     Case: 10-60771    Document: 00511860901         Page: 1    Date Filed: 05/18/2012




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                                                          May 18, 2012
                                      No. 10-60771                       Lyle W. Cayce
                                                                              Clerk

EL PASO ELECTRIC COMPANY

                                                 Petitioner Cross-Respondent
v.

NATIONAL LABOR RELATIONS BOARD

                                                 Respondent Cross-Petitioner



                   Petitions for Review for Enforcement of an
                   Order of the National Labor Relations Board


Before DENNIS, CLEMENT, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
        The issue before us is whether there is sufficient evidence to support the
findings by the Respondent, the National Labor Relations Board (the “General
Counsel”),1 that the Petitioner, El Paso Electric Company (“EPE”), engaged in
unfair labor practices prohibited by the National Labor Relations Act (the
“NLRA”).
        EPE contends that the record does not support the Board’s findings. First,
it is settled law that this court “do[es] not make credibility determinations or
reweigh the evidence” when reviewing the Board’s decisions. NLRB v. Allied


       1
        The National Labor Relations Board will be referred to as the “General Counsel” when
referenced as a party and referred to as the “Board” when referenced as the decision maker.
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                                        No. 10-60771

Aviation Fueling of Dallas LP, 490 F.3d 374, 378 (5th Cir. 2007) (citing NLRB
v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1339–40 (5th Cir.1993)). Second, EPE
acknowledged in oral argument that its denial of unfair labor practices is
properly considered in the context of EPE’s other admitted and historically
established violations. See, e.g. NLRB v. Citizens Hotel, 326 F.2d 501, 506 (5th
Cir. 1964) (“[P]rior violations may have relevance on motivation.”); NLRB v. J.P.
Stevens & Co., Inc., Gulistan Division, 538 F.2d 1152, 1163 (5th Cir. 1976)
(“When a company has historically evinced disdain for employees’ rights and the
Congressional mandate, its prior history is relevant to the question of a de
minimis failure to bargain.” (citations omitted)). Third, it is undisputed that the
specific process leading to the factual findings EPE contests included a ten-day
hearing, 1831 pages of witness testimony, and volumes of exhibit testimony
weighed firsthand by the administrative law judge (the “ALJ”) and thereafter
reviewed by the Board, which, in turn, unanimously found the instant violations.
El Paso Electric Co. & Int’l Bhd. of Elec. Workers, Local Union 960, 355 NLRB
No. 71 (2010). Notably, at the same time, the Board reversed two of the ALJ’s
findings, remanded a third issue for additional fact-finding, and particularized
five other findings which it chose not to reach or for which it adopted only part
of the ALJ’s reasoning. Id. at *1 & n.3. The fact finder separately set forth
fifteen unfair labor practice findings that EPE does not dispute.2 Finally, it
should be kept in mind that the crux of the Board’s holding is not that EPE is
prohibited from implementing workplace changes and disciplining employees
based on those changes, but only that it is prohibited from doing so unilaterally,
without conferring with the Union. We affirm.


       2
         We note that the ALJ substantiated its finding with a close look at the record and
almost fifty citations to that record in its decision. By contrast, in the argument section of its
principal brief alleging multiple clear factual errors, EPE refers to the record only three times;
the General Counsel provided us with forty page-specific record citations in its responsive
argument whereafter EPE elected to file no reply brief.

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I. Factual Background
      EPE is an electric utility that generates and distributes electricity to
customers in western Texas and southern New Mexico. The International
Brotherhood of Electrical Workers, Local 960 (the “Union”) has represented
EPE’s linemen and other operational employees for almost seventy years. EPE’s
meter readers/collectors (“meter readers”) joined the Union in 2003, and EPE’s
call center customer service representatives (“CSRs”) joined in 2004.
      EPE has a long and somewhat rocky history dealing with its unionized
workforce. On February 2, 2002, the Union filed a number of charges alleging
that EPE had violated § 8(a)(1), (3), (4), and (5) of the NLRA in response to the
Union’s successful organizational efforts to add employee groups to the
bargaining unit. The charges were consolidated and collectively tried before an
ALJ in August and September 2006. The ALJ issued his decision on March 1,
2007. EPE appealed the ALJ’s decision to the Board by filing exceptions to
certain findings while the Union filed cross-exceptions. The Board issued its
Decision and Order on August 10, 2010. El Paso Electric Co., 355 NLRB No. 71.
      The Decision and Order adopted most of the ALJ’s factual findings and
legal determinations, concluding that EPE had violated the NLRA through
assorted interactions with union employees. EPE filed a petition in this court
to appeal specific portions of the Board’s decision holding that EPE violated §
8(a)(1) and (5) of the NLRA. EPE challenges the Board’s determination that: (1)
EPE unilaterally changed its rules regarding the meter readers’ breaks; (2) EPE
unilaterally implemented a more onerous disciplinary procedure for CSRs; (3)
EPE unilaterally changed its policy regarding CSRs’ ability to work on
co-workers’ accounts; (4) EPE failed to bargain in good faith over the effects of
its decision to close its Chelmont facility; and (5) EPE unilaterally changed its
boot replacement policy.



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      The General Counsel has cross-petitioned, opposing EPE’s challenges to
the Board’s decision and requesting enforcement of the Decision and Order.
II. Standard of Review
      We review “the Board’s factual findings under a substantial evidence
standard” and its legal conclusions de novo. Sara Lee Bakery Grp., Inc. v. NLRB,
514 F.3d 422, 428 (5th Cir. 2008); see 29 U.S.C. § 160(f) (“the findings of the
Board with respect to questions of fact if supported by substantial evidence on
the record considered as a whole shall . . . be conclusive”). We uphold a Board
decision “if it is reasonable and supported by substantial evidence on the record
considered as a whole.” Strand Theatre of Shreveport Corp. v. NLRB, 493 F.3d
515, 518 (5th Cir. 2007). “Substantial evidence is that which is relevant and
sufficient for a reasonable mind to accept as adequate to support a conclusion.
It is more than a mere scintilla, and less than a preponderance.” Spellman v.
Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (emphasis added) (citations omitted); see
also Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938). We may not
reweigh the evidence, try the case de novo, or substitute our judgment for that
of the Board, “even if the evidence preponderates against the [Board’s] decision.”
Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999) (quoting Johnson v. Bowen, 864
F.2d 340, 343 (5th Cir. 1988)); see also Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951) (reviewing court engaged in substantial evidence review
will not “displace the Board’s choice between two fairly conflicting views” of the
evidence, “even though the court would justifiably have made a different choice
had the matter been before it de novo”). “Conflicts in the evidence are for the
[Board] and not the courts to resolve.” Selders v. Sullivan, 914 F.2d 614, 617 (5th
Cir. 1990) (citations omitted).    This deference to the trier of facts is our
longstanding position, see, e.g., NLRB v. Alco Min. Co., 425 F.2d 1128, 1129–30
(5th Cir. 1970) (listing “credibility choices” and “reasonable inferences” as “a
function primarily for the board” and as determinations “for the trier of the facts

