Public Service Company of New Mexico

National Labor Relations Board - Board Decisions

Aug 22, 2016

364 NLRB No. 86 (N.L.R.B. 2016)

364 NLRB No. 86
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Public Service Company of New Mexico and Interna-
tional Brotherhood of Electrical Workers, Local
Union No. 611, AFL–CIO. Cases 28–CA–
022655, 28–CA–022759, 28–CA–022997, and 28–
CA–023046
August 22, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MISCIMARRA
On February 17, 2012, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and an an-
swering brief to the General Counsel’s exceptions. The
General Counsel filed exceptions, a supporting brief, an
answering brief to the Respondent’s exceptions, and a
reply brief to the Respondent’s answering brief. The
Charging Party filed exceptions and an answering brief
to the Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
adopt the judge’s rulings, findings,1 and conclusions in
part, to reverse them in part, and to adopt the recom-
mended Order as modified and set forth in full below.2
I. INTRODUCTION
The Respondent, Public Service Company of New
Mexico, provides electrical power to commercial and
residential customers throughout New Mexico. The Re-
spondent has recognized the Union, Electrical Workers
Local 611, as the exclusive collective-bargaining repre-
sentative of employees in the following unit:
All employees of [the Respondent’s] Electric, Water,
Transmission, Distribution, Production, Meter Reader,
and Collector departments, in the divisions and jobs

1 The General Counsel and the Charging Party excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance 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.
2 We shall modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language and to provide
for the posting of the notice in accord with J. Picini Flooring, 356
NLRB 11 (2010). We shall substitute a new notice to conform to the
modified Order and in accordance with our decision in Durham School
Services, 360 NLRB No. 85 (2014).
referenced in [the Respondent’s] collective-bargaining
agreement with the Union effective by its terms, from
May 1, 2009, through April 30, 2012.
This case involves multiple allegations that the Re-
spondent violated Section 8(a)(5) and (1), primarily by
failing to provide requested information and making uni-
lateral changes to workplace policies. We adopt the
judge’s findings on the majority of those issues.3 We
address the remaining Section 8(a)(5) issues below,
along with the additional allegations that the Respondent
violated Section 8(a)(1) by confiscating union literature
from a bulletin board, and Section 8(a)(3) and (1) by
removing union steward Eric Cox from a training meet-
ing and investigating him for his conduct at the meeting.

3 Specifically, we adopt the judge’s findings that the Respondent
violated Sec. 8(a)(5) and (1) by unilaterally implementing a policy
limiting the Union’s access to the Respondent’s Electric Service Center
facility in Albuquerque, New Mexico, and by failing to provide the
following information: all asbestos accident investigations since 2007;
all information related to the grievance involving the Respondent’s use
of Tom Archuleta, an employee of contractor ESSI, Inc., to displace a
full-time employee; and information regarding the “other duties” be-
sides meter reader and collector work performed by nonunit employees.
We also adopt the judge’s findings that the Respondent did not vio-
late Sec. 8(a)(5) and (1) by unilaterally requiring employees to sign a
tailboard meeting form, unilaterally issuing cell phones to all linemen
and implementing a new cell phone policy, failing to provide the Union
with a list of all meter readers and collectors, failing to provide infor-
mation related to the Respondent’s alleged noncompliance with the
Occupational Safety and Health Administration (OSHA) regulation
requiring employers to provide personal climbing equipment to line-
men, failing to reclassify nonunit operations representatives into the
unit, refusing to process a related grievance on behalf of operations
representative James Martinez, and refusing to provide the Union with
the duties of operations representatives Martinez and Linda Hall. Re-
garding the duties of Martinez and Hall, we agree with the judge, for
the reasons he states, that the evidence fails to show that the Union
requested that information. We thus find it unnecessary to pass on the
judge’s additional finding that the request became moot as to Hall when
the parties entered into a settlement agreement to reclassify her as a
meter reader in the unit.
In addition, we agree with the judge that the Respondent did not vio-
late Sec. 8(a)(5) and (1) by failing to provide records of bucket truck
testing performed by Altec, Inc., the bucket truck manufacturer. In
connection with its grievance alleging the Respondent’s noncompliance
with a safety manual requirement that all bucket trucks be tested quar-
terly, the Union requested “all bucket truck testing records.” The Re-
spondent furnished records of all tests performed by Diversified Inspec-
tions, the only subcontractor who performed bucket truck safety testing
in accordance with the safety manual. Despite the Respondent’s state-
ment that Altec may have performed additional tests, the Union never
specifically requested the Altec records, and no such records exist.
Altec conducts only sporadic testing in the course of repairing bucket
trucks and does not provide its testing results to the Respondent. Given
the purpose of the Union’s information request, the fact that no Altec
records exist, and the Union’s failure to make a specific request for
such records, we find that the Respondent satisfied its obligation under
the Act. We do not rely on the judge’s finding that Altec’s records
were not relevant.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. SECTION 8(A)(5) INFORMATION REQUEST AND
UNILATERAL CHANGE ALLEGATIONS
As explained below, we reverse the judge and find that
the Respondent violated the Act by failing to provide: (1)
a copy of its contract with Larkin Enterprises, Inc.; (2)
certain information concerning the discharges of unit
employees Everand Silas and Guy Claw; and (3) infor-
mation related to the Respondent’s inclusion of employ-
ees on the cyber-security list. We adopt in part and re-
verse in part the judge’s findings regarding the alleged
unilateral implementation of, and failure to provide in-
formation concerning, the Respondent’s “fit-test” and
“clean-shaven” requirements for the use of respiratory
equipment.4
1. The Larkin contract
The parties’ collective-bargaining agreement allows
the Respondent to use “supplemental employees” for 4
months at a time and specifies that their rate of pay must
be consistent with that of unit employees. Contractors,
including Larkin Enterprises, Inc., provide supplemental
employees to the Respondent pursuant to hiring con-
tracts. The Union, believing that Larkin employee Ger-
ald Powell had been working for the Respondent for
more than 4 months, filed a grievance in early 2009 and
requested Powell’s payroll records and the Respondent’s
contract with Larkin. The judge found that the Larkin
contract is not relevant and that the payroll records,
which the Respondent provided, were sufficient for the
Union to determine whether the Respondent had violated
the collective-bargaining agreement. We disagree.
The Respondent has a statutory obligation to provide
the Union with requested information that is relevant and
necessary to the Union’s performance of its duties as
collective-bargaining representative—including deciding
whether to process grievances. NLRB v. Acme Industrial
Co., 385 U.S. 432, 435–436 (1967); Centura Health St.
Mary-Corwin Medical Ctr., 360 NLRB No. 82, slip op.
at 1 (2014). Here, the Larkin contract is both relevant
and necessary, as it may shed light on whether the Re-
spondent’s employment of Powell beyond the 4-month
limit was intentional (e.g., by providing for a period of
employment exceeding the time limit) or negligent (e.g.,
resulting from administrative error). As the Union ex-
plained in its follow-up request to the Respondent, the
contract would “allow us to see how long the Company
intended to use this worker and if the Company violated
the contract on purpose.”

4 The complaint also alleges that the Respondent violated Sec.
8(a)(5) and (1) by failing to provide information concerning its investi-
gation of union steward Cox. This allegation is discussed in Sec. IV
below, along with the 8(a)(3) allegation arising from the same facts.
The dissent argues that the Respondent’s intent was ir-
relevant to the merits of the Union’s grievance because
the collective-bargaining agreement proscribes the use of
supplemental employees for more than 4 months regard-
less of intent. We disagree. If the information showed
that the contract breach was unintentional, the Union
might have chosen not to proceed with the grievance; it
is not required to grieve every contract breach.5 The
Union’s claim that it needs the Larkin contract to deter-
mine how to proceed, despite having Powell’s payroll
records, is also consistent with the fact that the grievance
was stuck at the second step at the time of the hearing,
over 18 months after it had been filed.6 We therefore
reverse the judge and find that the Respondent violated
Section 8(a)(5) and (1) by not providing the Union with
the Larkin contract.
2. Discharge memoranda and interview notes concerning
employees Silas and Claw
In February 2009, Department Manager Mathew
Zersen discharged mechanics Everand Silas and Guy
Claw for engaging in a physical altercation, in violation
of the Respondent’s policy against workplace violence.7
Before deciding to discharge the employees, Labor Rela-
tions Manager Ginger Lynch and Supervisor Jim Cash
interviewed Silas, Claw, and an employee witness.
Zersen and a union steward were also present at the in-
terviews. Zersen, Lynch, and Cash thereafter reviewed
the information gathered from the investigation and de-
termined that both employees had violated the Respond-
ent’s policy. Zersen directed Lynch to prepare discharge
recommendation memoranda. After reviewing the mem-
oranda and speaking with the legal department, Zersen
decided to terminate both employees. Zersen testified
that he did not take notes during the interviews or review
anyone’s notes prior to making his decision, and that he
had no recollection of seeing Lynch’s discharge memo-
randa.

5 We also disagree with the dissent’s assertion that the Union did not
provide a factual basis for its request for the Larkin contract. The basis
was apparent from the grievance that accompanied the information
request, as well as from the Union’s stated explanation to the Respond-
ent that it sought to determine if the alleged Larkin contract breach was
purposeful. See Piggly Wiggly Midwest, Inc., 357 NLRB 2344, 2345
(2012) (“Where the factual basis of a request for nonunit information is
obvious from all the surrounding circumstances, the union’s failure to
spell it out will not absolve the employer of its obligations under the
Act.”).
6 The Respondent offers no support for its conclusory assertion that
the Larkin contract is confidential and proprietary. See Mission Foods,
345 NLRB 788, 792 (2005) (employer’s blanket claim of confidentiali-
ty was insufficient to relieve it of its obligation to provide the union
with relevant information).
7 The discharges are not alleged to be unlawful.
PUBLIC SERVICE COMPANY OF NEW MEXICO 3
The Union filed grievances on the employees’ behalf
and requested “any and all documentation that [the Re-
spondent] used or considered . . . in determining the ter-
minations,” including the discharge memoranda and in-
terview notes. Lynch provided her memoranda, but re-
dacted the factual portions and replaced them with a
summary of the facts as determined by Zersen, Cash, and
herself after the interviews. The Respondent refused to
provide the remaining information, including any inter-
view notes, asserting that Zersen had not relied on any of
the other information in deciding to discharge the em-
ployees and that the information was otherwise “confi-
dential.”
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) by failing to provide the
Union with the unredacted copies of Lynch’s discharge
recommendation memoranda. The judge found, howev-
er, that the Respondent was not obligated to provide the
related interview notes. The judge reasoned that a stew-
ard was present for the interviews and, moreover, that the
interview notes are protected work product. Conceding
that the Respondent had not asserted the work product
privilege, the judge nevertheless concluded that the Re-
spondent’s confidentiality claim was “tantamount” to
doing so. We disagree and find that the Respondent was
obligated to provide the interview notes.
To begin, we find that the interview notes were rele-
vant and necessary within the meaning of Acme, supra.
The judge acknowledged that Lynch’s notes “could con-
tain her own mental impressions,” which plainly are rel-
evant to what the managers considered in deciding to
discharge the employees.8 Although a steward was pre-
sent at the interviews, management’s mental impressions
would not necessarily be evident to the steward. Moreo-
ver, the judge cites no case law, and we know of none, to
support a finding that the steward’s presence at the inter-
views somehow relieved the Respondent of its duty to
provide the information.9

8 Mental impressions may, under certain circumstances, constitute
work product. See American Girl Place New York, 355 NLRB 479,
486–487 (2010) (adopting ALJ’s ruling that a manager’s notes, contain-
ing her mental impressions and interpretations of counsel’s advice, are
protected work product). But, for the reasons discussed, we do not find
those circumstances present here.
9 Our dissenting colleague would affirm the judge’s dismissal of the
8(a)(5) allegation concerning the Respondent’s refusal to provide
Lynch’s notes. He would do so without passing on the judge’s ra-
tionale, but based on his view that Lynch’s notes do not fall under the
category of documents that Zersen “used or considered” in making the
termination decisions, and therefore are not encompassed by the Un-
ion’s request. Contrary to our colleague, we do not interpret Zersen’s
testimony that he did not “read” Lynch’s notes to mean that Zersen did
not otherwise use or consider her notes in making his discharge deter-
minations. Indeed, the record shows that before making his decisions,
We turn now to the Respondent’s blanket assertion of
confidentiality. The party asserting confidentiality has
the burden of proving that it has a legitimate and substan-
tial confidentiality interest in the information sought and
that such interest outweighs the other party’s need for the
information. Howard Industries, 360 NLRB No. 111,
slip op. at 2 (2014). When a party is unable to establish
confidentiality, no balancing of interests is required, and
it must disclose the information in full to the requesting
party. Id.; Mission Foods, supra, 345 NLRB at 791–792.
Applying these principles, it is clear that Respondent’s
bare claim of confidentiality, without more, was insuffi-
cient to justify its refusal to provide the notes.
Furthermore, we find that the notes are not protected
work product for two reasons. First, contrary to the
judge, we find that the Respondent’s general confidenti-
ality claim was not tantamount to a work product claim.
The judge sua sponte raised the work product privilege;
the Respondent did not raise it at the hearing or in its
posthearing brief. The first and only time the Respond-
ent claimed the privilege was in its answering brief to the
General Counsel’s exceptions. Second, the party assert-
ing the work product privilege bears the burden of estab-
lishing that it prepared the requested documents in antic-
ipation of litigation. The Respondent failed to do so. It
relies solely on the judge’s finding that Zersen consulted
with the legal department. The credited evidence, how-
ever, shows that this consultation took place after the
interviews were conducted, which belies the Respond-
ent’s claim that Lynch took the notes with an eye toward
litigation.10 Central Telephone Co. of Texas, 343 NLRB
987, 988 (2004). Accordingly, we find that the Re-
spondent violated Section 8(a)(5) and (1) by failing to
provide the interview notes and Lynch’s unredacted dis-
charge recommendation memoranda.
3. Information regarding the inclusion of employees on
the cyber-security list
The Respondent maintains a federally mandated per-
sonal risk assessment (PRA) program as part of its over-
all cyber-security policy. The PRA requires that each
employee with unescorted access to the Respondent’s
cyber assets undergo identity verification and a 7-year

and shortly after the interviews had taken place, Zersen, Cash, and
Lynch together reviewed the information gathered from the investiga-
tion, which included Lynch’s notes. Further, our interpretation of the
Union’s information request is consistent with the Board’s unanimous
decision to affirm the related Sec. 8(a)(5) violation concerning the
Respondent’s refusal to provide Lynch’s discharge memoranda, which
Zersen testified he had no recollection of seeing before making his
decisions.
10 For the same reasons, we reject the Respondent’s argument that
the judge should have found Lynch’s discharge recommendation mem-
oranda to be protected work product.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
criminal background check. Employees who are deemed
potential threats to cyber security or who do not qualify
for access to cyber-secure areas face demotion, transfer,
or termination.
During negotiations for the 2009 contract, the parties
were unable to agree to changes to the cyber-security
policy, and they submitted the matter to final and binding
interest arbitration. Their disagreement arose from the
parties’ competing concerns: the Union believed that
there would be significant job loss if the company had
the unfettered discretion to determine which unit em-
ployees should be covered by the policy and to terminate
those it determined to be potential cyber-security risks;
the Respondent wanted maximum flexibility to operate
its business, ensure compliance with federal regulations,
and safeguard its cyber assets. In September 2009, the
arbitrator issued a decision and established a cyber-
security policy that recognized and attempted to “balance
these competing interests.” That policy became part of
the parties’ collective-bargaining agreement.
In early February 2010, the Respondent notified the
Union that it would implement the cyber-security policy
the following week. In a series of exchanges that month,
the Union asked the Respondent for the names and clas-
sifications of employees designated as PRA-eligible and
a “statement from [the Respondent] as to why [it] has
determined each employee has a reasonable connection
to Cyber Security.” The Respondent provided a list of
the unit employees it had designated but, regarding the
reasons for its determinations, stated only that they were
made in accordance with the arbitrator’s decision. In a
follow-up request, the Union disagreed that the Respond-
ent’s determinations were in accordance with the arbitra-
tor’s decision; it contended that the list included broad
classifications of employees, most of whom only had
isolated access to cyber assets. It also questioned the
inclusion of one specific unit employee. The Respondent
did not provide information on its selection process,
maintaining that, under the arbitrator’s decision, it had
the discretion to make such preliminary coverage deter-
minations.
The judge agreed with the Respondent, finding that the
arbitrator’s decision allows the Respondent to act unilat-
erally in making all preliminary determinations regarding
what areas and employees are covered by the cyber-
security policy. The judge noted that the arbitrator’s
decision allowed the Union the opportunity to grieve any
adverse employment action arising from the policy, but
that the Union’s requests were not prompted by any ad-
verse action. Under these circumstances, the judge con-
cluded that the Union’s requests were designed to require
the Respondent to justify its coverage selections, which
is contrary to the arbitrator’s decision. We disagree with
the judge’s finding.
The arbitrator’s cyber-security policy sets forth, at a
minimum, several factors the company must consider in
determining employees’ eligibility for and successful
completion of a PRA. For example, covered employees
must have a “reasonable connection to cyber security,”
and performance of their jobs must require “more than
isolated instances” of “unescorted access to cyber assets
or to cyber physical security perimeter areas.” The poli-
cy also lists a minimum of six factors the company must
consider in determining if an employee has successfully
completed a PRA, such as the age of the information, the
nature and gravity of the past conduct, and the current
circumstances of the employee. Paragraph 11 of the pol-
icy provides that the Union has a contractual right to file
“grievances about the interpretation or application of
this cyber-security policy.” (Emphasis added).
In light of these provisions, we find, contrary to the
dissent, that the arbitrator’s decision can be reasonably
read to say that the Union has a contractual right under
the policy to grieve not only adverse actions resulting
from an employee’s inclusion on the cyber-security list,
but also the Respondent’s initial decisions about who is
included on the list.11 Indeed, the arbitrator’s decision
does not appear to preclude the Union from knowing or
challenging the basis for the Respondent’s list determina-
tions. In clarifying its need for the information, the Un-
ion aptly explained that it questioned the Respondent’s
inclusion of whole classifications of employees, when
most on the list appeared to have only isolated access to
cyber assets, and its inclusion of a specific employee
who had no apparent connection to cyber security. Ac-
cordingly, the Union is entitled to the information it
sought to enable it to monitor compliance with the arbi-
trator’s decision. See Acme, supra, 385 U.S. 432, 435–
436; Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979).
4. Respiratory “fit-testing” and the announcement of a
“clean-shaven” policy
The Respondent has a Respiratory Protection Program
that incorporates various OSHA regulations and includes
procedures to protect employees against air contaminants
and oxygen-deficient atmospheres. Under the program,
employees must wear respirators in certain designated
areas and may choose to wear them in other areas. If an
employee is assigned to an area where respirators are
required, he must undergo an annual medical evaluation
and “fit test” to determine his suitability to wear the de-

11 Furthermore, although the information request was not prompted
by adverse action, the information the Union requested may help it
identify potential adverse action and determine its next steps.
PUBLIC SERVICE COMPANY OF NEW MEXICO 5
vice. Only employees who are required to wear the de-
vice must complete the evaluation and fit test. The Res-
piratory Protection Program does not require employees
to be clean-shaven, but limits the wearing of facial hair
that prevents the respirator from properly sealing to the
operator’s skin.
At a July 31, 2009 labor-management safety meeting,
Plant Manager Jim McNichol announced that the Re-
spondent would soon require all employees who wore a
respirator (including those who did so voluntarily) to
undergo a fit test. McNichol also stated that “all em-
ployees being fitted for respiratory equipment must be
clean shaven.” In an email sent later that day, Union
Assistant Business Manager Shannon Fitzgerald claimed
that McNichol’s statements amounted to unilateral
changes; the email requested bargaining and information
regarding discipline employees would face for noncom-
pliance with the program. The next day, McNichol sent
an email to managers, but not to employees or the Union,
acknowledging that he misspoke at the meeting and that
there was no clean-shaven requirement.
In response to the Union’s initial request regarding the
clean-shaven policy, by email dated August 5, the Re-
spondent stated only that “the fit-tests specifically pro-
hibit any hair growth between the skin and the face piece
sealing surfaces of the respirator.” The Union sent four
follow-up emails requesting a copy of the clean-shaven
policy that McNichol “promulgated” on July 31, and in
one of the emails asked that the Respondent retract
McNichol’s announcement if there was no such policy.
In the last of these emails, the Union informed the Re-
spondent that managers had recently required two em-
ployees to be clean shaven before undergoing the manda-
tory fit tests. In response, the Respondent did not con-
firm or deny the existence of a clean-shaven policy. It
stated that it could not list all possible consequences of
failing to comply with the program, but that failing the
fit-test solely because the employee did not shave could
result in discipline.
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) by unilaterally implementing a
clean-shaven policy and refusing to provide information
about the policy. The judge found that McNichol’s
statement at the July 31 meeting was simply an an-
nouncement that the Respiratory Protection Program
would become mandatory. The judge further found, and
our dissenting colleague agrees, that the Respondent
never established a clean-shaven policy and therefore had
no duty to provide information about a “nonexistent”
policy. Accordingly, the judge dismissed both the uni-
lateral-change allegation and the information allegation.
We disagree with the judge and the dissent and find that
the Respondent violated Section 8(a)(5) and (1) in both
respects.12
An employer must timely respond to a union’s request
seeking relevant information even when the employer
believes it has grounds for not providing the information.
Regency Service Carts, 345 NLRB 671, 673 (2005)
(“When a union makes a request for relevant infor-
mation, the employer has a duty to supply the infor-
mation in a timely fashion or to adequately explain why
the information will not be furnished”); Kroger Co., 226
NLRB 512, 513–514 (1976). Here, the Union sent six
emails to the Respondent about the clean-shaven policy,
and specifically asked for a copy of the policy or for the
Respondent to issue a retraction if there was no such pol-
icy. Despite the Union’s repeated requests for clarifica-
tion, the Respondent provided only incomplete and
vague responses as to whether a policy existed; this lack
of clarity was exacerbated by the Respondent’s state-
ments that an employee could be disciplined for failing
to shave. In neither response did the Respondent inform
the Union that there was no such policy. Indeed, while
McNichol’s August 1 email to managers makes clear that
there was no clean-shaven policy, this retraction was not
communicated to the Union or employees. Accordingly,
we find that even if the Respondent did not intend to
implement a clean-shaven policy, it was nevertheless
obligated to respond, within a reasonable time, to the
Union’s information requests, even if only to confirm
that the policy did not exist. See Graymont PA, Inc., 364
NLRB No. 37, slip op. at 7 (2016) (employer violated
Section 8(a)(5) and (1) by failing to timely inform the
union that it did not possess information the union re-
quested about the respondent’s rule and policy changes).
By failing to do so, the Respondent violated Section
8(a)(5) and (1).
As to the unilateral-change allegation, we observe that
during the last week of August 2009, the Respondent’s
managers required two employees to be completely clean
shaven before undergoing their fit tests. Fitzgerald also
testified without contradiction that a “ton [of employees]
shaved” as a result of McNichol’s announcement. We
therefore find that, regardless of the Respondent’s intent,
its conduct following McNichol’s announcement resulted
in a material and significant change that amounted to the

12 The complaint also alleges that the Respondent violated Sec.
8(a)(5) and (1) by unilaterally changing the program’s fit-test policy
and by refusing to provide information regarding the fit-test policy. We
agree with the judge’s dismissal of these allegations. The complaint
does not allege that the Respondent violated the Act by making the
Respiratory Protection Program applicable to and mandatory for all
employees wearing a respirator, even those who had previously only
worn the device by choice.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unilateral implementation of a clean-shaven requirement,
in violation of Section 8(a)(5) and (1).13
III. SECTION 8(A)(1) CONFISCATION OF UNION LITERATURE
In mid-April 2010, union steward Cox posted copies of
a Weingarten form on seven bulletin boards throughout
the Respondent’s Albuquerque facility, and distributed
the forms in employees’ mailboxes and in the foreman’s
office.14 The next morning, before the start of the shift,
two employees observed Supervisor Dale Smyth rip the
form from the board outside of the foreman’s office and
throw it away in a nearby trashcan. Cox and the Union’s
Assistant Business Manager Edward Tafoya approached
Smyth the next day about the incident, but Smyth stated
that he did not have time to discuss this “shit” and left.
The judge found that Smyth’s conduct was not coer-
cive and therefore did not violate Section 8(a)(1). The
judge reasoned that the parties had a longstanding collec-
tive-bargaining relationship, the forms had otherwise
been widely distributed, there was no evidence of similar
incidents, and Smyth made no accompanying comments.
In the judge’s view, the “more reasonable” interpretation
of Smyth’s conduct was that he was carrying out a supe-
rior’s instruction to get a copy of the form for manage-
ment review.
Contrary to the judge and the dissent, we find that
Smyth’s conduct of ripping the Weingarten form from
the bulletin board in the presence of two employees vio-
lated Section 8(a)(1). See, e.g., Ozburn-Hessey Logis-
tics, LLC, 357 NLRB 1632, 1632, fn. 5 (2011) (employer
violated Section 8(a)(1) when its supervisor confiscated
and threw away prounion literature in the presence of
employees).15 Moreover, as the dissent concedes, the

13 In dismissing the unilateral change allegation, the judge did not, as
suggested by the dissent, discredit Fitzgerald’s testimony, but simply
relied on his finding that there was no clean-shaven policy.
Our colleague asserts that the fact that two employees were required
to be clean-shaven “does not establish that those two employees were
required to shave facial hair that the OSHA standard would have per-
mitted.” We disagree. Employees had always been allowed, in accord
with OSHA standards, to have facial hair as long as it did not prevent
them from passing a respirator fit test. The fact that the two employees
were told to be clean-shaven, before it could be determined whether
their facial hair prevented them from passing an OSHA-required fit
test, does establish that they were required to be clean shaven in accord
with McNichol’s announcement.
14 See generally NLRB v. J. Weingarten, 420 U.S. 251 (1975). The
form essentially provides that the employee will waive his or her
Weingarten right to union representation at a meeting if the Respondent
agrees that nothing said or done at the meeting could be used as a basis
for later discipline.
15 The dissent would dismiss this allegation, emphasizing that this
was an isolated incident. In determining whether the incident is unlaw-
fully coercive, however, the focus is not on how many times the inci-
dent occurred but on the circumstances surrounding the incident itself.
We have previously found a violation under similar circumstances.
judge’s finding that Smyth confiscated the notice to show
his superior ignores the undisputed evidence that he im-
mediately threw the notice away, and is further incon-
sistent with the judge’s finding that the Weingarten
forms had already been widely distributed.
IV. SECTION 8(A)(3) AND (5) ALLEGATIONS REGARDING
UNION STEWARD COX
These allegations arise from union steward Cox’s ac-
tions during an April 21, 2010 employee-management
training meeting. As discussed further below, we agree
with the judge’s conclusion that the Respondent did not
violate Section 8(a)(3) and (1) by removing Cox from the
meeting and investigating him for his conduct at the
meeting. Contrary to the judge, however, we find that
the Respondent violated Section 8(a)(5) and (1) by refus-
ing to provide information the Union requested relating
to Cox’s investigation.
The April 21 meeting was intended to train employees
on Telestaff, a new after-hours automated call-out system
through which employees would notify the Respondent
of their absences. Supervisor Smyth and Manager Mary
Ann Brandon led the meeting, which was attended by 14
linemen and Cox, who is not a lineman. Line Depart-
ment Manager Richard Nawman requested Cox’s super-
visor, Mark Martinez, to release Cox so that he could
attend the meeting in his capacity as steward.
During the meeting, Cox repeatedly interrupted the
linemen when they attempted to ask questions: he de-
manded that Brandon and Smyth provide a no-layoff
guarantee and accused the Respondent of engaging in
direct dealing over the TeleStaff program. After the third
such interruption, Smyth asked Cox to follow him to his
office down the hall, where he asked Cox to leave the
meeting. Cox refused, returned to the conference room
where the meeting was being held, and instructed that the
meeting stop and that employees leave. Smyth again
asked Cox to leave; he refused and instead successfully
directed the employees to leave. At this time, representa-
tives of the Respondent and the Union arrived on the
scene and discussed the matter in the hallway outside the
meeting room. Meanwhile, the employees returned to
the meeting room where Smyth attempted to start the
meeting for the third time. Smyth’s efforts failed, how-
ever, after union official Tafoya, followed by Cox, en-
tered the room and announced that the meeting was over.
Smyth asked Tafoya and Cox to leave but they refused.
Shortly thereafter, Line Department Manager Nawman

