337 NLRB 193
Public Service Co. of New Mexico
PUBLIC SERVICE CO. OF NEW MEXICO
193
Public Service Company of New Mexico, and its
wholly owned subsidiaries Avistar, Inc., and
Manzano Energy Corporation, a single em
ployer and International Brotherhood of Elec
trical Workers, Local Union No. 611, AFL–CIO.
Case 28–CA–16420
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On August 3, 2001, Administrative Law Judge Albert
A. Metz issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Ge neral
Counsel and the Charging Party filed briefs answering
the Respondent’s exceptions, and the Respondent filed
briefs in reply to the answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find
ings,1 and conclusions2 and to adopt the recommended
Order as modified.3
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis
trative law judge’s credibility resolutions unless the clear preponder
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We agree with the judge’s application of the “clear and unmistak
able waiver” standard of Metropolitan Edison Co. v. NLRB, 460 U.S.
693 (1983), in determining that the management-rights clause of the
parties’ collective-bargaining agreement did not privilege the Respon
dent’s unilateral conduct in this case. However, even under the “con-
tract coverage” test applied by the Chairman below, we would reach the
same result.
Chairman Hurtgen notes that the judge, in rejecting the Respon
dent’s argument that it acted lawfully pursuant to the management
rights clause in its contract with the Union, employed the “clear and
unmistakable waiver” analysis of Metropolitan Edison, supra. In
Chairman Hurtgen’s view, the “contract coverage” analysis, set forth
by the D.C. Circuit in NLRB v. Postal Service, 8 F.3d 832 (1993), is the
appropriate test. See, e.g., his partial concurrence in Mt. Sinai Hospital,
331 NLRB 895 (2000), enfd. 8 Fed.Appx. 111, 2001 WL 533552 (2d
Cir. May 17, 2001). Under a “contract coverage” analysis, Chairman
Hurtgen agrees that the Respondent’s conduct was not privileged.
Unlike the situation in Mt. Sinai Hospital, Chairman Hurtgen finds that,
in the instant case, the judge correctly determined that, whether ana
lyzed as a change in unit scope or as a unilateral transfer of unit work,
the Respondent’s actions with respect to the meter service technician
classification were unlawful.
3 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
ORDER
The National Labor Relations Board adopts the rec
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Public
Service Company of New Mexico and its wholly owned
subsidiaries Avistar, Inc., and Manzano Energy Corpora
tion, a single employer, Albuquerque, New Mexico, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Delete paragraph 2(g) and insert the following in its
place.
“(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig
nated by the Board or its agents, all payroll records, so
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
Lew Harris, Esq., for the General Counsel.
George Cherpelis, Esq. and Timothy L. Salazar, Esq., for the
Respondent.
John L. Hollis, Esq., for the Charging Party.
DECISION1
ALBERT A. METZ, Administrative Law Judge. This case in
volves issues of whether the Respondent has violated Section
8(a)(1) and (5) of the National Labor Relations Act (Act).2
More specifically, the issues center on whether the Respondent
refused to bargain with the Union about the decisions or effects
of the decisions it made (1) requiring employees to wear uni
forms, and (2) the elimination of the meter service technician
(MST) position. On the entire record, including my observation
of the demeanor of the witnesses, and after consideration of the
parties’ briefs, I make the following findings of fact.
I. JURISDICTION AND LABOR ORGANIZATION
The answer of Public Service Company of New Mexico
(PNM) admitted that Manzano Energy Corporation (Manzano)
has been a separate operating division of PNM, sharing com
mon ownership and some common officers. PNM further ad
mitted that these two companies have formulated and adminis
tered certain common labor policies, have shared common
premises, have provided certain services for each other and
have held themselves out to the public as a single integrated
business enterprise with the intent of reorganizing into two
separate affiliated corporations in compliance with the Electric
Utility Industry Restructuring Act of 1999.
PNM also admits that, at all times material, Avistar, Inc.
(Avistar) has been a separate corporation from PNM, operating
as wholly owned subsidiary thereof with some common offi-
1 This case was heard at Albuquerque on March 13–15, 2001. All
dates in this decision refer to the year 2000 unless otherwise stated.
2 29 U.S.C. § 158 (a)(1) and (5).
337 NLRB No. 31
194
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cers. Avistar and PNM have formulated and administered cer
tain common labor policies, to a limited extent have shared
common premises and have provided limited services for each
other.
The record shows that PNM and Avistar have signed an ad
ministrative service agreement which states that PNM will
provide the following labor relations services to Avistar:
19. Human Resources, Staffing, Benefits
Provides staffing and recruitment services; compensation de-
sign and administration services; benefits administration; em
ployee relations services; compliance support services, e. g.,
Equal Employment Opportunity and Affirmative Action; loss
control and safety services; administration of drug and alcohol
testing program; labor relation services; maintenance of
PNM’s policies and procedures; and assistance in develop
ment of procedures and manuals. [GC Exh. 3, schedule B,
item 19, p. 5].
In February 2000, PNM gave notice to the Union of its de-
sire to change the terms of their 1997–2000 collective-
bargaining agreement by sending the Union two letters. These
letters were accompanied by three separate collective-
bargaining agreement proposals to be applied separately to the
three entities that comprise the Respondents named in this case.