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                                  No. 10-60771

to make and there the matter ends”), yet we proceed below at some length to set
forth the record showing why we cannot conclude that the findings of fact
affirmed by the Board lacked substantial evidence.
III. Analysis
      The Supreme Court has held that an employer violates § 8 of the NLRA
if the employer “effects a unilateral change of an existing term or condition of
employment.” Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198 (1991) (citing
NLRB v. Katz, 369 U.S. 736 (1962)). Section 8 of the NLRA requires an
employer to bargain “in good faith with respect to wages, hours, and other terms
and conditions of employment . . . .” 29 U.S.C. § 158(d). The employer’s failure
to bargain collectively in good faith under subsection (d) serves as the predicate
to violations under subsections (a)(1) and (5) of 29 U.S.C. § 158. An employer
violates subsection (a)(5) when the employer fails to bargain collectively with
union representatives. Section 8(a)(1) violations are derivative of violations of
§ 8(a)(5). A violation of § 8(a)(1) occurs when an employer takes adverse action
against specific employees in connection with terms and conditions of their
employment that are subject to collective bargaining. 29 U.S.C. § 158(a)(1), (5).
If, following a successful union election, the employer “begins to strictly enforce
previously existing rules which had not earlier been enforced,” § 8 of the NLRA
is violated. Hyatt Corp. v. NLRB, 939 F.2d 361, 372–73 (6th Cir. 1991). The
employer also violates § 8 by unilaterally implementing new work rules and
subjecting employees to discipline for violating those rules. Peerless Food Prods.,
236 NLRB 161, 161 (1978); see also Murphy Diesel Co., 184 NLRB 757, 762
(1970) (concluding that there was a violation where the employer unilaterally
imposed new rules regarding absenteeism and tardiness without giving prior
notice or bargaining with the union). For a unilateral change to require the
employer to bargain with the union, the change must represent a “material,
substantial, and a significant change” in the terms and conditions of

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                                  No. 10-60771

employment. Miss. Power Co. v. NLRB, 284 F.3d 605, 615 (5th Cir. 2002);
Peerless Food Prods., 236 NLRB at 161 (citing Rust Craft Broad. of N.Y., Inc.,
225 NLRB 327, 327 (1976)); Murphy Diesel Co., 184 NLRB at 763. We have
emphasized, however, that we do not assess materiality and substantiality in a
vacuum, but rather “we remain mindful of our deference to the Board’s
construction of the Act, and echo the United States Supreme Court’s response
. . . [to an argument of triviality, that] ‘the Board has a contrary view, and we
have no basis for rejecting it.’” Miss. Power Co., 284 F.3d at 614 (quoting Ford
Motor Co. v. NLRB, 441 U.S. 488, 501 (1979)); see also NLRB v. Henriksen, Inc.,
481 F.2d 1156, 1162 (5th Cir. 1973) (citations omitted) (noting that “[w]e do not
find that any incontrovertible documentary evidence or physical fact contradicts
the Board’s findings . . . .”).
A. Challenges Not Raised in EPE’s Briefing
      The Board’s Decision and Order included a number of findings that EPE
committed various violations of the NLRA not specifically challenged by EPE in
its briefing. The General Counsel requests summary enforcement of the unfair
labor findings that are uncontested by EPE.
      We have held that a party’s failure to challenge the Board’s findings in its
initial brief results in waiver of those issues. Cal. Gas Trans., Inc. v. NLRB, 507
F.3d 847, 853 n.3 (5th Cir. 2007). Simply providing a list of challenged issues in
a general statement of issues is not sufficient to trigger review; the petitioner
must develop its argument regarding the challenged issues in the body of its
brief. Id.
      Although EPE submitted a list of issues in its Petition for Review, EPE
does not cross-reference the list of issues in its Petition with the arguments in
its brief. We grant the General Counsel’s request for summary enforcement of
the findings and holdings that were contained in the Board’s Decision and Order
but which EPE has failed to address in its brief.

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B. Meter Readers’ Breaks
      The Board held that EPE violated § 8(a)(1) and (5) of the NLRA by
unilaterally implementing changes to its break policy for meter readers. It is
undisputed that EPE had a longstanding policy of affording meter readers two
15-minute breaks and one 30-minute lunch break during each shift. The Board
found, and EPE agrees, that meter readers regularly chose to aggregate their
breaks in order to take an hour break (two 15-minute breaks plus 30-minute
lunch) at the conclusion of their shift. The Board further determined that
around March 2005, El Paso Meter Reader and Collector Supervisor Greg
Gonzales told the meter readers at a team meeting that the meter readers
needed to begin taking their breaks at the intended times (a morning break,
lunchtime, and an afternoon break) and that they could no longer aggregate
their break times. The Board primarily relied on the testimony of nine-year
meter reader veteran Cesar Camacho’s description of the team meeting to come
to this conclusion. The Board then concluded that because the new limitation
on break timing was a material change to EPE’s prior policy that was made
without notice or bargaining with the Union, EPE’s actions were in violation of
the NLRA.
      EPE argues that its policy regarding meter readers’ break and lunch
periods did not change and that the Board’s decision was not supported by
substantial evidence. Specifically, EPE emphasizes that because Camacho never
testified that Gonzales used the word “required” when telling the meter readers
not to aggregate their breaks and because employees, including Camacho,
testified that they were not punished for aggregating their breaks after the
meeting, there was no change in policy. Instead, in their statement of facts, EPE
points to the testimony of Meter Reader Alberto Galindo, who testified that
Gonzales was not suggesting a change in policy but a continuation of an earlier
policy and that the policy against aggregation was not mandatory.

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                                       No. 10-60771

       The Board properly held that the change in break policy constituted a
violation of § 8(a)(5) and (1) of the NLRA. In Garrison Valley Ctr., Inc., 246
N.L.R.B. 700 (1979), the Board held that, “[l]unch periods and break periods are
‘terms and conditions of employment.’” Id. at 709 (internal citations omitted); see
also Pepsi-Cola Bottling Co. of Fayetteville, Inc., 330 N.L.R.B. 900, 903 (2000)
(“[L]unch and break periods may constitute terms and conditions of
employment.”), aff’d, 24 F. App’x 104, 116 (4th Cir. 2001) (unpublished). The
policy change3 in Garrison Valley Ctr. concerning break periods was identical to
the change identified by the Board in the instant case. By forcing housekeepers
to take their 30-minute lunch and two 15-minute breaks separately rather than
allowing them to forgo their 15-minute breaks and take an hour lunch, the
Board held that Garrison Valley Center, Inc. “violated Section 8(a)(5) and (1) of
the Act by . . . unilaterally changing the lunch period for unit housekeeping
personnel . . . .” Garrison Valley Ctr., 246 N.L.R.B. at 709–10.
       Furthermore, EPE’s claim that substantial evidence does not support the
Board’s finding that a material unilateral change in break policy occurred is
without merit. The new policy was enforced against employees. Mario Navarro
was fired, in part, because he aggregated his breaks.4                    Though he was
terminated in June 2006, long after the July 2005 settlement that rescinded the
new break policy, Supervisor Gonzales admitted that he terminated Navarro


       3
         For brevity’s sake, the term “policy change” is used as shorthand for “discrimination
in regard to hire or tenure of employment or any term or condition of employment to encourage
or discourage membership in any labor organization . . . .” 29 U.S.C. § 158(a)(3). The word
“policy” does not appear in the text of 29 U.S.C. § 158. The briefs and Board decisions often
adopt this shorthand, however. For example, the NLRA can be violated when an unenforced
workplace policy suddenly becomes enforced. This is not a policy change but a change in the
terms and conditions of employment.
       4
        Contrary to EPE’s allegation, the Board did not “entirely” rely on Navarro’s
termination when determining that EPE unilaterally changed its rules regarding meter reader
breaks. This was one of several factors, along with, for example, an explicit crediting of
Camacho’s testimony, considered by the Board.

