Public Service Company of New Mexico

PUBLIC SERVICE CO. OF NEW MEXICO 573 360 NLRB No. 45 Public Service Company of New Mexico and Interna- tional Brotherhood of Electrical Workers, Local Union No. 611, AFL–CIO. Cases 28–CA–023391 and 28–CA–066164 March 27, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND SCHIFFER On June 22, 2012, Administrative Law Judge Eleanor Laws issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed reply briefs to the answering briefs. The General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief. The Charging Party filed an exception with supporting argument and the Re- spondent filed an answering brief. 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 affirm the judge’s rulings, findings,1 and conclusions as modified and to adopt the recommended Order as modi- fied and set forth in full below.2 Since the 1970s, the Respondent has recognized Inter- national Brotherhood of Electrical Workers, Local Union No. 611, AFL–CIO (the Union), as representative of a multifacility bargaining unit of “all employees of the Company’s Electric, Water, Transmission, Distribution, Production, Meter Reader and Collector departments.” This case involves allegations that the Respondent com- mitted numerous violations of Section 8(a)(5), (3), and (1) of the Act affecting unit employees at three facilities over an extended period from approximately 2010 through 2011. The judge found merit in most allegations and dis- missed the remainder. Except for the few allegations discussed here, we affirm the judge’s findings and con- clusions for the reasons set forth in her decision. 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 have modified the judge’s recommended Order to conform to the violations found and to reflect the Board’s standard remedial lan- guage. We have also substituted a new notice to conform to the modi- fied Order. I. The judge found, and we agree, that the Respondent violated Section 8(a)(1)3 on a number of occasions by threatening4 and interrogating5 employees about their union activities, by denying employee Eric Cox his statu- tory right to an available union representative of his choice, and by refusing to meet with the Union and em- ployee Cox regarding a discrimination complaint Cox had filed.6 We further agree with the judge that the Re- spondent violated Section 8(a)(5) and (1) by failing to provide the Union with relevant information it request- ed.7 II. For the following reasons, we reverse the judge’s dis- missal of the allegation that the Respondent unlawfully refused to furnish the Union with an email referred to by Consultant Joann Garcia and Supervisor Chris Jaramillo in a meeting at the Belen Office with employee and Un- ion Steward Marie Plant. The facts are undisputed. The email referring to Plant came to light after Plant served as an employee’s repre- 3 In the absence of exceptions, we affirm the judge’s dismissal of Sec. 8(a)(1) allegations that the Respondent’s supervisor, Dale Smyth, told employees it would be futile for them to go to the Board and mis- represented their rights to union representation under NLRB v. Weingarten, Inc., 420 U.S. 251, 256–257 (1975), and that Human Re- sources Consultant Joann Garcia threatened employees with unspeci- fied reprisals. 4 Because we adopt, in the absence of exceptions, the judge’s find- ing that the Respondent violated Sec. 8(a)(1) by Manager Jeff Na- wman’s threat to employees that Union Business Agent Edward Tafoya was not allowed in the Respondent’s facilities, we find it unnecessary to pass on the finding of a substantially identical threat by a security guard at Nawman’s direction. This additional finding would be cumu- lative and would not materially affect the remedy. See BCE Construc- tion, Inc., 350 NLRB 1047 (2007). 5 We agree with the judge that the Respondent violated Sec. 8(a)(1) by Supervisor Dale Smyth’s asking employee Eric Cox about the po- tential grievances Cox was investigating on behalf of other employees and by Supervisor Gary Cash’s asking Cox what union business he had been discussing with Tafoya. Member Johnson finds it unnecessary to pass on the latter violation involving Cash because he finds it would be cumulative of the former and would not affect the remedy. 6 In adopting the judge’s analysis, we find it unnecessary to pass on whether Cox’s complaint was a grievance under the terms of the collec- tive-bargaining agreement, because that characterization does not affect our disposition of this allegation. Regardless of how it is characterized, we find the complaint is encompassed under the language of the par- ties’ collective-bargaining agreement. 7 In the absence of exceptions, we adopt the judge’s findings that the Respondent violated Sec. 8(a)(5) and (1) by refusing to provide information about crew changes and about its policy requiring employ- ees to obtain management permission to escort visitors in the Edith Service Center, the latter of which the judge erroneously omitted from her Conclusions of Law and Order. Also in the absence of exceptions, we adopt her dismissal of allegations concerning the Respondent’s refusal to provide information concerning the Respondent’s decision to deny Tafoya access to the Edith facility. 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sentative in an investigation regarding that employee’s alleged misuse of company credit cards. The Respond- ent subsequently discharged the employee for that of- fense. The email, written by a nonunion employee in connection with the Respondent’s investigation, alleged that Plant had considered engaging in the same type of misconduct. The Respondent informed her about the email, but maintained that it would neither investigate the matter nor discipline Plant in connection with the email. Nevertheless, the Respondent informed Plant that the email would be kept “on file,” and refused to provide Plant with a copy upon both her and the Union’s re- quests. The judge found that the General Counsel had not es- tablished that the email was “necessary or relevant for the Union to carry out its statutory duties,” noting that, at the time of the Union’s request, there was no pending or potential grievance relating to Plant; nor was there pend- ing discipline or fact-finding relating to potential disci- pline. The judge concluded that the mere potential for such future activity was not enough to render the email relevant to the Union’s statutory duties. We disagree. It is well established that an employer has a general obligation “to provide information that is needed by the bargaining representative for the proper performance of its duties.” NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967) (citation omitted). “Where the Union’s request is for information pertaining to employees in the bargaining unit, that information is presumptively rele- vant and the Respondent must provide the information.” Disneyland Park, 350 NLRB 1256, 1257 (2007). “The standard for relevancy is a ‘liberal discovery-type stand- ard,’ and the sought-after evidence need not be necessari- ly dispositive of the issue between the parties but, rather, only of some bearing upon it and of probable use to the labor organization in carrying out its statutory responsi- bilities.” Sands Hotel & Casino, 324 NLRB 1101, 1109 (1997) (citations omitted), enfd. 172 F.3d 57 (9th Cir. 1999) (Table). Indeed, “the union is not required to demonstrate that the information sought is accurate, non- hearsay, or even ultimately reliable.” Asarco, Inc., 316 NLRB 636, 643 (1995), enfd. in relevant part 86 F.3d 1401 (5th Cir. 1996), quoted in Postal Service, 337 NLRB 820, 822 (2002). Most significantly, there is no requirement that there be a pending grievance before information may be considered relevant to a union’s stat- utory duties. The union is entitled to information to as- sess whether it should exercise its representative function and whether the information will warrant further action, such as filing a grievance or bargaining about a disputed matter. Ohio Power Co., 216 NLRB 987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976). The contents of an employee’s personnel file unques- tionably constitute relevant information as “intrinsic to the core of the employer-employee relationship.” Flem- ing Cos., 332 NLRB 1086, 1086–1087 (2000) (citations omitted). Information retained about an employee for potential future use is relevant for a union’s performance of its representative functions irrespective of its place- ment. Consolidated Diesel Co., 332 NLRB 1019, 1020 fn. 7 (2000), enfd. on other grounds 263 F.3d 345 (4th Cir. 2001). Id. Applying these well-established principles, we find the email here is presumptively relevant to the Union’s statu- tory duty to represent Plant, a bargaining unit employee, in any possible future dispute with the Respondent over the retained information. See Disneyland Park, supra. Garcia informed Plant that she would be keeping the letter “on file,” with no explanation of why the Respond- ent was retaining it, suggesting that the email might be used in the future for some purpose. See Consolidated Diesel, supra. Thereafter, the Respondent steadfastly refused to provide either Plant or the Union with the email. Because the email implied that Plant might have engaged in misuse of company fuel cards, which her former coworker had done and was discharged for, the email carried the potential for future effects on Plant’s continued employment. Under these circumstances, we find that the email is relevant to the Union’s representa- tion of Plant and that the Respondent violated Section 8(a)(5) and (1) by failing to furnish it to the Union.8 III. Finally, we agree with the judge, for the reasons she states, that the Respondent violated Section 8(a)(5) and (1) by making various material, substantial, and signifi- cant changes to the informal step of the grievance pro- cess.9 The changes were the Respondent’s requirement that supervisors would not go forward with discussions unless the grievances were described with particularity, the refusal of the supervisors to sign receipt of the writ- ten grievances after meeting with the stewards, and the requirement that more than one supervisor be present during the initial grievance meetings. Concerning the requirement that more than one supervisor be present, the 8 Member Johnson joins his colleagues under the specific facts pre- sented in this case. To establish relevance, he relies primarily on Re- spondent’s statement to Plant indicating that the Respondent would keep the email for some unspecified future purpose related to Plant, a unit employee. See Consolidated Diesel, supra. 9 In dismissing the related allegation that the Respondent did not di- rect supervisors to refuse to talk about grievances on company time, which dismissal we adopt, the judge inadvertently referred to complaint par. 9(d)(2) instead of 9(d)(3) on p. 14, LL. 30 of her decision, as noted in the General Counsel’s exceptions. PUBLIC SERVICE CO. OF NEW MEXICO 575 collective-bargaining agreement itself confirms that this was a change because it refers to only one supervisor, “the immediate supervisor of the grievant,” being present at the informal step initial meetings. We find the change unlawful because, in conjunction with the other two un- lawful changes, it created a new tier in the informal step, further complicating grievance processing. As the judge found, “what was once an informal discussion between the steward and the supervisor is now a more formal and protracted affair.” Accordingly, we find that all three of these changes to longstanding practices created unprece- dented procedural hurdles and clearly impeded the pro- cessing of grievances.10 AMENDED CONCLUSIONS OF LAW 1. Insert the following as Conclusion of Law 3(f): The Company policy that requires employees to get management’s permission to escort visitors into the Edith Service Center. 2. Insert the following as Conclusion of Law 3(g): The email referred to by Human Resources Consultant Joann Garcia and Supervisor Chris Jaramillo in a meet- ing with Marie Plant and placed in a Plant “investiga- tion” file by Garcia. 3. Substitute the following for Conclusion of Law 6: By unilaterally changing the requirement for the Union’s representatives to access its San Juan Generating Station 10 We reject our dissenting colleague’s suggestion that we refrain from considering the cumulative effect of these three changes on the grievance process because each was listed separately in par. 9(d) of the complaint. Under the circumstances, it is appropriate to analyze these related allegations in the context of the complaint as a whole, rather than in isolation. See, e.g., Nicholas Morrone & Robert M. Verbosky (Nick & Bob Partners), 340 NLRB 1196, 1198–1200 (2003) (in finding Sec. 8(a)(5) violations, individual complaint allegations were not viewed in isolation, but were considered in context). In light of the clear impact of these changes on employees’ terms and conditions of employment, we find that the General Counsel met his burden of proof. Member Johnson disagrees with the judge’s finding that the Re- spondent’s requirement that more than one supervisor be present during the initial meetings of the informal step grievance process was a mate- rial, substantial, and significant change in violation of Sec. 8(a)(5) and (1). He notes that the complaint alleges each change in the informal step grievance process as a discrete violation, and this, in his view, precludes considering simply the cumulative effect of all the Respond- ent’s changes in the informal step grievance process. Member Johnson further finds that the General Counsel failed to carry his burden of proof in connection with this particular allegation. Thus while supervi- sors may have called in another supervisor or manager, Member John- son relies on the absence of record evidence showing that the additional supervisor requirement, unlike the other changes to the process, in any way delayed or hindered the informal step discussions, or created ob- stacles for grievants or union stewards. See North Star Steel Co., 347 NLRB 1364, 1367 (2006) (General Counsel failed to carry burden when he offered no evidence that a transfer of work adversely affected any employee). in Farmington, New Mexico, on October 4, 2011, Re- spondent violated Section 8(a)(1) and (5) of the Act. 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) Coercively interrogating employees about their un- ion activities. (b) Threatening employees if they engage in activities on behalf of the Union. (c) Refusing to meet with employees regarding dis- crimination complaints because they insist on having their union representatives present. (d) Denying unit employees the right to have the avail- able union representative of their choice represent them during investigatory interviews. (e) Failing and refusing to recognize and bargain with International Brotherhood of Electrical Workers, Local Union No. 611, AFL–CIO (the Union) as the exclusive collective-bargaining representative of the 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 ref- erenced in Respondent’s collective-bargaining agree- ment with the Union effective by its terms from May 1, 2009, through April 30, 2012. (f) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested infor- mation that is relevant to the Union’s performance of its functions as the collective-bargaining representative of the Respondent’s unit employees. (g) Changing terms and conditions of employment of its unit employees without first notifying the Union and giving it an opportunity to bargain. (h) 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 requested by the Union: (i) The total number of medical appointments scheduled and approved by supervision for any and all medical appointments for bargaining unit or non- bargaining unit employees who are subject to the Company’s policy; the total number of medical ap- pointments scheduled and approved by supervision 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for any and all medical appointments for bargaining unit or nonbargaining unit employees who are sub- ject to the Company’s PTO policy and were required to provide a doctor’s note to verify a medical ap- pointment; the names, classifications and work loca- tions of any and all PNM employees who are subject to the Company’s PTO policy; and bargaining unit or nonbargaining unit employees who have sched- uled a medical appointment with their supervisor; requested on or about January 4, 2011; (ii) The discipline issued to Rex Foss for viola- tions of Company policies including “Do the Right Thing” that occurred as a result of Mr. Foss’ in- volvement in the Carlisle and Montgomery leak in- cident; requested on or about January 7, 2011; (iii) Information pertaining to crew changes, in- cluding who from management made the decisions and how employees were informed of the decisions; requested on or about January 27, 2011; (iv) A list of any employees, bargaining unit or otherwise, who have been discharged by the Com- pany for violation of the Employee Safety Manual; a list of any employees, bargaining unit or otherwise, who have been discharged by the Company for vio- lations of “other established safety procedures;” a list of any employees, bargaining unit or otherwise, who have been disciplined by the Company for vio- lation of the Employee Safety Manual; and a list of any employees, bargaining unit or otherwise, who have been disciplined by the Company for violation of “other established safety procedures;” requested on or about December 2 and 14, 2010; (v) The Company policy that requires discipline to be administered if any employee has been charged with 40 hours of “unscheduled absences” and the date that policy became effective; the “unscheduled time off requirements” referred to in Eric Morgan’s email of January 25, 2011, and the policy that con- tains those requirements; the policy that requires employees to preapprove for PTO on any day that is not designated a regular work day by the collective- bargaining agreement; the definition of “unsched- uled absence” and the Company policy that contains the definition; the names, classifications and work locations of any and all PNM employees, bargaining unit or nonbargaining unit, who have been disci- plined for accruing 40 hours of “unscheduled ab- sences” from April 1, 2008, or the date the policy became effective, to March 1, 2011, whichever peri- od is shorter; requested on or about March 18, 2011; (vi) The Company policy that requires employees to get management’s permission to escort visitors in- to the Edith Service Center; requested on or about January 11 and 24, and February 7, 2011; and (vii) The email referred to by Consultant Joann Garcia and Supervisor Chris Jaramillo in a meeting with Marie Plant and placed in a Plant “investiga- tion” file by Garcia; requested on or about October 7, 11, 18, and 25, 2010. (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 following changes in the terms and conditions of employment for its unit employees that were unilaterally implemented: (i) The July 2011 changes to the initial stage of the Informal Step of the grievance procedure requir- ing the presence of more than one supervisor in meetings, requiring stewards to explain in detail which articles of the contract are alleged to be vio- lated and how these articles have been violated, and resulting in supervisors and managers refusing to sign for receipt of grievances that have been put into writing after oral grievances have been presented; (ii) The January 2011 changes to the access un- ion agents had to its Edith Service Center in Albu- querque, New Mexico; and the October 4, 2011 changes to the access union agents had to its San Juan Generating Station in Farmington, New Mexi- co. (d) Within 14 days after service by the Region, post at its facilities located in the State of New Mexico, copies of the attached notice marked “Appendix.”11 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 Re- spondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. In addition to physi- cal posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event 11 If this Order is enforced by a judgment of the United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” PUBLIC SERVICE CO. OF NEW MEXICO 577 that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facilities 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 October 7, 2010. (e) Within 21 days after service by the Region, file with the Regional Director for 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 with this Order. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT coercively interrogate you about your union activities. WE WILL NOT threaten you if you engage in activities on behalf of the Union. WE WILL NOT refuse to meet with you regarding dis- crimination complaints because you insist on having your union representative present. WE WILL NOT deny you the right to have the available union representative of your choice represent you during investigatory interviews. WE WILL NOT fail and refuse to recognize and bargain with International Brotherhood of Electrical Workers, Local Union No. 611, AFL–CIO (the Union) as the ex- clusive collective-bargaining representative of our em- ployees in the following bargaining 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 Respondent’s collective-bargaining agree- ment with the Union effective by its terms from May 1, 2009, through April 30, 2012. WE WILL NOT refuse to bargain collectively with 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 collective-bargaining representative of our unit employees. WE WILL NOT change your terms and conditions of employment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL furnish to the Union in a timely manner the information requested by the Union on or about October 7, 11, 18, and 25, and December 2 and 14, 2010; and January 4, 7, 11, 24, and 27, February 7, and March 18, 2011. 