PNM moved to dismiss Avistar and Manzano from the case
arguing that no evidence was introduced at trial that implicated
these entities in any of the unfair labor practices alleged in the
complaint. The Government asserts that all three entities are a
single employer and any order finding a violation should be
directed against them. The record shows that these entities gen
erally hold themselves out to the public as integrated enter
prises, that there is some central control of labor relations
among the entities (including bargaining contracts with the
Union), and they have some common officers. I find that PNM,
Avistar, and Manzano are a single employer and that the rem
edy set forth below shall attach to all of these entities. Hydroli
nes, Inc., 305 NLRB 416, 417–419 (1991). I deny the Respon
dent’s motion to dismiss Avistar and Manzano from the com
plaint. These three entities shall be jointly referred to as the
Respondent in this decision. I further find that the Respondent
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.3 The Respondent admits,
and I find that the Charging Party Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. BACKGROUND
The Respondent and the Union have had a collective-
bargaining relationship for over 50 years. These parties had a
collective-bargaining agreement with a term of May 1, 1997,
through May 1, 2000. The unit of employees concerned in this
case is:
All employees of the Respondent’s electrical and water trans-
mission, distribution and production departments in the
3 The Respondent’s answer admits this fact as to PNM and Avistar.
As I have found all three entities to be a single employer, I find that
Manzano likewise is an employer within the meaning of Sec. 2(2), (6),
and (7) of the Act.
divisions and jobs referenced in the collective-bargaining
agreement.
On February 1, each party gave the other notice of a desire to
change and modify the agreement and negotiations commenced
on March 17. On August 22 the parties reached a tentative
agreement for a new labor contract. During the negotiations the
parties had extended the terms of their 1997 agreement beyond
its May 1, 2000 termination date until they reached agreement
on the new contract.
The Respondent’s principal agents and representatives con
cerned with this case are senior human resources consultants,
Robert F. Curtis and Sherry Leeson. assistant business man
ager, Edward N. Misquez, and business manager, Andy Palmer,
represented the Union.
The issues involved in this case concern the legality of the
circumstances surrounding Respondent’s unilateral decisions
(1) requiring unit employees to wear uniforms, and (2) remov
ing the Union represented MSTs from the unit and assigning
their work to a nonunit utility worker classification.
III. MANDATORY UNIFORMS
The parties’ 1997–2000 collective-bargaining agreement, ar
ticle 47, included the Respondent’s “Uniform Purchase Guide-
lines.” These guidelines had been scheduled to expire on May
1, 1999. During negotiations in April 1999, the parties agreed
to extend the expiration date to May 1, 2000. The guidelines
provided that unit employees were not required to wear uni
forms. If they chose to wear uniforms they were eligible for
reimbursement up to a limit of $300 with 50 percent of this
amount being paid by the Respondent.
On January 26, Curtis sent a letter to the Union that stated ef
fective April 17, “the wearing of specific clothing items” would
be required for “field employees working in the Wires and
Pipes business unit.” The letter further notified the Union that
the Respondent was “prepared to meet and discuss the effects
of this policy on your unit members prior to its effective date.”
The draft uniform policy, attached to the January 26 letter,
provides, in part, that: “Employees who do not follow this pol-
icy are subject to disciplinary action, up to and including termi
nation.”
On January 31, Misquez sent a letter to Leeson confirming
that during a telephone conversation between them on January
28, the Union had requested bargaining, inter alia, concerning
company uniforms and operational changes. Misquez requested
that the parties meet and discuss these subjects at the Respon
dent’s earliest convenience
On February 1, Union Representative Palmer delivered a let
ter to Curtis detailing the Union’s proposals for changes to the
expiring contract. In pertinent part, the Union proposed signifi
cant changes to the management-rights clause, article 7, by
deleting paragraphs 3, 5, 6, 7, and 8. Moreover, the Union pro-
posed at page 9 to incorporate the uniform purchase guidelines
in the contract. Also on February 1, the Respondent delivered a
letter to the Union containing its proposals for three contracts.
None of the proposals contained references about making em
ployee uniforms mandatory for unit employees.
On February 7, Leeson wrote to Misquez stating that she un
derstood Misquez’ January 31 letter as an affirmative response
PUBLIC SERVICE CO. OF NEW MEXICO
195
“to the Company’s request to meet and discuss the effects on
unit members of Company uniforms.”
On March 14, Curtis wrote to Misquez reiterating the Re
spondent’s intent to implement its mandatory uniform policy on
April 17. Curtis stated that the Respondent had “requested bar-
gaining over the ‘effects’ on your unit members” and recited
the fact that the parties had met for that purpose on February 24
and 29, and that Misquez had canceled a meeting scheduled for
March 8. Curtis’ letter emphasizes that, “[w]ith the April 17,
date rapidly approaching and administrative issues associated
with the implementation of this mandatory uniform requirement
it is imperative that the parties complete this bargaining over
the effects on your affected unit members.” Curtis proposed the
parties meet again on March 20. The “effects” bargaining ses
sions were always conducted separately from the parties’ gen
eral contract negotiations.
On March 20, Leeson wrote an e-mail to supervisors con
cerning the contract negotiations. She described the parties’
March 17 first session of general negotiations for a successor
labor agreement. Leeson’s memo mentions the mandatory uni
form policy:
Ed Tafoya (a union representative) read a statement regarding
the Company’s recent establishment of a job classification
and the requirement for PNM employees to wear uniforms.
