of a Weingarten
form2 prepared by Local 611 assistant business manager Edward Tafoya on the foremen’s
office bulletin board and six other bulletin boards around the ESC facility. (Tr. 791-92, 832.)
Cox also put copies of the form in the mailboxes of the unit employees that are also located in
the foremen’s office. Either he or someone else put some of the forms on a couple of the desks
in the foremen’s office. Supervisor Mark Martinez, who characterized the forms as “amnesty
forms,” saw Cox distributing them in the mailboxes. He asked for, and received a copy from
Cox but made no attempt to interfere with the distribution.
Before the shift started the following morning Roger Kinkaid, an ESC working foreman,
observed his supervisor, Dale Smyth, “rip” at least one copy of the Weingarten form from the

1 No evidence was adduced to support the par. 5(b) allegation, and neither the Acting
General Counsel nor Local 611 alluded to it in their briefs. For this reason, I recommend
dismissal of this allegation without further consideration.
2 Tafoya sent copies of the form (Jt. Exh. 68) to all twenty of the Electric Services Business
Unit stewards statewide for distribution by them. The form read as follows:
The Company has asked me to participate in an interview. I request that I be represented
by my Steward _____________________. I will waive my right to have a steward present if
the Company will acknowledge that nothing I say or do in this interview will be used to
discipline me in any manner. The Company will acknowledge this by the signing of this
document.
____________________________________________ __________________
Employee Date
____________________________________________ __________________
For PNM Date
If the Company representative is unwilling to sign this I will have cause to believe that I may
be subject to discipline. Therefore I request that my Union Steward or Representative be
present to assist me at this meeting. I further request reasonable time to consult with my
Union Representative regarding the subject and purpose of this meeting. Please consider
this a continuing request and without representation, I shall not willingly participate in the
discussion.
____________________________________________ __________________
Name Date
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bulletin board in the foremen’s office, throw it in the waste can, and walk back out without saying
a word to either himself, or Richard Reese, another ESC working foreman present at the time.
(Tr. 782-84) Later that morning Kindaid told Cox about the episode. Cox confirmed that a form
was missing from the bulletin board and reported the matter to Tafoya.
The next day Tafoya visited the ESC on another matter. While there, he met with Cox
and, together, they decided to speak with Smyth about removing the form. On their way to
Smyth’s office they met and questioned Line Department Manager Jeff Nawman, Smyth’s
immediate supervisor, about the removal of the form. Nawman professed to know nothing
about the episode but accompanied the two Union agents on to Smyth’s office. Once there,
Tafoya confronted Smyth about removing the form and questioned his authority to do so.
Smyth became irritated by the inquiry but admitted that he removed the form and said that
Metro Operations Director Kirk Moser told him to do it. With that Smyth walked away from
Tafoya and the others, saying he did not have time for this “shit.”3 Cox reposted the missing
copy of the form that afternoon. Since then there have been no known attempts by the
managers or supervisors to remove copies of the form; they remained available on the ESC
bulletin boards at the time of the hearing.
2. Argument and Conclusions
The Acting General Counsel and Local 611 argue that by trashing the Weingarten form
in the presence of two employees, Smyth violated Section 8(a)(1).4 PNM, which disputes
Tafoya’s characterization of the foremen’s office bulletin board as a dedicated union board,
asserts that the form Tafoya authored “misrepresents Weingarten rights and improperly
encourages employees to obstruct Company investigations.” It also contends this single action
lacks any coercive quality where the form was widely distributed at the ESC and other facilities
throughout the state, and even the discarded form was quickly replaced.
Although two employees observed Smyth remove Tafoya’s form, I find his conduct
lacked any coercive character. PNM and Local 611 have a mature bargaining relationship
spanning decades. The wide distribution of the form, the lack of other similar incidents or any
accompanying statements by Smyth to the two employees all weigh in favor of a conclusion that
the incident was not coercive. This conclusion is reinforced by the inference suggested by
Kinkaid’s puzzlement at the need to describe the incident while testifying because he had other
copies of the form in front of him on his desk at that very time. The more reasonable conclusion
from the evidence amounts to little more than the fact that Smyth carried out a superior’s
instruction to get a copy of the publicly posted form for review by management.
Furthermore, the cases cited in the Acting General Counsel’s brief – Publix Super
Markets, Inc., 347 NLRB 1434, 1435 (2006); Heartland of Lansing Nursing Home, 307 NLRB
152, 160 (1992); and Jennings & Webb, Inc., 288 NLRB 682, 690-692 (1988) – are factually
distinguishable. These cases involve either a disparate application of employer bulletin board

3 Although Smyth testified about another matter, he provided no testimony about this
subject. Moser did not testify.
4 Sec. 8(a)(1) provides that it is an unfair labor practice for an employer to “interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” As relevant
here, Sec. 7 provides that employees have the right “to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection, and shall also have the right to refrain from any or all such activities.”
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rules or a clean sweep removal of all union materials. They simply do not support the
arguments of the Acting General Counsel and Local 611 that mere observation by two
employees of Smyth removing a form amounts to coercion as that term is used in Section
8(a)(1). Accordingly, I recommend dismissal of this allegation.
C. The 8(a)(3) Discrimination Allegations
Paragraph 6(a) and (b) of the complaint in Case 28-CA-23046 allege that PNM violated
Section 8(a)(3) on April 21, 2010, when Nawman and Supervisor Smyth removed Union
Steward Eric Cox from a management-employee meeting, and by PNM’s subsequent
disciplinary investigation of Cox’s conduct at the meeting.
1. Relevant Facts
Sometime in late 2009 or early 2010, PNM purchased an automated call-out system
called TeleStaff for use in assembling repair crews after normal work hours. Although PNM
previously used an automated call system, TeleStaff contained added features, including one
that permitted the linemen to report that they were on sick leave, vacation, or the like without
calling a dispatcher or their supervisor. When the lineman did so, TeleStaff automatically
removed the employee from the pool of available linemen for after-hours work.
Overall responsibility for implementing the TeleStaff system rested with Line Department
Manager Nawman, the person in charge of the department where it was to be used. His
subordinates, Distribution Operations Manager Mary Ann Brandon and Craft Supervisor Smyth,
served on the management team responsible for implementing TeleStaff and training
employees on its use. Brandon and Smyth scheduled a training meeting for April 21 with
roughly 13 linemen for the purpose of explaining, demonstrating, and testing the system. After
the hands-on phase of this meeting, they planned to obtain employee feedback so they could
make adjustments prior to rolling out the new system for general use.
Well before Brandon and Smyth scheduled the April 21 session, Nawman asked Local
611 steward Eric Cox on a couple of occasions about objections Local 611 might have to
conducting a training/feedback session with some of the linemen. After hearing nothing from
Cox, Nawman decided to proceed with the initial TeleStaff information session.
Local 611 obviously had suspicions and reservations about the implementation of the
TeleStaff system early on. Nine days before the April 21 meeting, Local 611 filed an unfair labor
practice charge (Case 28-CA- 22997) alleging, among numerous other matters, that PNM
“unilaterally changed … (the) call-in requirements to call in for personal leave and vacation.”5
(GC Exh. 1(v))
Craft Supervisor Smyth arranged the April 21 session for the Sandia Room, a
conference room at the ESC and invited the specific linemen who ultimately attended. As the
immediate supervisor of the dispatchers responsible for dispatching the proper workers for
outages and service calls statewide, Brandon’s lead role at this meeting was to explain and
guide the linemen through the use of the system. Smyth’s role, it soon turned out, largely

5 Presumably, this allegation was withdrawn or found to be without merit, as no related
complaint allegation has been made in this proceeding. At one point, Respondent’s counsel
asserted “the Board’s already ruled” on Local 611’s claim that PNM unlawfully implemented the
TeleStaff system. Tr. 1177.
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became that of attempting to maintain rudimentary decorum, a task at which he clearly failed
though no fault of his own.
Sometime prior to the meeting, Nawman instructed Craft Supervisor Mark Martinez,
Union Steward Cox’s immediate supervisor, to release Cox from his standard work assignment
so he could attend the TeleStaff meeting in his capacity as the Local 611 steward. Eric Cox has
served as a union steward at the Albuquerque ESC for the 4-year period preceding the hearing.
Under the collective-bargaining agreement in effect between PNM and Local 611, stewards are
provided with paid time to perform their representational duties. That agreement also requires
the stewards to perform their duties “with a minimum of interference with the Company’s
operations.” (See GC Exh. 5, p. 10)
Early in the April 21 meeting, a lineman asked Brandon whether any layoffs would result
from the introduction of TeleStaff. Brandon responded, “No, the intent of TeleStaff was to help
the dispatchers with the call-out process.” Cox broke in at that point asking Brandon to
“guarantee” that no layoffs would result from the implementation of TeleStaff and she told him
that she could not do that. A colloquy followed between Brandon and Cox in which he
continued to insist that she guarantee there would be no layoffs and that she do so in writing.
Brandon told Cox that she could not do that either, that the system was designed to help the
dispatchers perform their job and that they would continue to follow the Union call-out rules.
Finally, after Cox persisted in his demand for a written guarantee, Brandon, who has worked at
PNM for 30 years, told him that she could not do that because it was “above her pay grade.”
Cox then asserted that the TeleStaff implementation should have been negotiated with
Local 611 and charged that Brandon was attempting to negotiate directly with the employees.
According to Brandon’s credible account, Cox went on to assert that “when it was convenient for
the company, we would work with the union, and when it wasn't, we were always trying to screw
the union.” Brandon said she was “taken aback” and admittedly gave Cox a “surprised look,
like, wow, you know, I'm kind of surprised you said that.” Cox claimed that she rolled her eyes
in response. Regardless, Brandon’s reaction led to an aggressive response from Cox that she
described in this manner:
A And at that point, Eric, I guess, took offense to my reaction to what he said, and
he stood up, and -- he was sitting like at the end of the table. And he stood up and put
his hands on the table and leaned forward, and he said, in a very raised tone, he said,
Don't you ever look at me that way again.
Q All right. And did he point his finger at you?
A Yes. So I was a little taken aback by that also, very taken aback.
Q Did it upset you?
A It did. Yes.
To Smyth, it appeared it appeared as though Cox, a large man, made an obvious attempt to
physically intimidate Brandon.
When Brandon recovered her composure and continued her presentation, Cox made a
series remarks as she was speaking about bargaining directly with employees that Brandon
characterized as “snide.” Soon, one of the attendees sought to ask a question of Smyth. Cox
interrupted before Smyth could answer saying that Smyth needed to answer his question first.
Smyth said he would do so before the meeting ended and then attempted to respond to the
other lineman’s question. As he did so, Cox again interrupted demanding that Smyth answer
his question first. This sequence was repeated two or three more times until Smyth asked Cox
to repeat his question. Rather than doing so, Cox began to belittle Smyth for not listening.
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Smyth ignored those comments and asked Cox to repeat his question but Cox merely continued
to comment about Smyth’s failure to listen. Obviously exasperated, Smyth finally told Cox to
“just ask your damn question.” According to Smyth, whose account I credit, Cox became
agitated again. He stood up and told Smyth in a loud tone of voice, “Don't you ever talk to me
that way again, and don't you ever point your finger at me that way again.”
As shown by the following testimony, Cox admitted that his persistent, intentional, and
demanding questioning impaired the ability of the two managers to conduct the meeting:
A When I asked him if it was different or a change, he didn't give me a response.
Q He didn't respond at all.
A He didn't respond to me.
Q At all.
A He didn't respond to me. He kept trying to go to another employee.
Q Okay.
* * *
Q At one point, Mr. Smyth told you he would answer your questions at the end,
didn't he?
A Yes, sir.
Q And you told him that wasn't acceptable to you. Right?
A I needed an answer while we're talking about it now.
Q Okay. So Mr. Smyth was trying to run the meeting in the way he found was
appropriate, and you wouldn't let him, would you?
A I needed an answer to my question.
Q Is the answer to my question yes? You wouldn't let him do what he wanted to do
to run the meeting.
A Yes.
Q In fact, he tried several times to move on to another person's questions, and you
wouldn't let him. Right?
A I needed an answer to my question.
Q Is the answer to my question yes?
A Yes.
(Tr. 845-846)
Finally, Smyth asked to speak with Cox outside the conference room. The two men
went to a nearby private office where Smyth directed Cox leave the meeting because of his
repeated disruptions. Cox told Smyth that he did not have “the right to make me leave a
meeting; I have the right to be there, and you can't tell me to leave the meeting.” Smyth
remained adamant that Cox had to leave and told him that he could call his supervisor or
Nawman if he wanted. With that Cox walked out the office and Smyth returned to restart the
training session.
After a short period, Cox entered the conference room and stated that the meeting had
to stop because Brandon and Smyth “were trying to negotiate with individuals” and that the
employees could not participate in the meeting. Smyth again directed Cox to leave but he
refused, telling Smyth that he did not need his permission to be there. With that Smyth
announced a 5-minute break to resolve the situation. Cox told the attendees to remain in the
room so he could speak with them but when Brandon and Smyth remained also, he directed the
employees to come with him at which time Cox and the employees left.
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At about the same time, Line Department Manager Nawman and Supervisor Martinez
arrived at the Sandia Room. They then went to a nearby office where Brandon and Smyth
explained what was occurring. As they talked, Local 611 Business Agent Tafoya arrived.
Martinez joined him and Cox in the hallway for a discussion. Meanwhile, Brandon and Smyth
as well as the employees returned to the conference room to resume the TeleStaff training.
As the the meeting was about to resume for the third time, Tafoya entered the room.
Smyth explained what happened then:
[Tafoya] said that everybody at this meeting -- that everybody here -- I believe everybody
here is a represented employee, and this meeting is ending, and you guys will need to
leave.
Q All right. So Ed Tafoya, a union business agent, came in and said, the meeting is
over. Is that --
A Yes.
Q Okay. Then what happened?
A I kind of was -- as he came in and started talking, I walked to the door, too,
because I wanted to find out if Jeff Nawman had given him permission to come into the
meeting. So I stuck my head out the door, and I didn't see Jeff Nawman anywhere. So I
came back in, stepped in, and I told Ed Tafoya that he would need to leave. And he
right away says, No, that he doesn't have to have my permission to be here and that I
can't make him leave.
And I told him no again. No, Ed, you need to leave this meeting now. And he said, no.
And about that time, Eric Cox walked back in the door, and he says, we don't need your
permission here; you can't make us leave, and we're staying. And then that is when Jeff
Nawman came in and then went ahead and shut everything down.
(Tr. 1165)
Complaints by Brandon and Smyth about Cox’s conduct at the TeleStaff meeting lead
PNM executives to assign the in-house labor and employment counsel, Carol Shay, the task of
conducting an investigation to determine whether Cox should be disciplined. From the outset, it
was Shay’s professional judgment that her role also involved that of containing the Union’s
pending unfair labor practice charge alleging that the Company had unilaterally implemented the
TeleStaff system. Shay selected Sonia Otero, a lead human resources consultant, and Craft
Supervisor Martinez to assist her in conducting interviews of various witnesses to events of April
21. Otero interviewed Cox during this investigation at which time it became obvious that he was
at risk for discipline. However, PNM management eventually decided that Cox would not be
disciplined, a decision with which both Brandon and Smyth profoundly disagreed. Nevertheless,
HR Director Mathes sent Chris Frentzel, the Local 611 business manager, a letter dated May 18
that stated as follows concerning the investigation:
The Company was well within its rights to conduct an investigation into its employee's,
Eric Cox’s behavior during the April 21, 2010 meeting despite your May 3, 2010 demand
that the investigation be stopped. At the conclusion of the Investigation, the Company
determined that discipline will not be administered to Eric or anyone else for their
behavior during the meeting.
We are troubled, however, by Mr. Cox's actions on April 21, 2010. Specifically, he used
a raised and angry tone of voice towards managers. He also refused to leave the
meeting room and wait outside for his supervisor after a manager directed him to leave.
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Mr. Cox's behavior and actions during the meeting could be considered as
insubordination. It is important to note that we have given you notice before about Mr.
Cox's unnecessarily antagonistic, unprofessional, and disruptive behavior during
meetings. While the Company recognizes that Union Stewards are afforded some
leeway to zealously represent their members in certain settings, Mr. Cox is not always
entitled to such protections as he is not always acting in his capacity as a Union
Steward. Like all employees, Mr. Cox is expected to follow his management's
instructions, and refrain from insubordination and unprofessional conduct. If Mr. Cox
believes that the Company is violating the labor agreement, the principles of "work now,
grieve later" still apply and he is expected to conduct himself professionally in such
circumstances and avail himself of the parties' dispute procedures at the appropriate
time.
(Jt. Exh. 73)
2. Argument and Conclusions
The arguments of the Acting General Counsel and Local 611 that PNM violated Section
8(a)(3) rely largely on their belief that Cox, by reason of the fact that he attended the April 21
meeting in his capacity as a union steward, was engaged in protected union activities.6 They
assert that his conduct remained protected throughout the meeting and, therefore, the
Company’s disciplinary investigation of Cox was motivated by his protected activities. PNM
argues that Cox, regardless of his role originally, lost the protection of the Act when his conduct
at the TeleStaff meeting became disruptive and insubordinate. As these arguments show, the
issue for decision is whether Cox’s conduct eventually became so egregious as to lose the
protection of the Act.
In his brief, the Acting General Counsel argues the Board’s Wright Line analytical model
applies in this situation.7 I disagree. The Board has held that Wright Line does not apply to
situations where, as here, a causal connection may be presumed between the employee’s
protected activity and the employer’s conduct that is alleged to be unlawful. See e.g., Aluminum
Co. of America, 338 NLRB 20, 22 (2002). Instead, NLRB v. Burnip & Sims, 379 U.S. 21 (1964),
provides the appropriate analytical framework for the resolution of this issue. Applying Burnip &
Sims here, PNM plainly established that it had reasonable cause to believe that Cox engaged in
misconduct at the April 21 meeting. That being so, under Burnip & Sims the burden shifted to
the Acting General Counsel to show that, in fact, no unprotected conduct occurred. He failed to
satisfy that burden.
The Board considers the following four factors when called upon to determine whether
an employee’s conduct became so egregious as to lose the Act’s protection: (1) the place of the
discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s conduct;
and (4) whether the conduct was provoked by the employer’s unfair labor practices. Atlantic
Steel Co., 245 NLRB 814, 816 (1979). Applying the Atlantic Steel tests here, I have concluded
that Cox’s conduct at the TeleStaff meeting was not protected by the Act and, for that reason,
the investigation by PNM’s in-house labor and employment counsel was lawful.