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 our employees in the bargaining unit. WE WILL rescind the July 2011 changes in the terms and conditions of employment for our unit employees that were unilaterally implemented, including changing the initial stage of the informal step of the grievance pro- cedure by requiring the presence of more than one super- visor in meetings, and requiring stewards to explain in detail which articles of the contract are alleged to be vio- lated and how these articles have been violated, and re- sulting in supervisors and managers refusing to sign for receipt of grievances that have been put into writing after oral grievances have been presented. WE WILL rescind the changes in the terms and condi- tions of employment for our unit employees that were unilaterally implemented in January 2011 concerning the access union agents had to our Edith Service Center in Albuquerque, New Mexico; and on October 4, 2011, concerning the access union agents had to our San Juan Generating Station in Farmington, New Mexico. PUBLIC SERVICE COMPANY OF NEW MEXICO Frederic D. Roberson, Esq., for the Acting General Counsel. Paula G. Maynes, Esq. and K. Janelle Haught, Esq., for the Respondent. John L. Hollis, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE ELEANOR LAWS, Administrative Law Judge. This case was tried in Albuquerque, New Mexico, on November 15–18, 2011, and January 18–19, 2012. The International Brotherhood of Electrical Workers, Local Union No. 611, AFL–CIO (IBEW, 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 611, or the Union) filed the charge in Case 28–CA– 023391 on March 4, 2011, and the Acting General Counsel issued the complaint on May 31. Public Service Company of New Mexico (PNM, Respondent, or the Company) filed a time- ly answer1 on June 21 denying all material complaint allega- tions and setting forth its defenses. Respondent filed an amended answer on June 29, clarifying the job titles of various individuals connected to the complaint allegations. On October 11, Respondent filed a second amended and a motion to dismiss portions of the complaint, arguing that certain issues had been previously litigated. The Board National Labor Relations Board (the Board) issued an Order denying the motion on No- vember 10. Respondent renewed the motion at the hearing, and I denied it pursuant to the Board’s order. The Union filed the charge in Case 28–CA–066164 on Octo- ber 5, 2011. The Acting General Counsel consolidated the cases and issued a consolidated complaint on October 31. Re- spondent filed a timely answer on November 14, denying all material allegations and setting forth its defenses. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by PNM and the Acting General Counsel,2 I make the follow- ing FINDINGS OF FACT I. JURISDICTION Respondent, a New Mexico corporation, with its principal office and place of business in Albuquerque, New Mexico, purchases, produces, transmits, and sells electricity. During the past 12 months and at all material times it derived gross reve- nues in excess of $500,000 and purchased and received goods valued in excess of $50,000 directly from points outside the State of New Mexico. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the National Labor Relations Act) (the Act) and that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Complaint Allegations 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. 1 Respondent requested, and was granted, an extension of time to file the answer. 2 The Union did not file a brief. The consolidated complaints allege that Respondent violated Section 8(a)(1) of the Act by threatening employees in various ways, denying union representation to employees, conducting interviews after denying union representation, refusing to meet with an employee because of his insistence on union represen- tation, denying an employee the union representative of his choice, misrepresenting Weingarten rights, and interrogating employees about their union activity. The complaints further alleges that Respondent violated Section 8(a)(1) and (3) by imposing more onerous working conditions on an employee. Finally, the complaints allege that Respondent violated Section 8(a)(1) and (5) by failing to provide the Union with various requested information, implementing new policies regarding union business agents’ access to company property, requiring meter readers to work on Saturdays, and implementing changes to the grievance process. B. Summary of Previous Decisions This decision culminates, for the time being anyway, the third recent go-round for these parties over some similar dis- putes.3 Because the previous decisions address some related and analogous complaints, I will briefly summarize them here. On March 2, 2011, Administrative Law Judge (ALJ) Burton Litvack issued a decision in Case 28–CA–023148. He found that PNM violated the Act by its delay in responding to the following information requests: (1) the discipline (if any) issued to Dave Delorenzo and Kelly Bouska for their violations of [Public Regulations Commis- sion] PRC and State of New Mexico regulations and statutes regarding a gas leak at the intersection of Montgomery and Carlisle in Albuquerque, New Mexico and their violation of Respondent’s Do The Right Thing policy, and (2) discipline issued to any of Respondent’s employees for violations of PRC and State of New Mexico regulations and statutes since January 2008. He found the information requested was relevant to the Union’s representative function, and that Respondent’s 5-1/2-month delay in responding to it was unreasonable. The Board affirmed Judge Litvack’s decision on May 24, 2011. 356 NLRB 316 (2011). On February 12, 2012, ALJ William Schmidt issued a deci- sion in Case 28–CA–022655. He found that PNM violated the Act by failing to provide certain requested information, and by unilaterally restricting Union Assistant Business Manager Ed Tafoya’s access to one of its facilities. Judge Schmidt found that PNM had not violated the Act with regard to certain other information requests, removing and throwing away a union posting from a bulletin board, removing Union Steward Eric Cox from a meeting and subjecting him to a disciplinary inves- tigation, and unilaterally implementing certain policies. Both 3 There was also a previous case from 2001, where the Board up- held the ALJ’s finding that Respondent violated the Act by failing to bargain over certain decisions and their effects, requiring employees to wear uniforms, and eliminating the meter service technician position. Public Service Co. of New Mexico, 337 NLRB 193 (2001). PUBLIC SERVICE CO. OF NEW MEXICO 579 parties filed exceptions and, at the time of this decision, the matter was pending before the Board. C. Background and Respondent’s Operations 1. Facilities PNM’s primary place of business is Albuquerque, but it op- erates a number of facilities throughout New Mexico. Relevant to this decision are the Edith Service Center (ESC) in Albu- querqure, the San Juan Generating Station in Farmington, and the Belen Office. A variety of employees work out of the ESC, which encom- passes roughly 12 acres and contains multiple buildings, includ- ing the administration building, line department building, meter department building, and a warehouse. (Tr. 749–750.)4 The employees who work at the ESC include: linemen who main- tain overhead and underground lines; substation electricians who maintain large power equipment; communications techni- cians who maintain radio communications; relay journeymen who maintain PNM’s protective relaying schemes; and meter journeymen who install metering equipment. (Tr. 746–747.) The ESC also stores a large volume of materials and equip- ment. (Tr. 751–752.) The San Juan Generating Station in Farmington is a coal- fired power plant that covers roughly 30–35 acres. The admin- istration building sits in the parking lot outside of a fence that encompasses the plant. Inside the fence are generation assets, auxiliary assets, shops, and offices. (Tr. 366.) The control rooms and distributive control system shop have been secure sites under North American Electric Reliability Corporation (NERC) regulations since January 2011. (Tr. 374, 464.) Em- ployees required to access the controlled sites must pass a crim- inal background check and received swipe cards permitting them to enter through a turnstile. (Tr. 464.) 2. Company and union personnel PNM has roughly 1800 employees, 635 of whom belong to the IBEW. (Tr. 605.) Some company policies apply to all employees, regardless of union status, while others do not. For example, a different discipline policy applies to union versus nonunion employees. Employees covered by the collective- bargaining agreement (CBA) may only be terminated for just cause, whereas nonunion employees may be terminated for any reason. There are also differences in other terms and conditions of employment, such as entitlement to bypass overtime, re- quired training, and compensation. (Tr. 600–603.) On the other hand, certain policies apply to all employees alike, re- gardless of union membership. (Tr. 631; CP Exh. 2.) Laurie Monfiletto is the director of human resources for the utility portion of PNM. (Tr. 581.) In that capacity, she over- sees employee relations, labor relations, staffing, and learn- ing/development issues. She supervises six employees: four business partners who are assigned to PNM’s business units, a labor relations representative, and a disability specialist. (Tr. 4 Abbreviations used in this decision are as follows: “Tr.” for tran- script; “R.” for Respondent’s exhibit; “GC” for Acting General Coun- sel’s exhibit; “CP” for charging party’s exhibit; “Jt.” for joint exhibit; “AGC Br.” for the Acting General Counsel’s brief; and “R. Br.” for Respondent’s brief. 582.) The business representatives are: JoAnn Garcia for the marketing customer service group; Sonia Otero for the electric service business unit (EBSU); and Tim Padilla and Eleanor (Ellie) McIntyre for the generation part of the business. McIn- tyre has been the human resources supervisor at the San Juan Generating Station since February 2010. She supervises Pa- dilla, who holds the title of senior human resources consultant. (Tr. 582–583, 901, 929, 1007.) Ray Mathes is PNM’s labor relations manager. He super- vised Cindy Castro, who worked for PNM as a labor relations consultant from November 2009 to April 2011. (Tr. 528.) Castro’s work included tracking grievances and responding to requests for information from the Union. She was responsible for labor relations of the meter readers, collectors and the ESBU. (Tr. 528.) Mick Oldham, senior labor relations repre- sentative, also reports to Mathes. (Tr. 901, 904.) Jeff Nawman has been PNM’s manager of the substation communications and relay departments since February 2011. (Tr. 743.) He was previously the manager of the line depart- ment and distribution operations, a position Tom Mitchell as- sumed in April 2011.5 (Tr. 832, 861.) Dale Smyth was a su- pervisor of the line department until his retirement in December 2011. (Tr. 805.) Ralph Pesce is a supervisor in the construc- tion and maintenance department. (Tr. 806.) Ernie Rodarte is the compliance manager at the San Juan facility. (Tr. 943.) Ed Tafoya works for the Union as an assistant business agent, servicing the State of New Mexico. He has held this position since October 2002. In this capacity, he negotiates contracts, represents members in the grievance and arbitration processes, and deals with management on various other issues that arise. He also represents members in meetings from which the employee reasonably perceives discipline may ensue. (Tr. 31–32.) Tafoya primarily services employees working in the EBSU at PNM’s Albuquerque and Belen offices, and oversees approximately 20 union stewards. (Tr. 37.) Shannon Fitzger- ald is also an assistant business manager with the IBEW, ser- vicing members in the power production units at PNM’s San Juan, Afton and Reeves Generating Stations, and overseeing approximately 20 union stewards. (Tr. 350.) Prior to assuming this position, he had been a journeyman mechanic, and had served as a union steward since late 1984 or early 1985. (Tr. 352.) Finally, many of the allegations concern Eric Cox, who worked for PNM as a journeyman lineman until early 2009, when he moved from the line department to the maintenance department. (Tr. 221, 855.) Cox has been a union steward since 2006. (Tr. 221.) III. FACTUAL FINDINGS AND DECISION Because of the numerous allegations, I have broken down my factual findings and conclusions, including credibility de- terminations, into separate sections below. In preface, I will state that in reaching my conclusions, I often had the impres- sion that both parties were blindly and stubbornly digging in their heels, caring more about who could exert the most power 5 Dale Smyth served as interim manager after Nawman left the posi- tion and before Mitchell assumed it on a permanent basis. 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and be technically “right” rather than trying to come to a work- able solution. In my view, a change in this dynamic is long overdue. A. Alleged Changes to Informal Step of the Collective-Bargaining Agreement Complaint allegation 9(d) alleges that since on or about July 7, 2011, a more precise date being unknown to the Acting Gen- eral Counsel, the Respondent has unilaterally implemented the following changes to the informal step of the contractual griev- ance and arbitration procedures: (1) requiring stewards at the initial stage of the Informal Step to explain in detail which articles of the contract are alleged to be violated and how these articles have been violated; (2) refusing to sign in receipt of grievances that have been put to writing after oral grievances have been presented; (3) refusing to talk about grievances with Union representa- tives on company time; and (4) requiring more than one supervisor be present during In- formal Step grievance meetings. 1. Facts PNM and the IBEW have a long history together. They have been parties to successive collective-bargaining agreements since the 1970s. The current CBA runs from May 1, 2009, through April 30, 2012. (Jt. Exh. 1.) The grievance process is set forth in the CBA at article 10. It is a three-step process, with each step requiring a higher level of approval for resolution. The first step, referred to as the informal step in the CBA, is at issue here. The relevant section of article 10 is part B, which states in full: B. Informal Step. Any employee, or designated member of a group of employees, having a grievance, as defined herein, shall first take up the grievance orally with the immediate su- pervisor of the grievant, who will attempt to adjust the griev- ance informally. In this Informal Step, prior to the grievance being reduced to writing, grievance settlements will be considered as non- binding precedent setting unless otherwise mutually agreed. Any employee may request the presence of a Union steward to represent the employee in the grievance. If the grievance is not adjusted to the satisfaction of the grievant at this informal step, it shall be reduced to writing, on the appropriate forms and presented to the supervisor no later than fifteen (15) days after the occurrence of the event giving rise to the grievance. Any grievance which is reduced to writing shall include the following matters: 1. A statement of the grievance and all facts or events upon which it is based, as well as the date of occur- rence of the alleged event on which it is based; 2. The specific provision of the Agreement which is alleged to be at issue; 3. The remedy sought by the grievant for resolution of the grievance; 4. The names of all employees involved in the griev- ance; 5. The signature of the grievant, or steward, along with the date the grievance was presented to the super- visor. The supervisor shall respond, in writing, no later than fifteen (15) days after being presented with the grievance. If there is no response from the supervisor, the grievance shall proceed to Step Two. If the grievance is not satisfactorily adjusted at the informal step it shall be referred to Step Two. (Jt. Exh. 1.) The informal step, also referred to as step 1, gen- erally takes place in the supervisor’s office or in the area where the employee works. (Tr. 34.) The time limits can be extended upon the parties’ mutual agreement. (Tr. 161.) Monfiletto testified as to her understanding of the informal step. She stated that the supervisor, union steward, and em- ployee talk through the issue. If they can come to a remedy, the grievance goes away. If the supervisor says he or she cannot remedy the situation, the grievance is reduced to writing. A supervisor who does not know whether or not he or she can meet the remedy asks for more time to get the information they need before moving to the written part of step 1. If the supervi- sor cannot get an answer in time to avoid threatening the 15- day time limit, the supervisor will grant an extension. (Tr. 595–596.) Oldham, McIntyre, and Padilla share this view. (Tr. 926–929, 957, 1035, 1058.) Business Agents Tafoya and Fitzgerald, as well as Union Stewards Eric Cox, Clay Cash, Mike Patscheck, and Allen Barnard all testified regarding their understanding of and expe- rience with the informal step. Though not using precisely the same words, they all recounted that prior to the alleged chang- es, the informal step involved the supervisor and union steward sitting down to talk about the alleged violation to see if they could settle it. If they could not resolve it easily then and there, it was reduced to writing, and the supervisor signed that he had received the grievance. Stewards commonly had the written part of the informal step filled out when they went into the initial meeting with the supervisor. Once the supervisor signed in receipt of the grievance, he or she had 15 days to respond. The steward then signed in receipt of the response, and if the grievance was not resolved, it proceeded to step 2. (Tr. 34–48, 117, 220–224, 266, 273–274, 351–352, 405, 407, 412, 422– 423; 1079–1080; Jt. Exh. 1.) The step 1 form has two separate lines for the supervisor to sign and date; one indicating the date of receipt and another indicating the date of the response. (Tr. 318; GC Exh. 7.) Be- cause the supervisors must sign in receipt within 15 days of the alleged violation, the Union had concerns that if they would not sign until 15 days from the oral part of step 1, the grievances would be untimely.6 (Tr. 163, 413.) Tafoya testified that, from 6 Although Respondent contends that the Union controls when the grievance is brought, this is not always the case, as there was testimony PUBLIC SERVICE CO. OF NEW MEXICO 581 the Union’s perspective, the decision of whether or not to agree to an extension is at the steward’s discretion, and depends upon the steward’s impression of whether the request is made in good faith.7 (Tr. 163.) After signing in receipt, the supervisor could let the employee know at a later time whether he/she could remedy the grievance. According to Tafoya, this was how Respondent processed the informal grievance from 1977 until mid-2011. (Tr. 34–38.) During the summer of 2011, there were many new supervi- sors at PNM. Because of this, starting in May, Monfiletto be- gan a series of supervisor trainings by the Management Associ- ated Results Company (MARC). (Tr. 592, 611, 971.) The MARC training gives a history of labor relations, and provides guidance on handling difficult conversations. (Tr. 624.) PNM’s human resources department also distributed to its su- pervisors a document dated October 25, 2011, called “Informal Grievance Guidelines for Supervisors.”8 (Tr. 362; GC Exh. 3; R. Exh. A.) The document gives guidelines for supervisors involved to handle step 1 grievances. The bullet point items the Union most contests are:  You are not obligated to hear a grievance on a walk- in basis. Schedule a time for the informal meeting with the employee and the union steward that is con- venient for you. Ensure second supervisor is available and/or attends the meeting, if you feel is needed.  Document the meeting as thoroughly as possible. Be sure to follow MARC documentation process on page 52 under Chronological-Time-Sequence Note Taking in your MARC manual.  Do not accept a written grievance until the informal process has occurred.  Have the employee/union steward identify the sec- tion(s) of Articles allegedly being violated, and ask them to explain how they were violated. If the em- ployee/union steward cannot provide this infor- mation, document what they said.  Do not state that you cannot meet the remedy at this time, but instead ask for time to further research and/or obtain approval or communicate up (Manage- ment chain/HRBP).  If at any time before the informal process has been completed a union steward presents a step 1 written grievance and requests you to sign it, you should in- dicate the informal Step has not been completed, that you are attempting to follow the contract grievance procedure, and that you will sign the Step 1 grievance if the matter is not resolved in the Informal Step.  If you have had the informal meeting but have not yet provided the employee or union steward with the that sometimes the employee does not raise the grievance with the Union until the end of the time period due to leave, schedules, or other reasons. 7 For example, Barnard said he would give extensions to supervisors if he felt it would be worthwhile for them to go talk to someone else. (Tr. 431.) 8 GC Exh. 3 is a previous version dated October 6. Padilla testified that he and Otero coauthored the document. (Tr. 973.) Company response, and the union steward presents a written grievance, you must state that you have not denied the remedy at this point and still consider this grievance at the Informal Step, and are attempting to follow the contract that you will sign Step 1 griev- ance if it is not resolved at the Informal Step.  If a union steward asks if you are refusing to sign for the written grievance, restate that you are attempting to follow the contract, have not denied the remedy, and will attempt to settle at the Informal Step, but you will sign Step 1 grievance if the matter is not resolved at the Informal Step.  If the union steward gives you a written grievance with “refused to sign” noted on it, continue to work at addressing the grievance at the Informal Step. (GC Exh. 3; R. Exh. A; emphasis in original.) The guidelines were distributed to all supervisors with unit employees.9 (Tr. 593, 611.) Content in the guidelines had been discussed with individual supervisors previously on a piecemeal basis. (Tr. 616.) Before the MARC training, McIntyre believed the Union and the Company were not doing a good job implementing the in- formal process and getting grievances settled at the lowest pos- sible level. (Tr. 1035.) She perceived the training as providing supervisors with a better understanding of how to follow the CBA. (Tr. 1034–1035.) Padilla perceived the MARC training and the guidelines as consistent with the CBA, but not con- sistent with how grievances were actually being processed. (Tr. 974.) Jamie Shockey was a member of the Union for 5 years until he became a supervisor in late May or June 2011. He served as a union steward and was trained by Fitzgerald and others on handling grievances. (Tr. 1078.) In his experience as a stew- ard, supervisors generally did not ask for more time when he would present the oral grievance at the step 1 meeting. (Tr. 1080.) On one occasion involving an intoxicated employee the supervisor asked for, and was granted, additional time. (Tr. 1082.) Shockey took the MARC training after he became su- pervisor in or around early June 2011. He did not view it as a departure from the contract, and opined it was intended to get supervisors to follow the contract. (Tr. 1083.) He did see it as a departure from how the informal step had previously been handled. (Tr. 1109–1110.) According to Tafoya, PNM also trained employees on the MARC principles 12 years ago. The Union did not agree to abide by the MARC principles then or now. (Tr. 49–50.) Tafoya’s objection to the MARC principles is based on his perception that they formalize the intended informal nature of the first step. He elaborated that the MARC principles advise supervisors to bring in a witness, schedule grievance meetings, and “go up the ladder” before answering grievances. (Tr. 107.) Mike Patscheck works as an instrument control electrician (ICE) journeyman in the maintenance department at PNM’s San Juan facility. He has served as a union steward for approx- 9 McIntyre did not provide Fitzgerald with the materials from the MARC training. (Tr. 1037.) 