See, e.g., Jennie-O Foods, Inc., 301 NLRB 305, 337 (1991) (supervi-
sor’s tearing up of union handbill in the presence of employees in a
nonwork area on nonworktime violated Sec. 8(a)(1)).
PUBLIC SERVICE COMPANY OF NEW MEXICO 7
announced that the meeting was being shut down and
everyone disbanded.
About a week later, based on Smyth’s and Brandon’s
complaints, the Respondent directed its in-house labor
counsel, Carol Shay, to investigate whether Cox should
be disciplined for his conduct at the meeting. Shay and
two managers interviewed several witnesses, including
some employees.
On May 5, during the investigation, Tafoya sought the
following five categories of information: (1) the names
of everyone interviewed; (2) a list of the allegations on
which the Respondent based its investigation; (3) the
names of the employees who made those allegations; (4)
the interview notes from all employee interviews; and (5)
the investigation report. The Union stated that it needed
the information to assess whether to file a grievance al-
leging a violation under a contractual provision that pro-
hibits “discriminating against stewards for the faithful
performance of their duties.”
By letter dated May 18, Human Resources Manager
Ray Mathes notified the Union that Cox’s conduct
“could be considered insubordination” but that the Re-
spondent had decided not to discipline him. The letter
further stated that the Respondent had “given [the Union]
notice before about [Cox’s] unnecessarily antagonistic,
unprofessional, and disruptive behavior during meetings”
and that “[Cox] is not always entitled to such protections
as he is not always acting in his capacity as a Union
steward.” In a separate letter dated the same day, the
Respondent informed Tafoya that, in light of the decision
not to discipline Cox, it did not understand how the re-
quested information was relevant, and requested that the
Union provide clarification. The letter also asserted that
the requested documents were “confidential.”
By letter dated May 20, the Union restated its need for
the information based on its concern that “the Company
continues to interfere with and retaliate against [Cox]
because of the faithful performance of his duties as a
steward” by investigating Cox and making “unfounded
allegations” against him and other union representatives.
In its June 4 letter, the Respondent maintained that the
request was moot because Cox was not disciplined and
because the Union already had all the information it
needed, stating, “the fact of the investigation, not the
manner in which the investigation was conducted . . . is
actually the only basis (if any) for a grievance.”16

16 In light of the Union’s unfair labor practice charge filed on May
19, which alleged that the Respondent violated Sec. 8(a)(3) and (1) by
removing Cox from the meeting and investigating him, the Respondent
further claimed that the Union’s information request on May 20 was an
inappropriate attempt at discovery. The request was a renewal of the
Union’s original May 5 request, which was made 2 weeks before the
In a June 10 letter to the Respondent, the Union con-
tinued to assert that the Respondent was making un-
founded allegations against Cox and that the Union
needed the information to determine if the allegations
were deliberately false. The Respondent did not respond
to this letter and did not provide any of the information
sought.
The complaint alleges that the Respondent violated
Section 8(a)(3) and (1) by investigating Cox and remov-
ing him from the meeting and Section 8(a)(5) and (1) by
refusing to provide the requested information.
1. The 8(a)(3) allegation
The judge found Wright Line17 inapplicable and in-
stead applied Burnup & Sims,18 finding that the Re-
spondent had a good-faith belief that Cox had engaged in
misconduct at the meeting, and that the General Counsel
failed to show that no unprotected conduct had occurred.
The judge then applied Atlantic Steel Co., 245 NLRB
814 (1979), and found that at least the first three of the
four factors—the place of the conduct, the subject matter,
and the nature of the outburst—weighed against finding
Cox’s conduct protected. He concluded that Cox’s con-
duct at the meeting lost protection and, therefore, that the
disciplinary investigation was lawful and that the Re-
spondent had no duty to provide the requested infor-
mation.
Although we adopt the judge’s dismissal of the Section
8(a)(3) allegation, we clarify two points. First, we find
that the proper inquiry in this case is whether Cox’s con-
duct was so egregious as to lose the protection of the Act
under Atlantic Steel. When, as here, an employer de-
fends a disciplinary action based on employee miscon-
duct that is part of the res gestae of the employee’s pro-
tected activity, the Atlantic Steel test applies.19 Accord-
ingly, neither Wright Line nor Burnup & Sims applies.
Second, in applying the Atlantic Steel factors, we find,
contrary to the judge, that the subject matter of Cox’s
conduct weighs in favor of protection. Cox was express-

charge was filed. Thus, we disagree with the Respondent and the dis-
sent that the May 20 request, which sought identical information as the
original request, was an inappropriate discovery attempt.
17 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
18 379 U.S. 21 (1964).
19 See Beverly Health & Rehabilitation Services, 346 NLRB 1319,
1322 (2006).
The judge was correct that Wright Line is not applicable because the
Respondent’s motive is not at issue; it undisputedly undertook the
investigation based on Cox’s conduct at the meeting. Nor is this case
suited for an analysis under Burnup & Sims, because there is no issue as
to whether Cox actually engaged in misconduct. Rather, the question is
whether that misconduct was sufficiently egregious to lose the Act’s
protection.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ly asked to attend the meeting in his capacity as union
steward. He was performing his representational duties
when he asked whether the TeleStaff system would
change the existing call-out procedures and whether the
system would result in layoffs, and when he commented
that the Respondent was attempting to directly negotiate
with employees over a system that would affect employ-
ees’ schedules—a term and condition of employment.
Moreover, at the time of the meeting, the Telestaff sys-
tem was the subject of the Union’s pending unfair labor
practice charge, which alleged that the Respondent had
unilaterally implemented the system.20
We find, however, that this factor is outweighed by the
others that, as found by the judge, favor a loss of protec-
tion—in particular, the nature of Cox’s conduct. Cox
intentionally shut down the meeting by repeatedly inter-
jecting his own demands and not allowing linemen to ask
questions. He not only refused to leave the meeting after
being told to do so three times by a manager, but reen-
tered the conference room and demanded that the meet-
ing end and employees leave (and, in one instance, he
successfully persuaded the employees to leave). On bal-
ance, we agree with the judge’s conclusion that Cox lost
the protection of the Act. We also agree with the judge
that the Respondent’s investigation of Cox for his con-
duct at the meeting was not unlawful.21
2. The 8(a)(5) allegation
Based on two different confidentiality concerns, the
judge found that the Respondent was not required to pro-
vide any information requested regarding its investiga-
tion of Cox’s conduct at the April 21 training meeting.
With regard to categories 1 and 3—the names of those
interviewed and those who made the allegations against
Cox—the judge concluded that the Union’s need for the
information did not outweigh the risk to employees of
harassment and retaliation if they were identified.22 The
judge based this finding on the nature of Cox’s miscon-

20 The complaint does not contain this allegation.
21 Member Hirozawa joins his colleagues in adopting the judge’s
dismissal, but he does so on the basis that Cox was not subjected to any
cognizable adverse action under Sec. 8(a)(3). Specifically, Cox was
not removed from the meeting; rather, the record shows that Cox re-
fused Smyth’s three separate demands to leave the meeting and that
Nawman ultimately adjourned the meeting. Furthermore, the investiga-
tion into Cox’s conduct at the meeting, which spanned a little over 2
weeks, did not result in discipline. There appears to be no precedent in
which an investigation under similar circumstances was found to con-
stitute discrimination under Sec. 8(a)(3). Accordingly, because Mem-
ber Hirozawa would adopt the dismissal of Sec. 8(a)(3) in the absence
of adverse action, he finds it unnecessary to decide whether Cox’s
conduct lost the protection of the Act and what standard should govern
that determination.
22 The judge did not specifically address category 2, a list of allega-
tions on which the Respondent based its investigation.
duct and the fact that the request was made during the
investigation. With regard to categories 4 and 5—the
interview notes and investigation report—the judge
found that those materials were work product. As dis-
cussed below, we reverse the judge in both instances.
The Respondent failed to timely raise or to establish ei-
ther of its confidentiality concerns, and thus violated
Section 8(a)(5) and (1) by refusing to produce all five
categories of information.
Initially, we find that all of the information is relevant
to whether the Respondent’s investigation was initiated
and undertaken to discriminate against Cox in violation
of the contract—a matter over which the Union was con-
sidering pursuing a grievance. See Acme, supra, 385
U.S. at 438 (providing a union with information relevant
to the processing of grievances allows it to “sift out un-
meritorious claims”); see also Disneyland Park, 350
NLRB 1256, 1257 (2007); Transport of New Jersey, 233
NLRB 694, 694 (1977); and Pennsylvania Power Co.,
301 NLRB 1104, 1105 (1991).23
A determination of relevance, however, does not end
the inquiry where a confidentiality concern is timely
raised and established. Here, the Respondent’s general
assertion of confidentiality as to all five categories of
information is insufficient to meet its burden in establish-
ing a legitimate and substantial confidentiality interest.

23 Contrary to the Respondent’s contention, its decision not to disci-
pline Cox does not preclude a finding of relevance nor render the Un-
ion’s request moot. The Union followed up its original May 5 request
with two more requests, each time restating the present and continuing
relevance of the information so that it could investigate a possible
grievance under the contract, having expressed its concern that “the
Company continues to interfere with and retaliate against Steward Cox
because of the faithful performance of his duties.” See e.g., Chapin
Hill at Red Bank, 360 NLRB No. 27, slip op. at 1 (2014) (requested
information has “present and continuing relevance” for union to police
contractual provision allowing for use of nonunit employees to perform
unit work under limited circumstances, and was not rendered moot
despite resolution of grievance and backpay award to employee for
violation of provision).
The Union’s June 10 letter to the Respondent, in particular, articu-
lates the present and continuing relevance of the information. In that
letter, the Union cited statements made in the Respondent’s May 18
letter in support of its claim that the Respondent has made and contin-
ues to make “unfounded allegations” against Cox and other union rep-
resentatives because of the performance of their representative duties.
For example, the Respondent’s May 18 letter stated that, even though
the matter was thoroughly investigated and that it had decided not to
discipline Cox, his conduct, nonetheless, “could be considered insubor-
dination.” The Respondent also stated that it had previously notified
the Union about Cox’s “unnecessarily antagonistic, unprofessional, and
disruptive behavior during meetings” and warned that Cox “is not
always entitled to such protections as he is not always acting in his
capacity as [steward].” As the Union stated, the requested information
was relevant to determine whether the Respondent initiated and under-
took the investigation to discriminate against Cox in violation of the
contract’s antidiscrimination provision.
PUBLIC SERVICE COMPANY OF NEW MEXICO 9
Howard Industries, supra, 360 NLRB No. 111, slip op. at
2. For the following reasons, we also reject the judge’s
reliance on witness harassment concerns and the work
product privilege.
Regarding the witness names, the judge raised the wit-
ness harassment concern sua sponte at the hearing, rely-
ing on the nature of Cox’s misconduct and the fact that
the request was made while the investigation was under-
way. The Respondent did not address the concern until
its posthearing brief, in which it merely repeated the
judge’s reasoning, without citing any record evidence to
show that the potential for witness harassment out-
weighed the Union’s need for relevant information. See,
e.g., Transport of New Jersey, supra, 233 NLRB at 695
(employer’s harassment concerns were speculative and
were outweighed by the union’s need for the infor-
mation). We are not persuaded by the dissent’s assertion
that the potential for harassment or retaliation against
employees outweighs the Union’s need for the infor-
mation. The purported witness harassment concern was
unsubstantiated and untimely raised, and therefore insuf-
ficient to excuse the Respondent from providing the Un-
ion with the witness names, list of allegations, and the
employees who made the allegations.
The judge found that the remaining information—the
interview notes and investigation report—was protected
by the work product privilege–-a defense the Respondent
did not raise until the hearing.24 Even assuming the Re-
spondent’s argument was timely, we disagree with the
judge that the Respondent established that the privilege
applies. The Respondent relies solely on Shay’s credited
testimony to support its conclusion that the Cox investi-
gation was not routine or undertaken in the ordinary
course of business, and that the notes and report were
produced in anticipation of litigation. Shay testified that
she directed the investigation and, at the outset, felt it
was part of her duty to limit the potential damage of the
pending unilateral-change charge and a potential charge
that Cox threatened to file over his treatment at the meet-
ing.
We find Shay’s testimony insufficient to establish that
the interview notes and investigation report are work
product. The Respondent asserts that the Cox investiga-
tion was not routine, but it offered no evidence that the
Cox investigation was undertaken with an eye toward
litigation. Central Telephone Co. of Texas, supra, 343
NLRB at 989 (work-product privilege does not apply to
documents produced pursuant to routine investigations
but is limited to those documents specifically created in

24 See Sec. II.2, supra, for a discussion of Board precedent governing
work product.
anticipation of foreseeable litigation). Further, Shay’s
failure to designate the notes and report as protected at an
earlier stage in the investigation undercuts the Respond-
ent’s work product claim. Nor does Cox’s threat to file a
charge, without more, shed light on whether the notes
and report “would not have been created in substantially
similar form but for the prospect of that litigation.” Id.
Based on that evidence and those considerations, we find
that the Respondent did not timely assert the work prod-
uct privilege, and even if it had, it did not establish that
the interview notes and investigation report were created
in anticipation of litigation.25
ORDER
The National Labor Relations Board orders that the
Respondent, Public Service Company of New Mexico,
Albuquerque, New Mexico, its officers, agents, succes-
sors, and assigns shall
1. Cease and desist from
(a) Refusing to bargain collectively with International
Brotherhood of Electrical Workers, Local Union No.
611, AFL–CIO (the Union) by failing and refusing to
furnish it with requested information that is relevant and
necessary to the Union’s performance of its functions as
the exclusive representative of the employees in the fol-
lowing appropriate unit:
All employees of the Respondent’s Electric, Water,
Transmission, Distribution, Production, Meter Reader,
and Collector departments in the divisions and jobs ref-
erenced in the Respondent’s collective-bargaining

25 Our dissenting colleague would affirm the judge’s dismissal of
this allegation. In addition to the reasons stated by the judge, he would
find the Respondent’s denial of the Union’s request lawful on the basis
that the request was both an inappropriate attempt at discovery (which
we have addressed at fn. 16, above) and premature. We disagree that
the information request was premature. As we have concluded, the
requested information was relevant and necessary to determine whether
the Union would pursue a grievance under the collective-bargaining
agreement’s antidiscrimination policy. The request was made after the
Respondent’s investigation of Cox, undertaken by its in-house counsel,
was well underway. Moreover, the record shows, and the Respondent’s
letter confirms, that similar incidents had occurred where management
had accused Cox of misconduct in the performance of his steward
duties. Given this context, the Union’s request was not premature, but
an effort to ensure that the investigation was not based on unfounded
allegations or used to retaliate against Cox in violation of the antidis-
crimination clause. Further, we find the cases the dissent relies upon to
be distinguishable. See General Electric Co. v. NLRB, 916 F.2d 1163
(7th Cir. 1990) (court held that union’s demand for subcontracting cost
data, which was made over a year before contract negotiations could
begin, was premature); and Tri-State Generation & Transmission Assn.,
332 NLRB 910, 911 (2000) (without passing on merits of union’s pro-
spective accretion claim, Board held that information request was
premature as employer was, at the time, only in early discussions about
a possible merger).
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement with the Union effective by its terms from
May 1, 2009, through April 30, 2012.
(b) Failing and refusing to respond in a timely manner
to information requests made by the Union.
(c) Unilaterally changing terms and conditions of em-
ployment of its employees in the above unit.
(d) Confiscating Union literature from the bulletin
board.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Furnish to the Union in a timely manner the follow-
ing information it previously requested, which is neces-
sary and relevant to the performance of its representative
functions: (1) all asbestos accident investigations since
2007; (2) all information related to the grievance involv-
ing the Respondent’s use of Tom Archuleta, an employee
of contractor ESSI, Inc.; (3) all information regarding the
“other duties” besides meter reader and collector work
performed by nonunit employees; (4) the Respondent’s
contract with Larkin Enterprises, Inc.; (5) unredacted
copies of the discharge recommendation memoranda and
the interview notes as related to employees Everand Silas
and Guy Claw; (6) a copy of its clean-shaven policy or, if
there is none, a statement stating that such policy does
not exist; (7) all information requested relating to the
Respondent’s inclusion of employees on the cyber-
security list; and (8) all information requested related to
the disciplinary investigation of union steward Eric Cox.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the bargaining unit.
(c) Rescind the change to the policy for the access of
Union agents to the Respondent’s Electric Service Center
facility in Albuquerque, New Mexico, that was unilater-
ally implemented in January 2009. Restore the Union
agents’ access rights to the Respondent’s Electric Service
Center facility in Albuquerque, New Mexico, to that
which existed from January until August 2009, or in the
event the Respondent has generally altered its access
procedures, provide the union agents with a form of ac-
cess substantially equivalent to that which existed be-
tween January and August 2009.
(d) Rescind the clean-shaven policy that was unilater-
ally implemented on July 31, 2009.
(e) Within 14 days after service by the Region, post at
all of Respondent’s facilities in New Mexico copies of
the attached notice marked “Appendix”.26 Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since March 31, 2009.
(f) Within 21 days after service by the Region, file
with the Regional Director of Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
Dated, Washington, D.C. August 22, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
I agree with the majority on most of the issues in this
case. As to seven specific issues, however, my col-
leagues and I disagree. On each of these issues, my col-
leagues reverse the judge’s decision and find the unfair
labor practice violation. For the reasons explained be-

26 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.”
PUBLIC SERVICE COMPANY OF NEW MEXICO 11
low, I would affirm the judge’s decision and dismiss
each of these allegations.
I. Alleged 8(a)(1) Removal of Union Notice from
Bulletin Board
I agree with the judge that the Respondent did not vio-
late Section 8(a)(1) of the National Labor Relations Act
(NLRA or Act) by its isolated act of removing a single
union notice from a bulletin board and throwing it away.
The notice in question gave employees information and
advice about their Weingarten1 rights. Two working
foremen in the bargaining unit saw a supervisor remove
and discard the notice. The supervisor said nothing as he
did so and made no sounds or evocative gestures. The
Union quickly replaced the notice, and it remained un-
touched thereafter. The Union posted six more copies of
the notice on other bulletin boards. None was disturbed.
Further, many employees received copies in their Re-
spondent-provided mailboxes, and there were numerous
copies available to employees on desks in the same of-
fice that housed the bulletin board from which the notice
was removed. There is no evidence that any of those
copies were disturbed.
The judge found that the supervisor removed the no-
tice from the bulletin board to give to a manager for re-
view. I agree with my colleagues that this finding is con-
tradicted by evidence that the supervisor removed the
notice and then immediately threw it away. Nonetheless,
I would dismiss the allegation. As noted above, only two
employees saw the notice being removed, the notice was
promptly replaced and went untouched thereafter, there
were no fewer than six other copies posted on the Re-
spondent’s bulletin boards, many copies were distributed
to employees in their mailboxes, and numerous other
copies were available to employees at various plant loca-
tions, including a manager’s office. Aside from one,
isolated instance, the Respondent openly cooperated with
the Union’s efforts to make the notice available to em-
ployees. This brief event involved only two employees,
nothing was said, and there were no hostile or angry ges-
tures. These circumstances bear little resemblance to
those in Jennie-O Foods, Inc., 301 NLRB 305, 337
(1991), on which the majority relies, where a supervisor
tore up a union handbill in the presence of more than 30
employees, and the supervisor and an employee engaged
in a hostile verbal exchange. Given the circumstances
here, I believe it strains credulity to find that this incident
would have reasonably interfered with, restrained, or
coerced employees in the exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act. See,
e.g., NLRB v. Motorola, Inc., 991 F.2d 278, 283 (5th Cir.

1 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1979).
1993) (in refusing to enforce Board’s order, noting that
“federal courts have consistently held that marginal in-
fringements do not violate the Act”); NLRB v. First Na-
tional Bank of Pueblo, 623 F.2d 686, 688, 692 (10th Cir.
1980) (court agrees with administrative law judge’s dis-
missal of Section 8(a)(1) allegation involving a “transient
incident that had no meaningful impact”); Yellow Ambu-
lance Service, 342 NLRB 804, 810 (2004) (“[A] Board
remedy for de minimis misconduct is unwarranted.”);
Phillips Industrial Components, Inc., 216 NLRB 885,
885 (1975) (reversing administrative law judge and dis-
missing 8(a)(1) allegation where one instance of a su-
pervisor issuing an overbroad no-solicitation directive
was promptly retracted).
II. Alleged 8(a)(5) Unilateral Implementation of “Clean-
Shaven” Policy
I disagree with my colleagues’ finding that the Re-
spondent unilaterally changed its Respiratory Protection
Program in violation of Section 8(a)(5) of the Act. The
General Counsel, whose burden it was to establish the
violation he had alleged, failed to establish that the Res-
piratory Protection Program was changed.
Pursuant to the respiratory protection standard set forth
at 29 C.F.R. Section 1910.134, the Occupational Safety
and Health Administration (OSHA) requires covered
employers, including the Respondent, to establish a de-
tailed, written respiratory protection program. Among
other provisions, OSHA’s respiratory protection standard
prohibits covered employers from allowing any employ-
ee to wear a tight-fitting respirator if the employee has
“[f]acial hair that comes between the sealing surface of
the facepiece and the face or that interferes with valve
function.” Id.
The Respondent maintains an OSHA-compliant Res-
piratory Protection Program, which had been approved
by a joint labor-management General Safety Committee.
At a General Safety Committee meeting on July 30,
2009, the Respondent’s plant manager, Jim McNichol,
mentioned that employees being fitted for respirators
“must be clean-shaven to get a proper fit.” McNichol’s
remark led to discussions among employees, supervisors,
managers, and union representatives concerning what
McNichol meant by “clean-shaven.” Alerted to these
discussions, McNichol promptly sent an e-mail to super-
visors and managers stressing that the Respondent re-
quired nothing more than what the OSHA standard man-
dated.
What followed was a triumph of posturing over sound
labor relations. On August 1, 2009, Union Assistant
Business Manager Shannon Fitzgerald emailed Respond-
ent’s Labor Relations Supervisor Ginger Lynch. Fitzger-
ald alleged that McNichol’s comment that employees
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
“must be clean-shaven” represented a unilateral change
in the Respondent’s Respiratory Protection Program.
Fitzgerald requested a copy of the unilaterally changed
program. He also demanded that the Respondent cease
and desist from implementing the “new” program until it
had bargained with the Union and that he be informed of
the proposed implementation date of the “new” program
and of the disciplinary consequences if an employee
failed to comply with it.
Lynch responded to Fitzgerald by email on August 5.
She attached a copy of the Respondent’s existing Respir-
atory Protection Program, which showed that there had
been no change in the program and that there was no
“clean-shaven” requirement beyond what the OSHA
standard mandated. In her email, Lynch reiterated the
OSHA standard, writing that the “federally-required ‘fit
tests’ specifically prohibit ‘any hair growth’ between the
skin and the facepiece sealing surface of the respirator.”
Lynch also rejected Fitzgerald’s bargaining demand,
stating that the Respondent was “obligated to comply
with OSHA” and that “whether to comply with federal
law” would be “an illegal subject of bargaining.”
Unsatisfied, Fitzgerald continued to insist, in further
emails to Lynch dated August 6 and 18, that the Re-
spondent had unilaterally established a new “clean-
shaven” policy. On August 25, the Respondent instruct-
ed its crew supervisors to send any employees who were
not current on their respirator-fit testing for a test. The
next day, Fitzgerald emailed Lynch a list of questions,
including what would happen if an employee failed the
test. Lynch replied that she could not speculate on the
consequences of an employee’s failure to pass “the
OSHA-mandated tests.”
In sum, there is no evidence that the Respondent al-
tered its Respiratory Protection Program in any way.
The copy of the Respiratory Protection Program Lynch
provided Fitzgerald showed that the program was un-
changed, and Lynch repeatedly made clear to Fitzgerald
that the Respondent’s program requires what OSHA re-
quires, nothing more.
Tacitly admitting that the wording of the Respiratory
Protection Program never changed, my colleagues rest
their unilateral-change finding on evidence that two em-
ployees were required to be completely clean-shaven
before being tested and Fitzgerald’s testimony that “a ton
[of employees] shaved.” As to Fitzgerald’s testimony—
which the judge may have implicitly discredited, since he
does not mention it in his decision—the fact that em-
ployees shaved because they believed, mistakenly, that
the Respiratory Protection Program had changed does
not prove that the program had, in fact, changed. And
without more, testimony that two employees were re-
quired to be clean-shaven before being tested does not
establish that those two employees were required to
shave facial hair that the OSHA standard would have
permitted.2 But even assuming the managers who re-
quired the two employees to shave misapplied the Re-
spondent’s Respiratory Protection Program, this does not
demonstrate that the program itself had changed. See,
e.g., Champion Parts Rebuilders, Northeast Div. v.
NLRB, 717 F.2d 845, 852 (3d Cir. 1983) (isolated actions
by supervisors do not amount to unlawful unilateral
change where employer policy remains unchanged); P.A.
Incorporated, 259 NLRB 833, 835 (1982) (“simple [su-
pervisor] mistake with minimal effect on only a few em-
ployees for a brief period of time” does not amount to
Section 8(a)(5) violation where employer policy remains
the same). Fitzgerald also admitted that some employees
with facial hair successfully completed the fit-testing
requirement, which contradicts the claim that a clean-
shaven policy had been implemented. I would adopt the
judge’s dismissal of this allegation.
III. Alleged 8(a)(5) Failures to Furnish Requested
Information
Reversing the judge’s decision, my colleagues find
five instances when the Respondent unlawfully failed to
furnish requested information. For the following rea-
sons, I would affirm the judge’s dismissal of all five al-
legations.
A. Requests for Information about Alleged Implemen-
tation of New “Clean-Shaven” Policy. The majority
finds that the Respondent violated Section 8(a)(5) by not
answering the Union’s requests for information about the
alleged implementation of a new “clean-shaven” policy.
As the judge concluded and as I have established above,
however, the Respondent never implemented a new
“clean-shaven” policy. The Respondent had no duty to
provide information about an alleged new policy that did
not exist. Further, the Respondent gave the Union a copy
of its existing Respiratory Protection Program and re-
peatedly confirmed that the program had not changed. I
disagree with my colleagues that these responses were, in
their words, “incomplete and vague.” In her email to
Fitzgerald (attaching a copy of the Respondent’s exist-
ing, unchanged Respiratory Protection Program), Lynch
reiterated the OSHA standard, accurately stating that
“federally-required ‘fit tests’ specifically prohibit ‘any
hair growth’ between the skin and the facepiece sealing
surface of the respirator.” Lynch also rejected the Un-