The Union indicated that they view these subjects as manda
tory subjects of bargaining and demand to bargain the issues
at contract negotiations. The parties have already met on two
occasions to bargain these issues outside of full contract nego
tiations. The Company stated it disagrees with the Union’s
position.
On March 20, Misquez and union committee members met
with Curtis and his committee and negotiated about the “ef
fects” of the Respondent’s decision to require uniforms and,
more particularly, the details of the clothing list, percent and
amount of reimbursement. No agreement was reached on these
subjects and the parties met again on March 28.
Misquez wrote to Curtis on March 31, with a counter offer to
the Respondent’s last offer of March 28. Curtis replied by letter
dated April 10. Curtis letter states in part: “After reviewing the
record of the parties’ effects bargaining over this matter the
Company cannot accept your offer. The Company is unwilling
to concede any further.” Curtis stated that effective May 15,
the wearing of uniforms would be a condition of employment
and that the Category 7 clothing “shall be required for all bar-
gaining unit employees.” He deleted pants from the list of
clothing for which employees would be reimbursed.
Curtis’ April 10 letter was posted on the Respondent’s sub-
station department bulletin board. The letter also contained
handwritten notes. Supervisor Bernie Baldwin told employee
Ed Tafoya that department manager, Larry Sullivan, wrote the
comments on the letter as he was talking to Leeson. The hand-
written notation reads:
For your information—Regarding Uniforms!
Note: This offer is a reduction in benefits from the proposal
initially discussed and tentatively agreed to—due to union last
minute counter offer!
—Awaiting union counter offer at this time.
On April 19, the parties held a meeting for general negotia
tions of a successor collective-bargaining agreement. The Un
ion demanded bargaining on the uniform policy for PNM and
Manzano employees. The Respondent refused to engage in
such bargaining during the general negotiations for a new con-
tract. The Respondent maintained this position throughout gen
eral negotiations.
On May 10, Misquez sent a letter to Curtis stating that he
understood the Respondent’s April 10 proposal to be its last
offer and that it was going to be implemented on May 15.
Misquez requested that the Respondent grant a 30-day exten
sion before implementing the policy and said the union com
mittee was available to meet and discuss the effects of the pol-
icy. In general negotiations the Union continued to demand
bargaining on the unilateral implementation of the Respon
dent’s uniform policy. The Respondent continued to refuse to
discuss the matter in general negotiations.
On May 23, Curtis wrote a letter to Misquez regarding the
separate effects bargaining. He stated that the Respondent “in
dicated in previous effects bargaining sessions it would notify
the Local Union of a change in the effective date of the uniform
policy.” Curtis continued that because of certain administrative
matters the implementation date for the mandatory uniform
policy was being changed to July 3. Curtis noted his receipt of
Misquez’ May 10 letter regarding further “effects bargaining,”
and the said the Respondent’s representatives would be avail-
able. Leeson wrote a June 2 letter to the Union confirming a
“uniform effects bargaining session” for June 9.
On June 9, the parties met for separate effects negotiations.
The Union presented a counter proposal that the Respondent
provide uniforms to employees without cost to the employee
plus a $25 per month cleaning allowance for the employees.
Leeson summarized the meeting in a June 12 e-mail to supervi
sors. The e-mail reads in pertinent part:
The Company and Union representatives met on Friday, June
9, to continue the effects bargaining on the requirement for all
IBEW represented bargaining unit employees who work in
Roger Flynn’s business unit to wear uniforms as a condition
of employment.
. . . .
After lengthy discussion, both the Union and the Company
indicated their unwillingness to move from their respective
counters and, as a result, are at loggerheads. Therefore, the
Company will implement the Company’s last counter offer, to
be effective July 3, 2000. The Union again asked the Com
pany to negotiate on the Company’s decision to make the
wearing of uniforms a condition of employment. The Com
pany gave the same answer as before—the Company will not
negotiate on its decision.
Leeson distributed a uniform name designation form with
her e-mail and instructed the supervisors to have their employ
ees complete and return the forms by Friday, June 16.
The Union, in the general negotiations, continued to demand
that the Respondent bargain about both the decision and effects
of its decision to require the wearing of uniforms. On June 28,
196
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union proposed a new article 47 that contained the follow
ing language concerning uniforms:
UNIFORMS
BEFORE
IT
BECOMES
A
CONDITION
OF
EMPLOYMENT THAT ANY BARGAINING UNIT
EMPLOYEE(S) BE REQUIRED TO WEAR A UNIFORM,
IT SHALL BE MUTUALLY AGREED TO BY THE
COMPANY AND THE UNION AND THE EMPLOYEE
WILL BE PROVIDED WITH THE FOLLOWING, AT
MINUMUM [sic]:
The Respondent rejected the proposal. The Union continued
to submit the proposal in general negotiations for a new con-
tract but the Respondent always rejected bargaining about the
uniform policy in those negotiations and countered that nego
tiations concerning uniforms were being conducted in the other
meetings.
On June 30, the Company distributed its “final Uniform Pol-
icy” to the unit employees. The policy states, in part: “Wearing
of approved uniform clothing items shall be mandatory as a
condition of employment.”