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD imately 2 years. (Tr. 410.) On July 7, 2011, Patscheck met with Acting Supervisor Dennis Mitchell to process a grievance for employee Perry Woolsey. After the verbal discussion, Mitchell said he could not meet the remedy, but would not sign in receipt of the step 1 grievance. (Tr. 411.) Fitzgerald advised Patscheck to file the grievance the following day with Wool- sey’s regular supervisor, Shockey. (Tr. 353–354.) On July 8, Shockey, Mitchell, Patscheck, and Woolsey met. (Tr. 1084.) Woolsey’s grievance involved an alleged change to his job description, and he sought a severance package of roughly 9–10 months’ pay as a remedy. (Tr. 1086.) Shockey stated this would probably go beyond his or anyone at the plant’s ability to remedy, but stated he would find out what human resources had to say about it. (Tr. 1087.) Though he did not feel he could meet the remedy, Shockey wanted to know where the Company stood in a pending reorganization process before he responded, so he did not sign in receipt of the grievance. (Tr. 1088–1089.) Patscheck testified this was a change from how Respondent processed the roughly 50 grievances he had previously filed. (Tr. 410, 412.) In early September 2011, Tafoya began receiving complaints from other stewards who reported to him that supervisors were not “signing in receipt” of grievances at the informal step. Instead, the supervisors were requiring employees to go through the CBA and explain which articles were allegedly violated and why, and they would not sign in receipt of griev- ances. (Tr. 36–38.) In late September, Glenn Miller, an employee in the meter reader department, notified Tafoya that Supervisor Steve Kniff- en would not sign in receipt of a grievance. Tafoya came to Respondent’s headquarters and spoke with Kniffen. He ex- plained to Kniffen how he thought the CBA had been violated, and asked if Kniffen could meet the remedy. In response, Kniffen contacted his supervisor, Eric Morgan. Morgan joined the meeting, and asked Tafoya what he was doing on Respond- ent’s property. When Tafoya explained that he was there as a representative, Morgan told him he was not allowed on Re- spondent’s property. Neither Morgan nor Kniffen signed in receipt of the grievance. Instead, Morgan asked Tafoya to schedule a time to sit down and discuss the matter. Tafoya responded that they could arrange a meeting at a later time, but he believed that was beyond what was required at the informal step. (Tr. 39–44.) Since Kniffen would not sign in receipt of the grievance, Tafoya decided to send it to the second step. He reduced the grievance to writing on the second step form and called Mick Oldham to meet. On September 30, 2011, Tafoya and Oldham met in the lobby of Respondent’s headquarters building. (Tr. 45–47, 908–909.) Tafoya explained that he had a couple of grievances where the supervisor would not sign in receipt, and he wanted to process them up to the second step. Oldham re- sponded that these grievances had not been through the first step, and he would not sign them.10 (Tr. 45–47, 910–911.) Cox noticed that since the fall of 2011, the Union meets with two supervisors, they require a scheduled meeting, and they 10 He did sign grievances that the supervisor had signed on the step 1 form. will not answer whether or not they can remedy the grievance. In addition, Cox testified that Supervisors Smyth, Mary Ann Brandon, and Ralph Pesce would not process grievances unless he explained the violation “line by line, article by article.” (Tr. 220–224. 266, 280.) Clay Cash works as an ICE journeyman, instrument control electrician at PNM’s San Juan facility. He has served as a un- ion steward for roughly 7 years. (Tr. 402.) He observed that in the fall of 2011, supervisors were making the stewards go through grievances “article by article” at the informal step and they were not signing in receipt of the grievances. (Tr. 403.) On August 23, after Cash finished the oral part of the informal step, Bob Vozza would not sign a grievance Cash filed on be- half of Fitzgerald. (Tr. 403–405.) Vozza told Cash he had 15 days to sign the grievance. (Tr. 404.) Cash’s understanding was that the Union has 15 days to file the grievance. At that point, after the supervisor signs stating that he has received the grievance, he or she has 15 days to come back with an answer. (Tr. 405.) Cash tried to show Vozza this in the CBA, but Voz- za did not change his position. (Tr. 405.) Allen Barnard, who has worked with PNM for 29 years, is an environmental process operator at PNM’s San Juan facility. At the time of the hearing, he had been a union steward for about 10 months. (Tr. 421.) On October 8, 2011, Barnard had some grievances involving employees Brian Donisthrope and Mike Pronio. Barnard asked to meet with Supervisor Troy Bateman, and Bateman responded that he was too busy and would need to get with his team manager.11 (Tr. 424, 430.) The next day, Barnard met with Batemen and the team manager, Joel Roundy. Bateman asked for more time before he signed in receipt of the grievance, but Barnard would not grant it. (Tr. 378.) Barnard wrote on the form that the supervisor would not sign, and gave him a copy. After the 15 days passed for the supervisor to re- spond, Fitzgerald presented Padilla with the step 2 forms. Pa- dilla would not receive the unsigned step 2 grievances, and suggested that the Union re-file the step 1 grievance. (Tr. 355– 356.) On October 18, 2011, Barnard processed a grievance for em- ployee Bret Cartwright. He met with Supervisor Jeff Cuffee and they could not settle the matter. Barnard signed the written grievance and gave it to Cuffee to sign that he had received it. Cuffee did not sign in receipt of the grievance and left it on the table. (Tr. 427–428.) 2. Decision and analysis Well-settled law provides that an employer may not change the terms and conditions of employment of represented em- ployees 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). A grievance procedure is a mandatory subject of bargaining and, hence, a unilateral change there likewise constitutes a refusal to bargain. As the Board stated in Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962): A method for presenting and adjusting grievances which deal with “wages, hours, and other terms and conditions of em- 11 The team manager is above the supervisor in the chain-of- command. (Tr. 424–425.) PUBLIC SERVICE CO. OF NEW MEXICO 583 ployment” is manifestly related to those matters. In accord with Board and court decisions, we find that . . . a grievance procedure [is a matter] related to “wages, hours, and other terms and conditions of employment” within the meaning of Section 8(d) of the Act and, therefore, [is a] mandatory sub- ject for collective bargaining. See also Westinghouse Electric Corp., 141 NLRB 733, 735– 736 (1963), revd. on other grounds 325 F.2d 126 (7th Cir. 1963). Accordingly, unilateral action by an employer that sub- stantially changes a contractual grievance procedure violates Section 8(a)(5) and (1) of the Act. Motoresearch Co., 138 NLRB 1490, 1492 (1962); Athey Prods. Corp., 282 NLRB 203, 207 (1986). The fact that a particular working condition or benefit is not expressly embodied in the governing collective agreement is immaterial where satisfactorily established by practice or cus- tom. See Hotel Texas, 138 NLRB 706, 712–713 (1962), enfd. 326 F.2d 501 (5th Cir. 1964); Frontier Homes Corp., 153 NLRB 1070, 1072–1073; Central Illinois Public Service Co., 139 NLRB 1407, 1415 (1962), enfd. 324 F.2d 916 (7th Cir. 1963). Regular and longstanding practices that are neither random nor intermittent become terms and conditions of em- ployment even if not addressed in a collective-bargaining agreement. As such, these past practices cannot be changed without offering the unit employees’ collective-bargaining representative notice and an opportunity to bargain, absent clear and unequivocal waiver of this right. Sunoco, Inc., 349 NLRB 240, 244 (2007), citing Granite City Steel Co., 167 NLRB 310, 315 (1967); Queen Mary Rest. Corp. v. NLRB, 560 F.2d 403, 408 (9th Cir. 1977); Exxon Shipping Co., 291 NLRB 489, 493 (1988); DMI Distribution of Delaware, 334 NLRB 409, 411 (2001). This is no less true where the practice is denominated a “privilege,” voluntarily instituted or bestowed by the employer. Central Illinois Public Service Co., 139 NLRB at 1415. A past practice must occur with such regularity and frequency that employees could reasonably expect the “practice” to continue or reoccur on a regular and consistent basis. Philadelphia Co- ca-Cola Bottling Co., 340 NLRB 349, 353–354 (2003); Eugene Iovine. Inc., 328 NLRB 294, 297 (1999). As cited above, Respondent’s witnesses admit, and I find, that there was a longstanding practice of handling the informal step of the grievance process as the union witnesses described it. I further find that this practice changed during the summer of 2011.12 In response, Respondent asserts rather that the guidelines it distributed were suggestions rather than require- ments on how supervisors handle grievances. It also contends that the supervisors’ subsequent adherence to the guidelines was simply an attempt to bring the informal step in line with the CBA. 12 While there was testimony regarding occasional deviations from the general practice, such as occasional extensions of time and the occasional presence of more than one supervisor, the evidence shows the informal step was generally handled in the same manner prior to the changes. Likewise, after the summer of 2011, the informal step was sometimes handled the way it was before, but the evidence shows it generally was handled in conformity with the guidelines. I will first briefly address the argument that the guidelines were merely optional. It is clear from the testimony of several union stewards and Tafoya, detailed above, that supervisors abided by them regularly. The MARC training principles and/or the guidelines for supervisors therefore may have been optional in theory, but evidence shows they were implemented in practice most of the time. In other words, there was a change. Next, Respondent argues that any changes attendant to the MARC training and supervisor guidelines merely were attempts to enforce the contract as written. It is well settled that the Board has the authority to interpret the terms of a collective- bargaining agreement to determine whether an unfair labor practice has been committed. NLRB v. C & C Plywood Corp., 385 U.S. 421, 428 (1967); Resco Products, Inc., 331 NLRB 1546 (2000). In Resco, the Board described its method of in- terpreting collective-bargaining agreements as follows: In interpreting a contract, the parties’ intent underlying the contract language is paramount and is given controlling weight. To determine the parties’ intent, the Board looks to both the contract language and to the relevant extrinsic evi- dence, such as the parties’ bargaining history and past prac- tice. When there is no extrinsic evidence, the Board looks to the ordinary meaning of relevant contract terms as applied to the facts of the case. 331 NLRB at 1548. The parties interpret the requirements of the informal step somewhat differently. The language of the contract is not pre- cise enough to fit either specific approach to a T. Respondent contends that its interpretation is correct, citing to the contrac- tual language and testimony of human resource officials and a supervisor for support. As an example, Respondent claims the union stewards’ practice of coming to the oral part of the step with the written grievance already prepared is noncompliance with the CBA. The Union claims that this practice is consistent with the contract, because the stewards do not present the writ- ten grievance to the supervisor until they have discussed the matter and the supervisor is unable to meet the remedy. The Union, of course, disputes much of Respondent’s interpretation, and points to the contract language as well as past practice. For example, the Union deems the practice of having the supervisor “communicate up (Management chain/HRBP)” if he or she cannot independently meet the remedy as inconsistent with the informal step and consistent with step 2. Respondent sees it as consistent with the informal step.13 As with the numerous other points of disagreement, I find that both Respondent’s interpre- tations and the Union’s interpretations, as advanced by the Acting General Counsel, are generally plausible.14 13 The language of art. 10 states that the oral meeting at the informal step is with the “immediate supervisor” and the employee and/or stew- ard. Respondent argues in its brief that this precludes having a union business agent present (R. Br. 66–67), but takes the position that it does not preclude having additional supervisors or managers present. 14 Oldham’s testimony, cited in Respondent’s brief, that “the time limit for the oral step is bundled with the ‘15 days’ for either party, and that there is not a separate time for the oral part of Step 1 versus the written part of Step 1” is an implausible interpretation. (Tr. 920–221; R. Br. 62.) The language of art. 10 clearly sets forth separate time 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To borrow from ALJ Wilks’ decision in Dearborn Country Club, 298 NLRB 915, 920 (1990), “[d]isposition of this case does not necessitate an arbitral-like process of interpreting what I find to be equally plausible contract interpretations. The past practice is clear and unambiguous.” “Where past practice has established a meaning for language that is used by the parties [in their agreement], the language will be presumed to have the meaning given it by past practice.” Pan-Adobe, Inc., 222 NLRB 313, 325 (1976) (quoting Pekar v. Brewery Workers Local 181, 311 F.2d 628, 636 (6th Cir. 1962), cert. denied 373 U.S. 912 (1963)). There is nothing in the contract that obviates the Union’s interpretation of the informal step. On the contra- ry, for the reasons set forth here at footnote 13, its interpretation seems the more plausible one. In any event, the Union’s inter- pretation had clearly become the past practice.15 Accordingly, Respondent’s argument that its approach is mandated by the CBA fails, and I find the Acting General Counsel has estab- lished that the manner of processing the informal step that ex- isted prior to the changes that began during the summer of 2011 was a longstanding past practice. Respondent further advances a business justification argu- ment, discussing the benefits of improved adherence to the CBA. (R. Br. 69–72.) There are two problems with this. First, as discussed directly above, the parties have different reasona- ble interpretations of the relevant part of the CBA. According- ly, Respondent has not shown that the changes would yield improved adherence. Second, the argument does not justify bypassing the Union and implementing the changes to longstanding past practices unilaterally. McCottor Motors Co., 291 NLRB 764, 769 (1988). Finding a change in the terms and conditions of employment does not end the inquiry, however, because the duty to bargain only arises if the changes are “material, substantial and signifi- cant.” Alamo Cement Co., 281 NLRB 737, 738 (1986); Flam- beau Airmold Corp., 334 NLRB 165, 171 (2001). The General Counsel bears the burden of establishing this. North Star Steel Co., 347 NLRB 1364, 1367 (2006). Turning now to consider the specific allegations, the Acting General Counsel did not submit evidence that supervisors re- fused to talk about grievances with union representatives “on company time” as alleged in the consolidated complaint. Ac- cordingly, I recommend dismissal of the complaint allegation at paragraph 9(d)(2). A closely related issue that was not raised in the complaint but was fully litigated, however, was that supervisors required union representatives to schedule informal step meetings with limits. (Jt. Exh. 1.) In addition, Respondent’s argument in its brief that there are informal and formal procedures in step 1 and that Cash’s interpretation of the grievance process as “informal step, second step, arbitration” is wrong, is conclusory, and is belied by the fact that the contract itself calls the entire first step “Informal Step” and the phrase “Step 1” appears nowhere in art. 10. The last sentence of the informal step states, “If the grievance is not satisfactorily adjusted at the infor- mal step it shall be referred to Step Two.” (Jt. Exh. 1; R. Br. 62.) However, these examples do not necessitate a finding that Respond- ent’s interpretation is wholly implausible. 15 Indeed, Respondent conducted the MARC training and distribut- ed the guidelines based on its view that this practice was incorrect. them. I do not find this to be a “material, substantial, and sig- nificant” change. The evidence showed that this did occur, but that supervisors also would meet the steward on the fly if it was convenient. Had the supervisors been unwilling to schedule a meeting without undue delay, then the change would arguably meet the standard. The Acting General Counsel, however, did not submit evidence that supervisors were unwilling to sched- ule time to discuss grievance, or that any grievances were un- timely as a result. I find that the Acting General Counsel has met his burden with respect to the remainder of the allegations in paragraph 9(d), particularly when the individual allegations are considered together. Stewards Cox, Cash, Miller, Patscheck, and Barnard, and Union Business Agent Tafoya all testified about specific informal grievances where the immediate supervisor called in another supervisor or manager. Cox and Cash provided specif- ic examples of meetings where the supervisor would not go forward with the discussion unless they described the grievance line by line and article by article. Cox, Cash, Miller, Patscheck, Barnard, and Tafoya each provided examples of meetings where the supervisor would not sign in receipt of the written grievance after meeting with the steward and not being able to meet the requested remedy. All told, the evidence shows that what was once an informal discussion between the steward and the supervisor is now a more formal and protracted affair, in- volving more than just the immediate supervisor on manage- ment’s behalf at the initial meeting, and potentially involving human resources and/or higher-level management down the line. This is a significant change from the past practice of han- dling the informal step. Moreover, the evidence shows that the net effect of these changes resulted in failure to process some grievances. Refusal to process a grievance violates Section 8(a)(5) of the Act. Ma- jestic Towers, Inc., 353 NLRB 304 (2008). Specifically, the Acting General Counsel presented evidence that after the expi- ration of the supervisor’s 15-day time to respond at the infor- mal step, Tafoya gave Oldham and Padilla certain grievances that the respective supervisors would not sign for as received. Oldham and Padilla would not process these grievances at step 2, even though Tafoya explained that the supervisor had failed to sign the grievance after the initial meeting with the steward. As with much of the dealings between the Union and manage- ment, this standstill represents yet another ill-advised battle of wills. Given my finding that the supervisors’ refusal to sign that they received a grievance deviates from past practice grounded in a reasonable interpretation of the contract, howev- er, Respondent loses this one. It is important to note that, at any point between the time the steward presented the written grievance to the supervisor and the expiration of the supervi- sor’s 15-day time period to respond, the supervisor could have taken the very steps that he/she claimed justified the initial failure to sign in receipt of the grievance. In fact, prior to the changes, when the supervisor came back with a response that he/she could meet the remedy after the Union presented the written grievance to the supervisor but before expiration of the supervisor’s 15-day response time, the Union would withdraw the grievance. (Tr. 472–473.) The supervisors’ refusal to sign in receipt of grievances, even if they thought the oral part of the PUBLIC SERVICE CO. OF NEW MEXICO 585 informal step should be continued, does not excuse complete inaction during the 15-day response time.16 These practices amount to a refusal to process grievances in violation of Sec- tion 8(a)(5). Based on the foregoing, I find the Acting General Counsel has met his burden to prove that Respondent violated Section 8(a)(1) and (5) by making unilateral changes to the informal step of the grievance process. B. Alleged Changes to Union Agents’ Access and Related Threats Paragraph 9 of the complaint alleges that Respondent violat- ed Section 8(a)(1) and (5) when: (a) In about January 2011, a more precise date being unknown to the Acting General Counsel, the Respondent implemented a new policy requiring employees to obtain permission to es- cort visitors on the Respondent’s Edith facility premises. (b) In about January 2011, a more precise date being un- known to the Acting General Counsel, the Respondent im- plemented a new policy requiring all Union agents obtain permission before entering the Respondent’s Edith facility premises. (e) Since on or about October 4, 2011, the Respondent im- plemented and enforced new policies concerning Union agents’ and representatives’ access to the Respondent’s San Juan Generating Station facility, thereby restricting and limit- ing Union agents’ and representatives’ access to the Respond- ent’s facility. The complaint, at paragraph 5, further alleges that Respond- ent violated Section 8(a)(1) when: (g) On or about January 20, 2011, the Respondent, by Gary Cash, herein called Cash, at the Respondent’s Edith facility, threatened employees by informing them that Union Assistant Business Manager Ed Tafoya, herein called Tafoya, was not allowed on the property to represent them. (h) On or about January 24, 2011, the Respondent, by a secu- rity guard, whose precise identity is unknown to the Acting General Counsel, and speaking at the direction of Jeff Na- wman, herein called Nawman, at the Respondent’s Edith fa- cility, threatened employees by informing them that Tafoya was not allowed on company property. (i) On or about January 25, 2011, the Respondent, by Na- wman, at the Respondent’s Edith facility, threatened employ- ees by informing them that Tafoya was not allowed on the Respondent’s property. 