2 Contrary to my colleagues’ assertion, the record does not establish
that the two employees who shaved had facial hair compliant with the
OSHA standard. It might have been obvious to the managers who
required them to shave that their facial hair would have interfered with
a proper fit.
PUBLIC SERVICE COMPANY OF NEW MEXICO 13
ion’s demand to bargain on the basis that the Respondent
was “obligated to comply with OSHA,” the parties could
not bargain over “whether to comply with federal law,”
and doing so would involve “an illegal subject of bar-
gaining.” These statements, fairly understood, made
clear that the Respondent was continuing to require what
it had previously required—compliance with the OSHA
standards, nothing more—and that it had not changed its
Respiratory Protection Program, from which it necessari-
ly followed that the Union was asking for information
that did not exist. The judge correctly dismissed this
allegation.
B. Request for Notes of Silas and Claw Interviews. In
early 2009, employees Everand Silas and Guy Claw en-
gaged in a physical altercation. After an investigation,
Department Manager Matthew Zersen decided to termi-
nate both of them for violating the Respondent’s rules
against jobsite violence. Labor Relations Supervisor
Lynch helped Zersen investigate the incident. She took
notes of the interviews of Silas, Claw, and an individual
who had witnessed the altercation. Zersen did not take
notes during the interviews, and the judge credited his
testimony that he did not review Lynch’s notes before
deciding to terminate Silas and Claw. A union steward
attended all three interviews and had a full opportunity to
take notes. At Zersen’s direction, Lynch drafted dis-
charge recommendation memos and sent them to Direc-
tor of Human Resources Services Anna Ortiz.
The Union filed grievances over the discharges. At the
first-step grievance meeting, the Respondent gave the
Union copies of Lynch’s discharge recommendation
memos from which Lynch’s version of events was re-
dacted and replaced with summaries of what the Re-
spondent deemed were the pertinent facts. The Union
requested unredacted copies of the discharge recommen-
dation memos. The Union also requested “[a]ny and all
documentation that [the Respondent] used or considered
that it had not previously supplied concerning the [Silas
and Claw discharge] grievances, including any and all
notes taken that were used in determining the termina-
tions at issue in [the Silas and Claw discharge] grievanc-
es” (emphasis added). Assistant Business Manager Fitz-
gerald testified that the Union wanted to know what the
Respondent’s decision-makers had in front of them when
they decided to discharge Silas and Claw. The Respond-
ent denied both requests.
The judge found that the Respondent violated Section
8(a)(5) by refusing to furnish unredacted copies of the
discharge recommendation memos. I agree with my col-
leagues’ decision to affirm the judge’s decision in this
regard. The unredacted memos were the best available
summaries of the facts that led to the termination deci-
sions. Additionally, Ortiz relied on the memos in provid-
ing high-level Human Resources approval of the dis-
charge decisions.
The judge dismissed, however, the allegation that the
Respondent also violated Section 8(a)(5) by refusing to
furnish the Union with Lynch’s interview notes. In dis-
missing this allegation, the judge primarily relied on the
fact that a union steward was present for the interviews
and therefore had equal access to the same information.
The judge also concluded that the notes were subject to
the attorney work-product privilege.
My colleagues reject the judge’s rationale, reverse his
dismissal, and find the 8(a)(5) violation as alleged. I
would affirm the judge’s decision to dismiss this allega-
tion, but without passing on the judge’s rationale. In my
view, the Respondent’s refusal to furnish Lynch’s inter-
view notes was lawful for a much simpler reason: the
Union did not request them. As noted above, the Union
requested “[a]ny and all documentation that [the Re-
spondent] used or considered . . . concerning the [Silas
and Claw discharge] grievances, including any and all
notes taken that were used in determining the termina-
tions at issue” (emphasis added), and Fitzgerald con-
firmed that the purpose of the request was to obtain what
the Respondent’s decision-makers had in front of them
when they decided to discharge Silas and Claw. The
decision-maker was Zersen, and perhaps also Ortiz, and
neither of them saw Lynch’s interview notes before de-
ciding to terminate Silas and Claw. Zersen credibly testi-
fied that he did not review any notes before making his
decision,3 and Lynch sent Ortiz the discharge recom-
mendation memos, not her interview notes. As a result,
neither Zersen nor Ortiz “used” or “considered” Lynch’s
interview notes. Thus, as the Respondent argues, the
notes were not within any fair reading of the Union’s
information request and need not have been produced.
See, e.g., PRC Recording Co., 280 NLRB 615, 644–645
(1986) (employer did not violate Section 8(a)(5) by not
furnishing information that union never demanded), enfd.
sub nom. Richmond Recording Corp. v. NLRB, 836 F.2d
289 (7th Cir. 1987).
C. Request for the Larkin Contract. The judge found
that the Respondent did not violate Section 8(a)(5) of the
Act when it refused to furnish the Union a copy of the
contract between itself and a contractor that supplies the
Respondent with supplemental employees. My col-
leagues reverse. I would affirm the judge’s dismissal of
this allegation.

3 My colleagues uphold the judge’s credibility determinations, yet
they find that Zersen reviewed Lynch’s notes.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The parties’ collective-bargaining agreement allows
the Respondent to use “supplemental employees” and
“contractor employees.” Supplemental employees are
supervised by the Respondent; contractor employees are
supervised by third-party contractors. The collective-
bargaining agreement does not restrict the Respondent’s
right to use contractor employees. However, the agree-
ment specifies that any supplemental employee may not
be employed for more than 4 months at a time and that
supplemental employees’ wages must comport with
those of bargaining-unit employees.
Larkin Enterprises, Inc. (Larkin) provided supple-
mental employees to the Respondent, including supple-
mental employee Gerald Powell. In 2009, the Union
filed a grievance alleging that the Respondent had used
Powell for more than 4 months. The Union requested
Powell’s payroll records and a copy of the Respondent’s
service contract with Larkin. The Respondent gave the
Union all of Powell’s wage and hour records, but it re-
fused to furnish a copy of the Larkin contract, explaining
that the contract contained confidential and proprietary
information that was not relevant to the pending griev-
ance. The Respondent also told the Union that it would
strive to answer any “specific and relevant question re-
lated to the terms and conditions in” the Larkin contract.
The General Counsel concedes that the Larkin contract
is not presumptively relevant to the Union’s duties as the
unit employees’ representative. See, e.g., Sunrise Health
& Rehabilitation Center, 332 NLRB 1304, 1305 & fn. 1
(2000) (noting that subcontracting information is not
presumptively relevant). The Union, therefore, has the
burden of establishing the contract’s relevance to the
Union’s representative function. See, e.g., Disneyland
Park, 350 NLRB 1256, 1257–1259 (2007) (finding no
Section 8(a)(5) violation where union failed to show that
subcontracting information was relevant to contract-
breach grievance); Connecticut Yankee Atomic Power
Co., 317 NLRB 1266, 1267–1268 (1995) (union failed to
establish relevance of information about contractor that
supplied temporary employees). As the judge noted, the
Union must show a “logical foundation and a factual
basis” for its information request. See, e.g., Postal Ser-
vice, 310 NLRB 391, 392 (1993).4 Contrary to the ma-

4 In addition, I would require the factual basis of the request to be
disclosed to the employer at the time of the request, unless that basis is
readily apparent from the surrounding circumstances. See, e.g., Bud
Antle, Inc., 361 NLRB No. 87, slip op. at 2 (2014) (Member Miscimar-
ra, concurring) (citing Hertz Corp. v. NLRB, 105 F.3d 868 (3d Cir.
1997)). Here, however, the Union never furnished a factual basis for
requesting the Larkin contract. I disagree with my colleagues that the
basis of the request was apparent from the grievance itself, given the
irrelevance of the Larkin contract to the allegation in the grievance.
jority, I agree with the judge’s finding that the Union
failed to meet its relevance burden.
My colleagues find that the Larkin contract is relevant
to the Union’s representative function on the basis that it
might shed light on whether the Respondent’s use of
Powell allegedly for more than 4 months was intentional
or inadvertent. But the Respondent’s intent is irrelevant
to the merits of the Union’s grievance regarding Powell.
Motive is not an element of a grievance alleging a breach
of contract. See, e.g., Tuf Racing Products, Inc. v. Amer-
ican Suzuki Motor Corp., 223 F.3d 585, 589 (7th Cir.
2000) (motive irrelevant to contract issue); Weitz Co.
LLC v. MacKenzie House, LLC, 665 F.3d 970, 975 (8th
Cir. 2012) (upholding trial court’s exclusion of motive
and intent evidence in breach of contract case); Unit
Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186,
1194 (10th Cir. 1997) (same). The parties’ collective-
bargaining agreement does not permit or proscribe the
use of supplemental employees depending on whether
their use is intentional or inadvertent. It simply pro-
scribes their use for more than 4 months. Powell’s pay-
roll records showed how long he had been employed at
the Respondent’s facility. By providing the Union with
Powell’s payroll records, the Respondent disclosed all
the information that might have been relevant to the
Powell grievance. The Larkin contract was irrelevant,
and the Respondent lawfully refused to furnish it.5
D. Request for Reasons Specific Employees Were In-
cluded on the Cyber-Security List. I would affirm the
judge’s finding that the Respondent did not violate Sec-
tion 8(a)(5) of the Act when it refused to explain to the
Union its reasons for placing certain employees on its
cyber-security list.
As an electric utility, the Respondent is regulated by
the Federal Energy Regulatory Commission (FERC).
The FERC has established Critical Infrastructure Protec-
tion (CIP) standards to safeguard the nation’s power grid
from terrorist attack. One such standard requires that
FERC-regulated utilities develop a personal risk assess-
ment (PRA) program to prevent persons who pose secu-
rity risks from having unescorted access to the utility’s
sensitive cyber facilities. Clearly, this is a matter of
grave importance, and employees covered by the PRA
program must undergo a 7-year criminal background
check.

5 My colleagues reason that the Union might have dropped the
grievance if the Respondent’s alleged use of Powell for more than 4
months (which was never established) had been unintentional, and the
terms of the Larkin contract might have shed light on that question.
There is no evidence, however, that the Union stated this purpose to the
Respondent when it made the request. And in any event, as discussed
above, the Respondent’s intent was irrelevant to the merits of the griev-
ance.
PUBLIC SERVICE COMPANY OF NEW MEXICO 15
During negotiations for a collective-bargaining agree-
ment, the Respondent and the Union were unable to
agree on changes to the Respondent’s FERC-mandated
PRA program, but they did agree to submit those issues
to interest arbitration. The arbitrator formulated a cyber-
security policy that included broadly worded guidelines
for determining which employees should be covered by
the PRA program. Specifically, the arbitrator ruled that
covered employees must have a “reasonable connection
to cyber security,” meaning that their duties entail “more
than isolated instances” of “unescorted access to cyber
assets.” Critically for deciding the issue presented here,
the arbitrator entrusted the determination of which em-
ployees have the necessary “reasonable connection to
cyber security” and therefore must undergo a PRA to the
Respondent’s sole discretion.
As a separate matter, the arbitrator recognized that if
an employee fails a PRA, the employee could be demot-
ed or terminated as a result. The arbitrator ruled that any
adverse employment action resulting from a PRA would
be subject to the grievance-arbitration procedures in the
collective-bargaining agreement.
In February 2010, the Respondent informed the Union
that it was about to implement the cyber-security policy.
The Union responded by requesting the names of all em-
ployees required to undergo a PRA and “a statement . . .
as to why each employee has a reasonable connection to
Cyber Security.” The Respondent furnished the names
of PRA-covered employees, but it did not explain its
PRA coverage determinations other than to say that
“these determinations were made in accordance with the
provisions of the arbitration award.” After the Union
continued to demand the Respondent’s reasons for in-
cluding each specific employee on the cyber-security list,
the Respondent reminded the Union that the arbitrator’s
decision “gives management the discretion to determine
what classifications of employees are subject to the
Cyber Security policy.”
The judge concluded that the Respondent was not
obliged to give the Union information justifying its PRA-
coverage decisions because the interest arbitrator’s award
(which was, in effect, part of the labor contract) left those
decisions to the Respondent’s discretion. I agree. Alt-
hough the award gave the Union the right to grieve de-
motions and terminations resulting from adverse PRA
adjudications, it did not give the Union the right to chal-
lenge the Respondent’s decisions regarding who must
undergo a PRA. The arbitrator held that the latter deci-
sions are within the Respondent’s sole discretion. The
word discretion means “the right to choose what should
be done in a particular situation.”6 Accordingly, the Re-
spondent had the sole right to choose whom to include on
the cyber-security list, and it did not violate Section
8(a)(5) by refusing to explain to the Union why specific
employees were included on the list.
In finding to the contrary, the majority relies on the
Union’s right to grieve demotions and terminations that
result from adverse PRA adjudications. I believe my
colleagues’ rationale conflates two separate decisions:
whether a particular employee must undergo a PRA, and
whether an employee selected to undergo a PRA has
passed or failed the PRA. The Union’s grievance rights
pertain to the latter, not the former. Once an employee
has undergone a PRA, has failed, and has been demoted
or terminated as a result, the Union may grieve the de-
motion or termination. It may be that in connection with
such a grievance, the Union would be entitled to know
why the Respondent decided the employee presented an
unacceptable security risk. But that is not the issue pre-
sented here. The Union wanted the Respondent to ex-
plain why it decided to select specific employees to un-
dergo a PRA. Those decisions are within the Respond-
ent’s sole discretion and are not arbitrable under the
terms of the interest arbitrator’s decision. Accordingly,
the Respondent had no duty to disclose that information.
See, e.g., Ethicon, A Johnson & Johnson Co., 360 NLRB
No. 104, slip op. at 5–7 (2014) (finding no violation
where employer declined to provide information about
contract right that was not arbitrable).
E. Request for Information Relating to Cox Investiga-
tion. Finally, I dissent from the majority’s finding that
the Respondent violated Section 8(a)(5) of the Act when
it declined to disclose information requested by the Un-
ion in connection with the Respondent’s investigation of
misconduct committed by employee and union steward
Eric Cox. Cox was undeniably guilty of misconduct dur-
ing an important employee training session, including
repeatedly interrupting the managers who were conduct-
ing the training, adopting a posture of physical intimida-
tion toward one of those managers, and insubordinately
refusing to leave the meeting. Cox admitted during his
testimony that his behavior prevented the managers from
conducting the training session. At a certain point, Un-
ion Business Agent Ed Tafoya arrived on the scene, and
after being apprised of the situation, Tafoya walked into
the meeting and told the employees that the meeting was
ending and they needed to leave. Management then told
Tafoya to leave, he refused, and Cox joined Tafoya, stat-
ing, “You can’t make us leave, and we’re staying.” After

6 http://www.merriam-webster.com/dictionary/discretion (last visited
July 4, 2016).
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
investigating the incident, the Respondent chose to act
with restraint and decided not to discipline Cox.7
On May 5, while the investigation was still ongoing,
the Union requested (i) the names of everyone inter-
viewed in the investigation of Cox’s misconduct, (ii) the
allegations on which the investigation was based,8 (iii)
the names of employees who made those allegations, (iv)
the interview notes for all employees interviewed, and
(v) the investigation report. On May 18, the Respondent
informed the Union that it had decided not to discipline
Cox, and for that reason it was denying the May 5 infor-
mation request on relevancy grounds. On May 19, the
Union filed an unfair labor practice charge alleging that
the denial of its May 5 request violated Section 8(a)(5).
On May 20, the Union renewed the information request.
The Respondent again denied the request on relevancy
grounds, adding that the request was also inappropriate
in light of the Union’s unfair labor practice charge.
The judge dismissed all allegations regarding the Re-
spondent’s denial of these requests. As to the first and
third requests—for the names of employees interviewed
and of those who made the allegations against Cox—the
judge found that the potential for harassment of or retali-
ation against those employees outweighed the Union’s
need for the information. I agree. Cox was not disci-
plined, so the Union’s need for the information was min-
imal at best and arguably nonexistent. Conversely, the
judge’s concern regarding the potential for harassment or
retaliation was reasonable. The uncontested evidence
established that Cox, a union steward who may have had
access to the information had it been turned over, was
aggressive, belligerent, and physically intimidating. The
evidence also establishes that Tafoya, who certainly
would have had access to the information, sided with
Cox, backing Cox’s goal of disrupting the training ses-
sion and joining Cox in defiant opposition to the manag-
ers conducting the session. Our law has long recognized
that there are circumstances in which witness names
should not be disclosed. See, e.g., Metropolitan Edison
Co., 330 NLRB 107, 107–108 (1999); Pennsylvania
Power, 301 NLRB 1104, 1105–1107 (1991). Contrary to

7 The General Counsel alleged that the Respondent violated Sec.
8(a)(3) by investigating Cox’s misconduct during the training session.
I agree with my colleagues, for the reasons they state, that the investi-
gation was not unlawful. Thus, I agree with Member Hirozawa that a
mere investigation of employee misconduct, absent any resulting ad-
verse employment action, does not violate Sec. 8(a)(3). Alternatively,
even assuming an investigation without more may violate the Act, I
agree with Chairman Pearce that the misconduct that was under inves-
tigation lost Cox the protection of the Act.
8 The judge did not rule on the Union’s request for the allegations
that were being investigated (the second request). My colleagues do
not address this request, and neither will I. What Cox had done to
warrant investigation, of course, was all too apparent.
my colleagues, I would not second-guess the judge’s
prudent determination that this is such a case, especially
considering that the Union’s need for those names was
marginal at best.
As to the fourth and fifth requests—for interview notes
and the investigation report—the judge found that the
requested materials were protected from disclosure as
attorney work product. My colleagues reject the judge’s
finding. I find it unnecessary to reach or pass on it. In
my view, the Respondent’s denial of these requests and
indeed of all the information requests related to the Cox
investigation was lawful on two grounds. First, the Un-
ion’s May 5 request was premature. It was made while
the investigation was still ongoing and no decision had
yet been made whether to discipline Cox for his miscon-
duct—and as it happened, no discipline was imposed.
See General Electric Co. v. NLRB, 916 F.2d 1163, 1170–
1171 (7th Cir. 1990) (employer did not violate Section
8(a)(5) by declining to provide information union re-
quested prematurely); Tri-State Generation & Transmis-
sion Assn., 332 NLRB 910, 911 (2000) (same). Second,
the Union’s May 20 request was tendered after the Union
filed an unfair labor practice charge alleging that the Re-
spondent had violated Section 8(a)(5) by its May 18 re-
fusal to furnish the information. Accordingly, that re-
quest was an inappropriate attempt at discovery in what
was now a Board matter. See, e.g., WXON-TV, 289
NLRB 615, 617–618 (1988) (where union filed charge
one day after requesting information, Board dismissed
allegation that employer unlawfully refused to furnish
requested information on the basis that request “was akin
to a discovery device pertinent to [the union’s] pursuit of
the unfair labor practice charge rather than to its duties as
collective-bargaining representative”), enfd. mem. per
curiam 876 F.2d 105 (6th Cir. 1989); General Electric
Co., 163 NLRB 198, 210 (1967) (“[I]f the General Coun-
sel proceeded on the Union’s charge, the upholding of
the Union’s request for information would require the
disclosure of evidence concerning Respondent’s defenses
which the General Counsel himself would have been
legally unable to procure except as adduced at the hear-
ing on his complaint. In that situation the Union would
obviously have no better standing than the General
Counsel to require disclosure of Respondent’s evi-
dence.”), enf. denied in part on other grounds 400 F.2d
713 (5th Cir. 1968). On these additional bases, I would
affirm the judge’s dismissal of this allegation.
CONCLUSION
As to most of the issues in this case, I join my col-
leagues. As to the issues discussed above, however, I
respectfully dissent.
PUBLIC SERVICE COMPANY OF NEW MEXICO 17
Dated, Washington, D.C. August 22, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with Inter-
national Brotherhood of Electrical Workers, Local Union
No. 611, AFL–CIO (the Union) by failing and refusing
to furnish it with requested information that is relevant
and necessary to the Union’s performance of its func-
tions as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
All employees of the Respondent’s Electric, Water,
Transmission, Distribution, Production, Meter Reader,
and Collector departments in the divisions and jobs ref-
erenced in the Respondent’s collective-bargaining
agreement with the Union effective by its terms from
May 1, 2009, through April 30, 2012.
WE WILL NOT fail and refuse to respond in a timely
manner to information requests made by the Union.
WE WILL NOT unilaterally change the terms and condi-
tions of employment of the employees in the above unit.
WE WILL NOT confiscate union literature from the bul-
letin boards.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL provide the Union with the following infor-
mation it previously requested: (1) all asbestos accident
investigations since 2007; (2) all information related to
the grievance involving the Respondent’s use of Tom
Archuleta, an employee of contractor ESSI, Inc.; (3) all
information regarding the “other duties” besides meter
reader and collector work performed by nonunit employ-
ees; (4) the Respondent’s contract with Larkin Enterpris-
es, Inc.; (5) the unredacted copies of the discharge rec-
ommendation memoranda and the interview notes as
related to employees Everand Silas and Guy Claw; (6) a
copy of its clean-shaven policy or if there is none, a
statement stating that such policy does not exist; (7) all
information requested related to the Respondent’s inclu-
sion of employees on the cyber-security list; and (8) all
information requested related to the disciplinary investi-
gation of union steward Eric Cox.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the bargaining unit.
WE WILL rescind the change to the policy for the ac-
cess of union agents to our Electric Service Center facili-
ty in Albuquerque, New Mexico, that was unilaterally
implemented in January 2009, and WE WILL restore the
union agents’ access rights to the our Electric Service
Center facility in Albuquerque, New Mexico, to that
which existed from January until August 2009, or in the
event the we have generally altered our access proce-
dures, provide the union agents with a form of access
substantially equivalent to that which existed between
January and August 2009.
WE WILL rescind the clean-shaven policy that was uni-
laterally implemented on July 31, 2009.
PUBLIC SERVICE COMPANY OF NEW MEXICO
The Board’s decision can be found at
www.nlrb.gov/case/28–CA–022655 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Liza Walker-McBride, Atty., for the Acting General Counsel
with the brief by David T. Garza, Atty.
Jeffrey L. Lowry and Thomas L. Stahl, Attys. (Rodey, Dickason,
Sloan, Akin & Robb, P.A.), of Albuquerque, New Mexico,
for the Respondent.
John L. Hollis, Atty. (Law Offices of John L. Hollis), of Albu-
querque, New Mexico, for Local 611.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. I heard
this consolidated proceeding over the course of 8 days between
August 31 and November 5, 2010, at Albuquerque, New Mexi-
co. Together the separate complaints issued by the Regional
Director for Region 28 allege, on the basis of charges filed by
the International Brotherhood of Electrical Workers, Local
Union No. 611, AFL–CIO (the Charging Party, the Union,
Local 611), that Public Service Company of New Mexico (Re-
spondent, the Company, PNM) engaged in numerous violations
of Section 8(a)(1), (3), and (5) of the National Labor Relations
Act (the Act). Respondent’s timely answers deny that it en-
gaged in the unfair labor practices alleged. On the entire rec-
ord, including my observation of the demeanor of the witness-
es, and after considering the briefs filed by the Acting General
Counsel, PNM, and Local 611, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Mexico corporation, with a principal of-
fice and place of business in Albuquerque, New Mexico, has
been engaged in the purchase, production, transmission, and
retail sale of electricity. During the 12-month period ending
May 19, 2010, Respondent derived gross revenues in excess of
$500,000 from its primary business operations. During the
same 12-month period Respondent purchased and received at
its various facilities in the State of New Mexico, goods valued
in excess of $50,000 directly from locations outside the State of
New Mexico. Accordingly, I find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that it would effectuate the
purposes of the Act for the Board to exercise its statutory juris-
diction to decide this labor dispute.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Charges and the Pleadings
All of the complaints allege that Local 611 is the exclusive
bargaining representative of the employees in the following
unit (unit):
All employees of the Respondent’s Electric, Water, Transmis-
sion, Distribution, Production, Meter Reader, and Collector
departments in the divisions and jobs referenced in Respond-
ent’s collective-bargaining agreement with the Union effec-
tive by its terms from May 1, 2009, through April 30, 2012.
PNM admits Local 611 is a 2(5) labor organization that it has
recognized as the exclusive representative certain employees
covered by a series of bargaining agreements, including the
agreement effective from May 2009 through April 30, 2012.
The amended consolidated complaint in Cases 28–CA–
22655 and 28–CA–22759 is based on charges filed by Local
611 on August 26 and October 29, 2009, respectively. This
complaint, issued on March 24, 2010, alleges that PNM violat-
ed Section 8(a)(1) and (5) of the Act by failing or refusing to
provide Local 611 with all or most of the information sought in
nine separate requests made between March 31 and October 1,
2009. It also alleges that PNM violated the same statutory
provisions by unilaterally changing six separate terms and con-
ditions of employment affecting the unit employees.
The complaint in Case 28–CA–22997, issued on June 30,
2010, is based on a charge filed by Local 611 on April 12,
2010. As amended at the hearing, it alleges that PNM violated
Section 8(a)(1) and (5) by failing or refusing to provide Local
611 with the information sought in two additional requests it
made on February 12 and March 26, 2010.
Local 611 filed the charge in Case 28–CA–23046 on May
19, 2010, and the Regional Director issued a complaint in that
case on July 30. It alleges that PNM violated Section 8(a)(1)
by the conduct of a supervisor who removed union-prepared
Weingarten forms from bulletin board at its Electric Service
Center (ESC) on Edith Boulevard in Albuquerque and informed
employees that the forms had been removed because they in-
duced employees to refuse to cooperate with workplace inves-
tigations. This complaint also alleges that PNM violated Sec-
tion 8(a)(1) and (3) by removing a union steward from an em-
ployee training meeting and by subsequently conducting a dis-
ciplinary investigation concerning the steward’s conduct. Fi-
nally, this complaint alleges that PNM violated Section 8(a)(1)
and (5) by failing or refusing to provide Local 611 with the
information it requested about that investigation.
B. The Independent 8(a)(1) Allegations
Paragraph 5(a) of the complaint in Case 28–CA–23046 al-
leges, in effect, that sometime in April 2010 Supervisor Dale
Smyth confiscated Weingarten notice forms from the Union’s
bulletin boards at PNM’s ESC facility in Albuquerque. Para-
graph 5(b) alleges that Smyth told employees he had removed
the Weingarten because they obstructed PNM’s workplace
investigations by inducing a lack of cooperation by employees.1
1. Relevant facts
The foremen’s office at the ESC in Albuquerque has four
desks and serves as a location where 16 or so employees per-
form their paperwork. PNM management posts a variety of
work-related notices (bargaining proposals, bargaining progress
reports, overtime rosters, crew assignments, safety information,
and tool information), a bulletin board located in the foremen’s
office. Employees also post personal notices on that board.
In mid-April 2010, Union Steward Eric Cox posted one or
more copies of a Weingarten form2 prepared by Local 611 As-

1 No evidence was adduced to support the par. 5(b) allegation, and
neither the Acting General Counsel nor Local 611 alluded to it in their
briefs. For this reason, I recommend dismissal of this allegation with-
out further consideration.
2 Tafoya sent copies of the form (Jt. Exh. 68) to all 20 of the Electric
Services Business unit stewards statewide for distribution by them.
The form read as follows:
PUBLIC SERVICE COMPANY OF NEW MEXICO 19
sistant Business Manager Edward Tafoya on the foremen’s
office bulletin board and six other bulletin boards around the
ESC facility. (Tr. 791–792, 832.) Cox also put copies of the
form in the mailboxes of the unit employees that are also locat-
ed in the foremen’s office. Either he or someone else put some
of the forms on a couple of the desks in the foremen’s office.
Supervisor Mark Martinez, who characterized the forms as
“amnesty forms,” saw Cox distributing them in the mailboxes.
He asked for, and received a copy from Cox but made no at-
tempt to interfere with the distribution.
Before the shift started the following morning, Roger
Kinkaid, an ESC working foreman, observed his supervisor,
Dale Smyth, “rip” at least one copy of the Weingarten form
from the bulletin board in the foremen’s office, throw it in the
waste can, and walk back out without saying a word to either
himself, or Richard Reese, another ESC working foreman pre-
sent at the time. (Tr. 782–784.) Later that morning, Kindaid
told Cox about the episode. Cox confirmed that a form was
missing from the bulletin board and reported the matter to
Tafoya.
The next day Tafoya visited the ESC on another matter.
While there, he met with Cox and, together, they decided to
speak with Smyth about removing the form. On their way to
Smyth’s office they met and questioned Line Department Man-
ager Jeff Nawman, Smyth’s immediate supervisor, about the
removal of the form. Nawman professed to know nothing
about the episode but accompanied the two union agents on to
Smyth’s office. Once there, Tafoya confronted Smyth about
removing the form and questioned his authority to do so.
Smyth became irritated by the inquiry but admitted that he
removed the form and said that Metro Operations Director Kirk
Moser told him to do it. With that Smyth walked away from
Tafoya and the others, saying he did not have time for this
“shit.”3 Cox reposted the missing copy of the form that after-
noon. Since then there have been no known attempts by the

