GenOn West, LP, fomerly known as Reliant Energy aka Etiwanda LLC

National Labor Relations Board - Board Decisions

Dec 30, 2011

357 N.L.R.B. 2098 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 172
2098
Reliant Energy aka Etiwanda LLC and Utility Work-
ers of America, AFL–CIO. Cases 31–CA–
025155 and 31–RC–008023
December 30, 2011
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On April 29, 2002, Judge Gregory Z. Meyerson issued
the attached decision. The Respondent Reliant Energy
(Reliant) filed exceptions integrated with a supporting
brief, as well as citations of supplemental authority, pur-
suant to Reliant Energy, 339 NLRB 66 (2003).1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions consistent with the discussion
below, to adopt the recommended remedy as modified,3
and to adopt the recommended Order, as modified4 and
set forth in full below.5
This case involves alleged unfair labor practices and
objectionable conduct related to a representation election
at Reliant’s Etiwanda electric power plant. The judge
found that Reliant acted unlawfully by: (1) promising
that the Etiwanda employees would be eligible for an
“Extra Incentive Plan” (EIP) if they voted against the
Union; (2) withholding the EIP and double-time holiday
pay from the Etiwanda employees; and (3) causing the
removal of an employee employed by a contractor from
Reliant’s facility because he engaged in union activity.
The judge found that Reliant, by promising and with-
holding the EIP, also engaged in objectionable conduct

1 Reliant cited New York New York, LLC, 313 F.3d 585 (D.C. Cir.
2002), and NLRB v. Pneu Electric, Inc., 309 F.3d 843 (5th Cir. 2002).
2 Reliant has implicitly excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), enf. denied on other grounds sub nom. Jackson
Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011), we shall
modify the judge’s recommended Order to require that backpay and
benefits shall be paid with interest compounded on a daily basis.
4 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
5 We shall substitute a new notice to conform to the judge’s findings
and to the Board’s standard remedial language.
that warranted setting aside the election and holding a
new one.
We agree with the judge’s findings and conclusions,
for the reasons stated by the judge, with one significant
exception: We take a somewhat different analytical ap-
proach in concluding that Reliant violated Section
8(a)(1) and (3) by causing a contractor to remove its em-
ployee from the Etiwanda facility because of his union
activity.6
I.
In 1997, Reliant bought five electric power plants from
Southern California Edison (SCE) and contracted with
SCE, whose workers were represented by the Utility
Workers of America (the Union), to continue to operate
them. On April 1, 2001, Reliant took over the operation of
the five power plants. It engaged Fluor Daniel to perform
the maintenance work performed at Etiwanda. Fluor Dan-
iel, in turn, subcontracted the work to Edison Operation and
Maintenance Service (EOMS), an affiliate of SCE created
in early 2001. At about the same time, the Union began
soliciting authorization cards from Reliant employees at the
facility, while also seeking recognition from Reliant as an
asserted successor employer to SCE/EOMS.
EOMS had employed Richard Baeza, a former SCE
employee, to work at the Etiwanda facility starting on
January 5, 2001. EOMS informed him that he would be
working there through the upcoming summer. Because
Baeza was a well-known union official and was active
during the union organizing drive at Etiwanda, Reliant
employees asked him questions about the Union during
their lunch- and work-breaks. Reliant’s employees gave
authorization cards to Baeza while he was working, but
he kept any related conversations brief (to less than a
minute according to his uncontradicted testimony). Ba-
eza did not hand out cards or any union literature during
worktime. There is no evidence in the record that these
brief verbal exchanges caused any employee to stop
working or be less productive. The judge found, “The

6 In finding that Reliant had withheld double-time holiday pay from
the Etiwanda employees, the judge reasonably assumed—based on a
June 24, 2001 letter from Plant Manager Danny Ross—that Reliant
actually made double-time payments to employees at other plants.
Reliant argues that there is no record evidence establishing such pay-
ments. In our view, Ross’ statement is sufficient proof, because it is
properly treated as a party admission by Reliant. On that basis, we find
that double-time payments were made elsewhere. See U.S. Ecology
Corp., 331 NLRB 223, 225 fn. 12 (2000), enfd. 26 F.Appx. 435 (6th
Cir. 2001).
Our dissenting colleague asserts that the “judge’s conclusion that
Reliant simultaneously promised and withheld the EIP defies common
sense,” but the conclusion correctly reflects both aspects of Reliant’s
conduct: withholding the benefit from employees because they engaged
in union activity and implicitly promising them that benefit if they
refrained.
RELIANT ENERGY 2099
Respondent offered absolutely no evidence that Baeza
was not performing his job properly, or that he was dis-
tracting other employees in the performance of their job
duties.”7
Reliant employees at the Etiwanda facility typically
engaged in conversation on nonwork subjects during
worktime without Reliant supervisors or managers cor-
recting or reprimanding them. Reliant had no rule bar-
ring conversations about nonwork subjects during work-
time or barring or regulating solicitation in the work-
place.
Martin Willis, Reliant’s supervisor of plant mainte-
nance at Etiwanda, had heard that certain EOMS em-
ployees working for Fluor Daniel were engaging in union
organizing during worktime. He asked Jim Biel, Fluor
Daniel’s site superintendant, about the report. Biel told
him that Baeza was soliciting employees and handing out
leaflets during working time.8 Neither Willis nor any
other Reliant official interviewed Baeza or investigated
further in any manner. Rather, Willis told Biel that Reli-
ant wanted Baeza, a highly experienced electrical and
safety coordinator, removed from the property. On June
11, Biel ordered Baeza to leave the Etiwanda facility,
stating that Reliant had requested his removal. After
Baeza’s removal, Willis told an EOMS employee that
Baeza had been removed for “doing union business” on
company time and that Reliant preferred to be nonunion.
II.
The judge applied the Board’s traditional Wright Line9
analysis to cases under Section 8(a)(1) and (3) that turn
on the employer’s motivation. Citing, among other
things, his findings that Reliant had committed election-
related misconduct, the judge determined that Reliant
was motivated by antiunion animus in requesting Ba-
eza’s removal. Reliant did not have a no-solicitation
policy, and there was no evidence, the judge found, that
Baeza’s union activity interfered with his own work or
that his union activity prevented other employees from
performing their work. Thus, Reliant’s assertion that
Baeza was removed for impermissibly engaging in union
activity during worktime was pretextual.
On exceptions, Reliant emphasizes that Baeza was not
an employee of Reliant, but rather the employee of a

7 The dissent adds color to these facts by setting the removal of Ba-
eza against the backdrop of the ongoing energy crisis in California. But
given the judge’s express finding that Baeza’s union activities did not
in any way interfere with Reliant’s operations, we find that embellish-
ment irrelevant.
8 Biel did not testify at the trial.
9 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Mgmt. Corp., 462 U.S. 393 (1983).
subcontractor (EOMS), who “was not continuously or
exclusively assigned to [the] Etiwanda” facility and who
therefore did “not have the same organizing rights as an
employee of Reliant would have had.”10 Citing the Su-
preme Court’s decisions in Lechmere11 and Babcock &
Wilcox,12 which involved nonemployee union organizers
who sought access to employer property, Reliant argues
that Baeza “exceeded his license to be on Reliant’s prop-
erty by organizing Reliant’s employees improperly dur-
ing working hours rather than doing the job he was en-
gaged to do.”13 Even if Baeza were properly treated as if
he were a Reliant employee, Reliant contends, “an em-
ployer may prohibit its workers from union distribution
and solicitation during their working hours.”14 Accord-
ing to Reliant, Baeza either violated such a prohibition
or, at a minimum, Reliant had a good-faith belief that he
did.15
III.
“[I]t is well settled that an employer violates the Act
when it directs, instructs, or orders another employer
with whom it has business dealings to discharge, lay off,
transfer or otherwise affect the working conditions of the
latter’s employees because of the union activities of
those employees.” Black Magic Resources, 312 NLRB
667, 668 (1993), citing Dews Construction Corp., 231
NLRB 182 fn. 4 (1977) (collecting cases), enfd. mem.
578 F.2d 1374 (3d Cir. 1978). As the judge correctly
recognized, this is what happened here.
A.
The judge applied the Board’s established Wright Line
framework, which focuses on the employer’s motive in
taking action against an employee. But here there is no
real dispute that Reliant had Baeza removed because of
his union activity. Wright Line is inapplicable in such
circumstances. See, e.g., Powellton Coal Co., 355
NLRB 407 (2010), incorporating by reference Powellton
Coal Co., 354 NLRB 419, 424 (2009) (unlawful warning
for union solicitation and distribution during working
time, where employee violated no rule).16 The crucial
issue is whether Baeza’s union activity was protected by
the Act.

10 Reliant Exceptions, p. 27.
11 Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
12 NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956).
13 Reliant Exceptions, p. 28.
14 Id., p. 30.
15 Id., p. 31.
16 See also Saia Motor Freight Line, 333 NLRB 784, 784–785
(2001) (unlawful discipline based on overbroad no-solicitation/no-
distribution rule does not implicate Wright Line).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2100
B.
We have no difficulty in concluding that it was. Sec-
tion 7 protects the right of employees “to form, join, or
assist labor organizations,” among other types of “con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection.” Baeza accepted union
authorization cards from Reliant employees during their
workbreaks and answered their questions about the Un-
ion. There can be no question that the Reliant employees
who handed Baeza cards and talked briefly with him
about the Union while they were lawfully on Reliant’s
property to perform work were engaged in protected
concerted activity.17
Baeza, in turn, is himself a statutory employee, a cate-
gory that Section 2(3) of the Act expressly provides
“shall not be limited to the employees of a particular em-
ployer, unless the Act explicitly states otherwise.”18 The
Supreme Court has explained that “[t]his definition was
intended to protect employees when they engage in oth-
erwise proper concerted activities in support of employ-
ees of employers other than their own.” Eastex, Inc. v.
NLRB, 437 U.S. 556, 564 (1978).19 Here, Baeza clearly
was engaged in concerted activities in support of em-
ployees of an employer other than his own—activities
that were protected by the Act, absent a finding that Ba-
eza’s Section 7 rights must yield to some legitimate in-
terest belonging to Reliant.
C.
Reliant’s primary argument, in essence, is that it was
free to retaliate against Baeza because he was employed
by its contractor rather than by Reliant itself. But this
claim cannot be squared with the Act or with our case

17 Compare North Hills Office Service, 345 NLRB 1262 (2005) (em-
ployer lawfully warned employee not to talk to nonemployee union
organizer who was on company property, in violation of lawful em-
ployer no-access rule).
18 For its part, Reliant is undisputedly a statutory employer under the
broad definition of Sec. 2(2) of the Act, falling within none of the ex-
ceptions spelled out there.
19 In light of this language in Eastex and countless Board holdings,
cutting across doctrinal areas, holding that employees engage in pro-
tected concerted activity under Sec. 7 when they act in support of em-
ployees of employers other than their own, the dissent’s suggestion that
Baeza did not possess “his own Sec. 7 right to organize Respondent’s
employees” is without foundation. See, e.g., Yellow Cab, Inc., 210
NLRB 568, 569 (1974) (employee “was peacefully seeking to enlist the
aid of his fellow employees to support employees of other employers
who were on strike and to oppose an alleged antilabor combination.
This is a protected concerted activity for mutual aid and protection
under Section 7.”). Indeed, the words of Judge Learned Hand are apt
here: “It is true that in the past courts often failed to recognize the
interest which each [employee] might have in a solidarity so obtained
[by acting in support of employees of other employers] . . . , but it
seems to us that the act has put an end to this.” NLRB v. Peter Cailler
Kohler Swiss Chocolates Co., 130 F.2d 503, 506 (2d Cir. 1942).
law. As the Supreme Court has recognized, the Board
“has held that a statutory ‘employer’ may violate [the
Act] with respect to employees other than his own.”
Hudgens v. NLRB, 424 U.S. 507, 510 fn. 3 (1976). See
New York New York Hotel & Casino, 356 NLRB 907,
911 (2011) (examining Board doctrine in case involving
access rights of off-duty contractor employees). It does
not follow, as Reliant maintains, that because the Section
7 rights of a contractor employee as against Reliant may be
different from those of Reliant’s own employees (depending
on the circumstances), the contractor employee cannot exer-
cise Section 7 rights at all while on Reliant’s property to
perform work.
Baeza’s Section 7 rights arguably could be required to
yield either to Reliant’s management interests or to its
property rights. But Reliant’s property rights—centered
on the right to exclude others—are not implicated, be-
cause Baeza was not seeking access to the worksite to
engage in organizational activity as he was already on the
site to perform work.20 Where organizational activity is
carried on by statutory employees “already rightfully on
the employer’s property . . . the employer’s management
interests rather than his property interests” are involved.
Hudgens, supra at 522 fn. 10. See also Eastex, supra at
571–572, citing Hudgens.
Babcock and Lechmere, supra, the Supreme Court de-
cisions cited by Reliant, involving access claims by non-
employee union organizers barred from an employer’s
property, thus have no bearing here.21 Reliant insists that