1. Facts relating to Tafoya The progressive narrowing of Union Business Agent Ed Tafoya’s access to PNMs property has been the subject of pre- vious litigation. Judge Schmidt provided a thorough summary of Tafoya’s historical access in his decision at pages 40–42, which I will not reiterate here. In sum, PNM took steps in 2008 16 GC Exh. 7 makes clear that signing in receipt does not mean that the supervisor has responded one way or the other, as there is space for the response, as well as a separate line to sign and date. to address security lapses at the ESC, one of which was a new access policy for visitors. (Tr. 752–755, 777.) Though Tafoya previously enjoyed unfettered access to meet with his members at the ESC, he agreed, under the policy, to have the same access as contractors. He was given a badge that permitted him access between the hours of 6 a.m. and 6 p.m. In August 2009, Tafoya’s access was changed to that of a visitor.17 Pursuant to a January 15, 2009 Security and Access Control memo from the General Services Group/Security, the policy with regard to visitors is as follows: 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. (Tr. 99; Jt. Exh. 2-1; Schmidt decision at p. 42.) During a Monday morning safety briefing in late 2010, Su- pervisor Don Wilkerson informed a group of 10–15 employees, including Cox, that the Company had come up with a new poli- cy requiring employees to get management’s approval prior to letting visitors into the ESC. Cox asked for a copy of the policy but Wilkerson did not provide it. (Tr. 231–232.) Union Stew- ard Bert Garcia asked Smyth for a copy of the policy but he never received it. (Tr. 341.) In early January 2011, an unidentified working foreman called Tafoya and asked him to come and review a new email policy Respondent was implementing. The working foreman stated that he had his crew with him, and they shared a concern about the policy. While on the phone, Tafoya heard the super- visor, Gary Cash, state that Tafoya was not allowed on PNM property. (Tr. 52–55.) At a later point, Tafoya and Castro worked out a time with Cash to come and have Tafoya review the policy with employee Joe Montano. (Tr. 770.) On January 10, 2011, Tafoya went to the ESC to investigate a potential grievance. Union Steward Eric Cox signed Tafoya in and escorted him to the new service delivery (NSD) crew room to speak with an employee, John Vigil. (Tr. 55–58, 171, 228–231.) When Nawman saw Tafoya, he stopped and asked why he was visiting the facility. Tafoya informed Nawman he was investigating a potential grievance. Nawman told Tafoya, in the presence of employees John Vigil, Jerry Serna, and Cox, that he needed permission from management to be on the prop- erty, and asked him to leave. (Tr. 58–59, 169–171, 230–232.) Tafoya told Nawman that he had followed procedures by sign- ing in and having Cox escort him. Nawman responded that, per PNM policy, Cox was required to get permission from man- agement to escort Tafoya onto the premises. (Tr. 58–59.) 17 Judge Schmidt found this unilateral change violated Sec. 8(a)(1) and (5). 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Tafoya asked Nawman for a copy of this policy but he did not provide one.18 (Tr. 60; Jt. Exh. 3.) A series of written exchanges ensued. On January 11, Tafoya sent an email to Cindy Castro and Nawman, recounting his conversation with Nawman about the policy, and formally re- questing a copy of it. He also asked for information regarding how the policy was communicated to supervisors and employ- ees. Castro responded in a letter dated January 20. In pertinent part, she stated that the January 15, 2009 Security and Access Control memo from the General Services Group/Security speci- fies the access control, and provided him with a copy of it. (Tr. 574; Jt. Exh. 2; CP Exh. 5). She also sent him an email on February 2, reiterating what she said in her letter, and adding that employees must check with their supervisors when deviat- ing from their assigned work. Castro further informed Tafoya that the Company did not have information regarding how the policy was distributed to supervisors or employees. Tafoya replied on February 7, asking Castro to clarify that there was no written policy requiring management approval to escort visitors onto PNM property. He additionally asked her to clarify how and when employees and management learned of the policy, and notified her that he was investigating a possible grievance related to the matter. Castro responded that his access to the ESC was pending a decision from an ALJ, and that PNM’s position remained unchanged. Tafoya reiterated his request on February 11. Castro responded on February 16, stating simply, “The Company stands by its previous responses.” (Jt. Exh. 2; Tr. 61.) Castro testified that, by referencing to the Security and Access Control memo, she advised Tafoya there was no written policy requiring management’s approval to escort visitors. (Tr. 536.) She did not recall directly telling Tafoya that there was no written policy requiring employees to obtain management’s permission to escort visitors onto the ESC premises. (Tr. 573.) Castro did not recall seeing such a policy, and the Access Con- trol memo does not address management’s approval for visi- tors. (Tr. 573–574; CP Exh/ 5.) On an unidentified date, Bert Garcia, who was a steward at the time, received a request from Joe Pesce, who was then a working foreman, to sign Tafoya in so he could meet with him. Pesce drove Garcia to the security gate where Tafoya was wait- ing, and Garcia signed him in as a visitor. As Tafoya and Gar- cia were walking down the hall inside the administration build- ing, a security guard approached and told Tafoya he had in- structions from Nawman not to allow Tafoya inside the build- ing.19 (Tr. 340–341.) During the first part of April 2011, Gar- cia observed Nawman, in the hallway by the line department, tell Tafoya he was not allowed on company property. (Tr. 339, 343.) 18 Tafoya also later asked Cindy Castro for a copy. (Tr. 60.) 19 There was a separate incident when Nawman instructed a guard to escort Tafoya off the premises. Nawman, however, left the area and did not hear what, if anything, the guard said to Tafoya. He therefore did not know whether any employees heard the guard speak to Tafoya. (Tr. 766.) Tafoya did not testify about this incident. The only specific testi- mony the General Counsel elicited about a guard’s statement to Tafoya came from Bert Garcia, and I will therefore infer this comment is the basis for complaint allegation 5(h). Nawman testified that prior to January 2011, any employee at the ESC could meet Tafoya at the front desk, sign him in, and escort him, though this practice was “certainly not our ex- pectation.” (Tr. 789.) Nawman learned of the changes to visi- tor access from Mathes and his boss, Kirk Moser, but he could not recall or even approximate when. (Tr. 800.) He thinks Moser told him verbally. (Tr. 801.) From January 2011 forward, Tafoya was required to have management approval for access to the ESC. (Tr. 137–138, 789.) Whether management needed to actually escort him while he was on the property depended on the supervisor in- volved. According to Tafoya, some supervisors sent the stew- ard to escort him while others had a supervisor escort him throughout his visit. (Tr. 137–138.) Cox observed a contractor named Bizzell enter the property without following the new protocol. He saw people from the blood drive come and go without escorts. (Tr. 301.) He has also seen Ken Harger, a retired foreman, at PNM’s facilities without an escort. (Tr. 322.) 2. Analysis and conclusions a. Tafoya’s access As a condition of employment, the method of access by em- ployees to their representatives for grievance resolution is a matter related to “wages, hours, and other terms and conditions of employment” within the meaning of Section 8(d) of the Act and is a mandatory subject of bargaining. Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962), enfd. 320 F.2d 615, 620 (3d Cir. 1963). See also Westinghouse Electric Corp., 141 NLRB 733, 735–736 (1963), revd. on other grounds 325 F.2d 126 (7th Cir. 1963); Motoresearch Co., 138 NLRB 1490, 1492 (1962); J & H Rainwear, 273 NLRB 497 (1984), and Houston Coca-Cola Bottling Co., 265 NLRB 766, 778 (1982). The CBA does not address the level of access union officials, including business agents, may have at PNM’s facilities. Ac- cordingly, the analysis turns to whether, by past practice, access became a term or condition of employment. The legal frame- work, set forth above in the discussion of changes to the infor- mal step of the grievance process, governs this analysis. It is undisputed that traditionally the Union had virtually unencum- bered access to the plant for a variety of reasons. As Judge Schmidt observed, “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.” (Smith decision at p. 42.) As in the prior case, Nawman, a PNM manager with a long tenure at the ESC, ad- mitted as much. In addition, Tafoya’s testimony on his past practice of meeting with employees, investigating grievances, filing grievances, attending investigatory interviews, meeting with supervisors, and conducting other union business inside Respondent’s facility since 2002 was not contradicted. By requiring management approval for employees to escort for Tafoya into the ESC or before Tafoya could enter the ESC, PNM unilaterally removed a “real and substantial benefit” the Union previously enjoyed. Granite City Steel Co., 167 NLRB 310, 315 (1967). Having a manager aware each time an em- ployee requests to talk to Tafoya and requiring him to be es- corted would clearly inhibit the kind of candid exchanges pos- PUBLIC SERVICE CO. OF NEW MEXICO 587 sible between the represented employees and their union agents. Such a requirement is a way to make certain managers know when and with whom meetings between the union agent and unit employees occur. The same is true for the requirement that Tafoya contact a manager before entering the ESC. Respondent asserts that requiring management permission for Tafoya to access the ESC is part and parcel of requiring employees to obtain management permission before leaving their assigned duties. (R. Br. 57.) There was no evidence pre- sented, however, that this requirement was limited to employ- ees who were on the clock or employees who had not already received supervisory permission to address union matters dur- ing working hours. In addition, Respondent asserts in its brief that the issue was previously litigated and decided by Judge Schmidt. The issues, however, are different, with the level of access here being even more restricted than in the previous case. Finally, Respondent alleges a business justification, cit- ing management’s right to prevent unwarranted interruption of PNM’s operations. This, however, does not excuse the duty to bargain. McCottor Motors Co., 291 NLRB 764, 769 (1988). Accordingly, I find the unilaterally-implemented changes to Tafoya’s access to PNM’s property in January 2011 are materi- al and significant, and therefore violate Section 8(a)(1) and (5). Ernst Home Centers, 308 NLRB 848, 849 (1992); see also Turtle Bay Resorts, 355 NLRB 1272 (2010); Sacramento Un- ion, 291 NLRB 540 (1988). b. Alleged threats The Board’s longstanding test to determine if there has been a violation of Section 8(a)(1) of the Act is whether the employ- er engaged in conduct which might reasonably tend to interfere with the free exercise of employee rights under Section 7 of the Act. American Freightways Co., 124 NLRB 146 (1959). Em- ployer conduct that violates Section 8(a)(1) of the Act includes threats to exclude union agents from a jobsite. Swardson Paint- ing Co., 340 NLRB 179 (2003). In specifically assessing whether a remark constitutes a threat, the appropriate test is “whether the remark can reasonably be interpreted by the em- ployee as a threat.” Smithers Tire & Auto. Testing of Texas, 308 NLRB 72 (1992). Further, “It is well settled that the test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer’s motive or on whether the coercion succeeded or failed.” American Tissue Corp., 336 NLRB 435, 441 (2001) (citing NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946)). With regard to Cash’s statement, I agree with Respondent that the Acting General Counsel has not presented sufficient evidence to prove this allegation. As Respondent notes, the “working foreman” was not identified. Based on a later meet- ing Cash arranged with Tafoya and Montano, it most likely was Montano, but Montano did not testify about this incident. No other employee who was present testified about it either. Though Tafoya heard voices of crew members in the back- ground, the evidence does not establish that any of them were listening to the phone conversation between Tafoya and Cash or that they were subsequently informed of it. Accordingly, I recommend dismissal of complaint allegation 5(g). By contrast, the other statements, detailed above, occurred in the presence of union employees. Garcia overheard the securi- ty guard’s comment that Nawman instructed him not to let Tafoya on the property. Nawman’s statements in the NSD crew room were made in the presence of other employees. Respondent asserts that the contested comments were merely enforcement of the rule requiring management’s permission for Tafoya to access PNM’s premises. Given my finding that the rule was unlawfully unilaterally promulgated, however, reli- ance on such cannot provide a valid reason for the statements enforcing the rule. Villa Avila, 253 NLRB 76, 82 (1980). The Board ruled on a similar issue in Frontier Hotel & Casi- no, 309 NLRB 761 (1992), enfd. in relevant part NLRB v. Un- believable, Inc., 71 F.3d 1434, 1438 (9th Cir. 1995).20 There, the Board affirmed the ALJ’s finding that ejection of union representatives from the hotel’s premises interfered with union- related communications and coerced employees in violation of Section 8(a)(1) of the Act. Id. at 766; see also ABF Freight System, Inc., 325 NLRB 546, 562 (1998). In the present case, expulsion of the union representative from the premises took on the character of a threat (and its impact on Sec. 7 rights was magnified) by the presence of union employees who witnessed the denial of access to their representative. Accordingly, I find that the Acting General Counsel has met his burden to prove that Respondent threatened employees’ Section 7 rights by sending the message that the person charged with administering their collectively bargained rights was no longer allowed inside Respondent’s facility. I therefore find that, by the conduct alleged in complaint paragraphs 5(h) and (i), Respondent vio- lated Section 8(a)(1) of the Act. 3. Allegations relating to Fitzgerald a. Facts Prior to October 2011, Union Business Agent Fitzgerald went to the San Juan facility most Tuesdays. He would call human resources employees, drive to the plant, get a temporary placard from the security guard to put on his dashboard, and enter the plant. (Tr. 366, 932.) Fitzgerald would conduct whatever business he needed to without an escort. When he was done, he would return his placard and leave. (Tr. 367.) McIntyre was aware of this practice, having been informed of it by her predecessor, as well as having observed it for a year. (Tr. 1069–1070.) Employees also knew Fitzgerald visited on Tuesdays. (Tr. 1098.) Fitzgerald generally met with supervi- sors in their offices. (Tr. 360.) Employees receive two breaks and a 30-minute lunch. (Tr. 1055, 1065.). Fitzgerald visited employees in the shops and in the control rooms, and conducted union business when employ- ees were on breaks when possible. In the shops, he would talk to employees in the breakroom for varying amounts of time. (Tr. 1099.) Some unit employees, such as plant operators in the secure control rooms, do not get formal breaks. Fitzgerald talked to employees in the control room both before and after it was a NERC-secured site. He would sign in, and an employee 20 In Frontier Hotel, there was an access provision in the applicable CBA. Here, established past practice renders this a distinction without a difference. 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with a swipe card would escort him. (Tr. 443–444.) His visits in the control rooms were varied in time but were usually rela- tively brief. (Tr. 1100–1101.) McIntyre started as human resources director at San Juan in February 2010. In early 2011, she spoke with Mathes and the plant director, Greg Smith, about wanting to make sure em- ployees were not coming off the job to talk to Fitzgerald. She perceived his routine access to the plant as “odd” based on her labor background. (Tr. 1042–1045.) An internal election within the IBEW resulted in a brief and temporary changing of the guard. Between July 15 and Sep- tember 9, 2011, Jim Speight, a newly-elected business manag- er, employed his own assistants and stewards to represent the Local 611’s members. (Tr. 158–159.) Most relevant here, Aaron King served as the assistant business manager for mem- bers at the San Juan Generating Facility from July 27 to mid- September 2011. (Tr. 159; 382.) During that time period, Fitz- gerald returned to his position of journeyman mechanic.21 (Tr. 373.) Prior to King taking over as assistant business manager in the summer of 2011, King was in McIntyre’s office to get paperwork started for his leave of absence from his job with PNM. He, McIntyre, and Padilla discussed access to the plant. (Tr. 383, 1023.) According to King, McIntyre did not like that Fitzgerald came to PNM unannounced. (Tr. 383.) King stated that when the new administration was in place, they would work to compromise on a number of things. King told McIn- tyre that he would call and let them know when he would be coming, and that he would conduct most union business at the union hall. (Tr. 383–384, 942, 1023.) Padilla and McIntyre offered King space in the administration building to meet with unit members. (Tr. 391–392, 938, 1023.) King was not in office long enough to take Padilla up on this offer, but had no problem with the plan. (Tr. 392, 968.) King viewed it as a courtesy rather than a requirement. (Tr. 395.) King did not perceive that he and anyone from PNM entered into any agreement over his access to PNM’s property. (Tr. 386.) Pa- dilla perceived that he and King agreed about the changed ac- cess, but did not view it as binding on Fitzgerald. (Tr. 952– 953, 970.) McIntyre did not view King’s acceptance of the offer to meet with unit members in the administrative building as an agreement. (Tr. 1052.) During King’s 6–8 weeks as assistant business manager, he had about three meetings with Padilla to discuss grievances. (Tr. 391–392, 938.) On October 4, 2011, Fitzgerald returned as assistant business manager. He arrived at the San Juan Generating Station, where the security guard checked his ID and directed him to the admin building. After signing in, Fitzgerald started on his way to find Padilla, at which point the guard told him he needed to have Padilla escort him onto the property. (Tr. 356–357.) Fitzgerald and the guard tried to call Padilla, but neither received a re- sponse. Fitzgerald then signed out, took off his badge, and drove around to the front gate to attend to other work. The guard at the front gate said he was ordered to deny Fitzgerald access. (Tr. 357.) Fitzgerald went back to the union hall. When he got ahold of Padilla and asked what was going on, 21 Fitzgerald had to undergo a 7-year criminal background check pursuant to NERC regulations when he resumed his work at PNM. Padilla apologized for the way things had transpired, but ex- plained that PNM was changing his access. (Tr. 358, 951.) Fitzgerald made an appointment to come back at 1 that after- noon. He arrived, signed in, received a badge, and Padilla es- corted him into the administration building. (Tr. 359.) Clay Cash was also present. Padilla informed Fitzgerald that when he needed to talk to any of the stewards or employees, the em- ployee would be called up to meet with him in a room in the administration building. If Fitzgerald needed to be elsewhere on the PNM property, Padilla would escort him. (Tr. 446, 454– 455, 954.) Under the new rule, Padilla, McIntyre, or Ernie Rodarte, the compliance manager, needed to escort him when- ever he came to the facility, and they would make a meeting room available to him in the admin building. (Tr. 981.) In a meeting about a week later, Padilla said that the Union had not acquiesced to the loss of any rights to access the property dur- ing King’s tenure. (Tr. 458–459, 978.) Cash observed vendors and contractors walking around the plant unescorted. (Tr. 459–460.) Lloyd Beebe, a business agent from the Local 611 who represents contractor MJ Elec- tric’s construction electricians, appeared on the property unes- corted in or around October 2011. (Tr. 462, 503.) Beebe con- tinued, through the time of the hearing, to have the same access Fitzgerald previously had. (Tr. 509, 511, 935.) Contractor Jim Washburn does not require an escort. (Tr. 963.) Other vendors have varying degrees of access. Some have temporary swipe cards, others use visitors’ badges. (Tr. 1063.) b. Analysis and conclusion Respondent admits, and I find, that Fitzgerald had a practice of visiting the San Juan facility on Tuesdays and had wide- ranging access once there. (R. Br. 73; 963, 1019, 1021.) The legal framework discussed above regarding Tafoya’s access applies here, and accordingly I find Fitzgerald’s access prior to the changes constitutes a past practice. Likewise, for the rea- sons articulated above, I find the unilateral changes Respondent implemented are material, substantial and significant. The rationale is even more compelling than in Tafoya’s situation, since here either human resources management or the compli- ance manager now must escort Fitzgerald to meetings. Re- spondent’s argument that once escorted, Fitzgerald could meet with the employee in a private room misses the point entirely, as articulated in the discussion of Tafoya’s access. Respondent’s argument that King “constructively agreed” to restrictions on the Union’s access is wholly unavailing and baseless in light of the evidence presented. Though no law was cited to support this argument, I will address it with the brevity it is due. King was not yet acting as a union business agent when he had the discussions with McIntyre and Padilla at issue. Respondent’s argument that because King was wearing a suit and driving a union truck, Padilla, a seasoned human resources employee who knew King had yet to take office, somehow believed King could bind the Union is absurd. This is particu- larly true considering Padilla’s own testimony that he did not consider any arrangement he made with King as binding on Fitzgerald. In a meeting about a week later, Padilla said that the Union had not acquiesced to the loss of any rights to access the property during King’s tenure. (Tr. 458–459, 978.) Like- PUBLIC SERVICE CO. OF NEW MEXICO 589 wise, McIntyre did not view King’s acceptance of the offer to see employees in the administration building as an agreement. (Tr. 1052.) Finally, King testified he did not view the discus- sions he had with Padilla or McIntyre about access as an agreement. (Tr. 386.) Apparently, nobody perceived there was an agreement. Respondent cites to the NERC regulations to support the changes. First, these regulations became applicable in January 2011, yet no changes took place until August. Second, the NERC regulations apply to very few of the worksites at the San Juan facility yet the changes were not limited to these sites. Finally, Fitzgerald obtained the requisite background check to access NERC-regulated sites during his brief period out of of- fice when he returned to work as a journeyman mechanic. He was permitted access when he lacked the required clearance, and, as Respondent noted, he was also permitted access to the NERC-secured control room after the changes. (R. Br. 77.) Respondent did not present evidence, as it argued in its brief, that Fitzgerald’s access to the NERC-controlled sites was pre- cluded by Federal law. This position would be most difficult to support in light of the evidence regarding his continued access after the law took effect. Lastly, Respondent pointed to concerns about productivity. The evidence that Fitzgerald interfered with employee produc- tion is scant at best. On one occasion, when Padilla saw three people talking with Fitzgerald, he asked whether they had work to do. Fitzgerald replied that if they did, they were free to go. (Tr. 936.) Supervisor Rick Carroll once complained that Fitz- gerald was causing a disturbance down in the shop when Car- roll would not receive a request for information. He did not mention anything about production. (Tr. 961.) McIntyre had a few conversations with Fitzgerald about employees needing to limit their visiting time to lunch and breaks. Fitzgerald, in a manner that McIntyre characterized as respectful, agreed and told her that his purpose was to be available during lunch and breaks. (Tr. 1020.) There was no evidence that any employee suffered production deficiencies from working on union busi- ness with Fitzgerald. Any business justification lacks merit for the same reasons articulated in Tafoya’s case. See McCottor Motors Co., 291 NLRB 764, 769 (1988). Based on the foregoing, I find Respondent violated Section 8(a)(1) and (5) of the Act when it changed Fitzgerald’s access as alleged. C. Alleged Changes to Meter Reader Schedules Complaint paragraph 9(c) alleges that Respondent violated Section 8(a)(1) and (5) of the Act when: On or about January 3, 2011, the Respondent implemented a new requirement that meter-reading employees have to work on Saturdays. 