The Company has asked me to participate in an interview. I request
that I be represented by my Steward _____________________. I will
waive my right to have a steward present if the Company will
acknowledge that nothing I say or do in this interview will be used to
discipline me in any manner. The Company will acknowledge this by
the signing of this document.
____________________________________ ________________
Employee Date
____________________________________ ________________
For PNM Datte
If the Company representative is unwilling to sign this I will have
cause to believe that I may be subject to discipline. Therefore I request
that my Union Steward or Representative be present to assist me at
this meeting. I further request reasonable time to consult with my Un-
ion Representative regarding the subject and purpose of this meeting.
Please consider this a continuing request and without representation, I
shall not willingly participate in the discussion.
____________________________________ ________________
Name Date
3 Although Smyth testified about another matter, he provided no tes-
timony about this subject. Moser did not testify.
managers or supervisors to remove copies of the form; they
remained available on the ESC bulletin boards at the time of the
hearing.
2. Argument and conclusions
The Acting General Counsel and Local 611 argue that by
trashing the Weingarten form in the presence of two employees,
Smyth violated Section 8(a)(1).4 PNM, which disputes
Tafoya’s characterization of the foremen’s office bulletin board
as a dedicated union board, asserts that the form Tafoya au-
thored “misrepresents Weingarten rights and improperly en-
courages employees to obstruct Company investigations.” It
also contends this single action lacks any coercive quality
where the form was widely distributed at the ESC and other
facilities throughout the State, and even the discarded form was
quickly replaced.
Although two employees observed Smyth remove Tafoya’s
form, I find his conduct lacked any coercive character. PNM
and Local 611 have a mature bargaining relationship spanning
decades. The wide distribution of the form, the lack of other
similar incidents, or any accompanying statements by Smyth to
the two employees all weigh in favor of a conclusion that the
incident was not coercive. This conclusion is reinforced by the
inference suggested by Kinkaid’s puzzlement at the need to
describe the incident while testifying because he had other cop-
ies of the form in front of him on his desk at that very time.
The more reasonable conclusion from the evidence amounts to
little more than the fact that Smyth carried out a superior’s
instruction to get a copy of the publicly posted form for review
by management.
Furthermore, the cases cited in the Acting General Counsel’s
brief—Publix Super Markets, 347 NLRB 1434, 1435 (2006);
Heartland of Lansing Nursing Home, 307 NLRB 152, 160
(1992); and Jennings & Webb, Inc., 288 NLRB 682, 690–692
(1988)—are factually distinguishable. These cases involve
either a disparate application of employer bulletin board rules
or a clean sweep removal of all union materials. They simply
do not support the arguments of the Acting General Counsel
and Local 611 that mere observation by two employees of
Smyth removing a form amounts to coercion as that term is
used in Section 8(a)(1). Accordingly, I recommend dismissal
of this allegation.
C. The 8(a)(3) Discrimination Allegations
Paragraphs 6(a) and (b) of the complaint in Case 28–CA–
23046 allege that PNM violated Section 8(a)(3) on April 21,
2010, when Nawman and Supervisor Smyth removed Union
Steward Eric Cox from a management-employee meeting, and

4 Sec. 8(a)(1) provides that it is an unfair labor practice for an em-
ployer to “interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7.” As relevant here, Sec. 7 provides
that employees have the right “to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, and shall also have the right to refrain from any or all such activi-
ties.”
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by PNM’s subsequent disciplinary investigation of Cox’s con-
duct at the meeting.
1. Relevant facts
Sometime in late 2009 or early 2010, PNM purchased an au-
tomated call-out system called TeleStaff for use in assembling
repair crews after normal work hours. Although PNM previ-
ously used an automated call system, TeleStaff contained added
features, including one that permitted the linemen to report that
they were on sick leave, vacation, or the like without calling a
dispatcher or their supervisor. When the lineman did so, Te-
leStaff automatically removed the employee from the pool of
available linemen for after-hours work.
Overall responsibility for implementing the TeleStaff system
rested with Line Department Manager Nawman, the person in
charge of the department where it was to be used. His subordi-
nates, Distribution Operations Manager Mary Ann Brandon and
Craft Supervisor Smyth, served on the management team re-
sponsible for implementing TeleStaff and training employees
on its use. Brandon and Smyth scheduled a training meeting
for April 21 with roughly 13 linemen for the purpose of ex-
plaining, demonstrating, and testing the system. After the
hands-on phase of this meeting, they planned to obtain employ-
ee feedback so they could make adjustments prior to rolling out
the new system for general use.
Well before Brandon and Smyth scheduled the April 21 ses-
sion, Nawman asked Local 611 steward Eric Cox on a couple
of occasions about objections Local 611 might have to conduct-
ing a training/feedback session with some of the linemen. After
hearing nothing from Cox, Nawman decided to proceed with
the initial TeleStaff information session.
Local 611 obviously had suspicions and reservations about
the implementation of the TeleStaff system early on. Nine days
before the April 21 meeting, Local 611 filed an unfair labor
practice charge (Case 28–CA–22997) alleging, among numer-
ous other matters, that PNM “unilaterally changed . . . (the)
call-in requirements to call in for personal leave and vacation.”5
(GC Exh. 1(v).)
Craft Supervisor Smyth arranged the April 21 session for the
Sandia Room, a conference room at the ESC and invited the
specific linemen who ultimately attended. As the immediate
supervisor of the dispatchers responsible for dispatching the
proper workers for outages and service calls statewide, Bran-
don’s lead role at this meeting was to explain and guide the
linemen through the use of the system. Smyth’s role, it soon
turned out, largely became that of attempting to maintain rudi-
mentary decorum, a task at which he clearly failed though no
fault of his own.
Sometime prior to the meeting, Nawman instructed Craft
Supervisor Mark Martinez, Union Steward Cox’s immediate
supervisor, to release Cox from his standard work assignment
so he could attend the TeleStaff meeting in his capacity as the
Local 611 steward. Eric Cox has served as a union steward at

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

6 Sec. 8(a)(3) provides that employer “discrimination [against em-
ployees] in regard to hire or tenure of employment or any term or con-
dition of employment to encourage or discourage membership in any
labor organization” constitutes an unfair labor practice.
7 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
framework for the resolution of this issue. Applying Burnip &
Sims here, PNM plainly established that it had reasonable cause
to believe that Cox engaged in misconduct at the April 21 meet-
ing. That being so, under Burnip & Sims the burden shifted to
the Acting General Counsel to show that, in fact, no unprotect-
ed conduct occurred. He failed to satisfy that burden.
The Board considers the following four factors when called
upon to determine whether an employee’s conduct became so
egregious as to lose the Act’s protection: (1) the place of the
discussion; (2) the subject matter of the discussion; (3) the na-
ture of the employee’s conduct; and (4) whether the conduct
was provoked by the employer’s unfair labor practices. Atlan-
tic Steel Co., 245 NLRB 814, 816 (1979). Applying the Atlan-
tic Steel tests here, I have concluded that Cox’s conduct at the
TeleStaff meeting was not protected by the Act and, for that
reason, the investigation by PNM’s in-house labor and em-
ployment counsel was lawful.
1. The place of the discussion. This factor weighs against
protection of the conduct by Cox and Tafoya in disrupting and
constructively terminating the April 21 meeting. This discus-
sion occurred in a company conference room with several em-
ployees and their immediate supervisor present for what had
been planned essentially as an introductory training session
conducted by Brandon. The employees in attendance were on
paid time and were in attendance as a part of their regular work
duties. Although Cox too was a part of the same group and was
on paid time, he was not in attendance at this meeting in his
capacity as an employee but instead he had been released from
his regular duties by his supervisor in order to attend the meet-
ing in his capacity as a union steward serving the affected
group.
2. The subject matter of the meeting. This factor weighs
against protection of the Act. The TeleStaff meeting was de-
signed to provide preimplementation instructions about a new
automated call-out system and to obtain feedback from the
affected employees for Brandon’s use in implementing the
system. The conduct by Cox and Tafoya interfered with the
progress of this ordinary work meeting and eventually caused
its termination.
Early on, Brandon assured the employees in attendance that
PNM’s new call-out system would not alter the contractual call-
out rules. But that aside, neither Brandon nor Smyth had au-
thority to engage Cox, Tafoya, or any of the employees present
about any potential labor relations implications arising from the
new system. Hence, the meeting clearly was not for the pur-
pose of carrying on a joint labor-management consultation,
addressing a grievance, or engaging in bargaining over the
subject involved. No managers or labor relations officials were
present who possessed authority to definitively address the
issues about which Cox demanded answers and even written
assurances.
The inference that the purpose of the meeting was self-
evident to all who attended is unavoidable. Brandon, the prin-
cipal provider of the technical information central to the meet-
ing, was not shown to have the slightest involvement or con-
nection with establishing, implementing, or administering
PNM’s labor relations policies. The place, the participants, and
the subject matter of the meeting all serve to establish that the
PUBLIC SERVICE COMPANY OF NEW MEXICO 23
meeting was obviously designed only as an introductory train-
ing/feedback session for the employees in attendance. The
questions about layoffs that arose at the meeting pertained to
the dispatchers who were not present rather than the linemen
who were present. The labor relations issues that Cox pressed
and that dominated the meeting until Smyth sough to exclude
him had virtually nothing to do directly with the original, work-
related purpose of the meeting. This difference is highly signif-
icant. See, e.g., Postal Service, 268 NLRB 274, 275 (1983)
(“[I]n the administration and resolution of grievances under the
collective-bargaining agreement, because of the nature of these
endeavors, tempers of all parties flare and comments and accu-
sations are made which would not be acceptable on the plant
floor.” (Emphasis added.) This confrontation initiated by Cox
and continued by Tafoya occurred in a plant floor context, not a
bargaining table context.
3. The nature of Cox’s conduct. This factor weighs strong-
ly against protection of the conduct by Cox and Tafoya in dis-
rupting and effectively terminating the April 21 TeleStaff meet-
ing. From the outset of the meeting Cox protested that the im-
plementation of the TeleStaff system should have been negoti-
ated with the Local 611. Later in the meeting, he openly made
a baseless accusation that Brandon and Smyth were trying to
negotiate directly with employees. Despite the fact that Smyth
told Cox that he would answer his questions at the end of the
meeting, Cox repeatedly interrupted questions by the other
attendees demanding that his questions be answered first.
Cox admittedly sought to disrupt this meeting using this tac-
tic. In the limited periods when he did not interrupt directly,
Cox he stood in the back of the room uttering snide, derogatory,
and audible comments concerning the meeting. He insisted that
Brandon “guarantee” that implementation of the TeleStaff sys-
tem would not result in the layoff of any dispatcher employee.
This persistent demand soon became an equally persistent de-
mand that Brandon sign a written guarantee to that effect.
I find Cox’s insistent behavior on this subject, coupled with
his menacing tone and gestures toward Brandon because of her
reaction of dismay at his behavior, completely out of place in
this particular situation. Cox’s subsequent effort to bully and
belittle Smyth when this supervisor sought to answer questions
posed by other employees was likewise inappropriate and out
of place in this setting. After his conduct finally provoked
Smyth to eject Cox from the meeting, Cox became belligerent
and insubordinate. After his arrival, Tafoya reinforced Cox’s
behavior by ignoring Smyth’s directions and demanding that
the meeting stop immediately. Finally, this blatant interference
compelled Nawman to call the meeting off.
4. Provocation by Respondent. This final factor also
weighs against the protection or, at best, it is neutral. The evi-
dence merits the inference that Local 611 did not prevail on the
8(a)(5) unfair labor practice charge that PNM unilaterally im-
plemented the TeleStaff call-out system. Similarly, no evi-
dence establishes that Local 611 ever filed a grievance relating
to the implementation of the TeleStaff system.
In my judgment, the out-of-control conduct by Cox and
Tafoya that prevented the PNM officials from conducting an
orderly, legitimate business meeting with its employees sub-
stantially exceeds the disruptive employee actions the Board
found unprotected in Carrier Corp., 331 NLRB 126 fn. 1
(2000). This is especially true where, as here, Local 611 repre-
sentatives were contractually bound to perform their representa-
tional duties with “minimum interference” to PNM’s opera-
tions.
The claim that Smyth lacked authority to bar Cox, or Tafoya
for that matter, from the meeting because of their disruptive
behavior is specious. Contrary to Cox’s claim, Supervisor Mar-
tinez did not “assign” him to attend the meeting at all. Instead,
Martinez released Cox from his regular duties so he would be at
liberty to attend the TeleStaff meeting in his capacity as the
Local 611 steward. Hence, he was there in his representative
capacity rather than as an employee engaged in work duties.
When Cox abused the negotiated accommodation to perform
representational duties on worktime by becoming disruptive
and abusive, Smyth had a lawful right to eject him the ordinary
workplace meeting that took place.
As I have concluded that PNM did not violate the Act by its
investigation of Cox’s conduct at the April 21 TeleStaff meet-
ing, I recommend dismissal of this allegation.
D. The 8(a)(5) Allegations
The three complaints contain numerous allegations that PNM
violated Section 8(a)(5) of the Act.8 There are two varieties of
refusal-to-bargain allegations. Considered first are those alle-
gations that PNM failed and refused to provide information
Local 611 requested and to which it was entitled as the bargain-
ing representative. Considered thereafter will be the allegation
that PNM unilaterally changed the terms and conditions of
employment of its represented employees.
1. The information allegations
In a nutshell, the law obliges an employer to provide a union
with information that is relevant to its carrying out its statutory
duties and responsibilities in representing employees. NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967). This duty to provide
information includes information relevant to contract admin-
istration and negotiations. Barnard Engineering Co., 282
NLRB 617, 619 (1987); and Leland Stanford Junior University,
262 NLRB 136, 139 (1982), enfd. 715 F.2d 473 (9th Cir. 1983).
The Board applies a broad, discovery-type standard in deter-
mining the relevance of requested information even where a
union must demonstrate relevance. Shoppers Food Warehouse,
315 NLRB 258, 259 (1994).
The law deems information that pertains directly to the wag-
es, hours, and other terms and conditions of employment for
unit employees as presumptively relevant and requires its dis-
closure to the bargaining agent upon request. Curtiss-Wright
Corp. v. NLRB, 347 F.2d 61, 69 (3d Cir. 1965). If the infor-

8 Sec. 8(a)(5) legally obliges an employer “to bargain collectively
with the representatives of his employees, subject to the provisions of
section 9(a)” of the Act. Sec. 8(d) defines the obligation to bargain
collectively, insofar as is pertinent here, as “the performance of the
mutual obligation . . . to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and conditions of
employment, or the negotiation of an agreement or any question arising
thereunder, and the execution of a written contract incorporating any
agreement reached if requested by either party.”
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mation sought does not pertain to the wages, hours, and work-
ing conditions of the represented employees, no relevance pre-
sumption attaches and the union bears the burden of establish-
ing the specific relevance of the information sought. NLRB v.
George Koch Sons, Inc., 950 F.2d 1324, 1331 (7th Cir. 1991);
Shoppers Food Warehouse, supra at 259. This relevance bur-
den exists “whether or not [the] employer requested an explana-
tion of the relevance of the request.” Schrock Cabinet Co., 339
NLRB 182 fn. 6 (2003). The relevance burden is satisfied by a
showing that “there is a logical foundation and a factual basis
for its information request.” Postal Service, 310 NLRB 391
(1993).
Applying these general principles, I now find and conclude
as follows with respect to the information allegations.9 The
three complaints contain the following 13 allegations relating to
the failure to provide requested information.
a. Consolidated complaint in Cases 28–CA–22655
and 28–CA–22759
1. Complaint paragraph 6(a)–(c) alleges that PNM failed
to produce requested information about asbestos accident inves-
tigations. PNM claims that it produced the information rele-
vant to a pending grievance that gave rise to the request but
argues that it had no duty to provide the additional information
requested because it related to a pending state regulatory matter
before the New Mexico Occupational Safety and Health Board
(NMOSHB) in which Local 611 was involved.
Relevant facts. This issue arose at PNM’s San Juan Gener-
ating Station (San Juan Station) located in northern New Mexi-
co. The initial request here was made on March 31, 2009, in an
email from Local 611 Steward Kane Reeves to Ginger Lynch, a
PNM human resources supervisor. The email, noting pending
grievance SJ-09-12 filed on behalf of a San Juan employee
Mike Patscheck, requested that PNM furnish it with infor-
mation about all accident investigations involving asbestos
since 2007 together with asbestos samples taken, lab reports
pertaining to those samples, and internal safety department
memos concerning exposures in the same period. Reeves re-
newed his request in an April 24 email to Lynch. (Jt. Exh. 1.)
A letter dated July 20 from Lynch to Shannon Fitzgerald, the
Local 611 assistant business manager who services the San
Juan Station group, enclosed the requested information, to the
degree that it existed at all, but only as it related to the incident
in the fall of 2008 giving rise to Patscheck’s grievance. As to
information about other incidents both before and after the
Patscheck incident, Lynch asked Fitzgerald to explain its rele-
vance. Fitzgerald responded to Lynch’s relevance demand in a
July 24 email by quoting specific claims Local 611 used in the
Patscheck grievance about PNM’s inadequate response to “nu-
merous (other) fiber release episodes” above the permissible
limits. He charged PNM with disregarding its own employee

9 The evidentiary materials show that Local 611 agents often com-
plained about PNM’s failure to timely provide requested information.
The evidence shows that some human resources supervisors and man-
agers were reassigned from their normal duties to assist in responding
to a backlog information requests by Local 611. There is no complaint
allegation that the obvious delays violated the Act.
safety manual, article 8 of the collective-bargaining agreement,
and the requirements of a relevant OSHA regulation.
Lynch referred Fitzgerald’s arguments to Corporate Counsel
Shay who responded to Fitzgerald in her July 30 letter. Alt-
hough Shay noted at the outset of her letter that PNM had pro-
vided a “variety” of documents to NMOSHB in connection
with its ongoing investigation of asbestos exposures at the San
Juan Station, she implicitly declined to furnish further infor-
mation on substantive grounds, i.e., the Patscheck grievance did
not involve a matter pertaining to the interpretation or applica-
tion of the collective-bargaining agreement or the “application
of a specific policy to a specific employee.” Additionally, she
asserted that his response to Lynch failed to “explain how in-
formation regarding potential asbestos exposures back in 2007
is relevant to the bargaining agent under the parties’ collective-
bargaining agreement.” However, Shay said that PNM was
willing “to entertain input from the Union regarding asbestos
safety” at the San Juan Station. Fitzgerald and Shay exchanged
further correspondence but it only served to confirm the stale-
mate that already existed.
In an email responding to Shay, Fitzgerald disputed Shay’s
position that the Patscheck grievance was not proper. That led
to a response from Shay dated August 4. In that letter Shay
noted the simultaneous investigation by the NMOHSB and the
fact that the Patscheck grievance sought PNM’s compliance
with OSHA as a remedy. In view of this concurrent investiga-
tion, Shay asserted that Local 611’s request for information was
improper because “the Union’s request relates to an action out-
side the collective bargaining context.” She also reiterated her
earlier claim that Local 611 failed to show the relevance of
documents concerning incidents in 2007 to a grievance over an
incident in 2008.
Analysis and conclusions. The Acting General Counsel and
Local 611 argue that the information sought is presumptively
relevant as it all pertains to matters directly affecting unit em-
ployees. I agree. PNM’s assertion, initially made by Lynch
and later largely adopted by Shay, that it could withhold the
requested information because evidence of earlier and later
asbestos exposures did not relate to Patscheck’s specific griev-
ance lacks merit. The grievance on its face contends that the
2008 exposure involving Patscheck was a continuing pattern
resulting from PNM’s failure to comply with its own safety
rules, the collective-bargaining agreement, and an arguably
related OSHA regulation. Hence, the presence of other related
incidents has obvious relevance to the claims made in the
Patscheck grievance and would potentially bear on the success
of that grievance. For this reason, I find information concern-
ing previous and subsequent exposure incidents relevant.
Respondent’s claim that the concurrent NMOHSB investiga-
tion made Local 611’s claims inappropriate based on the hold-
ing in Southern California Gas, 342 NLRB 613 (2004), also
lacks merit. That case is factually distinguishable. In Southern
California Gas, the union specifically sought the information in
order to “intelligently represent” the unit employees in a matter
pending before a state regulatory agency. No concurrent griev-
ance or other initiative under the collective-bargaining agree-
ment existed. Accordingly, the panel majority in Southern
California Gas concluded that the information at issue was not
PUBLIC SERVICE COMPANY OF NEW MEXICO 25
presumptively relevant to the union’s performance of its collec-
tive-bargaining duties and, hence, the union failed to meet its
burden of showing peculiar circumstances that made the re-
quested information relevant to its representational role. Id. at
614. Instead, the panel majority concluded, “the (u)nion’s re-
quest, on its face, relates solely to an action outside the collec-
tive-bargaining context—a complaint filed with a State agen-
cy.” (Emphasis added.) Id. at 615. By contrast, I conclude
that the disputed information is clearly relevant to the concur-
rent Patscheck grievance. Hence, a finding that Local 611’s
request here “relates solely” information about a matter outside
the collective-bargaining context would not be supportable.
Accordingly, based on the general legal principles articulated
at the beginning of this section, I find that PNM had a duty to
furnish all of the information initially requested by Local 611
Steward Reeves, and that it violated Section 8(a)(5), as alleged,
by failing to do so.
2. Complaint paragraphs 6(d)–(f) alleges that PNM unlaw-
fully failed and refused to furnish Local 611 with certain bucket
truck testing records.
Relevant facts. Apparently by oral request in January 2009,
and by emails on April 3 and 14, 2009, Assistant Business
Manager Tafoya requested that PNM furnish Local 611 with all
bucket truck testing records from the date PNM contracted out
the bucket truck testing work to January 15, 2009.10 (Jt. Exh.
8.) Tafoya’s concern about PNM’s compliance with its em-
ployee safety manual provision (GC Exh. 7, sec. II,A,17,1)
requiring the testing of the bucket trucks four times a year
prompted this request.
Tafoya sought the information, he said, to support Local
611’s bargaining position on the undesirability of subcontract-
ing. (Jt. Exh. 8, Tafoya’s April 14 email.) Unit employees
performed this work prior to the time that PNM contracted with
a local firm, Diversified Inspections (Diversified), to perform
the work. Tafoya, suspecting that the outside inspections were
proving too expensive, thought PNM might be cutting corners
on the inspection schedule.
In February, Tafoya followed up on his oral request of the
previous month. At that time, PNM provided him with a user
name and a password to the Diversified’s website where the
bucket truck test records are stored. With this access, Tafoya
learned that in fact there had not been full compliance with the
safety manual testing schedule during the 2008 calendar year.
At the end of March 2009, a PNM executive stated in response
to an interrogatory in a pending rate case before the New Mexi-
co Public Utilities Commission (PUC) that compliance with the
bucket truck testing schedule had been achieved. When he
learned of this, Tafoya insisted there had to be more test rec-
ords and demanded to see them.11 (Jt. Exh. 8.)

10 These are trucks with a telescoping boom and bucket mounted on
the rear. The device is used to elevate linemen when they need to work
on overhead power lines, transformers and so forth. The booms and
buckets are lined with an insulating material to prevent the accidental
grounding of energized equipment and the electrocution of the worker.
11 In a September 3, 2009 email, Ray Mathes, PNM’s labor relations
manager, candidly acknowledged that full compliance with the testing
schedule had not been achieved in 2008, but by the time PNM’s execu-
tive answered a Local 611 interrogatory on this subject in the PUC case
In late April, Christa Belt, the human resources representa-
tive dealing with this request, provided Tafoya with a spread
sheet showing the bucket truck tests performed by Diversified
up to that time. In her transmittal letter, Belt also disclosed that
added tests may have been conducted by Altec, the manufac-
turer of the bucket trucks. The evidence shows that the PNM
returns the trucks to Altec from time to time for repairs. PNM
managers are aware that in the course of this repair work Altec
will occasionally perform safety tests similar to those per-
formed by Diversified but Altec does not furnish these test
records to PNM. When PNM asked for their test records, Altec
told PNM’s fleet manager that they did not retain them.
Analysis and conclusions. The Acting General Counsel ar-
gues that PNM violated the Act by failing to provide Local 611
with the Altec test records. PNM argues that it did not have
any Altec test records and had no duty to disclose them to Lo-
cal 611. I have concluded that the Altec records lack relevance
and, hence, PNM had no duty to provide them to Local 611.
The Acting General Counsel’s position is premised on a mis-
apprehension as to the purpose of the tests performed by Altec.
The evidence clearly shows that Altec conducts a bucket truck
test for its own purposes when necessary as a part of perform-
ing a repair. Although the test may be similar or identical to
that performed by Diversified, the sporadic testing by Altec has
no relationship to the requirements set out in the employee
safety manual. Only Diversified performs those tests. Moreo-
ver, the underlying purpose of the Altec test shows that it
would never have been testing performed in-house by PNM’s
employees as was the case with the safety manual testing. The
Acting General Counsel’s argument assumes that Local 611
sought all bucket truck testing records regardless by whom and
for whatever purpose. That assumption is not supported by the
evidence. Local 611 only sought records for the tests conduct-
ed to achieve compliance with the testing required under the
employee safety manual that it had been contracted out to Di-
versified. Tafoya’s own testimony makes that quite clear:
Q. When you requested the information initially or at
any point, was there any other purpose than to confirm
whether the company was in compliance with the four-
times-per-year testing?
A. Initially, yes-I’m sorry. Initially, no. We were
looking for the safety of the employees. As the time drug
on and they did not provide it, it became an issue in nego-
tiations. We submitted-or we were offering examples of
where subcontracting didn’t make sense, the subcontract-
ing that the company was doing did not make sense. One
of the illustrations we showed in negotiations was the
bucket-truck testing.
And, of course, one of our concerns is that their con-
tractor had not been able to-or whether or not their con-
tractor had been able to be compliant with the safety man-
ual rule and the other one was the cost. We-I asked Wil-
burt Archuleta to do some calculations for us about-best he
could about what it cost per test and what it cost the com-
pany to have the contractor do per test.

on March 31, 2009, compliance with the testing schedule had been
achieved. Jt. Exh. 9.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
And during negotiations, we brought to them the ex-
ample that it was cheaper to do it through the substation
department, and, of course, our men felt much more com-
fortable with it being done in-house than contractors.
Q. But that did not happen. Right?
A. That’s correct.
(Tr. 543–544.) Even if PNM had access to the Altec test re-
sults, which it did not, those were not records which related to
the purpose of Local 611’s request. Indeed, the Altec tests had
nothing to do with the employee safety manual testing require-
ment at all. Accordingly, I find the claim that PNM violated
Section 8(a)(5) by failing to provide the Altec test records lacks
merit and I will recommend dismissal of this allegation.
3. Complaint paragraphs 6(g)–(i) pertains to PNM’s admit-
ted refusal to furnish Local 611 with a contract it maintained
with Larkin Enterprises, Inc. (the Larkin contract), a subcon-
tractor that provided PNM with supplemental employees.
Relevant facts. Articles 40 and 41 of the parties’ 2005–
2009 collective-bargaining agreement permitted PNM to use
supplemental workers for periods up to 4 months at its power
production facilities without further agreement on Local 611’s
part. The remaining terms of the agreement do not apply at all
to semi-skilled workers but it controls the hours of work and
the rates of pay for skilled workers. (GC Exh. 6, pp. 109–111.)
Because of these contractual provisions, a sharp distinction
exists between employees of outside contractors and the so-
called supplemental employees. For example, the employees of
the former are supervised by the management of the subcon-
tractor whereas the ordinary supplemental employee would be
supervised within the PNM chain of command. More im-
portantly, supplemental employees can be utilized for only a
contractually specified period of time; employees of outside
contractors have no similar limitation on the duration of their
work.
In early 2009, Local 611 filed a second-step grievance seek-
ing the removal of Gerald Powell (Powell grievance), a sup-
plemental worker in the relay shop at the San Juan Station. (Jt.
Exh. 87.) On April 13, Assistant Business Manager Fitzgerald
requested that PNM furnish Local 611 by April 20 with certain
information related to this grievance, to wit: (1) a copy of the
Larkin contract; (2) the wage rate paid to Powell; and (3)
PNM’s payroll records pertaining to Powell, including records
of the dates and hours Powell worked at the relay shop. (Jt.
Exh. 10.)
Having heard nothing by July 28, Fitzgerald emailed Ginger
Lynch again demanding the information sought for the pro-
cessing the Powell grievance. (Jt. Exh. 11.) Finally, in an Au-
gust 4 letter Lynch furnished Fitzgerald with all of the request-
ed information, save the Larkin contract.12 She explained that
PNM would not furnish the Larkin contract because it con-
tained proprietary and confidential information not relevant to
the pending grievance. However, she assured Fitzgerald that
PNM would “strive to comply” with any “specific and relevant
question related to the terms and conditions in the (Larkin)
contract” that he submitted.