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                                   No. 10-60771

because Navarro finished his route early, aggregated his breaks, and then left
his route to conduct personal business. Additionally, though Camacho testified
that Gonzales did not say that the break policy change was “required,” Camacho
testified that the policy change was “[n]o, not required but kind of enforced, like.”
He further stated that all the employees changed their behavior to conform with
the new break policy for several months. Though employees stopped taking
their breaks separately several months after Gonzales initiated the policy
change, this reversion would have coincided with the rescission of the changed
break policy under the July 2005 settlement agreement.
      Crucially, Camacho’s firsthand testimony was credited by the ALJ, and
thereafter adopted and upheld by the Board. Contrastingly, the ALJ heard
Galindo’s testimony and specifically discredited it, determining that Galindo’s
memory was “not trustworthy,” and that his demeanor was “evasive.” The Board
adopted this finding. There is neither determinative factual, nor legal, reason
to overturn the Board’s decision. Again, we do not reweigh credibility and
therefore must accept this crediting of Camacho’s testimony over Galindo’s.
Based on this evidence, more than a mere scintilla, we affirm such a credibility
assessment and subsequent Board ruling that EPE unlawfully changed its break
policy.
C. Navarro’s Termination
      On May 15, 2006, EPE terminated meter reader Mario Navarro after
Navarro skipped his breaks and lunch, finished his work early, and left his work
area in order to reconnect the power to his new home. Gonzales cited Navarro’s
leaving his meter-reader route early without authorization and reconnecting
service without authorization as the reasons for his termination. The Board
determined that EPE improperly terminated Navarro because his termination
was based in part on the improperly changed break policy. EPE responds that
Navarro’s termination was not based on a violation of the break policy but

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                                  No. 10-60771

instead was based on Navarro leaving his work area in a company vehicle for
personal reasons without authorization and for reconnecting service without
authorization. EPE additionally argues, citing Boland Marine & Mfg. Co., Inc.,
225 N.L.R.B. 824 (1976), and Essex Valley Visiting Nurses Assoc., 343 N.L.R.B.
817 (2004), that the discharge is lawful because it was not solely the result of a
unilateral policy change.
      First, substantial evidence supports the Board’s determination that
Navarro was fired in part based on the unlawfully changed break policy. In
reaching its decision, the Board relied on EPE’s own admission that, “it
terminated Navarro in part because he violated the work rules concerning lunch
and break periods by leaving work early.” Supervisor Gonzales stated that the
problem was that Navarro did not reconnect his service during his lunch hour
but, instead, at the end of the work day. Though Gonzales testified that Navarro
improperly took a company truck outside Navarro’s assigned work area, he also
testified that other meter readers had taken their trucks outside their assigned
work areas and no one had been terminated for these actions. He admitted that
he did not keep track of employees’ locations during their work day; he just
wanted to be sure that employees completed their work.
      Second, as a matter of law, an employee’s termination need not be solely
based on an improperly changed policy in order for the termination to violate the
NLRA. Management violates § 8(a)(5) when it discharges an employee in whole
or part based on the employee’s violation of an unlawful unilateral policy change.
The Board held in Great Western Produce, Inc., 299 N.L.R.B. 1004, 1005 (1990),
overruled on other grounds by Anheuser-Busch, Inc., 351 NLRB 644 (2007)), that,
“[i]f the Respondent’s unlawfully imposed rules or policies were a factor in the
discipline or discharge, then the discipline or discharge violates Section 8(a)(5).”
The Board reasoned that:



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                                       No. 10-60771

       An employer that refuses to bargain by unilaterally changing its
       employees’ terms and conditions of employment damages the
       union’s status as bargaining representative of the unit employees.
       That status is further damaged with each application of the
       unlawfully changed term or condition of employment. No otherwise
       valid reason asserted to justify discharging the employee can repair
       the damage suffered by the bargaining representative as a result of
       the application of the changed term or condition.
Id.; see also Moore-Duncan ex rel. NLRB v. Aldworth Co., Inc., 125 F. Supp. 2d
268, 289 ( D.N.J. 2000). The Board reaffirmed its ruling recently in San Miguel
Hosp. Corp., explaining that, “if [management’s] unlawfully imposed rules or
policies were a factor in the discipline or discharge, then the discipline or
discharge violates Section 8(a)(5).” 355 N.L.R.B. No. 43, at *13 (2010) (quoting
Great Western Produce, 299 N.L.R.B. at 1005). It, therefore, is not the case that
the employee must be terminated solely because he or she violated an unlawful
unilateral policy change for the discharge also to be unlawful.5
       Boland and Essex Valley Visiting Nurses do not undermine this authority.
In Boland, the Board ordered that the company “make whole those employees
who are either discharged, suspended, or otherwise denied work opportunities
solely as a result of the unilateral promulgation of [the unlawfully changed]
rules.” 225 N.L.R.B. at 825. This case did not address whether the unlawful
reason must be the sole reason for discipline because the employees at issue


       5
         EPE’s reliance on Anheuser Busch, Inc., 342 N.L.R.B. 560 (2004), remanded by 414
F.3d 36 (D.C. Cir. 2005), decision supplemented by 351 N.L.R.B. 644 (2007), is misplaced.
Anheuser Busch concerned employee discipline for misconduct that was uncovered in an
unlawful way. Id. at 561. Anheuser Busch installed surveillance cameras in their facility
without bargaining with the union. Id. at 560. Later, employees were disciplined for violating
unaltered and pre-existing plant rules unrelated to the cameras; the cameras merely
uncovered the misconduct. Id. at 561. The Board held that there was “an insufficient nexus
. . . between [Anheuser Busch’s] unlawful installation and use of the cameras and the
employees’ misconduct to warrant a make-whole remedy.” Id. The Board also explicitly
distinguished cases like Anheuser Busch where the unilateral change “did not concern any rule
that the employees were disciplined for violating” from instances, like the present case, where
the change “was to the very policy under which the employees were discharged.” Id.

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were solely disciplined for violating the unilaterally changed rules. Id. at 824.
It merely addressed what relief should be given to employees who are fired as
a result of an unfair labor practice in violation of the NLRA. Id. at 824–25
(determining that the relief should be broadened to include full restoration of the
pre-disciplinary status of employees disciplined for violating or failing to comply
with “the unilaterally promulgated safety and employee conduct rules”).
       In Essex Valley Visiting Nurses, the Board determined that, “a discharge
resulting directly from that unilateral change may also violate Section 8(a)(5).”
343 N.L.R.B. at 819. The Board rejected the Union’s claims, finding that the
nurses were not fired, even in part, because of the unilateral change (the
transfers of employees); they were fired for failing to cooperate and perform
adequately once in their new positions. Id. In a footnote, the Board explained
in dicta that Boland’s assertion that discipline only violates the NLRA if it is
solely due to the unlawful policy change conflicts with the language of Great
Western. Id. at 819 n.9. The Board believed that Boland’s interpretation of the
law should be adopted rather than controlling precedent holding the opposite but
did not develop the issue because it still would have concluded that the
discharges were lawful under Great Western’s analysis because “they were
caused solely by the inability of the nurses to perform.” Id.6


       6
          Notably, the dissent in Essex Valley Visiting Nurses was careful to disagree even with
the footnote dicta and accurately cited three cases that explain that an unlawful change need
only be one factor supporting the discipline: Flambeau Airmold Corp., 334 N.L.R.B. 165, 167
(2001) (applying Great Western Produce to hold that the new work requirement was a factor
in the employee’s discharge and, thus, the discharge violated § 8(a)(5)); Consec Security, 328
N.L.R.B. 1201, 1202 (1999) (determining that the firing was most significantly based on the
unlawful change in policy and thus violated the NLRA); and Great Western Produce, Inc., 299
N.L.R.B. 1004. Essex Valley Visiting Nurses, 343 N.L.R.B. at 824–25 (Member Walsh,
dissenting). As the dissent explained, “Great Western requires that the unilateral action be
a factor in—not the direct cause—of the discharge, and the word ‘may’ nowhere appears in the
Great Western test; if the unilateral action is a factor in the discharge, the discharge violates
Section 8(a)(5).” Id. This, again, has been the Board’s announced legal position applied
recently in San Miguel. 355 N.L.R.B. No. 43, at *13.