20 The dissent’s repeated use of the term “access rights” to describe
what is at issue here is thus misplaced.
21 The dissent’s suggestion that “[f]or legal and practical purposes,
there was no distinction between Baeza and any other nonemployee
union organizer,” fundamentally misunderstands the distinction drawn
in Babcock and Lechmere between union organizers and employees.
The reasoning used by the dissent to reach this conclusion, that Baeza
was invited onto the property only to work and that “because Baeza
went well beyond the scope of his invitation to be on the plant premis-
es, Reliant was within its property rights in excluding him,” would
apply equally if Reliant fired its own employees for talking about a
union in the plant. In other words, the dissent’s logic would require
overturning the Supreme Court’s decision in Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945). As the court of appeals stated in the very
case cited in the dissent, ITT Industries, Inc. v. NLRB, 413 U.S. 64, 72
fn. 2 (D.C. Cir. 2005), this form of analysis “just begs the question”
because it applies equally to “on-site employees” of the property owner
who are entitled “to engage in organizational activities on company
property.”
The Fifth Circuit’s decision in NLRB v. Pneu Electric, Inc., 309 F.3d
843 (5th Cir. 2002), cited by Reliant, is not to the contrary. In that
case, the court directed the Board to reexamine the rights of contractor
employees in light of Lechmere, supra, which the Board has since done in
response to a decision by the District of Columbia Circuit, also cited by
Reliant. See New York New York, supra, on remand from New York New
York LLC v. NLRB, 313 F.3d 585 (D.C. Cir. 2002). But the court in Pneu
Electric enforced the Board’s order against the property owner with
RELIANT ENERGY 2101
Baeza somehow exceeded his (unwritten) license to be
on its property. But even assuming that Reliant lawfully
could have conditioned Baeza’s access to the property on
not engaging in union activity while on the property—a
question we need not reach—there is no evidence (1) that
Reliant actually imposed such a precondition on Baeza or
any other contractor employee; (2) that Baeza knowingly
violated a precondition imposed by Reliant; or (3) that
Baeza demonstrated his unwillingness to comply with
such a precondition in the future. Put somewhat differ-
ently, even if we were required to balance Baeza’s Sec-
tion 7 rights and Reliant’s property rights—as we recent-
ly did in an access case involving off-duty contractor
employees who sought to return to a workplace not
owned by their employer, see New York New York, su-
pra—there would be no basis to find that the balance
favored Reliant under the circumstances here.
D.
Notwithstanding the absence of an employment rela-
tionship between Baeza and Reliant, this case is properly
examined in light of Board doctrine governing employ-
ees engaged in organizational activity while at work. See
generally Republic Aviation Corp. v. NLRB, 324 U.S.
793 (1945).
Under long-established Board law, an employer rule
that prohibits solicitation during employees’ working
time is presumptively lawful. See, e.g., Our Way, Inc.,
268 NLRB 394, 394–395 (1983) (tracing doctrinal de-
velopment since 1943). But Reliant had no rule at all
prohibiting solicitation and Baeza did not engage in so-
licitation. As we have recently observed,

Notwithstanding the existence of authority lawfully to
restrict employees’ Section 7 activities, . . . if an em-
ployer fails to exercise that authority . . . by failing to
promulgate any rule, . . . the employee activity that
could otherwise be prohibited retains its protected char-
acter.

Continental Group, Inc., 357 NLRB 409, 411 (2011). In
such circumstances, Board precedents hold that an employer
lawfully may discipline an employee for soliciting during
worktime only if the employer can prove that “that it acted
in response to an actual interference with or disruption of
work.” Cal Spas, 322 NLRB 41, 56 (1996), enfd. in rele-
vant part 150 F.3d 1095 (9th Cir. 1998), citing Mast Adver-
tising & Publishing, 304 NLRB 819, 827 (1991).

respect to the discharge of its contractor’s employees for engaging in
protected activity on the owner’s property. Pneu Electric thus demon-
strates that the issue of access rights is distinct from the situation posed
here, a reprisal against an employee’s union activity while the employ-
ee was already on the property to perform work.
On the credited evidence, Reliant cannot meet this
burden. The judge found that Reliant “offered absolutely
no evidence that Baeza was not performing his job
properly, or that he was distracting employees in the per-
formance of their job duties.” Rather, “Baeza spent only
a minimal amount of company time engaged in union
activity.” On exceptions, Reliant does not seriously chal-
lenge the judge’s factual findings, which we adopt.22
IV.
In sum, Baeza’s conduct violated no rule established
by Reliant, and Reliant never directed him not to engage
in union activity. Instead, it instructed Fluor Daniel to
remove him from its premises based on his protected
activity.23 The legality of that action—not a workplace
rule or an access restriction—is the issue in this case.24
The remedy, in turn, simply requires Reliant to notify its
contractor that it has no objection to Baeza returning to
Reliant’s facilities and to make Baeza whole for any loss
of earnings and benefits suffered as a result of the trans-
fer. The evidence is clear that Reliant caused Baeza’s
transfer because he engaged in protected concerted activ-

22 Those findings also foreclose Reliant’s argument, endorsed by the
dissent, that it acted lawfully in directing Baeza’s transfer because it
had a good-faith belief that Baeza was engaging in unprotected activity.
Such a defense is available in cases where discipline is based on alleged
employee misconduct undertaken in the course of protected activity.
See NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964). But even in a
case where the employer acts on a good-faith belief that the employee
engaged in misconduct, the defense is foreclosed if the evidence estab-
lishes that the employee, in fact, did not engage in misconduct. As the
Court made clear in Burnup & Sims, supra at 23, “Over and again the
Board has ruled that § 8(a)(1) is violated if an employee is discharged
for misconduct arising out of protected activity, despite the employer’s
good faith, when it is shown that the misconduct never occurred.” See,
e.g., Powellton Coal, 354 NLRB 419, 428 (2009); Alta Bates Medical
Center, 357 NLRB 259, 260 (2011). As explained above and found by
the judge, the record here demonstrates that Baeza engaged only in
protected conduct. Thus, contrary to the dissent’s suggestion, our hold-
ing is in no way based on Reliant’s failure to conduct an adequate in-
vestigation.
23 This case is easily distinguishable from Sylvania Electric Prod-
ucts, 174 NLRB 1067 (1969), cited by Reliant, in which the Board
upheld a contractor-employer’s “neutrality” rule that prohibited its
employees from participating in organizing activity taking place on a
customer’s premises. Here, Baeza’s employer, EOMS, had no such
rule; rather, EOMS acted in response to Reliant’s demand to remove
Baeza, which was also not based on any preexisting rule.
24 Reliant cites a footnote in the judge’s decision in Fabric Services,
190 NLRB 540 (1971). There, the Board, adopting the judge’s deci-
sion, found that an employer had unlawfully prevented a contractor
employee from wearing union insignia. The judge observed that his
“view of the case would have been different had it involved a prohibi-
tion against employee solicitation or other organizational activity.” Id.
at 543 fn. 11. The Board has since correctly characterized this state-
ment as “dicta.” See Southern Services, supra at 1155 fn. 12. In any
event, as we have emphasized, Reliant had no rule prohibiting solicita-
tion and Baeza did not engage in solicitation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2102
ity, and not to defend any legitimate management or
property interest recognized by the Act.
Our decision hews to the facts as correctly found by
the judge and follows Board and judicial precedent with
care, but our dissenting colleague reads a narrow ruling
as if it were something else altogether. He does not take
issue with the crucial factual findings made, most nota-
bly that there was no evidence that Baeza was not doing
his job or was interfering with the work of other employ-
ees. He refers, however, to Baeza’s “distraction of
coworkers” and the Respondent’s belief that Baeza was
neglecting his own work and disrupting the work of oth-
ers. The judge, however, found no misconduct or disrup-
tion and there is no evidence in the record to the contra-
ry. If the Respondent had demonstrated that Baeza’s
conduct trenched on its management or property inter-
ests—if Baeza actually had been guilty of violating a
solicitation or distribution rule or disrupting produc-
tion—then this case would be a different one. But the
Respondent failed to make that showing—and that fail-
ure matters, under well-established labor law principles.
As we have explained, the Supreme Court’s decisions in
Babcock & Wilcox and Lechmere and the Board’s deci-
sion in New York New York,25 access cases invoked by
the dissent, do not bear on the situation here, where a
statutory employee has been retaliated against for engag-
ing in protected concerted activity while at his workplace
to perform work.26 “This should have been a straight-
forward case,” our colleague opines. It is. Accordingly,
we find that Reliant violated Section 8(a)(1) and (3) of
the Act.
ORDER
Respondent, Reliant Energy aka Etiwanda LLC, Ran-
cho Cucamonga, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Promising employees improved benefits in order to
discourage employees from supporting the Union.
(b) Withholding benefits from certain of its employees
while giving those benefits to other employees, in order
to discourage membership in and support for the Union.

25 Our colleague argues that our holding is somehow inconsistent
with New York New York, supra, because it deprives a property owner
of effective control over a contractor’s employees. That claim is mis-
taken. Reliant’s ability to effect Baeza’s transfer illustrates the control
that property owners typically have over contractor employees. To-
day’s decision simply requires that such control be exercised for a
lawful purpose.
26 No decision of the Board or the Supreme Court, in turn, supports
the dissent’s claim that Reliant’s property rights would trump Baeza’s
Sec. 7 rights even if he had limited his organizing activity to nonwork-
ing time.
(c) Causing its contractor to remove employees from
its facilities in order to discourage membership in or
support for the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make its Etiwanda facility employees whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the
remedy section of the judge’s decision, plus daily com-
pound interest as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
(b) Within 14 days from the date of this Order, notify its
contractor in writing that it has no objection to Richard Ba-
eza returning to its Etiwanda facility, or to any of its other
facilities.
(c) Make Richard Baeza whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the judge’s decision, plus daily compound
interest as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010), enf. denied on other grounds sub
nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137
(D.C. Cir. 2011).
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful demand to its
contractor that it remove Richard Baeza from the Eti-
wanda facility, and within 3 days thereafter notify him in
writing that this has been done and that the unlawful
conduct will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Etiwanda facility in Rancho Cucamonga, California,
copies of the attached notice marked “Appendix.”27
Copies of the notice, on forms provided by the Regional
Director for Region 31, after being signed by the Re-
spondent’s authorized representative, shall be posted by

27 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
RELIANT ENERGY 2103
the Respondent 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, notices shall be dis-
tributed 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 the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since June 1, 2001.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTER ORDERED that Case 31–RC–008023 is
severed and remanded to the Regional Director for Re-
gion 31 for the purpose of conducting a second election
as directed below.28
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among
the employees in the unit found appropriate, whenever
the Regional Director deems appropriate. The Regional
Director shall direct and supervise the election, subject to
the Board’s Rules and Regulations. Eligible to vote are
those employed during the payroll period ending imme-
diately before the date of the Notice of Second Election,
including employees who did not work during that period
because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of
the first election and who retained their employee status

28 The dissent would not direct a second election based on the pas-
sage of time, but the extended, indeed inexcusable, delay in the issu-
ance of a decision in this case was not due to any conduct on the part of
the parties. The dissent would have the petitioner restart the process by
filing a new petition supported by a new showing of interest. But we
do not believe the petitioner should be prejudiced by the Board’s delay.
Requiring a new election does not unfairly prejudice any other party
when a proper petition was filed and the first election was tainted by
objectionable conduct. The purpose of the showing of interest in a
representation case is merely to determine whether there is sufficient
employee interest in selecting a representative to warrant the expendi-
ture of the agency’s time, effort, and resources in conducting an elec-
tion. See 29 CFR Sec. 101.18; Casehandling Manual Sec. 11020. As
such, the purpose of the showing of interest is purely an administrative
one and is not litigable. Borden Co., 101 NLRB 203, 203 fn. 3 (1952);
Casehandling Manual Sec. 11028.3.
during the eligibility period and their replacements.
Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those
in the military services may vote if they appear in person
at the polls. Ineligible to vote are employees who have
quit or been discharged for cause since the payroll peri-
od, striking employees who have been discharged for
cause since the strike began and who have not been re-
hired or reinstated before the election date, and employ-
ees engaged in an economic strike that began more than
12 months before the date of the first election and who
have been permanently replaced. Those eligible shall
vote whether they desire to be represented for collective
bargaining by Utility Workers of America, AFL–CIO.
To ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statu-
tory right to vote, all parties to the election should have
access to a list of voters and their addresses that may be
used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co.,
394 U.S. 759 (1969). Accordingly, it is directed that an
eligibility list containing the full names and addresses of
all the eligible voters must be filed by the Employer with
the Regional Director within 7 days from the date of the
Notice of Second Election. North Macon Health Care
Facility, 315 NLRB 359 (1994). The Regional Director
shall make the list available to all parties to the election.
No extension of time to file the list shall be granted by
the Regional Director except in extraordinary circum-
stances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper
objections are filed.