12 Lynch’s letter acknowledged that Powell had worked “a 10-hour
schedule beginning July 2008 through March 2009.” Jt. Exh. 12.
Fitzgerald rejected Lynch’s offer apropos the Larkin contract
on the ground that he could not specify the particular questions
Local 611 would have before seeing the contract. As seen in
his August 7 email to Lynch, Fitzgerald renewed Local 611’s
demand for the Larkin contract and offered to sign a confiden-
tiality agreement:
The terms of the contract would allow us to see how long the
Company intended to use this worker and if the Company
violated the contract on purpose. It would also show if the
contract between the parties was extended in order to violate
the terms of the Collective Bargaining Agreement between
the Union and the Company. Accordingly we must insist on
the information that we requested being provided. In the past
the Union has agreed to sign reasonable Confidentiality
agreements to alleviate the concerns of the Company. We
would again offer to do that.
(Jt. Exh. 12.) PNM never furnished the Larkin contract as re-
quested. It also never responded to Fitzgerald’s offer to negoti-
ate a confidentiality agreement. Local 611 charges that the
processing of the Powell grievance is stymied by PNM’s re-
fusal to provide the Larkin contract.
Analysis and conclusions. The Acting General Counsel
concedes that the Larkin contract is not presumptively relevant
information within the framework of existing case law but as-
serts that Local 611 established its relevance to the pending
Powell grievance, and, as PNM refused to furnish the contract
despite Local 611’s offer to accommodate confidentiality con-
cerns, it violated Section 8(a)(5). Local 611 made a similar
argument. It also contends in a broader sense that the issue at
stake involved the policing of the contractual provisions deal-
ing with the use of supplemental workers and the preservation
of unit work. PNM asserts, in essence, that Local 611 failed to
establish the relevance of the Larkin contract to the processing
of the Powell grievance so it had no legal duty to furnish the
Larkin contract. And, in effect, PNM believes that Lynch’s
offer to answer Local 611’s questions about the Larkin contract
suffices to meet any legal duty that it did have in this situation.
As conceded by the Acting General Counsel, the Larkin con-
tract does not directly pertain to the employment conditions of
the unit employees so it would not be information presumptive-
ly relevant information. Therefore, the Acting General Counsel
or Local 611 had the burden of establishing the relevance of the
Larking contract to the procession of the Powell grievance, the
specific incident that gave rise to the request. I have concluded
that they failed to meet that burden.
The relevance burden is satisfied in these situations by show-
ing that a logical foundation and a factual basis exist for such
an information request. Postal Service, supra. That burden is
satisfied by a showing that there is a probability the requested
information is relevant and would be of use to a bargaining
representative in carrying out its responsibilities. 310 NLRB
391, 391–392.
The essence of the Powell grievance amounts to Local 611’s
claim that PNM used a supplemental employee—Powell—for a
longer period than permitted under the terms of the 2005–2009
agreement. It makes no apparent claim that PNM and Larkin
engaged in some type of collusion or conspiracy to violate the
PUBLIC SERVICE COMPANY OF NEW MEXICO 27
supplemental worker limitation period that Fitzgerald used in
his August 7 email to justify his insistence that Local 611’s
entitlement to the Larkin contract. But even if one assumes the
existence of collusion as to Powell, it is not at all clear that fact
would add anything to the narrow and definite subject matter of
this grievance, i.e., whether Powell’s employment exceeded the
4-month contractual period without some form of consent by
Local 611.
In this context, and in the complete absence of evidence of
an on-going pattern of similar conduct in connection with the
use of supplemental employees that would provide a basis for a
reasonable person to suspect that the pattern resulted from col-
lusion between PNM and Larkin seeking to undermine the em-
ployment of union represented workers, I cannot conclude that
a “logical foundation or factual basis” exists for requiring the
production of the Larkin contract in order to process the Powell
grievance, a relatively routine dispute in the context of almost
any collective-bargaining relationship. Accordingly, I find
PNM did not violate Section 8(a)(5) by failing and refusing to
furnish Local 611 with a copy of the Larkin contract in order to
process the Powell grievance so I will recommend the dismissal
of this allegation.
4. Complaint paragraphs 6(j)–(l) alleges that, since August
14, 2009, PNM failed to furnish all of the information Local
611 sought from May 1 onward to process its grievance charg-
ing that PNM used two supplemental workers in place of a
regular employee on the coal pile at the San Juan Station.13
Relevant facts. This allegation involves a March 2008
grievance (SJ-08-15, the Archuleta grievance) about PNM’s
use of an individual, Tom Archuleta, provided by a local con-
tractor named ESSI. Local 611 claimed that PNM used Ar-
chuleta to displace a regular full-time employee at the San Juan
Station.
As explained by Fitzgerald, PNM had Archuleta “pushing
coal on the coal piles at San Juan for quite a while, and our
concern was they were alluding that he was a contractor.” Lo-
cal 611 believed that Archuleta was a supplemental employee
rather than a contractor employee. He explained that a contract
employee is supervised by the contractor while the supple-
mental employee is “coordinated” by PNM workers. And as
previously noted, the collective-bargaining agreement fixes a
time limit on the use of supplemental worker whereas no such
limitation exists for workers employed by an outside contractor.
(Tr. 937.)
In a May 2008 email to a PNM representative, Fitzgerald re-
quested that PNM furnish the following information to Local
611 related to the Archuleta grievance: (1) a summary of the
supplemental employee’s job duties at the San Juan Station; (2)
the days and worked by him from January 1 to the time of the
response; (3) the person(s) who assigned the worker each of his

13 The step 1 and 2 grievances, both filed by Karl Sours, a steward at
the San Juan Station, are shown at Jt. Exhs. 88 and 65, respectively.
The step 2 grievance largely tracks the step 1 grievance, which states:
On or about 3–24–08 and counting the company is using supple-
mental employees to displace permanent full time employees. The
company is not paying the upgrade to employees supervising supple-
mental employees. Trying to gain through implementation (that) which
they did not gain through negotiations.
particular jobs: (4) a list of the safety instructions given to em-
ployee; (5) a copy of the contract between ESSI and PNM for
the work he performed; (6) the on-site ESSI supervisor who
directed employee’s work and that supervisor’s rate of pay; (7)
the employee’s pay rate including “any fringe or roll up costs”;
(8) all instances where PNM personnel directed or coordinated
the employee’s work; and (9) all accident or incident reports
involving the employee. (Jt. Exh. 13.) The complaint alleges
that PNM violated Section 8(a)(5) since August 14, 2009, by its
failure or refusal to furnish the information requested in items
4, 5, and 7.
For reasons unknown, this request languished unanswered
for a considerable period. Finally, it was referred to Sonia
Otero, an Albuquerque HR generalist temporarily assigned to
assist personnel at the San Juan Station with a backlog of in-
formation requests. On June 29, 2009, soon after her assign-
ment, Otero asked Fitzgerald to explain the relevance to the
pending grievance of items 4 (the list of safety instructions), 5
(PNM’s contract with ESSI), and the compensation information
sought in item 7. (Jt. Exh. 89, p. 1.)
Fitzgerald responded by email the following day. The rele-
vance of item 4, he explained, related to Local 611’s belief that
a unit employee had been utilized to train and provide safety
instructions to the contract employee without being properly
paid for doing this work. As to item 5, PNM’s contract with
ESSI, Fitzgerald argues that it could “lead to discovery of evi-
dence relevant and necessary to show several facts including
. . . the Companies [sic] intent as to who would coordinate his
work, supervise this worker and insure that his safety was con-
sidered as well as requirements for training.” As to item 7 of
his original request, Fitzgerald simply told Otero that he was
referring to “Tom Archuleta” (as she asked) but said nothing
about the relevance of the supplemental employee’s compensa-
tion package to the pending grievance.
After receiving and reviewing Fitzgerald’s response with
management officials, Otero ultimately provided PNM’s formal
response to the original information request in an August 14,
2009 letter. In that letter, Otero provided at least some infor-
mation as to the first three items, declined to provide infor-
mation sought in items 4 and 7 on relevance grounds, refused to
provide the vendor contract with ESSI on ground that it was
confidential and lacked relevance. Her response denied
knowledge of the information sought in item 6, reported that
the PNM did not maintain records of the information sought in
item 8, and denied that that any accident, or incident, report
existed as sought in item 9. In her August 14 letter, Otero re-
ferred to Archuleta as a “contract worker,” and a “contractor
worker,” (Jt. Exh. 14, p. 2.)
When Fitzgerald responded to Otero’s letter, he renewed Lo-
cal 611’s request for items “#3 and #6 as well as #5 and #9.”
His August 14 email to her goes on to state: “The contract that
the company possesses should show who Tom would report to
and how his job was laid out and for what work.” (Jt. Exh. 15.)
PNM never responded to his renewed request.
Argument and conclusions. The Acting General Coun-
seland the Charging Party contend that a genuine issue existed
between the parties about Archuleta’s status as a contract work-
er or a supplemental employee. Although Respondent’s brief
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
appears to concede that Archuleta was a supplemental employ-
ee, that position appears inconsistent with the facts.
Thus, aside from Otero’s actual characterization of Archuleta
as a contract employee in her August 14 letter, other assertions
in that letter strongly support the finding, which I have made,
that PNM claimed, in response to Local 611’s challenge about
his employment, that Archuleta was not a supplemental em-
ployee. For example, Otero’s assertion that Archuleta’s com-
pensation information lacked relevance is entirely consistent
with the position that he was a contractor’s employee, but it
would be an entirely indefensible position if he was a supple-
mental employee. This is so because article 41 in the collec-
tive-bargaining agreement requires that the rate of pay of sup-
plemental employees be consistent with the pay rates for unit
employees.14 Hence, if Archuleta, in fact, was a supplemental
employee, Otero’s assertion that this information was not rele-
vant would be logically indefensible.
Given the existence of the parties’ dispute about Archuleta’s
status, I find the information sought in items 4, 5, and 7 of Fitz-
gerald’s original request relevant to the issues presented by the
Archuleta grievance. In addition, I find that PNM failed to
justify the withholding of its contract with ESSI on the basis of
its alleged confidential nature. The party asserting confidential-
ity has the burden of proving that such interests exist and that
they outweigh its bargaining representatives need for the in-
formation. Jacksonville Area Assn. for Retarded Citizens, 316
NLRB 338, 340 (1995). In this case, PNM provided nothing
more than a bare assertion that its vendor contracts in general,
including the ESSI contract, contained confidential information
and it made no effort to accommodate its confidentiality inter-
ests with Local 611’s interest in obtaining information neces-
sary to process a pending work preservation grievance. Ac-
cordingly, I find that PNM failed to sustain the burden it had of
proving the confidential nature of the ESSI contract. In view of
these conclusions, I find that PNM violated Section 8(a)(1) and
(5) as alleged by failing to provide the information requested in
items 4, 5, and 7 of Fitzgerald’s original request for information
concerning the Archuleta grievance.
5. Complaint paragraphs 6(m)–(o) alleges that PNM failed
to furnish Local 611 with the information requested on May 20
and 26, 2009, showing the duties of James Martinez and Linda
Hall.
Relevant facts. Following the conclusion of the negotia-
tions for a new agreement in May 2009, an issue arose concern-
ing the proper classification of three employees, all of whom
seemingly performed some unit work as meter readers and bill
collectors. One of the employees, James Martinez, stationed at
PNM’s satellite office in Las Vegas, New Mexico, had long

14 The record evidence as a whole unquestionably merits the infer-
ence that Archuleta was essentially a heavy equipment operator. That
inference strongly supports the conclusion that he would have been a
“skilled” employee within the meaning of art. 41 as opposed to a
“semi-skilled” employee. That being so, Archuleta’s rate of pay would
have been controlled by the collective-bargaining agreement and Local
611 would have unquestionably been entitled to his compensation
information as a part of its legal duty as the exclusive bargaining repre-
sentative to properly police the employer’s application of the bargain-
ing agreement.
been classified as an “operations representative.”15 On May 22,
Local 611 filed a grievance seeking to have Martinez reclassi-
fied either as a senior meter reader or a collector. (Jt. Exh. 30.)
On May 26, Fitzgerald sent an email to Christa Belt and Ray
Mathes alluding to a conversation they had on May 20 about
the proper classification of employees. In his email Fitzgerald
demanded that that PNM reclassify Martinez and Linda Hall as
senior meter readers or collectors, both unit positions, and make
them whole for any wages due. (Jt. Exh. 31.) Fitzgerald also
claimed that the PNM officials purportedly agreed “to provide
an answer to (the employees) current duties.”
In the middle of June 2009, Tafoya complained in an email
to Belt about her delay in providing Local 611 with an “an-
swer.” In the context of this email, reference to an answer is
highly ambiguous. (Jt. Exh. 16.) It makes no reference to Fitz-
gerald’s May 26 demand for “an answer.” Belt credibly testi-
fied that on the basis of the May 20 conversation, the May 26
Fitzgerald email, and Tafoya’s June 18 email, she interpreted
the request for an “answer” to mean that Local 611 wanted
PNM’s answer to its demand that Martinez and the other em-
ployees be reclassified. (Tr. 452–453.) To this end, Belt sent
settlement offers Local 611 regarding Hall and Carbajal in late
June that served as a frame work for resolving their reclassifi-
cation issues.
Later, on July 20, Belt transmitted PNM’s proposal to settle
the Martinez issue. (Jt. Exh. 32.) In this settlement offer, PNM
proposed to reclassify Martinez as a meter reader but not at the
highest meter reader classification. The offer was rejected on
that ground. Subsequent communications between the parties
over the Martinez matter amount to quibbling over whether the
duties actually performed by Martinez based on his own ac-
count would be sufficient to warrant reclassification to the
highest meter reader classification as he and Local 611 insisted.
None of these subsequent exchanges make any reference to
PNM’s failure to provide requested information. To date, Mar-
tinez’ reclassification has not been resolved. For this reason,
the Acting General Counsel and Local 611 claim that his origi-
nal May 22, 2009 grievance is still pending.
Argument and conclusions. The Acting General Counsel
and Local 611 contend that the reference to an “answer” in
Fitzgerald’s May 26 email amounts to a written memorializa-
tion of an oral request for information referenced in paragraph
6(m) of the complaint. Respondent claims that Local 611 never
made any type of request for information as described in com-
plaint paragraph 6(m). I agree with Respondent’s argument.
Local 611’s other requests for information exhibit unambig-
uous demands that PNM provide it with information. Even
assuming that some type of request for information had been
made originally on May 20, the fact remains that there was a
concurrent demand that PNM reclassify employees. There

15 Operations representatives are not unit employees. The other two
employees involved in the early stages of this dispute, Linda Hall and
Eddie Carbajal, had also been classified as operations representatives.
For whatever reason, information related to Carbajal never figured in
the complaint allegation. Regardless, PNM and Local 611 ultimately
reached a settlement providing for the reclassification of Hall and Car-
bajal to unit positions. Tr. 305. In deference to the parties’ negotiated
accord, I have treated the complaint allegation as to Hall as moot.
PUBLIC SERVICE COMPANY OF NEW MEXICO 29
followed from that situation Fitzgerald’s email which failed to
resolve the ambiguous use of the word “answer” and Tafoya’s
June 18 email bitterly complaining about the lack of an “an-
swer” that was followed by an exchange of arguments related
to a settlement proposal transmitted by Belt. I find these vari-
ous communications after May 26 failed to convey any sense
that the process had been frustrated by a lack of information
requested by Local 611.
In view of these circumstances, I find that the obviously am-
biguous requests for an “answer’’ contained in emails from
Fitzgerald and Tafoya did not refer to a pending information
request but rather referred to Local 611’s demand that PNM
answer their proposal to reclassify Martinez and the others.
Accordingly, I find the Acting General Counsel failed to prove
the allegations made in complaint paragraghs 6(m)–(o) by a
preponderance of the evidence. Therefore, I will recommend
the dismissal of these allegations.
6. Complaint paragraphs 6(p)–(r) alleges that PNM failed
to provide a complete list of all meter readers and collectors
(MRCs) as requested by the Union on June 15, 2009.
Relevant facts. On May 7, 2008, the Regional Director cer-
tified Local 611 as the exclusive representative “[a]ll meter
readers . . . and all collectors” employed by PNM in the State of
New Mexico (the MRC unit) following a stipulated election.
(According to Mathes, Local 611 made no objection to the
failure of PNM to include the names of Martinez, Hall, or Car-
bajal, on the list of eligible voters.) When the parties concluded
the 2009–2012 collective-bargaining agreement, it contained an
addendum related to the MRCs setting forth particular terms
and conditions related to their classification. The agreement
also contained a separate wage scale for the MRCs. That wage
scale divided the collectors into two wage categories or classi-
fications and the meter readers into four wage categories or
classifications. (Jt. Exh. 5, p. 82.)
In support of this allegation, the Acting General Counsel and
Local 611 rely of an email request of June 15, 2009, from
Tafoya to Belt requesting that PNM furnish “a complete list of
all collectors and meter readers including their current classifi-
cation, hire dates and job dates.” He asked that she forward
that information “as quick as you can get it to us” and told her
that they could then “work together to correct any problems.”
Two days later, JoAnn Garcia, a lead HR consultant working
with Belt, sent Tafoya a 3-page list of PNM’s collectors and
meter readers, their wage category or classification, their “en-
try” dates, and their “start” dates. Admittedly, Tafoya never
objected to the inadequacy of the information provided by Gar-
cia.
On December 30, 2009, Tafoya submitted another related
request to Belt asking that PNM furnish the names and classifi-
cations of all PNM employees “not currently in our bargaining
unit” who read electric and gas meters, those who only read
electric meters, and those who perform field collection work.16
Argument and conclusions. The Acting General Counsel
and Local 611 argue that the June 15 request sought infor-
mation as to all employees who actually performed MRC work

16 This request is also the subject of a separate unfair labor practice
allegation that will be considered below.
rather than just those classified as MRCs. PNM claims that it
furnished Local 611 with exactly the information it requested.
In support, PNM argues that Local 611 never objected to the
inadequacy of information furnished.17
I agree with the with PNM’s argument. The contention by
Local 611 that Tafoya sought a list of anyone performing any
kind of MRC work regardless of classification lacks support.
This claim is severely undercut by Local 611’s failure to object
to the information PNM promptly furnished particularly where,
as here, the information furnished made no reference to Mar-
tinez, Hall, or Carbajal, all employees whose inclusion in the
MRC unit Local 611 was actively pursuing at that very time.
Hence, their absence from the list furnished by Garcia should
have been quite obvious. Furthermore, Tafoya’s request in
December vividly demonstrates Local 611’s ability to frame an
information request in a manner that would be the all encom-
passing request it has belatedly ascribed to its June 15 request.
Accordingly, I am unable to find merit to the claim that the
June 15 request sought information other than that which PNM
furnished 2 days later. Therefore, I recommend the dismissal
of this allegation.
7. Complaint paragraphs 6(s)–(u) alleges that Local 611
requested on July 31, 2009, the documentation relied upon by
PNM for failing to comply with an OSHA regulation that
deemed certain climbing equipment used by the linemen (belts,
hooks, straps) to be personal protective equipment (PPE) and
required that employers purchase such equipment for its em-
ployees engaged in that work.
Relevant facts. The OSHA issued the relevant PPE regula-
tion that became effective in February 2008. Initially, PNM
applied the requirements of the regulation only to employees
hired after the effective date of the regulation, an interpretation
consistent with that of the New Mexico Occupational Safety
and Health Bureau (NMOSHB) at the time.
On July 31, 2009, Tafoya sent an email to Mathes, Belt, Na-
wman, and Joel Ivey calling attention to the PPE regulation and
inquiring why PNM was not in compliance with the require-
ment that it pay for the PPE used by the linemen. He received
no response. Tafoya followed up with an email on August 13,
requesting that PNM furnish Local 611 by August 17 with
“(a)ny and all documentation that the Company relies upon to
not comply with the regulation.” Tafoya sought this infor-
mation because he assumed that PNM must be relying on some
type of documentation for its failure to apply the regulation to
all employees. He had never been told that PNM relied on any
documentation other than the regulation itself. (Tr. 717.)
Having received no response to his August 13 email, Tafoya
filed a complaint with NMOSHB sometime in late August or
early September. At about the same time, Tafoya and Mathes
engaged in a series of verbal and email exchanges and meetings
over the linemen’s equipment issue. In a September 22 email,
Tafoya requested much more detailed information related to
this issue that he carefully noted was “in addition to the request
sent on 8/13/09.” Specifically, this request sought the names
and classifications of employees who had received reimburse-

17 I am unable to locate any argument in the Acting General Coun-
sel’s brief related to this particular complaint allegation.
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ments for PPE purchases, the manner in which the amounts
were determined, the conditions imposed as a result of the re-
imbursements, and “(h)ow the Company determined who re-
ceived ‘reimbursement.’” Mathes provided virtually all, if not
all, of the information Tafoya sought at that time.18 As to the
latter request, Mathes told Tafoya “(t)he employees who were
reimbursed became linemen apprentices after May 15, 2008,
when OSHA regulation 29 CFR 1910.132(h) required employ-
ers to provide the climbing gear as personal protective equip-
ment.” (Jt. Exh. 95: pp. 2–3.)
In its initial response to his complaint, NMOSHB advised
Tafoya that it, too, interpreted the regulation as applicable only
to employees hired after the effective date of the PPE regula-
tion. That led Tafoya to seek and obtain a clarifying interpreta-
tion from the Occupational Health and Safety Administration
(OSHA) regional office in Texas to the effect that the regula-
tion applied to all employees regardless of their date of hire.
(Tr. 571–572.) This clarifying interpretation resulted in a site
inspection conducted by NMOSHB and the issuance of a cita-
tion on October 23 by that agency for PNM’s failure to comply
with the PPE regulation. (Jt. Exh. 96.) Subsequent to that,
PNM and Local 611 negotiated a “Mutual Agreement” con-
cerning the application of the PPE regulation at PNM which the
appropriate unit employees ratified and the parties executed in
early January 2010. (Jt. Exh. 97.)
Argument and conclusions. The Acting General Counsel
argues that the relevance of the information Tafoya sought on
August 13 has been established and that the “Union received no
response from Respondent regarding the Union’s concerns that
Respondent was not complying with this OSHA requirement.”
Local 611 likewise asserts that the information requested on
August 13 was never furnished and contends that if it had been,
it might have insisted on a different agreement than that con-
cluded in January 2010. PNM contends that Tafoya’s August
13 request was grounded on the assumption that PNM was not
complying with the PPE regulation and, as it believed in good
faith that it was in compliance, it had no information to furnish.
PNM further argues that this request became moot after it con-
cluded a settlement with NMOSHB and Local 611 over the
payment of the PPE items.
I find that the Acting General Counsel to prove by a prepon-
derance of the evidence that PNM failed to furnish the infor-
mation Local 611 requested on August 13. On the contrary,
Mathes responded to Tafoya’s final request of September 22—
which essentially repeated the August 13 request—by inform-
ing him that PNM had relied on the PPE regulation itself. The
Acting General Counsel makes no claim that PNM’s interpreta-
tion of the regulation was made in bad faith or was unreasona-
ble. Indeed, a similar conclusion by the state agency with en-
forcement responsibilities of the regulation at issue forecloses
any logical conclusion to that effect. This fact, coupled with an
admittedly similar conclusion by NMOSHB, supports the infer-
ence I have made that Local 611 knew quite well the basis for