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       Thus, because Navarro was terminated in part for violating an unlawfully
changed policy, we affirm the Board’s determination that Navarro was
improperly terminated.
D. Change in Disciplinary Procedure
       Next, the Board determined that EPE violated § 8(a)(1) and (5) of the
NLRA by unilaterally implementing a more onerous disciplinary procedure. In
2006, Call Center Supervisor Elizabeth Carrasco began to use Performance
Improvement Plans (“PIPs”) to put CSRs on notice that their continued tardiness
would subject them to discipline if their schedule adherence did not improve.7
EPE first claims that no policy change resulted from the issuance of the PIPs
because the PIPs merely required employees to arrive at work on time and avoid
unexcused absences, requirements that EPE had always had.                      According to
EPE, PIPs were only used to remind certain CSRs of EPE’s policy regarding
tardiness and no CSR had their pay or working conditions impacted as a result
of a PIP. Second, EPE claims that there was no policy change because Carrasco
was merely continuing the system of discipline used in 2002 to punish Team
Leader Rudy Romero.
       However, there is substantial evidence to support the Board’s finding that
the use of PIPs was a material unilateral change that was disciplinary in nature.
Under § 8(a)(5) of the NLRA, a company is required to notify and bargain with
a union before changing its disciplinary system, including when beginning to use
a more formalized system of discipline. NLRB v. Amco Chems. Corp., 529 F.2d
427, 431 (5th Cir. 1976). A “new progressive system of discipline providing for
written warnings for lateness and absenteeism” constitutes a change in a term




       7
        Carrasco and Valdez explained that “schedule adherence” meant absenteeism and
tardiness. Valdez also testified that it included the failure to adhere to break and lunch time
schedules.

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                                     No. 10-60771

of employment that is a mandatory subject of bargaining. Migali Indus., 285
NLRB 820, 820–21 (1987).
      Though EPE alleges the use of PIPs was part of a prior policy, EPE offered
no evidence of a PIP being issued before 2006 to address a CSR’s tardiness or
absences. CSR Linda Montes testified that after Carrasco was told that she
needed to “start cracking down on employees” in January 2006, Carrasco told
Montes that she was going to start being more strict, start documenting CSR
absences and tardiness, and begin putting employees on probation. Montes
remembered Carrasco specifically referring to PIPs as probationary in nature.8
Eduardo Valdez, Carrasco’s supervisor and the manager of the call center, stated
that PIPs were not used in 2002, 2003, 2004, or 2005. The first PIPs were issued
in the Spring of 2006 because schedule adherence problems continued to occur
and changes needed to be made. In fact, Carrasco testified that before the 2006
PIPs, Human Resources did not allow PIPs to be given for any problems
unrelated to work performance, including being late or absent.                   Human
Resources’ policy remained in place even after Carrasco specifically requested
in 2002 that she be allowed to use PIPs to deal with absenteeism and tardiness.
      The only document similar to a PIP issued before 2006 was a Work
Development Plan given to Rudy Romero in 2002. Romero was not a CSR and
was not given the Work Development Plan because he was absent or tardy.
Romero had no issues with attendance or tardiness. He was (1) unwilling to
take escalated calls, to share knowledge with Team Leaders, or to answer CSR
questions; (2) unconcerned about customer service; (3) unresponsive to CSR
needs; (4) rude with an uncaring attitude; and (5) unavailable during the work
day as his job description required. Each of these problems is related to work


      8
         After being questioned about the PIPs, Carrasco was asked during the hearing,
“[y]ou’ve never put an employee on any kind of a probationary period other than what we’ve
discussed here today. Is that right?” She responded that she had not.

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                                       No. 10-60771

performance and thus, would have allowed a PIP to be issued under Human
Resources’ policy prior to 2006. Romero’s work development plan only was
issued after multiple meetings in the preceding months and a “fact finding
inquiry conducted by outside counsel.” The plan set up weekly meetings with
Carrasco to ensure progress and stated that, “[f]ailure to improve your behavior
within the next 90 days may result in disciplinary action, up to and including
termination.”
      In contrast, the 2006 PIPs were not used to help employees by structuring
a plan to decrease their tardiness and absences; they served as written warnings
that placed employees on probation. There was no plan written within the PIPs
or scheduled meetings to help ensure progress. Id. Rather than going through
EPE’s normal company disciplinary procedure whereby management could issue
an informal verbal warning followed by a written warning,9 a suspension, and
then a termination notice, an employee who received a PIP would be evaluated
at the end of the time period listed on the PIP and if improvement was not noted,
the employee would be further disciplined or terminated. Unlike Carrasco’s
testimony that disciplinary action could result from a PIP, the PIPs each
specifically stated that, “[f]ailure to meet or comply with these expectations will
result in further disciplinary action up to and including termination of
employment” (emphasis added). The PIPs refer to themselves as “disciplinary
action” by calling future disciplinary action “further disciplinary action.”
Accordingly, the Board held that the PIPs placed employees on probation and
“were part of a disciplinary scheme that could lead to an adverse action, up to
and including termination.” It was not unreasonable for the Board to conclude
that employees faced potential discipline stemming from the PIPs. The Board
determined that, “[t]here is no record of probation or discipline previously issued


      9
          Carrasco testified that these written warnings were considered to be discipline.

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                                   No. 10-60771

to a CSR who was excessively absent or late.” The institution of PIPs after a
change in policy by Human Resources is a significant change from the past
practice of not punishing CSRs for tardiness or absenteeism.
      Even if we assume that employees formerly were punished for tardiness
and absenteeism, the former system of discipline used by EPE was less
formalized. According to Rahco, Inc., 265 NLRB 235 (1982), “rules which are
subject to discretionary and flexible enforcement are transferred in nature when
subject to a highly structured and formalized disciplinary procedure.” Id. at 257
(citing Murphy Diesel Co. v. NLRB, 454 F.2d 303, 307 (7th Cir. 1971); NLRB
v. Miller Brewing Co., 408 F.2d 12, 16 (9th Cir. 1969)); see also In re Golden
Stevedoring Co., Inc., 335 NLRB 410, 415 (2001); Migali, 285 NLRB at 820–21;
Amco, 211 NLRB at 431. Employees need not be disciplined pursuant to the new
policy for a violation of § 8(a)(1) and (5) to occur as long as it was clear that the
new policy had taken effect. Migali, 285 NLRB at 820–21 (citations omitted). “It
is immaterial, as it was in Amoco and Migali, that, as part of the change from
an oral to a written system, the Respondent did not impose discipline more
harshly.” In re Golden Stevedoring Co., Inc., 335 NLRB 410, 415 (2001). In
addition, Supervisor Valdez testified that, at the time of his testimony, all of the
PIPs issued in 2006 were still ongoing, meaning that employees had not yet
reached the end of their probationary periods and thus, employees had not yet
been evaluated at the close of their probationary periods to determine if further
disciplinary action was warranted. Carrasco admitted that employees who
received a PIP could have their ability to get a raise or a bonus impacted during
the time period set forth in the PIP.
      EPE cites The Trading Port, Inc., 224 NLRB 980 (1976), and Crittendon
Hosp., 342 NLRB 686 (2004), asserting that the issuance of PIPs for absenteeism
and tardiness was part of the flexibility granted to management to fashion
innovations in order to promote a more efficient work force. Trading Port