6 Sec. 8(a)(3) provides that employer “discrimination [against employees] in regard to hire or
tenure of employment or any term or condition of employment to encourage or discourage
membership in any labor organization” constitutes an unfair labor practice.
7 Wright Line, 251 NLRB 1083, 1089 (1980), enfd., on other grounds 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
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1. The place of the discussion. This factor weighs against protection of the conduct by
Cox and Tafoya in disrupting and constructively terminating the April 21 meeting. This
discussion occurred in a company conference room with several employees and their
immediate supervisor present for what had been planned essentially as an introductory training
session conducted by Brandon. The employees in attendance were on paid time and were in
attendance as a part of their regular work duties. Although Cox too was a part of the same
group and was on paid time, he was not in attendance at this meeting in his capacity as an
employee but instead he had been released from his regular duties by his supervisor in order to
attend the meeting in his capacity as a union steward serving the affected group.
2. The subject matter of the meeting. This factor weighs against protection of the Act.
The TeleStaff meeting was designed to provide preimplementation instructions about a new
automated call-out system and to obtain feedback from the affected employees for Brandon’s
use in implementing the system. The conduct by Cox and Tafoya interfered with the progress of
this ordinary work meeting and eventually caused its termination.
Early on, Brandon assured the employees in attendance that PNM’s new call-out system
would not alter the contractual call-out rules. But that aside, neither Brandon nor Smyth had
authority to engage Cox, Tafoya, or any of the employees present about any potential labor
relations implications arising from the new system. Hence, the meeting clearly was not for the
purpose of carrying on a joint labor-management consultation, addressing a grievance, or
engaging in bargaining over the subject involved. No managers or labor relations officials were
present who possessed authority to definitively address the issues about which Cox demanded
answers and even written assurances.
The inference that the purpose of the meeting was self-evident to all who attended is
unavoidable. Brandon, the principal provider of the technical information central to the meeting,
was not shown to have the slightest involvement or connection with establishing, implementing,
or administering PNM’s labor relations policies. The place, the participants, and the subject
matter of the meeting all serve to establish that the meeting was obviously designed only as an
introductory training/feedback session for the employees in attendance. The questions about
layoffs that arose at the meeting pertained to the dispatchers who were not present rather than
the linemen who were present. The labor relations issues that Cox pressed and that dominated
the meeting until Smyth sough to exclude him had virtually nothing to do directly with the
original, work-related purpose of the meeting. This difference is highly significant. See e.g.,
Postal Service, 268 NLRB 274, 275 (1983) (“[I]n the administration and resolution of grievances
under the collective-bargaining agreement, because of the nature of these endeavors, tempers
of all parties flare and comments and accusations are made which would not be acceptable on
the plant floor.” (Emphasis added)) This confrontation initiated by Cox and continued by Tafoya
occurred in a plant floor context, not a bargaining table context.
3. The nature of Cox’s conduct. This factor weighs strongly against protection of the
conduct by Cox and Tafoya in disrupting and effectively terminating the April 21 TeleStaff
meeting. From the outset of the meeting Cox protested that the implementation of the TeleStaff
system should have been negotiated with the Local 611. Later in the meeting, he openly made
a baseless accusation that Brandon and Smyth were trying to negotiate directly with employees.
Despite the fact that Smyth told Cox that he would answer his questions at the end of the
meeting, Cox repeatedly interrupted questions by the other attendees demanding that his
questions be answered first.
Cox admittedly sought to disrupt this meeting using this tactic. In the limited periods
when he did not interrupt directly, Cox he stood in the back of the room uttering snide,
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derogatory, and audible comments concerning the meeting. He insisted that Brandon
“guarantee” that implementation of the TeleStaff system would not result in the layoff of any
dispatcher employee. This persistent demand soon became an equally persistent demand that
Brandon sign a written guarantee to that effect.
I find Cox’s insistent behavior on this subject, coupled with his menacing tone and
gestures toward Brandon because of her reaction of dismay at his behavior, completely out of
place in this particular situation. Cox’s subsequent effort to bully and belittle Smyth when this
supervisor sought to answer questions posed by other employees was likewise inappropriate
and out of place in this setting. After his conduct finally provoked Smyth to eject Cox from the
meeting, Cox became belligerent and insubordinate. After his arrival, Tafoya reinforced Cox’s
behavior by ignoring Smyth’s directions and demanding that the meeting stop immediately.
Finally, this blatant interference compelled Nawman to call the meeting off.
4. Provocation by Respondent. This final factor also weighs against the protection or,
at best, it is neutral. The evidence merits the inference that Local 611 did not prevail on the
8(a)(5) unfair labor practice charge that PNM unilaterally implemented the TeleStaff call-out
system. Similarly, no evidence establishes that Local 611 ever filed a grievance relating to the
implementation of the TeleStaff system.
In my judgment, the out-of-control conduct by Cox and Tafoya that prevented the PNM
officials from conducting an orderly, legitimate business meeting with its employees
substantially exceeds the disruptive employee actions the Board found unprotected in Carrier
Corp., 331 NLRB 126 fn. 1 (2000). This is especially true where, as here, Local 611
representatives were contractually bound to perform their representational duties with “minimum
interference” to PNM’s operations.
The claim that Smyth lacked authority to bar Cox, or Tafoya for that matter, from the
meeting because of their disruptive behavior is specious. Contrary to Cox’s claim, Supervisor
Martinez did not “assign” him to attend the meeting at all. Instead, Martinez released Cox from
his regular duties so he would be at liberty to attend the TeleStaff meeting in his capacity as the
Local 611 steward. Hence, he was there in his representative capacity rather than as an
employee engaged in work duties. When Cox abused the negotiated accommodation to
perform representational duties on work time by becoming disruptive and abusive, Smyth had a
lawful right to eject him the ordinary workplace meeting that took place.
As I have concluded that PNM did not violate the Act by its investigation of Cox’s
conduct at the April 21 TeleStaff meeting, I recommend dismissal of this allegation.
D. The 8(a)(5) Allegations
The three complaints contain numerous allegations that PNM violated Section 8(a)(5) of
the Act.8 There are two varieties of refusal-to-bargain allegations. Considered first are those

8 Sec. 8(a)(5) legally obliges an employer “to bargain collectively with the representatives of
his employees, subject to the provisions of section 9(a)” of the Act. Sec. 8(d) defines the
obligation to bargain collectively, insofar as is pertinent here, as “the performance of the mutual
obligation . . . to meet at reasonable times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment, or the negotiation of an agreement or any
question arising thereunder, and the execution of a written contract incorporating any
agreement reached if requested by either party.”
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allegations that PNM failed and refused to provide information Local 611 requested and to
which it was entitled as the bargaining representative. Considered thereafter will be the
allegation that PNM unilaterally changed the terms and conditions of employment of its
represented employees.
1. The information allegations
In a nutshell, the law obliges an employer to provide a union with information that is
relevant to its carrying out its statutory duties and responsibilities in representing employees.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). This duty to provide information includes
information relevant to contract administration and negotiations. Barnard Engineering Co., 282
NLRB 617, 619 (1987); and Leland Stanford Junior University, 262 NLRB 136, 139 (1982), enfd.
715 F.2d 473 (9th Cir. 1983). The Board applies a broad, discovery-type standard in
determining the relevance of requested information even where a union must demonstrate
relevance. Shoppers Food Warehouse, 315 NLRB 258, 259 (1994).
The law deems information that pertains directly to the wages, hours and other terms
and conditions of employment for unit employees as presumptively relevant and requires its
disclosure to the bargaining agent upon request. Curtiss-Wright Corp. v. NLRB, 347 F.2d. 61,
69 (3d Cir. 1965). If the information sought does not pertain to the wages, hours, and working
conditions of the represented employees, no relevance presumption attaches and the union
bears the burden of establishing the specific relevance of the information sought. NLRB v.
George Koch Sons, Inc., 950 F.2d 1324, 1331 (7th Cir. 1991); Shoppers Food Warehouse,
supra at 259. . This relevance burden exists “whether or not [the] employer requested an
explanation of the relevance of the request.” Schrock Cabinet Co., 339 NLRB 182 fn 6(2003).
The relevance burden is satisfied by a showing that “there is a logical foundation and a factual
basis for its information request.” Postal Service, 310 NLRB 391 (1993).
Applying these general principles, I now find and conclude as follows with respect to the
information allegations.9 The three complaints contain the following 13 allegations relating to
the failure to provide requested information.
a. Consolidated complaint in Cases 28-CA-22655 and 28-CA-22759
1. Complaint paragraph 6(a) – (c) alleges that PNM failed to produce requested
information about asbestos accident investigations. PNM claims that it produced the
information relevant to a pending grievance that gave rise to the request but argues that it had
no duty to provide the additional information requested because it related to a pending state
regulatory matter before the New Mexico Occupational Safety and Health Board (NMOSHB) in
which Local 611 was involved.
Relevant facts. This issue arose at PNM’s San Juan Generating Station (San Juan
Station) located in northern New Mexico. The initial request here was made on March 31, 2009,
in an email from Local 611 Steward Kane Reeves to Ginger Lynch, a PNM human resources
supervisor. The email, noting pending grievance SJ-09-12 filed on behalf of a San Juan

9 The evidentiary materials show that Local 611 agents often complained about PNM’s
failure to timely provide requested information. The evidence shows that some human
resources supervisors and managers were reassigned from their normal duties to assist in
responding to a backlog information requests by Local 611. There is no complaint allegation
that the obvious delays violated the Act.
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employee Mike Patscheck, requested that PNM furnish it with information about all accident
investigations involving asbestos since 2007 together with asbestos samples taken, lab reports
pertaining to those samples, and internal safety department memos concerning exposures in
the same period. Reeves renewed his request in an April 24 email to Lynch. (Jt. Exh. 1)
A letter dated July 20 from Lynch to Shannon Fitzgerald, the Local 611 assistant
business manager who services the San Juan Station group, enclosed the requested
information, to the degree that it existed at all, but only as it related to the incident in the fall of
2008 giving rise to Patscheck’s grievance. As to information about other incidents both before
and after the Patscheck incident, Lynch asked Fitzgerald to explain its relevance. Fitzgerald
responded to Lynch’s relevance demand in a July 24 email by quoting specific claims Local 611
used in the Patscheck grievance about PNM’s inadequate response to “numerous (other) fiber
release episodes” above the permissible limits. He charged PNM with disregarding its own
employee safety manual, article 8 of the collective-bargaining agreement, and the requirements
of a relevant OSHA regulation.
Lynch referred Fitzgerald’s arguments to corporate counsel Shay who responded to
Fitzgerald in her July 30 letter. Although Shay noted at the outset of her letter that PNM had
provided a “variety” of documents to NMOSHB in connection with its ongoing investigation of
asbestos exposures at the San Juan Station, she implicitly declined to furnish further
information on substantive grounds, i.e., the Patscheck grievance did not involve a matter
pertaining to the interpretation or application of the collective-bargaining agreement or the
“application of a specific policy to a specific employee.” Additionally, she asserted that his
response to Lynch failed to “explain how information regarding potential asbestos exposures
back in 2007 is relevant to the bargaining agent under the parties’ collective bargaining
agreement.” However, Shay said that PNM was willing “to entertain input from the Union
regarding asbestos safety” at the San Juan Station. Fitzgerald and Shay exchanged further
correspondence but it only served to confirm the stalemate that already existed.
In an email responding to Shay, Fitzgerald disputed Shay’s position that the Patscheck
grievance was not proper. That led to a response from Shay dated August 4. In that letter Shay
noted the simultaneous investigation by the NMOHSB and the fact that the Patscheck grievance
sought PNM’s compliance with OSHA as a remedy. In view of this concurrent investigation,
Shay asserted that Local 611’s request for information was improper because “the Union’s
request relates to an action outside the collective bargaining context.” She also reiterated her
earlier claim that Local 611 failed to show the relevance of documents concerning incidents in
2007 to a grievance over an incident in 2008.
Analysis and conclusions. The Acting General Counsel and Local 611 argue that the
information sought is presumptively relevant as it all pertains to matters directly affecting unit
employees. I agree. PNM’s assertion, initially made by Lynch and later largely adopted by
Shay, that it could withhold the requested information because evidence of earlier and later
asbestos exposures did not relate to Patscheck’s specific grievance lacks merit. The grievance
on its face contends that the 2008 exposure involving Patscheck was a continuing pattern
resulting from PNM’s failure to comply with its own safety rules, the collective-bargaining
agreement, and an arguably related OSHA regulation. Hence, the presence of other related
incidents has obvious relevance to the claims made in the Patscheck grievance and would
potentially bear on the success of that grievance. For this reason, I find information concerning
previous and subsequent exposure incidents relevant.
Respondent’s claim that the concurrent NMOHSB investigation made Local 611’s claims
inappropriate based on the holding in Southern California Gas, 342 NLRB 613 (2004) also lacks
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merit. That case is factually distinguishable. In Southern California Gas, the union specifically
sought the information in order to “intelligently represent” the unit employees in a matter
pending before a state regulatory agency. No concurrent grievance or other initiative under the
collective-bargaining agreement existed. Accordingly, the panel majority in Southern California
Gas concluded that the information at issue was not presumptively relevant to the union’s
performance of its collective-bargaining duties and, hence, the union failed to meet its burden of
showing peculiar circumstances that made the requested information relevant to its
representational role. Id. at 614. Instead, the panel majority concluded, “the (u)nion’s request,
on its face, relates solely to an action outside the collective-bargaining context—a complaint
filed with a State agency.” (Emphasis added) Id. at 615. By contrast, I conclude that the
disputed information is clearly relevant to the concurrent Patscheck grievance. Hence, a finding
that Local 611’s request here “relates solely” information about a matter outside the collective-
bargaining context would not be supportable.
Accordingly, based on the general legal principles articulated at the beginning of this
section, I find that PNM had a duty to furnish all of the information initially requested by Local
611 Steward Reeves, and that it violated Section 8(a)(5), as alleged, by failing to do so.
2. Complaint paragraph 6(d) – (f) alleges that PNM unlawfully failed and refused to
furnish Local 611 with certain bucket truck testing records.
Relevant facts. Apparently by oral request in January 2009, and by emails on April 3
and 14, 2009, Assistant Business Manager Tafoya requested that PNM furnish Local 611 with
all bucket truck testing records from the date PNM contracted out the bucket truck testing work
to January 15, 2009.10 (Jt. Exh. 8) Tafoya’s concern about PNM’s compliance with its
employee safety manual provision (GC Exh. 7, Sec. II.A.17.1) requiring the testing of the bucket
trucks four times a year prompted this request.
Tafoya sought the information, he said, to support Local 611’s bargaining position on the
undesirability of subcontracting. (Jt. Exh. 8, Tafoya’s April 14 email) Unit employees performed
this work prior to the time that PNM contracted with a local firm, Diversified Inspections
(Diversified), to perform the work. Tafoya, suspecting that the outside inspections were proving
too expensive, thought PNM might be cutting corners on the inspection schedule.
In February, Tafoya followed up on his oral request of the previous month. At that time,
PNM provided him with a user name and a password to the Diversified’s website where the
bucket truck test records are stored. With this access, Tafoya learned that in fact there had not
been full compliance with the safety manual testing schedule during the 2008 calendar year. At
the end of March 2009, a PNM executive stated in response to an interrogatory in a pending
rate case before the New Mexico Public Utilities Commission (PUC) that compliance with the
bucket truck testing schedule had been achieved. When he learned of this, Tafoya insisted
there had to be more test records and demanded to see them.11 (Jt. Exh. 8)