18 I find it reasonable to infer that the Acting General Counsel did
not include any allegations about the additional information requests of
September 22 because Mathes provided all, or substantially all, of the
information Tafoya requested.
PNM’s interpretation of the PPE regulation. Accordingly, on
the basis of the subsequent exchanges between Mathes and
Tafoya, I am unable to conclude that a preponderance of the
evidence shows that PNM failed to respond to this request.
But even assuming that PNM technically failed to respond
specifically to the August 13 request, I agree with PNM’s con-
tention that the request became moot, albeit not for the reasons
it advanced, i.e., the subsequent January 2010 agreement of the
parties. Instead, I find that this request became moot—or at the
very least entirely irrelevant—when the OSHA regional office
provided a definitive interpretation of the PPE regulation con-
sistent with Local 611 position which NMOSHB applied in its
subsequent investigation. No evidence shows that PNM con-
tested the OSHA interpretation or did anything other than
abandon its earlier, more-limited interpretation of the PPE regu-
lation. Hence, the condition which even the Acting General
Counsel agrees that motivated Local 611’s request in the first
place simply ceased to exist altogether when PNM acquiesced
in the more expansive interpretation of the PPE regulation pro-
vided by OSHA’s regional office. Accordingly, I will recom-
mend dismissal of this allegation.
8. Complaint paragraphs 6(v)–(z) alleges that PNM unlaw-
fully failed to provide Local 611 with information requested on
August 6 and 26, 2009, concerning respiratory fit testing and its
“clean-shaven” policy.
Relevant facts. PNM has maintained a detailed respiratory
protection policy at the San Juan Station since 2007 or before.
The policy purports to incorporate various regulations and
guidance documents produced by OSHA, the National Institute
for Occupational Safety and Health, and the American National
Standards Institute. It details procedures designed to protect
employees against “air contaminants and oxygen-deficient
atmospheres.” (Jt. Exh. 37, Att. 5, pp. 1–22.)
Under the policy, employees must wear respirators in certain
designated areas and may wear them in other areas if they
chose. Employees assigned for work in areas where use is
mandatory must first undergo a medical evaluation of their
suitability for using a respirator administered by a medical pro-
fessional and a fit test of the assigned device. Once performed,
these tests must be repeated every year thereafter as long as the
employee works in a mandatory-use area. Employees who
choose to voluntarily wear a respirator in other areas must also
undergo the medical evaluation but are not required to take a fit
test. (Jt. Exh. 37, Att. 5, pp. 2–3.)
The policy limits the wearing of facial hair that might inter-
fere with the seal of the respirator to the face or that interferes
with the operation of the respirator valve. The policy also pro-
vides that employees with facial hair that impairs the seal or the
valve operation “shall shave the facial hair in question before
being allowed to use the respirator.” (Jt. Exh. 37, Att. 5, p. 7;
Tr. 1028.) Generally, PNM specifies this facial hair standard
when an outside vendor conducts the periodic fit tests. (Tr.
1010–1011.) Under the policy, employees required to wear
respirators need not be totally “clean-shaven.”
The parties’ collective-bargaining agreement provides for the
establishment of general safety committees at various locations.
They are joint labor-management committees that address safe-
ty questions and adopt the employee safety rules. The general
PUBLIC SERVICE COMPANY OF NEW MEXICO 31
safety committee must approve all changes to PNM’s Employ-
ee safety manual.
The San Juan Respiratory Protection Program is consistent
with rules established under the jointly negotiated employee
safety manual. In particular, section XI of the safety manual
“Requirements for all Respiratory Protection” provides as fol-
lows:
c. Facial characteristics such as scars, unusual skull shapes,
facial hair, etc., may prevent an employee from obtaining an
effective seal. Employees required to wear respirators shall
be able to satisfactorily pass the facial seal test specified in the
facility Respiratory Protection program.
(GC Exh. 7, sec. XI,A,1,1c.)
The joint safety committees meet quarterly or on-call as
specified in the bargaining agreement. The minutes of San
Juan Plant’s General Safety Committee for July 30, 2009, show
that former San Juan Plant Manager Jim McNichol addressed
the committee about several matters. He informed the commit-
tee that the past practice of voluntary compliance with the
plant’s pulmonary and respiratory equipment fit-testing pro-
gram would end and that the program would become “mandato-
ry” in the next couple of months with a goal of completing all
fit tests “by (the) end of September.” McNichol also stated that
“[a]ll employees being fitted for any respiratory equipment
must be clean-shaven to get a proper fit.” He acknowledged
there would be “issues” about this requirement but added that
“management and the safety team . . . will do whatever is nec-
essary to administer it and enforce it.”19 (Jt. Exh. 35, p. 1.)
The clean-shaven comment sparked an immediate controver-
sy that resulted in a number of internal email exchanges that
involved McNichol, John Haarlow, the head of the San Juan
safety department, Michael Walls, one of Haarlow’s staffers,
Ginger Lynch from the labor relations department, and others.
(GC Exh. 13.) At the end of this email string McNichol wrote
the following to Harlow and Walls:
Yep, I probably should have elaborated on the clean shaven
comment. I knew what I meant! Obviously, what is required
is for the respirator to fit properly, thus hair on the face affect-
ing the sealing surface is the issue. That is basically it, as you
know. Limited facial hair or even full beards between fit tests
or occasions when an employee needs to wear a properly seal-
ing respirator are not an issue.
On August 1, Local 611 Representative Fitzgerald emailed
Ginger Lynch claiming that McNichol’s disclosures about the
fit testing program and the clean-shaven requirement at the
meeting the day before amounted to a unilateral change. He
requested that she furnish him with a copy of the program and
“cease and desist” with its implementation without first bar-
gaining with Local 611 over the matter. He also asked for the
date of the planned implementation of the program and the

19 McNichol did not testify. The statements attributed to him in the
committee’s minutes are not disputed. Labor Relations Manager
Mathes admitted that he had heard about McNichol’s “clean-shaven”
remark and said, “the effect was that folks were agitated about (it).”
“new clean shaven requirements” along with the “resultant
actions” in case of noncompliance. (Jt. Exh. 36, p. 2.)
Lynch responded August 5 email, furnishing Fitzgerald with
a copy of PNM’s respiratory protection program for the San
Juan Station. Lynch also claimed that, under Federal law, the
fit tests were a mandatory procedure for “all employees who
may wear respirators.” She also went on to assert that the “fed-
erally-required ‘fit tests’ specifically prohibit ‘any hair growth’
between the skin and the facepiece sealing surface of the respi-
rator.” Any disciplinary action required to enforce compliance,
she said, would be in accord with a “Positive Discipline” policy
incorporated in the parties’ bargaining agreement. Finally,
Lynch rejected Fitzgerald’s request for bargaining on the
ground that PNM “is obligated to comply with OSHA” and
therefore bargaining over “whether to comply with federal law
is an illegal subject of bargaining.” (Jt. Exh. 37.)
Michael Walls, a senior safety consultant at the San Juan fa-
cility, claimed there was no attempt in 2009 to change the exist-
ing program. Although he could not recall precisely when he
talked with Fitzgerald about McNichol’s “clean-shaven” re-
marks, he recalled telling the union agent that the issue
amounted to “a misunderstanding or miscommunication of
what clean-shaven means.” (Tr. 1008–1009.) Mathes, Lynch’s
supervisor at the time, also claimed that a “misunderstanding”
arose from McNichol’s use of the words “clean shaven” at the
July 30 safety meeting that Lynch’s August 5 email attempted
to clarify by making the point that they meant only as stated in
the existing, written program. (Tr. 280.)
In emails from Fitzgerald to Lynch dated August 6 and 18,
Fitzgerald continued to reference McNichol’s “clean-shaven”
remark at the July 30 safety committee meeting. He insisted
that PNM rescind McNichol’s threat to enforce “a clean shaven
policy.”
On August 25, PNM sent a high-priority email notice to var-
ious crew supervisors (13 in all) instructing them to send their
employees for the pulmonary function and respirator fit tests on
the dates listed if the employee was not “current” on those tests.
The email also notified the supervisors that “(b)ottom line, we
need to be complete by October 30.”
Fitzgerald obtained a copy of the email and sent a request to
Lynch the following day, August 26, seeking this following
information:
 What will happen if an employee is unsuccessful in
passing his/her fit test?
 Will being fit test be a new requirement of a job or
jobs? Does the Company intend to use being fit
tested as a reason to bypass employees for overtime
on certain jobs?
 Will all employees be required to fit test even
though they may or may not wear respirators in
their current duties?
 Since the Company has chosen to start this on Au-
gust 31, 2009 is this the implementation date?
 Has each of these employees been evaluated in ac-
cordance with OSHA requirements?
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
 Will employees be advised as to how they will
comply while in equipment such as ARC flash
hoods?
Fitzgerald insisted that he be provided answers by August 28.
In addition, the request insisted that PNM rescind its respirator-
fit-test program to the extent that it had implemented one until
it bargained with Local 611 over this subject. (Jt. Exh. 39.)
Lynch emailed PNM’s response on September 8. In it, she
set out the “implementation timeline” for the testing identical to
that contained in the August 25 notice to PNM’s supervisors.
She added that the company’s goal was to finish the testing by
the “end of October 2009” and went on to state “[w]e cannot
speculate about what the consequences of an employee’s failing
to comply with the OSHA-mandated tests because the reasons
for the failure and other circumstance are important” but if the
employee failed the test simply because he refused to shave
“the employee may be subject to the disciplinary process . . .
(in) the collective bargaining agreement.” She concluded her
email by stating that the “Company has identified appropriate
respiratory equipment for use in the ARC flash hoods.”
Within an hour Fitzgerald responded claiming that she had
not answered all of his questions, namely, whether employees
not required to wear respirators would be fit tested; whether a
fit test would be a requirement of a job or jobs; and whether the
PNM would use fit-testing as a reason to bypass employees for
overtime.
At the hearing, Fitzgerald remained equally adamant, claim-
ing that Lynch never responded to his inquiries about what
would happen to an employee if he/she failed a fit test. That
led to this exchange between PNM’s counsel and Fitzgerald:
Q. Okay. It wouldn’t matter if it was because they re-
fused to shave a full beard versus they had some kind of
facial abnormality?
A. I believe all those things could have been covered
in an answer. We’ll make accommodations; we’ll try dif-
ferent respirators; we’ll—I’m basically asking, what hap-
pens if they are unsuccessful. If it’s a medical condition—
they should know all that. It’s their policy.
Q. So you think they should know all the possible cir-
cumstances that an employee could fail a fit test and then
give you what would happen with respect to all of those.
That’s right?
A. I believe they should be able to. Yes.
(Tr. 1077.)
No evidence establishes that any employee received disci-
pline for failing or refusing to be “clean shaven” for a fit test.
Fitzgerald admitted that at least some employees with facial
hair completed the fit testing requirement. (Tr. 1074.)
Argument and conclusions. The Acting General Counsel’s
brief advances very narrow arguments. First, he asserts only
that the Union, on August 18, requested “a copy of the clean-
shaven policy that . . . McNichol promulgated . . . on July 30,
2009,” and that PNM has not provided that policy. Next, the
Acting General Counsel argues that PNM “has not sufficiently
responded” to Local 611’s inquiry as to what would happen if
an employee failed a fit test. This information, the Acting Gen-
eral Counsel argues, is presumptively relevant because it relates
to the health and safety of employees, a term and condition of
employment. Local 611 acknowledges receipt of a copy of
Respiratory Protection Program at the San Juan Station “but not
any policy or program “mandating fit testing or requiring em-
ployees to be clean shaven.” (Local 611 Br., p. 22.)
Respondent contends that McNichol did not intend to an-
nounce any “clean-shaven” requirement beyond the respiratory
protection program’s prohibition against hair that interfered
with the fit or function of the respirator, and that PNM never
had any other “clean-shaven” policy. It contends that it fur-
nished all relevant information Fitzgerald sought about the
respiratory protection program. However, it contends that Fitz-
gerald never sought a copy of the “clean-shaven” policy as
alleged in the complaint and, even if he had, PNM had no re-
sponsive information because such a policy never existed.
PNM claims that it had no duty to furnish other information
sought by Fitzgerald because it related to OSHA requirements
or merely sought to bait the company into admitting violations
of the parties’ collective-bargaining agreement or its bargaining
obligations.
After careful consideration of the foregoing, I find that
McNichol’s inarticulate statement on July 30 amounted to noth-
ing more than an announcement that the respiratory protection
program would become mandatory. There is no allegation that
this action violated the Act. The preponderance of the evidence
clearly establishes that PNM never, at any time, established a
so-called “clean-shaven” policy as alleged in complaint para-
graph 6(v). Hence, I find that despite Fitzgerald’s repeated
insistence that it do so, PNM had no legal duty to furnish in-
formation about a nonexistent “clean shaven” policy.
I further find that PNM provided Local 611 with the infor-
mation sought on August 26 to the extent that it was legally
obliged to do. In this connection, Fitzgerald’s insistence that
PNM articulate the type of discipline that might be imposed
amounted to nothing more than a demand that the Company
speculate about a myriad of potential causes for a failure and
determine in advance an endless list of penalties. I find PNM
had no legal obligation to engage in this type of speculation.
Having concluded that Respondent provided all of the infor-
mation it was legally obliged to provide, I recommend dismis-
sal of these allegations.
The closely related allegation by the Acting General Counsel
in complaint paragraphs 7(b), (h), and (g) that PNM violated
the Act by unilaterally implementing a mandatory pulmonary
and fit testing program requiring that employees be clean-
shaven also lacks merit. At previously found, PNM never insti-
tuted a clean-shaven requirement. Additionally, PNM correctly
notes that the pulmonary and fit testing requirements are man-
dated by OSHA. Finally, the employee safety manual jointly
negotiated by the parties also requires such testing in accord
with the “facility Respiratory Protection program.” This safety
manual provision, and the lack of any testimony or other evi-
dence from the safety committee members who participated in
its negotiation, strongly supports the inference I have made that
that the contractually established joint committee considered
the testing requirements and negotiated fully in connection with
that subject. Accordingly, I find the Acting General Counsel
failed to prove any unlawful unilateral action as alleged in
PUBLIC SERVICE COMPANY OF NEW MEXICO 33
complaint paragraphs 7(b), (h) and (g). For this reason, I also
recommend dismissal of those related allegations.
9. Complaint paragraphs 6(aa)–(cc) alleges that PNM
failed and refused to furnish Local 611 with the following in-
formation sought on October 1, 2009, related to the discharge
grievances of Everand Silas and Guy Claw:
Any and all documentation that [the Respondent] used or con-
sidered that it had not previously supplied concerning the
grievances SJ-09-07 [Silas] and SJ-09-08 [Claw], including
any and all notes taken that were used in determining the ter-
minations at issue in grievances SJ-09-07 and SJ-09-08.
Relevant facts. Claw and Silas, two mechanics who worked
in the maintenance department at the San Juan Station until
February 2009, were fired by their department manager,
Mathew Zersen, for violating PNM’s rules against jobsite vio-
lence.
Following a report of an altercation between Claw and Silas,
Labor Relations Supervisor Ginger Lynch and Supervisor Jim
Cash conducted fact-finding interviews with both employees.
A union steward and Zersen sat in on these interviews as well
as the interview of a contractor’s employee who purportedly
witnessed the altercation conducted later that day.
Following the fact-finding interviews, Claw and Silas were
suspended with pay pending a disciplinary determination by
management. Zersen, Cash, and Lynch then reviewed the inci-
dent and concluded that both employees failed to follow PNM’s
policies prohibiting workplace violence. At the end of their
discussion, and after speaking with PNM’s legal department,
Zerson decided to discharge both employees. He instructed
Lynch to prepare a discharge recommendation for both em-
ployees and said that he would clear his decision with the plant
manager. Zerson credibly testified that did not take notes at the
fact-finding interviews or review the notes of anyone else prior
to making his decision. He also had no recollection of having
seen the written discharge recommendations Lynch prepared at
his direction and submitted to Anna Ortiz, the director of HR
services. Regardless, those two documents would have been
generated by Lynch after Zersen decided to discharge the two
employees.
After their discharges, Local 611 promptly filed grievances
on the behalf of Claw and Silas. At the first-step grievance
meeting in March, PNM provided Local 611 with copies of
Lynch’s written discharge recommendations. The copies pro-
vided contain a redaction of the factual version of the events
Lynch submitted to Ortiz. In place of the redacted material, the
copies provided Local 611 contain a summary of the facts as
determined by PNM representatives following their fact-finding
interviews. (CP Exhs. 12 and 13.) Local 611 requested an
unredacted copy as well as any notes take by company repre-
sentatives at the fact-finding interviews. A few days later,
PNM denied the union’s request for unredacted copies of
Lynch’s recommendations and the notes she took at the inter-
views. At second step grievance meetings held on September
29 and 30, Local 611 reiterated its request for the unredacted
copies and for management’s notes previously sought. On
October 1, Fitzgerald emailed a follow up request to Lynch.
Fitzgerald testified that he wanted to know what the deci-
sionmakers had in front of them when they decided to terminate
Claw and Silas. (Tr. 1078.)
In addition to seeking unredacted copies of Lynch’s dis-
charge recommendations, Fitzgerald’s October 1 request specif-
ically sought any notes taken by management personnel present
at the predischarge interviews, and some incidental training
materials pertaining to Silas. Lynch responded on October 27.
She supplied the training materials ordinarily used but not un-
redacted copies of her discharge recommendations or the notes
taken by management personnel at the fact-finding interviews.
Her letter stated that the PNM maintained the same position it
initially took with respect to the notes and the unredacted rec-
ommendations in late March. As to management’s notes, she
specifically declined to furnish that information because a un-
ion steward took notes at the interviews of the discharged em-
ployees and the outside witness. Fitzgerald responded on No-
vember 4, charging that Lynch had not furnished any of the
requested information, including even the training information
because PNM had failed to provide documentation about the
materials used on the specific day that Silas received the dis-
puted training. Fitzgerald claimed that the grievances are sty-
mied by PNM’s refusal to furnish this information.
Argument and conclusions. The Acting General Counsel,
asserting that PNM “relied heavily on the notes it had taken of
the employee interviews” supports the Union’s claim that those
notes as well as unredacted copies of Lynch’s discharge rec-
ommendations are necessary and relevant to the determination
as to whether to process the Claw and Silas grievances. The
Acting General Counsel asserts that the mere fact that a union
steward was present for the interviews is not a defense to the
refusal to furnish the requested documents.
Respondent claims that this is “another instance where the
Company had no information responsive to the [Union’s re-
quest for information] as phrased” because Zersen made the
decision and did not rely on Lynch’s memos or anyone’s notes.
At least as to Lynch’s written termination recommendation, I
find Respondent’s defense lacks merit. Over a period of
months following receipt of the redacted copy of Lynch’s
memo, Local 611 made several requests for unredacted copy
but PNM never provided it. The actual reason PNM withheld
the full memo has not been clearly explained apart from its
assertion that Zersen did not rely on it when making the deci-
sion to discharge the two employees. Although that may well
be true in a narrow sense, the evidence merits the inference that
the memo amounts to a summary of the considerations that
Zersen, Lynch, and Cash discussed jointly and with some uni-
dentified person or persons in PNM’s legal department follow-
ing the interviews of the two employees and the witness.
For this reason, and as Zersen directed Lynch to prepare the
recommendation memos, it is fair to conclude that the basis for
his decision to terminate the two employees would likely be
imbedded in the memos Lynch ultimately prepared. Therefore,
I find the complete documents would be relevant and useful to
Local 611 in evaluating the merits of the grievances it filed
concerning the discharges. These unredacted memos, in my
view, are analogous to the security officers’ reports in New
Jersey Bell Telephone Co., 300 NLRB 42 (1990), that the
Board required the company to produce to the bargaining repre-
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sentative to assist it in evaluating a discharge grievance. Ac-
cordingly, I find New Jersey Bell controls the result here and
conclude that PNM violated Section 8(a)(1) and (5) by failing
to provide Local 611 with the unredacted copies of Lynch’s
termination recommendations as requested.
The notes taken by Lynch during the witness interviews are
another matter. As Local 611 had an official representative
present during all of the interviews, it had equal access to the
same raw information available to PNM by reason of Lynch’s
presence at the interviews. The only additional information
likely available in Lynch’s notes would be conclusions she may
have made by reason of the mental impressions gained during
the interviews. As it is likely that she discussed the impres-
sions recorded in her notes during the postinterview exchange
she had with Zersen, Cash, and the Company’s legal depart-
ment, I find such information would also fall within the scope
of Local 611’s request. However, Local 611 had the same or
similar information available to it as the result of the steward’s
presence at the interviews, a fact that Lynch pointed out to
Fitzgerald in refusing to provide her notes. Although PNM did
not advance a claim of work product privilege in its brief with
respect to Lynch’s notes, I find the basis for her refusal to pro-
duce her notes in response to several requests by Fitzgerald
tantamount to the assertion of a work product privilege. Based
on the Board’s decision in Central Telephone Co. of Texas, 343
NLRB 987 (2004). I have concluded that Lynch’s notes consti-
tuted privileged work product and that PNM did not violate the
Act by refusing to produce them as requested by Local 611.
b. Complaint in Case 28–CA–22997
10. Complaint paragraphs 6(a), (d), and (e), as amended
(see GC Exh. 2), alleges that since March 26, 2010, PNM re-
fused to furnish Local 611 with the information it sought con-
cerning the duties other than meter reading and collection work
performed by six individuals, namely, Christopher Bustamante,
Jason Montoya, Chris Padilla, Felix Munoz, Steve Bertuca, and
Michael Varela.
Relevant facts. Following an election concluded on April
28, 2008, pursuant to a stipulated election agreement, the
NLRB certified Local 611 as the exclusive representative for
the following employees: All meter readers, who regularly read
only electric meters or both electric and gas meters, and all
collectors employed by [PNM] in the State of New Mexico.
The stipulated unit excluded these employees: All meter read-
ers who regularly read only gas meters, all employees currently
represented in an existing bargaining unit, all administrative,
production, maintenance, construction, and managerial em-
ployees, office employees who do not regularly work in the
field, office clerical employees, guards and supervisors as de-
fined in the Act.
After its certification, Local 611 requested extensive infor-
mation concerning bargaining unit employees that PNM pre-
sumably provided. (Jt. Exh. 41.) Thereafter, the parties negoti-
ated special terms applicable to this new unit and agreed other-
wise to apply the terms of their existing collective-bargaining
agreement to the meter readers and collectors unit in a manner
that suggests the merger of the new unit with the existing unit.
(See GC Exh. 5.)
By the end of 2009, a dispute sprouted over the classification
of some nonunit employees working in outlying areas who
performed meter reading and collection work On December
30, 2009, Tafoya submitted a written request to Crista Belt, a
PNM labor relations representative, seeking the following in-
formation:
 The names and classifications of all PNM employ-
ees that read electric and gas or electric only meters
who are not currently in our bargaining unit.
 The number of days a week they read meters to in-
clude check reads.
 The number of hours a day they read meters to in-
clude check reads.
 The rates of pay for those identified.
 The names and classifications of all PNM employ-
ees who perform field collections, disconnects for
non-payment, and delivery of two day notices.
 The number of days they perform field collections,
disconnects for nonpayment, and delivery of two
day notices.
 The number of hours a day they perform field col-
lections, disconnects for non-payment, and delivery
of two day notices.
 The rates of pay for those identified.
(Jt. Exh. 93.) Ray Mathes, PNM’s labor relations manager,
responded to Tafoya’s request on January 22, 2010, by provid-
ing all of the information requested above save for the wage
rate information. He specifically noted the named employees
engaged in meter reading and collection work “among their
other duties.” The information provided did not show that the
employees performed meter reading or collection work, or a
combination of the two, on a full-time basis.20 (Jt. Exh. 48, pp.
3–4.)
Mathes named 10 persons who read “electric and gas or elec-
tric only” meters. He named six persons who performed “field
collections, disconnects for non-payment, and delivery of two
day notices.” Five in the latter group were also included in the
former group.
On February 15, a union steward filed a grievance alleging
that PNM failed to properly classify coordinators’ Bustamante,
Montoya, Padilla, Munoz, Bertuca, Varela, and two others,
James Martinez and Isidro Medina, as senior meter readers or
collectors under the terms of the parties’ bargaining agree-
ment.21 PNM denied the grievance on February 22 on the

20 As a preface to providing the information, Mathes charged that, as
the information sought pertained to individuals outside the bargaining
unit, the Union had the obligation to establish relevance but had failed
to do so. And, as to one individual, James Martinez, Mathes further
objected on the ground that the Union’s request amounted to inappro-
priate discovery inasmuch as the Union had recently filed an NLRB
charge on his behalf. Jt. Exh. 48, pp. 1–2.
21 In his January 22 response, Mathes identified Bustamante, Mon-
toya, and Varela as customer service coordinators, and Bertuca, Mon-
toya, and Padilla as meter reader coordinators. However, he identified
Martinez as an operations representative, and Medina as a supervisor.
Regardless, the Union’s grievances lump Martinez and Medina together
with the others classified by PNM as coordinators. See Jt. Exhs. 49, 50.
PUBLIC SERVICE COMPANY OF NEW MEXICO 35
ground that the named employees could not avail themselves to
the grievance procedure. (Jt. Exh. 49.)
On March 26, Tafoya requested that PNM provide Local 611
with the job descriptions for the coordinators involved as well
as a list of the “other duties” performed by the coordinators that
company representatives mentioned during a recent grievance
meeting and that Mathes alluded to in his January 22 letter. (Jt.
Exh. 51.) In his April 2 response, Mathes provided the job
descriptions Tafoya requested but asked him to explain the
relevance of his request for the added information concerning
the coordinators’ “other duties.” (Jt. Exhs. 52 and 53.)
In an April 7 letter to Mathes, Tafoya reiterated his request
that PNM enumerate the coordinators’ “other duties” that PNM
representatives repeatedly cited. (Jt. Exh. 56.) Apart from the
duties detailed in the coordinators’ job descriptions it provided
to the Union, PNM has not responded to this repeated request.
Argument and conclusions. The Acting General Counsel
and Local 611 argue that PNM violated Section 8(a)(5) by fail-
ing to provide the Union with necessary and relevant infor-
mation it requested in connection with processing the grievanc-
es it filed regarding the proper unit placement of the so-called
coordinators.
PNM tacitly acknowledges that it never provided Local 611
with any specific information about the “other duties” its coor-
dinators perform. However, it argues that the Union “did not
come close to satisfying its burden of demonstrating a reasona-
ble belief, supported by objective evidence, that information
about other duties performed by nonunit employees was rele-
vant.”
PNM’s argument lacks merit. Mathes’ initial response on
this subject identifying certain individuals who perform meter
reading and collection work together with the subsequent
grievances filed by the Union plainly establish the relevance of
the “other duties” information. Recently, in Piggly Wiggly
Midwest, LLC, 357 NLRB 2344 (2012), the Board observed:
“Where the factual basis of a request for nonunit information is
obvious from all the surrounding circumstances, the union’s
failure to spell it out will not absolve the employer of its obliga-
tions under the Act.” Hence, even though the Union may have
failed to articulate the relevance of its request for information
about the “other duties” of the coordinators (and the other two,
Martinez and Medina) in its correspondence with the Company,
the extant circumstances plainly establish the relevance of this
information on its face. If for no other reason, such information
would be essential to assessing whether the meter reading or
collection work performed by the disputed individuals amount-
ed to an incidental or predominate part of their work, or some-
thing in between. As I have concluded that this information is
relevant and necessary to the Union’s representative functions,
particularly as it pertains to the preservation of unit work, I find
Respondent violated Section 8(a)(1) and (5) by refusing to pro-
vide it.
11. Complaint paragraphs 6(c), (d), and (g) alleges that
PNM has failed and refused to furnish Local 611 with infor-
mation requested on February 12, 2010, as to the basis for in-
cluding employees on PNM’s “cyber security” list and the fac-
tors used for making those determinations.
Relevant facts. PNM is regulated by the Federal Energy
Regulatory Commission (FERC). FERC regulations required
that electric utilities such a PNM comply with the FERC-
approved Critical Infrastructure Protection Standards (CIP) that
governs the security of the nation’s bulk electric system. One
CIP standard requires an electric utility to identify critical cyber
assets, i.e., those cyber assets whose function is essential to the
reliable delivery of a vital business process.22 Another CIP
standard requires that each utility company employee with
unescorted physical access to critical cyber assets must undergo
an appropriate personnel risk assessment (PRA) and security
awareness training. This standard requires the utility company
to maintain and utilize a documented PRA program before
granting an employee access to critical cyber assets. At a min-
imum, the utility’s PRA program must include a suitable form
of identity verification and a 7-year criminal background check.
Covered employees must undergo a PRA at least every 7 years
after their initial assessment. (GC Exh. 4, pp. 2–3.) The under-
lying goal of the PRA is to mitigate threats to the national elec-
tric grid by ensuring that only trustworthy and reliable person-
nel have unescorted access to a utility’s facilities, functions or
information. Suffice it to say that the mandated cyber security
regulations address matters of grave importance to national
security. At the same time, compliance with FERC’s regula-
tions necessitates serious intrusions into employee privacy. In
the context of the kind of the largely unconstructive labor rela-
tions relationship present here, the tension between the height-
ened national security needs imposed on PNM and the under-
standable resistance to intrusions on personal privacy become
exaggerated and ugly.
During the negotiations for the 2009 agreement, the parties
could not agree on changes related to PNM’s existing cyber
security, workplace violence, and driving under the influence
policies. Rather than delay the resolution of other contract
terms, the parties agreed to continue negotiations over these
policies for a limited period and then submit any unresolved
issues for final and binding interest arbitration. By September
2009, the parties had been unable to resolve their differences
over the cyber security policy so that matter was submitted to
Arbitrator Marshall A. Snider for resolution. After 3 days of
hearing, Arbitrator Snider issued a 14-page decision that ana-
lyzed and resolved the parties’ arguments concerning the cyber
security policy. He appended to his decision the 6-page cyber
security policy he drafted that incorporated the conclusions he
reached in his decision. (GC Exh. 4.)
The cyber security policy formulated by the Arbitrator Snid-
er contained the following salient features relevant here: (1) the
assets covered by the policy would be determined at the Com-
pany’s discretion; and (2) the employees covered by the policy
would be determined at the discretion of the Company based on
relevant standards set forth in his decision. He recognized the
possibility that an employee might not qualify for access to
cyber secure areas based on the PRA and that this could result