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                                  No. 10-60771

addresses efficiency requirements that predated union organization but began
to be enforced more stringently after union organization. 224 NLRB at 983. In
Trading Port, the Board distinguished Trading Port and Wabash Transformer
Corp., 215 NLRB 546 (1974), from cases where “new penalties [were] imposed
for low productivity” or a “new form of discipline” was imposed. Trading Port,
224 NLRB at 983. “[T]he Board has held that a new system for policing employee
discipline, in the form of issuing written disciplinary warnings, was violative of
Section 8(a)(5) of the Act when instituted without prior notification and
bargaining with the statutory bargaining representative.” Id. (citing Amoco, 211
NLRB at 622–23).
      In Crittendon, the Board determined that a change in policy from “strongly
discouraging” the use of acrylic and decorated nails by nurses to banning these
nails was not a “material, substantial, and significant” change because no
evidence was presented that any of the impacted nurses wore acrylic or
decorated nails. Thus, there was no evidence that the policy change would
impact the nurses’ terms and conditions of employment. 342 NLRB at 686. The
rest of the challenged policy remained unchanged from before unionization. Id.
In contrast, it is clear from the face of the PIPs and from the record that the
PIPs impacted CSRs.       EPE used PIPs to place CSRs on probation and
immediately put those CSRs at risk for termination without first receiving a
verbal warning and a written warning.
      Finally, Carrasco testified that she did not discuss her decision to begin
using PIPs for issues unrelated to work performance with anyone other than
Human Resources.      EPE stipulated that, “the [PIPs] were issued without
affording the Union an opportunity to bargain with [EPE], without prior notice
to the Union and without affording the Union an opportunity to bargain with
[EPE] with respect to the notices.”



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                                 No. 10-60771

      Therefore, we affirm the Board’s conclusion that the use of the PIPs
without notice and bargaining unilaterally altered EPE’s disciplinary procedure,
violating the NLRA. We also affirm the Board’s determination that the PIPs
issued to Atonya Watson, Delma Gonzales, Lucy Flores, Pat Cruz, and Mary
Perryman were based on the unilateral implementation of a more onerous
disciplinary procedure for CSRs in violation of § 8(a)(1) and (5) of the NLRA.
E. Change in Ability to Work on Co-workers’ Accounts
      EPE disciplined three CSRs for working on the personal electrical account
of another CSR at the other CSR’s request. The Board determined that, without
notifying or bargaining with the Union, EPE unilaterally imposed a policy
restricting CSRs from working on fellow CSRs’ accounts and unlawfully imposed
discipline on three CSRs pursuant to that policy. In doing so, it found that EPE
had no preexisting policy prohibiting a CSR from working on a fellow CSR’s
billing account. EPE argues that CSRs have always been prohibited from
working on the accounts of fellow CSRs because of inherent conflict of interest
concerns. Alternatively, EPE explains that it always has had a written policy
preventing CSRs from working on the accounts of their friends. EPE asserts
that the employees who were disciplined for working on other CSRs’ accounts
were also friends with those CSRs. Since their discipline did not specify if the
punishment was for working on a friend’s account or a co-worker’s account, EPE
claims the discipline must have been based on the fact that these co-workers
were friends.
      The Board reasonably decided that there was no policy against working on
co-workers’ accounts. Even Carrasco testified that CSRs could work on non-CSR
co-workers’ accounts. More generally, CSRs had the authority to modify EPE
customer bills, grant customers more time to pay their electric bill, set up a
payment plan, and void a collection or cancellation of service. Although the
General Counsel admits that EPE had a written policy against CSRs working

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                                         No. 10-60771

on their “personal account, relatives or friends,” co-workers were not included
as a prohibited group in the written policy. As Carrasco acknowledged, there
was no written policy preventing CSRs from working on co-workers’ accounts.10
       Ultimately, the Board made explicit credibility determinations when it
credited the testimony of workers that this alleged co-worker prohibition policy
was not orally presented during training over opposing testimony by Carrasco.
This determination led the Board to conclude that, based on the testimony and
evidence before it, “[a]ny argument that the three CSRs were disciplined for
working on friends’ accounts is a belated effort to justify the discipline on
grounds not stated in the written disciplinary letters.” As we have stated in our
settled law, on appeal, credibility determinations are not to be disturbed unless
they are “‘inherently unreasonable or self-contradictory.’” Cent. Freight Lines,
Inc. v. NLRB, 666 F.2d 238, 239 (5th Cir. 1982) (quoting NLRB v. Proler Corp.,
635 F.2d 351, 355 (5th Cir. 1981)). We have insufficient evidence to overturn the
credibility determinations made here.
F. Closure of the Chelmont Facility
       On March 3, 2006, EPE closed its Chelmont facility, a walk-in customer
service facility located in an El Paso shopping center. The Board concluded that
EPE violated § 8(a)(5) when it refused to bargain over the effects of EPE’s
decision to close the Chelmont facility.11 EPE claims that during the intervening
month between the announcement and the closure, EPE’s Labor Relations
Specialist Manuel Hernandez (the management liaison to the Union) and the
Union’s Business Manager Felipe Salazar bargained over the effects of the
closure.


      10
         Notably, the Board considered Carrasco’s unsupported claim that she previously had
given written warnings to two CSRs for working on other CSRs’ accounts, yet discredited it
as lacking any evidentiary validation.
      11
           The actual closure of the Chelmont facility is not at issue in this appeal.

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                                  No. 10-60771

      Management has a duty to bargain over the effects of closing a facility.
First Nat. Maint. Corp. v. NLRB, 452 U.S. 666, 679 n.15 (1981); see also E.I.
DuPont de Nemours & Co. v. Sawyer, 517 F.3d 785, 793 (5th Cir. 2008); Local
2179, United Steelworkers of Am. v. NLRB, 822 F.2d 559, 570 n.15 (5th Cir.
1987). “[U]nder § 8(a)(5), bargaining over the effects of a decision must be
conducted in a meaningful manner and at a meaningful time, and the Board
may impose sanctions to insure its adequacy.” First Nat. Maint. Corp., 452 U.S.
at 681–82. When a claim under § 8(a)(5) is based on management’s duty to give
adequate notice of the closure of a facility to allow the union to bargain over the
effects of the closure, we focus on two key issues: (1) when management first
notified the union of its decision and (2) whether that notice allowed for
meaningful bargaining over the effects of the closure at a meaningful time. E.I.
DuPont de Nemours, 517 F.3d at 793–94.                “The focus would be on
[management’s] communications to and bargaining with the union.” Id. at 794.
Though management does not need to agree to the union’s proposals,
management is required to “meet with the union, provide information necessary
to the union’s understanding of the problem, and in good faith consider any
proposals the union advances.” United Steelworkers of Am., 822 F.2d at 679 n.17.
      Based on the record before us, we conclude that there is substantial
evidence to support the Board’s determination that EPE did not meaningfully
bargain over the effects of the closure of the Chelmont facility. EPE Vice-
President Kerry Lorre indicated that no Union representative was part of the
discussion concerning the facility’s closure or the transfer of employees.
Discussions concerning the Chelmont facility began in April 2005 without Union
inclusion. According to Hernandez, the Chelmont closing and the transfer of
employees from the Chelmont facility were never raised at bargaining meetings.
Lorre admitted the decision to close the facility was made final before the Union
was even contacted.     Lorre testified that she met with Supervisor of the

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                                  No. 10-60771