1. Facts Article 15A of the collective-bargaining agreement contains a provision that defines the working hours for meter readers and collectors. Under this provision, employees who work an 8-hour schedule work a 40-hour week with regular work hours on Monday through Friday. Collectors may be assigned a 10- hour per day, 4-day per week schedule, with the regular work- week as Monday through Thursday or Tuesday through Friday. (Jt. Exh. 1.) Meter readers reported to Tafoya they were being required to work mandatory overtime and these hours were being sched- uled on Saturday. Respondent, after imposing mandatory over- time on Saturdays, notified employees that failure to report on those days would be considered unscheduled absences. (Tr. 101.) 2. Analysis and conclusion I find that the Acting General Counsel has not produced suf- ficient evidence to prove this allegation. The contract provision it cites to, section 15A, sets forth the schedules for regular work hours. What is at issue, however, is the requirement to work overtime, not the regular schedule. Section 15A is silent as to overtime, but overtime work is contemplated in article 17A, which sets forth the overtime rates for meter readers and collec- tors. Tafoya testified that the meter readers complained to him about being required to work overtime on Saturday in January 2011. There was simply not testimony or other evidence suffi- cient to prove that this requirement violated the collective- bargaining agreement or that it deviated from established past practice. As the Acting General Counsel has not met his bur- den in this regard, I recommend dismissal of complaint para- graph 9(c). D. Alleged Refusal to Process Eric Cox’s Discrimination Complaint Complaint paragraph 5(e) alleges that Respondent violated Section 8(a)(1) of the Act as follows: Since about October 7, 2010, the Respondent has refused to meet with the Union and its employee Eric Cox, herein called Cox, regarding a complaint Cox filed regarding his working conditions because Cox has insisted that his Union representa- tive be present during any such meetings. 1. Facts In or around late April/early May 2010, Cox filed a com- plaint with PNM alleging discrimination based on his race and union activity, i.e., his status as a Black steward. He asked Tafoya to represent him. PNM assigned Tommy Lee, human resources director at PNM Resources in Las Colinas, Texas, to investigate the complaint. (Tr. 636–637.) Glenn Porter, vice president of human resources, chose Lee because he had no prior connections with the Union or local management. (Tr. 628.) Lee attempted to meet with Cox on Wednesday, June 1, in Albuquerque. He called and emailed both Cox and his su- pervisor, Mark Martinez, to confirm availability. Martinez, informed Lee that Cox had already take leave for Thursday and was thinking of taking Wednesday off too. Cox did take leave on Wednesday, and was therefore not at work when Lee visit- ed.22 (Tr. 640–641.) For reasons that are less than clear, Lee and Cox did not make contact with each other until Cox sent Lee an email on September 29, asking if Lee was the right per- son to contact about his complaint, and stating that nobody had 22 Cox called Lee and left him a voicemail that he was on leave. (Tr. 643.) 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gotten back to him.23 (Tr. 643.) The next day, Lee responded, and ultimately scheduled a meeting for October 7, 2010, at PNM headquarters. (Tr. 226, 643, 647.) The parties met on October 7, but, as described in more detail below, the investiga- tion did not move forward. This is because Cox did not agree to proceed without Tafoya as his representative. Cox wanted Sonia Otero to conduct the investigation because he believed Lee had been influenced by Ray Mathes,24 and Cox wanted the investigation processed as a single allegation of discrimination based on race and union animus. (GC Exh. 2.) On October 8, 2010, Lee sent Cox an email summarizing his understanding of the meeting. He stated that PNM was ready and willing to investigate his complaint, but that Tafoya could not serve as a witness or representative during the investigation into the race discrimination complaint.25 Lee further informed Cox that he could choose a PNM employee to serve as a wit- ness for the race discrimination investigation, and that Tafoya could serve as a witness during the investigation regarding union animus.26 Lee noted that Tafoya and Cox were adamant that the race and union animus complaints should be investigat- ed together, and they believed Tafoya had the right to serve as Cox’s union representative, not just as a witness. He also me- morialized Cox’s request to have Sonia Otero participate in the investigation, and stated that the Company would make her available to help with the race discrimination claim. Lee con- cluded that he would speak with management about next steps, and get back to Cox. (Tr. 643–651; GC Exh. 2.) Cox forwarded Lee’s email to Tafoya for response. On Oc- tober 29, 2010, Tafoya reiterated that Cox did not want the complaint split into two separate investigations. He expressed his belief that Ray Mathes, manager of labor relations, was a party to the complaint, and therefore should not have any input into the investigation. According to Tafoya and Cox, Lee had stated at the meeting that his decision to bifurcate the investiga- tion was made in concert with Legal Counsel Janelle Haught, Porter, and Mathes. (Tr. 128, 227.) Lee testified that he, Mathes, and Porter discussed whether to permit a union repre- sentative, and that he discussed the decision to bifurcate the investigation with Porter and Haught. (Tr. 658–659.) Tafoya stated that he would continue to act as Cox’s representative, and he asked Lee to provide him with the policy he was relying on to prohibit his involvement. He noted that any investigation may affect Cox’s terms and conditions of employment, and therefore his request for union representation was legitimate. Tafoya further related the parties’ responsibilities to abide by article 8 of the CBA. He concluded by requesting a meeting to address Cox’s concerns. (GC Exh. 2.) 23 Not surprisingly, each side lays the blame on the other. Because the complaint allegation runs from October 7 forward, however, the prior communications snafus are immaterial. 24 Cox testified he thought Mathes was part of the problem underly- ing his complaint, and the only person he trusted at PNM was Otero. (Tr. 293, 295.) 25 Tafoya testified that he told Lee and Otero that he had infor- mation to offer as a witness. (Tr. 126.) 26 Lee clarified that Tafoya could serve as a witness to the proceed- ing and remain in the room with Cox. (Tr. 660.) On November 2, 2010, Lee sent an email to Cox acknowl- edging receipt of Tafoya’s October 29 correspondence. He clarified that he had spoken to Mathes prior to their meeting, but he did not “follow advice” from him as Tafoya had alleged. He reiterated that he intended to bifurcate the investigation, and that union representation for the race discrimination claim was unwarranted. He recommended that they proceed with the separate investigations rather than allow a process issue to de- lay the Company in its attempts to address his concerns. Lee concluded by informing Cox that he had set up a meeting for November 10 to discuss the race discrimination complaint. (GC Exh. 4.) Lee met with Cox and Tafoya on November 10, offered to take Cox’s statement about the race discrimination claim with Tafoya in the next room. If it came to light that Tafoya had relevant knowledge, Lee would interview him. (Tr. 653.) The parties maintained their respective positions, and the investigation did not ensue. (Tr. 68.) Lee learned that Cox’s unfair labor practice charges alleging PNM failed to investigate his complaint were dropped, and asked Cox if he still wanted to pursue his race discrimination claim. Lee testified that Cox sent him a simple email back: “No.”27 (Tr. 654–656.) 2. Analysis and conclusion The Acting General Counsel contends that Cox’s discrimina- tion complaint alleges a violation of the CBA. He further ar- gues that Cox’s complaint falls within the CBA’s definition of a grievance, thereby invoking Cox’s right to representation. (AGC Br. 51–53.) Respondent argues that the CBA does not address representation for the investigation of an employee’s own complaint. Respondent further contends that the investiga- tion that Cox initiated could not reasonably lead to his own discipline, and therefore he had no right to representation under Weingarten.28 (R. Br. 17–18.) In support of its argument, the Acting General Counsel points to articles 8 and 10 of the CBA. Article 8, at section A, incorporates Respondent’s requirement to abide by Federal and State laws regardless of an employee’s race, religion, color, sex, age, or national origin into the contract. (Jt. Exh. 1.) Re- spondent’s “Do the Right Thing” policy also contains an Equal Employment Opportunity (EEO) provision prohibiting unlaw- ful discrimination. (CP Exh. 2.) The CBA, article 10, defines a grievance as “a dispute between the parties hereto with respect to interpretation or application of the provisions of the Agree- ment or to the application of a specific policy to a specific em- ployee.” That same section permits employees to have a “un- ion steward” represent them in the grievance process. Finally, article 10 provides: “The following procedure shall be the 27 Respondent does not argue that Cox abandoned his race discrimi- nation complaint, and, assuming Cox sent this email (which was not produced at the hearing), I find his response to Lee indicates he did not want to go forward as before, i.e., unrepresented. 28 NLRB v. J. Weingarten, 420 U.S. 251 (1975). As Respondent as- serts, Lee testified it was “inconceivable” that Cox could face discipline for bringing his complaint. Civil Rights law does share this view. Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from employer retaliation for opposing or complaining about, inter alia, race discrimination, and provides a comprehensive remedial scheme for any violations. See 42 U.S.C. § 2000e-3. PUBLIC SERVICE CO. OF NEW MEXICO 591 exclusive means by which either party may seek to resolve any dispute or grievance arising under the provisions of this Agreement.” (Jt. Exh. 1.) The crux of the argument, therefore, is that PNM was required to process Cox’s complaint as a grievance and permit Tafoya to represent him. Respondent contends the CBA does not address representation for the in- vestigation of Cox’s discrimination complaint and therefore does not confer upon him any representation rights. Complaints regarding contract violations are generally pro- cessed as grievances. Indeed, there is a lengthy body of case law that discusses when deferral to the grievance and arbitra- tion process is appropriate. See Collyer Insulated Wire, 192 NLRB 837 (1971), and its progeny. In most such cases, the employer requests dismissal of an unfair labor practice com- plaint, arguing deferral to the grievance/arbitration process. This case is somewhat upside down. Respondent never sought to process either the underlying discrimination complaint, or the complaint regarding representation in the investigation of the discrimination complaint, as grievances.29 It is not clear whether Cox or Tafoya presented the discrimination complaint as a grievance, though Tafoya referenced article 8 of the CBA in his correspondence with Lee. A threshold issue therefore arises then of whether Cox’s discrimination complaint should have been processed as a grievance. As discussed above, it is well settled that the Board has the authority to interpret the terms of a collective-bargaining agreement to determine whether an unfair labor practice has occurred. NLRB v. C & C Plywood Corp., 385 U.S. 421, 428 (1967); Resco Prodtss, Inc., 331 NLRB 1546 (2000). I find that the CBA, through articles 8 and 10, mandated PNM to process the discrimination complaint as a grievance. Cox did not file a discrimination charge with a Federal or State agency. Instead, he raised his complaint internally. Cox, as a union steward, should have known that his complaint fell under the CBA, and asked for it to be processed as a grievance.30 It is not clear to whom Cox initially presented his discrimination com- plaint or whether he asked that it be routed through any particu- lar forum. The evidence shows, however, that the complaint made its way to Porter, the vice president of human resources. Porter, and other individuals from human resources, labor rela- tions, and/or the legal department, who knew about the com- plaint, plainly should have known that it implicated the CBA and, in turn, the grievance process. The evidence does not indicate that Porter, or anyone else involved in the complaint, intentionally violated the CBA by the manner in which it chose to process Cox’s discrimination complaint. It is more likely that bypassing the grievance process was an oversight by all involved. Nonetheless, Respondent did not present any evi- dence to refute the contractual language that brings Cox’s com- plaint within the ambit of a grievance. Based on the foregoing, I find that Cox’s complaint was a grievance under the terms of the CBA. Whether Cox had a right to representation in the grievance process, like the question of whether the complaint should have 29 Respondent did not present a deferral argument or analysis. 30 Neither party submitted a written discrimination complaint, which leads me to infer Cox complained orally, at least initially. been processed as a grievance, is also a matter of contract in- terpretation. Respondent does not argue that the issue should have been deferred to the grievance process. Even if it had, the allegation that Tafoya was not permitted to represent Cox in his discrimination complaint is closely related to many other issues regarding Cox’s representational rights and Tafoya’s access, both in this complaint and the complaint Judge Schmidt adjudi- cated.31 The Board has consistently held that it will not defer one issue if it is closely related to another issue that is not de- ferrable. Everlock Fastening Systems, 308 NLRB 1018 1019 fn. 8 (1992); 15th Ave. Iron Works, 301 NLRB 878, 879 (1991).32 The language of the CBA authorizes representation in the grievance process by a union steward. The legal frame- work for establishing a past practice is discussed earlier in this decision, and is hereby incorporated. It is abundantly clear, and I find, that Tafoya and other union business agents had estab- lished a past practice of representing unit members in the griev- ance process. (Tr. 31–32, 506.) Accordingly, I find that Re- spondent violated Section 8(a)(1) by conditioning the investiga- tion of Cox’s discrimination complaint on his being unrepre- sented. Respondent raised some other points on the matter that merit discussion. Lee asserted that his practice has been to “not have a non-employee to represent or be involved in a meeting with an employee that brings an allegation forward,” (Tr. 697), Lee’s past practice at companies not party to the CBA between PNM and the Local 611 lacks relevance. Respondent also con- tended that PNM offered to bifurcate the proceeding to permit Tafoya to serve as witness to the union animus complaint mis- states the facts. Cox alleged that he was discriminated against as a Black steward, and always wanted this to be processed as a single allegation. The “offer” to bifurcate was in reality a re- quirement to bifurcate in a manner that Cox believed misstated his claim. (Tr. 123; GC Exh. 2.)33 Finally, in light of my ruling that the Cox’s discrimination complaint is properly processed as a grievance, which confers the right to representation aside and apart from Weingarten, I need not address whether or not Cox had a reasonable expectation of discipline for bringing his complaint and/or meeting with Lee.34 31 Judge Schmidt found unlawful the restrictions placed on Tafoya’s access to PNM’s facilities in the latter part of 2009. 32 In addition, as with requests for information, the denial of repre- sentation complaint alleges interference with the grievance procedure to which the employer urges deference. 33 Courts have recognized so-called “plus” claims, where race or any basis protected by Title VII, coupled with another characteristic, is the alleged basis discrimination. See Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (sex plus preschool age children); Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir.1987) (sex plus race); Jefferies v. Harris County Community Action Assn., 615 F.2d 1025 (5th Cir.1980) (race plus gender). In a recent case, Craig v. Yale University School of Medicine, 838 F.Supp.2d 4 (D. Conn. 2011), the court found the plain- tiff stated a cognizable claim of discrimination based on “race plus gender” but not based on gender alone. 34 I agree with Respondent that Cox had no right to insist that cer- tain individuals conduct the investigation. As Cox would not go for- ward without representation, however, this issue never became ripe, and is not part of the instant complaint. 592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD E. Alleged Denial of Cox’s Representative of Choice by Tom Mitchell The complaint, at paragraph 5(f), alleges that Respondent vi- olated the Section 8(a)(1) Act as follows: On or about March 28, 2011, the Respondent, by Tom Mitch- ell, herein called Mitchell, at the Respondent’s facility located on Edith Boulevard in Albuquerque, New Mexico, herein called Respondent’s Edith facility, denied the request of its employee Cox to be represented by the Union during an in- terview, by refusing to allow Cox to be represented by the Union representative of his choice who was present and avail- able. 1. Facts In March 2011,35 Mitchell, Cox’s supervisor, told him he was to report to human resources. At the time, Cox was in the NSD crew room, which was a 3–5 minute walk to the human resources office. On his way to the meeting, Cox called Tafoya to represent him. (Tr. 233–235.) When Cox arrived, Monfilet- to, Mitchell, and Bert Garcia, a union steward, were present.36 Monfiletto informed Cox that Joan Schueller, the business part- ner for Shared Services, reported that he had been disruptive and rude while representing an employee on a grievance a cou- ple weeks prior. (Tr. 236, 256, 303, 606.) Cox responded that he wanted Tafoya to represent him, and that Fred Martinez would also be acceptable. Management initially responded that Garcia was present and could represent Cox. (Tr. 235–237.) According to Monfiletto, when Cox insisted on a different rep- resentative, he was given a 5-minute break to get either Tafoya or Martinez. (Tr. 589.) Tafoya was outside the gates of the locked perimeter, and Cox went to talk to him. (Tr. 235–238.) After 5 minutes, Cox had not returned to the meeting. (Tr. 590.) Mitchell came out and told him it was time to go back to the meeting. Tafoya sought to attend as Cox’s representative, but Mitchell told him he was not allowed to be on PNM proper- ty and he could not represent Cox at the interview. (Tr. 71, 239, 339.) Cox returned to the meeting with Garcia under pro- test. (Tr. 240.) The CBA does not address whether the em- ployee has the right to choose his or her union representative. PNM’s practice was to accommodate if it would not delay the investigation. (Tr. 588, 808.) The investigation concluded with Monfiletto determining that Cox had not been disrespectful or rude, and had not violat- ed any policy. (Tr. 592.) 2. Analysis and conclusion “The selection of an employee’s representative belongs to the employee and the union, in the absence of extenuating cir- cumstances. . . .” Barnard College, 340 NLRB 934, 935 (2003), (citing In re Anheuser-Busch, Inc., 337 NLRB 3 (2001), enfd. 338 F.3d 267 (4th Cir. 2003), cert. denied 541 U.S. 973 (2004), and Pacific Gas & Electric Co., 253 NLRB 1143 (1981). In Consolidation Coal Co., 307 NLRB 976 (1992), the Board found an employer violated an employee’s Weingarten 35 Cox testified it was “maybe May” but the complaint alleges it was March, and Respondent notes the date as March 28. (R. Br. 18.) 