22 In the context used here, a cyber asset is defined as electronic de-
vices used to create, store or process data, communication systems that
transmit information electronically, and hardware or software systems
that support these functions.
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the employee’s termination absent some other suitable solu-
tion. Related to that possibility, Arbitrator Snider specifically
rejected “the Union’s proposal for a joint committee to set dis-
qualification criteria and in some cases to decide whether to
grant access (to cyber secure zones).” He gave these reasons
for rejecting this proposal:
First, the Company is the sole entity responsible for cyber se-
curity under the CIP standards. Second, it is not feasible to
develop a comprehensive set of disqualifying criteria; unless
such decisions can be made on a case by case basis, some
employees who should be denied access may not be covered
by the criteria and others may be denied access when it is un-
necessary to do so. No set of criteria could anticipate every
situation or how a particular piece of information in an em-
ployee’s background should affect a particular individual or
position. In addition, the evidence established that the joint
committee construct is likely to result in delay or deadlock.
[Emphasis added.]
(GC Exh. 4, pp. 9–10.) Ultimately, an employee who fails a
PRA could be moved to another, perhaps lower paying job, or
even be terminated. Any resulting adverse action, the arbitrator
ruled, would be subject to the contractual grievance-arbitration
provision.
Mick Oldham, a senior labor relations representative for
PNM, notified Fitzgerald and Tafoya by email on February 2,
2010, that the Company would commence implementation of
the cyber security policy during the week of February 8. (Jt.
Exh. 58.) Over the course of the next 4 or 5 weeks, Fitzgerald
sought certain information in a series of email exchanges with
Oldham about the employees designated by PNM as having
access to cyber-secure areas and, hence, subject to a PRA that
provide the basis for this complaint allegation.
In his initial request to Oldham, Fitzgerald asked to be pro-
vided with the names and classifications of those employees
designated as PRA eligible as well as a “statement from the
Company as to why the Company has determined each em-
ployee has a reasonable connection to Cyber Security.” (Jt.
Exh. 58, Shannon Fitzgerald email string, p. 4.) In response to
this specific request, Oldham responded by furnishing a list of
the bargaining unit employees selected under the policy and
provided this further response as to the basis for the selections:
With regard to your request concerning the company’s deter-
mination of the employees’ connection to cyber security,
these determinations were made in accordance with the provi-
sions of the arbitration award.
I suggest the union review the attached list first, and then if
there are concerns regarding specific determinations, to pro-
vide the company with the basis of such concerns and we will
certainly be willing to discuss that with you.
(Id., p. 3.)
In reply, Fitzgerald charged that “[i]t looks like the determi-
nation was made by classification and as broad as possible, and
not as per the policy” and that most had only isolated instances
of access to cyber assets or cyber secure areas. He then re-
quested a list of the cyber secure areas the Company had desig-
nated and then stated, “I must insist that the Company show
how the determinations were made.” Fitzgerald also ques-
tioned the inclusion of a specific employee named Royer. (Id.,
p. 3.)
Oldham responded by providing a list of the designated areas
and by continuing to insist that the Company had made its de-
terminations in accord with the arbitration award. He also in-
formed Fitzgerald that the list of covered unit employees was
undergoing revision and that the Union would be provided with
the revised list that would include those designated as “criti-
cal.” As to Royer, Oldham told Fitzgerald that he had been
included because he was “the only Area Rep assigned to San
Juan and therefore the only employee in that classification de-
termined to be covered under the policy at this time.” (Id., p.
2.)
Fitzgerald replied with the continued charge that the Compa-
ny had not complied with the Union’s information request and
added charges that it had “arbitrarily” designated classifications
as cover under the policy even though they have only isolated
access to cyber secure areas. He went on to demand infor-
mation as to when in the past 12 months certain specific em-
ployees had access to covered areas. After disputing that Royer
would have more that isolated access to a cyber secure area,
Fitzgerald asserted:
I must insist that you quit playing games and stalling and pro-
vide the full request for information as to what factors have
been used as well as an explanation as to how all these em-
ployees on the Company list were deemed by the Company to
be covered employees, and what factors were used for the
Company determinations so that I may individually determine
if the Union agrees with the determination or if the Company
arbitrarily and capriciously applied this policy to its members.
As the Company has already issued the releases and employ-
ees are required to return them in 72 working hours you can
see how this information would be required immediately so if
there is disagreement the employee is not wrongly subjected
to an unsubstantiated and intrusive background check.
(Id., pp. 1–2.)
Oldham’s reply joined the issue presented for decision here.
He told Fitzgerald that the arbitrator’s decision “gives man-
agement the discretion to determine what classifications of
employees are subject to the Cyber Security policy. Your ques-
tions are designed to require management to justify its decision
to you and this is not an appropriate use of a request for infor-
mation.” Yet, in response, Fitzgerald, under the guise of inves-
tigating a grievance, continued to insist that the Union be fur-
nished with the basis for why the Company selected each em-
ployee as a covered employee and what access they have to
cyber secure areas. (Jt. Exh. 61, pp 1–2.) Concededly, the
Company never furnished the Union with the reasons it had for
selecting each individual employee it ultimately determined to
be covered by the cyber security policy.23 Instead, it provided a
general explanation of the various factors it applied when con-

23 According to Oldham, these determinations were made in a series
of management meetings without any written record of the specific
factors used by the decisionmakers in deciding that the requirements of
the cyber security policy applied to particular individuals.
PUBLIC SERVICE COMPANY OF NEW MEXICO 37
sidering whether or not an employee was covered. (Jt. Exh. 62,
pp. 1–2.) These factors essentially tracked those identified by
the arbitrator as relevant.
Later, in a February 26 email, Fitzgerald returned to Royer’s
specific situation and asked Oldham to explain what cyber se-
curity access this employee had and how it was more than iso-
lated. Specifically he asked for a list showing when and where
Royer had access to protected areas in the last 6 months. (Jt.
Exh. 62, p. 2.) Although Oldham subsequently responded to
this request by identifying the covered locations where Royer
might be assigned, he did not provide information showing his
access to the specified areas in the last 6 months as requested.
(Jt. Exh. 62, p. 1.)
Argument and conclusions. The Acting General Counsel
and the Union contend that PNM violated Section 8(a)(5) by
failing to provide the Union with the specific rationale it used
in determining that an employee was covered by the require-
ments of the cyber security policy and for its failure to provide
the information requested about Royer’s access to cyber secure
areas in the past 6 months. PNM argues that (1) based on the
arbitrator’s decision granting it the discretion to make coverage
decisions, it had no duty to explain its basis for applying the
cyber security policy to any particular employee; (2) the Union
actually abandoned its original request for this information, (3)
no written record exists showing factors used in making indi-
vidual coverage decisions; and (4) the request was unduly bur-
densome inasmuch as more than 300 employees were involved.
Contrary to Respondent’s argument, I find Fitzgerald never
abandoned his demand that the Company provided a detailed
explanation for designating particular employees as subject to
the cyber security policy or its demand that it justify its deter-
mination with respect to Royer. I find, however, that the Com-
pany had no duty to provide this information in the peculiar
circumstance of this case.
In my judgment, the arguments advanced in the briefs sub-
mitted by the Acting General Counsel and the Union fail to
give sufficient deference to the careful determinations made by
Arbitrator Snider. Instead, their analysis effectively treats the
arbitrator’s decision as though it did not exist, cites standard
cases concerning the duty to furnish information, and argues
that a violation plainly occurred. I profoundly disagree with
their approach and refuse to adopt it.
The parties agreed to abide by Arbitrator Snider’s decision as
final and binding. Enforcing Fitzgerald’s demands that the
Company provide the Union with a declaration of each factor it
relied on in determining that each employee would be subject
to the requirements of the cyber security policy drafted by the
arbitrator would simply eviscerate the arbitrator’s decision and
the parties’ agreement to abide by it. Although the Board’s
seminal decisions in Spielberg and Collyer24 do not apply here,
the fundamental policies expressed in those decisions provide
instructive guidance for resolving this unusual issue.
Arbitrator Snider carefully rationalized the basis for his con-
clusion that the Company should be vested with the discretion
to determine those employees who would be covered by this

24 Spielberg Mfg. Co., 112 NLRB 1080 (1955); Collyer Insulated
Wire, 192 NLRB 837 (1971).
critical policy. In addition, he rejected a proposal to establish a
“joint committee” to determine the disqualifying criteria flow-
ing from an unsatisfactory PRA, in part, based on his conclu-
sion that it would get mired down in endless disputes. There
could be no greater support for the wisdom of this specific con-
clusion by Arbitrator Snider than my own lengthy, tedious, and
time-consuming decision in this case. Reading his decision as a
whole, I find that as to the narrow subject matter pertaining to
the mandatory cyber security policy, the arbitrator established a
scheme that allowed the Company to act unilaterally in making
all preliminary determinations but the Union would be at liberty
to grieve any adverse actions that resulted. As the parties chose
to utilize interest arbitration, the scheme established by the
arbitrator became a part of the parties’ collective-bargaining
agreement as though they negotiated it themselves.
The requests here occurred in the absence of any adverse ac-
tion. In my judgment, the meaning of the word “discretion,” as
used by Arbitrator Snider, is something akin to this standard
dictionary definition: “the freedom to act and think as one
wishes (it is within his discretion to leave).”25 As I have con-
cluded that the nature of the discretion vested in the Company
by the arbitrator’s cyber security policy essentially gave PNM
the unilateral right to decide who would be subject to the poli-
cy’s requirements, I find that it had no obligation to provide the
type of detailed information Fitzgerald sought at the time that
he sought it. In that respect, I essentially agree with the asser-
tion Oldham made in his February 16 email (Jt. Exh. 61, p. 2)
that the Union’s information requests were designed to require
the Company to justify the coverage selections it made. Arbi-
trator Snider’s decision obviates any need for the Company to
provide such justifications. Accordingly, as I find PNM had no
legal duty to honor the Union’s requests, I recommend dismis-
sal of this allegation.
c. Complaint in Case 28–CA–23046
12. Paragraphs 8(a)–(c) alleges that PNM failed and re-
fused to furnish Local 611 with five categories of requested
information pertaining to the investigation of Union Steward
Eric Cox’s conduct at the April 21, 2010 TeleStaff meeting.
Relevant facts. The facts related to the Cox’s conduct at the
Telestaff meeting are fully described above in section C, pages
5–9. As set forth there, Carol Shay, PNM’s in-house labor
counsel, supervised an investigation into Cox’s conduct at that
meeting based on complaints of the managers and supervisor
responsible for conducting the meeting.
On May 5, before the completion of the Shay’s investigation,
Tafoya submitted a written request for information seeking the
following information: (1) the names of everyone interviewed
in the investigation of Union Steward Cox; (2) the list of allega-
tions on which PNM based its investigation of Cox; (3) the
names of the employees who made those allegations; (4) the
interview notes of all employees who were interviewed; and (5)
the investigation report that resulted. (Jt. Exh. 70.)
On May 18, the same day that Mathes notified Local 611
that no disciplinary action would be taken against Cox for his

25 Oxford Pocket American Dictionary of Current English, Oxford
University Press, 2002, p. 222.
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conduct at TeleStaff meeting, PNM informed Local 611 that it
would not provide the requested information as it was not rele-
vant to any union function because no disciplinary action had
been taken and because the documents sought were confiden-
tial. (Jt. Exh. 72.) Tafoya renewed the Union’s information
request on May 20 and PNM again denied the request on June 4
for the same reasons previously given plus the added ground
that Tafoya’s the renewed request was now inappropriate be-
cause of the Local 611’s May 19 unfair labor practice charge
concerning the matter. (Jt. Exhs. 74 and 75.)
Argument and conclusions. The Acting General Counsel
argues that each aspect of the Union’s information request is
presumptively relevant to assess whether or not to file a griev-
ance because the Shay’s investigation may have violated the
provision of the collective-bargaining agreement that prohibits
the Company “from discriminating against stewards for the
faithful performance of their duties to over the Company’s
treatment of its steward.” (Acting General Counsel Br., p. 75.)
The Acting General Counsel argues further that the Cox inves-
tigation Shay conducted is indistinguishable from numerous
other disciplineary investigations the Company routinely con-
ducts. The Union makes additional arguments. It claims that
PNM never made any attorney-client privilege or work product
claim related to this request until the hearing. For that reason,
the Union argues that the Company deprived it of the oppor-
tunity to modify its request by perhaps deleting its demands for
the production of PNM’s interview notes or investigation re-
port. (CP Br., p. 61.)
The Company argues that it had no duty to furnish the re-
quested information for these reasons: (1) the information was
not relevant as Cox suffered no discipline from the Company’s
investigation and nothing in the collective-bargaining agree-
ment governs or restricts the procedures that PNM uses to in-
vestigate employee misconduct; (2) the requested documents
from PNM’s investigation were protected work product; (3)
PNM had no obligation to furnish the Union with the confiden-
tial interview summaries, interview notes, or the opinions or
recommendations of its investigators generated during an inter-
nal investigation that Shay conducted; and (4) the Union’s re-
quest amounted to an inappropriate attempt to obtain discovery
in support of its pending NLRB charge.
I reject the Acting General Counsel’s claim that Shay’s work
amounted to an ordinary disciplinary investigation. Rather, the
focus of her inquiry sought to adduce facts for the purpose of
determining whether a union steward had engaged in an unpro-
tected disruption of an ordinary business meeting on April 21.
In this context, I find that PNM had a reasonable basis to antic-
ipate litigation in the event of a decision to discipline Cox’s for
his disruptive conduct. Indeed, it appears that aspects of the
TeleStaff program were already pending before the NLRB even
at the time the meeting occurred. Accordingly, I find the mate-
rials prepared during the Company’s investigation under the
direction of Shay constituted protected work product within the
meaning of Central Telephone, 343 NLRB 987 (2004), and, for
this reason, the Company had no obligation to provide the Un-
ion with the materials prepared by company representatives
during the investigation Shay supervised.
Moreover, based on the nature of the misconduct engaged in
by Cox (with Tafoya’s eventual full support and endorsement)
at the TeleStaff meeting itself together with the fact that the
initial demand for information occurred in the middle stages of
Shay’s inquiry, I have concluded that the potential for harass-
ment or retaliation that might result from the disclosure of the
identify of any complaining employee or other witness suffi-
ciently outweighs the Union’s need for those names to a degree
that would privilege the Company’s refusal to provide such
information on confidentiality grounds. Northern Indiana Pub-
lic Service Co., 347 NLRB 210, 211 (2006). This timing ren-
ders the Union’s claim that it sought the requested information
to evaluate a possible grievance challenging the Company’s
treatment of Cox highly suspect. Accordingly, I recommend
dismissal of this allegation.
2. The unilateral change allegations
Settled law provides that an employer may not change the
terms and conditions of employment of represented employees
without providing their representative with prior notice and an
opportunity to bargain over such changes. See NLRB v. Katz,
369 U.S. 736, 747 (1962). Put another way, Katz and its prog-
eny bars an employer from unilaterally making material and
substantial changes to the wages, hours, and other working
conditions of union represented employees. This next group of
allegations assert that the Company violated Section 8(a)(5) by
ignoring this rudimentary labor law principle.26
Consolidated Complaint in Cases 28–CA–22655
and 28–CA–22759
1. Complaint paragraphs 7(a), (h), and (g) allege that
PNM violated Section 8(a)(5) by unilaterally implementing a
new policy around June 17, 2009, “requiring employees to sign
forms associated with the tailboard meetings.”
Relevant facts. Prior to the start of any electrical project,
the project leader, whether a supervisor, working foreman, or a
journeyman electrician, must conduct a “tailboard” or
“toolbox” conference with the crew members assigned. This
policy is mandated by OSHA and has been in place at PNM for
a number of years. It is embedded in the jointly negotiated
employee safety manual at section I, subsection 3. (GC Exh.
7.) Subsection 3.1 provides that the tailboard conference shall
include a discussion of the following: (a) the overall job and the
end results expected; (b) the hazards that may be encountered
and how to eliminate them; (c) work assignments; (d) the iden-
tification of any other crews that may be involved and how they
will be involved; (e) the tools and safety devices that will be
needed; and (f) assurances that each individual involved under-
stands completely his assignment.
Over the years, OSHA has conducted a series of so-called
partnership meetings with attended by representatives of indus-
try associations, businesses engaged in the transmission and
distribution of electricity, and the IBEW, Local 611’s parent
organization. No evidence shows that either PNM or Local 611
directly participated in these partnership conferences. One

26 Not addressed in this section are the allegations made at complaint
pars. 7(b), (h), and (g) as they have been addressed and decided at p.
28, above.
PUBLIC SERVICE COMPANY OF NEW MEXICO 39
byproduct of the partnership meetings included the develop-
ment and publication by OSHA of a “Best Practices” series,
one of which included instructions on documenting the required
tailboard meetings. (R. Exh. 4.) The OSHA Best Practice rec-
ommendation included a list of matters the tailboard meeting
should cover and provided for a requirement that the “job brief-
ing form shall have a provision for each employee to sign to
verify they have participated in the job briefing.” (R. Exh. 5.).
In early 2009, PNM’s safety department developed a form
for use at its tailboard meetings and a series of slides designed
to provide instruction in completing the form. (Jt. Exhs. 23 and
101.) The form is largely a check list of matters that might be
covered at the tailboard meeting. However, it also contains
spaces at the bottom of the form for participating employees to
sign and enter their employee number as “attendees.” Nothing
in the attendee signature section or elsewhere appears to seek or
constitute some type of binding verification of the safety manu-
al requirement of an assurance by each of the employees pre-
sent that they completely understand their assignment. There is
no evidence that employees have been told of any potential
discipline for failure to complete the form as a project leader, or
for failing to sign the form as an attendee.
San Juan safety consultant Michael Walls said that Larry
Goodman, the other senior safety consultant at San Juan, devel-
oped the form. The process, Walls said, involved consultations
with “plant personnel to gain input and to consolidate multiple
forms that were in use at the site into a single-use form.” (Tr.
1020.) When Goodman completed the form, he submitted it to
the San Juan General Safety Committee (GSC) at their April
16, 2009 meeting. Following a discussion of the form and sug-
gestions for changes, Walls, who was present at the meeting,
said the committee chairman told Goodman “that he felt the
form looked good, and he went on to say that it wasn’t the
GSC’s position to approve or disapprove the form, since it’s not
contained in the employee safety manual.” (Tr. 1021.) In the
days following the meeting, Walls said that Goodman incorpo-
rated changes in the form suggested during the discussion at the
GSC meeting and put it out for use.
Shortly after Goodman’s tailboard form was placed in use, a
grievance was filed claiming that the Company unilaterally
implemented the use of the form “as well as the requirement
that it be signed.” It also charged that “these Safety
Rules/Procedures have not been approved by the GSC.” After
PNM denied the grievance at the first step, Fitzgerald appealed
the matter to the next step (Jt. Exhs. 21 & 99.) seeking to have
the use of the form rescinded and to stop PNM from requiring
that employees sign it. Later, Fitzgerald submitted an infor-
mation request concerning the form. Ginger Lynch responded
on August 7, 2009, providing him with a copy of the form and
the PowerPoint slides developed for its use. (Jt. Exh. 23.)
Thereafter, on August 17 the Union filed another grievance
concerning the use of the form and the requirement that it be
signed by the employees. (Jt. Exh. 105.) In a letter dated Janu-
ary 10, 2010, PNM’s senior labor relations representative, Mick
Oldham, insisted that the Union withdraw the grievance (Jt.
Exh. 102) in view of its pending NLRB charge27 covering the
subject but Fitzgerald refused to do so. (Jt. Exh. 103.)
Argument and conclusions. Citing the Board decision in
Brimar Corp., 334 NLRB 1035 (2001), the Acting General
Counsel argues that the PNM’s unilateral implementation of the
2009 tailboard form together with the requirement that it be
signed by employees violated Section 8(a)(5). The Charging
Party advances the following shortcomings with the tailboard
form advanced by Fitzgerald:
According to Fitzgerald, the Union’s problems with the form
are: (1) it was unilaterally implemented since it was not ap-
proved by the GSC; (2) the instructions on filling it out bring
more into the job briefing than in the Safety Manual; (3) the
employees are required to sign the form; and (4) by having
the person, even a journeyman, completing the form give the
job briefing, and thus have a journeyman be in charge of an-
other journeyman [Tr. 970–972].
–
(CP. Br., pp. 39–40.) Respondent argues that the issue should
be deferred to arbitration under Collyer, supra. In addition,
Respondent argues that the allegation should be dismissed as
the change involved is not material or substantial.
In my judgment, the most reasonable inference one can make
by comparing the allegation contained in the Union’s original
charge with the allegation the Acting General Counsel eventu-
ally made in his complaint is that at some time during the pre-
complaint consideration of this matter, a decision was made to
attack only the requirement that employees sign the tailboard
form. This conclusion is consistent with both the wording of
the complaint allegation and the Acting General Counsel’s
primary reliance on the Brimar Corp. case in his brief. Contra-
ry to the argument advanced by the Charging Party in its brief, I
find that the narrow issue presented by this complaint allegation
is whether the Company violated Section 8(a)(5) by implement-
ing a requirement that employees sign the tailboard form it
placed in use in April or May 2009.28 And due to the vast de-
gree of difference between the narrow complaint allegation
compared to the Union’s grievances, I find a Collyer deferral
unnecessary and inappropriate.
This allegation lacks merit as the so-called change involved
is neither material nor significant. The employee signature

27 The unfair labor practice charge covering this subject was filed by
the Union’s counsel on October 28, 2009, in Case 28–CA–22759. It
alleged that the Company unilaterally changed its “safety rules, regula-
tions, policies and procedures.”
28 To the degree that the Acting General Counsel’s brief encom-
passes some of the Charging Party’s much broader theories, then seri-
ous evidentiary issues arise. For example, Fitzgerald’s claim that the
tailboard form had to be approved by the safety committee is clearly
inconsistent with Michael Walls’ reliable report of a contrary claim by
the safety committee chairman. Further, the Charging Party’s position
implicates numerous questions about the past practice of journeymen
conducting at least some of the tailboard meetings. The record contains
little, if any, related evidence. One can reasonably assume that the
Acting General Counsel’s office considered such questions when fram-
ing the scope of this complaint allegation and planning its hearing
presentation particularly where, as here, the Acting General Counsel
utilized 611(c) witnesses for the bulk of his case.
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
required here amounts to little more than an attendance sign-in
sheet for a routine work meeting. The requirement in Brimar
was far different. There the Board found that the employee’s
signature on the form presented to them constituted an ac-
knowledgment of what was expected of them in terms of pro-
duction and that by signing the form the employee could be
held accountable. 334 NLRB 1035. Here, PNM employees
have always been required to participate in tailboard meetings;
they are not optional as they are largely conducted for the bene-
fit and safety of employees. Even assuming that the tailboard
form contained some type of acknowledgment regarding the
substance of the meeting, which it does not, the safety manual
would appear to provide the latitude for even that because it
requires the worker’s assurance that he/she understands their
assignment. As I have concluded that the employee signature
requirement here is neither significant nor material, I recom-
mend dismissal of this allegation.
2. Complaint paragraphs 7(c), (h), and (g) allege, in ef-
fect, that since about August 2009, Respondent unilaterally
implemented a new policy limiting access to its ESC premises
in Albuquerque by Local 611 agents.
Relevant facts. The parties make no claim that any specific
provision in the their collective-bargaining agreement addresses
access to the Company’s private property by Local 611 repre-
sentatives. However, there is ample evidence of a 30-year ac-
commodation between the parties that permitted Local 611
representatives access to the ESC for the purpose of meeting
with employees during nonworktimes, attending grievance and
bargaining sessions, and speaking with supervisors and manag-
ers when needed. Through this long accommodation period
virtually no physical barriers to the ESC parking lots and build-
ings existed. In fact, the ESC was so open that angry customers
occasionally came to confront workers and thefts of materials
stored there regularly occurred.
In 2008, the Company undertook to establish more limits on
access to the ESC facility. Line Department Manager Jeff Na-
wman oversaw this process. In the initial phase, the Company
made capital improvements that included the installation of a
fence, more access gates, added security cameras, and the like.
During this period, Nawman requested that Ed Tafoya, the
Local 611 agent primarily responsible for contract administra-
tion at the ESC and, hence, the union representative most fre-
quently at that facility, to park in the visitors lot rather than the
employee lot as had been his practice and Tafoya agreed.
In the next phase, the Company installed electronic locks on
various gates and doors that required a coded card for access
and compiled a written access policy. In December 2008, Na-
wman provided Tafoya with a draft of the new access policy
and asked for his comments. Tafoya complained about some of
the new parking policies and obtained Nawman’s assurance
that the provision for the tire-booting of employee autos would
not be enforced. Tafoya also inquired about his own access
under the new policy. In response, Nawman arranged for
Tafoya to be provided with “Contractor’s Level 2 badge” that
in effect gave him the means to access the ESC between 6 a.m.
and 6 p.m. The draft of the access policy (Jt. Exh. 24) submit-
ted to Tafoya provided that contractor badges would be effec-
tive for 6-month periods but Nawman never discussed this limi-
tation with Tafoya when arranging for the issuance of his
badge.
In mid-January 2009, the Company placed its new access
policy in effect. No evidence shows any complaints by Local
611 about the Nawman/Tafoya arrangement between January
and August 2009. During that period, Tafoya’s access largely
approximated the access that he had always been given prior to
the installation of the new equipment and policies. However,
when his badge ceased to work in early August, Tafoya spoke
to Crista Belt asking for her to remedy the problem. Tafoya
asserted to Belt that his badge had been issued by Nawman “to
allow the Company to install its new security measures without
objection.” (GC Exh. 17.)
A series of email exchanges took place within the Compa-
ny’s upper echelon (GC Exh. 16) concerning the renewal of
Tafoya’s badge that ultimately resulted in the approval of the
following message Belt sent to Tafoya on August 14:29
Since the transition to the new access system is now com-
plete, and given that you are not a contractor, the Company
has determined that it is more appropriate for you to have
“visitor” access instead of the “contractor” access. You will
have the same access as all other non-contractor vendors and
retirees who are not currently employed at PNM. We are not
aware of any limitations this would create in the performance
of your Union Business Agent duties to represent the bargain-
ing unit employees. Please contact myself or Ray Mathes if
you experience any difficulties with this.
(Jt. Exh. 25.)
The January 2009 access policy provides as follows with re-
spect to visitors:
Visitors: All visitors will be required to sign in with Security
or at the front desk of the Administration Building. Visitor’s
badges or stickers will be issued to visitors by Security or by
an ESC employee. Employees will be required to escort visi-
tors at all times within the ESC compound. Visitors can be
pre-announced to Security by calling 241-3642 and Security
will provide notification when the visitor has arrived. Em-
ployees will be required to pick up and return visitors at either
the main service gate (E-4) or the front lobby of the Admin-
istration Building. Visitor badges should be returned to Secu-
rity at the end of the visit.
(Jt. Exh. 24.)
Since August 14, Company officials have refused repeated
requests that the original access arrangement Nawman made
with Tafoya be restored.
Argument and conclusions. The Acting General Counsel
and the Charging Party argue that Belt’s August 14 message
and the subsequent refusal to restore the terms of Tafoya’s
access amounts to an unlawful unilateral change in the past
practice regarding access to the ESC by union agents. This