MEMBER HAYES, dissenting.
I. INTRODUCTION
My colleagues once again ride a contractor’s Trojan
Horse to further breach the legal barrier of Supreme
Court precedent that generally proscribes individuals
who are not employed by a property owner from engag-
ing in Section 7 activities on that property.1 In New York
New York,2 they required a casino/hotel owner to permit
off-duty employees of a restaurant lessee on its premises
to enter its facility in order to publicize to customers a
campaign to organize restaurant coworkers. In Simon De
Bartolo,3 they required a shopping mall operator to per-
mit off-duty employees of a maintenance contractor to
leaflet in the mall parking lot and at mall entrances to
publicize a campaign to organize maintenance co-

1 See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v. Bab-
cock & Wilcox Co., 351 U.S. 105 (1956).
2 New York New York Hotel & Casino, 356 NLRB 907 (2011)
(NYNY).
3 Simon DeBartolo Group, 357 NLRB 1882 (2011).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2104
workers. In this case, they hold that a property owner
must permit a contractor’s on-duty employee to engage
in organizational solicitation of the property owner’s
employees. Although I predicted in my NYNY dissent the
majority’s intent to further expand access rights for Sec-
tion 7 activity, I could not have anticipated that they
would travel so far and so fast as the result reached here.
It is but a short step farther to hold that a union agent
visiting a contractor’s employees for legitimate business
purposes must be permitted to organize the property
owner’s employees while on the premises. I dissent from
this substantial erosion of the meaningful distinction be-
tween a property owner’s employees and nonemployees
and the relative rights of each to access private property
to engage in Section 7 activity.4
II. BACKGROUND
Reliant Energy (Reliant or Respondent) purchased five
California power plants from Southern California Edison
(SCE) in 1997. One of these facilities was the Etiwanda
power plant. Reliant contracted with SCE and later with
an SCE affiliate, Edison Operations & Maintenance Ser-
vices (EOMS), to operate the Etiwanda plant. The SCE
and EOMS workers who operated the plant were repre-
sented by the Utility Workers Union of America (Union),
the same union that had represented the operations and
maintenance employees when SCE owned the plant.
Because SCE and EOMS operations were not cost-
effective, Reliant assumed direct operation of the Eti-
wanda plant in April 2001. Reliant initially planned to

4 I also dissent from the majority’s adoption of the judge’s ruling
that Reliant violated the Act (a) by promising that the Etiwanda plant
employees would be eligible for an “Extra Incentive Plan” (EIP) if they
voted against the Union, and (b) by withholding the EIP and double-
time holiday pay from the Etiwanda employees. Reliant’s handling of
the potential EIP and double-time compensation was a good-faith effort
to comply with the Board’s difficult-to-follow rules regarding the grant
and withholding of benefits during the critical period leading to an
election. See, e.g., Marshall Durbin Poultry Co. v. NLRB, 39 F.3d
1312, 1323 fn. 26 (5th Cir. 1994); Rosauers Supermarkets Inc., 300
NLRB 709, 711 (1990); Charles C. Jackson and Jeffrey S. Heller,
Promises and Grants of Benefits under the National Labor Relations
Act, 131 U. Pa. L. Rev. 1, 16 (1982). Indeed, the majority and the
judge do not dispute that Reliant received considered legal advice to
exclude Etiwanda plant employees from the EIP. Further, the judge’s
conclusion that Reliant simultaneously promised and withheld the EIP
defies common sense.
Moreover, I dissent from the majority’s decision to adopt the judge’s
recommendation that a second election be ordered. The first election
was over a decade ago. Many (perhaps most) employees at the Eti-
wanda plant may no longer be there. The Union’s showing of interest
became stale many years ago, and the unit may no longer be appropri-
ate. The Sec. 7 rights of the current Etiwanda employees, therefore,
would be best served by having the Union compile and present a new
showing of interest. Then, if the Union can obtain such a showing and
still wants to represent the Etiwanda employees, a new election could
be run based on a timely showing of interest.
hire the former EOMS employees and to recognize the
Union as a statutory successor employer to EOMS. Most
of the former EOMS employees, however, declined Reli-
ant’s employment offers. Consequently, the bulk of the
employees in Reliant’s new work force were not former
EOMS bargaining unit employees. Reliant thus could
not lawfully recognize the Union as a successor employ-
er. When the Union later began an organizing effort
among the new Etiwanda employees, Reliant decided to
oppose the campaign.
After assuming direct plant operations, Reliant con-
tracted with Fluor Daniel to perform maintenance and
outage work. Fluor Daniel subcontracted some of that
work to EOMS. Under its subcontract, EOMS assigned
one of its employees, Richard Baeza, to do short-term
outage work at Etiwanda. This was intense, pressing
work that had to be completed quickly because of a se-
vere California energy crisis and the heavy political and
regulatory pressure on Reliant to restore the Etiwanda
plant to 100 percent of its electrical generation capacity.
It required the full time and attention of Baeza and the
other workers involved.
Martin Willis, the Reliant maintenance supervisor at
Etiwanda, heard that EOMS employees working on its
subcontract with Fluor Daniel were engaged in union
organizing activities during worktime. Willis asked Jim
Biel, the Fluor Daniel site superintendent, whether this
was true. Biel replied that he had personally seen Baeza
“stopping employees, Reliant employees, in travels going
from one job to another and [Baeza] was talking about
union organizing stuff and handing out handbills, during
Company time.” Willis asked Biel again to make sure
that Baeza’s organizing activities had not been during
nonworking time. Biel reiterated that Baeza was con-
ducting union organizing activities “on company time.”
Baeza, in testimony credited by the judge, said he did
not hand out union literature during worktime but admit-
ted that he accepted authorization cards from Reliant
employees and spoke with them about the Union during
worktime, although he claimed that these conversations
were brief. Thus, even according to the judge and Baeza,
Baeza engaged in union activity at a time he was sup-
posed to be working. Baeza further acknowledged that it
was improper to conduct union organizing activities dur-
ing worktime. And a union handbill that Baeza himself
distributed stated that employees were allowed to dis-
tribute or discuss union organizing material only “in non-
work areas during non-work times, such as during breaks
or lunch hours.”
After considering what Biel had reported, Willis asked
the advice of a labor relations consultant whom Reliant
had engaged. The consultant opined that Reliant “had a
RELIANT ENERGY 2105
situation whereby they were trying to get [electrical gen-
eration] units up and running, and in essence, we had a
contract employee who was not doing his job.” For
those reasons, Willis decided to ask Fluor Daniel to re-
move Baeza from the site. EOMS assigned Baeza to a
new worksite. He did not miss a day of work.
III. DISCUSSION
A. Reliant Did Not Violate Section 8(a)(3) and (1)
by Requesting Baeza’s Removal from its Premises
The judge, applying a standard Wright Line5 analysis,
found that the Respondent violated Section 8(a)(3) and
(1) by requesting that its contractor and subcontractor,
Fluor Daniel and EOMS, remove Baeza from the Eti-
wanda site. To establish such a violation, the General
Counsel must prove that Reliant’s request to remove Ba-
eza was motivated by his union activity. Although the
judge found that Reliant acted because of union animus,
direct evidence and the judge’s own words flatly contra-
dict that finding. Martin Willis, Reliant’s maintenance
supervisor responsible for requesting Baeza’s removal,
testified without contradiction that he made the request
based on the first-hand account of Jim Biel, Fluor Dan-
iel’s site superintendent. Concededly, the judge credited
Baeza’s more benign testimony, which still indicates that
Baeza engaged in union activity on worktime, but the
judge did not discredit Willis’ testimony. Rather, he
admitted it over a hearsay objection because “it was be-
ing offered not for the truth of the matter asserted, but
rather to establish why Willis took a certain course of
action.” (Emphasis added.) Thus, record evidence es-
tablished that Willis had Baeza removed because he was
told that Baeza was handbilling and soliciting Reliant
employees at times when Baeza should have been work-
ing. As the Board and the courts have acknowledged,
“‘Working time is for work’ is a long-established maxim
of labor relations.” Adtranz ABB Daimler-Benz Trans-
portation, N. A., Inc. v. NLRB, 253 F.3d 19, 28–29 (D.C.
Cir. 2001); Our Way, Inc., 268 NLRB 394, 395 (1983);
Peyton Packing Co., 49 NLRB 828, 843 (1943). The
Respondent’s belief that Baeza was failing to do his job
under time-sensitive demands was, according to Willis,
the only reason for his removal and it was a valid one.6

5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
6 For purposes of this case, the judge’s admission of Willis’ testimo-
ny to show why Willis took the action he did more than sufficed to
establish that the Respondent’s motive was lawful. Indeed, the majori-
ty does not dispute that Willis’ decision to request Baeza’s removal was
based solely on first-hand reports that Baeza was disrupting work.
Thus, Willis’ testimony is probative evidence on the motive issue even
though it was not admitted for a broader purpose. After all, it was the
General Counsel’s burden to show an unlawful motive—not the Re-
According to the judge and the majority, Willis should
not have taken Biel’s first-hand accounts of Baeza’s ac-
tivities at face value; rather, he should have conducted an
independent investigation. Neither the judge nor the
majority cite any support for this proposition. There is
none. Of course, the Board may in certain circumstances
infer discriminatory motivation from the failure to inves-
tigate information about misconduct, but there is no
mandate to do so.7 In sum, there is no record basis for
inferring that the Respondent would have treated this
conduct differently if Baeza had not been engaged in
union activity when he should have been working.
Despite Baeza’s undeniable misuse of work time, the
majority contends that his actions were still protected
because neither Reliant nor its contractors had a rule pro-
hibiting solicitation during working time. This claim
misses the point. Reliant did not ask that Baeza be re-
moved because he violated a no-solicitation rule. It so
requested because he was using paid worktime to do
something other than work. An employer does not have
to promulgate a no-solicitation rule to validly require that
contractor employees use paid worktime for work.
In short, I would find that the Respondent lawfully re-
quested that Baeza be transferred from its worksite be-
cause it believed that he was disrupting production and
failing to work during worktime. For the reasons below,
the activities the judge found Baeza engaged in on work-
time do not shield his removal because Baeza, as a con-

spondent’s burden to prove that Baeza was engaged in disruptive con-
duct (as the majority suggests).
7 Ironically, the majority’s unfounded assertion also contravenes one
of the basic tenets of its NYNY decision. The NYNY majority stressed
that a property owner (such as Reliant) has a “legitimate interest in
preventing interference with the use of its property.” 356 NLRB 907,
916. The majority also recognized that there were valid concerns as to
whether, in the absence of an employment relationship, a property
owner would have adequate control over contractor employees (like
Baeza) who had extensive access to its property. Id. at 11. Based on its
“experience,” however, the majority concluded that the contractual
relationship and mutual “economic interest” between the property
owner and its contractor would give the property owner the ability “to
quickly and effectively intervene, both through the [contractor] em-
ployer and directly, to prevent any inappropriate conduct by the [con-
tractor] employer’s employees on the owner’s property.” Id. Despite
the absence of an employment relationship, the property owner would
have “sufficient control” over contractor employees to prevent disrup-
tion of its operations. Id.
Here, the Respondent “quickly and effectively intervened” based on
a first-hand report of Baeza’s disruptive conduct by the lead contractor
executive responsible for his performance. Now, however, the majority
would require the property owner to perform a detailed “independent
investigation” of the conduct of another employee’s employer before it
could request his removal. That is hardly consistent with the “sufficient
control” assurances in NYNY.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2106
tractor’s employee, did not enjoy the broader Section 7
rights possessed by Reliant’s own employees.8
B. Baeza Did Not Have Section 7 Access Rights That
Outweighed Reliant’s Legally-Protected Property
and Management Rights
The majority has no difficulty finding that Baeza’s ac-
tions were protected. In so doing, it continues down the
erroneous path it began with NYNY, supra, and does not
properly consider—much less accommodate—Reliant’s
legally-protected property and management interests.
First, the majority does not recognize the “critical dis-
tinction” between access rights of a property owner’s
employees and those of nonemployees (e.g., contractor
employees), Lechmere, Inc. v. NLRB, 502 U.S. 527, 533
(1992), a distinction which the Court termed “one of sub-
stance.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105,
113 (1956).9 Second, the majority ignores the Supreme
Court’s mandate to accommodate Section 7 rights and
the owner’s property rights “with as little destruction of
one as is consistent with the maintenance of the other.”
Hudgens v. NLRB, 424 U.S. 507, 522 (1976). The
Hudgens Court continued, “The locus of that accommo-
dation . . . may fall at differing points along the spectrum
depending on the nature and strength of the respective
Section 7 rights and private property rights asserted.” Id.
The majority fails to acknowledge any tension between
these respective rights.
Rather, in utter disregard for the Supreme Court’s
teachings, my colleagues mistakenly assert that Baeza,
like a Reliant employee, has full Republic Aviation ac-
cess rights, an unprecedented expansion of the Board’s
access law. In contrast, Reliant’s property rights “are not