10 These are trucks with a telescoping boom and bucket mounted on the rear. The device is
used to elevate linemen when they need to work on overhead power lines, transformers and so
forth. The booms and buckets are lined with an insulating material to prevent the accidental
grounding of energized equipment and the electrocution of the worker.
11 In a September 3, 2009, email, Ray Mathes, PNM’s labor relations manager, candidly
acknowledged that full compliance with the testing schedule had not been achieved in 2008, but
by the time PNM’s executive answered a Local 611 interrogatory on this subject in the PUC
case on March 31, 2009, compliance with the testing schedule had been achieved. Jt. Exh. 9.
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In late April, Christa Belt, the human resources representative dealing with this request,
provided Tafoya with a spread sheet showing the bucket truck tests performed by Diversified up
to that time. In her transmittal letter, Belt also disclosed that added tests may have been
conducted by Altec, the manufacturer of the bucket trucks. The evidence shows that the PNM
returns the trucks to Altec from time to time for repairs. PNM managers are aware that in the
course of this repair work Altec will occasionally perform safety tests similar to those performed
by Diversified but Altec does not furnish these test records to PNM. When PNM asked for their
test records, Altec told PNM’s fleet manager that they did not retain them.
Analysis and conclusions. The Acting General Counsel argues that PNM violated the
Act by failing to provide Local 611 with the Altec test records. PNM argues that it did not have
any Altec test records and had no duty to disclose them to Local 611. I have concluded that the
Altec records lack relevance and, hence, PNM had no duty to provide them to Local 611.
The Acting General Counsel’s position is premised on a misapprehension as to the
purpose of the tests performed by Altec. The evidence clearly shows that Altec conducts a
bucket truck test for its own purposes when necessary as a part of performing a repair.
Although the test may be similar or identical to that performed by Diversified, the sporadic
testing by Altec has no relationship to the requirements set out in the employee safety manual.
Only Diversified performs those tests. Moreover, the underlying purpose of the Altec test shows
that it would never have been testing performed in-house by PNM’s employees as was the case
with the safety manual testing. The Acting General Counsel’s argument assumes that Local
611 sought all bucket truck testing records regardless by whom and for whatever purpose. That
assumption is not supported by the evidence. Local 611 only sought records for the tests
conducted to achieve compliance with the testing required under the employee safety manual
that it had been contracted out to Diversified. Tafoya’s own testimony makes that quite clear:
Q When you requested the information initially or at any point, was there any other
purpose than to confirm whether the company was in compliance with the four-times-
per-year testing?
A Initially, yes -- I'm sorry. Initially, no. We were looking for the safety of the
employees. As the time drug on and they did not provide it, it became an issue in
negotiations. We submitted -- or we were offering examples of where subcontracting
didn't make sense, the subcontracting that the company was doing did not make sense.
One of the illustrations we showed in negotiations was the bucket-truck testing.
And, of course, one of our concerns is that their contractor had not been able to -- or
whether or not their contractor had been able to be compliant with the safety manual rule
and the other one was the cost. We -- I asked Wilburt Archuleta to do some calculations
for us about -- best he could about what it cost per test and what it cost the company to
have the contractor do per test.
And during negotiations, we brought to them the example that it was cheaper to do it
through the substation department, and, of course, our men felt much more comfortable
with it being done in-house than contractors.
Q But that did not happen. Right?
A That's correct.
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(Tr. 543-544) Even if PNM had access to the Altec test results, which it did not, those were not
records which related to the purpose of Local 611’s request. Indeed, the Altec tests had nothing
to do with the employee safety manual testing requirement at all. Accordingly, I find the claim
that PNM violated Section 8(a)(5) by failing to provide the Altec test records lacks merit and I
will recommend dismissal of this allegation.
3. Complaint paragraph 6(g) – (i) pertains to PNM’s admitted refusal to furnish Local
611 with a contract it maintained with Larkin Enterprises, Inc. (the Larkin contract), a
subcontractor that provided PNM with supplemental employees.
Relevant facts. Articles 40 and 41 of the parties’ 2005–2009 collective-bargaining
agreement permitted PNM to use supplemental workers for periods up to 4 months at its power
production facilities without further agreement on Local 611’s part. The remaining terms of the
agreement do not apply at all to semi-skilled workers but it controls the hours of work and the
rates of pay for skilled workers. (GC Exh. 6, pp. 109-111) Because of these contractual
provisions, a sharp distinction exists between employees of outside contractors and the so-
called supplemental employees. For example, the employees of the former are supervised by
the management of the subcontractor whereas the ordinary supplemental employee would be
supervised within the PNM chain of command. More importantly, supplemental employees can
be utilized for only a contractually specified period of time; employees of outside contractors
have no similar limitation on the duration of their work.
In early 2009, Local 611 filed a second-step grievance seeking the removal of Gerald
Powell (Powell grievance), a supplemental worker in the relay shop at the San Juan Station.
(Jt. Exh. 87) On April 13, Assistant Business Manager Fitzgerald requested that PNM furnish
Local 611 by April 20 with certain information related to this grievance, to wit: 1) a copy of the
Larkin contract; 2) the wage rate paid to Powell; and 3) PNM’s payroll records pertaining to
Powell, including records of the dates and hours Powell worked at the relay shop. (Jt. Exh. 10)
Having heard nothing by July 28, Fitzgerald emailed Ginger Lynch again demanding the
information sought for the processing the Powell grievance. (Jt. Exh. 11) Finally, in an August
4 letter Lynch furnished Fitzgerald with all of the requested information, save the Larkin
contract.12 She explained that PNM would not furnish the Larkin contract because it contained
proprietary and confidential information not relevant to the pending grievance. However, she
assured Fitzgerald that PNM would “strive to comply” with any “specific and relevant question
related to the terms and conditions in the (Larkin) contract” that he submitted.
Fitzgerald rejected Lynch’s offer apropos the Larkin contract on the ground that he could
not specify the particular questions Local 611 would have before seeing the contract. As seen
in his August 7 email to Lynch, Fitzgerald renewed Local 611’s demand for the Larkin contract
and offered to sign a confidentiality agreement:
The terms of the contract would allow us to see how long the Company intended to use
this worker and if the Company violated the contract on purpose. It would also show if
the contract between the parties was extended in order to violate the terms of the
Collective Bargaining Agreement between the Union and the Company. Accordingly we
must insist on the information that we requested being provided. In the past the Union

12 Lynch’s letter acknowledged that Powell had worked “a 10-hour schedule beginning July
2008 through March 2009.” Jt. Exh. 12.
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has agreed to sign reasonable Confidentiality agreements to alleviate the concerns of
the Company. We would again offer to do that.
(Jt. Exh. 12) PNM never furnished the Larkin contract as requested. It also never responded to
Fitzgerald’s offer to negotiate a confidentiality agreement. Local 611 charges that the
processing of the Powell grievance is stymied by PNM’s refusal to provide the Larkin contract.
Analysis and conclusions. The Acting General Counsel concedes that the Larkin
contract is not presumptively relevant information within the framework of existing case law but
asserts that Local 611 established its relevance to the pending Powell grievance, and, as PNM
refused to furnish the contract despite Local 611’s offer to accommodate confidentiality
concerns, it violated Section 8(a)(5). Local 611 made a similar argument. It also contends in a
broader sense that the issue at stake involved the policing of the contractual provisions dealing
with the use of supplemental workers and the preservation of unit work. PNM asserts, in
essence, that Local 611 failed to establish the relevance of the Larkin contract to the processing
of the Powell grievance so it had no legal duty to furnish the Larkin contract. And, in effect,
PNM believes that Lynch’s offer to answer Local 611’s questions about the Larkin contract
suffices to meet any legal duty that it did have in this situation.
As conceded by the Acting General Counsel, the Larkin contract does not directly
pertain to the employment conditions of the unit employees so it would not be information
presumptively relevant information. Therefore, the Acting General Counsel or Local 611 had
the burden of establishing the relevance of the Larking contract to the procession of the Powell
grievance, the specific incident that gave rise to the request. I have concluded that they failed
to meet that burden.
The relevance burden is satisfied in these situations by showing that a logical foundation
and a factual basis exist for such an information request. Postal Service, supra. That burden is
satisfied by a showing that there is a probability the requested information is relevant and would
be of use to a bargaining representative in carrying out its responsibilities. 310 NLRB 391-392.
The essence of the Powell grievance amounts to Local 611’s claim that PNM used a
supplemental employee – Powell – for a longer period than permitted under the terms of the
2005–2009 agreement. It makes no apparent claim that PNM and Larkin engaged in some type
of collusion or conspiracy to violate the supplemental worker limitation period that Fitzgerald
used in his August 7 email to justify his insistence that Local 611’s entitlement to the Larkin
contract. But even if one assumes the existence of collusion as to Powell, it is not at all clear
that fact would add anything to the narrow and definite subject matter of this grievance, i.e.,
whether Powell’s employment exceeded the 4-month contractual period without some form of
consent by Local 611.
In this context, and in the complete absence of evidence of an on-going pattern of similar
conduct in connection with the use of supplemental employees that would provide a basis for a
reasonable person to suspect that the pattern resulted from collusion between PNM and Larkin
seeking to undermine the employment of union represented workers, I cannot conclude that a
“logical foundation or factual basis” exists for requiring the production of the Larkin contract in
order to process the Powell grievance, a relatively routine dispute in the context of almost any
collective-bargaining relationship. Accordingly, I find PNM did not violate Section 8(a)(5) by
failing and refusing to furnish Local 611 with a copy of the Larkin contract in order to process the
Powell grievance so I will recommend the dismissal of this allegation.
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4. Complaint paragraph 6(j) – (l) alleges that, since August 14, 2009, PNM failed to
furnish all of the information Local 611 sought from May 1 onward to process its grievance
charging that PNM used two supplemental workers in place of a regular employee on the coal
pile at the San Juan Station. 13
Relevant facts. This allegation involves a March 2008 grievance (SJ-08-15, the
Archuleta grievance) about PNM’s use of an individual, Tom Archuleta, provided by a local
contractor named EESI. Local 611 claimed that PNM used Archuleta to displace a regular full-
time employee at the San Juan Station.
As explained by Fitzgerald, PNM had Archuleta “pushing coal on the coal piles at San
Juan for quite a while, and our concern was they were alluding that he was a contractor.” Local
611 believed that Archuleta was a supplemental employee rather than a contractor employee.
He explained that a contract employee is supervised by the contractor while the supplemental
employee is “coordinated” by PNM workers. And as previously noted, the collective-bargaining
agreement fixes a time limit on the use of supplemental worker whereas no such limitation
exists for workers employed by an outside contractor. (Tr. 937)
In a May 2008 email to a PNM representative, Fitzgerald requested that PNM furnish the
following information to Local 611 related to the Archuleta grievance: 1) a summary of the
supplemental employee’s job duties at the San Juan Station; 2) the days and worked by him
from January 1 to the time of the response; 3) the person(s) who assigned the worker each of
his particular jobs: 4) a list of the safety instructions given to employee; 5) a copy of the contract
between EESI and PNM for the work he performed; 6) the on-site EESI supervisor who directed
employee’s work and that supervisor’s rate of pay; 7) the employee’s pay rate including “any
fringe or roll up costs”; 8) all instances where PNM personnel directed or coordinated the
employee’s work; and 9) all accident or incident reports involving the employee. (Jt. Exh. 13)
The complaint alleges that PNM violated Section 8(a)(5) since August 14, 2009, by its failure or
refusal to furnish the information requested in items 4, 5 and 7.
For reasons unknown, this request languished unanswered for a considerable period.
Finally, it was referred to Sonia Otero, an Albuquerque HR generalist temporarily assigned to
assist personnel at the San Juan Station with a backlog of information requests. On June 29,
2009, soon after her assignment, Otero asked Fitzgerald to explain the relevance to the pending
grievance of items 4 (the list of safety instructions), 5 (PNM’s contract with EESI), and the
compensation information sought in item 7. (Jt. Exh. 89, p. 1)
Fitzgerald responded by email the following day. The relevance of item 4, he explained,
related to Local 611’s belief that a unit employee had been utilized to train and provide safety
instructions to the contract employee without being properly paid for doing this work. As to item
5, PNM’s contract with EESI, Fitzgerald argues that it could “lead to discovery of evidence
relevant and necessary to show several facts including . . . the Companies [sic] intent as to who

13 The step 1 and 2 grievances, both filed by Karl Sours, a steward at the San Juan Station,
are shown at Jt. Exhs. 88 and 65, respectively. The step 2 grievance largely tracks the step 1
grievance, which states:
On or about 3-24-08 and counting the company is using supplemental employees to
displace permanent full time employees. The company is not paying the upgrade to
employees supervising supplemental employees. Trying to gain through implementation
(that) which they did not gain through negotiations.
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would coordinate his work, supervise this worker and insure that his safety was considered as
well as requirements for training.” As to item 7 of his original request, Fitzgerald simply told
Otero that he was referring to “Tom Archuleta” (as she asked) but said nothing about the
relevance of the supplemental employee’s compensation package to the pending grievance.
After receiving and reviewing Fitzgerald’s response with management officials, Otero
ultimately provided PNM’s formal response to the original information request in an August 14,
2009, letter. In that letter, Otero provided at least some information as to the first three items,
declined to provide information sought in items 4 and 7 on relevance grounds, refused to
provide the vendor contract with EESI on ground that it was confidential and lacked relevance.
Her response denied knowledge of the information sought in item 6, reported that the PNM did
not maintain records of the information sought in item 8, and denied that that any accident, or
incident, report existed as sought in item 9. In her August 14 letter, Otero referred to Archuleta
as a “contract worker,” and a “contractor worker,” (Jt. Exh. 14, p. 2)
When Fitzgerald responded to Otero’s letter, he renewed Local 611’s request for items
“#3 and #6 as well as #5 and #9.” His August 14 email to her goes on to state: “The contract
that the company possesses should show who Tom would report to and how his job was laid
out and for what work.” (Jt. Exh. 15) PNM never responded to his renewed request.
Argument and conclusions. The Acting General Counseland the Charging Party
contend that a genuine issue existed between the parties about Archuleta’s status as a contract
worker or a supplemental employee. Although Respondent’s brief appears to concede that
Archuleta was a supplemental employee, that position appears inconsistent with the facts.
Thus, aside from Otero’s actual characterization of Archuleta as a contract employee in
her August 14 letter, other assertions in that letter strongly support the finding, which I have
made, that PNM claimed, in response to Local 611’s challenge about his employment, that
Archuleta was not a supplemental employee. For example, Otero’s assertion that Archuleta’s
compensation information lacked relevance is entirely consistent with the position that he was a
contractor’s employee, but it would be an entirely indefensible position if he was a supplemental
employee. This is so because article 41 in the collective-bargaining agreement requires that the
rate of pay of supplemental employees be consistent with the pay rates for unit employees.14
Hence, if Archuleta, in fact, was a supplemental employee, Otero’s assertion that this
information was not relevant would be logically indefensible.
Given the existence of the parties’ dispute about Archuleta’s status, I find the information
sought in items 4, 5, and 7 of Fitzgerald’s original request relevant to the issues presented by
the Archuleta grievance. In addition, I find that PNM failed to justify the withholding of its
contract with EESI on the basis of its alleged confidential nature. The party asserting
confidentiality has the burden of proving that such interests exist and that they outweigh its
bargaining representatives need for the information. Jacksonville Area Assn. for Retarded
Citizens, 316 NLRB 338, 340 (1995). In this case, PNM provided nothing more than a bare

14 The record evidence as a whole unquestionably merits the inference that Archuleta was
essentially a heavy equipment operator. That inference strongly supports the conclusion that he
would have been a “skilled” employee within the meaning of article 41 as opposed to a “semi-
skilled” employee. That being so, Archuleta’s rate of pay would have been controlled by the
collective-bargaining agreement and Local 611 would have unquestionably been entitled to his
compensation information as a part of its legal duty as the exclusive bargaining representative
to properly police the employer’s application of the bargaining agreement.
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assertion that its vendor contracts in general, including the EESI contract, contained confidential
information and it made no effort to accommodate its confidentiality interests with Local 611’s
interest in obtaining information necessary to process a pending work preservation grievance.
Accordingly, I find that PNM failed to sustain the burden it had of proving the confidential nature
of the EESI contract. In view of these conclusions, I find that PNM violated Section 8(a)(1) and
(5) as alleged by failing to provide the information requested in items 4, 5, and 7 of Fitzgerald’s
original request for information concerning the Archuleta grievance.
5. Complaint paragraph 6(m) – (o) alleges that PNM failed to furnish Local 611 with the
information requested on May 20 and 26, 2009, showing the duties of James Martinez and
Linda Hall.
Relevant facts. Following the conclusion of the negotiations for a new agreement in
May 2009, an issue arose concerning the proper classification of three employees, all of whom
seemingly performed some unit work as meter readers and bill collectors. One of the
employees, James Martinez, stationed at PNM’s satellite office in Las Vegas, New Mexico, had
long been classified as an “operations representative.”15 On May 22, Local 611 filed a
grievance seeking to have Martinez reclassified either as a senior meter reader or a collector.
(Jt. Exh. 30)
On May 26, Fitzgerald sent an email to Christa Belt and Ray Mathes alluding to a
conversation they had on May 20 about the proper classification of employees. In his email
Fitzgerald demanded that that PNM reclassify Martinez and Linda Hall as senior meter readers
or collectors, both unit positions, and make them whole for any wages due. (Jt. Exh. 31)
Fitzgerald also claimed that the PNM officials purportedly agreed “to provide an answer to (the
employees) current duties.”
In the middle of June 2009, Tafoya complained in an email to Belt about her delay in
providing Local 611 with an “answer.” In the context of this email, reference to an answer is
highly ambiguous. (Jt. Exh. 16) It makes no reference to Fitzgerald’s May 26 demand for “an
answer.” Belt credibly testified that on the basis of the May 20 conversation, the May 26
Fitzgerald email, and Tafoya’s June 18 email, she interpreted the request for an “answer” to
mean that Local 611 wanted PNM’s answer to its demand that Martinez and the other
employees be reclassified. (Tr. 452-453) To this end, Belt sent settlement offers Local 611
regarding Hall and Carbajal in late June that served as a frame work for resolving their
reclassification issues.
Later, on July 20, Belt transmitted PNM’s proposal to settle the Martinez issue. (Jt. Exh.
32) In this settlement offer, PNM proposed to reclassify Martinez as a meter reader but not at
the highest meter reader classification. The offer was rejected on that ground. Subsequent
communications between the parties over the Martinez matter amount to quibbling over whether
the duties actually performed by Martinez based on his own account would be sufficient to
warrant reclassification to the highest meter reader classification as he and Local 611 insisted.
None of these subsequent exchanges make any reference to PNM’s failure to provide