The parties continued meeting for general negotiations and
on August 22 signed off on a tentative agreement. The subject
of uniforms was not incorporated by reference in article 47 as
had been the case in the prior collective-bargaining agreement.
The subject was mentioned, however, with the language: “The
Company will increase the current reimbursement level to
$400.00 per year. Additionally, 100% cotton skirts will be
added to the approved clothing list.” The parties could not
agree about bargaining over the Respondent’s decision to man-
date the wearing of uniforms and determined that the issue be
resolved in litigation before the Board.
Curtis testified that he attended a January 17 grievance meet
ing. The grievance concerned an employee seeking indemnifi
cation for legal fees he had incurred after being sued for con-
duct engaged in during the course of his employment. Curtis
testified he had an off-the-record discussion with the Union and
told them that the grievance process was the wrong venue to
resolve the issue of indemnification. He suggested that if
Misquez would write a letter to him requesting negotiation of
an indemnification provision that the Respondent would be
prepared to negotiate on the subject. Curtis testified that in
consideration for such bargaining he got Misquez to agree that
the Union would permit the Respondent to mandate that em
ployees wear uniforms. Respondent’s senior human relations
consultant, Sherry Leeson, was also present at the meeting. She
was not called by the Respondent to testify regarding the al
leged acquiescence of the Union in allowing the Respondent to
require the wearing of uniforms.
Union Representative Edward Tafoya was also in attendance
at the January 17 grievance meeting. He denied that any such
agreement was made. Misquez also testified that no such
agreement was discussed. They both agree that Curtis had sug
gested that the indemnification grievance could be handled
better in negotiations. Subsequent to the grievance meeting
Misquez wrote a letter to the Respondent requesting negotia
tions on an indemnification provision. The letter makes no
reference to the alleged agreement by the Union to allow the
Respondent to require uniforms.
The mandatory uniform policy was implemented on July 3.
The indemnification grievance is still active. While there were
subsequent exchanges of correspondence concerning the uni
form issue, none mention the alleged uniform agreement. The
Respondent submitted a position statement to the Board during
the investigation of the case. That statement makes no reference
to the alleged uniform agreement. Based on the record as a
whole I find that the Union did not agree as a quid pro quo for
negotiations on an indemnification clause that the Respondent
could mandate that employees wear uniforms.
IV. METER SERVICE TECHNICIANS
The Respondent employed 14 Union represented MSTs in
the Albuquerque, New Mexico area who were covered under
the terms of the 1997–2000 collective-bargaining agreement.
Under that agreement they were paid a rate of $19.85 per hour.
The Respondent made a decision to remove the MSTs from the
unit, pay them $10.63 per hour and classify them as utility
workers. The Government alleges the failure to bargain about
that decision and the effects of the decision is a violation of
Section 8(a)(1) and (5) of the Act. The Respondent argues it
has committed no violation of the Act because it was privileged
to make the MST decision under the terms of the contract, and,
regardless, the parties ultimately settled the matter through the
grievance procedure.
The Respondent did not propose any changes regarding the
MSTs when it reopened the contract for negotiations in Febru
ary. On March 6, Curtis sent letters to the Union and another
labor organization, the United Association, Local #412 (UA),
requesting a meeting, “to discuss the issues associated with the
consolidation of the Electric and Gas Services Meter Techni
cian functions.” This change would effect only the Albuquer
que MSTs. The UA collective-bargaining agreement with the
Respondent does not have a classification of meter service
technician but does cover a classification of employees called
utility worker.
On March 16, a meeting was held in Farmington, New Mex
ico, attended by representatives of the Respondent, the Union
and the UA. The Respondent’s representatives presented a
document entitled “Meters and Installation Department
Changes Effective April 15, 2000.” The document states in
part:
By April 15, 2000, the Meters and Installation Department
will have designed and will implement a process whereby
functions such as reading double orders, glass changes, dis
connects, electric samples/exchanges and gas pressure checks
will be performed by employees from the two previous work
units, and that gas service technicians will install electric resi
dential single phase meters when appropriate. With the exist
ing systems in place, we will need to dispatch orders from a
work unit that can process both types of meter orders.
Misquez stated that the Union wanted to keep the MSTs in
its bargaining unit, that the issue should be discussed in the
successor contract negotiations, and that he needed to discuss
the issue with the Union’s attorney. Misquez testified that Cur-
PUBLIC SERVICE CO. OF NEW MEXICO
197
tis told the union representatives that if they did not accept any
of the options, the remaining option was “war.”
On March 28, An “effects” bargaining meeting took place
between the parties. Curtis testified that during the discussions
he asked the union representatives “if we bargain over the deci
sion, does that mean if we do not reach agreement, that I cannot
consolidate these meter functions.” He recalled the union repre
sentatives replied, “Yes, that means you cannot do this.” Curtis
told the Union that it was the Respondent’s intent to have the
14 MST’s reassigned to the utility worker classification at the
gas service center unit where they would be represented by the
UA. He stated that one of the reasons for the consolidation was
that the Respondent was paying too much for that skill level.
Curtis testified that the Respondent never agreed in to bargain
general negotiations with the Union about the decision to con
solidate the gas and electric meter service functions nor on the
effects thereof.