36 Mitchell brought Garcia to the meeting. (Tr. 586.) rights when it denied the employee his specifically requested union representative when that representative was available and ready to proceed. See also GHR Energy Corp., 294 NLRB 1011, 1042 (1989). In Anheuser-Busch, the Board agreed with the trial judge’s finding that the employer violated the Act by refusing an employee’s request for an alternate representative because that person was on his lunchbreak. The evidence showed that the desired representative was due to return to work in 15 minutes and “there was nothing about the allega- tions . . . that demanded instant attention.” Anheuser-Busch, 337 NLRB at 11. There were no extenuating circumstances present here, as Tafoya was available and ready to represent Cox. Respondent asserts that Monfiletto did not know Tafoya was available. This doesn’t matter, as Mitchell knew Tafoya was present at the facility and ready to proceed. Respondent notes that Cox was represented and no discipline was imposed. This misses the point, however. Clearly, Respondent saw the interview as in- voking Cox’s Weingarten rights, as management had secured the presence of Union Steward Bert Garcia. The fact that Gar- cia was present and qualified does not eradicate the decision to deny Cox his available representative of choice. Accordingly, I find Respondent violated Section 8(a)(1) of the Act by denying Cox the available union representative of his choice. F. Alleged Conduct Related to Supervisor Dale Smyth In complaint paragraph 5, the Acting General Counsel alleg- es that Respondent violated Section 8(a)(1) of the Act with regard to the following actions by Supervisor Dale Smyth: (k) On or about June 2, 2011, the Respondent, by Dale Smyth, herein called Smyth, at the Respondent’s Edith facility: (1) Interrogated employees regarding their Union ac- tivities by questioning them about discussions employees had with Union representatives; (2) Threatened employees by informing them they were being taken into a management office to be ques- tioned about their Union activities; (3) Threatened employees by telling them it would be futile for them to go to the Board because the Respondent was not going to abide by the National Labor Relations Act; (4) Misrepresented to employees that they had rights pursuant to Weingarten only when the Respondent was going to issue actual discipline to them; and (5) Threatened employees with unspecified reprisals by telling them there would be consequences if they did not reveal the details of their Union activities to the Re- spondent. (l) On or about June 2, 2011, the Respondent, by Smyth, at the Respondent’s Edith facility, denied the request of its em- ployee Cox to be represented by the Union during an inter- view. The complaint, at paragraph 6, further alleges that Respond- ent violated Section 8(a)(1) and (3) when on or about June 2, 2011, Respondent imposed more onerous working conditions PUBLIC SERVICE CO. OF NEW MEXICO 593 on Cox by requiring him to go to a management office to be questioned about his union activities. 1. Facts On June 2, 2011, Cox was in the NSD crew room speaking to a few maintenance employees, including Joe Montano, about some potential overtime bypass grievances.37 He had received permission from his supervisor, Ralph Pesce, the previous day. (Tr. 247–249, 1129, 1135.) Pesce, who was at this point in time the maintenance supervisor, was absent on June 2. Line Department Supervisor Dale Smyth was acting for Pesce but Cox was not aware of this. (Tr. 317, 809.) Smyth was similar- ly unaware that Pesce had granted Cox time to work on griev- ances. Pesce had not left him a note, and nobody else had in- formed him about it.38 (Tr. 820.) For the couple weeks prior, Cox had been away on union business. Smyth came in and asked if Cox was “here today” and Cox responded that he was but he was investigating some grievances. (Tr. 248–249, 261.) Unaware that Cox had been granted union time on June 2, Smyth had assigned him to a crew because he had seen him earlier that morning.39 (Tr. 812.) Smyth asked what the grievances were and which employees they concerned. (Tr. 79–80, 247–249, 811, 1130.) Cox would not give specifics, but Smyth continued to question him about the grievances. According to Montano, Smyth’s tone of voice became progressively more aggressive. (Tr. 1131.) Smyth stated he needed to speak to Cox alone in a manner Cox per- ceived as agitated. Cox called Tafoya because he was con- cerned the meeting could lead to discipline. (Tr. 249–520.) Cox and Montano went to Smyth’s office, and Cox informed Smyth that Tafoya was out front and needed to be signed in. Smyth responded that Cox did not need a union representative because the meeting could not lead to positive discipline. (Tr. 251, 314, 811.) At the time Smyth was not contemplating the pursuit of discipline. (Tr. 814-816.) Cox went out to talk to Tafoya, who made calls to some managers, including Smyth and Mitchell. Smyth called Tafoya back. (Tr. 80, 253, 819.) Tafoya told Smyth he was on speaker phone in his car and Cox was present. Smyth and Tafoya went back and forth to no avail. According to Cox and Tafoya, Smyth stated there would be “consequences” if Cox would not answer his questions about the grievances. (Tr. 255.) Tafoya told Smyth that was why he needed to be present as Cox’s un- ion representative and told Smyth he was violating the National Labor Relations Act by questioning Cox and was forcing him to file charges. (Tr. 255.) Smyth told Tafoya he had filed un- fair labor practice charges against him before and Tafoya could do it again because it did not bother him. (Tr. 165.) After they hung up, Mitchell came out and talked to Tafoya and Cox, and 37 Other employees present were Joe Connors, Isaac Padilla, and Gilbert Padilla. (Tr. 312, 1129.) 38 Mitchell testified that employees have the responsibility to enter information such as time permitted to work on grievances into PNM’s electronic system, Telestaff. (Tr. 876.) There is no evidence that Smyth accessed the Telestaff records on June 2, however, and Smyth’s testimony did not address the Telestaff records. 39 A couple days later, Pesce told Smyth that Cox had let him know he had union business that morning. (Tr. 845.) told them that he wanted to find out what had happened and work though the issues rather than escalate them. (Tr. 863.) He informed Cox that he did not have to discuss the specific grievances with Smyth. (Tr. 255, 835.) 2. Analysis and conclusions a. Alleged interrogation about union activities In assessing the lawfulness of an interrogation, the Board applies the totality of circumstances test adopted in Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). This test involves a case-by-case analysis of various factors, includ- ing those set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964): (1) the background, i.e., whether the employer has a history of hostility toward or discrimination against union ac- tivity; (2) the nature of the information sought; (3) the identity of the interrogator, i.e., his or her placement in the Respond- ent’s hierarchy; (4) the place and method of the interrogation; and (5) the truthfulness of the interrogated employee’s reply. See, e.g., Sproule Construction Co., 350 NLRB 774, 774 fn. 2 (2007); Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1 (2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005). The Board also considers whether the interrogated employees are open and active union supporters. See, e.g., Gardner Engineer- ing,Inc., 313 NLRB 755, 755 (1994), enfd. as modified on oth- er grounds 115 F.3d 636 (9th Cir. 1997). These factors “are not to be mechanically applied”; they represent “some areas of inquiry” for consideration in evaluating an interrogation’s le- gality. Rossmore House, 269 NLRB at 1178 fn. 20. Though most of the case law regarding interrogation arises in the con- text of organizing campaigns, the Board has found that interro- gations intended to interfere with an employee’s right to file and process a grievance may violate Section 8(a)(1). See, e.g., Pabst Brewing Co., 254 NLRB 494, 495 (1981). Cox was an active and open union supporter, a factor that weighs in Respondent’s favor. Most of the other factors, how- ever, weigh in Cox’s favor or are neutral. The history of hostil- ity, at least as of late, is glaring, resulting in poor behavior all around. In light of the recent violations that PNM has accrued, both in this decision and in prior decisions, I find this weighs slightly in Cox’s favor. The nature of the information sought was the substance of potential employee grievances. It is self- evident that employees may not want a supervisor to know that they are contemplating a grievance. This factor therefore weighs in Cox’s favor. The identity of the interrogator was a supervisor, who, at the time of the interrogation, Cox believed was outside his chain-of-command. Given Smyth and Cox’s history, this factor would be neutral but for Smyth’s superviso- ry status giving him elevated standing in PNM’s hierarchy. The soured relationship between Smyth and Cox, evident from Judge Schmidt’s decision, has plainly spawned mistrust and miscommunication. Cox did not come out and say that Pesce had granted him union time. Smyth did not come out and say that he was acting for Pesce and that he had assigned Cox to a crew. Things likely would have proceeded more smoothly if the lines of communication approached normalcy. While both parties bear some responsibility for escalating what really was a simple misunderstanding, Smyth’s supervisory status tips the 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD “identity of the interrogator” factor in Cox’s favor. The place and method of the interrogation weigh in Cox’s favor. As Montano observed, Cox became noticeably agitated in the NSD crew room, where other employees were present, and then or- dered Smyth to come to his office to meet with him one-on- one. Finally, the fifth Bourne factor speaks best to interroga- tions during organizing campaigns. As a corollary, however, I find Cox’s decision not to respond to Smyth’s questions, which Mitchell ultimately supported, weighs in Cox’s favor. I am also mindful of Board case law holding that it is a violation of Section 8(a)(1) for employers to tell employees to disclose union activity of other employees. Bloomington-Normal Seat- ing Co., 339 NLRB 191, 193 (2003); Tawas Industries, 336 NLRB 318, 322 (2001). Respondent argues that Cox is not susceptible to being intim- idated by Smyth based on Cox’s conduct at a meeting that was the subject of an allegation in the case tried before Judge Schmidt. This does not mean Smyth did not interrogate Cox about the grievances he was working on with the employees. Moreover, Mitchell, who saw Cox right after Smyth had ques- tioned him, described Cox as “very shaken up.” (Tr. 863.) As noted, both parties bear some responsibility for the multi- ple miscommunications that occurred on June 2. However, considering the factors above, I find that Smyth’s questioning Cox about the substance of potential grievances he was investi- gating on behalf of employees he represents was an unlawful interrogation in violation of Section 8(a)(1) of the Act. b. Alleged threats, misrepresentation about Weingarten rights, and denial of Representation (i) Smyth telling Cox to come to his office For many of the same reasons set forth directly above, I find Smyth threatened Cox and the other employees by telling Cox to come to his office to discuss the union grievances he was working on in the NSD crew room. There is some dispute in the testimony as to the chain of events. According to Smyth, he peeked his head in the door of the NSD room and Cox told him that he needed a little more time for union business. Smyth replied, “[O]kay, as soon as you’re done come see me in my office.” (Tr. 810–811.) According to Montano, Smyth made multiple inquiries in the NSD crew room asking specifically what union business and what grievances Cox was investigat- ing. When Cox did not respond, Smyth stated, in an aggressive tone, that he needed to speak with Cox alone. (Tr. 1130–1132.) Cox’s recollection is consistent with Montano’s. (Tr. 247– 249.) I credit Montano’s testimony because it was specific and his demeanor was open and straightforward. In addition, based on the history between Smyth and Cox, Montano is the most objective person to have observed the encounter. Moreover, the Board has recognized that the testimony of a current em- ployee which contradicts statements of supervisors is likely to be particularly reliable because these witnesses are testifying adversely to their pecuniary interests. Gold Standard Enter- prises, 234 NLRB 618, 619 (1978); Federal Stainless Sink Div. of Unarco, 197 NLRB 489, 491 (1972); Gateway Transporta- tion Co., 193 NLRB 47, 48 (1971); Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1961). That Smyth acted aggressively is further corroborated by Mitchell’s testimony that Cox ap- peared very shaken up after the encounter with Smyth. Finally, Montano’s testimony is more plausible than Smyth’s because what occurred in the NSD crew room led Cox to believe he needed representation to meet with Smyth, as evidenced by the fact that he called Tafoya. Accordingly, I find that Smyth’s statement was a threat to employees, conveying the message that management will demand to know the substance of meet- ings with union officials, including stewards. As such, I find it violated Section 8(a)(1) of the Act. (ii) Alleged comment regarding futility of Board charges Taken in context, I do not find that Smyth threatened Cox or Tafoya by stating that filing charges with the National Labor Relations Board would be futile. Smyth denied making such a statement, and this denial is uncontroverted. (Tr. 816.) Tafoya testified that Smyth’s comment was that he (Tafoya) had filed charges before, and he could file them again, and it would not bother Smyth. This was in response to Tafoya saying he was going to file charges against Smyth on the heels of an unpro- ductive back and forth argument between them. This case can be distinguished from cases where the Board has found comments about the futility of going to the Board violated the Act. In 7 UP Bottling Co., 261 NLRB 894 (1982), a violation was found where a manager informed an employee that it had cost the respondent $1000 to visit the Board’s offices to discuss a charge and told the employee to “make all the alle- gations you want, nothing is going to change.” Likewise, the Board found a violation in Mesker Door, Inc., 357 NLRB 591 (2011), where the plant manager told employees that the Union charges had cost more than $200,000 in legal fees, observing that the comment sent the message that filing charges was a futile act that cost employees bonuses. See also Great Western Produce, 299 NLRB 1004 (1990). The situation here involved Smyth, a first-level supervisor, who told the Union’s seasoned business agent to go ahead and file charges against him because it would not bother him. There was no reference to the cost of filing grievances, and no statement that PNM’s policies would not change as a result of Board charges. The comment was made over the telephone, with only Tafoya and Cox on the line, after Tafoya and Smyth had been arguing back and forth to no avail. I do not find it rises to the level of a threat, when taken in context, that Tafoya filing charges with the Board would be futile. Accordingly, I recommend dismissal of paragraph 5(k)(3) of the complaint. (iii) Alleged threat of unspecified reprisals According to Tafoya and Cox, Smyth stated there would be consequences if Cox refused to tell Smyth what specific griev- ances he was working on and what employees they concerned. (Tr. 255.) Smyth did not recall saying anything of this nature. (Tr. 843.) I credit Cox on this point, because his recollection is more specific, and Smyth’s testimony was merely that he did not recall such a comment. Because the interrogation regarding the potential grievances Cox was working on was unlawful, it follows and I find that the threat of discipline for failing to respond to the questions comprising the interrogation likewise PUBLIC SERVICE CO. OF NEW MEXICO 595 interferes with Section 7 rights and therefore violates Section 8(a)(1). (iv) Alleged misrepresentation of Weingarten rights and denial of union representation at investigative interview The issues of misrepresentation of Cox’s Weingarten rights and denial of Cox’s right to union representation at an investi- gative interview on June 2 are inextricably intertwined, and therefore I will address them together. In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Supreme Court held that, under Section 7 of the Act, 29 U.S.C. § 157, an employee who reasonably believes that an interview will result in disciplinary action against him or her has the right, upon request, to be accompanied at that interview by a union official. The reasonableness of a belief that discipline may result must be measured based on “objective standards under all the cir- cumstances of the case.” Id. at 257. The Court found the ac- tion of an employee seeking the assistance of his or her union representative during a confrontation with an employer clearly falls within Section 7 of the Act. Id. at 260. Given that the meeting Smyth wanted to have with Cox re- lated to what I have found to be an unlawful interrogation, cou- pled with Cox’s reluctance to answer Smyth’s questions about the union business he was conducting, I find it was reasonable for Cox to believe that discipline may ensue. I do not find, however, that Smyth’s initial comment to Cox that he did not need a representative was a misrepresentation of Cox’s Weingarten rights in violation of the Act. Smyth made the comment based on his belief, at the time, that no discipline could result from the meeting. Moments later, Smyth agreed to get Cox a steward. (Tr. 252.) No interview ever occurred, and the only further communication involved Tafoya talking to Smyth on a speakerphone with Cox present. Under these spe- cific facts, I do not find that Cox’s Section 7 rights were inter- fered with as alleged. To find otherwise would require viewing Smyth’s comment with monocular vision and in isolation from what transpired immediately following it. Accordingly, I rec- ommend dismissal of the allegations set forth in complaint paragraphs 5(k)(4) and (1)–(n). c. Alleged imposition of more onerous working conditions The complaint, at paragraph 6, alleges that Respondent vio- lated Section 8(a)(1) and (3) when on or about June 2, 2011, Respondent imposed more onerous working conditions on Cox by requiring him to go to a management office to be questioned about his union activities. I find this one-time request to go to Smyth’s office too insig- nificant to establish the imposition of an onerous working con- dition. See W.D. Manor Mechanical Contractors, Inc., 357 NLRB 1526, 1527 (2011); Aladdin Gaming, LLC, 345 NLRB 585, 622 (2005). I therefore recommend dismissal of this alle- gation. G. Alleged Interrogation by Gary Cash The complaint, at paragraph 5(j), alleges Respondent violat- ed Section 8(a)(1) of the Act when: On or about May 10, 2011, the Respondent, by Gary Cash, at the Respondent’s Edith facility, interrogated employees re- garding their Union activities by questioning them about dis- cussions employees had with Union representatives. 1. Facts In April 2011, Cox and Tafoya met at a table outside the PNM perimeter to discuss some grievances. Gary Stone, vice president of operations, had stopped briefly to talk. (Tr. 74, 242.) After Cox returned to the NSD crew room, Gary Cash and Supervisor Don Wilkerson entered. According to Cox, Cash stated he had gotten a call from Tom Ruth, the line de- partment director, stating that Stone had wanted to know what Tafoya and Cox were discussing. (Tr. 242–243, 309.) Cox responded that they were discussing union business. Cash asked for specifics, but Cox declined to provide them. When pressed, Cox stated that he needed to get Tafoya to represent him. (Tr. 244.) Cash set up a meeting for 1 p.m. that same day. Tafoya represented Cox at the meeting, with Cash and James Aragon, who was Cox’s acting supervisor that day, present. Cash asked Cox what he and Tafoya were discussing, and Cox replied, “Union business.” Cash asked more specifically what union business they were discussing, and ultimately Tafoya told Cash he thought he was conducting an unlawful interrogation. (Tr. 74–77, 246, 310.) According to Tafoya, Cash replied that he really didn’t care what Cox and Tafoya were discussing, but the vice president had asked him to “report back up the line.” (Tr. 78.) 2. Analysis and conclusion The legal framework governing interrogations set forth above is hereby incorporated. Taking into account the totality of the circumstances, I find that Cash asking Cox what union business he had been discussing with Tafoya was an unlawful interrogation. Supervisors Cash and Wilkerson were both pre- sent when Cox was initially questioned in the NSD crew room. Cash told Cox that Ruth, the line department director, had called him and told him that Vice President Stone wanted to know what Cox and Tafoya were discussing. The later meeting also took place with two supervisors, Cash and Aragon, pre- sent. Cash informed Tafoya and Cox that the inquiry was on behalf of a PNM vice president. Tafoya and Cash are both clearly open and active in their union support, a factor which weighs in Respondent’s favor. Moreover, unlike the Smyth interrogations, Cash did not ask the questions at issue in the presence of other employees. (Tr. 242.) Given that the ques- tions originated from a very high place in PNM’s organization- al hierarchy and sought to elicit information regarding employ- ee grievances, however, I find they were unlawful.40 Despite the fact that Cash stated he really did not care what Cox and Tafoya were discussing, the comments undeniably sent a mes- sage to Cox that his activities as a union steward were being monitored. This would plainly tend to coerce Cox in the exer- cise of his and other employees’ Section 7 rights, and I there- 40 While the individuals who ordered and/or did the questioning may not have known with certainty that Tafoya and Cox were discuss- ing employee grievances, this is obviously a foreseeable topic of dis- cussion between a steward and business agent. 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fore find Cash conducted an unlawful interrogation in violation of Section 8(a)(1). H. Marie Plant Interview The complaint, at paragraphs 5(a) and (b), alleges that Re- spondent violated Section 8(a)(1) as follows: (a) On or about October 7, 2010, the Respondent, by JoAnn Garcia, herein called Garcia, at the Respondent’s facility lo- cated in Belen, New Mexico, herein called the Respondent’s Belen facility, and threatened employees with unspecified re- prisals because they engaged in union and other concerted ac- tivities. (b) On or about October 7, 2010, the Respondent, by Garcia and Chris Jaramillo, herein called Jaramillo, at the Respond- ent’s Belen facility, denied the request of its employee Marie Plant, herein called Plant, to be represented by the Union dur- ing an interview. 