15 Operations representatives are not unit employees. The other two employees involved in
the early stages of this dispute, Linda Hall and Eddie Carbajal, had also been classified as
operations representatives. For whatever reason, information related to Carbajal never figured
in the complaint allegation. Regardless, PNM and Local 611 ultimately reached a settlement
providing for the reclassification of Hall and Carbajal to unit positions. Tr. 305. In deference to
the parties’ negotiated accord, I have treated the complaint allegation as to Hall as moot.
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requested information. To date, Martinez’ reclassification has not been resolved. For this
reason, the Acting General Counsel and Local 611 claim that his original May 22, 2009
grievance is still pending.
Argument and conclusions. The Acting General Counsel and Local 611 contend that
the reference to an “answer” in Fitzgerald’s May 26 email amounts to a written memorialization
of an oral request for information referenced in paragraph 6(m) of the complaint. Respondent
claims that Local 611 never made any type of request for information as described in complaint
paragraph 6(m). I agree with Respondent’s argument.
Local 611’s other requests for information exhibit unambiguous demands that PNM
provide it with information. Even assuming that some type of request for information had been
made originally on May 20, the fact remains that there was a concurrent demand that PNM
reclassify employees. There followed from that situation Fitzgerald’s email which failed to
resolve the ambiguous use of the word “answer” and Tafoya’s June 18 email bitterly
complaining about the lack of an “answer” that was followed by an exchange of arguments
related to a settlement proposal transmitted by Belt. I find these various communications after
May 26 failed to convey any sense that the process had been frustrated by a lack of information
requested by Local 611.
In view of these circumstances, I find that the obviously ambiguous requests for an
“answer’’ contained in emails from Fitzgerald and Tafoya did not refer to a pending information
request but rather referred to Local 611’s demand that PNM answer their proposal to reclassify
Martinez and the others. Accordingly, I find the Acting General Counsel failed to prove the
allegations made in complaint paragragh 6(m) – (o) by a preponderance of the evidence.
Therefore, I will recommend the dismissal of these allegations.
6. Complaint paragraph 6(p) – (r) alleges that PNM failed to provide a complete list of
all meter readers and collectors (MRCs) as requested by the Union on June 15, 2009.
Relevant facts. On May 7, 2008, the regional director certified Local 611 as the
exclusive representative “[a]ll meter readers . . . and all collectors” employed by PNM in the
State of New Mexico (the MRC unit) following a stipulated election. (According to Mathes, Local
611 made no objection to the failure of PNM to include the names of Martinez, Hall, or Carbajal,
on the list of eligible voters.) When the parties concluded the 2009-2012 collective-bargaining
agreement, it contained an addendum related to the MRCs setting forth particular terms and
conditions related to their classification. The agreement also contained a separate wage scale
for the MRCs. That wage scale divided the collectors into two wage categories or classifications
and the meter readers into four wage categories or classifications. (Jt. Exh. 5, p. 82)
In support of this allegation, the Acting General Counsel and Local 611 rely of an email
request of June 15, 2009, from Tafoya to Belt requesting that PNM furnish “a complete list of all
collectors and meter readers including their current classification, hire dates and job dates.” He
asked that she forward that information “as quick as you can get it to us” and told her that they
could then “work together to correct any problems.” Two days later, JoAnn Garcia, a lead HR
consultant working with Belt, sent Tafoya a 3-page list of PNM’s collectors and meter readers,
their wage category or classification, their “entry” dates, and their “start” dates. Admittedly,
Tafoya never objected to the inadequacy of the information provided by Garcia.
On December 30, 2009, Tafoya submitted another related request to Belt asking that
PNM furnish the names and classifications of all PNM employees “not currently in our
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bargaining unit” who read electric and gas meters, those who only read electric meters, and
those who perform field collection work.16
Argument and conclusions. The Acting General Counsel and Local 611 argue that
the June 15 request sought information as to all employees who actually performed MRC work
rather than just those classified as MRCs. PNM claims that it furnished Local 611 with exactly
the information it requested. In support, PNM argues that Local 611 never objected to the
inadequacy of information furnished.17
I agree with the with PNM’s argument. The contention by Local 611 that Tafoya sought
a list of anyone performing any kind of MRC work regardless of classification lacks support.
This claim is severely undercut by Local 611’s failure to object to the information PNM promptly
furnished particularly where, as here, the information furnished made no reference to Martinez,
Hall, or Carbajal, all employees whose inclusion in the MRC unit Local 611 was actively
pursuing at that very time. Hence, their absence from the list furnished by Garcia should have
been quite obvious. Furthermore, Tafoya’s request in December vividly demonstrates Local
611’s ability to frame an information request in a manner that would be the all encompassing
request it has belatedly ascribed to its June 15 request. Accordingly, I am unable to find merit
to the claim that the June 15 request sought information other than that which PNM furnished 2
days later. Therefore, I recommend the dismissal of this allegation.
7. Complaint paragraph 6(s) – (u) alleges that Local 611 requested on July 31, 2009,
the documentation relied upon by PNM for failing to comply with an OSHA regulation that
deemed certain climbing equipment used by the linemen (belts, hooks, straps) to be personal
protective equipment (PPE) and required that employers purchase such equipment for its
employees engaged in that work.
Relevant Facts. The OSHA issued the relevant PPE regulation that became effective in
February 2008. Initially, PNM applied the requirements of the regulation only to employees
hired after the effective date of the regulation, an interpretation consistent with that of the New
Mexico Occupational Safety and Health Bureau (NMOSHB) at the time.
On July 31, 2009, Tafoya sent an email to Mathes, Belt, Nawman, and Joel Ivey calling
attention to the PPE regulation and inquiring why PNM was not in compliance with the
requirement that it pay for the PPE used by the linemen. He received no response. Tafoya
followed up with an email on August 13, requesting that PNM furnish Local 611 by August 17
with “(a)ny and all documentation that the Company relies upon to not comply with the
regulation.” Tafoya sought this information because he assumed that PNM must be relying on
some type of documentation for its failure to apply the regulation to all employees. He had
never been told that PNM relied on any documentation other than the regulation itself. (Tr. 717)
Having received no response to his August 13 email, Tafoya filed a complaint with
NMOSHB sometime in late August or early September. At about the same time, Tafoya and
Mathes engaged in a series of verbal and email exchanges and meetings over the linemen’s
equipment issue. In a September 22 email, Tafoya requested much more detailed information
related to this issue that he carefully noted was “in addition to the request sent on 8/13/09.”

16 This request is also the subject of a separate unfair labor practice allegation that will be
considered below.
17 I am unable to locate any argument in the Acting General Counsel’s brief related to this
particular complaint allegation.
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Specifically, this request sought the names and classifications of employees who had received
reimbursements for PPE purchases, the manner in which the amounts were determined, the
conditions imposed as a result of the reimbursements, and “(h)ow the Company determined
who received ‘reimbursement.’” Mathes provided virtually all, if not all, of the information Tafoya
sought at that time.18 As to the latter request, Mathes told Tafoya “(t)he employees who were
reimbursed became linemen apprentices after May 15, 2008 when OSHA regulation 29 CFR
1910.132(h) required employers to provide the climbing gear as personal protective equipment.”
(Jt. Exh. 95: pp. 2-3)
In its initial response to his complaint, NMOSHB advised Tafoya that it, too, interpreted
the regulation as applicable only to employees hired after the effective date of the PPE
regulation. That led Tafoya to seek and obtain a clarifying interpretation from the Occupational
Health and Safety Administration (OSHA) regional office in Texas to the effect that the
regulation applied to all employees regardless of their date of hire. (Tr. 571-572) This clarifying
interpretation resulted in a site inspection conducted by NMOSHB and the issuance of a citation
on October 23 by that agency for PNM’s failure to comply with the PPE regulation. (Jt. Exh. 96)
Subsequent to that, PNM and Local 611 negotiated a “Mutual Agreement” concerning the
application of the PPE regulation at PNM which the appropriate unit employees ratified and the
parties executed in early January 2010. (Jt. Exh. 97)
Argument and conclusions. The Acting General Counsel argues that the relevance of
the information Tafoya sought on August 13 has been established and that the “Union received
no response from Respondent regarding the Union’s concerns that Respondent was not
complying with this OSHA requirement.” Local 611 likewise asserts that the information
requested on August 13 was never furnished and contends that if it had been, it might have
insisted on a different agreement than that concluded in January 2010. PNM contends that
Tafoya’s August 13 request was grounded on the assumption that PNM was not complying with
the PPE regulation and, as it believed in good faith that it was in compliance, it had no
information to furnish. PNM further argues that this request became moot after it concluded a
settlement with NMOSHB and Local 611 over the payment of the PPE items.
I find that the Acting General Counsel to prove by a preponderance of the evidence that
PNM failed to furnish the information Local 611 requested on August 13. On the contrary,
Mathes responded to Tafoya’s final request of September 22 – which essentially repeated the
August 13 request – by informing him that PNM had relied on the PPE regulation itself. The
Acting General Counsel makes no claim that PNM’s interpretation of the regulation was made in
bad faith or was unreasonable. Indeed, a similar conclusion by the state agency with
enforcement responsibilities of the regulation at issue forecloses any logical conclusion to that
effect. This fact, coupled with an admittedly similar conclusion by NMOSHB, supports the
inference I have made that Local 611 knew quite well the basis for PNM’s interpretation of the
PPE regulation. Accordingly, on the basis of the subsequent exchanges between Mathes and
Tafoya, I am unable to conclude that a preponderance of the evidence shows that PNM failed to
respond to this request.
But even assuming that PNM technically failed to respond specifically to the August 13
request, I agree with PNM’s contention that the request became moot, albeit not for the reasons
it advanced, i.e., the subsequent January 2010 agreement of the parties. Instead, I find that this

18 I find it reasonable to infer that the General Counsel did not include any allegations about
the additional information requests of September 22 because Mathes provided all, or
substantially all, of the information Tafoya requested.
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request became moot – or at the very least entirely irrelevant – when the OSHA regional office
provided a definitive interpretation of the PPE regulation consistent with Local 611 position
which NMOSHB applied in its subsequent investigation. No evidence shows that PNM
contested the OSHA interpretation or did anything other than abandon its earlier, more-limited
interpretation of the PPE regulation. Hence, the condition which even the Acting General
Counsel agrees that motivated Local 611’s request in the first place simply ceased to exist
altogether when PNM acquiesced in the more expansive interpretation of the PPE regulation
provided by OSHA’s regional office. Accordingly, I will recommend dismissal of this allegation.
8. Complaint paragraph 6(v) – (z) alleges that PNM unlawfully failed to provide Local
611 with information requested on August 6 and 26, 2009, concerning respiratory fit testing and
its “clean-shaven” policy.
Relevant facts. PNM has maintained a detailed respiratory protection policy at the San
Juan Station since 2007 or before. The policy purports to incorporate various regulations and
guidance documents produced by OSHA, the National Institute for Occupational Safety and
Health, and the American National Standards Institute. It details procedures designed to protect
employees against “air contaminants and oxygen-deficient atmospheres.” (Jt. Exh. 37, Att. 5,
pp. 1 – 22)
Under the policy, employees must wear respirators in certain designated areas and may
wear them in other areas if they chose. Employees assigned for work in areas where use is
mandatory must first undergo a medical evaluation of their suitability for using a respirator
administered by a medical professional and a fit test of the assigned device. Once performed,
these tests must be repeated every year thereafter as long as the employee works in a
mandatory-use area. Employees who choose to voluntarily wear a respirator in other areas
must also undergo the medical evaluation but are not required to take a fit test. (Jt. Exh. 37, Att.
5, pp. 2-3)
The policy limits the wearing of facial hair that might interfere with the seal of the
respirator to the face or that interferes with the operation of the respirator valve. The policy also
provides that employees with facial hair that impairs the seal or the valve operation “shall shave
the facial hair in question before being allowed to use the respirator.” (Jt. Exh. 37, Att. 5, p. 7;
Tr. 1028) Generally, PNM specifies this facial hair standard when an outside vendor conducts
the periodic fit tests. (Tr. 1010-1011) Under the policy, employees required to wear respirators
need not be totally “clean-shaven.”
The parties’ collective-bargaining agreement provides for the establishment of general
safety committees at various locations. They are joint labor-management committees that
address safety questions and adopt the employee safety rules. The general safety committee
must approve all changes to PNM’s Employee Safety Manual.
The San Juan Respiratory Protection Program is consistent with rules established under
the jointly negotiated Employee Safety Manual. In particular, Section XI of the safety manual
“Requirements for all Respiratory Protection” provides as follows:
c. Facial characteristics such as scars, unusual skull shapes, facial hair, etc., may
prevent an employee from obtaining an effective seal. Employees required to wear
respirators shall be able to satisfactorily pass the facial seal test specified in the facility
Respiratory Protection program.
(G.C. Exh. 7, Sec. XI A 1.1c)
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The joint safety committees meet quarterly or on-call as specified in the bargaining
agreement. The minutes of San Juan Plant’s General Safety Committee for July 30, 2009,
show that former San Juan Plant Manager Jim McNicol addressed the committee about several
matters. He informed the committee that the past practice of voluntary compliance with the
plant’s pulmonary and respiratory equipment fit-testing program would end and that the program
would become “mandatory” in the next couple of months with a goal of completing all fit tests
“by (the) end of September.” McNicol also stated that “(a)ll employees being fitted for any
respiratory equipment must be clean-shaven to get a proper fit.” He acknowledged there would
be “issues” about this requirement but added that “management and the safety team . . . will do
whatever is necessary to administer it and enforce it.”19 (Jt. Exh. 35, p. 1)
The clean-shaven comment sparked an immediate controversy that resulted in a number
of internal email exchanges that involved McNicol, John Haarlow, the head of the San Juan
safety department, Michael Walls, one of Haarlow’s staffers, Ginger Lynch from the labor
relations department, and others. (GC Exh. 13) At the end of this email string McNicol wrote
the following to Harlow and Walls:
Yep, I probably should have elaborated on the clean shaven comment. I knew what I
meant! Obviously, what is required is for the respirator to fit properly, thus hair on the
face affecting the sealing surface is the issue. That is basically it, as you know. Limited
facial hair or even full beards between fit tests or occasions when an employee needs to
wear a properly sealing respirator are not an issue.
On August 1, Local 611 Representative Fitzgerald emailed Ginger Lynch claiming that
McNicol’s disclosures about the fit testing program and the clean-shaven requirement at the
meeting the day before amounted to a unilateral change. He requested that she furnish him
with a copy of the program and “cease and desist” with its implementation without first
bargaining with Local 611 over the matter. He also asked for the date of the planned
implementation of the program and the “new clean shaven requirements” along with the
“resultant actions” in case of noncompliance. (Jt. Exh. 36, p. 2)
Lynch responded August 5 email, furnishing Fitzgerald with a copy of PNM’s respiratory
protection program for the San Juan Station. Lynch also claimed that, under Federal law, the fit
tests were a mandatory procedure for “all employees who may wear respirators.” She also went
on to assert that the “federally-required ‘fit tests’ specifically prohibit ‘any hair growth’ between
the skin and the facepiece sealing surface of the respirator.” Any disciplinary action required to
enforce compliance, she said, would be in accord with a “Positive Discipline” policy incorporated
in the parties’ bargaining agreement. Finally, Lynch rejected Fitzgerald’s request for bargaining
on the ground that PNM “is obligated to comply with OSHA” and therefore bargaining over
“whether to comply with federal law is an illegal subject of bargaining.” (Jt. Exh. 37)
Michael Walls, a senior safety consultant at the San Juan facility, claimed there was no
attempt in 2009 to change the existing program. Although he could not recall precisely when he
talked with Fitzgerald about McNicol’s “clean-shaven” remarks, he recalled telling the union
agent that the issue amounted to “a misunderstanding or miscommunication of what clean-
shaven means.” (Tr. 1008-1009) Mathes, Lynch’s supervisor at the time, also claimed that a
“misunderstanding” arose from McNicol’s use of the words “clean shaven” at the July 30 safety