8 Because Baeza’s worktime collection of cards and distraction of
coworkers was unprotected, the Supreme Court’s decision in Burnup &
Sims (NLRB v. Burnup & Sims, 379 U.S. 21 (1964)), has no relevance.
There, the Supreme Court held that an employer’s good faith but mis-
taken belief as to its own employee’s conduct was not a defense to the
resulting interference with the employee’s Sec. 7 rights. The key is that
the employee there was in fact engaged in protected conduct. Here,
because Baeza was not Reliant’s employee, his worktime organizing
activities were not protected.
9 My colleagues contend that the logic of my dissent would require
the overruling of the Supreme Court’s decision in Republic Aviation
Corp. v. NLRB, 324 U.S. 793 (1945). That is clearly wrong. Republic
Aviation involved the access rights of the property owner’s employees
while Baeza was indisputably a “nonemployee” of the property owner
(the Respondent). By relying so heavily on this mistaken point, the
majority again has ignored the Supreme Court’s admonition that the
Board must distinguish “between rules of law applicable to employees
and those applicable to nonemployees.” Babcock & Wilcox, supra at
112–113. The majority’s citation to the District of Columbia Circuit’s
opinion in ITT Industries, Inc. v. NLRB, 413 F.3d 64 (D.C. Cir. 2005),
only underscores its error. That case addressed the access rights of off-
site workers who were employed by the property owner—not nonem-
ployees (like Baeza).
implicated because Baeza was not a stranger seeking to
trespass at the worksite to engage in organizational activ-
ity.” Baeza, however, was a temporary employee of a
second-tier contractor who was allowed on the site spe-
cifically to do pressing, time-sensitive outage work. He
certainly had not been invited onto the property to use
paid worktime to organize Reliant employees. Thus,
because Baeza went well beyond the scope of his invita-
tion to be on the plant premises, Reliant was within its
property rights in excluding him. ITT Industries, supra,
413 F.3d 72 fn. 2 (“Purely from the perspective of tres-
pass law, on-site employees may exceed the scope of
their invitation to access, and so not be ‘rightfully’ on,
the employer’s property when they handbill at a place or
time forbidden by their employer.”).
Baeza’s Section 7 rights are further attenuated by the
fact that he sought to organize Reliant’s employees, and
any access rights that Baeza might have exercised at Eti-
wanda would have been entirely derivative of the Section
7 organizing rights of Reliant’s own employees. Bab-
cock & Wilcox, supra at 113.10 There was no evidence
that the Union could not effectively communicate its
organizing message to Reliant employees without an on-
site organizer employed by a contractor. As a result,
Reliant had no obligation to grant access to Baeza to or-
ganize Reliant employees. Id. For all legal and practical
purposes, there was no distinction between Baeza and
any other nonemployee union organizer.11
Baeza’s highly attenuated Section 7 access rights are
greatly outweighed by Reliant’s property and manage-
ment interests. Reliant was facing the pressure of an
outage during the California energy crisis. There was a
strong state and even national interest in restoring the full
electrical generation capacity of the Etiwanda plant as
quickly as possible. To do that, Reliant had to exercise
its property rights and manage its ongoing operations to

10 My colleagues assume, without explanation or support, that Baeza
possessed his own Sec. 7 right to organize the Respondent’s employees.
But there was no such right here and, thus, no possibility of an 8(a)(1)
or (3) violation based on such a right. The Supreme Court has firmly
established that, as a nonemployee of the property owner, Baeza’s Sec.
7 right (if any) would be entirely “derivative” of the Sec. 7 rights of the
Respondent’s employees. See. e.g., Lechmere, supra at 533–534; Bab-
cock & Wilcox, supra at 111–113. Further, there is no argument—
much less the required showing—that Baeza’s nonemployee organizing
activities were necessary to the fulfillment of the Respondent employ-
ees’ Sec. 7 organizing rights. See id.
11 The majority notes that Baeza is an “employee” under Sec. 2(3) of
the Act. But there is no claim that Baeza is a statutory “employee” of
Reliant. As the majority conceded in NYNY, union organizers may be
statutory “employees” of the union but they are still “non-employees”
for purposes of the Supreme Court’s access cases. 356 NLRB 907, 912
fn. 22. No case holds that a statutory “employee” of an entity other
than the property owner has a Sec. 7 right to have access to a property
owner’s premises in order to organize the property owner’s employees.
RELIANT ENERGY 2107
maximize the efficiency of its outage work. Reliant’s
property rights and management rights, therefore, are
especially strong in this case. The limited rights of a
contractor employee, temporarily assigned to the owner’s
worksite, who seeks to organize the owner’s employees
in a wholly different unit from his own, must yield to
Reliant’s rights. Had the majority made any attempt to
accommodate competing interests here, a proper balance
would have led to the inescapable conclusion that Reli-
ant’s request to transfer Baeza from its worksite and to
end his disruptive activities was lawful.
IV. CONCLUSION
This should have been a straightforward case. Since
the earliest days of the Act, there has been no dispute that
paid work time is for work. That maxim is especially apt
in this case given the importance of the outage work to
which Baeza was assigned during the California energy
crisis. When Reliant received an uncontroverted eyewit-
ness report from a contractor executive that Baeza was
disrupting his own outage work and the work of others
during working time, it had no responsible choice but to
request his removal in favor of another temporary em-
ployee who would stick to the task at hand.
Moreover, under the relevant Supreme Court and Fed-
eral appellate court precedent, Reliant’s property rights
far outweigh Baeza’s organizing rights. Baeza was not a
Reliant employee. He was not regularly assigned to the
Etiwanda plant. He was trying to organize the employ-
ees of an entirely different employer, not his fellow se-
cond-tier contractor employees. In such circumstances,
even if Baeza had limited his organizational activity to
nonworking time, his protected right to engage in such
“derivative” activity on Reliant’s premises must yield to
Reliant’s property rights.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

WE WILL NOT make implied promises of incentive bo-
nus programs, double-time pay for holidays, or other
benefits to you in order to discourage you from support-
ing the Union.
WE WILL NOT deny incentive bonus programs, double-
time pay for holidays, or other benefits to our employees
at the Etiwanda facility, while giving those benefits to
our employees at other plants, in order to discourage
support for and pressure you to vote against, the Utility
Workers of America, AFL–CIO (Union) or any other
union.
WE WILL NOT demand or request that any contractor or
subcontractor performing services for us remove from
any of our facilities or fail to refer to any of our facilities
Richard Baeza because of his union activities.
WE WILL make all our Etiwanda facility unit employees
whole for any loss of earnings and benefits they may
have lost because we did not give them the opportunity
to participate in the “extraordinary incentive program”
and/or double-time pay for working on holidays, when
we gave these wages and benefits to our employees
working at other plants.
WE WILL, within 14 days of this Order, notify the ap-
propriate contractor or subcontractor in writing that we
have no objection to Richard Baeza returning to our Eti-
wanda facility or to any of the other facilities.
WE WILL make Richard Baeza whole for any loss of
earnings and other benefits he may have lost because of
our demand that a contractor or subcontractor remove
him from our Etiwanda facility, or stop sending him to
perform work at any of our facilities.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files, and ask the Employer to
remove from the Employer’s files, any reference to our
demand to our contractor or subcontractor that Richard
Baeza be removed from the Etiwanda facility, and WE
WILL, within 3 days thereafter, notify Richard Baeza in
writing that we have done so and that we will not use the
demand for his removal against him in any way.

RELIANT ENERGY AKA ETIWANDA LLC

Nathan Laks and Ernesto Fong, for the General Counsel.
L. Chapman Smith, of Houston, Texas, for the Respondent.
Ellen Greenstone, of Pasadena, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in Los Angeles, California, on
February 26, 27, and 28, 2002. The charge in Case 31–CA–
25155 was filed by the Utility Workers of America, AFL–CIO
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2108
(Union, Petitioner, or Charging Party) on July 6, 2001.1 Based
on that charge, the Regional Director for Region 31 of the Na-
tional Labor Relations Board (the Board) issued a complaint on
August 30. The complaint alleges that Reliant Energy aka Eti-
wanda LLC (Employer or Respondent) violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act). The
Respondent filed a timely answer to the complaint denying the
commission of the alleged unfair labor practices.
Pursuant to a petition filed by the Union on May 23 in Case
31–RC–008023 and a Stipulated Election Agreement thereafter
executed by the parties, an election by secret ballot was con-
ducted on July 3. The tally of ballots reflected that, of 33 bal-
lots cast, 9 had been cast for representation by the Union, 23
had been cast against such representation, and 1 ballot was
challenged. On July 6, the Union filed a timely objection to
conduct affecting the results of the election. Thereafter, on
January 4, 2002, the Regional Director for Region 31 issued a
report on the investigation of the objection. In his report, the
Regional Director ordered that the objection be consolidated
with the complaint for purposes of trial before an administrative
law judge.
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs. Based on the record, my consideration of
the briefs filed by counsel for the General Counsel, counsel for
the Respondent, and counsel for the Charging Party, and my
observation of the demeanor of the witnesses,2 I now make the
following findings of fact and conclusions of law
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that the
Respondent is a corporation, with an office and place of busi-
ness in Rancho Cucamonga, California,3 where at all times
material it has operated a nonutility power plant; and that dur-
ing the 12-month period ending August 30, 2001, the Respond-
ent, in the course and conduct of its business operations, pur-
chased and received goods at its Rancho Cucamonga facility,
and furnished services valued in excess of $50,000 directly
from its Rancho Cucamonga facility to points located outside
the State of California. During the same period of time, the
Respondent, in conducting its business operations derived gross
revenues in excess of $500,000.