Chelmont facility Rose Lowe to determine where employees should be
reassigned. Lorre could not remember when the decision concerning employee
transfers was made but testified that after the company decided to close the
facility, she instructed Lowe to have Hernandez inform Salazar that they were
not renewing the Chelmont facility’s lease and about the employee transfers.
      Hernandez first knew about the closure in January but did not meet with
Salazar about the closure and employee transfers until February 1, 2006 at 8:30
a.m. Although Salazar voiced his initial concerns about the transfers of three
of the CSRs, Rosalba Vargas, Veronica Vargas, and Rachel Diaz, the closure was
announced to the employees via email at 8:47 a.m., so seventeen minutes later,
that same day. Lorre then met with employees later on February 1 to announce
the facility would be closing, inform employees that transfers would occur, and
answer questions.
      Salazar objected to changes in employee schedules, vacations, training,
and parking in a few phone calls with Hernandez during the two weeks following
the announcement of the closure. Salazar opposed both the closure itself and the
proposed transfer of employees to other walk-in customer service facilities in
Faben, Texas and Anthony, New Mexico. He also objected to transferred
employees only getting three weeks of training rather than the usual three to six
months of training given to workers at the downtown El Paso facility, where the
remainder of the CSRs were slated to be transferred. Salazar complained to
Hernandez, but no changes were made to the effects of the closure as a result of
the complaints. There is no evidence in Hernandez’s testimony that Hernandez
offered to compromise with Salazar or considered changing the transfers after
complaints were made.       Following the phone calls between Salazar and
Hernandez, Hernandez notified Salazar that Salazar had one day to contact
Hernandez about the employee complaints or the transfers would become final.
Salazar did not call back that day. As a result, the decision was finalized before

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                                        No. 10-60771

the complaints concerning the transfers could be discussed and considered.
Ultimately, EPE never discussed that it would consider making nor offered to
make concessions to the Union concerning the effects of the Chelmont closure;
EPE’s initial proposal remained unchanged from the time of its initial conception
by EPE administrators until implementation.
       In the end, the Board’s decision that the closure violated the NLRA was
based on a credibility determination developed in the extensive record. The
Board decided that Salazar was credible when he testified that Hernandez told
him that training, vacation schedules, and seniority were not up for discussion
and that Hernandez “refused to talk to Salazar about the issues.”12 Specifically,
when Salazar objected to the vacation scheduling, the limited training planned,
and issues concerning seniority, Salazar testified that Hernandez told him that
it did not matter that bargaining had not occurred because the decision had been
made and that the transfers were not up for discussion.13 Hernandez responded
to Salazar’s concern about training saying that the transferred employees “better


       12
         The Board explained that:
       Hernandez said that the transferred employees would get only 3 weeks of
       training and they had better catch on. Hernandez made it clear that these
       matters were not subjects for discussion since the decision to close Chelmont
       was a business decision. Salazar said it was unfair to give them only 3 weeks
       of training when other new employees received 3 months training. Salazar
       called Hernandez again in February 2006 and tried to get him to bargain about
       the issues surrounding the effects of the Chelmont closing and Hernandez
       refused to talk to Salazar about the issues.
       13
          Although the issues regarding employees’ vacation conflicts were satisfactorily
resolved to allow the employees to take their scheduled vacations, and although three
employees who had expressed some concerns over their respective transfers were ultimately
satisfied with the transfers, there were numerous other effects of the Chelmont facility’s
closure that did impact transferred employees but were not subject to bargaining. The
Chelmont facility, unlike the El Paso facility, was a walk-in facility rather than a call center.
As a result, the El Paso facility had more regulation of employee activity and required
employees to work late shifts one or two days each week. The El Paso facility also did not have
free parking and had less flexible vacation scheduling. Additionally, Chelmont employees
would only receive two or three weeks of training while all other El Paso CSRs received three
to six months of training.

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                                 No. 10-60771

catch on.” When Salazar told Hernandez that he would file a charge against
EPE, Hernandez told Salazar to “do whatever you have to do.” This court has
held that, “[i]n determining whether the Board’s factual findings are supported
by the record, we do not make credibility determinations or reweigh the
evidence.” NLRB v. Allied Fueling of Dallas LP, 490 F.3d 374, 378 (5th Cir.
2007) (citing NLRB v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1339–40 (5th Cir.
1993)). Here, the Board’s determinations are supported by enough relevant
evidence that a reasonable mind may accept that evidence as adequate to
support the decision.
       In sum, Salazar, and therefore the Union, were only given seventeen
minutes notice about the closure of the facility and a few hours notice about the
transfers before employees were informed. Although Salazar objected to the
transfers, Salazar and the Union were not given a chance meaningfully to
discuss these changes before they were officially announced.        There is no
evidence that EPE considered any of the Union’s proposals. We affirm the
Board’s determination with respect to the effects of the closure of the Chelmont
facility.
G. Change in Boot Replacement Policy
       EPE provided a boot allowance for meter readers and collectors at their
Las Cruces location, and most employees were reimbursed for boots twice a year.
A uniform allowance is a term and condition of employment and, thus, requires
mandatory bargaining with the Union. “Days off from work, whether sick days,
holidays, personal days, or vacation days, health insurance, and working hours
clearly are terms and conditions of employment, as are uniform and meal
allowances, longevity pay, and premium pay for overtime.” Pine Brook Care Ctr.,
322 NLRB 740, 748 (1996) (internal citations omitted). The Board concluded
that EPE violated § 8(a)(1) and (5) of the NLRA when it unilaterally changed its
boot allowance policy by requiring a boot inspection before new boots were

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                                      No. 10-60771

issued. It found no evidence that EPE had informed or bargained with the
Union prior to this change. EPE argues that there was no change in policy and,
even if there was a change in policy, there is no evidence that any employee was
adversely affected by such change. We reject each of these arguments.
       First, there is substantial evidence to support the Board’s conclusion that
there was a change in EPE’s boot allowance policy. Traditionally, meter readers
purchased boots fitting EPE’s style and brand requirements and then turned in
their receipts to Las Cruces Meter Reader and Collector Supervisor Debra Duran
for reimbursement. Collector Janet Hallsted testified that meter readers and
collectors would receive either an email from Field Analyst Art Sanchez or a
message would be posted on the facility’s dry erase board by Duran telling meter
readers and collectors to turn in their receipts by the end of the week for
reimbursement. When no email was received or notice was posted in July 2006,
Meter Reader Jonathon Abeyta requested that all meter readers receive new
boots on August 18, 2006. On August 21, 2006, Duran posted the following
message on the dry erase board: “I will only authorize boot replacements after
I see they are needed. Come see me. DD,” effectively denying the group boot
request.
       Duran admitted that she began requiring employees to show her their
boots before allowing them to order new ones after the phone call from Abeyta
on August 18, 2006. When asked if she previously had told employees that boot
replacements would only be authorized after she physically saw if the new boots
were needed, Duran testified, “[n]ot in that manner, no.” Duran’s admission
matches the testimony of Hallsted.14 In addition, Duran testified that, at one


       14
         EPE argues that Hallsted’s testimony was undermined by a February 2005 policy
statement distributed by Duran. However, Hallsted testified that the February 2005
statement did not make approval of an employee’s new boots contingent on the condition of
the employee’s old boots, unlike EPE’s 2006 policy change. In addition, EPE also claims that
Hallsted’s testimony is further undermined by her failure to request new boots in July 2006.