19 McNicol did not testify. The statements attributed to him in the committee’s minutes are
not disputed. Labor Relations Manager Mathes admitted that he had heard about McNicol’s
“clean-shaven” remark and said “the effect was that folks were agitated about (it).”
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meeting that Lynch’s August 5 email attempted to clarify by making the point that they meant
only as stated in the existing, written program. (Tr. 280)
In emails from Fitzgerald to Lynch dated August 6 and 18, Fitzgerald continued to
reference McNicol’s “clean-shaven” remark at the July 30 safety committee meeting. He
insisted that PNM rescind McNicol’s threat to enforce “a clean shaven policy.”
On August 25, PNM sent a high-priority email notice to various crew supervisors (13 in all)
instructing them to send their employees for the pulmonary function and respirator fit tests on
the dates listed if the employee was not “current” on those tests. The email also notified the
supervisors that “(b)ottom line, we need to be complete by October 30.”
Fitzgerald obtained a copy of the email and sent a request to Lynch the following day,
August 26, seeking this following information:
 What will happen if an employee is unsuccessful in passing his/her fit test?
 Will being fit test be a new requirement of a job or jobs? Does the Company intend to
use being fit tested as a reason to bypass employees for overtime on certain jobs?
 Will all employees be required to fit test even though they may or may not wear
respirators in their current duties?
 Since the Company has chosen to start this on August 31, 2009 is this the
implementation date?
 Has each of these employees been evaluated in accordance with OSHA requirements?
 Will employees be advised as to how they will comply while in equipment such as ARC
flash hoods?
Fitzgerald insisted that he be provided answers by August 28. In addition, the request insisted
that PNM rescind its respirator-fit-test program to the extent that it had implemented one until it
bargained with Local 611 over this subject. (Jt. Exh. 39)
Lynch emailed PNM’s response on September 8. In it, she set out the “implementation
timeline” for the testing identical to that contained in the August 25 notice to PNM’s supervisors.
She added that the company’s goal was to finish the testing by the “end of October 2009” and
went on to state “(w)e cannot speculate about what the consequences of an employee’s failing
to comply with the OSHA-mandated tests because the reasons for the failure and other
circumstance are important” but if the employee failed the test simply because he refused to
shave “the employee may be subject to the disciplinary process . . . (in) the collective bargaining
agreement.” She concluded her email by stating that the “Company has identified appropriate
respiratory equipment for use in the ARC flash hoods.”
Within an hour Fitzgerald responded claiming that she had not answered all of his
questions, namely, whether employees not required to wear respirators would be fit tested;
whether a fit test would be a requirement of a job or jobs; and whether the PNM would use fit-
testing as a reason to bypass employees for overtime.
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At the hearing, Fitzgerald remained equally adamant, claiming that Lynch never
responded to his inquiries about what would happen to an employee if he/she failed a fit test.
That led to this exchange between PNM’s counsel and Fitzgerald:
Q Okay. It wouldn't matter if it was because they refused to shave a full beard
versus they had some kind of facial abnormality?
A I believe all those things could have been covered in an answer. We'll make
accommodations; we'll try different respirators; we'll -- I'm basically asking, what
happens if they are unsuccessful. If it's a medical condition -- they should know all that.
It's their policy.
Q So you think they should know all the possible circumstances that an employee
could fail a fit test and then give you what would happen with respect to all of those.
That's right?
A I believe they should be able to. Yes.
(Tr. 1077)
No evidence establishes that any employee received discipline for failing or refusing to
be “clean shaven” for a fit test. Fitzgerald admitted that at least some employees with facial hair
completed the fit testing requirement. (Tr. 1074)
Argument and conclusions. The Acting General Counsel’s brief advances very
narrow arguments. First, he asserts only that the Union, on August 18, requested “a copy of the
clean-shaven policy that . . . McNicol promulgated . . . on July 30, 2009” and that PNM has not
provided that policy. Next, the Acting General Counsel argues that PNM “has not sufficiently
responded” to Local 611’s inquiry as to what would happen if an employee failed a fit test. This
information, the Acting General Counsel argues, is presumptively relevant because it relates to
the health and safety of employees, a term and condition of employment. Local 611
acknowledges receipt of a copy of Respiratory Protection Program at the San Juan Station “but
not any policy or program “mandating fit testing or requiring employees to be clean shaven.”
(Local 611 Br., p. 22.)
Respondent contends that McNicol did not intend to announce any “clean-shaven”
requirement beyond the respiratory protection program’s prohibition against hair that interfered
with the fit or function of the respirator, and that PNM never had any other "clean-shaven"
policy. It contends that it furnished all relevant information Fitzgerald sought about the
respiratory protection program. However it contends that Fitzgerald never sought a copy of the
“clean-shaven” policy as alleged in the complaint and, even if he had, PNM had no responsive
information because such a policy never existed. PNM claims that it had no duty to furnish
other information sought by Fitzgerald because it related to OSHA requirements or merely
sought to bait the company into admitting violations of the parties’ collective-bargaining
agreement or its bargaining obligations.
After careful consideration of the foregoing, I find that McNicol’s inarticulate statement on
July 30 amounted to nothing more than an announcement that the respiratory protection
program would become mandatory. There is no allegation that this action violated the Act. The
preponderance of the evidence clearly establishes that PNM never, at any time, established a
so-called “clean-shaven” policy as alleged in complaint paragraph 6(v). Hence, I find that
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despite Fitzgerald’s repeated insistence that it do so, PNM had no legal duty to furnish
information about a nonexistent “clean shaven” policy.
I further find that PNM provided Local 611 with the information sought on August 26 to
the extent that it was legally obliged to do. In this connection, Fitzgerald’s insistence that PNM
articulate the type of discipline that might be imposed amounted to nothing more than a demand
that the Company speculate about a myriad of potential causes for a failure and determine in
advance an endless list of penalties. I find PNM had no legal obligation to engage in this type of
speculation. Having concluded that Respondent provided all of the information it was legally
obliged to provide, I recommend dismissal of these allegations.
The closely related allegation by the Acting General Counsel in complaint paragraphs
7(b), (h), and (g) that PNM violated the Act by unilaterally implementing a mandatory pulmonary
and fit testing program requiring that employees be clean-shaven also lacks merit. At previously
found, PNM never instituted a clean-shaven requirement. Additionally, PNM correctly notes that
the pulmonary and fit testing requirements are mandated by OSHA. Finally, the Employee
Safety Manual jointly negotiated by the parties also requires such testing in accord with the
“facility Respiratory Protection program.” This safety manual provision, and the lack of any
testimony or other evidence from the safety committee members who participated in its
negotiation, strongly supports the inference I have made that that the contractually established
joint committee considered the testing requirements and negotiated fully in connection with that
subject. Accordingly, I find the Acting General Counsel failed to prove any unlawful unilateral
action as alleged in complaint paragraphs 7(b), (h) and (g). For this reason, I also recommend
dismissal of those related allegations.
9. Complaint paragraph 6(aa) – (cc) alleges that PNM failed and refused to furnish
Local 611 with the following information sought on October 1, 2009, related to the discharge
grievances of Everand Silas and Guy Claw:
Any and all documentation that [the Respondent] used or considered that it had not
previously supplied concerning the grievances SJ-09-07 [Silas] and SJ-09-08 [Claw],
including any and all notes taken that were used in determining the terminations at issue
in grievances SJ-09-07 and SJ-09-08.
Relevant facts. Claw and Silas, two mechanics who worked in the maintenance
department at the San Juan Station until February 2009, were fired by their department
manager, Mathew Zersen, for violating PNM’s rules against jobsite violence.
Following a report of an altercation between Claw and Silas, Labor Relations Supervisor
Ginger Lynch and Supervisor Jim Cash conducted fact-finding interviews with both employees.
A union steward and Zersen sat in on these interviews as well as the interview of a contractor’s
employee who purportedly witnessed the altercation conducted later that day.
Following the fact-finding interviews, Claw and Silas were suspended with pay pending a
disciplinary determination by management. Zersen, Cash and Lynch then reviewed the incident
and concluded that both employees failed to follow PNM’s policies prohibiting workplace
violence. At the end of their discussion, and after speaking with PNM’s legal department,
Zerson decided to discharge both employees. He instructed Lynch to prepare a discharge
recommendation for both employees and said that he would clear his decision with the plant
manager. Zerson credibly testified that did not take notes at the fact-finding interviews or review
the notes of anyone else prior to making his decision. He also had no recollection of having
seen the written discharge recommendations Lynch prepared at his direction and submitted to
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Anna Ortiz, the director of HR Services. Regardless, those two documents would have been
generated by Lynch after Zersen decided to discharge the two employees.
After their discharges, Local 611 promptly filed grievances on the behalf of Claw and
Silas. At the first-step grievance meeting in March, PNM provided Local 611 with copies of
Lynch’s written discharge recommendations. The copies provided contain a redaction of the
factual version of the events Lynch submitted to Ortiz. In place of the redacted material, the
copies provided Local 611 contain a summary of the facts as determined by PNM
representatives following their fact-finding interviews. (CP Exhs. 12 and 13) Local 611
requested an unredacted copy as well as any notes take by company representatives at the
fact-finding interviews. A few days later, PNM denied the union’s request for unredacted copies
of Lynch’s recommendations and the notes she took at the interviews. At second step
grievance meetings held on September 29 and 30, Local 611 reiterated its request for the
unredacted copies and for management’s notes previously sought. On October 1, Fitzgerald
emailed a follow up request to Lynch. Fitzgerald testified that he wanted to know what the
decisionmakers had in front of them when they decided to terminate Claw and Silas. (Tr. 1078)
In addition to seeking unredacted copies of Lynch’s discharge recommendations,
Fitzgerald’s October 1 request specifically sought any notes taken by management personnel
present at the pre-discharge interviews, and some incidental training materials pertaining to
Silas. Lynch responded on October 27. She supplied the training materials ordinarily used but
not unredacted copies of her discharge recommendations or the notes taken by management
personnel at the fact-finding interviews. Her letter stated that the PNM maintained the same
position it initially took with respect to the notes and the unredacted recommendations in late
March. As to management’s notes, she specifically declined to furnish that information because
a union steward took notes at the interviews of the discharged employees and the outside
witness. Fitzgerald responded on November 4, charging that Lynch had not furnished any of
the requested information, including even the training information because PNM had failed to
provide documentation about the materials used on the specific day that Silas received the
disputed training. Fitzgerald claimed that the grievances are stymied by PNM’s refusal to
furnish this information.
Argument and conclusions. The Acting General Counsel, asserting that PNM “relied
heavily on the notes it had taken of the employee interviews” supports the Union’s claim that
those notes as well as unredacted copies of Lynch’s discharge recommendations are necessary
and relevant to the determination as to whether to process the Claw and Silas grievances. The
Acting General Counsel asserts that the mere fact that a union steward was present for the
interviews is not a defense to the refusal to furnish the requested documents.
Respondent claims that this is “another instance where the Company had no information
responsive to the [Union’s request for information] as phrased” because Zersen made the
decision and did not rely on Lynch’s memos or anyone’s notes.
At least as to Lynch’s written termination recommendation, I find Respondent’s defense
lacks merit. Over a period of months following receipt of the redacted copy of Lynch’s memo,
Local 611 made several requests for unredacted copy but PNM never provided it. The actual
reason PNM withheld the full memo has not been clearly explained apart from its assertion that
Zersen did not rely on it when making the decision to discharge the two employees. Although
that may well be true in a narrow sense, the evidence merits the inference that the memo
amounts to a summary of the considerations that Zersen, Lynch, and Cash discussed jointly
and with some unidentified person or persons in PNM’s legal department following the
interviews of the two employees and the witness.
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For this reason, and as Zersen directed Lynch to prepare the recommendation memos, it
is fair to conclude that the basis for his decision to terminate the two employees would likely be
imbedded in the memos Lynch ultimately prepared. Therefore, I find the complete documents
would be relevant and useful to Local 611 in evaluating the merits of the grievances it filed
concerning the discharges. These unredacted memos, in my view, are analogous to the
security officers’ reports in New Jersey Bell Telephone Co., 300 NLRB 42 (1990) that the Board
required the company to produce to the bargaining representative to assist it in evaluating a
discharge grievance. Accordingly, I find New Jersey Bell controls the result here and conclude
that PNM violated Section 8(a)(1) and (5) by failing to provide Local 611 with the unredacted
copies of Lynch’s termination recommendations as requested.
The notes taken by Lynch during the witness interviews are another matter. As Local
611 had an official representative present during all of the interviews, it had equal access to the
same raw information available to PNM by reason of Lynch’s presence at the interviews. The
only additional information likely available in Lynch’s notes would be conclusions she may have
made by reason of the mental impressions gained during the interviews. As it is likely that she
discussed the impressions recorded in her notes during the postinterview exchange she had
with Zersen, Cash, and the Company’s legal department, I find such information would also fall
within the scope of Local 611’s request. However, Local 611 had the same or similar
information available to it as the result of the steward’s presence at the interviews, a fact that
Lynch pointed out to Fitzgerald in refusing to provide her notes. Although PNM did not advance
a claim of work product privilege in its brief with respect to Lynch’s notes, I find the basis for her
refusal to produce her notes in response to several requests by Fitzgerald tantamount to the
assertion of a work product privilege. Based on the Board’s decision in Central Telephone Co.,
343 NLRB 987 (2004). I have concluded that Lynch’s notes constituted privileged work product
and that PNM did not violate the Act by refusing to produce them as requested by Local 611.
b. Complaint in Case 28-CA-22997
10. Complaint paragraphs 6(a), (d), and (e), as amended (see GC Exh. 2), alleges that
since March 26, 2010, PNM refused to furnish Local 611 with the information it sought
concerning the duties other than meter reading and collection work performed by six individuals,
namely, Christopher Bustamante, Jason Montoya, Chris Padilla, Felix Munoz, Steve Bertuca,
and Michael Varela.
Relevant facts. Following an election concluded on April 28, 2008, pursuant to a
stipulated election agreement, the NLRB certified Local 611 as the exclusive representative for
the following employees: All meter readers, who regularly read only electric meters or both
electric and gas meters, and all collectors employed by [PNM] in the State of New Mexico.
The stipulated unit excluded these employees: All meter readers who regularly read only gas
meters, all employees currently represented in an existing bargaining unit, all administrative,
production, maintenance, construction, and managerial employees, office employees who do
not regularly work in the field, office clerical employees, guards and supervisors as defined in
the Act.
After its certification, Local 611 requested extensive information concerning bargaining
unit employees that PNM presumably provided. (Jt. Exh. 41) Thereafter, the parties negotiated
special terms applicable to this new unit and agreed otherwise to apply the terms of their
existing collective-bargaining agreement to the meter readers and collectors unit in a manner
that suggests the merger of the new unit with the existing unit. (See GC Exh. 5)
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By the end of 2009, a dispute sprouted over the classification of some nonunit
employees working in outlying areas who performed meter reading and collection work On
December 30, 2009, Tafoya submitted a written request to Crista Belt, a PNM labor relations
representative, seeking the following information:
ï‚· The names and classifications of all PNM employees that read electric and gas or
electric only meters who are not currently in our bargaining unit.
ï‚· The number of days a week they read meters to include check reads.
ï‚· The number of hours a day they read meters to include check reads.
ï‚· The rates of pay for those identified.
ï‚· The names and classifications of all PNM employees who perform field collections,
disconnects for non-payment, and delivery of two day notices.
ï‚· The number of days they perform field collections, disconnects for nonpayment, and
delivery of two day notices.
ï‚· The number of hours a day they perform field collections, disconnects for non-payment,
and delivery of two day notices.
ï‚· The rates of pay for those identified.
(Jt. Exh. 93) Ray Mathes, PNM’s labor relations manager, responded to Tafoya’s request on
January 22, 2010, by providing all of the information requested above save for the wage rate
information. He specifically noted the named employees engaged in meter reading and
collection work “among their other duties.” The information provided did not show that the
employees performed meter reading or collection work, or a combination of the two, on a full-
time basis.20 (Jt. Exh. 48, pp. 3-4)
Mathes named 10 persons who read “electric and gas or electric only” meters. He
named six persons who performed “field collections, disconnects for non-payment, and delivery
of two day notices.” Five in the latter group were also included in the former group.
On February 15, a union steward filed a grievance alleging that PNM failed to properly
classify coordinators’ Bustamante, Montoya, Padilla, Munoz, Bertuca, Varela, and two others,
James Martinez and Isidro Medina, as senior meter readers or collectors under the terms of the
parties’ bargaining agreement.21 PNM denied the grievance on February 22 on the ground that
the named employees could not avail themselves to the grievance procedure. (Jt. Exh. 49)
On March 26, Tafoya requested that PNM provide Local 611 with the job descriptions for
the coordinators involved as well as a list of the “other duties” performed by the coordinators
that company representatives mentioned during a recent grievance meeting and that Mathes
alluded to in his January 22 letter. (Jt. Exh. 51) In his April 2 response, Mathes provided the

20 As a preface to providing the information, Mathes charged that, as the information sought
pertained to individuals outside the bargaining unit, the Union had the obligation to establish
relevance but had failed to do so. And, as to one individual, James Martinez, Mathes further
objected on the ground that the Union’s request amounted to inappropriate discovery inasmuch
as the Union had recently filed an NLRB charge on his behalf. Jt. Exh. 48, pp. 1-2.
21 In his January 22 response, Mathes identified Bustamante, Montoya, and Varela as
customer service coordinators, and Bertuca, Montoya, and Padilla as meter reader
coordinators. However, he identified Martinez as an operations representative, and Medina as
a supervisor. Regardless, the Union’s grievances lump Martinez and Medina together with the
others classified by PNM as coordinators. See Jt. Exhs. 49, 50.
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job descriptions Tafoya requested but asked him to explain the relevance of his request for the
added information concerning the coordinators’ “other duties.” (Jt. Exhs. 52 and 53)
In an April 7 letter to Mathes, Tafoya reiterated his request that PNM enumerate the
coordinators’ “other duties” that PNM representatives repeatedly cited. (Jt. Exh. 56) Apart from
the duties detailed in the coordinators’ job descriptions it provided to the Union, PNM has not
responded to this repeated request.
Argument and conclusions. The Acting General Counsel and Local 611 argue that
PNM violated Section 8(a)(5) by failing to provide the Union with necessary and relevant
information it requested in connection with processing the grievances it filed regarding the
proper unit placement of the so-called coordinators.
PNM tacitly acknowledges that it never provided Local 611 with any specific information
about the “other duties” its coordinators perform. However, it argues that the Union “did not
come close to satisfying its burden of demonstrating a reasonable belief, supported by objective
evidence, that information about other duties performed by nonunit employees was relevant.”
PNM’s argument lacks merit. Mathes’ initial response on this subject identifying certain
individuals who perform meter reading and collection work together with the subsequent
grievances filed by the Union plainly establish the relevance of the “other duties” information.
Recently, in Piggly Wiggly Midwest, LLC, 357 NLRB No. 191 (2012), the Board observed:
“Where the factual basis of a request for nonunit information is obvious from all the surrounding
circumstances, the union’s failure to spell it out will not absolve the employer of its obligations
under the Act.” Hence, even though the Union may have failed to articulate the relevance of its
request for information about the “other duties” of the coordinators (and the other two, Martinez
and Medina) in its correspondence with the Company, the extant circumstances plainly
establish the relevance of this information on its face. If for no other reason, such information
would be essential to assessing whether the meter reading or collection work performed by the
disputed individuals amounted to an incidental or predominate part of their work, or something
in between. As I have concluded that this information is relevant and necessary to the Union’s
representative functions, particularly as it pertains to the preservation of unit work, I find
Respondent violated Section 8(a)(1) and (5) by refusing to provide it.
11. Complaint paragraph 6(c), (d) and (g) alleges that PNM has failed and refused to
furnish Local 611 with information requested on February 12, 2010, as to the basis for including
employees on PNM’s “cyber security” list and the factors used for making those determinations.
Relevant facts. PNM is regulated by the Federal Energy Regulatory Commission
(FERC). FERC regulations required that electric utilities such a PNM comply with the FERC-
approved Critical Infrastructure Protection Standards (CIP) that governs the security of the
nation’s bulk electric system. One CIP standard requires an electric utility to identify critical
cyber assets, i.e., those cyber assets whose function is essential to the reliable delivery of a
vital business process.22 Another CIP standard requires that each utility company employee
with unescorted physical access to critical cyber assets must undergo an appropriate personnel
risk assessment (PRA) and security awareness training. This standard requires the utility
company to maintain and utilize a documented PRA program before granting an employee