1 All dates are in 2001, unless otherwise indicated. See GC Exhs.
1(a) and (b).
2 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
3 The parties stipulated at the hearing that although the facility at is-
sue is referred to as the Etiwanda plant, it is physically located in Ran-
cho Cucamonga, California.
Accordingly, I conclude that the Respondent is now, and at
all times material has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that at
all times material, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Dispute
The complaint alleges that in mid-June the Respondent
promised employees improved benefits in the form of an “ex-
traordinary incentive plan” if they did not support the Union. It
further alleges that during the same time period, the Respond-
ent withheld benefits from its employees by failing to imple-
ment at the Etiwanda facility the “extraordinary incentive plan”
and increased pay for work performed on holidays. Allegedly,
the Respondent took this action in an effort to discourage em-
ployees from supporting the Union. Also, the complaint alleges
that the Respondent prohibited Richard Baeza, an employee of
a subcontractor, from continuing to perform work at the facility
because of his protected union activity.
The answer denies the commission of any unfair labor prac-
tices. According to the Respondent, the creation of the “ex-
traordinary incentive plan” was unrelated to the union activity
of its employees, and was solely an attempt to increase employ-
ee productivity during a period of energy insufficiency in Cali-
fornia. Further, the Respondent contends that any failure to
implement at the Etiwanda facility the “extraordinary incentive
plan” was merely the result of its desire to avoid making any
unlawful changes in employee benefits during the critical peri-
od between the filing of the election petition and the representa-
tion election. The Respondent denies that it withheld any in-
creased pay for work performed on holidays from its Etiwanda
facility employees. Also, the Respondent denies that it caused
the removal of Richard Baeza from its property because of his
protected union activity, and it supports the action of its con-
tractor in removing Baeza from the project for allegedly engag-
ing in union activity on work time.
B. The Facts
The Respondent, which is a Texas based energy company,
purchased five electric power generating plants from Southern
California Edison (SCE) in approximately 1997. This was part
of California’s deregulation of its power industry. The Etiwan-
da facility was one of those five plants.4 As part of the pur-
chase, the Respondent contracted with SCE for a minimum of 2
years to provide operation and maintenance services for the
plants. SCE created an affiliate company, Edison Operation &
Maintenance Services (EOMS), in early 2001. Thereafter,
SCE’s operation and maintenance contract with the Respondent
was transferred to EOMS. SCE’s operation and maintenance
employees at the Etiwanda facility had been represented by the
Union for many years, and these employees continued to be so

4 The five purchased plants included Etiwanda, Ormand Beach,
Mandalay, Ellwood, and Coolwater.
RELIANT ENERGY 2109
represented after EOMS took over the contract. In approxi-
mately August 2000, the Respondent decided that its contract
with SCE was not cost-effective, and a decision was subse-
quently made that the Respondent would directly assume the
operations and maintenance functions at its five California
plants, including the Etiwanda facility. For various reasons, the
relationship between the Respondent and SCE/EOMS deterio-
rated, which culminated in the Respondent’s termination of the
agreement with EOMS effective April 1, 2001. As of that date,
the Respondent officially assumed the operation of its five Cali-
fornia plants, hiring employees to perform the day-to-day oper-
ations of those facilities. However, the Respondent did enter
into an agreement with another contractor, Fluor Daniel, to
periodically perform certain major maintenance projects. In
turn, Fluor Daniel subcontracted some of this work to EOMS.
As the Respondent began the process of operating the Eti-
wanda facility, efforts were made by the Respondent to encour-
age employees of SCE and EOMS who had worked at that
facility to leave their employer and become employees of the
Respondent. Both Danny Ross, the Respondent’s Etiwanda
plant manager, and Matt Greek, the Respondent’s southwest
operations manager, testified that it was the Respondent’s ex-
pectation and desire for the employees of SCE and EOMS to be
hired by the Respondent at Etiwanda. Further, they alleged that
they assumed a majority of the employees at Etiwanda would
ultimately be comprised of former employees of SCE/EOMS,
at which point the Respondent would recognize the Union as
the collective-bargaining representative of its operations and
maintenance employees at that facility. Because of its belief
that a majority of its Etiwanda employees would likely be for-
mer SCE/EOMS employees, the Respondent had several meet-
ings with the Union at which the Respondent’s representatives
discussed proposed initial terms and conditions of employ-
ment.5 However, as time went on, it became apparent that less
than a majority of the Respondent’s Etiwanda employees would
have formerly been employed by SCE/EOMS.6
The Union began to solicit authorization cards the same day
the Respondent took over the operation of the Etiwanda plant,
April 1. Also on the same date, Bernardo Garcia, the Union’s
regional director, sent the Respondent a letter asserting that the
Respondent was a “successor employer.” By letter dated May
4, the Respondent’s counsel responded by indicating that it was
not a successor employer and declining to grant recognition to
the Union. Also by letter dated May 4, Garcia advised the Re-
spondent that the Union had obtained a card majority showing
of interest and requested recognition. Counsel for the Re-
spondent in a letter dated May 10, declined recognition on the
basis of a “good faith” doubt that the Union represented an
uncoerced majority of the Respondent’s employees at the Eti-
wanda facility.
Following this exchange of letters, the Union filed a repre-

5 These meetings included representatives of the International Broth-
erhood of Electrical Workers (IBEW), which had represented a unit of
SCE’s employees at the Coolwater facility.
6 While the precise reasons for this are unclear, it does appear that
the Respondent did make a good-faith effort to attract the employees of
SCE/EOMS.
sentation petition with the Board on May 23 seeking to repre-
sent a unit of operations and maintenance employees at the
Respondent’s Etiwanda facility. On June 5, the Union and the
Employer entered into a stipulated election agreement, which
resulted in an election being held on July 3. The employees
voted against union representation.
The undersigned takes judicial notice7 that in the spring of
2001, California was experiencing a severe energy crisis. A
significant rise in natural gas prices caused a corresponding
increase in the price of electricity in late 2000 and early 2001.
Despite record rate increases, California energy consumers
experienced rolling blackouts during this period. According to
the testimony of Matt Greek, in late 2000 and early 2001, the
Respondent was facing inquiries and investigations regarding
its California power plants by the Federal Energy Regulatory
Commission, the California Public Utilities Commission, the
California Independent System Operator, and the U.S. Depart-
ment of Energy. He contended that the Respondent was under
considerable pressure to minimize unit outages and make sure
that its California plants were operating at maximum efficiency.
Further complicating the problem, the Respondent had acquired
plants with old generating equipment that would require mil-
lions of dollars worth of maintenance and improvements in
order to face the increased demands of consumers. Greek testi-
fied that the Respondent was of the belief that the summer of
2001 would be a continuation of the blackouts and service in-
terruptions that had been occurring and, therefore, it was neces-
sary for the Respondent to do whatever it could to improve the
operation of its California facilities. According to Greek, he
perceived that there were problems with personnel performance
at the California facilities, and he wanted to find a way to link
pay to performance and to recognize and reward significant
contributions from employees who were performing their jobs
in an exemplary fashion.
Matt Greek testified that it was this situation which led to his
considering an incentive plan for the employees at the Califor-
nia facilities. He contended that in late April or early May he
created a handwritten proposal for an incentive plan. Unfortu-
nately, there was allegedly no remaining copy of this handwrit-
ten proposal. Greek testified about various written documents
that thereafter made reference to an incentive plan. However,
Greek seemed badly confused regarding the sequence in which
these documents were issued and he repeatedly contradicted
himself. The earliest document that shows a date, is a copy of
an email sent by Greek to the Respondent’s labor counsel dated
May 23. (R. Exh. 16.) Attached to that e-mail is a document
entitled “West Region Summer Incentive Program.” The doc-
ument refers to the plan as an “extraordinary incentive pro-
gram” and describes how employees may earn awards varying
from $1000 to $4000 for superior performance. The incentive
plan as referred to in this document was scheduled to begin in
June 2001. It is very important to note that nowhere in this
document is there any reference to the exclusion of any catego-
ry of employees, including those who might be represented by a

7 In Board proceedings, judicial notice may be taken of well-known
or public facts. See, e.g., Casa Italiana Language School, 326 NLRB
40, 41 fn. 6 (1998) (judicial notice of yellow pages).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2110
union, or covered by an election petition. The document has a
handwritten notation indicating “done 5/23/01.” Further, the
email from Greek to counsel stated, “As we discussed. Please
comment, early and often.” It is clear to the undersigned that as
of May 23, the “extraordinary incentive program” was still very
much a work in progress with Greek seeking advice from the
Respondent’s labor counsel. Following advice from counsel,
Greek prepared a presentation for some of the Respondent’s
managers including his boss, which presentation was dated
June 11 and referred to as “California Emergency Response
Incentives–Overview.” (R. Exh. 17, p. 5.)
The next written document which shows a date and which
makes reference to an “extraordinary incentive program” is an
email from Matt Greek dated June 14 to various management
officials describing an attached letter to employees which ex-
plained the program.
(CP Exh. 2.) The email indicated that the program was go-
ing into effect immediately for all the operations personnel at
the Respondent’s California facilities, with the exception of
“represented employees at Coolwater and employees covered
by an election petition at Etiwanda.” Further, managers were
asked to “distribute the attached to all eligible employees.” The
attached letter to employees shows the date of June 18, howev-
er, other copies of this letter which are in evidence show differ-
ent dates. The letters to the employees were identical, with the
exception that each letter reflects the respective date that it was
computer generated. The letters all appear to have been gener-
ated within the space of 4 or 5 days from about June 14 to 19.
Regarding the content of these letters, employees were ad-
vised of the implementation of an “extraordinary incentive
program” for operation employees at the California facilities
effective for the months of June through October. Further, the
letter explained that, “Represented employees and those cur-
rently covered by an election petition are not eligible for this
extraordinary program.” Eligible employees were informed
that they had the opportunity to earn a $500 per month bonus if
station performance levels exceeded the program threshold
values, and, further, that discretionary awards of up to four
times the threshold awards based on monthly performance were
also available. According to Greek, the “extraordinary incen-
tive program” as was reflected in these letters to the employees
was implemented only after he had consulted with a number of
people, including the Respondent’s labor counsel, and had re-
ceived approval from his superior.
At the hearing, reference was made to a handwritten docu-
ment that Matt Greek acknowledged was prepared by him.
(GC Exh. 14.) That document was very similar to the letter that
issued to employees in the period of June 14 to 19. However,
Greek was uncertain exactly when he prepared the hand written
document and contradicted himself several times. In any event,
the handwritten document contained the same exclusions from
the incentive program for represented employees and those
covered by an election petition. Despite Greek’s inability to
definitively establish the date he prepared the handwritten doc-
ument, based on the content of the various documents, it is
clear to me that the handwritten document was a draft of the
letter to employees. Therefore, it must have been prepared
sometime after May 23, the date of the email from Greek to
labor counsel, and before June 14, the date of the email from
Greek to various managers attaching the letter to be issued to
eligible employees.
The Respondent hired labor relations consultant, Harold
Craft, to represent its interests in the representation election
campaign at the Etiwanda facility and, according to Craft, to
educate the employees as to their rights. Craft testified that a
couple of days prior to June 14, the day eligible employees first
began to receive notice of the incentive program, he was in-
formed by Matt Greek that the letters would be issued. There-
after, while conducting meetings with Etiwanda employees
prior to the election, he was asked questions about the incentive
program. Apparently, a number of employees asked questions
about whether the program was “illegal.” According to Craft,
he told the employees that as he was not an attorney; he was not
in a position to say whether the program was legal or not; and
he referred them a NLRB handbook. Further, he allegedly told
the employees that whether they ultimately received the incen-
tive program would depend on negotiations, assuming the Un-
ion won the election.
Thomas Riddle was an electrician employed by EOMS.
From October 2000, until the end of June 2001, he was as-
signed by his employer to perform work at the Respondent’s
Etiwanda facility. He testified that while working at the Eti-
wanda facility, he was given by an employee of the Respondent
a copy of the letter to employees that explained the incentive
program. Further, he testified that he saw copies of the same
letter in the “cubbyholes” assigned to the Respondent’s opera-
tors in the control room.
By letter dated June 24 addressed to the employees, the Re-
spondent’s Etiwanda plant manager, Danny Ross, “responded
to several rumors and concerns” of the employees. (GC Exh.
9.) The letter took the form of question and answer. The ques-
tion was phrased as follows:

I have heard that Mandalay and Ormond plants have just been
informed about an incentive plan in addition to what we have
at Etiwanda. I have also been told that the Company is pay-
ing double time for holidays at the other plants. Is this true?
If so, are we going to get these programs, and if not . . . why
not?

The first paragraph of the answer was phrased as follows:

Once the union filed a petition for an election at Etiwanda,
everything became frozen, as it did at Coolwater. As a Com-
pany, we are prohibited by law from improving existing wag-
es or benefits during the course of a union campaign. Wheth-
er or not you would receive these enhancements would be
subject for negotiations if the union is voted in to represent
you. I would remind you, the union can only ask. The Com-
pany is the only one in a position of giving the benefits.

The letter went on to describe the situation at the Coolwater
facility where the IBEW had recently been elected to represent
a unit of Respondent’s employees.8 It also stated the Respond-

8 The Respondent and IBEW Local 47 entered into a stipulated elec-
tion agreement on May 9, for a unit of employees at the Coolwater
facility. (GC Exh. 10.) Local 47 won the election held on June 6.
RELIANT ENERGY 2111
ent’s position that, “we don’t need a union to interfere with
the process.” Further, referring to the enhanced benefits, the
letter stated:

YES! These benefits have been implemented in all of our
California plants which are not represented by a union, and
who are not in the process of an organizational campaign.