29 These email exchanges produced pursuant to the Acting General
Counsel’s subpoena surprisingly contain no reference whatever of
Tafoya’s conduct that disrupted the April 2009 TeleStaff meeting.
Likewise, Respondent’s brief advances no argument that the TeleStaff
incident motivated Respondent’s action upon Tafoya’s request that the
Company renew his contractor’s badge.
PUBLIC SERVICE COMPANY OF NEW MEXICO 41
change, the Acting General Counsel argues, is material and
significant inasmuch as it substantially restricted the access
Tafoya had with the unit employees when compared to the
access he had historically and under the arrangement estab-
lished with Nawman. Respondent contends that the evidence
fails to support a finding of a past practice regarding access to
its private property and even if it does, no material or signifi-
cant change occurred in August.
I did not agree with Respondent’s claim. An employer is not
at liberty to unilaterally alter an established past practice allow-
ing access to its premises by an employee representative for the
purpose of performing representative functions even where that
access is not specifically incorporated in the collective-
bargaining agreement. Granite City Steel Co., 167 NLRB 310,
312–313 (1967). Here, the evidence shows a longstanding
practice of granting union agents access to PNM’s private
property for the purpose of providing service to the employees
the Union represents. Nawman, a PNM manager with a long
tenure at the ESC, admitted as much. Moreover, his conduct
prior to the implementation of the access policy in January
plainly recognized that fact and the arrangement he made with
Tafoya for issuance of a Contractor’s Level 2 badge amounted
to a binding agreement between the Company and the Union
concerning the method for future access under the new policy.
The visitor-pass arrangement Company officials imposed in
August restricts the hours of access to a greater degree than the
Contractor’s Level 2 badge and, unlike the contractor’s pass, it
requires a continuous escort. The hours of access under a visi-
tor’s pass virtually eliminates the union agent’s access to em-
ployees before and after their work hours. The escort aspect of
a visitor’s pass, in particular, would clearly inhibit the kind of
candid exchanges possible between the represented employees
and their union agents. Accordingly, the change made in Au-
gust is material and significant. Ernst Home Centers, 308
NLRB 848, 849 (1992). For these reasons, I find that the Com-
pany’s unilateral alteration of Tafoya’s ESC access arrange-
ment in August 2009 when it refused to renew his Contractor’s
Level 2 badge without the Union’s consent or an impasse in
negotiations concerning his access to that facility violated Sec-
tion 8(a)(5) as alleged.
3. Complaint paragraphs 7(d), (h), and (g) alleges that in
late October 2009, PNM violated Section 8(a)(5) when it issued
cell phones to unit employees and promulgated new rules re-
garding their maintenance and use without providing Local 611
prior notice and an opportunity to bargain about this subject.
Relevant facts. This issue pertains to the details of the
physical means for contacting the on-call journeymen in the
line department of PNM’s Santa Fe division and to communi-
cate with on-duty linemen in certain remote areas. For about
10 years, pagers or cell phones have been used to supplement
the spotty radio communications that can occur in the moun-
tainous portions of the Santa Fe division. During that time,
PNM maintained a lengthy written policy, the PCD policy,
covering the use of Company cell phones and personal cell
phones used for conducting PNM business. The latest revision
of the PCD that issued in February 2008 continued a prior ar-
rangement whereby supervisors could authorize a reimburse-
ment of up to $40 per month for on-call linemen who opted to
use their personal cell phones instead of a company phone.
In January 2009, the Company altered this Santa Fe ar-
rangement by issuing cell phones from a company equipment
pool to all on-call employees thereby obviating the need to
reimburse employee for the use of their personal cell phone.
This change resulted in the filing of several grievances. One
(R. Exh. 2), filed by lineman Dennis Tapia, complained about
the failure to provide a phone from the Company’s cell phone
pool due to the lag time between the end of an employee’s on-
call status and the return of the assigned phone to the pool so it
could be issued to the next on-call lineman. Another (R. Exh.
3) filed by Union Steward Cale Chappelle,30 charged that the
Company unilaterally discontinued reimbursements for the use
of personal cell phones. Labor Relations Representative Crista
Belt credibly testified that Chappelle, who acknowledged he
had numerous exchanges about this subject with the then Santa
Fe Division Manager Armand Alessandrone throughout this
period (Tr. 886), told her in late September that the Union
wanted the PNM to provide cell phones or restore the reim-
bursements to employees in order to resolve the pending griev-
ances.31 (Tr. 454–455.)
By October 2009, the issue addressed in Tapia’s grievance
became so problematic that PNM began issuing cell phones to
all Santa Fe linemen.32 Alessandrone announced this arrange-
ment in an October 27 letter to Chappelle with a copy to
Tafoya. It stated:
Earlier this year, we went to a “pool” approach for cell phones
in the Santa Fe Line department. However, since then we
have reviewed this approach and determined the cost savings
and efficiency is not significant at this time. Therefore, please
be advised of our intent to issue cell phones for Company
business only, to each individual Santa Fe Journeyman within
the next 30 days. Employees will be responsible to properly
maintain, charge, and have the phones in their possession dur-
ing all assigned work hours. There will not be any reim-
bursement of personal cell phones for Company business.
(Jt. Exh. 42.) He personally presented this letter to Chappelle
in a meeting also attended by Tafoya and Sonia Otero, a com-
pany human resources representative. By the time he received
the letter, Chappelle said, “[T]here was not a whole lot that
really could be said . . . (because this) was pretty much the
culmination of the whole year of chaos.” (Tr. 888.)
Later, however, Chappelle complained to Allesandrone
about the lack of an option in his October letter that permitted
linemen use personal phones with a company reimbursement,
as well as the requirements that employees were responsible for

30 By the time of these events, Chappelle had been a steward in the
Santa Fe line department for 10 years.
31 In addition, Belt claims that Chappelle also requested authorized
overtime work for a particular employee. The relationship of this par-
ticular demand to the cell phone grievances was never clearly ex-
plained.
32 Aside from the lag time problem, Chappelle said that the phones
came without auxiliary equipment such as chargers or spare batteries so
that the phones would occasionally go dead even when they arrived in
the correct hands.
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
keeping the phones charged and with them at all times. Chap-
pelle also complained to Allesandrone that his letter made no
provision for the using the Company’s phone for minimal per-
sonal use in accord with the Company’s existing policy. (Tr.
888–889.)
On October 28, 2009, Local 611’s counsel filed the NLRB
charge in Case 28–CA–22759 underlying the cell phone allega-
tion made in this complaint. The allegation in that charge on
the subject of cell phones claimed that the Company “made
unilateral changes in . . . the use of personal cell phones as well
as mandating the use of Company-owned cell phones in the
Santa Fe Line Department.”
Argument and Conclusions. The Acting General Counsel
argues that Manger Allensandrone failed to give the Union any
opportunity to bargain when he promulgated the various chang-
es that are set forth in this October 27 letter to Chappelle,
namely, (1) requiring linemen to carry cell phones at all times
while working; and (2) subjecting employees to discipline un-
der existing company policies for not maintaining, charging,
and carrying their company cell phones. The Charging Party
argues Allensandrone’s letter unilaterally “denied any reim-
bursement (for the option of using personal cell phones) as well
as any use of the company phones for personal business.”
Respondent argues that any claim concerning the discontinu-
ance of the reimbursement policy for use of personal cell phone
is barred by the 10(b) statute of limitations because that change
occurred in January 2009 and the cell phone charge was not
filed until the end of October. Moreover, the Company argues
that Allensandrone’s October letter did not “implement any
new policy or rule at all. Regardless, Respondent argues that
any claimed “unilateral change,” such as the requirement that a
company-issued cell phone be charged and useable or that it be
carried at all times, is not material and significant.
I find this allegation lacks merit. A conclusion that the
Company did anything “unilaterally” in connection with this
subject would be a perverse misuse of the word by anyone who,
like I, observed and listened to Chappelle describe what oc-
curred here. His entire manner and tone left me with the un-
mistakable impression that he had endless discussions with
Allensandrone regarding a solution to this routine workplace
problem. Given the time span involved, and the lack of evi-
dence about any significant involvement by higher level Local
611 officials, leads me to conclude that Chappelle served as the
Union’s point man on this subject. For this reason, I have re-
lied on primarily on his words and conduct in this situation.
I reject the Union’s contention that PNM violated the Act by
discontinuing the policy of reimbursing employees the use of
their personal cell phones because that claim is timebarred.
Chappelle’s second step grievance dated February 2 confirms
that this action occurred no later than that date which is just
short of 9 months before the filing of the first charge related to
the cell phone issue. In addition, this claim by the Union’s
appears to be inconsistent with any theory advanced by the
Acting General Counsel about cell phones.
In addition, I have concluded that the Acting General Coun-
sel’s arguments fail account for the historical context of Allen-
sandrone’s October letter. The Acting General Counsel’s claim
that Allensandrone unilaterally changed an existing policy by
requiring linemen to carry cell phones either incorrectly as-
sumes that had not been the prior practice or that he, in effect
changed the rules in the employee safety manual. I find his
October letter is not susceptible of either interpretation.
Chappelle’s testimony makes clear that the cell phone dis-
pute related not only to management’s ability to contact on-call
employees as the Acting General Counsel assumes, but also to
its ability to reach on-duty employees throughout the geograph-
ical area served by the Santa Fe Division. The added claim by
the Acting General Counsel Allensandrone established new
rules of some sort requiring employees to keep their cell phones
charged and otherwise maintained, whether they used their own
or the Company’s, is factually undermined by Chappelle’s
complaints the frequency with which the pool phones were
unaccompanied by chargers or spare batteries. And the claim
that Allensandrone’s October letter changed existing safety
rules lacks merit as nothing in his letter is reasonably suscepti-
ble to an interpretation that employees had to have phones
available on their person in situations previously deemed un-
safe under ordinary safety procedures. For these reasons, I
have concluded that all of these assertions are little more than
the fruit of Local 611’s inventive imagination. I recommend
dismissal of this allegation.
4. Complaint paragraphs 7(e), (f), (h), and (g). Complaint
paragraph 7(e) alleges that since about March 26, 2009, PNM
“has failed and refused to consider and recognize employees
who hold the job title of Operations Representative and perform
electrical meter reader and collector work as being employed
within the Electrical Unit.” The closely related complaint par-
agraph 7(f) alleges that since July 20, 2009, PNM has refused
to process a grievance filed by the Union seeking to require that
PNM properly classify James Martinez and similarly-situated
employees and and place them in the electrical unit.
Relevant facts. Prior to 2008, the Union did not represent
PNM’s meter readers or collectors, the MRC employees, or its
employees who worked on the gas side of its operations. In
early 2008, the Union filed two representation petitions with
the NLRB. One petition sought an election in a unit MRC em-
ployees and the other sought an election in a unit of employees
working in the gas operations. The unit sought by the Union in
the gas operations included employees the Company classified
as “operations representatives.” The Union did not seek to
represent this classification, or its generic cousin, in the MRC
unit. The subsequent elections were conducted by the Regional
Director pursuant to the parties’ stipulated election agreements.
The Union ultimately won both elections by margins wide
enough to make it unnecessary to consider any of the chal-
lenged ballots. In January 2009, PNM divested itself of its gas
operations.
Following the MRC election, the Regional Director certified
Local 611 on May 8, 2008, as the exclusive representative of
the employees in the following stipulated unit:
All meter readers, who regularly read only electric meters or
both electric and gas meters, and all collectors employed by
the Employer in the State of New Mexico; excluding all meter
readers who regularly read only gas meters, all employees
currently represented in any existing bargaining unit, all ad-
PUBLIC SERVICE COMPANY OF NEW MEXICO 43
ministrative, production, maintenance, construction, and man-
agerial employees, office employees who do not regularly
work in the field, office clerical employees, guards, and su-
pervisors as defined in the Act.
(Jt. Exh. 29; see also Jt. Exh. 111, the stipulated election
agreement.) There is little if any evidence as to what occurred
between the time of this certification and the conclusion of the
negotiations for a new collective-bargaining agreement that
became effective on May 1, 2009. However, that unit set forth
in that agreement merits the inference that that the parties effec-
tively merged the newly certified MRC unit into the historical
unit represented by Local 611. (GC Exh. 5., art. 3B, p. 3.)
James Martinez, a self-described meter reader who has
worked for PNM at its Las Vegas, New Mexico office for 10
years, is classified as an operations representative. The Las
Vegas office operates under the direction of PNM’s divisional
office in Santa Fe, some 70 driving miles to the west. The six
other employees work at that office include two cashiers, three
line department workers, and a designer who works at that loca-
tion 2 days a week. There are no other workers in the Las Ve-
gas area engaged in meter reader work.
Martinez’ work duties consist of performing the scheduled
electrical meter reading around Las Vegas, delivering 2-day
service cancellation notices, hand-delivering PNM bills to the
city of Las Vegas and the area schools pursuant to an special
arrangement with those public entities, and maintaining the
company truck he uses for his work. (Tr. 352.) Although PNM
has never had any gas operations in the Las Vegas area, and
Martinez has never worked for PNM in any of its gas opera-
tions elsewhere, his name appeared on the Excelsior list for the
2008 election in the gas unit. PNM challenged the ballot cast
by Martinez on the ground that he was not employed in the gas
operation. (GC Exh. 21.) In addition, the Regional Director
sent a ballot to Martinez in the MRC election but he did not
return that ballot. (GC Exh. 20.)
The job descriptions for operations representative I and II
(GC Exhs. 10 and 11) lists meter reading as one of several,
wide-ranging functions an incumbent is expected to perform.
The meter reader and senior meter reader job descriptions (Jt.
Exh. 52) focus more narrowly on a variety of tasks connected
with the meter reading function than is found in the description
for the operations representative.
On May 20, 2009, Union Agents Tafoya and Fitzgerald met
with Frank Storey, PNM’s manager of meter readers and col-
lectors, and Belt to discuss the Martinez situation. They re-
quested that he be reclassified in the unit as a senior meter
reader. On May 22, the Union filed a grievance complaining
that the Company failed to do so. Thereafter, the Company
offered to settle the Martinez matter by classifying him as a
meter reader but it refuses to classify him as a senior meter
reader on the ground that he does not perform significant senior
meter duties.33 Hence, this extraordinarily ordinary matter
remains stalemated.

33 The Company claims that Martinez does not perform important
senior meter reader duties such as serving as coordinator’s backup or
providing functional leadership to other meter readers. Martinez earned
$15.21 per hour at the time of the hearing. The contractual hourly rate
However, the Company also refuses to recognize the Mar-
tinez grievance. In a July 20 email to Tafoya, Belt advised that
the “Martinez matter does not meet the definition of a griev-
ance under Article 10 of the CBA.” Article 10 defines a griev-
ance as “limited to a dispute between the parties hereto with
respect to the interpretation or application of the provisions of
this Agreement or the application of a specific policy to a spe-
cific employee.” (GC Exh. 5, p. 10, emphasis added.)
Argument and conclusions. As to complaint paragraph
7(e), the Acting General Counsel’s brief argues that I should
conclude on the basis of the Board’s analytical model articulat-
ed in Caesar’s Tahoe, 337 NLRB 1096 (2002), and its progeny,
that Martinez belongs in the MRC unit, and that Respondent
violated Section 8(a)(5) by its refusal to include Martinez in the
MRC unit. The brief cites Public Service Co. of New Mexico,
337 NLRB 193 (2001) (the prior PNM case) to support this
theory of a violation. Local 611 also argues that PNM has ef-
fectively changed the certified unit by its refusal to include
Martinez in the unit on the ground that he is an operations rep-
resentative and cites Grosvenor Resort, 336 NLRB 613 (2001),
as precedent for their conclusion. Respondent, citing Verizon,
350 NLRB 542 (2007), argues that no violation should be
found as to this allegation because it has a “sound arguable
basis” for its position regarding the application of the contract
in the Martinez matter.
I find merit in Respondent’s argument. In my judgment, it
would be inappropriate at this late date and in the context of a
refusal to bargain unfair labor practice case to determine on the
basis of a Caesar’s Tahoe analysis that Martinez has always
been in the MRC unit. In my judgment, finding PNM’s current
refusal to treat him as a part of the MRC unit as tantamount to a
unilateral change in the unit scope would not be appropriate.
Grosvenor Resort and the prior PNM case on which the Acting
General Counsel relies are factually distinguishable.
The evidence in this record merits the inference and conclu-
sion that Martinez and a few others were originally excluded
from the MRC unit at the time of the NLRB election largely by
mistake. Grosvenor Resort, the prior PNM case and others like
them, involve situations where an employer took affirmative,
unilateral action to remove categories of historically represent-
ed employees from a bargaining unit. Those cases implicate
the principle that a party may not press a unit scope issue to the
point of impasse because it is a permissive, rather than a man-
datory, subject of bargaining.
Here, parties have resolved this problem as to all affected
employees other than Martinez. There is little indication that
they have any serious disagreement about his eventual inclu-
sion in the represented unit. Instead, they simply cannot come
to an agreement about a proper meter reader job classification
for Martinez. Local 611 demands that he be classified as a
collector or a senior meter reader; PNM refuses to give in on its
argument that Martinez’ work duties qualify him for no more
than a meter reader 12+ classification.

for meter readers with over 12 months of experience was $15.50. The
senior meter reader hourly rates ranged from $16.25 to $18. GC Exh.
5, p. 82.
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find no merit to the Acting General Counsel’s argument re-
garding complaint allegation 7(e) that Respondent violated
Section 8(a)(5) by its failure to include operations representa-
tives in the MRC unit at Local 611’s request if an employee so
classified engaged in any meter reading.34 As Respondent cor-
rectly notes, the job descriptions in evidence establish that one
of the several duties of the operations representatives historical-
ly included at least some meter reading work. As that situation
existed at the time of the election, any effort to now sweep the
operations representatives into the merged unit because of the
meter reading responsibilities of this group, whatever and how-
ever much they are, would appear to raise a question concern-
ing representation. For these reasons, I recommend dismissal
of complaint paragraph 7(e).
As for complaint paragraph 7(f), counsel for the Acting Gen-
eral Counsel argues that PNM’s refusal to process the grievance
related to Martinez’ situation violates Section 8(a)(5). Local
611 argues that PNM’s conduct in connection with Martinez
and similarly situated employees amounts to a “bad-faith re-
fusal to bargain and an insistence that PNM can determine the
scope of the certified and agreed-upon unit simply by what job
title it gives them.” Respondent argues that the Union could
not properly file a grievance related to Martinez because he
does not belong to the bargaining unit and is not represented by
the Union. In effect, Respondent stands by Belt’s July 20 email
(Jt. Exh. 32) for its defense to this allegation.
PNM’s refusal to process the Martinez grievance on the
ground that he does not have access to the grievance procedure
begs the question. Local 611 has access to the grievance pro-
cedure because it is one of the “parties” to the agreement seek-
ing the resolution of a dispute “with respect to the interpretation
or application of the provisions” as provided in the contractual
grievance definition. In the case of Martinez, the Union’s con-
cern has at least a degree of legitimacy as Martinez spends
nearly all of his time engaged in meter reading or closely relat-
ed work. For this reason alone, the Union would arguably have
a substantial interest, entirely apart from Martinez, in resolving
the situation at Las Vegas due to its exclusive representative
status as to the MRC unit and the legal duties that status entails.
Usually the courts refuse to find a grievance is not arbitrable
unless it can be “said with positive assurance that the arbitra-
tion clause is not susceptible of an interpretation that covers the
asserted dispute.” Steelworkers v. Warrior & Gulf Navigation
Co., 363 U.S. 574, 582–583 (1960). This same principle would
apply to a situation involving a party that refuses to process a
grievance from the outset. For this reason, I find Respondent’s
defense is not sufficient to foreclose an 8(a)(5) finding for its
refusal to participate in the grievance procedure in order to
resolve the May 22 grievance the Union filed concerning Mar-
tinez.
But that does not appear to be the end of the matter. Counsel
for the Acting General Counsel relies on Contract Carriers
Corp., 339 NLRB 851, 852 (2003), in support of the contention

34 The unit clarification process described in Sec. 101.17 of the
Board’s Statement of Procedures ordinarily would serve as a mecha-
nism to resolve this type of dispute but that process would not resolve
the Martinez reclassification dispute at the core of this matter.
that Respondent violated Section 8(a)(5) by refusing to process
the Martinez grievance. I find that case factually distinguisha-
ble from the situation here. The facts in Contract Carriers
show that an employer group refused to participate in numerous
bilateral meetings necessary under the contractual grievance
procedure to process and resolve grievances. Here, Respondent
has refused to process only a single grievance, i.e., that involv-
ing the Martinez situation.
The Board has held that an employer’s refusal to arbitrate a
single grievance does not always rise to the level of an unfair
labor practice. Velan Valve Corp., 316 NLRB 1273 (1995).
The Board summarized the governing principles in such situa-
tions as follows:
It is well settled that not every employer refusal to arbitrate
violates Section 8(a)(5). Mid-American Milling Co., 282
NLRB 926 (1987). Where there is a refusal to arbitrate all
grievances, or where the refusal to arbitrate a particular class
of grievances amounts to a wholesale repudiation of the con-
tract, a violation will be found. See Indiana & Michigan
Electric Co., 284 NLRB 53 (1987). Conversely, if the refusal
to arbitrate is limited to a single grievance or specifically de-
fined, “narrow class” of grievances, Section 8(a)(5) is not vio-
lated. GAF Corp., 265 NLRB 1361, 1365 (1982); Mid-
American Milling Co., supra. The relevant inquiry in deter-
mining whether an employer’s refusal to arbitrate violates the
Act is whether the employer, by its refusal, has thereby unilat-
erally modified terms and conditions of employment during
the contract term. Southwestern Electric, 274 NLRB 922,
926 (1985).
316 NLRB at 1274. Footnote omitted; emphasis added. Sub-
sequently, the Board cast the Velan Valve rule in this slightly
different language: “An employer’s refusal to arbitrate griev-
ances, pursuant to a collective-bargaining agreement, violates
Section 8(a)(5) of the Act if the employer’s conduct amounts to
a unilateral modification or wholesale repudiation of the collec-
tive-bargaining agreement.” ACS, LLC, 345 NLRB 1080, 1081
(2005).
I find the Velan Valve rule controls complaint paragraph 7(f).
Although I have found other violations in this consolidated
proceeding, the evidence shows that the Martinez matter is
sufficiently discrete and isolated as to preclude a finding that
PNM’s failure to process this single grievance amounts to a
“unilateral modification or wholesale repudiation of the collec-
tive-bargaining agreement.” Therefore, I recommend dismissal
of complaint paragraph 7(f).
CONCLUSIONS OF LAW
1. Respondent Public Service Company of New Mexico is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 611 is a labor organization within the meaning of
Section 2(5) of the Act that serves as the exclusive collective-
bargaining representative of the following appropriate unit of
employees within the meaning of Section 9(a) of the Act:
All employees of the Respondent’s Electric, Water, Transmis-
sion, Distribution, Production, Meter Reader, and Collector
departments in the divisions and jobs referenced in Respond-
PUBLIC SERVICE COMPANY OF NEW MEXICO 45
ent’s collective-bargaining agreement with the Union effec-
tive by its terms from May 1, 2009, through April 30, 2012.
3. By failing to provide Local 611 with the following rele-
vant information it requested: (a) about accidents occurring at
the San Juan Station involving an asbestos exposure; (b) that
sought in items 4, 5, and 7 of the request for information related
to grievance SJ-08-15; (c) the unredacted copies of the dis-
charge recommendations prepared by Ginger Lynch in connec-
tion with the termination of employees Guy Claw and Everand
Silas; and (d) a list of the “other duties” performed by individu-
als classified as coordinators, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (5) of
the Act.
4. By unilaterally changing the requirement for Local 611
representatives to access its ESC facility in Albuquerque, New
Mexico, in August 2009, Respondent violated Section 8(a)(1)
and (5) of the Act.
5. Respondent did not engage in any other of the unfair labor
practices alleged this consolidated proceeding.
6. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, my recommended order requires them to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Affirmatively Respondent must forthwith furnish the infor-
mation necessary and relevant to the performance of Local
611’s duties as the exclusive collective bargaining representa-
tive of Respondent’s employees that it unlawfully withheld.
Furthermore, Respondent must restore the ability of Local 611
agents to access its ESC facility in Albuquerque, New Mexico,
as it existed from January until August 2009. In the event Re-
spondent has altered its access procedures in the meantime, it
will be required to provide Local 611 representatives with a
form of access substantially equivalent that which existed from
January until August 2009 until it negotiates alternate access
procedures applicable to representatives of Local 611 or reach-
es a lawful impasse attempting to do so.
Respondent will also be required to post the notice attached
as Appendix A in order to inform employees of the outcome of
this matter.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended35
ORDER
The Respondent, Public Service Company of New Mexico,
State of Mexico, its officers, agents, successors, and assigns,
shall
1. Cease and desist from

35 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(a) Refusing to bargain with Local 611 as the exclusive rep-
resentative of the employees in the following appropriate unit:
All employees of the Respondent’s Electric, Water, Transmis-
sion, Distribution, Production, Meter Reader, and Collector
departments in the divisions and jobs referenced in Respond-
ent’s collective-bargaining agreement with the Union effec-
tive by its terms from May 1, 2009, through April 30, 2012.
(b) Refusing to provide Local 611 with the information it
requests that is necessary and relevant to the performance of its
duties as the exclusive collective-bargaining representative of
the employees in the above unit.
(c) Changing past practices that affect the terms and condi-
tions of employment of its employees in the above unit without
the prior consent of Local 611 or a lawful impasse in negotia-
tions over any proposed change.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of this Order, provide Local 611 with the
following information necessary and relevant to the perfor-
mance of its representative functions: (1) the relevant infor-
mation it requested concerning accident reports that involve an
asbestos exposure; (2) the relevant information pertaining
grievance SJ-08-15 that it declined to provide on August 14,
2009; and (3) unredacted copies of the discharge recommenda-
tions prepared by Ginger Lynch in connection with the termina-
tion of employees Guy Claw and Everand Silas; and (4) the
relevant information it requested about the other duties per-
formed by persons classified as coordinators.
(b) Within 14 days of this Order, restore the access Local
611 agents had to its Electric Service Center facility in Albu-
querque, New Mexico, to that which existed from January until
August 2009, or in the event Respondent has generally altered
its access procedures, provide Local 611 agents with a form of
access substantially equivalent that which existed between Jan-
uary and August 2009.
(c) Within 14 days after service by the Region, post at its fa-
cilities located in the State of New Mexico, copies of the at-
tached notice marked “Appendix.”36 Copies of the notice, on
forms provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representative,
shall be posted and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,

36 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has
gone out of business or closed a facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and for-
mer employees of Respondent at any time since March 31,
2009.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply with this Order.
IT IS FURTHER ORDERED that the consolidated complaint be
dismissed insofar as it alleges violations of the Act not specifi-
cally found.
Dated, Washington, D.C., February 17, 2012.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain with Local 611 as the exclu-
sive representative of our employees in the following appropri-
ate unit:
All employees of the Respondent’s Electric, Water, Transmis-
sion, Distribution, Production, Meter Reader, and Collector
departments in the divisions and jobs referenced in Respond-
ent’s collective-bargaining agreement with the Union effec-
tive by its terms from May 1, 2009, through April 30, 2012.
WE WILL NOT refuse to provide Local 611 with the infor-
mation it requests that is necessary and relevant to the perfor-
mance of its duties as the exclusive collective-argaining repre-
sentative of the employees in the above unit.
WE WILL NOT change past practices that affect the terms and
conditions of employment of our employees in the above unit
without the prior consent of Local 611 or a lawful impasse in
negotiations over any proposed change.
WE WILL NOT in any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL provide Local 611 with the following information it
previously requested: (1) accident reports that involve an asbes-
tos exposure at the San Juan Station; (2) items 4, 5, and 7 of
Local 611’s request for information concerning grievance SJ-
08-15 that we declined to provide on August 14, 2009; (3) un-
redacted copies of the discharge recommendations prepared in
connection with the termination of employees Guy Claw and
Everand Silas; and (4) a list of the other duties performed by
employees classified as coordinators.
WE WILL restore the access Local 611 agents had to our Elec-
tric Service Center facility in Albuquerque, New Mexico, to
that which existed from January until August 2009.
PUBLIC SERVICE COMPANY OF NEW MEXICO