22 In the context used here, a cyber asset is defined as electronic devices used to create,
store or process data, communication systems that transmit information electronically, and
hardware or software systems that support these functions.
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access to critical cyber assets. At a minimum, the utility’s PRA program must include a suitable
form of identity verification and a 7-year criminal background check. Covered employees must
undergo a PRA at least every 7 years after their initial assessment. (GC Exh. 4, pp. 2-3) The
underlying goal of the PRA is to mitigate threats to the national electric grid by ensuring that
only trustworthy and reliable personnel have unescorted access to a utility’s facilities, functions
or information. Suffice it to say that the mandated cyber security regulations address matters of
grave importance to national security. At the same time, compliance with FERC’s regulations
necessitates serious intrusions into employee privacy. In the context of the kind of the largely
unconstructive labor relations relationship present here, the tension between the heightened
national security needs imposed on PNM and the understandable resistance to intrusions on
personal privacy become exaggerated and ugly.
During the negotiations for the 2009 agreement, the parties could not agree on changes
related to PNM’s existing cyber security, work place violence, and driving under the influence
policies. Rather than delay the resolution of other contract terms, the parties agreed to continue
negotiations over these policies for a limited period and then submit any unresolved issues for
final and binding interest arbitration. By September 2009, the parties had been unable to
resolve their differences over the cyber security policy so that matter was submitted to Arbitrator
Marshall A. Snider for resolution. After 3 days of hearing, Arbitrator Snider issued a 14-page
decision that analyzed and resolved the parties’ arguments concerning the cyber security policy.
He appended to his decision the 6-page cyber security policy he drafted that incorporated the
conclusions he reached in his decision. (GC Exh. 4)
The cyber security policy formulated by the Arbitrator Snider contained the following
salient features relevant here: (1) the assets covered by the policy would be determined at the
Company’s discretion; and (2) the employees covered by the policy would be determined at the
discretion of the Company based on relevant standards set forth in his decision. He recognized
the possibility that an employee might not qualify for access to cyber secure areas based on the
PRA and that this could result in the employee’s termination absent some other suitable
solution. Related to that possibility, Arbitrator Snider specifically rejected “the Union’s proposal
for a joint committee to set disqualification criteria and in some cases to decide whether to grant
access (to cyber secure zones).” He gave these reasons for rejecting this proposal:
First, the Company is the sole entity responsible for cyber security under the CIP
standards. Second, it is not feasible to develop a comprehensive set of disqualifying
criteria; unless such decisions can be made on a case by case basis, some employees
who should be denied access may not be covered by the criteria and others may be
denied access when it is unnecessary to do so. No set of criteria could anticipate every
situation or how a particular piece of information in an employee’s background should
affect a particular individual or position. In addition, the evidence established that the
joint committee construct is likely to result in delay or deadlock. [Emphasis added]
(GC Exh. 4, pp. 9-10) Ultimately, an employee who fails a PRA could be moved to another,
perhaps lower paying job, or even be terminated. Any resulting adverse action, the arbitrator
ruled, would be subject to the contractual grievance-arbitration provision.
Mick Oldham, a senior labor relations representative for PNM, notified Fitzgerald and
Tafoya by email on February 2, 2010, that the Company would commence implementation of
the cyber security policy during the week of February 8. (Jt. Exh. 58) Over the course of the
next 4 or 5 weeks, Fitzgerald sought certain information in a series of email exchanges with
Oldham about the employees designated by PNM as having access to cyber-secure areas and,
hence, subject to a PRA that provide the basis for this complaint allegation.
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In his initial request to Oldham, Fitzgerald asked to be provided with the names and
classifications of those employees designated as PRA eligible as well as a “statement from the
Company as to why the Company has determined each employee has a reasonable connection
to Cyber Security.” (Jt. Exh. 58, Shannon Fitzgerald email string, p. 4) In response to this
specific request, Oldham responded by furnishing a list of the bargaining unit employees
selected under the policy and provided this further response as to the basis for the selections:
With regard to your request concerning the company’s determination of the employees’
connection to cyber security, these determinations were made in accordance with the
provisions of the arbitration award.
I suggest the union review the attached list first, and then if there are concerns regarding
specific determinations, to provide the company with the basis of such concerns and we
will certainly be willing to discuss that with you.
(Id., p. 3)
In reply, Fitzgerald charged that “[i]t looks like the determination was made by
classification and as broad as possible, and not as per the policy” and that most had only
isolated instances of access to cyber assets or cyber secure areas. He then requested a list of
the cyber secure areas the Company had designated and then stated “I must insist that the
Company show how the determinations were made.” Fitzgerald also questioned the inclusion of
a specific employee named Royer. (Id., p. 3)
Oldham responded by providing a list of the designated areas and by continuing to insist
that the Company had made its determinations in accord with the arbitration award. He also
informed Fitzgerald that the list of covered unit employees was undergoing revision and that the
Union would be provided with the revised list that would include those designated as “critical.”
As to Royer, Oldham told Fitzgerald that he had been included because he was “the only Area
Rep assigned to San Juan and therefore the only employee in that classification determined to
be covered under the policy at this time.” (Id., p. 2)
Fitzgerald replied with the continued charge that the Company had not complied with the
Union’s information request and added charges that it had “arbitrarily” designated classifications
as cover under the policy even though they have only isolated access to cyber secure areas.
He went on to demand information as to when in the past 12 months certain specific employees
had access to covered areas. After disputing that Royer would have more that isolated access
to a cyber secure area, Fitzgerald asserted:
I must insist that you quit playing games and stalling and provide the full request for
information as to what factors have been used as well as an explanation as to how all
these employees on the Company list were deemed by the Company to be covered
employees, and what factors were used for the Company determinations so that I may
individually determine if the Union agrees with the determination or if the Company
arbitrarily and capriciously applied this policy to its members. As the Company has
already issued the releases and employees are required to return them in 72 working
hours you can see how this information would be required immediately so if there is
disagreement the employee is not wrongly subjected to an unsubstantiated and intrusive
background check.
(Id., pp. 1-2)
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Oldham’s reply joined the issue presented for decision here. He told Fitzgerald that the
arbitrator’s decision “gives management the discretion to determine what classifications of
employees are subject to the Cyber Security policy. Your questions are designed to require
management to justify its decision to you and this is not an appropriate use of a request for
information.” Yet, in response, Fitzgerald, under the guise of investigating a grievance,
continued to insist that the Union be furnished with the basis for why the Company selected
each employee as a covered employee and what access they have to cyber secure areas. (Jt.
Exh. 61, pp 1-2) Concededly, the Company never furnished the Union with the reasons it had
for selecting each individual employee it ultimately determined to be covered by the cyber
security policy.23 Instead, it provided a general explanation of the various factors it applied
when considering whether or not an employee was covered. (Jt. Exh. 62, pp. 1-2) These
factors essentially tracked those identified by the arbitrator as relevant.
Later, in a February 26 email, Fitzgerald returned to Royer’s specific situation and asked
Oldham to explain what cyber security access this employee had and how it was more than
isolated. Specifically he asked for a list showing when and where Royer had access to
protected areas in the last 6 months. (Jt. Exh. 62, p. 2) Although Oldham subsequently
responded to this request by identifying the covered locations where Royer might be assigned,
he did not provide information showing his access to the specified areas in the last 6 months as
requested. (Jt. Exh. 62, p. 1)
Argument and conclusions. The Acting General Counsel and the Union contend that
PNM violated Section 8(a)(5) by failing to provide the Union with the specific rationale it used in
determining that an employee was covered by the requirements of the cyber security policy and
for its failure to provide the information requested about Royer’s access to cyber secure areas in
the past 6 months. PNM argues that 1) based on the arbitrator’s decision granting it the
discretion to make coverage decisions, it had no duty to explain its basis for applying the cyber
security policy to any particular employee; 2) the Union actually abandoned its original request
for this information, 3) no written record exists showing factors used in making individual
coverage decisions; and 4) the request was unduly burdensome inasmuch as more than 300
employees were involved.
Contrary to Respondent’s argument, I find Fitzgerald never abandoned his demand that
the Company provided a detailed explanation for designating particular employees as subject to
the cyber security policy or its demand that it justify its determination with respect to Royer. I
find, however, that the Company had no duty to provide this information in the peculiar
circumstance of this case.
In my judgment, the arguments advanced in the briefs submitted by the Acting General
Counsel and the Union fail to give sufficient deference to the careful determinations made by
Arbitrator Snider. Instead, their analysis effectively treats the arbitrator’s decision as though it
did not exist, cites standard cases concerning the duty to furnish information, and argues that a
violation plainly occurred. I profoundly disagree with their approach and refuse to adopt it.
The parties agreed to abide by Arbitrator Snider’s decision as final and binding.
Enforcing Fitzgerald’s demands that the Company provide the Union with a declaration of each
factor it relied on in determining that each employee would be subject to the requirements of the

23 According to Oldham, these determinations were made in a series of management
meetings without any written record of the specific factors used by the decisionmakers in
deciding that the requirements of the cyber security policy applied to particular individuals.
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cyber security policy drafted by the arbitrator would simply eviscerate the arbitrator’s decision
and the parties’ agreement to abide by it. Although the Board’s seminal decisions in Spielberg
and Collyer24 do not apply here, the fundamental policies expressed in those decisions provide
instructive guidance for resolving this unusual issue.
Arbitrator Snider carefully rationalized the basis for his conclusion that the Company
should be vested with the discretion to determine those employees who would be covered by
this critical policy. In addition, he rejected a proposal to establish a “joint committee” to
determine the disqualifying criteria flowing from an unsatisfactory PRA, in part, based on his
conclusion that it would get mired down in endless disputes. There could be no greater support
for the wisdom of this specific conclusion by Arbitrator Snider than my own lengthy, tedious, and
time-consuming decision in this case. Reading his decision as a whole, I find that as to the
narrow subject matter pertaining to the mandatory cyber security policy, the arbitrator
established a scheme that allowed the Company to act unilaterally in making all preliminary
determinations but the Union would be at liberty to grieve any adverse actions that resulted. As
the parties chose to utilize interest arbitration, the scheme established by the arbitrator became
a part of the parties’ collective-bargaining agreement as though they negotiated it themselves.
The requests here occurred in the absence of any adverse action. In my judgment, the
meaning of the word “discretion,” as used by Arbitrator Snider, is something akin to this
standard dictionary definition: “the freedom to act and think as one wishes (it is within his
discretion to leave).”25 As I have concluded that the nature of the discretion vested in the
Company by the arbitrator’s cyber security policy essentially gave PNM the unilateral right to
decide who would be subject to the policy’s requirements, I find that it had no obligation to
provide the type of detailed information Fitzgerald sought at the time that he sought it. In that
respect, I essentially agree with the assertion Oldham made in his February 16 email (Jt. Exh.
61, p. 2) that the Union’s information requests were designed to require the Company to justify
the coverage selections it made. Arbitrator Snider’s decision obviates any need for the
Company to provide such justifications. Accordingly, as I find PNM had no legal duty to honor
the Union’s requests, I recommend dismissal of this allegation.
c. Complaint in Case 28-CA-23046
12. Paragraph 8(a) – (c) alleges that PNM failed and refused to furnish Local 611 with
five categories of requested information pertaining to the investigation of Union Steward Eric
Cox’s conduct at the April 21, 2010 TeleStaff meeting.
Relevant facts. The facts related to the Cox’s conduct at the Telestaff meeting
are fully described above in Section C, pp. 5-9. As set forth there, Carol Shay, PNM’s in-
house labor counsel, supervised an investigation into Cox’s conduct at that meeting based
on complaints of the managers and supervisor responsible for conducting the meeting.
On May 5, before the completion of the Shay’s investigation, Tafoya submitted a
written request for information seeking the following information: 1) the names of everyone
interviewed in the investigation of Union Steward Cox; 2) the list of allegations on which
PNM based its investigation of Cox; 3) the names of the employees who made those

24 Spielberg Mfg. Co., 112 NLRB 1080 (1955); Collyer Insulated Wire, 192 NLRB 837
(1971).
25 Oxford Pocket American Dictionary of Current English, Oxford University Press, 2002, p
222.
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allegations; 4) the interview notes of all employees who were interviewed; and 5) the
investigation report that resulted. (Jt. Exh. 70)
On May 18, the same day that Mathes notified Local 611 that no disciplinary action
would be taken against Cox for his conduct at TeleStaff meeting, PNM informed Local 611
that it would not provide the requested information as it was not relevant to any union
function because no disciplinary action had been taken and because the documents
sought were confidential. (Jt. Exh. 72) Tafoya renewed the Union’s information request
on May 20 and PNM again denied the request on June 4 for the same reasons previously
given plus the added ground that Tafoya’s the renewed request was now inappropriate
because of the Local 611’s May 19 unfair labor practice charge concerning the matter.
(Jt. Exhs. 74 and 75)
Argument and conclusions. The Acting General Counsel argues that each aspect of
the Union’s information request is presumptively relevant to assess whether or not to file a
grievance because the Shay’s investigation may have violated the provision of the collective-
bargaining agreement that prohibits the Company “from discriminating against stewards for the
faithful performance of their duties to over the Company’s treatment of its steward.” (Acting
General Counsel Br., p. 75) The Acting General Counsel argues further that the Cox
investigation Shay conducted is indistinguishable from numerous other disciplineary
investigations the Company routinely conducts. The Union makes additional arguments. It
claims that PNM never made any attorney-client privilege or work product claim related to this
request until the hearing. For that reason, the Union argues that the Company deprived it of the
opportunity to modify its request by perhaps deleting its demands for the production of PNM’s
interview notes or investigation report. (CP Br., p. 61)
The Company argues that it had no duty to furnish the requested information for these
reasons: 1) the information was not relevant as Cox suffered no discipline from the Company's
investigation and nothing in the collective-bargaining agreement governs or restricts the
procedures that PNM uses to investigate employee misconduct; 2) the requested documents
from PNM's investigation were protected work product; 3) PNM had no obligation to furnish the
Union with the confidential interview summaries, interview notes, or the opinions or
recommendations of its investigators generated during an internal investigation that Shay
conducted; and 4) the Union's request amounted to an inappropriate attempt to obtain discovery
in support of its pending NLRB charge.
I reject the Acting General Counsel’s claim that Shay’s work amounted to an ordinary
disciplinary investigation. Rather, the focus of her inquiry sought to adduce facts for the
purpose of determining whether a union steward had engaged in an unprotected disruption of
an ordinary business meeting on April 21. In this context, I find that PNM had a reasonable
basis to anticipate litigation in the event of a decision to discipline Cox’s for his disruptive
conduct. Indeed, it appears that aspects of the TeleStaff program were already pending before
the NLRB even at the time the meeting occurred. Accordingly, I find the materials prepared
during the Company’s investigation under the direction of Shay constituted protected work
product within the meaning of Central Telephone, 343 NLRB 987 (2004) and, for this reason,
the Company had no obligation to provide the Union with the materials prepared by Company
representatives during the investigation Shay supervised.
Moreover, based on the nature of the misconduct engaged in by Cox (with Tafoya’s
eventual full support and endorsement) at the TeleStaff meeting itself together with the fact that
the initial demand for information occurred in the middle stages of Shay’s inquiry, I have
concluded that the potential for harassment or retaliation that might result from the disclosure of
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the identify of any complaining employee or other witness sufficiently outweighs the Union’s
need for those names to a degree that would privilege the Company’s refusal to provide such
information on confidentiality grounds. Northern Indiana Public Service Co., 347 NLRB 210,
211 (2006). This timing renders the Union’s claim that it sought the requested information to
evaluate a possible grievance challenging the Company’s treatment of Cox highly suspect.
Accordingly, I recommend dismissal of this allegation.
2. The unilateral change allegations
Settled law provides that an employer may not change the terms and conditions of
employment of represented employees without providing their representative with prior notice
and an opportunity to bargain over such changes. See NLRB v. Katz, 369 U.S. 736, 747
(1962). Put another way, Katz and its progeny bars an employer from unilaterally making
material and substantial changes to the wages, hours, and other working conditions of union
represented employees. This next group of allegations assert that the Company violated
Section 8(a)(5) by ignoring this rudimentary labor law principle.26
a. Consolidated complaint in Cases 28-CA-22655 and 28-CA-22759
1. Complaint paragraphs 7(a), (h) and (g) allege that PNM violated Section 8(a)(5) by
unilaterally implementing a new policy around June 17, 2009, “requiring employees to sign
forms associated with the tailboard meetings.”
Relevant Facts. Prior to the start of any electrical project, the project leader, whether a
supervisor, working foreman or a journeyman electrician, must conduct a “tailboard” or “toolbox”
conference with the crew members assigned. This policy is mandated by OSHA and has been
in place at PNM for a number of years. It is embedded in the jointly negotiated Employee
Safety Manual at section I, subsection 3. (GC Exh. 7) Subsection 3.1 provides that the
tailboard conference shall include a discussion of the following: (a) the overall job and the end
results expected; (b) the hazards that may be encountered and how to eliminate them; (c) work
assignments; (d) the identification of any other crews that may be involved and how they will be
involved; (e) the tools and safety devices that will be needed; and (f) assurances that each
individual involved understands completely his assignment.
Over the years, OSHA has conducted a series of so-called partnership meetings with
attended by representatives of industry associations, businesses engaged in the transmission
and distribution of electricity, and the IBEW, Local 611’s parent organization. No evidence
shows that either PNM or Local 611 directly participated in these partnership conferences. One
byproduct of the partnership meetings included the development and publication by OSHA of a
“Best Practices” series, one of which included instructions on documenting the required
tailboard meetings. (R. Exh. 4) The OSHA Best Practice recommendation included a list of
matters the tailboard meeting should cover and provided for a requirement that the “job briefing
form shall have a provision for each employee to sign to verify they have participated in the job
briefing.” (R. Exh. 5).
In early 2009, PNM’s safety department developed a form for use at its tailboard
meetings and a series of slides designed to provide instruction in completing the form. (Jt.
Exhs. 23 and 101) The form is largely a check list of matters that might be covered at the

26 Not addressed in this section are the allegations made at complaint paragraphs 7(b), (h)
and (g) as they have been addressed and decided at p. 28, above.
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tailboard meeting. However, it also contains spaces at the bottom of the form for participating
employees to sign and enter their employee number as “attendees.” Nothing in the attendee
signature section or elsewhere appears to seek or constitute some type of binding verification of
the safety manual requirement of an assurance by each of the employees present that they
completely understand their assignment. There is no evidence that employees have been told
of any potential discipline for failure to complete the form as a project leader, or for failing to sign
the form as an attendee.
San Juan safety consultant Michael Walls said that Larry Goodman, the other senior
safety consultant at San Juan, developed the form. The process, Walls said, involved
consultations with “plant personnel to gain input and to consolidate multiple forms that were in
use at the site into a single-use form.” (Tr. 1020) When Goodman completed the form, he
submitted it to the San Juan General Safety Committee (GSC) at their April 16, 2009, meeting.
Following a discussion of the form and suggestions for changes, Walls, who was present at the
meeting, said the committee chairman told Goodman “that he felt the form looked good, and he
went on to say that it wasn't the GSC's position to approve or disapprove the form, since it's not
contained in the employee safety manual.” (Tr. 1021) In the days following the meeting, Walls
said that Goodman incorporated changes in the form suggested during the discussion at the
GSC meeting and put it out for use.
Shortly after Goodman’s tailboard form was placed in use, a grievance was filed claiming
that the Company unilaterally implemented the use of the form “as well as the requirement that
it be signed.” It also charged that “these Safety Rules/Procedures have not been approved by
the GSC.” After PNM denied the grievance at the first step, Fitzgerald appealed the matter to
the next step (Jt. Exhs. 21 & 99) seeking to have the use of the form rescinded and to stop PNM
from requiring that employees sign it. Later, Fitzgerald submitted an information request
concerning the form. Ginger Lynch responded on August 7, 2009 providing him with a copy of
the form and the PowerPoint slides developed for its use. (Jt. Exh. 23) Thereafter, on August
17 the Union filed another grievance concerning the use of the form and the requirement that it
be signed by the employees. (Jt. Exh. 105) In a letter dated January 10, 2010, PNM’s Senior
Labor Relations Representative Mick Oldham insisted that the Union withdraw the grievance (Jt.
Exh. 102) in view of its pending NLRB charge27 covering the subject but Fitzgerald refused to
do so. (Jt. Exh. 103)
Argument and conclusions. Citing the Board decision in Brimar Corp., 334 NLRB
1035 (2001), the Acting General Counsel argues that the PNM’s unilateral implementation of the
2009 tailboard form together with the requirement that it be signed by employees violated
Section 8(a)(5). The Charging Party advances the following shortcomings with the tailboard
form advanced by Fitzgerald:
According to Fitzgerald, the Union’s problems with the form are: (1) it was unilaterally
implemented since it was not approved by the GSC; (2) the instructions on filling it out
bring more into the job briefing than in the Safety Manual; (3) the employees are
required to sign the form; and (4) by having the person, even a journeyman, completing
the form give the job briefing, and thus have a journeyman be in charge of another
journeyman (TR 970-972).