The letter concluded with Ross asking the employees to
“trust me by giving me a year in a non-union setting to prove to
you what I feel would be in your best interest.” Employees
were urged to “vote no on the day of the election.”
It should be noted that Matt Greek testified that the proposed
initial terms and conditions of employment that had been sent
to the Union in December 2000, at the time the Respondent
believed it likely that a majority of the Etiwanda employees
would be former SCE/EOMS employees, contained an incen-
tive program. (R. Exh. 6.) This incentive program went into
effect on April 1, when the Respondent began to operate its
California facilities. It was, according to Greek, a 4 percent
enhancement program. However, Greek testified that the “ex-
traordinary incentive program” at issue in this case, which is
also referred to as the “summer incentive program,” was in
addition to that program which had been in effect since April 1.
Further, it should be noted that Danny Ross testified that the
proposed initial terms and conditions of employment that had
been sent to the Union, set holiday pay at the rate of time and a
half. (R. Exh. 6.) It was that holiday pay which went into ef-
fect on April 1, with the commencement of the Respondent’s
operation of its facilities. (R. Exh. 21.)
Before leaving the subject of the Respondent’s alleged prom-
ise of enhanced benefits, it is significant to note that Matt
Greek acknowledged that he knew by at least May 23, presum-
ably prior to the filing of the representation petition, that the
Union had been soliciting authorization cards at the Etiwanda
facility. In fact, he admitted that he knew as early as May 4,
the date of the Union’s letter demanding recognition, that the
Union was claiming to have a card majority at the Etiwanda
facility.
Further, it is necessary to mention a power point presentation
which Matt Greek prepared for a group of Respondent’s man-
agers on the status of the California plants and transition from
EOMS to Respondent’s own operation. This presentation was
prepared approximately August 25, 2000. It mentions the two
unions with represented employees at the California facilities
and stated, “Competitors have “broken” UWUA.” (R. Exh.
10.)
Regarding the ejection of Richard Baeza from the Etiwanda
facility, Baeza was an employee of EOMS who was assigned to
work at the Etiwanda facility from January 15 through June 11.
At Etiwanda he was classified as the electrical and safety coor-
dinator. Baeza testified that his supervisor at EOMS had in-
formed him that he would be employed at Etiwanda throughout
the summer.
Baeza was a 25-year member of Local 246 of the Utility
Workers Union. While working at Etiwanda, Baeza was a
member of the Union Executive Board and was elected as a
delegate to the L.A. County Federation of Labor, with the elec-
tion results posted in the Etiwanda plant maintenance lunch-
room. The Respondent’s supervisor over the work being per-
formed by Baeza was Martin Willis, the supervisor of plant
maintenance. According to Baeza, Willis knew him as a union
supporter and the two men had recently had a conversation
about the Union. Baeza actively participated in the union or-
ganizing activities among the Respondent’s employees at Eti-
wanda. He wore a union T-shirt several times a week, and he
participated in off-site meetings after work. The Respondent’s
employees approached him during lunches and breaks, with
questions about the Union. Further, employees handed him
authorization cards at work and also left them for him on his
car windshield. The Union received approximately 30 signed
authorization cards during the period that Baeza was on the
project.
According to Baeza, when employees approached him to
hand in authorization cards, he would thank them and encour-
age them to attend the union meetings for more information.
He testified that these conversations were short, lasting less
than a minute, and that he did not hand out any union literature
during work time. Further, he testified that prior to June 11, no
manager of the Respondent, EOMS, or Fluor Daniel ever said
anything to him about conducting union activity on work time.
According to Baeza, while at the Respondent’s facility, he ob-
served workers discussing subjects such as sports and their
personal lives on worktime, and that he never heard any super-
visor or manager tell workers that they could not discuss such
subjects on worktime. There was no direct testimony or evi-
dence offered to contradict any of Baeza’s testimony, and I find
him to be a credible witness. Additionally, there was no evi-
dence offered of any kind that the Respondent had any rule,
oral or written, prohibiting solicitation, or any rule prohibiting
discussions among employees regarding personal matters,
sports, or other topics.
On June 11, Baeza reported to work, at which time he was
met by Fluor Daniel Superintendent Jim Biel.9 Biel informed
Baeza that he had to leave the facility as Reliant had requested
that he be removed. After calling his EOMS supervisor, Baeza
left the facility. He was subsequently reassigned by EOMS to
another job.
According to Martin Willis, Respondent’s supervisor of
plant maintenance at Etiwanda, in mid-June he had heard a
report that certain EOMS employees working under the Fluor
Daniel contract were engaging in union organizing activity
during worktime. Willis approached the Fluor Daniel repre-
sentative, Biel, about the report he had heard. Willis testified
that Biel confirmed the report, indicating that he had seen Ba-
eza stopping Reliant employees and talking to them about un-
ion organizing and handing out handbills, all during company
time.10 Apparently, Willis then sought advice from labor rela-

9 Biel’s name is apparently misspelled as “Bell” in the complaint.
While the Respondent’s answer denies the supervisory and agency
status of “Bell,” this is not a significant issue, as the Respondent does
not deny that its supervisor, Martin Willis, asked to have Baeza re-
moved from the Etiwanda facility.
10 Biel did not testify at the hearing. The testimony of Willis regard-
ing the substance of his conversation with Biel was allowed into evi-
dence over the hearsay objection of counsel for the Union, because the
undersigned concluded that it was being offered not for the truth of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2112
tions consultant, Harold Craft. Craft testified that he told Willis
that if an employee of a subcontractor was doing something
that he should not be doing on company time, then Willis
should notify the employee’s employer that Reliant wanted that
person removed from the facility. Willis contacted Biel again,
and advised him that the Respondent wanted Baeza removed
from the facility. Biel subsequently removed Baeza from the
Etiwanda plant.
Thomas Riddle was an employee of EOMS who worked as
an electrician at the Etiwanda plant from October 2000, through
the end of June 2001. He testified that following the removal
of Baeza from the facility, he had a conversation with the Re-
spondent’s supervisor, Martin Willis. During this conversation,
Willis allegedly said that Baeza had been removed from the
facility because he “was doing union business” during company
time and that should have been done before or after work, at a
different location. Further, Riddle testified that Willis told him
that Reliant would prefer to be nonunion, as they felt “they
could treat their employees better” without the Union. Willis
denied ever having a conversation with Riddle where they dis-
cussed Baeza’s removal from the facility or a desire by the
Respondent to remain nonunion. However, I am of the view
that Riddle testified in a credible fashion and that the conversa-
tion in question did occur. It is simply logical to assume that
following Baeza’s removal from the facility that the two men
would have discussed the matter. Riddle’s testimony is, there-
fore, inherently plausible.
IV. ANALYSIS AND CONCLUSIONS
A. Implied Promise of Benefits
1. The extraordinary incentive program
The undersigned has taken judicial notice of the crisis in the
California energy markets in late 2000, and early 2001. In my
view, Matt Greek testified credibly when he indicated that the
Respondent was under great pressure to minimize unit outages
and make sure that its California plants were operating at max-
imum efficiency. Further, I believe that it was this energy crisis
which was the impetus for the creation of the “extraordinary
incentive program.” According to Greek, he began putting
together this program in late April or early May when he creat-
ed a handwritten proposal. I accept this testimony as truthful,
as well as his testimony that the handwritten proposal resulted
in the written document entitled “West Region Summer Incen-
tive Program,” which set out the nature of the “extraordinary
incentive program” and was sent to Respondent’s labor coun-
sel. (R. Exh. 16.) It is important to recall that this document,
which contained the first written reference to the ‘‘extraordi-
nary incentive program,” contained no exclusions for any cate-
gory of employees, including employees represented by a union
or covered by a representation petition.
This is really not surprising as the Respondent initially ex-
pected that after assuming the direct operation of its California
facilities on April 1, a majority of its employees would have

matter asserted, but rather to establish why Willis took a certain course
of action. Accordingly, Baeza’s testimony is never contradicted by
direct evidence.
formerly been employed by SCE/EOMS. Greek credibly testi-
fied that the Respondent tried to encourage SCE/EOMS em-
ployees to seek employment with the Respondent, and had a
majority of its employees at Etiwanda been former SCE/EOMS
employees, the Respondent would have recognized the Union
at Etiwanda. However, that did not happen, and it appears to
the undersigned that the Respondent then had a “change of
heart.”
It was certainly clear to the Respondent by May 4, the date
of the Union’s card majority letter, that the Union was engaged
in an organizational campaign at Etiwanda. (GC Exh. 2a.) I
believe that there followed a period of changing attitude by the
Respondent towards the Union. The Respondent took the posi-
tion as of May 10 that it would not voluntarily recognize the
Union. (R. Exh. 1.) The most obvious change in its attitude
was the sudden exclusion of represented employees and those
covered by a representation petition from the “extraordinary
incentive program.” Matt Greek’s June 14 email to the plant
managers, with the attached letter to employees, alerted all that
employees represented by a union or considering such repre-
sentation would be excluded from the program. (CP Exh. 2.)
I do not find credible Matt Greek’s contention that employ-
ees represented by a union or considering such representation
would be excluded because of concern about not wanting to
commit an unfair labor practice. It was the Respondent’s stated
position that whether the Coolwater employees received the
incentive would depend on the outcome of negotiations with
the IBEW, and, likewise, whether the Etiwanda employees
received the incentive would depend on the outcome of nego-
tiations with the Union, assuming the employees voted for rep-
resentation. Rather, I believe that the decision to exclude these
employees was part of the strategy to defeat the Union’s organ-
izational efforts, which the Respondent had embarked upon.
It is evident to me that Matt Greek viewed operating the Eti-
wanda facility without the Union as an option as early as at
least August 25, 2000. It was on that date that he sent various
management officials an email with a power point attachment
entitled, “CA Holdings Transition Issues & Opportunities.” (R.
Exh. 10.) In making reference to its California facilities with
union representation, Greek stated, “Competitors have ‘broken’
UWUA.” I can reach no logical conclusion about this refer-
ence, other than that Greek was advising management officials
of his opinion that as competitors of the Respondent had “bro-
ken” the Union, the Respondent might be able to do the same.
With the realization in April and May that a majority of its
Etiwanda employees would not have formerly been employed
by SCE/EOMS, and that the Union was in the process of organ-
izing the facility, the Respondent obviously decided to fight the
organizing effort. It hired Harold Craft, a labor relations con-
sultant, for that purpose.11 Further, I am of the view that it

11 I found Craft’s testimony to be somewhat disingenuous. He at-
tempted to portray his service to the Respondent as primarily to educate
the employees regarding their rights and the nature of the election pro-
cess. However, under cross-examination he was forced to admit that a
part of the education process was to communicate to the employees the
Respondent’s position that “it wanted employees to vote not to be rep-
resented by the Union.” Further, he acknowledged that one measure of
RELIANT ENERGY 2113
excluded the Etiwanda employees covered by the representa-
tion petition for the same reason.
The Board has traditionally held that an employer’s legal du-
ty during an organizing campaign is to proceed with the grant-
ing of benefits which would otherwise have been granted to
employees in the normal course of the employer’s business, just
as it would have done had the union not been on the scene. R.
Dakin & Co., 284 NLRB 98 (1987); and American Telecom-
munications Corp., 249 NLRB 1135 (1980). It certainly ap-
pears to me that the Respondent in the normal course of its
business operation would have granted the “extraordinary in-
centive program” to all of its operations and maintenance em-
ployees at its California facilities, including Etiwanda. That
was clearly what it originally intended to do, as is reflected in
the May 23 email and “West Region Summer Incentive Pro-
gram” memo from Matt Greek. (R. Exh. 16.) Of course, if the
Respondent’s principal interest was to operate its plants at max-
imum efficiency, it would want to encourage all its operations
and maintenance employees to be as productive as possible.
What then changed after May 23? The only thing that changed
was the filing of the union representation petition at Etiwanda
and the election at Coolwater.
Further, the Board has held that promising a benefit solely
for the purpose of withholding its actual grant, although assert-
edly to avoid the commission of an unfair labor practice
amounts to the “carrot on the stick” and constitutes interference
with election campaigns. Goodyear Tire & Rubber Co., 170
NLRB 539 (1968), enfd. as modified 413 F.2d 158 (1969).
Also, the promise or grant of benefits during an organizational
campaign may be unlawful interference even though no strings
are explicitly attached. In the case of Bendix-Westinghouse
Automatic Air Brake Co., 185 NLRB 375 (1970), enfd. 443
F.2d 106 (6th Cir. 1971), a company’s exclusion of unionized
employees from an employee savings and stock plan was held
to be a violation of the Act. The Board found that “employee
benefit plans which on their face are restricted to participation
or enjoyment by employees who are not members of a union, or
who have foregone their right to select and bargain through a
collective bargaining representative are inherently restrictive of
employee rights guaranteed by Section 7 of the Act, and with-
out further evidence of interference, restraint, or coercion are
per se violations of Section 8(a)(1) of the Act.” Id. at 378.
The Respondent’s “extraordinary incentive program” was
clearly a benefit promised only to those employees who were
not represented by a union or covered by an election petition.
This message was conveyed to the Etiwanda employees by
means of the Matt Greek letter dated with various dates be-
tween June 14 and 19. (GC Exh. 4.) While it may not have
gone directly to the employees covered by the representation
petition, they learned about the incentive program almost im-
mediately, as testified to by Thomas Riddle. Also, Hal Craft