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                                        No. 10-60771

point prior to the policy change, she had allowed employees to be reimbursed for
a second pair of boots though they had just purchased a new pair and thus,
currently had boots in good condition. Although Duran later testified that she
always had required employees to show her their boots, the Board credited her
earlier testimony and relied on Duran’s admissions in its analysis. Because this
credibility determination is not “‘inherently unreasonable or self-contradictory,’”
we will not disturb the Board’s decision to credit Duran’s initial testimony rather
than her later contradictory testimony. Cent. Freight Lines, 666 F.2d at 239
(quoting Proler Corp., 635 F.2d at 355). She also admitted that she never had
discussed her authorization of boot replacements with the Union. We affirm the
Board’s decision with respect to the existence of a unilateral boot allowance
policy change.15
       Second, we reject EPE’s argument that there is no evidence that any
employee was adversely affected by such change. EPE cites Crittendon Hosp.,
342 NLRB 686 (2004), and In re McClatchy Newspapers, Inc., 339 NLRB 1214
(2003), to argue that this change in the terms and conditions of employment was
not “material, substantial, and significant.” As discussed previously, Crittendon
Hosp. involved a change in hospital policy from strongly discouraging nurses
from having acrylic or artificial nails to banning the nails. 342 NLRB at 686.
The Board itself held that, “because acrylic or artificial nails were already
strongly discouraged under the old policy, it is reasonable to conclude that the
RNs did not use them and, thus, this dress code change would not be significant


But Hallsted testified that she did not request boots in July 2006 because she did not receive
an email or see a dry erase board message informing her that receipts needed to be turned in,
as was the normal practice.
       15
         EPE points to Duran’s records to contend that she had inspected boots before
reimbursing meter readers. Though the records list when each meter reader received new
boots and specific details about the style, brand, price, date issued, and size of each new pair,
the records only document the characteristics of the newly purchased boots. There was no
testimony from Duran that the condition of the old boots was part of these records.

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                                   No. 10-60771

to them.” Id. “A change is measured by the extent to which it departs from the
existing terms and conditions affecting employees.” Id. (quoting S. Cal. Edison
Co., 284 NLRB 1205, 1205 n.1 (1987), rev’d denied & enforced, 852 F.2d 572 (9th
Cir. 1988)) (internal quotation marks omitted).
         In McClatchy Newspapers, the Board concluded that changing the pay
period from beginning on Sunday and ending on Saturday to beginning on
Sunday and ending on Monday in order to standardize pay periods across the
parent company and to prepare for Y2K was not a material, substantial, and
significant change to the terms and conditions of employment. 339 NLRB at
1214–16, 1220. The Board found, based on employee testimony, that the
company fixed any impact on employee vacations, there was no reduction of
work hours, and the change seemed to be “purely for internal bookkeeping
purposes.” Id. at 1215. “The General Counsel presented no evidence that the
change affected employees after it was put in place.” Id. at 1215–16.
         In both Crittenden Hosp. and McClatchy Newspapers, therefore, the Board
determined that the change in policy did not impact any employees because
there was no evidence that any employee would have to change their behavior
or have the terms and conditions of their employment change due to the new
policy. McClatchy Newspapers, 339 NLRB at 1215–16; Crittenden Hosp., 342
NLRB at 686. Here, the fact-finder, affirmed by the Board and based on Duran’s
records, concluded that all meter readers wore, bought, and were bi-annually
reimbursed for new boots under the old policy. Duran’s approval of four or five
requests for new boots since she changed her policy, does not negate, as EPE
claims, the determination that no meter reader would be impacted by the policy.
The policy change itself resulted in Duran denying Abeyta’s group request for
boots.     Additionally, Duran could not remember if she had denied a boot
replacement at other times but testified that it was possible that she had denied
a request for new boots upon inspection of a meter reader’s current boots. This

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                                 No. 10-60771

is a change from approval of new boots irrespective of old boots to a policy in
which management must determine if meter readers qualify. Under the new
policy, the meter readers would have to change their practice of simply
submitting receipts. Each employee would have to undergo an inspection by
Duran, and new boots would not be guaranteed twice a year. As the Board
concluded, based on an adequate factual record we cannot ignore, “[e]mployees
could no longer merely submit their boot receipts but now had to prove to
Duran’s satisfaction that they needed new boots.” We cannot overturn the
finding that this change was material, significant, and substantial, violating §
8(a)(5) of the Act. Miss. Power Co., 284 F.3d at 614 (quoting Ford Motor Co., 441
U.S. at 501); Henriksen, 481 F.2d at 1162.
IV. Conclusion
      Each of the Board’s holdings is supported by substantial evidence;
therefore, we AFFIRM.




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                                      No. 10-60771

EDITH BROWN CLEMENT, Circuit Judge, dissenting in part:
       This case provides six examples of why companies struggle to remain
competitive and efficient when they are unable to enforce basic rules of the
workplace under the fear of being sued for labor violations. Because I do not
believe El Paso Electric (“EPE”) “effect[ed] a unilateral change of an existing
term or condition of employment” with respect to any of the six challenged
determinations of the NLRB, I respectfully dissent.
       1. Break Time Policy
       If a supervisor suggests, but does not require, that a group of employees
do their jobs differently, and there are no direct consequences when those
employees decide to simply ignore the suggestion after a short period of time,
has the employer unilaterally changed a condition of the employees’
employment? Unlike the conclusion reached by the majority, I think not. A
request or suggestion that is ignored without repercussions is not a policy
change and therefore EPE did not violate the NLRA by requesting the employees
stop aggregating their breaks at the end of the workday.
       According to veteran meter reader Cesar Camacho, firsthand testimony
credited by the ALJ, the meter reader supervisor’s request that meter readers
no longer aggregate their 30-minute lunch and two 15-minute breaks was “not
required” but was “kind of enforced, like.” Camacho’s testimony was supported
by the testimony of meter reader Galindo, who said that the supervisor’s request
to stop aggregating breaks was not mandatory.1 This is borne out by the actions
of the meter readers following the request. While they altered their routine for
a while and changed when they took their breaks, Camacho testified the idea


       1
         Although the ALJ did not credit Galindo’s testimony, Galindo was not the only person
other than Camacho to testify that the employees were not required to change when they took
their breaks. Two meter reader supervisors, Greg Gonzalez and John Robinette both testified
that meter readers could always take their breaks whenever they chose and the meter readers
were never prohibited from aggregating their lunch and break times.

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                                  No. 10-60771

“kind of died out.” Without asking if it was permitted, and notably, without being
disciplined for not complying with the allegedly changed policy, the meter
readers collectively chose to return to their prior practice of aggregating their
breaks at the end of the day.
       Despite the majority’s statement that this alleged policy change “was
identical to the change identified by the Board” found to be a violation of the
NLRA in Garrison Valley Center, Inc., 246 N.L.R.B. 700 (1979), the situation
here is not “identical.” While the general conceptual issue may be
similar—whether employees could aggregate their lunch and two break
times—the ALJ in Garrison Valley found “[t]he housekeeping personnel were
required to take a 30 minute lunch and two 15-minute breaks.” Id. at 709
(emphasis added). Not so here, where two of the meter readers testified that the
change was not required and further supported by the fact that the meter
readers were ultimately able to ignore the suggestion without repercussions.
EPE, or any other employer, has not unilaterally changed an existing condition
of employment simply because a supervisor makes a suggestion or
recommendation to a group of employees who choose to follow the
recommendation for a short period of time but face no consequences or
disciplinary action when they later choose to ignore the recommendation. Stated
in terms of the evidence, a supervisor’s request that is “not required” and is
“kind of enforced, like” is not a policy change that subjects an employer to NLRA
liability.
       2. Termination of Navarro
       The majority’s conclusion that Mario Navarro’s termination was a
violation of the NLRA is primarily based on precedent that, because EPE
acknowledged that Navarro was terminated in part because he violated the
allegedly changed break time policy by aggregating his break time at the end of
the day, the termination was improper. This would be a valid conclusion under