27 The unfair labor practice charge covering this subject was filed by the Union’s counsel on
October 28, 2009, in Case 28-CA-22759. It alleged that the Company unilaterally changed its
“safety rules, regulations, policies and procedures.”
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(C. P. Br., pp. 39-40) Respondent argues that the issue should be deferred to arbitration under
Collyer, supra. In addition, Respondent argues that the allegation should be dismissed as the
change involved is not material or substantial.
In my judgment, the most reasonable inference one can make by comparing the
allegation contained in the Union’s original charge with the allegation the Acting General
Counsel eventually made in his complaint is that at some time during the precomplaint
consideration of this matter, a decision was made to attack only the requirement that employees
sign the tailboard form. This conclusion is consistent with both the wording of the complaint
allegation and the Acting General Counsel’s primary reliance on the Brimar Corp. case in his
brief. Contrary to the argument advanced by the Charging Party in its brief, I find that the
narrow issue presented by this complaint allegation is whether the Company violated Section
8(a)(5) by implementing a requirement that employees sign the tailboard form it placed in use in
April or May 2009.28 And due to the vast degree of difference between the narrow complaint
allegation compared to the Union’s grievances, I find a Collyer deferral unnecessary and
inappropriate.
This allegation lacks merit as the so-called change involved is neither material nor
significant. The employee signature required here amounts to little more than an attendance
sign-in sheet for a routine work meeting. The requirement in Brimar was far different. There the
Board found that the employee’s signature on the form presented to them constituted an
acknowledgment of what was expected of them in terms of production and that by signing the
form the employee could be held accountable. 334 NLRB 1035. Here, PNM employees have
always been required to participate in tailboard meetings; they are not optional as they are
largely conducted for the benefit and safety of employees. Even assuming that the tailboard
form contained some type of acknowledgment regarding the substance of the meeting, which it
does not, the safety manual would appear to provide the latitude for even that because it
requires the worker’s assurance that he/she understands their assignment. As I have
concluded that the employee signature requirement here is neither significant nor material, I
recommend dismissal of this allegation.
2. Complaint paragraphs 7(c), (h), and (g) allege, in effect, that since about August
2009, Respondent unilaterally implemented a new policy limiting access to its ESC premises in
Albuquerque by Local 611 agents.
Relevant facts. The parties make no claim that any specific provision in the their
collective-bargaining agreement addresses access to the Company’s private property by Local
611 representatives. However, there is ample evidence of a 30-year accommodation between
the parties that permitted Local 611 representatives access to the ESC for the purpose of
meeting with employees during nonwork times, attending grievance and bargaining sessions,

28 To the degree that the Acting General Counsel’s brief encompasses some of the
Charging Party’s much broader theories, then serious evidentiary issues arise. For example,
Fitzgerald’s claim that the tailboard form had to be approved by the safety committee is clearly
inconsistent with Michael Walls’ reliable report of a contrary claim by the safety committee
chairman. Further, the Charging Party’s position implicates numerous questions about the past
practice of journeymen conducting at least some of the tailboard meetings. The record contains
little, if any, related evidence. One can reasonably assume that the Acting General Counsel’s
office considered such questions when framing the scope of this complaint allegation and
planning its hearing presentation particularly where, as here, the Acting General Counsel
utilized 611(c) witnesses for the bulk of his case.
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and speaking with supervisors and managers when needed. Through this long accommodation
period virtually no physical barriers to the ESC parking lots and buildings existed. In fact, the
ESC was so open that angry customers occasionally came to confront workers and thefts of
materials stored there regularly occurred.
In 2008, the Company undertook to establish more limits on access to the ESC facility.
Line Department Manager Jeff Nawman oversaw this process. In the initial phase, the
Company made capital improvements that included the installation of a fence, more access
gates, added security cameras, and the like. During this period, Nawman requested that Ed
Tafoya, the Local 611 agent primarily responsible for contract administration at the ESC and,
hence, the union representative most frequently at that facility, to park in the visitors lot rather
than the employee lot as had been his practice and Tafoya agreed.
In the next phase, the Company installed electronic locks on various gates and doors
that required a coded card for access and compiled a written access policy. In December 2008,
Nawman provided Tafoya with a draft of the new access policy and asked for his comments.
Tafoya complained about some of the new parking policies and obtained Nawman’s assurance
that the provision for the tire-booting of employee autos would not be enforced. Tafoya also
inquired about his own access under the new policy. In response, Nawman arranged for Tafoya
to be provided with “Contractor’s Level 2 badge” that in effect gave him the means to access the
ESC between 6 a.m. and 6 p.m. The draft of the access policy (Jt. Exh. 24) submitted to Tafoya
provided that contractor badges would be effective for 6-month periods but Nawman never
discussed this limitation with Tafoya when arranging for the issuance of his badge.
In mid-January 2009, the Company placed its new access policy in effect. No evidence
shows any complaints by Local 611 about the Nawman/Tafoya arrangement between January
and August 2009. During that period, Tafoya’s access largely approximated the access that he
had always been given prior to the installation of the new equipment and policies. However,
when his badge ceased to work in early August, Tafoya spoke to Crista Belt asking for her to
remedy the problem. Tafoya asserted to Belt that his badge had been issued by Nawman “to
allow the Company to install its new security measures without objection.” (GC Exh. 17)
A series of email exchanges took place within the Company’s upper echelon (GC Exh.
16) concerning the renewal of Tafoya’s badge that ultimately resulted in the approval of the
following message Belt sent to Tafoya on August 14:29
Since the transition to the new access system is now complete, and given that you are
not a contractor, the Company has determined that it is more appropriate for you to have
“visitor” access instead of the “contractor” access. You will have the same access as all
other non-contractor vendors and retirees who are not currently employed at PNM. We
are not aware of any limitations this would create in the performance of your Union
Business Agent duties to represent the bargaining unit employees. Please contact
myself or Ray Mathes if you experience any difficulties with this.
(Jt. Exh. 25)

29 These email exchanges produced pursuant to the Acting General Counsel’s subpoena
surprisingly contain no reference whatever of Tafoya’s conduct that disrupted the April 2009
TeleStaff meeting. Likewise, Respondent’s brief advances no argument that the TeleStaff
incident motivated Respondent’s action upon Tafoya’s request that the Company renew his
contractor’s badge.
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The January 2009 access policy provides as follows with respect to visitors:
Visitors: All visitors will be required to sign in with Security or at the front desk of the
Administration Building. Visitor’s badges or stickers will be issued to visitors by Security
or by an ESC employee. Employees will be required to escort visitors at all times within
the ESC compound. Visitors can be pre-announced to Security by calling 241-3642 and
Security will provide notification when the visitor has arrived. Employees will be required
to pick up and return visitors at either the main service gate (E-4) or the front lobby of the
Administration Building. Visitor badges should be returned to Security at the end of the
visit.
(Jt. Exh. 24)
Since August 14, Company officials have refused repeated requests that the original
access arrangement Nawman made with Tafoya be restored.
Argument and Conclusions. The Acting General Counsel and the Charging Party
argue that Belt’s August 14 message and the subsequent refusal to restore the terms of
Tafoya’s access amounts to an unlawful unilateral change in the past practice regarding access
to the ESC by union agents. This change, the Acting General Counsel argues, is material and
significant inasmuch as it substantially restricted the access Tafoya had with the unit employees
when compared to the access he had historically and under the arrangement established with
Nawman. Respondent contends that the evidence fails to support a finding of a past practice
regarding access to its private property and even if it does, no material or significant change
occurred in August.
I did not agree with Respondent’s claim. An employer is not at liberty to unilaterally alter
an established past practice allowing access to its premises by an employee representative for
the purpose of performing representative functions even where that access is not specifically
incorporated in the collective-bargaining agreement. Granite City Steel Co., 167 NLRB 310,
312-313 (1967). Here, the evidence shows a longstanding practice of granting union agents
access to PNM’s private property for the purpose of providing service to the employees the
Union represents. Nawman, a PNM manager with a long tenure at the ESC, admitted as much.
Moreover, his conduct prior to the implementation of the access policy in January plainly
recognized that fact and the arrangement he made with Tafoya for issuance of a Contractor’s
Level 2 badge amounted to a binding agreement between the Company and the Union
concerning the method for future access under the new policy.
The visitor-pass arrangement Company officials imposed in August restricts the hours of
access to a greater degree than the Contractor’s Level 2 badge and, unlike the contractor’s
pass, it requires a continuous escort. The hours of access under a visitor’s pass virtually
eliminates the union agent’s access to employees before and after their work hours. The escort
aspect of a visitor’s pass, in particular, would clearly inhibit the kind of candid exchanges
possible between the represented employees and their union agents. Accordingly, the change
made in August is material and significant. Ernst Home Centers, 308 NLRB 848, 849 (1992).
For these reasons, I find that the Company’s unilateral alteration of Tafoya’s ESC access
arrangement in August 2009 when it refused to renew his Contractor’s Level 2 badge without
the Union’s consent or an impasse in negotiations concerning his access to that facility violated
Section 8(a)(5) as alleged.
3. Complaint paragraphs 7(d), (h), and (g) alleges that in late October 2009, PNM
violated Section 8(a)(5) when it issued cell phones to unit employees and promulgated new
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rules regarding their maintenance and use without providing Local 611 prior notice and an
opportunity to bargain about this subject.
Relevant Facts. This issue pertains to the details of the physical means for contacting
the on-call journeymen in the line department of PNM’s Santa Fe division and to communicate
with on-duty linemen in certain remote areas. For about 10 years, pagers or cell phones have
been used to supplement the spotty radio communications that can occur in the mountainous
portions of the Santa Fe division. During that time, PNM maintained a lengthy written policy, the
PCD policy, covering the use of Company cell phones and personal cell phones used for
conducting PNM business. The latest revision of the PCD that issued in February 2008
continued a prior arrangement whereby supervisors could authorize a reimbursement of up to
$40 per month for on-call linemen who opted to use their personal cell phones instead of a
Company phone.
In January 2009, the Company altered this Santa Fe arrangement by issuing cell phones
from a Company equipment pool to all on-call employees thereby obviating the need to
reimburse employee for the use of their personal cell phone. This change resulted in the filing
of several grievances. One (R Exh. 2), filed by lineman Dennis Tapia, complained about the
failure to provide a phone from the Company’s cell phone pool due to the lag time between the
end of an employee’s on-call status and the return of the assigned phone to the pool so it could
be issued to the next on-call lineman. Another (R Exh. 3), filed by Union Steward Cale
Chappelle,30 charged that the Company unilaterally discontinued reimbursements for the use of
personal cell phones. Labor Relations Representative Crista Belt credibly testified that
Chappelle, who acknowledged he had numerous exchanges about this subject with the then
Santa Fe Division Manager Armand Alessandrone throughout this period (Tr. 886), told her in
late September that the Union wanted the PNM to provide cell phones or restore the
reimbursements to employees in order to resolve the pending grievances.31 (Tr. 454-455)
By October 2009, the issue addressed in Tapia’s grievance became so problematic that
PNM began issuing cell phones to all Santa Fe linemen.32 Alessandrone announced this
arrangement in an October 27 letter to Chappelle with a copy to Tafoya. It stated:
Earlier this year, we went to a “pool” approach for cell phones in the Santa Fe Line
department. However, since then we have reviewed this approach and determined the
cost savings and efficiency is not significant at this time. Therefore, please be advised
of our intent to issue cell phones for Company business only, to each individual Santa
Fe Journeyman within the next 30 days. Employees will be responsible to properly
maintain, charge, and have the phones in their possession during all assigned work
hours. There will not be any reimbursement of personal cell phones for Company
business.