success in his job mission was whether the Respondent “won” the
election, meaning of course that the employees voted against represen-
tation.
The Respondent’s answer admits that during the time period in ques-
tion, Craft was an agent of the Respondent within the meaning of Sec.
2(13) of the Act.
admitted discussing the incentive program with eligible voters
at “buzz” sessions prior to the election. Thus, the employees at
Etiwanda covered by the representation petition received notice
that the Respondent was offering it’s other operations and
maintenance employees the “extraordinary incentive program.”
Clearly, this would have had the effect of interfering with the
employees’ right to freely choose their bargaining representa-
tive by discouraging them from voting for the Union.
Typically, the Board looks at four factors to determine
whether a preelection grant of benefits is intended unlawfully to
influence the outcome of an election: (1) the size of the benefit
conferred in relation to the stated purpose for granting it; (2) the
number of employees receiving the benefit; (3) how employees
reasonably would view the purpose of the benefit; and (4) the
timing of the benefit. B & D Plastics, 302 NLRB 245 (1991).
The same action may in fact constitute both an unlawful
promise of benefits to employees for their rejection of union
representation and the unlawful withholding of benefits for
exercise of the right to petition for representation. The Board
uses the same test in unfair labor practice cases and in objection
cases. Holly Farms Corp., 311 NLRB 273, 274 (1993). In the
case at hand, the potential benefit was very significant. During
the 5 months of the “extraordinary incentive program,” eligible
employees had the ability to earn $500 per month, plus part of a
discretionary award pool for each facility. To put this in
perspective, Matt Greek testified that if an employee received
the maximum award under the program in each month, the total
award would be approximately 25 percent of the yearly income
of a line employee. (R. Exh. 17, p. 5.) Considering the amount
of money potentially available, withholding the benefit from
certain employees only because they were covered by a
representation petition or represented by a union would
certainly have the effect of discouraging them from supporting
the Union.
The number of employees who were eligible to receive the
incentive was considerable, as the only employees excluded at
the Respondent’s five California facilities were the represented
employees at Coolwater and the Etiwanda employees covered
by the election petition. An employer violates the Act by
withholding pay raises and/or benefits from employees who are
awaiting a Board election or have chosen a union as their
bargaining representative, if the employees otherwise would
have been granted the pay raises and/or benefits in the normal
course of the employer’s business. When an employer
implements new benefits across work locations, except for
those locations which are represented by a union or where there
is a pending election for union representation, the employer
violates the Act where the employees awaiting the
representation election would have received the benefits had
there been no representation issue. Florida Steel Corp., 220
NLRB 1201, 1203 (1975). In the case at hand, the Respondent
offered no business justification for withholding the incentive
from the Etiwanda employees. To the contrary, the Respondent
acknowledged in its written communication to employees dated
June 14 to 19 that all employees would be eligible, except for
those represented by a union or covered by a representation
petion. Thus, all employees understood that only those
relatively few who were involved with a union would not be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2114
eligible for the benefit. Certainly, this would have had a
chilling effect on the Section 7 rights of those employees
contemplating union representation at Etiwanda.
The timing of the notification to the Respondent’s employees
that the Etiwanda employees would not be eligible for the
incentive benefit was highly suspect. As noted above, the e-
mail and attached “West Region Summer Incentive Program”
from Matt Greek to counsel dated May 23 did not exclude any
category of employees from the program. (R. Exh. 16.) While
precisely when the Respondent decided to exclude the
Etiwanda employees covered by the petition is uncertain,12 it
was clearly not until mid-June that employees learned of the
program, and, significantly, of the exclusions. They received
the news both in the letters from Greek dated June 14 through
19, and in conversations with Hal Craft. Of course, this news
was communicated to them during the critical period between
the filing of the petition on May 23, and the election on July 3.
From the testimony of Craft, it is obvious that the employees at
Etwanda who were ineligible for the benefit were very
concerned about their exclusion from the program, as they
questioned him repeatedly at preelection “buzz” sessions. The
release of this information only several weeks prior to the
election was, in my view, intended to interfere with the exercise
of the employees’ Section 7 rights. It appears to have had its
intended effect.
I am of the opinion that the only logical conclusion that the
Etiwanda employees could have reached about why they were
excluded from the “extraodinary incentive program” was that it
was because of their willingness to consider union
representation. If the Respondent was concerned about
committing an unfair labor practice if it included the petitioned
for employees in the program, then the Respondent had the
responsibility to so inform the employees. This it did not do.
The Board has held that where an employer has an arguably
legitimate explanation for the timing of a benefit just prior to an
election, where the employer fails to communicate that
explanation to the employees, the employees reasonably view
the timing of the benefit as designed to influence their voting in
the election, and the employer, therefore, cannot rebut the
inference of illegality. Cooking Good Division of Perdue
Farms, Inc., 323 NLRB 345, 352–353 (1997). Further, the
Board has held that an employer may, in order to avoid creating
the appearance of interfering with an election, “tell employees
that implementation of expected benefits will be deferred until
after the election—regardless of the outcome.” Noah’s Bay
Area Bagels, LLC, 331 NLRB 188 (2001). In the matter at
hand, the Respondent chose not to do so, and, in fact, it
provided neither any explanation for its exclusion of employees
covered by the representation petition, nor any assurance that
the incentive benefit would be deferred until after the election,
as opposed to simply being unavailable. Such conduct would
have had the certain effect of discouraging employees from

12 The document entitled “California Emergency Response Initia-
tives–Overview” dated June 11, which was a document intended only
for management, mentions that “Represented employees and those
under petition” are to be excluded from a “special incentive program.”
(R. Exh. 17, pp. 1–5.)
supporting the Union.
In summary, I have concluded, based on the above analysis,
that the Respondent by promising certain of its employees
improved benefits in the form of the “extraordinary incentive
plan” interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed to them in Section 7 of the
Act. This conduct took the form of letters from Matt Greek to
employees and discussions which Hal Craft had with
employees, all of which took place about mid-June. Further,
this conduct constituted a violation of Section 8(a)(1) of the
Act.
B. Withheld Benefits
1. The extraordinary incentive plan
As the undersigned has noted above, an employer’s duty in
deciding to grant or withhold benefits during a preelection
critical period is to decide that question as it would if the union
were not on the scene. Noah’s Bay Area Bagels, 331 NLRB
188 (2000); American Telecommunications Corp., 249 NLRB
1135 (1980). However, it appears that the Respondent in this
case did just the opposite. By letter dated June 24 sent to the
Etiwanda employees, Plant Manager Danny Ross informed
them that they would not be receiving the incentive plan
because there was a representation petition pending and
“everything became frozen.” (GC Exh. 9.) It was at that point
that the Etiwanda employees knew conclusively that they
would not be receiving the “extraordinary incentive plan.”13
Further, they understood from Ross’ letter that the reason they
would not be receiving the incentive was because some of them
had sought union representation. Making matters even worse,
the Etiwanda employees learned from the letter that almost all
of the Respondent’s other California employees, with the
exception of the Coolwater employees who were representated
by a union, would be receiving the benefit.
Consistent with Board law, the letter of June 24 from Plant
Manager Ross to the Etiwanda employees would likely
discourage support for the Union just prior to the election.
Noah’s Bay Area Bagels, supra, citing Kauai Coconut Beach
Resort, 317 NLRB 996 (1995). This letter would reasonably
suggest to Etiwanda employees that if the Union won the
election, they would continue to forfeit the benefit of the
incentive program, especially since the Respondent failed to
assure the Etiwanda employees that they would receive the
incentive regardless of the outcome of the election.
There can be no doubt that were it not for the filing of the
representation petition that the Etiwanda employees would have
received the incentive benefit along with other employees. The
Respondent’s June 24 letter acknowledged this, and offered no
business justification for withholding the benefit from the
Etiwanda employees. Instead of making a decision about the
incentive benefit based on factors unrelated to the union
campaign, the Respondent’s decision to exclude the Etiwanda
employees was, by its own admission, based entirely on the fact
that a petition had been filed and an election was pending. As