On March 20, Curtis sent a letter to Misquez and UA repre
sentative, Blea, regarding a meeting to be held on March 30,
“to discuss the effects on your members pursuant to the con
solidation of the meter service technician functions.” During
that meeting Misquez read a statement to Curtis:
it looks like to us that you the company are asking us to mod
ify our existing agreement and forcing us to change the exist
ing bargaining unit
right now we are engaged in general negotiations and any
changes or modifications to the agreement should be ad-
dressed at the table
the union does not agree to open the agreement to any
changes in classifications and or wage rates for the duration of
this agreement.
We will bargain in good faith in the general negotiations all
subjects required to include job classifications and wage rates.
We don’t think you have the authority to negotiate to change
this agreement.
The Union does not want to give up our employees and or
take members represented by the U.A. [GC Exh. 31.]
Curtis then made an offer that (1) the MSTs be employed as
Utility Workers at $10.63 per hour, and receive a lump sum
payment of $14,500, representing the differential for 9 months
between their existing wage rate and the new one proposed, or
(2) the MSTs could take a voluntary layoff with a severance
package as set forth in article 24 B of the contract. If the Union
rejected the offer, then the Respondent would implement the
following on April 17: employment as utility workers at $10.63
per hour “in the newly consolidated meter services function”
with a lump sum of $14,500, but with no voluntary layoff op
tion. Any MST not accepting the employment offer as utility
workers “would be viewed as a having voluntarily resigned
employment with the Public Service Company of New Mex
ico.”
Following that meeting Curtis gave Misquez a letter that
stated, “consolidation of the Meter Service Technician func
tions in the Albuquerque metro area” would occur on April 17.
The letter concluded, “Again as I previously stated, the Com
pany representatives will make themselves available to bargain
over the affects [sic] on the unit members.”
On April 5, Misquez sent Curtis a letter accepting the pro
posal to meet and to “bargain on the decision to consolidate the
Meter Service Technicians.” Misquez also asked the effective
date of the consolidation be extended to May 17.
Curtis replied by letter dated April 11 disputing Misquez’
statement that the Respondent was willing to bargain over the
decision to consolidate the meter service functions:
I am somewhat confused and perplexed by your second re-
quest as the parties have continued to recognize the Com
pany’s sole right to determine its operating policies and man-
age its business in light of experience, business judgement
and changing conditions.4 Therefore, the Company accepts
your invitation to now bargain over the effects of this consoli
dation on your unit members.
In the general negotiations the Union continued to demand
bargaining about the Respondent’s decision to take the MSTs
out of the bargaining unit. The Respondent insisted it was free
to make the consolidation without the consent of the Union.
The parties met on April 27, for effects bargaining. The Un
ion wanted to know what it would take to keep the MSTs in the
unit. Curtis presented an offer that would have reduced or
eliminated a number of contractual benefits. The Respondent’s
offer provided in item #9: “This agreement would supercede
any changes in a successor labor agreement.” The Union re
jected that proposal and asserted that such matters should be
discussed in general negotiations.
Misquez wrote a letter to the Respondent on May 2, in which
he requested further effects bargaining and an extension of the
consolidation date of May 17. Leeson replied by letter dated
May 5, agreeing to meet May 8, 10, 11, and 12. She rejected
the request for an extension of the effective date.
On May 8, the parties met and the Union again insisted on
keeping the MSTs in its bargaining unit. Additionally, the Un
ion demanded that the decision to consolidate be bargained
about in the successor contract general negotiations. The Re
spondent rejected these demands. Curtis gave the Union the
Respondent’s “last, best and final offer.” The offer had two
options. Option 1 reiterated the Respondent’s April 27 offer of
retaining MST’s in the unit but reducing their pay and placing
new limitations on the rights of these employees regarding
overtime, etc. Option 2 was similar to that outlined in Curtis’
March 30 letter setting forth two options, except that the lump
sum payment offer to employees was reduced from $14,500 to
$12,000. This option would place the MST’s in the UA unit as
Utility Workers. The offer was good until May 15, and con
cluded that:
It is important for the IBEW and the affected unit members to
understand that in the event both of the above two offers are
rejected, the Company intends to implement the following on
May 17, 2000:
4 This is a reference to language contained in the management-rights
clause of the parties’ collective-bargaining agreement.
198
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. The Company will provide written offers of full-
time regular employment in the Utility Worker classifica
tion at the hourly rate of $10.63.
2. Meter Service Technicians not accepting the em
ployment offers in the Utility Worker positions will be
viewed as having voluntary resigned employment with the
Public Service Company of New Mexico.
Misquez responded to this offer in a May 10 letter. He again
requested bargaining about the Respondent’s decision to con
solidate. He pointed out the Respondent’s refusal to discuss the
matter in general negotiations and noted that the Respondent’s
option 1, number 9, tied the consolidation issue to the successor
labor agreement (“This agreement would supercede any
changes in a successor labor agreement.”) Misquez’ letter also
states in part:
As you know, management rights, job classifications, over-
time meals, and wage rates, are all open items in the current
negotiations. We have not reached a lawful impasse. Under
the current Collective Bargaining Agreement you are insisting
upon transferring bargaining work out of the bargaining unit,
and transferring it into another bargaining unit. This is in clear
violation of the current Collective Bargaining Agreement, in
cluding the Union Recognition Clause.