30 By the time of these events, Chappelle had been a steward in the Santa Fe Line
Department for 10 years.
31 In addition, Belt claims that Chappelle also requested authorized overtime work for a
particular employee. The relationship of this particular demand to the cell phone grievances
was never clearly explained.
32 Aside from the lag time problem, Chappelle said that the phones came without auxiliary
equipment such as chargers or spare batteries so that the phones would occasionally go dead
even when they arrived in the correct hands.
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(Jt. Exh. 42) He personally presented this letter to Chappelle in a meeting also attended by
Tafoya and Sonia Otero, a Company human resources representative. By the time he received
the letter, Chappelle said “there was not a whole lot that really could be said . . . (because this)
was pretty much the culmination of the whole year of chaos.” (Tr. 888)
Later, however, Chappelle complained to Allesandrone about the lack of an option in his
October letter that permitted linemen use personal phones with a Company reimbursement, as
well as the requirements that employees were responsible for keeping the phones charged and
with them at all times. Chappelle also complained to Allesandrone that his letter made no
provision for the using the Company’s phone for minimal personal use in accord with the
Company’s existing policy. (Tr. 888-889)
On October 28, 2009, Local 611’s counsel filed the NLRB charge in Case No. 28-CA-
22759 underlying the cell phone allegation made in this complaint. The allegation in that charge
on the subject of cell phones claimed that the Company “made unilateral changes in . . . the use
of personal cell phones as well as mandating the use of Company-owned cell phones in the
Santa Fe Line Department.”
Argument and Conclusions. The Acting General Counsel argues that Manger
Allensandrone failed to give the Union any opportunity to bargain when he promulgated the
various changes that are set forth in this October 27 letter to Chappelle, namely, (1) requiring
linemen to carry cell phones at all times while working; and (2) subjecting employees to
discipline under existing Company policies for not maintaining, charging and carrying their
company cell phones. The Charging Party argues Allensandrone’s letter unilaterally “denied
any reimbursement (for the option of using personal cell phones) as well as any use of the
company phones for personal business.”
Respondent argues that any claim concerning the discontinuance of the reimbursement
policy for use of personal cell phone is barred by the 10(b) statute of limitations because that
change occurred in January 2009 and the cell phone charge was not filed until the end of
October. Moreover, the Company argues that Allensandrone’s October letter did not
“implement any new policy or rule at all. Regardless, Respondent argues that any claimed
“unilateral change”, such as the requirement that a Company-issued cell phone be charged and
useable or that it be carried at all times, is not material and significant.
I find this allegation lacks merit. A conclusion that the Company did anything
“unilaterally” in connection with this subject would be a perverse misuse of the word by anyone
who, like I, observed and listened to Chappelle describe what occurred here. His entire manner
and tone left me with the unmistakable impression that he had endless discussions with
Allensandrone regarding a solution to this routine work place problem. Given the time span
involved, and the lack of evidence about any significant involvement by higher level Local 611
officials, leads me to conclude that Chappelle served as the Union’s point man on this subject.
For this reason, I have relied on primarily on his words and conduct in this situation.
I reject the Union’s contention that PNM violated the Act by discontinuing the policy of
reimbursing employees the use of their personal cell phones because that claim is timebarred.
Chappelle’s second step grievance dated February 2 confirms that this action occurred no later
than that date which is just short of 9 months before the filing of the first charge related to the
cell phone issue. In addition, this claim by the Union’s appears to be inconsistent with any
theory advanced by the Acting General Counsel about cell phones.
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In addition, I have concluded that the Acting General Counsel’s arguments fail account
for the historical context of Allensandrone’s October letter. The Acting General Counsel’s claim
that Allensandrone unilaterally changed an existing policy by requiring linemen to carry cell
phones either incorrectly assumes that had not been the prior practice or that he, in effect
changed the rules in the employee safety manual. I find his October letter is not susceptible of
either interpretation.
Chappelle’s testimony makes clear that the cell phone dispute related not only to
management’s ability to contact on-call employees as the Acting General Counsel assumes, but
also to its ability to reach on-duty employees throughout the geographical area served by the
Santa Fe Division. The added claim by the Acting General Counsel Allensandrone established
new rules of some sort requiring employees to keep their cell phones charged and otherwise
maintained, whether they used their own or the Company’s, is factually undermined by
Chappelle’s complaints the frequency with which the pool phones were unaccompanied by
chargers or spare batteries. And the claim that Allensandrone’s October letter changed existing
safety rules lacks merit as nothing in his letter is reasonably susceptible to an interpretation that
employees had to have phones available on their person in situations previously deemed
unsafe under ordinary safety procedures. For these reasons, I have concluded that all of these
assertions are littlem more than the fruit of Local 611’s inventive imagination. I recommend
dismissal of this allegation.
4. Complaint paragraphs 7(e), (f), (h), and (g). Complaint paragraph 7(e) alleges that
since about March 26, 2009, PNM “has failed and refused to consider and recognize employees
who hold the job title of Operations Representative and perform electrical meter reader and
collector work as being employed within the Electrical Unit.” The closely related complaint
paragraph 7(f) alleges that since July 20, 2009, PNM has refused to process a grievance filed
by the Union seeking to require that PNM properly classify James Martinez and similarly-
situated employees and and place them in the Electrical Unit.
Relevant Facts. Prior to 2008, the Union did not represent PNM’s meter readers or
collectors, the MRC employees, or its employees who worked on the gas side of its operations.
In early 2008, the Union filed two representation petitions with the NLRB. One petition sought
an election in a unit MRC employees and the other sought an election in a unit of employees
working in the gas operations. The unit sought by the Union in the gas operations included
employees the Company classified as “operations representatives.” The Union did not seek to
represent this classification, or its generic cousin, in the MRC unit. The subsequent elections
were conducted by the Regional Director pursuant to the parties’ stipulated election
agreements. The Union ultimately won both elections by margins wide enough to make it
unnecessary to consider any of the challenged ballots. In January 2009, PNM divested itself of
its gas operations.
Following the MRC election, the Regional Director certified Local 611 on May 8, 2008,
as the exclusive representative of the employees in the following stipulated unit:
All meter readers, who regularly read only electric meters or both electric and gas
meters, and all collectors employed by the Employer in the State of New Mexico;
excluding all meter readers who regularly read only gas meters, all employees currently
represented in any existing bargaining unit, all administrative, production, maintenance,
construction, and managerial employees, office employees who do not regularly work in
the field, office clerical employees, guards, and supervisors as defined in the Act.
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(Jt. Exh. 29; see also Jt. Exh. 111, the stipulated election agreement). There is little if any
evidence as to what occurred between the time of this certification and the conclusion of the
negotiations for a new collective-bargaining agreement that became effective on May 1, 2009.
However, that unit set forth in that agreement merits the inference that that the parties
effectively merged the newly certified MRC unit into the historical unit represented by Local 611.
(GC Exh. 5., art. 3B, p. 3).
James Martinez, a self-described meter reader who has worked for PNM at its Las
Vegas, New Mexico office for 10 years, is classified as an operations representative. The Las
Vegas office operates under the direction of PNM’s divisional office in Santa Fe, some 70
driving miles to the west. The six other employees work at that office include two cashiers,
three line department workers, and a designer who works at that location 2 days a week. There
are no other workers in the Las Vegas area engaged in meter reader work.
Martinez’s work duties consist of performing the scheduled electrical meter reading
around Las Vegas, delivering 2-day service cancellation notices, hand-delivering PNM bills to
the City of Las Vegas and the area schools pursuant to an special arrangement with those
public entities, and maintaining the Company truck he uses for his work. (Tr. 352). Although
PNM has never had any gas operations in the Las Vegas area, and Martinez has never worked
for PNM in any of its gas operations elsewhere, his name appeared on the Excelsior list for the
2008 election in the gas unit. PNM challenged the ballot cast by Martinez on the ground that he
was not employed in the gas operation. (GC Exh. 21) In addition, the Regional Director sent a
ballot to Martinez in the MRC election but he did not return that ballot. (GC Exh. 20).
The job descriptions for Operations Representative I and II (GC Exhs. 10 and 11) lists
meter reading as one of several, wide-ranging functions an incumbent is expected to perform.
The meter reader and senior meter reader job descriptions (Jt. Exh. 52) focus more narrowly on
a variety of tasks connected with the meter reading function than is found in the description for
the operations representative.
On May 20, 2009, Union Agents Tafoya and Fitzgerald met with Frank Storey, PNM’s
manager of meter readers and collectors, and Belt to discuss the Martinez situation. They
requested that he be reclassified in the unit as a senior meter reader. On May 22, the Union
filed a grievance complaining that the Company failed to do so. Thereafter, the Company
offered to settle the Martinez matter by classifying him as a meter reader but it refuses to
classify him as a senior meter reader on the ground that he does not perform significant senior
meter duties.33 Hence, this extraordinarily ordinary matter remains stalemated.
However, the Company also refuses to recognize the Martinez grievance. In a July 20
email to Tafoya, Belt advised that the “Martinez matter does not meet the definition of a
grievance under Article 10 of the CBA.” Article 10 defines a grievance as “limited to a dispute
between the parties hereto with respect to the interpretation or application of the provisions of
this Agreement or the application of a specific policy to a specific employee.” (GC Exh. 5, p. 10,
emphasis added).

33 The Company claims that Martinez does not perform important senior meter reader duties
such as serving as coordinator’s back up or providing functional leadership to other meter
readers. Martinez earned $15.21 per hour at the time of the hearing. The contractual hourly
rate for meter readers with over 12 months of experience was $15.50. The senior meter reader
hourly rates ranged from $16.25 to $18. GC Exh. 5, p. 82.
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Argument and conclusions. As to complaint paragraph 7(e), the Acting General
Counsel’s brief argues that I should conclude on the basis of the Board’s analytical model
articulated in Caesar’s Tahoe, 337 NLRB 1096 (2002), and its progeny, that Martinez belongs in
the MRC unit, and that Respondent violated Section 8(a)(5) by its refusal to include Martinez in
the MRC unit. The brief cites Public Service Company of New Mexico, 337 NLRB 193 (2001)
(the prior PNM case) to support this theory of a violation. Local 611 also argues that PNM has
effectively changed the certified unit by its refusal to include Martinez in the unit on the ground
that he is an operations representative and cites Grosvenor Resort, 336 NLRB 613 (2001) as
precedent for their conclusion. Respondent, citing Verizon, 350 NLRB 542 (2007) argues that
no violation should be found as to this allegation because it has a “sound arguable basis” for its
position regarding the application of the contract in the Martinez matter.
I find merit in Respondent’s argument. In my judgment, it would be inappropriate at this
late date and in the context of a refusal to bargain unfair labor practice case to determine on the
basis of a Caesar’s Tahoe analysis that Martinez has always been in the MRC unit. In my
judgment, finding PNM’s current refusal to treat him as a part of the MRC unit as tantamount to
a unilateral change in the unit scope would not be appropriate. Grosvenor Resort and the prior
PNM case on which the Acting General Counsel relies are factually distinguishable.
The evidence in this record merits the inference and conclusion that Martinez and a few
others were originally excluded from the MRC unit at the time of the NLRB election largely by
mistake. Grosvenor Resort, the prior PNM case and others like them, involve situations where
an employer took affirmative, unilateral action to remove categories of historically represented
employees from a bargaining unit. Those cases implicate the principle that a party may not
press a unit scope issue to the point of impasse because it is a permissive, rather than a
mandatory, subject of bargaining,
Here, parties have resolved this problem as to all affected employees other than
Martinez. There is little indication that they have any serious disagreement about his eventual
inclusion in the represented unit. Instead, they simply cannot come to an agreement about a
proper meter reader job classification for Martinez. Local 611 demands that he be classified as
a collector or a senior meter reader; PNM refuses to give in on its argument that Martinez’s work
duties qualify him for no more than a meter reader 12+ classification.
I find no merit to the Acting General Counsel’s argument regarding complaint allegation
7(e) that Respondent violated Section 8(a)(5) by its failure to include operations representatives
in the MRC unit at Local 611’s request if an employee so classified engaged in any meter
reading.34 As Respondent correctly notes, the job descriptions in evidence establish that one of
the several duties of the operations representatives historically included at least some meter
reading work. As that situation existed at the time of the election, any effort to now sweep the
operations representatives into the merged unit because of the meter reading responsibilities of
this group, whatever and however much they are, would appear to raise a question concerning
representation. For these reasons, I recommend dismissal of complaint paragraph 7(e).
As for complaint paragraph 7(f), counsel for the Acting General Counsel argues that
PNM’s refusal to process the grievance related to Martinez’s situation violates Section 8(a)(5).
Local 611 argues that PNM’s conduct in connection with Martinez and similarly situated

34 The unit clarification process described in Sec. 101.17 of the Board’s Statement of
Procedures ordinarily would serve as a mechanism to resolve this type of dispute but that
process would not resolve the Martinez reclassification dispute at the core of this matter.
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employees amounts to a “bad-faith refusal to bargain and an insistence that PNM can determine
the scope of the certified and agreed-upon unit simply by what job title it gives them.”
Respondent argues that the Union could not properly file a grievance related to Martinez
because he does not belong to the bargaining unit and is not represented by the Union. In
effect, Respondent stands by Belt’s July 20 email (Jt. Exh. 32) for its defense to this allegation.
PNM’s refusal to process the Martinez grievance on the ground that he does not have
access to the grievance procedure begs the question. Local 611 has access to the grievance
procedure because it is one of the “parties” to the agreement seeking the resolution of a dispute
“with respect to the interpretation or application of the provisions” as provided in the contractual
grievance definition. In the case of Martinez, the Union’s concern has at least a degree of
legitimacy as Martinez spends nearly all of his time engaged in meter reading or closely related
work. For this reason alone, the Union would arguably have a substantial interest, entirely apart
from Martinez, in resolving the situation at Las Vegas due to its exclusive representative status
as to the MRC unit and the legal duties that status entails.
Usually the courts refuse to find a grievance is not arbitrable unless it can be “said with
positive assurance that the arbitration clause is not susceptible of an interpretation that covers
the asserted dispute.” Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583
(1960). This same principle would apply to a situation involving a party that refuses to process
a grievance from the outset. For this reason, I find Respondent’s defense is not sufficient to
foreclose an 8(a)(5) finding for its refusal to participate in the grievance procedure in order to
resolve the May 22 grievance the Union filed concerning Martinez.
But that does not appear to be the end of the matter. Counsel for the Acting General
Counsel relies on Contract Carriers Corp., 339 NLRB 851, 852 (2003) in support of the
contention that Respondent violated Section 8(a)(5) by refusing to process the Martinez
grievance. I find that case factually distinguishable from the situation here. The facts in
Contract Carriers show that an employer group refused to participate in numerous bilateral
meetings necessary under the contractual grievance procedure to process and resolve
grievances. Here, Respondent has refused to process only a single grievance, i.e., that
involving the Martinez situation.
The Board has held that an employer’s refusal to arbitrate a single grievance does not
always rise to the level of an unfair labor practice. Velan Valve, 316 NLRB 1273 (1995). The
Board summarized the governing principles in such situations as follows:
It is well settled that not every employer refusal to arbitrate violates Section 8(a)(5). Mid-
American Milling Co., 282 NLRB 926 (1987). Where there is a refusal to arbitrate all
grievances, or where the refusal to arbitrate a particular class of grievances amounts to
a wholesale repudiation of the contract, a violation will be found. See Indiana &
Michigan Electric Co., 284 NLRB 53 (1987). Conversely, if the refusal to arbitrate is
limited to a single grievance or specifically defined, ‘‘narrow class’’ of grievances,
Section 8(a)(5) is not violated. GAF Corp., 265 NLRB 1361, 1365 (1982); Mid-American
Milling Co., supra. The relevant inquiry in determining whether an employer’s refusal to
arbitrate violates the Act is whether the employer, by its refusal, has thereby unilaterally
modified terms and conditions of employment during the contract term. Southwestern
Electric, 274 NLRB 922, 926 (1985).
316 NLRB 1274. Footnote omitted; emphasis added. Subsequently, the Board cast the Velan
Valve rule in this slightly different language: “An employer’s refusal to arbitrate grievances,
pursuant to a collective-bargaining agreement, violates Section 8(a)(5) of the Act if the
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employer’s conduct amounts to a unilateral modification or wholesale repudiation of the
collective-bargaining agreement.” ACS, LLC, 345 NLRB 1080, 1081 (2005).
I find the Velan Valve rule controls complaint paragraph 7(f). Although I have found
other violations in this consolidated proceeding, the evidence shows that the Martinez matter is
sufficiently discrete and isolated as to preclude a finding that PNM’s failure to process this single
grievance amounts to a “unilateral modification or wholesale repudiation of the collective-
bargaining agreement.” Therefore, I recommend dismissal of complaint paragraph 7(f).
Conclusions of Law
1. Respondent Public Service Company of New Mexico is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 611 is a labor organization within the meaning of Section 2(5) of the Act that
serves as the exclusive collective bargaining representative of the following appropriate unit of
employees within the meaning of Section 9(a) of the Act:
All employees of the Respondent’s Electric, Water, Transmission, Distribution,
Production, Meter Reader, and Collector departments in the divisions and jobs
referenced in Respondent’s collective-bargaining agreement with the Union effective by
its terms from May 1, 2009, through April 30, 2012.
3. By failing to provide Local 611 with the following relevant information it requested: (a)
about accidents occurring at the San Juan Station involving an asbestos exposure; (b) that
sought in items 4, 5, and 7 of the request for information related to grievance SJ-08-15; (c) the
unredacted copies of the discharge recommendations prepared by Ginger Lynch in connection
with the termination of employees Guy Claw and Everand Silas; and (d) a list of the “other
duties” performed by individuals classified as coordinators, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the Act.
4. By unilaterally changing the requirement for Local 611 representatives to access its
ESC facility in Albuquerque, New Mexico, in August 2009, Respondent violated Section 8(a)(1)
and (5) of the Act.
5. Respondent did not engage in any other of the unfair labor practices alleged this
consolidated proceeding.
6. The unfair labor practices described above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent engaged in certain unfair labor practices, my
recommended order requires them to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Affirmatively Respondent must forthwith furnish the information necessary and relevant
to the performance of Local 611’s duties as the exclusive collective bargaining representative of
Respondent’s employees that it unlawfully withheld. Furthermore, Respondent must restore the
ability of Local 611 agents to access its ESC facility in Albuquerque, New Mexico, as it existed
from January until August 2009. In the event Respondent has altered its access procedures in
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the meantime, it will be required to provide Local 611 representatives with a form of access
substantially equivalent that which existed from January until August 2009 until it negotiates
alternate access procedures applicable to representatives of Local 611 or reaches a lawful
impasse attempting to do so.
Respondent will also be required to post the notice attached as Appendix A in order to
inform employees of the outcome of this matter.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended35
ORDER
The Respondent, Public Service Company of New Mexico, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
a. Refusing to bargain with Local 611 as the exclusive representative of the employees
in the following appropriate unit:
All employees of the Respondent’s Electric, Water, Transmission, Distribution,
Production, Meter Reader, and Collector departments in the divisions and jobs
referenced in Respondent’s collective-bargaining agreement with the Union effective by
its terms from May 1, 2009, through April 30, 2012.
b. Refusing to provide Local 611 with the information it requests that is necessary and
relevant to the performance of its duties as the exclusive collective bargaining representative of
the employees in the above unit.
c. Changing past practices that affect the terms and conditions of employment of its
employees in the above unit without the prior consent of Local 611 or a lawful impasse in
negotiations over any proposed change.
d. 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 effectuate the policies of the Act.
a. Within 14 days of this Order, provide Local 611 with the following information
necessary and relevant to the performance of its representative functions: (1) the relevant
information it requested concerning accident reports that involve an asbestos exposure; (2) the
relevant information pertaining grievance SJ-08-15 that it declined to provide on August 14,
2009; and (3) unredacted copies of the discharge recommendations prepared by Ginger Lynch
in connection with the termination of employees Guy Claw and Everand Silas; and (4) the

35 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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relevant information it requested about the other duties performed by persons classified as
coordinators.
b. Within 14 days of this Order, restore the access Local 611 agents had to its Electric
Service Center facility in Albuquerque, New Mexico, to that which existed from January until
August 2009, or in the event Respondent has generally altered its access procedures, provide
Local 611 agents with a form of access substantially equivalent that which existed between
January and August 2009.
c. Within 14 days after service by the Region, post at its facilities located in the State of
New Mexico, copies of the attached notice marked “Appendix.”36 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed a facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees of Respondent at any time since March 31, 2009.
d. Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply with this Order.
IT IS FURTHER ORDERED that the consolidated complaint be dismissed insofar as it
alleges violations of the Act not specifically found.
Dated, Washington, D.C., February 17, 2012.
____________________
William L. Schmidt
Administrative Law Judge

36 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain with Local 611 as the exclusive representative of our
employees in the following appropriate unit:
All employees of the Respondent’s Electric, Water, Transmission, Distribution,
Production, Meter Reader, and Collector departments in the divisions and jobs
referenced in Respondent’s collective-bargaining agreement with the Union effective by
its terms from May 1, 2009, through April 30, 2012.
WE WILL NOT refuse to provide Local 611 with the information it requests that is necessary and
relevant to the performance of its duties as the exclusive collective bargaining representative of
the employees in the above unit.
WE WILL NOT change past practices that affect the terms and conditions of employment of our
employees in the above unit without the prior consent of Local 611 or a lawful impasse in
negotiations over any proposed change.
WE WILL NOT 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.
WE WILL provide Local 611 with the following information it previously requested: (1) accident
reports that involve an asbestos exposure at the San Juan Station; (2) items 4, 5, and 7 of Local
611’s request for information concerning grievance SJ-08-15 that we declined to provide on
August 14, 2009; (3) unredacted copies of the discharge recommendations prepared in
connection with the termination of employees Guy Claw and Everand Silas; and (4) a list of the
other duties performed by employees classified as coordinators.
WE WILL restore the access Local 611 agents had to our Electric Service Center facility in
Albuquerque, New Mexico, to that which existed from January until August 2009.
Public Service Company of New Mexico
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.