13 The “extraordinary incentive program” is also referred to as the
“extraordinary incentive plan.” However, it is clear that they are one
and the same.
RELIANT ENERGY 2115
such, the exclusion of the Etiwanda employees from the
“extraordinary incentive program” constituted discrimination in
regard to the terms or conditions of employment of the
Respondent’s employees, thereby discouraging membership in
and support for the Union.
In summary, based on the above, I have concluded that by
withholding the “extraordinary incentive program” from its
Etiwanda employees, as confirmed in Danny Ross’ letter of
June 24, the Respondent discriminated in regard to the terms or
conditions of employment of its employees. By this conduct,
the Respondent discouraged membership in and support for the
Union in violation of Section 8(a)(1) and (3) of the Act.
2. The increased pay for work performed on holidays
The letter from Danny Ross dated June 24 also confirmed
“rumors” that the Etiwanda employees would not be receiving
“double time for holidays” which other employees would be
getting. (GC Exh. 9.) However, in his posthearing brief,
counsel for the Respondent takes the position that there is no
evidence of double-time pay for holidays either being given or
withheld from employees. While counsel correctly states that
the original proposed “terms and conditions” document sent to
the Union in December 2000 (R. Exh. 6) and the April 2001
pay summary (R. Exh. 21) provide only for time and one-half
pay for holidays, he ignores the June 24 letter from Ross.
Based on the letter from Ross, I must assume that the other
employees at some point received the increased holiday pay.
However, whether the other employees ever got double-time
pay for holidays is not the point. What is crucial is that the
Etiwanda employees reasonably assumed, based on the
contents of the June 24 letter from Ross, that they were not
getting what other employees had, namely double time, because
of the representation petition.
As I have stated above in detail, an employer’s duty in
deciding to grant or withhold benefits during a preelection
critical period is to decide that question as it would if the union
were not on the scene. Noah’s Bay Area Bagels, supra;
American Telecommunications Corp., supra. For the same
reasons that the Respondent’s withholding of the incentive plan
from Etiwanda employees violated the Act, the Respondent’s
communication of June 24 informing the Etiwanda employees
that they were not getting the double-time pay also violated the
Act. It is important to remember that the only reason given the
employees as why they were being excluded from the double-
time pay benefit was because of their interest in being
represented by the Union.
Once again I find, based on the above, that the Respondent
by withholding from its Etiwanda facility employees the benefit
of increased pay for work performed on holidays, as expressed
in the June 24 letter, was discriminating in regard to the terms
or conditions of employment of its employees, thereby
discouraging membership in and support for the Union. By this
conduct, the Respondent has violated Section 8(a)(1) and (3) of
the Act.
C. The Expulsion of Richard Baeza from the Etiwanda Plant
There is no doubt that Richard Baeza, an employee of
EOMS, was removed from the Etiwanda facility because
Respondent’s supervisor, Martin Willis, learned that Baeza was
engaged in union activity while on working time. Willis
advised the Respondent’s contractor, Fluor Daniel, through
Daniel’s supervisor, Jim Biel, that Baeza was to be removed
from the project. That action subsequently transpired, with
EOMS, a subcontractor of Daniel, transfering Baeza to another
project.
An employer violates the Act when it directs, instructs, or
orders another employer with whom it has business dealings to
discharge, lay off, transfer, or otherwise affect the working
conditions of the latter’s employees because of the union
activity of those employees. Black Magic Resources, Inc., 312
NLRB 667, 668 (1993); citing Dews Construction Corp., 231
NLRB 182 fn. 4 (1977), enfd. 578 F.2d 1374 (1978). That is
precisely what transpired in this case, with the Respondent
demanding that its contractor remove Baeza from the project.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1981), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the
inference that protected conduct was a “motivating factor” in
the employer’s decision. Then, upon such a showing, the
burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct. The Board’s Wright Line test was approved
by the United States Supreme Court in NLRB v. Transportation
Mgt. Corp., 462 U.S. 393 (1983).
In the present case, I conclude that the General Counsel has
made a prima facie showing that Baeza’s protected conduct was
a motivating factor in the Respondent’s decision to have him
removed from the Etiwanda facility. In Farmer Bros. Co., 303
NLRB 638, 649 (1991), enfd. 988 F.2d 120 (9th Cir. 1993), the
Board held that in order to establish a prima facie case, the
General Counsel must show: (1) that the discriminatee engaged
in protected activities; (2) that the employer had knowledge of
such activities; (3) that the employer’s actions were motivated
by union animus; and (4) that the employer’s conduct has the
effect of encouraging or discouraging membership in a labor
organization. As has been noted in detail above, Baeza
engaged in extensive union activity while on the Respondent’s
Etiwanda facility from January 15 to June 11. He was a
member of the Union Executive Board, elected a delegate to the
Los Angeles County Federation of Labor, wore a union T-shirt,
attended off-site organizational meetings, handed out
authorization cards, and received signed cards from employees
while on worktime and during brief conversations. Also, he
credibly testified that the Respondent’s supervisor, Martin
Willis, knew he was active in the Union and had, in fact,
discussed the Union with him. Further, there can be no doubt
that the Respondent knew of his union activity as Willis
acknowledged that the only reason for having Baeza removed
from the facility was because he was engaging in union
organizing on company time.
Regarding the question of whether the Respondent’s actions
were motivated by union animus, the undersigned as already
noted my conclusion that following an initial period during
which the Respondent made an effort to get former SCE/EOMS
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2116
employees to work at Etiwanda, the Respondent’s attitude
towards the Union turned decidedly negative. As early as
December 25, 2000, Matt Greek made reference to competitors
having “broken” the Union. (R. Exh. 10.) Further, the
exclusion from the “extraordinary incentive program” and
double-time pay for holidays for those employees represented
by a union or covered by a representation petition was a clear
indication of the Respondent’s considerable union animus. The
Respondent hired Hal Craft, a labor relations consultant, for the
purpose of representing its interest in the representation
election at Etiwanda. However, the reality of the hiring was
that Craft was expected to convince the employees to vote
against union representation. He acknowledged as much when
he testified that one way of measuring his success in the
campaign was whether the Respondent “won” the election.
Craft also testified that Willis consulted with him about what to
do regarding information that Baeza was engaged in
organizational activities on company time. It was Craft’s
advice that if Baeza was doing something he should not be
doing while on company time, that Willis should instruct the
contractor to remove him from the property. That, of course,
was exactly what Willis did, having Baeza removed from the
facility because he engaged in union activity.
I believe that the facts in this case amply demonstrate
animus. However, even without direct evidence, animus or
hostility towards an employee’s union activity may be inferred
from all the circumstances. Shattuck Denn Mining Corp. v.
NLRB, 62 LRRM 2401, 2404 (9th Cir. 1966); and U.S. Soil
Conditioning Co., 235 NLRB 762 (1978). Based on the above,
I am of the view that the record evidence strongly supports an
inference of union animus by the Respondent.
There can be little doubt that the Respondent’s conduct in
having Baeza removed from the facility had the effect of
discouraging support for the Union. As a result of his extensive
union activity, Baeza must have been well known at Etiwanda
as a vocal and open union supporter. His removal for engaging
in union activity, namely receiving union authorization cards
from employees during worktime, must have had a chilling
effect on the employees’ willingness to support the Union or
engage in union activities. According to the credible testimony
of employee Thomas Riddle, Supervisor Willis told him that
Baeza was removed because he engaged in union activity on
company time. Obviously, the employees learned what had
happened to Baeza. In this way, the Respondent was warning
other Etiwanda employees that were risking disciplinary action
by engaging in union activity.
The General Counsel, having met his burden of establishing
that the Respondent’s actions were motivated, at least in part,
by antiunion considerations, the burden now shifts to the
Respondent to show that it would have taken the same action
absent the protected conduct. Senior Citizens Coordinating
Council of Riverbay Community, 330 NLRB 1100 (2000); and
Regal Recycling, Inc., 329 NLRB 355 (1999). The Respondent
must persuade by a preponderance of the evidence. Peter
Vitalie Co., 310 NLRB 865, 871 (1993). The Respondent has
failed to meet this burden.
It is the Respondent’s contention that Baeza was removed
from the Etiwanda facility not because he was engaged in union
activity, but because he was engaged in union activity while on
company time. According to the Respondent, it had no
problem with Baeza’s union activity as long as it was
performed on nonworktime, meaning during breaks and lunch.
However, it is the Respondent’s position that by engaging in
union activity on company time, when he should have been
working, Baeza was not performing his job duties. Allegedly,
it was for that reason that he was removed from the facility.
All the witnesses agree, the Respondent did not have a no-
solicitation rule at its Etiwanda facility. While Hal Craft
initially thought such a rule existed, he was unable to locate it,
and, so, ultimately testifed that he could find no such rule.
Further, Baeza credibly testified, without contradiction, that
Etiwanda employees frequently discussed personal matters or
sports while on company time, without management indicating
it was creating a problem or disciplining the employees
involved. The Board has held that an employer may not
lawfully prohibit employees from discussing unionization
during working time if the employer does not prohibit other
worktime discusssions. Frazier Industrial Co., 328 NLRB 717
(1999); and Teksid Aluminum Foundry, Inc., 311 NLRB 711,
713 (1993). However, it appears that this is precisely what the
Respondent did with Baeza.
The Respondent offered absolutely no evidence that Baeza
was not performing his job properly, or that he was distracting
other employees in the performance of their job duties. No
evidence was offered that any management official ever
disciplined or warned Baeza about union activity on company
time, and he credibly testified that there were no such warnings
or discipline. Further, Baeza credibly testified that his
conversations with employees on company time were very
brief, limited to receiving signed authorization cards, and that
he did not pass out union handbills on these occasions.
According to the testimony of Martin Willis, the Respondent
did not conduct any kind of an independent investigation to
determine the extent of Baeza’s union activity on company
time. Rather, Willis simply accepted the contention of Jim
Biel, Fluor Daniel’s supervisor, that Baeza was engaged in
union activity on company time, including passing out
handbills. It appears that the Respondent was overly anxious to
remove Baeza from the facility and, so, instead of investigating
the allegations, Willis had Baeza summarily removed from the
property.
In the view of the undersigned, the credible evidence
established that Baeza spent only a minimal amount of
company time engaged in union activity, and that the
Respondent did not have a no-solicitation policy prohibiting
this conduct. It should be noted that the Board has held that
solicitation to sign authorization cards is considered oral
solicitation, rather than distribution of literature. Rose Co., 154
NLRB 228, 229 fn. 1 (1965); and Stoddard-Quirk Mfg. Co.,
138 NLRB 615, 620, 621 fn. 6 (1962). Further, it appears to
me that the Respondent was treating Baeza in a disparate
fashion, as other employees had been able to discuss personal
matters and sports on company time without any retribution.
I find that the Respondent has failed to establish by anything
approaching a preponderance of the evidence that Baeza was
removed from the Etiwanda property because he was not
RELIANT ENERGY 2117
performing his job duties or was preventing other employees
from doing so. The General Counsel’s prima facie case has not
been rebutted, as the reasons advanced by the Respondent are
pretextual. It is, therefore, appropriate to infer that the
Respondent’s true motive was unlawful, that being because he
engaged in union activity. Williams Contracting, Inc., 309
NLRB 433 (1992); Limestone Apparel Corp., 255 NLRB 722
(1981), enfd. 705 F.2d (6th Cir. 1982); and Shattuck Denn
Mining Corp., supra.
Accordingly, the undersigned finds that by requiring its
contractor to remove Richard Baeza from its Etiwanda facility
on June 11, the Respondent was discriminating in regard to the
hire or tenure or terms or conditions of employment of its
contractor’s or subcontractor’s employees, thereby
discouraging membership in or support for the Union. By this
conduct, the Respondent has violated Section 8(a)(1) and (3) of
the Act.
The Objection to the Election
The Petitioner filed an objection to the election which was
coextensive with the complaint allegations regarding the
“extraordinary incentive program.” As is noted in detail above,
the undersigned concluded that the Respondent violated Section
8(a)(1) of the Act by promising employees the incentive benefit
if they did not support the Union, and violated Section 8(a)(1)
and (3) by subsequently withholding the benefit from its
Etiwanda employees because they were covered by a
representation petition. This conduct occurred in mid-June
2001, in the critical period between the filing of the
representation petition and the election.
It is well settled that conduct during the critical period that
creates an atmosphere rendering improbable a free choice
warrants invalidating an election. See General Shoe Corp., 77
NLRB 124 (1948). Such conduct is sufficient if it creates an
atmosphere calculated to prevent a free and untrammeled
choice by the employees. As the Board stated, in election
proceedings, it is the Board’s function to provide a laboratory
in which an experiment may be conducted, under conditions as
nearly as ideal as possible, to determine the uninhibited desires
of the employees. General Shoe Corp, supra. I find that the
Employer’s actions regarding the “extraordinary Incentive
program” constituted objectionable conduct which interfered
with the free choice of employees in the election. Such conduct
constitutes grounds for setting aside the election. Holly Farms
Corp., 311 NLRB 273 (1993); and Low Kit Mining Co., 309
NLRB 501 (1993).
The objectionable conduct had the potential to dramatically
impact the earning capacity of the Respondent’s employees.
Those who were eligible for the incentive benefit had the
potential to earn up to 25 percent more money on a yearly
basis, having participated in the five months of the program,
than those Etiwanda employees who were not eligible because
they were covered by a representation petition. An action of
such significance would clearly have had a tendency to
seriously inhibit the employees’ willingness to engage in union
activity and would likely have created an atmosphere
unconducive to a free and untrammeled choice by the
employees. The Employer’s conduct destroyed the laboratory
conditions required by the Board. Therefore, I recommend that
the election be set aside.
CONCLUSIONS OF LAW
1. The Respondent, Reliant Energy aka Etiwanda LLC, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Utility Workers of America, AFL–CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By the following acts and conduct the Respondent has vi-
olated Section 8(a)(1) of the Act.
(a) Promising employees improved benefits in the form of an
“extraordinary incentive plan” in order to discourage them from
supporting the Union.
4. By the following acts and conduct the Respondent has vi-
olated Section 8(a)(1) and (3) the Act.
(a) Withholding benefits from its employees by failing to
implement at the Etiwanda facility the “extraordinary incentive
plan” in order to discourage membership in and support for the
Union.
(b) Withholding benefits from its employees at the Etiwanda
facility by failing to implement increased pay for work per-
formed on holidays in order to discourage membership in and
support for the Union.
(c) Causing its contractor to remove Richard Baeza from the
Etiwanda facility in order to discourage membership in and
support for the Union.
5. By the conduct set forth in Conclusions of Law 3(a) and
4(a), above, the Respondent has illegally interfered with the
representation election conducted by the Board in Case 31–
RC–008023. Accordingly, I recommend that the election be set
aside and a new election be conducted at a time and date to be
determined by the Regional Director for Region 31.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily caused its contrac-
tor to remove Richard Baeza from the Etiwanda facility, my
recommended order requires the Respondent to notify its con-
tractor in writing that it has no objection to Baeza returning to
the Etiwanda facility, or to any of the Respondent’s other facili-
ties, and to provide Baeza with a copy of said notice. My rec-
ommended order further requires the Respondent to make Ba-
eza whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of his removal from the Etiwanda
facility to date the Respondent notifies its contractor that it has
no objection to Baeza returning to any of its facilities. This
make-whole remedy shall be less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons, 283 NLRB 1173 (1987).
Further, the Respondent is required to expunge from its records
any references to its demand that its contractor remove Baeza
from the Etiwanda facility, and to provide Baeza with written
notice of such expunction, and inform him that the unlawful
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2118
conduct will not be used as a basis for further personnel actions
against him. Sterling Sugars, Inc., 261 NLRB 472 (1982).
This recommended order further requires the Respondent to
make its Etiwanda facility employees whole for any loss of
earnings and other benefits based on the Respondent’s discrim-
inatory withholding from them of the “extraordinary incentive
plan” and/or increased pay for work performed on holidays.
Any such monies owed are to be computed on a quarterly basis,
plus interest. Also, the Respondent shall be required to post a
notice that assures its employees that it will respect their rights
under the Act.
Additionally, as indicated above, I have found that the Re-
spondent engaged in objectionable conduct affecting the results
of the election in Case 31–RC–008023. I recommend, there-
fore, that the election in this case held on July 3, 2001, be set
aside, that a new election be held at a time to be established in
the discretion of the Regional Director, and that the Regional
Director include in the notice of the election the following:
NOTICE TO ALL VOTERS
The election of July 3, 2001, was set aside because the Na-
tional Labor Relations Board found that certain conduct of the
Employer interfered with the employees’ free exercise of a
free and reasoned choice. Therefore, a new election will be
held in accordance with the terms of this Notice of Election.
All eligible voters should understand that the National Labor
Relations Act gives them the right to cast ballots as they see
fit and protects them in the Exercise of this right free from in-
terference by any of the parties.14

[Recommended Order omitted from publication.]

14 Lufkin Rule Co., 147 NLRB 341 (1964).