On May 10, Curtis responded by letter, noting that the par-
ties had been negotiating “over the effects of the referenced
consolidation” Curtis pointed out the parties had been unable to
reach an agreement. He withdrew Option 1, and citing the Re
spondent’s “right to manage its business,” left option 2 and the
failure to accept consequences in the earlier offer open until
May 15.
By letter dated May 15, Misquez reluctantly accepted the
Respondent’s option 2 offer. He reserved the Union’s right to
legal recourse concerning the consolidation actions of the Re
spondent.
On May 17, the Respondent implemented the consolidation
of the MST functions as set forth in its option 2. The effect of
this change was that 7 of the 14 MSTs were made utility work
ers at a reduced hourly rate of $10.63 and 7 accepted the volun
tary separation severance package. Those MSTs who became
utility workers were transferred to the unit represented by the
UA. MSTs would still do their same work at the their normal
locations—customers’ residences. Their reporting location was
changed from the electric service center to the adjacent gas
service center.
Curtis testified that the Respondent continued to reject the
Union’s efforts to discuss the consolidation decision in general
negotiations. Curtis also testified that labor costs played a ma
jor role in the Respondent’s decision to consolidate the electric
and gas meter service functions.
On June 5, the Union filed a grievance on behalf of the Al
buquerque MSTs. On July 18, the Union delivered the 30-day
notice of termination of the collective-bargaining agreement
and all addenda thereto. The original complaint and notice of
hearing issued July 31. In July the unit employees voted to
strike. Their strike intentions included a protest against the
Respondent’s claimed unfair labor practices, including the
MST issue.
On August 18, the Respondent settled the MST grievance.
The settlement stated that the grievants could not return to their
prior defined benefit pension plan. The settlement also provided
that it was “entered into on a non-precedent setting basis and
does not prejudice anyone’s position (or positions) at any adju
dicative process or administrative tribunal.”
V. ANALYSIS
It is axiomatic that during the term of a collective-bargaining
agreement, an employer violates Section 8(a)(1) and (5) of the
Act by modifying a term of the agreement without the union’s
consent, or the union’s “clear and unmistakable” waiver of its
statutory right to bargain concerning the matters at issue. Met
ropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Bon
nell/Tredgar Industries, 313 NLRB 789, 790 (1994), enfd. 46
F.3d (4th Cir. 1995) (“It is well settled that an Employer vio
lates Section 8(a)(5) and (1) of the Act as elucidated in Section
8(d) of the Act, by modifying a term of a collective-bargaining
agreement without the consent of the other party while the con-
tract is in effect.”).
During the term of the 1997–2000 contract, the Respondent
announced two unilateral decisions that effected unit employees
and changed the terms of the contract. The Respondent refused
to bargain about these decisions, but invited separate bargaining
about the effects of the decisions. On each of the two issues the
Union consistently demanded bargaining about the Respon
dent’s decisions both under the old agreement and during nego
tiations for the successor agreement. The Respondent consis
tently refused to bargain about these decisions. The effects
bargaining yielded no agreements that incorporated negotia
tions about its decisions. The Respondent then implemented its
MST consolidation on May 17. On July 3, the Respondent im
plemented its decision requiring the wearing of uniforms.
The parties’ 1997–2000 agreement had a waiver of bargain
ing clause reading:
Article 43—Waiver
The Company and the Union acknowledge that during the
collective bargaining negotiations which resulted in this
Agreement, each had the unlimited right and opportunity to
make demands and proposals with respect to any matter, or
subject not removed by law from the area of collective bar-
gaining, and that the understanding and agreements arrived at
after the full and unfettered exercise of that right and opportu
nity are set forth in this Agreement.
Accordingly the Company and the Union, for the term of this
Agreement, each voluntarily, unqualifiedly and without reser
vation waives the right, and each agrees the other shall have
no obligation to bargain with respect to any subject or matter
specifically referred to or covered within the terms of this
Agreement, or with respect to any other subject, or matter not
specifically referred to or covered in this Agreement, irrespec
tive of whether or not such subject or matter had been within
the knowledge or contemplation of either or both parties at the
time this Agreement was negotiated or executed. [GC Exh. 4
at p. 37.]
PUBLIC SERVICE CO. OF NEW MEXICO
199
Under the terms of this waiver clause neither party was re
quired to bargain about any matter covered by the terms of their
agreement. Uniforms and the MSTs wages, conditions of em
ployment, etc., were clearly a part of that agreement.
The parties’ agreement also contained a management-rights
clause that in pertinent part states:
Article 7—Management Rights:
A. The Union and its members recognize the sole right of the
Company to determine its operating policies and manage its
business in light of experience, business judgment and chang
ing conditions. The exercise of such authority shall not con
flict with the Agreement.
Management’s rights shall include, by way of illustration, and
not by way of limitation, the right to:
. . . .
5. prepare and make available job specifications and establish
job classifications . . .
6. make reasonable rules and regulations governing the opera
tion of its business and the conduct of its employees, and re-
vise and modify such rules and regulations from time to time
as the Company deems necessary. [GC Exh. 4 at p. 5.]