1. Facts Marie Plant works in PNM’s Belen office as a collector. She reports to Chris Jamarillo, who works in Albuquerque. Jamaril- lo visits the Belen office a couple times a month. (Tr. 715– 717.) Plant became a union steward in 2008. In that capacity, she represented Joe Wisneski during an investigation regarding his misuse of the company credit card to buy gas for personal use, an infraction for which he was ultimately terminated on September 14, 2010. (Tr. 683–686.) Joann Garcia, the human resources consultant for marketing and customer service, con- ducted the factfinding investigation, and Jamarillo was also present. At some point, Plant asked for a rest room break. After time had passed, Jamarillo and Garcia found Plant and Wisneski meeting in a room, and Plant responded they were not ready to return to the interview. (Tr. 686, 709.) In connection with the investigation, employee Mike Montoya, a nonunion coordinator, had sent an email stating Wisneski had told him that Plant had instructed Wisneski not to answer questions, and not to admit he was stealing gas.41 (Tr. 687, 691, 724.) Castro told Garcia to convey the information in Montoya’s email to Plant next time she saw her. (Tr. 699–670.) Prior to the meet- ing, Garcia had consulted with labor relations, and they deter- mined Plant would not be investigated or disciplined in connec- tion with the email. (Tr. 701.) On October 7, 2010, Jamarillo and Garcia were at the Belen office to do an investigation of another employee. (Tr. 718, 689.) Jamarillo asked Plant if she had a few minutes, and they went to the community office adjacent to Plant’s office.42 Gar- cia also participated in the meeting. (Tr. 178, 687, 719.) Ac- cording to Plant, early in the meeting she twice asked if she needed a steward, and was told she did not because the meeting was only informational. (Tr. 179, 188.) Garcia did not recall Plant asking if she needed a union representative. (Tr. 692, 694.) Plant testified that Garcia was holding a piece of paper in 41 Montoya’s first name is Jason but he goes by Mike, his middle name. (Tr. 210.) 42 Plant testified the meeting was October 8, which was clearly a mistake in light of other testimony and Garcia’s October 7 written summary of the meeting. (R. Br.) her hand and reading from it. (Tr. 179.) Jamarillo and Garcia testified that Garcia was not holding anything when she spoke with Plant. (Tr. 692, 720.) Garcia and Jamarillo informed Plant about Montoya’s email. (Tr. 180, 691.) According to Plant, they also told her that the email stated that she (Plant) had at one time thought of using the company card for fuel purchases.43 (Tr. 180.) Garcia did not recall telling this to Plant. (Tr. 701.) Plant asked for a copy of the letter. Accord- ing to Plant, Garcia told her to go through the appropriate channels to make the request. (Tr. 182.) Garcia recalled that she simply told Plant she did not have the letter with her and “that was it.” (Tr. 692.) Plant recalled that Garcia said she was keeping the letter “on file.” (Tr. 182.) Garcia denied making this statement. (Tr. 711.) In fact, Garcia has the email “in an investigation file on all investigations I have.” When asked the name of the file, Garcia responded, “Well, it is everything that has to do with Marie Plant.” (Tr. 711.) Plant wanted a copy of the letter be- cause she was concerned that by keeping it on file, PNM could use it for future positive discipline. (Tr. 186.) Plant viewed the meeting as informational until she was told the letter was being kept on file, at which point she regretted not having a steward present and feared her job was in jeopardy. (Tr. 188.) On October 11, Plant wrote to request a copy of the letter or a response that the request was being denied by October 15. On October 18, Tafoya sent Garcia a letter stating that she had not responded to Plant’s request for information, and giving a revised deadline of the following Wednesday. He advised that if she did not respond, he would consider it as a refusal to pro- vide information. Garcia responded that she had sent Plant’s correspondence to “Labor.” Assuming “Labor” meant Cindy Castro, Tafoya contacted her and renewed his request. On October 19, Castro responded, telling Tafoya that she was not going to provide the letter based on her assessment that it was privileged attorney work product.44 (Tr. 537.) She told Tafoya he could get the same information by speaking to Wisneski. There were a couple of followup meetings but the parties main- tained their respective positions. (Jt. Exh. 3; Tr. 537.) 2. Analysis and conclusions a. Alleged threat I agree with Respondent that the Acting General Counsel did not present evidence regarding any threat of unspecified repris- als Garcia made to Plant or any employees because they en- gaged in union or other concerted activities. The Acting Gen- eral Counsel likewise does not make an argument to support this allegation in its brief. Accordingly, I recommend dismissal of complaint paragraph 5(a). 43 Plant elaborated on this comment occurring in the context of be- ing approached by a homeless person for money and having him point out that she had a card. She shared this with Jamarillo at the time of the incident, and with Jamarillo and Garcia at the meeting. (Tr. 187, 212– 213.) 44 Castro testified she received legal advice on whether to produce the letter, but she did not know whether Montoya received legal advice to draft the letter. (Tr. 557–558.) PUBLIC SERVICE CO. OF NEW MEXICO 597 b. Denial of union representation An employee’s right to representation under Weingarten is discussed above and incorporated into this section. A threshold issue is whether Plant requested union represen- tation, as the right to such representation is triggered only upon request. NLRB v. J. Weingarten, 420 U.S. 251, 257 (1975). In Southwestern Bell Telephone Co., 227 NLRB 1223, 1227 (1977), the Board held that an employee asking the question of whether he should obtain union representation was sufficient to trigger a request for representation. See also Illinois Bell Tele- phone Co., 251 NLRB 932, 938 (1980) (employee asking a supervisor if someone from the union should be present during the interview sufficient to trigger Weingarten). There is conflicting testimony regarding whether Plant re- quested union representation. Plant testified that she twice asked whether she needed a steward. Garcia testified that Plant never inquired about the need for a steward. I discredit Gar- cia’s statement that Plant never asked if she needed a steward. At the hearing, I asked Garcia, “Did you, or anybody that you heard, at the outset of the meeting, inform her that you had already talked to HR and there had been a predetermination that no discipline and no investigation was going to ensue?” Garcia responded, “The only thing we told her was that nothing was going to happen, and there would not be a need to get one.” (Tr. 712.) I can only infer that “one” is a steward, and that Garcia therefore told Plant she did not need a steward. Counsel for PNM asked Jamarillo whether Plant requested a steward, to which he replied she did not. (Tr. 721.) Later testimony casts doubt on this. I asked, “When, during this meeting, you advised her there wouldn’t be discipline, was that in response to her inquiry as to whether she would need a steward?” His response was, “I can’t recall specifically, no. I am not sure.” (Tr. 722.) I therefore credit Plant’s testimony that she inquired as to whether she needed a steward, as it was unequivocal and straightforward. I find, however, that Plant was not entitled to a union repre- sentative, because the meeting was “held solely for the purpose of informing the employee of, and acting upon, a previously made disciplinary decision.” Baton Rouge Water Works Co., 246 NLRB 995, 997 (1979). The Acting General Counsel has not established that the meeting consisted of anything more than Garcia and Jamarillo informing her of the statements Mon- toya had made, and of human resources’ decision that Plant would not be disciplined in connection with the matter. The Board in Baton Rouge spelled out when an informational meet- ing might turn into something that would trigger Weingarten rights: Indeed, if the employer engages in any conduct beyond mere- ly informing the employee of a previously made disciplinary decision, the full panoply of protections accorded the employ- ee under Weingarten may be applicable. Thus, for example, were the employer to inform the employee of a disciplinary action and then seek facts or evidence in support of that ac- tion, or to attempt to have the employee admit his alleged wrongdoing or to sign a statement to that effect, or to sign statements relating to such matters as workmen’s compensa- tion, such conduct would remove the meeting from the nar- row holding of the instant case, and the employee’s right to union representation would attach. In contrast, the fact that the employer and employee thereafter engaged in a conversa- tion at the employee’s behest or instigation concerning the reasons for the previously determined discipline will not, alone, convert the meeting to an interview at which the Weingarten protections apply. Id. Respondent engaged in no further conduct at the meeting sufficient to convert it into a Weingarten interview. The Acting General Counsel asserts that Respondent held the meeting with Plant in hopes that she would reveal facts and/or evidence to assist Respondent in determining whether to issue her discipline. This is speculation, however, and not supported by evidence. The Acting General Counsel cites to Exxon Co., 223 NLRB 203 (1976), to support a contention that the Board has found Weingarten applicable to investigations regarding alleged dishonesty. Plant, however, was not investigated. The Acting General Counsel adduced no evidence that Garcia or Jamarillo asked her questions or otherwise sought to gather information from her. Accordingly, I recommend dismissal of complaint paragraphs 5(b)–(d). I. Requests for Information The Acting General Counsel Alleges that Respondent violat- ed Section 8(a)(1) and (5) of the Act by failing to respond to various requests for information from the Union. The requests are each analyzed separately below. Pursuant to Section 8(a)(5), each party to a bargaining rela- tionship is required to bargain in good faith. And part of that obligation is that both sides are required to furnish relevant information upon request. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). In relation to information sought during the term of an existing contract, a union’s responsibilities include: (a) monitoring compliance and effectively policing the collec- tive-bargaining agreement, (b) enforcing provisions of a collec- tive-bargaining agreement, and (c) processing grievances. American Signature, Inc., 334 NRB 880, 885 (2001). If the information sought relates to the processing of a grievance (or potential grievance), the legal test is whether the information is relevant to the grievance and the determination of relevancy is made based on a liberal, discovery type of standard. Acme, 385 U.S. at 437; Knappton Maritime Corp., 292 NLRB 236 (1988). Like a flat refusal to bargain, “[t]he refusal of an employer to provide a bargaining agent with information relevant to the Union’s task of representing its constituency is a per se viola- tion of the Act” without regard to the employer’s subjective good or bad faith. Brooklyn Union Gas Co., 220 NLRB 189, 191 (1975); Procter & Gamble Mfg. Co., 237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979). In determining possible relevance, the Board does not pass upon the merits, and the labor organization is not required to demonstrate that the information is accurate, not hearsay, or even, ultimately reliable. Postal Service, 337 NLRB 820, 822 (2002). “The [labor organization] is entitled to the information in order to determine whether it should exercise its representa- tive function in the pending matter, that is, whether the infor- mation will warrant further processing of the grievance or bar- 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gaining about the disputed matter.” Ohio Power Co., 216 NLRB 987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976). Information concerning employees in the bargaining unit and their terms and conditions of employment, is deemed “so in- trinsic to the core of the employer-employee relationship” so as to be presumptively relevant. Disneyland Park, 350 NLRB 1256, 1257 (2007); Sands Hotel & Casino, 324 NLRB 1101, 1109 (1997). Presumptively relevant information must be fur- nished on request to employees’ collective-bargaining repre- sentatives unless the employer establishes legitimate affirma- tive defenses to the production of the information. Metta Elec- tric, 349 NLRB 1088 (2007); Postal Service, 332 NLRB 635 (2000). However, when the requested information does not concern subjects directly pertaining to the bargaining unit, such material is not presumptively relevant, and the burden is upon the labor organization to demonstrate the relevance of the mate- rial sought. Disneyland Park, 350 NLRB at 1257; Richmond Health Care, 332 NLRB 1304, 1305 fn. 1 (2000). 1. Email regarding Marie Plant The complaint, at paragraph 8(a), alleges that the Union vio- lated Section 8(a)(5) by failing to provide the following infor- mation: Since on or about October 7, 11, 18 and 25, 2010, the Union, by oral and written requests, has requested that the Respond- ent furnish the Union with the letter referred to by Garcia and Jaramillo in an October 7, 2010 meeting with employee Plant, who was told such letter would be maintained on file. The facts related to the email are discussed fully in context above. I find that the Acting General Counsel has not established that the email is necessary or relevant for the Union to carry out its statutory duties. As Respondent correctly points out, Plant received no discipline. Castro provided unrebutted testimony that at the time of the request, there was no pending grievance related to Plant, and there was also no pending discipline or factfinding related to potential discipline related to Plant. (Tr. 537–538.) No grievance was filed, and presently there is no potential grievance, as Plant was not aggrieved. I agree with Respondent’s position that the email may become relevant if, in the future, Plant is subject to investigation or discipline in con- nection with the email. The mere potential for such, however, is not enough to render the email relevant to the Union’s repre- sentational function. Respondent asserted an attorney work-product privilege in response to the request. It did not argue this defense in its brief, and because of my finding that the Acting General Counsel failed to establish relevance, there is no current need to address it. Based on the foregoing, I recommend dismissal of the alle- gation set forth in paragraph 8(a). 2. Medical appointments and paid time off Paragraph 8(b) of the complaint alleges that the Union vio- lated Section 8(a)(5) when it failed to provide information re- garding nonunit employees who were disciplined under Re- spondent’s paid time off (PTO) policy. The specific requests appear below. a. Facts On December 6, 2010, Plant told Jamarillo she had a medical appointment on December 8. Jamarillo asked her to bring in a doctor’s note due to her having a low paid time off (PTO) bal- ance. (Tr. 183.) The Union filed a grievance and requested the following information: • The total number of medical appointments scheduled and approved by supervision for any and all medical ap- pointments for employees bargaining unit or non bar- gaining unit who are subject to the Company’s PTO pol- icy. • The total number of medical appointment scheduled and approved by supervision for any and all medical ap- pointments for employees bargaining unit or non bar- gaining unit who are subject to the Company’s PTO pol- icy and were required to provide a Doctor’s note to veri- fy a medical appointment. • The names, classifications and work locations of any and all PNM employees who are subject to the Company’s PTO policy, bargaining unit or non bargaining unit who have scheduled a medical appointment with their super- visor. • The names, classifications and work locations of any and all PNM employees who are subject to the Company’s PTO policy, bargaining unit or non bargaining unit who have been required to provide a Doctor’s note to verify a medical appointment. (Tr. 88; Jt. Exh. 5.) Respondent provided the information of unit employees but omitted any information pertaining to non- unit employees. Tafoya requested the information pertaining to nonunit employees based on his belief that they are subject to the same rules and policies as unit employees. (Tr. 89.) b. Analysis and conclusion In the above circumstances, to the extent that the Union sought information about nonunit employees, it was incumbent for the Union to have established the relevancy of such materi- al. In this regard, “to demonstrate relevance, the General Counsel must present evidence either (1) that the union demon- strated relevance of the nonunit information, or (2) that the relevance of the information should have been apparent to the Respondent under the circumstances.” Disneyland, 350 NLRB at 1258. As in the requests at issue before Judge Litvack, Tafoya ex- plained that PNM’s internal paid time off (PTO) policy applied to unit employees and nonunit employees alike.45 Respondent offered no evidence to dispute the applicability of the PTO policy to all employees. Instead, it points to some of the differ- ences between unit and nonunit employees, such as the re- 45 Respondent cites to Tafoya’s knowledge of its “standing objec- tion” to providing information on nonunit employees, based in part on Judge Litvack’s decision. That decision, however, found that PNM delayed in providing requested information on nonunit employees. The Board affirmed this decision in May 2011. 356 NLRB 316 (2011). The blanket standing objection is apparently misplaced. PUBLIC SERVICE CO. OF NEW MEXICO 599 quirement to join the Union, the at-will status of nonunit em- ployees versus the good cause requirement to terminate a union employee, differences in disciplinary policies and the ability to change terms and conditions of employment. These differ- ences, however, do not change the unrefuted evidence that the PTO policy applies to all employees, regardless of union status. The Board affirmed Judge Litvack’s decision finding that the Union established the relevancy of requests for information regarding discipline of nonunit employees involving other rules and policies at PNM that applies to all employees. Public Ser- vice Co. of New Mexico, 356 NLRB 1275 (2011). See also Postal Service, 332 NLRB 635 (2000) (information regarding supervisor relevant where it concerned policy that applied to all employees). The instant request is no different. Respondent asserts in its brief that it need not provide infor- mation to support a disparate treatment theory based on differ- ences between union and nonunion employees, as it did in the case before Judge Litvack. (R. Br. 44.) This mischaracterizes the grievance, which pertained to disparate treatment regardless of union status. In any event, this argument is without merit. Postal Service, supra (information request regarding supervi- sor’s attendance relevant to union’s claim of disparate treat- ment of supervisors and bargaining unit members). Respondent also argues that it is not impeding the Union’s ability to pursue the grievance process by withholding information regarding nonunion employees. This misses the point, as the Union’s request concerns getting at the evidence required to prove a grievance, not the right to pursue one. Respondent further asserts that the request would intrude on the privacy concerns of nonunit employees. This, however, was not used as a justification for denying Tafoya’s request and no evidence was presented to support this defense.46 Respond- ent further argues that, under the CBA’s terms, information regarding nonunit employees is always irrelevant. This conten- tion is unsupported. Respondent points out that a grievance under the CBA is limited to a dispute between the Union and the Company about applications of the CBA or a specific poli- cy to a specific employee. The CBA does not set parameters regarding the evidence that might be used to prove a grievance. Indeed, it is inconceivable that it could set such parameters, given the various possible unique factual scenarios in the uni- verse of potential grievances. After reviewing the record as a whole, the Union demon- strated, through Tafoya’s letter, the relevance of its requests insofar as they concerned information regarding nonunit em- ployees. Public Service Co. of New Mexico, 356 NLRB 1275; Postal Service, 310 NLRB 391, 392 (1993); Postal Service, 301 NLRB 709, 711–712 (1991). As such, I find that PNM’s fail- ure to provide this information violates Section 8(a)(5) of the Act. 3. Rex Foss’ discipline Paragraph 8(c) alleges that Respondent violated Section 8(a)(5) of the Act when it did not provide information in con- nection with the following request: 46 The request does not seek any medical documentation or any spe- cific medical information. Since on or about December 8, 2010, the Union, by written request, has requested that the Respondent furnish it with the following information: The discipline issued to Rex Foss for violations of Company policies including Do the Right Thing that occurred as a result of Mr. Foss’s involvement in the Carlisle and Montgomery leak incident. a. Facts PNM maintains a policy called “Do the Right Thing” that addresses ethics and compliance standards. It applies to all employees and officers, the board of directors, and company affiliates. (Tr. 480; CP Exh. 2.) Tafoya requested information regarding employees who had been disciplined for safety viola- tions. At the time, there were pending grievances regarding the discipline of employees Kenny Nunn and Art Montano. (Tr. 86, 98.) Castro responded by providing him information on unit employees, but did not provide this information for nonunit employees. (Tr. 538–539.) Tafoya testified that he made the request in an effort to determine if the policy was being applied consistently. (Tr. 149.) b. Analysis and conclusion For the same reasons I find the information related to medi- cal appointments and PTO of nonunit employees relevant, I find the information regarding Foss’ discipline is relevant. See Public Service Co. of New Mexico 356 NLRB 1275 (2011); see also Postal Service, 332 NLRB 635 (2000). With regard to Respondent’s argument that the issue has been previously liti- gated, the Board issued a November 10, 2011 Order denying Respondent’s motion to dismiss on the basis of res judicata. As the Board has ruled on the matter, any argument that the ruling was erroneous is properly addressed to the Board. According- ly, I find that Respondent violated Section 8(a)(1) of the Act by failing to provide the information in complaint paragraph 8(c). 