The Board requires that a union’s waiver of its bargaining
rights be specific. Absent such a waiver, an employer is not
privileged to take unilateral action concerning a mandatory
subject of bargaining. Johnson-Bateman Co., 295 NLRB 180
(1989). None of the language of the management-rights clause
expresses such a specific waiver. Moreover, the management-
rights clause states that the Respondent’s rights exercised under
the clause “shall not conflict with the Agreement.” The agree
ment set forth the MST’s conditions of employment and also
states the wearing of uniforms by unit employees is not re
quired. I find that the management-rights clause is not a waiver
of the Union’s right to bargain over the decisions to mandate
employees wear uniforms or the consolidation of the MST
functions nor does it sanction the right of the Respondent to
implement decisions in these areas without bargaining about
those decisions. I further find that by participating in effects
bargaining about these subjects, the Union did not waive its
right to insist on the Respondent bargaining about its decisions.
The Respondent argues that the MST settlement equates to
the matter no longer requiring attention under the Act. Al
though the MST grievance was settled this alternative cannot
serve as a substitute for adherence to the principle of good-faith
collective bargaining. The states the MSTs were not allowed to
“accrue any additional pension benefits as provided for under
the Company’s defined benefit pension plan.” Thus, the MSTs
were not made whole by the parties’ settlement. The settlement
specifically reserves the parties’ positions for litigation before
an administrative tribunal. I find the settlement agreement does
not prevent the Board effectuating the purposes of the Act by
issuing an order in this case.5
5 “The Board is empowered . . . . to prevent any person from engag
ing in any unfair labor practice affecting commerce. This power shall
not be affected by any other means of adjustment or prevention that has
The Respondent’s brief specifically disputes the complaint
allegations which assert that it “refused to discuss, negotiate, and
bargain about the decisions or the effects of the decisions” (em
phasis added). The Respondent points out that the parties negoti
ated the effects of its mandatory uniform and MST consolidation
policies on numerous occasions. That observation is not disputed.
I reject, however, the argument that the effects bargaining that
took place insulates the Respondent from a finding that the Act
was violated. The Respondent’s unlawful conduct, i.e., unilater
ally imposing its decisions, left the Union little choice but to
attempt to protect the employees’ interests as best it could until
the matter could be resolved by litigation. I find that the Respon
dent cannot rely on this defense to avoid a remedial order that
incorporates a requirement of good-faith bargaining over the
decision and effects.
The unilateral decision to consolidate the MST functions re
sulted in the elimination of a job classification covered by the
1997–2000 collective-bargaining agreement and the transfer or
separation of employees in that classification. Those MST re
maining in the Respondent’s employment received less com
pensation as a result of the action. They also lost their right to
representation by the Union. Nonetheless the Respondent re-
fused to bargain about the decision to consolidate. Such a con
solidation that results in the extinguishing of a unit of repre
sented employees and causes a substantial change in their terms
and conditions of employment is a mandatory subject of bar-
gaining. Mt. Sinai Hospital, 331 NLRB 895 (2000) (even were
the respondent’s unilateral change to constitute a transfer of
unit work, rather than an alteration of the unit, the respondent
violated Sec. 8(a)(5) because there had been no agreement,
impasse, or waiver); Holy Cross Hospital, 319 NLRB 1361 fn.
2 (1995) (once a specific job has been included within the
scope of the unit by either Board action or the consent of the
parties, the employer cannot remove the position without first
securing the consent of the union or the Board); Hill-Rom Co.,
957 F.2d 454, 457 (7th Cir. 1992). I find that the Respondent’s
refusal to bargain about the consolidation decision was a viola
tion of Section 8(a)(1) and (5) of the Act.
I find that even if the Respondent was viewed as not elimi
nating a position from the unit, but only transferring unit work,
it was still obligated to bargain with the Union about its deci
sion effects. Holmes & Narver/Morrison-Knudsen, 309 NLRB
146–148 (1992) (the decision here did not involve capital in-
vestment, did involve labor cost considerations, and, as a com
mon subject of bargaining in industrial practice, is clearly ame
nable to bargaining).
The Respondent’s unilateral decision requiring the unit em
ployees to wear uniforms is a mandatory subject of bargaining.
St. Luke’s Hospital, 314 NLRB 434 fn. 1, 440 (1994); United
Technologies Corp., 286 NLRB 693, 694 fn.1 (1987). The Re
spondent refused to bargain about that decision and agreed only
to negotiate over the effects of its decision. The effects bargain
ing was tainted by the Respondent’s unilateral decision to im
pose the new uniform policy on the employees. I find, there-
fore, that the Respondent’s refusal to bargain about its manda
been or may be established by agreement, law, or otherwise.” NLRA,
Sec. 10(a).
200
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tory uniform decision is a violation of Section 8(a)(1) and (5) of
the Act. NLRB v. Katz, 369 U.S.736 (1962).
CONCLUSIONS OF LAW
1. Public Service Company of New Mexico, and its wholly
owned subsidiaries, Avistar, Inc., and Manzano Energy Corpo
ration, Inc., are a single employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The International Brotherhood of Electrical Workers, Lo
cal Union No. 611, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) and (5) of the
Act.
4. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended6
ORDER7
The Respondent, Public Service Company of New Mexico,
and its wholly owned subsidiaries, Avistar, Inc., and Manzano
Energy Corporation, Inc., Albuquerque, New Mexico, its offi
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the International
Brotherhood of Electrical Workers, Local Union No. 611,
AFL–CIO about the decision and effects of removing the work
of electric meter service technicians from the collective-
bargaining unit and unlawfully implementing the decision to
remove such work from the unit.
(b) Refusing to bargain in good faith with the International
Brotherhood of Electrical Workers, Local Union No. 611,
AFL–CIO about the decision and effects of requiring unit em
ployees to wear uniforms and unlawfully implementing the
decision to require unit employees to wear uniforms.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec
tuate the policies of the Act.
(a) On request of the Union, rescind the decision to require
unit employees to wear uniforms, and bargain in good faith
with the Union before implementing a requirement that unit
employees wear uniforms.
(b) On request of the Union, rescind the decision concerning
moving the work of the electric meter service technicians to a
unit that is not represented by the International Brotherhood of
Electrical Workers, Local Union No. 611, AFL–CIO.
(c) On request of the Union rescind the decision concerning
the consolidation of the electric meter service technicians and
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommend
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses.
7 The Government filed an unopposed motion with in its brief seek
ing to correct certain errors in the transcript. I grant that motion.
modify the settlement of the grievance on that issue to restore
the situation to that which existed before the consolidation de
cision was made.
(d) Offer employment to any electric meter service techni
cian who took voluntary lay off as a result of the transfer of that
work to the position of utility worker.
(e) Make employees, including electric meter service techni
cian who took voluntarily layoff as a result of the consolidation,
whole for any loss of wages and benefits that they may have
suffered as a result of the Respondent’s unlawful actions set
forth herein. Backpay, if there is any, shall be computed in the
manner prescribed in Ogle Protection Service, 183 NLRB 682
(1970), with interest as set forth in New Horizons for the Re
tarded, 283 NLRB 1173 (1987). To the extent, if any, that unit
employees lost coverage for various benefits provided under
the collective-bargaining agreement, the Respondent shall re
imburse them for any expenses incurred as a result of their non-
coverage, as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981).
(f) Make employees whole for any costs they may have in
curred as the result of the Respondent’s unlawful requirement
that they wear uniforms
(g) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec
essary to analyze the amount of backpay due under the terms of
this Order. Bryant & Stratton Business Institute, 327 NLRB
1135 (1999)
(h) On request of the Union, bargain with it as the exclusive
collective-bargaining representative of the employees in the
following appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement:
All employees of the Respondents electric and water trans-
mission, distribution, and production departments in the divi
sions and jobs referenced in the parties’ collective-bargaining
agreement of May 1, 1997, through May 1, 2000.
(i) Within 14 days after service by the Region, post at its fa
cility in Albuquerque, New Mexico, copies of the attached
notice marked “Appendix.”8 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 by the Respondent immediately on receipt and main
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro
ceedings, the Respondent has gone out of business or closed the
8 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 CO. OF NEW MEXICO
201
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since January 26, 2000. Excel Con
tainer, Inc., 325 NLRB 17 (1997).
(j) 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.
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
the National Labor Relations Act and has ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con
certed activities.
Unlawfully removing the work of electric meter service
technicians from the collective bargaining unit, and removing
the employees doing that work from the coverage of the collec
tive-bargaining agreement with the Union.
WE WILL NOT refuse to bargain about our decision and its ef
fects concerning the assignment of electric meter service tech
nicians’ work and the employees performing that work to a job
classification of utility worker that is excluded from the unit.
WE WILL NOT unlawfully implement the decision to remove
electric meter service technicians’ work from the unit.
WE WILL NOT refuse to bargain in good faith with the Interna
tional Brotherhood of Electrical Workers, Local Union No.
611, AFL–CIO about the decision and effects of requiring unit
employees to wear uniforms
WE WILL NOT unlawfully implement the decision to require
unit employees to wear uniforms.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of rights guaran
teed them by Section 7 of the Act.
WE WILL, on request of the International Brotherhood of
Electrical Workers, Local Union No. 611, AFL–CIO, bargain
with it in good faith as the exclusive collective-bargaining rep
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed
agreement:
All employees of the Respondents electric and water trans-
mission, distribution, and production departments in the divi
sions and jobs referenced in the parties’ collective-bargaining
agreement of May 1, 1997, through May 1, 2000
WE WILL, on request of the Union, rescind the decision to re-
quire unit employees to wear uniforms, and bargain in good
faith with the Union before implementing a requirement for the
mandatory wearing of uniforms.
WE WILL, on request of the Union rescind the decision con
cerning the consolidation of the electric meter service techni
cians and modify the settlement of the grievance of that issue to
restore the situation to that which existed before the decision
was made.
WE WILL offer employment to any electric meter service
technician who took voluntary layoff as a result of the transfer
of that work to the position of utility worker.
WE WILL make unit employees, including electric meter ser
vice technician who took voluntarily layoff as a result of the
consolidation, whole for any loss of wages, benefits or costs
associated with the moving of electric meter service technicians
to the utility worker classification and the mandatory require
ment they wear uniforms.
PUBLIC SERVICE CO. OF NEW MEXICO, AND ITS
WHOLLY OWNED SUBSIDIARIES, AVISTAR, INC., AND
M ANZANO ENERGY CORPORATION