4. Crew changes Paragraph 8(d) alleges that Respondent has refused to fur- nish the Union with information, detailed below, pertaining to a crew change. a. Facts At some point in 2010, Cox was removed from his duties working on a “trouble truck” in Belen and assigned to a maintenance crew. When Cox asked his supervisor, Gary Cash, about it, Cash responded that the crew change affected all employees. This was not consistent with Cox’s observations. (Tr. 285.) On January 27, 2011, Tafoya sent the following request for information to Castro: • Who from management met with employees to dis- cuss the reasons for the changes? • Who were the employees management met with? • When and where did these meetings take place? • What were the reasons for changes that management gave to the employees that they met with? (Jt. Exh. 7.) Tafoya requested the information so that he could process a grievance alleging that the crew changes were made in retaliation for employees engaging in union activity. (Tr. 600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 92.) Castro did not think there was a grievance on the issue during her tenure with PNM. (Tr. 545.) Castro asked Smyth to provide her with the crew change makeup, but not the reasons for the changes, and he complied. (Tr. 842.) Castro then pro- vided some information to Tafoya on February 2, including the crew change schedule, and noted in nonspecific fashion that any other information either did not exist or was not relevant. (Tr. 546; Jt. Exh. 7.) Tafoya followed up on February 3, noting what he perceived as holes or deficiencies. (Jt. Exh. 7.) Smyth testified that one of the reasons Cox was transferred to the maintenance crew was because, as a union steward, he was taking time off to do union business. (Tr. 840–841.) An- other reason was that the craft supervisor, Mark Martinez, had requested that Cox move to his group. (Tr. 853–854.) In addi- tion, PNM regularly rotates people through different jobs for cross-training purposes. (Tr. 854, 867.) b. Analysis and conclusion Tafoya requested the information to process a grievance al- leging that the crew changes were made to retaliate against some of his members for their outspokenness. (Tr. 92.) Re- spondent asserts that “apparently” no grievance was filed on the issue. (R. Br. 50.) Tafoya stated he filed one, and Castro stat- ed she did not think one was filed while she worked at PNM. Tafoya’s specific recollection outweighs Castro’s equivocal testimony, and I therefore find Tafoya filed a grievance. In addition, Castro responded to the part of the request she deemed relevant, which suggests she knew Tafoya was entitled to at least some of the information he requested. Respondent argues that it was within management’s discre- tion to make the periodic crew changes, and the changes did not have a material effect on wages, hours, or working conditions. (R. Br. 50.) This argument goes to PNM’s view of the griev- ance’s merits, not to whether it needs to respond to an infor- mation request. See Island Creek Coal Co., 292 NLRB 480, 487 (1989), enfd. mem. 899 F.2d 1222 (6th Cir. 1990) (Board does not pass on the merits of a union’s claim in determining whether information relating to the processing of a grievance is relevant). Moreover, Smyth’s testimony that one of the reasons Cox was transferred related to his duties as a union steward lends support to the validity of the request. Because the request was related to the Union’s representa- tion function and concerned changes to the work assignments of unit members, I find it was presumptively relevant, and Re- spondent’s failure to provide a full response violates Section 8(a)(5). 5. Safety manual violations and discipline Paragraph 8(e) asserts that Respondent violated Section 8(a)(5) by filing to respond to an information request as fol- lows: Since on or about December 2 and 16, 2010, the Union, by written request, has requested that the Respondent furnish the Union with the following information: • A list of any employees bargaining unit or otherwise who have been discharged by the Company for violation of the Employee Safety Manual. • A list of any employees bargaining unit or otherwise who have been discharged by the Company for violation of “other established safety procedures.” • A list of any employees bargaining unit or otherwise who have been disciplined by the Company for violation of the Employee Safety Manual. • A list of any employees bargaining unit or otherwise who have been disciplined by the Company for violation of “other established safety procedures.” a. Facts Respondent’s safety procedures apply to unit and nonunit employees alike. (Tr. 149.) Unit employee Kenny Nunn was terminated for safety violations including failure to participate in or initiate a documented “tailboard conference” prior to be- ginning a job; failure to wear rubber gloves while working on energized (electrified) equipment; removing power from a 480- volt meter while alone; and failure to wear a face shield when required. (Jt. Exh. 4.) Tafoya filed a grievance on behalf of Nunn. (Tr. 98.) Tafoya requested the information above in an email to Castro dated December 2, 2010. (Jt. Exh. 4.). Castro provided information related to unit employees, but did not provide information regarding nonunit employees, asserting that they are not similarly situated to Nunn. b. Analysis and conclusion Tafoya’s testimony that PNM’s safety procedures apply to all employees, regardless of union status, is unrebutted. (Tr. 149.) I incorporate by reference the legal framework and anal- ysis set forth in the section above regarding the request infor- mation related to medical appointments and paid time off. Accordingly, I find Respondent violated Section 8(a)(5) by failing to provide information regarding nonunit employees. 6. Policy requiring management’s approval for visitors Paragraph 8(f) of the complaint alleges a violation of Section 8(a)(5) for failure to respond to the following information re- quest: Since on or about January 11 and February 9 and 11, 2011, the Union, by oral and written request, respectively, has re- quested that the Respondent furnish the Union with the fol- lowing information: The Union requests the policy that requires employees to get management’s permission to escort visitors into the service center. a. Facts The facts surrounding this information request are set forth fully above in the section regarding Tafoya and Fitzgerald’s access to PNM’s property. I will summarize the most pertinent facts here. On January 11, 2011, Tafoya sent an email to Cindy Castro and Nawman requesting a copy of the policy at issue. In re- sponse, Castro stated that the January 15, 2009 Security and Access Control memo from the General Services PUBLIC SERVICE CO. OF NEW MEXICO 601 Group/Security specifies the access control, and provided him with a copy of it. (Tr. 574; Jt. Exh. 2; CP Exh. 5.) It states: 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. (Tr. 99; Jt. Exh. 2-1; Schmidt decision at p. 42.) Castro also sent Tafoya an email on February 2, reiterating what she said in her letter, and adding that employees must check with their supervisors when deviating from their assigned work. Tafoya replied on February 7, asking Castro to clarify that there was no written policy requiring management approv- al to escort visitors onto PNM property. Castro responded that his access to the ESC was pending a decision from an ALJ, and that PNM’s position remained unchanged. Tafoya reiterated this request on February 11. Castro responded on February 16, stating simply, “The Company stands by its previous respons- es.” (Jt. Exh. 2; Tr. 61.) Castro testified that through these exchanges, she advised Tafoya there was no written policy requiring management’s approval to escort visitors. (Tr. 536.) She also testified that she had no recollection of telling him there was no written policy requiring employees to obtain man- agement’s permission to escort visitors onto the ESC premises. (Tr. 573.) b. Analysis and conclusion Respondent did not raise a relevancy argument, and the re- quest for this information plainly relates to the Union’s access to represent its members. I therefore find it is relevant. Re- spondent asserts that it responded to the request by telling Tafoya there was no policy. However, this is not the case. Castro’s testimony was that her emails comprised the response, but she did not recall telling Tafoya there was no policy. She merely referred to the Security and Access control memo, set forth in relevant part above. Tafoya did not ask for that policy, however, so providing him with it was not responsive, particu- larly since the policy is silent as to any requirement for man- agement to approve visitors. The additional response that em- ployees must check with their supervisors before deviating from their work assignments is likewise nonresponsive, as Tafoya had previously accessed the facility without manage- ment’s consent to visit with employees before work and during breaks. It would have been extremely simple to just state there was no such policy, and Respondent’s failure to do so is baf- fling. Then, in response to Tafoya’s request for clarification, Castro notified him that his access was under litigation and PNM’s position remained unchanged. Again, it begs the ques- tion as to why Respondent never simply and directly responded that there was no specific policy. Based on the foregoing, I find Respondent violated Section 8(a)(5) when it declined to inform the Union, for nearly a year, that there was no policy responsive to Tafoya’s request. 7. Unscheduled absences Complaint paragraph 8(g) asserts that, since on or around March 23, 2011, Respondent failed to provide requested infor- mation regarding absences. The specific requests are detailed below. a. Facts In the fall of 2010, meter readers were told they were re- quired to work mandatory overtime on Saturdays. The Union, through Tafoya, filed a grievance. (Tr. 92–93, 100.) On Feb- ruary 20, 2011, Tafoya sent Castro a request for information pertaining to the schedules of meter readers. Castro responded with some, but not all, of the requested information. The in- formation he did receive raised an issue with regard to absences and employee discipline that he wanted to investigate. Specifi- cally, employees are subject to discipline if they incur 40 hours of unscheduled absences and not reporting to work on Saturday exposed Meter Readers to discipline. (Tr. 101.) Meter readers were required to notify their supervisor if they desired to schedule a Saturday off and use paid time off (PTO). (Tr. 102; CP Exh. 3.) If the supervisor did not approve an employee’s request, the employee was charged with an unscheduled ab- sence. (Tr. 102.) Under Respondent’s Absences From Work policy, employees charged with unscheduled absences can use their PTO if available. (CP Exh. 3.) According to Tafoya, Respondent was not allowing meter readers to use PTO days for unscheduled absences. (Tr. 102.) Tafoya therefore sent a second request on March 23, asking for: • The Company policy that requires discipline to be administered if any employee has been charged with 40 hours of “unscheduled absences” and the date that policy became effective. • The “unscheduled time off requirements” referred to in Eric Morgan’s email of 1/25/11 and the policy that contains those requirements. • The policy that requires employees to Pre-Approve for PTO on any day that is not designated a regular work day by the CBA. • The definition of “unscheduled absence” and the company policy that contains the definition. • The names classifications and work locations of any and all PNM employees, bargaining unit or non bar- gaining unit who have been disciplined for accruing 40 hours of “unscheduled absences” from April 1, 2008 or the date the policy became effective to March 1, 2011 whichever period is shorter. (Tr. 93–95; Jt. Exh. 8.) In the request, Tafoya informed Castro that he was investigating a grievance, and explained that the absence policy at issue applied to both unit as well as nonunit employees. (Jt. Exh. 8; CP Exh. 3.) Castro, who left PNM on April 9, 2011, testified at the hear- ing that she had meetings with Tafoya regarding the Saturday- schedule issue, and she thought she had responded to the re- quest. (Tr. 548.) There is no record evidence of a response. 602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD b. Analysis and conclusion The request, which Tafoya made to investigate a possible grievance related to one he had filed in connection with the meter readers’ changed schedule, concerned employee absences and discipline. It is presumptively relevant as to the unit em- ployees. With regard to the other employees, the Acting Gen- eral Counsel has established that union and nonunion employ- ees were subject to the same absence policy. (CP Exh. 3.) I therefore incorporate by reference the legal framework and analysis set forth above regarding the requested information related to medical appointments and paid time off. Castro stated that she thought she had responded to the re- quest. However, no response was submitted, and Castro of- fered no testimony regarding the contents of the response she thought she provided. Because Respondent failed to produce or even describe its response, I infer that there is no such response. Accordingly, I find Respondent violated Section 8(a)(5) by failing to respond to this information request. 8. Denial of Tafoya visit before work Lastly, paragraph 8(h) alleges that Respondent violated Sec- tion 8(a)(5) by failing to provide information regarding the decision not to permit Tafoya to come to the ESC to meet with members before work hours on March 28, 2011. a. Facts On March 25, 2011, Tafoya told Oldham that he wanted to come to the ESC the following Monday before the work shift to talk to his members. (Tr. 901–902.) There was no specific purpose for his visit. (Tr. 903.) Oldham called Smyth, who was interim manager. Smyth said it was a really busy week because the CEO was visiting, and offered to let Tafoya visit after the shift on Monday, or in the morning any day during the following week. (Tr. 904–906.) On March 28, 2011, Tafoya sent an email to Castro and Mick Oldham, senior labor relations representative, requesting information regarding his access to the ESC before working hours. Oldham responded with some of the information, but Tafoya contended that he did not furnish the following requested information:  The names of the Company management that made the decision to deny me access to the service center before normal working hours.  Any and all documentation the Company relied upon in making the decision to deny my request for access to the service center before normal working hours. Oldham explained that he did not see the relevance of the re- quest for the names of the managers involved, and that PNM did not rely on any documentation. He advised Tafoya to ex- plain the relevance of this information and stated that he would then consider the request. (Jt. Exh. 9.) b. Analysis and conclusion Oldham responded, on April 7, 2011, that no documents were relied upon in making the decision at issue. (Jt. Exh. 9.) Accordingly, I recommend dismissal of this part of the com- plaint allegation. With regard to the names of the managers that decided to de- ny him the right to visit that morning, Oldham asked Tafoya to explain why he needed this information. In this context, with no purpose for Tafoya to come to the ESC other than to visit with his members, coupled with the offer for Tafoya to visit any afternoon that week or any morning the following week, I do not find the information requested to be presumptively rele- vant. The inability to talk to Tafoya that particular Monday morning did not impact a term or condition of any particular member’s employment where there was no investigation or grievance that needed Tafoya’s attention. National Sea Prod- ucts, 260 NLRB 3 (1982). Tafoya did not respond to Oldham’s request to explain the relevance of the information, and no ex- planation was elicited at the hearing. Accordingly, neither the Acting General Counsel nor the Union established the rele- vance of the information requested. The relevance burden may be established by showing that a logical foundation and a factual basis exist for such an infor- mation request. 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 re- sponsibilities. Postal Service, 310 NLRB 391, 391–392 (1993). I recognize that this denial is part and parcel of Respondent’s overall move to change its practices with regard to Tafoya’s access. Tafoya’s ever-waning access is part of the lengthy complaint at issue in this correspondingly lengthy decision. This specific denial is an enforcement of the policy requiring management’s permission for Tafoya to access PNM’s premis- es, which, as explained above, I have found to be unlawful. The allegation above pertains to information Tafoya wanted for a possible grievance. The topic of management permission for Tafoya to access the ESC has been adjudicated as part of this complaint, there is no pending grievance, and any potential grievance would be redundant. Accordingly, I recommend dismissal of complaint paragraph 8(h). CONCLUSIONS OF LAW 1. Respondent, Public Service Company of New Mexico, is an employer engaged in commerce within the meaning of Sec- tion 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- 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) The total number of medical appointments scheduled and approved by supervision for any and all medical appointments for employees bargaining unit or non bargaining unit who are subject to the Company’s policy; The total number of medical appointments scheduled and approved by supervision for any and all medical appointments for employees bargaining unit or PUBLIC SERVICE CO. OF NEW MEXICO 603 non bargaining unit who are subject to the Company’s PTO policy and were required to provide a doctor’s note to verify a medical appointment; The names, classifications, and work locations of any and all PNM employees who are subject to the Company’s PTO policy, bargaining unit or non bargaining unit who have scheduled a medical appointment with their supervi- sor. (b) The discipline issued to Rex Foss for violations of com- pany policies including “Do the Right Thing” that occurred as a result of Foss’ involvement in the Carlisle and Montgomery leak incident. (c) Information pertaining to crew changes, including who from management made the decisions and how employees were informed of the decisions. (d) A list of any employees bargaining unit or otherwise who have been discharged by the Company for violation of the em- ployee safety manual; a list of any employees bargaining unit or otherwise who have been discharged by the Company for violation of “other established safety procedures; a list of any employees bargaining unit or otherwise who have been disci- plined by the Company for violation of the employee safety manual; a list of any employees bargaining unit or otherwise who have been disciplined by the Company for violation of “other established safety procedures.” (e) The Company policy that requires discipline to be admin- istered if any employee has been charged with 40 hours of “un- scheduled absences” and the date that policy became effective; The “unscheduled time off requirements” referred to in Eric Morgan’s email of 1/25/11 and the policy that contains those requirements; The policy that requires employees to preapprove for PTO on any day that is not designated a regular workday by the CBA; The definition of “unscheduled absence” and the company policy that contains the definition; the names classifi- cations and work locations of any and all PNM employees, bargaining unit or nonbargaining unit who have been disci- plined for accruing 40 hours of “unscheduled absences” from April 1, 2008, or the date the policy became effective to March 1, 2011, whichever period is shorter, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 4. By unilaterally making changes to the informal step of the contractual grievance and arbitration procedures in or around July 2011 by: (a) requiring stewards at the initial stage of the informal step to explain in detail which articles of the contract are alleged to be violated and how these articles have been violated; (b) refusing to sign in receipt of grievances that have been put to writing after oral grievances have been presented; and (c) requiring more than one supervisor be present during informal step grievance meetings, Respondent violated Section 8(a)(1) and (5) of the Act. 5. By unilaterally changing the requirement for Local 611 representatives to access its ESC facility in Albuquerque, New Mexico, in January 2011, Respondent violated Section 8(a)(1) and (5) of the Act. 6. By unilaterally changing the requirement for Local 611 representatives to access its San Juan Generating facility in Farmington, New Mexico, on July 15, 2011, Respondent vio- lated Section 8(a)(1) and (5) of the Act. 7. By threatening and interrogating employees, as set forth herein, Respondent violated Section 8(a)(1) of the Act. 8. By refusing to process a discrimination complaint by unit employee Eric Cox unless he proceeded without his union rep- resentative, Respondent violated Section 8(a)(1) of the Act. 9. By denying unit employee Eric Cox’s request to have his union representative of choice represent him at an investigatory interview on March 28, 2011, Respondent violated Section 8(a)(1) of the Act. 10. Respondent did not engage in any other of the unfair la- bor practices alleged this consolidated proceeding. 11. 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. Respondent must restore the method of processing the in- formal step of the grievance procedure set forth in the collec- tive-bargaining agreement as it existed prior to July 2011. In the event Respondent has altered its method of processing the informal step of the grievance process in the meantime, it will be required to process informal grievances in a manner substan- tially equivalent to that which existed prior to July 2011 until it negotiates alternate procedures or reaches a lawful impasse attempting to do so. Respondent must restore the ability of Local 611 agents to access its ESC facility in Albuquerque, New Mexico, as it ex- isted from January until August 2009.47 In the event Respond- ent has altered its access procedures in the meantime, it will be required to provide Local 611 representatives with a form of access substantially equivalent to that which existed from Janu- ary until August 2009 until it negotiates alternate access proce- dures applicable to representatives of Local 611 or reaches a lawful impasse attempting to do so. Respondent must restore the ability of Local 611 agents to access its San Juan Generating Facility in Farmington, New Mexico, as it existed prior to the changes that took place on July 15, 2011. In the event Respondent has altered its access procedures in the meantime, it will be required to provide Local 611 representatives with a form of access substantially equiva- lent that which existed prior to July 15, 2011, until it negotiates alternate access procedures applicable to representatives of Local 611 or reaches a lawful impasse attempting to do so. 47 Though the instant complaint alleges unlawful changes only from January 2011, the appropriate remedy is in accordance with the prior changes that Judge Schmidt found unlawful. 604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent must process employee Eric Cox’s discrimina- tion complaint, allowing him to be represented by the union representative of his choice. Respondent will also be required to post the notice attached as Appendix A in order to inform employees of the outcome of this matter. [Recommended Order omitted from publication.]