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                                 No. 10-60771

the cited precedent if EPE had unilaterally changed the break time policy.
However, EPE also fired him for other policy violations only briefly mentioned
by the majority—using his work vehicle for personal business without approval
and turning on the power at his new residence without specific authorization to
energize the electric meter. Because there was no unilateral policy change with
respect to the break time policy as discussed above, EPE’s termination of meter
reader Navarro was not a violation of the NLRA in light of the other evidence of
his policy violations.
      The ALJ did not discredit supervisor Gonzalez’s testimony that Navarro
took a company truck to attend to personal matters at his new residence and
Gonzalez also testified that “it was not uncommon for him to authorize meter
readers to take a company truck during the day for any number of personal
reasons.” Unfortunately for Navarro, he never asked for authorization to use his
EPE truck for personal reasons—something other meter readers asked for and
received authorization to do. There was no contention that this requirement to
ask for permission to use a company truck for personal business was a new or
unilaterally changed policy.
      Additionally, it was undisputed that Navarro was not authorized to
reconnect electric service at his new residence. Instead, the General Counsel
argued that because the primary reason for the rule against unauthorized
reconnections is to prevent theft and because Navarro had put in an order to
reconnect service, there was no theft concern and his actions were thus a
non-issue. Yet the testimony established that another employee had been
assigned to turn on the electricity at the house and when she arrived to perform
the reconnection, she discovered that Navarro had cut the seal, removed the
boots from the meter, and re-energized the meter. Navarro had not replaced the
seal meter as required when a reconnection is performed. Whether theft is the
basis for the rule against unauthorized reconnections or not, the fact remains

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                                  No. 10-60771

that Navarro performed an unauthorized connection, an infraction for which
EPE has fired other employees in the past. Employers should not be required to
live in fear of labor violation suits for enforcing basic common sense policies such
as “do not take a company truck without asking” and “do not turn on electric
service for yourself without approval.”
      3. Disciplinary Procedures
      Showing up for your job on time—whether your “job” is going to school as
a young person, working as an hourly employee at a factory, or traveling halfway
around the world to attend an important meeting as a senior corporate
executive—is a basic requirement everyone should learn early in life. When you
do not show up on time, you learn that there may be consequences for being
tardy, some expected and perhaps some not expected—having to stay late to
make up the time, being required to allocate some of your paid time off to make
up for the time you were late, being reprimanded, and possibly even being
expelled or terminated if you are continually tardy.
      The General Counsel argued that this basic requirement, and the potential
consequences that go with it, apparently did not apply to EPE call center
employees who were continually late to work. When EPE’s call center supervisor
had the temerity to give certain CSRs written notice, in the form of performance
improvement plans (“PIPs”), that their continued tardiness could subject them
to discipline if they did not improve, the employees’ response was not to follow
the rules and show up for work in a timely manner such that they could serve
customers in their jobs answering phone calls from EPE customers. Instead,
they filed a labor grievance.
      While the Board found that (1) the PIPs issued to the continually tardy
employees “were part of an disciplinary scheme that could lead to adverse
action,” (2) the PIPs “essentially placed employees on probation,” and (3) there



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                                  No. 10-60771

was no prior record of EPE placing CSRs on probation or being disciplined for
excessive tardiness, none of these are supported by substantial evidence.
      None of the CSRs that received a PIP was given an actual written
reprimand or placed on actual, as opposed to the Board’s hypothetical
“essential,” probation. Each of the six CSRs issued a PIP had already received
verbal and written counseling during their annual performance evaluations in
which they had scored below expectations for schedule adherence, a euphemism
for being on time. Therefore the issuance of PIPs, even if construed as written
warnings about tardiness, comported with EPE’s customary disciplinary policy
that has always included the ability of a manager to provide a written warning
to employees when verbal counseling or warnings were not sufficient to correct
a CSR’s performance.
      The use of PIPs was also not necessarily new. While EPE had not
regularly used PIPs before Carrasco issued them to the six CSRs, EPE had
previously used a “Work Development Plan” as early as 2002 for a call center
team leader and a PIP for an employee no longer employed by EPE. Confusingly,
while the majority asserts that the Work Development Plan was not given
because the supervisor “was absent or tardy,” the majority acknowledges that
one of the five issues addressed in the Plan was that the supervisor was
“unavailable during the work day as his job description required.” Perhaps it is
a matter of semantics, but if an employee is “unavailable,” then he is “absent”
from his job. This is particularly true in jobs such as these in a customer service
call center—if call center employees are not there to answer the phones when
customers call seeking assistance, EPE’s business is harmed because customers
either cannot reach a representative or the customers must wait in longer hold
queues until one of the representatives who is at work when he is supposed to
be can answer the calls.



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                                  No. 10-60771

      Furthermore, the Board’s finding that the PIPs “essentially” placed the
employees on probation is not supported by the facts. While six CSRs received
the PIPs, none of the six were actually disciplined such that their pay, hours, or
terms and conditions of their jobs as CSRs were impacted, nor did any of the
PIPs result in any further actual disciplinary actions. While the General Counsel
argued it is “difficult to comprehend how placing employees on probation for
several months, with the looming threat of discipline including termination, does
not constitute disciplinary action,” there is no evidence, aside from the
employees’ statements of their hurt feelings when told they must be at work on
time, to support the finding that the CSRs were either essentially or actually on
“probation.” Regardless of whether the CSRs received a PIP or not, each
employee was always confronted with a “looming threat of discipline” for failing
to be on time for work, much like employees in every job. Accordingly, there was
not substantial evidence to support the Board’s finding that the PIPs were a
unilaterally imposed more onerous disciplinary policy.
      4. Co-Workers’ Accounts
      There is no dispute that CSRs were provided a written policy that states:
“Do not work on personal account, relatives or friends” and the Board credited
the testimony of seven CSRs that they understood this policy. And for good
reason—the CSRs had the ability to adjust customer billing accounts and there
is an inherent danger in allowing a CSR to tinker with the electric bills of friends
or relatives. It is unclear whether CSRs were explicitly told they were prohibited
from working on co-workers’ accounts. One CSR testified that she was aware
that working on co-workers’ accounts was forbidden and call center supervisor
Carrasco testified that the policy existed but was not written down. Independent
of whether this rule was written down however, common sense rules tell us that
friends and co-workers are not mutually exclusive groups. Just because you
work with someone does not mean that person cannot also be your friend.

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                                  No. 10-60771

      If the evidence consisted solely of the testimony that there was no written
policy prohibiting CSRs from working on co-workers’ accounts and Carrasco’s
undocumented claim that she had given warnings for such actions, perhaps the
Board’s finding would be supported by substantial evidence. However, that is
not the case here. There was testimony that the three co-workers were not just
co-workers, but also friends both inside and outside the workplace. When they
were disciplined for working on each other’s accounts, the employees were being
disciplined for a violation of the policy pursuant to the explicit undisputed
written terms. Whether the employees admitted that they knew about an
explicit rule against working on co-workers accounts or not, there was evidence
they at least understood the possible consequences of the common sense rule
that a co-worker can also be a friend, as there was evidence that the CSRs
attempted to cover their tracks after working on each others’ accounts.
      The majority’s reliance on the Board’s crediting of the employees’
testimony that the alleged co-worker prohibition policy was not orally presented
during training sidesteps the employees’ violation of the written policy, just as
the Board attempted to circumvent this clear violation by noting that the
disciplinary letters issued to the three CSRs failed to explicitly list “working on
a friends [sic] account” as a violation. The disciplinary letters correctly and
succinctly stated that the CSRs had violated company policy: “The Company
determined you violated Company and departmental policies.” Though terse, the
statement is true. The fact of the matter was that there was a written policy, the
CSRs violated it, and they were disciplined. EPE did not violate the NLRA
because there is not substantial evidence that the CSRs were disciplined as a
result of a unilateral change in EPE’s policy but instead were disciplined simply
for violating EPE’s existing written policy.
      5. Chelmont Facility Closing



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                                        No. 10-60771

       The Board determined that EPE “refused to bargain over any of the effects
of closing Chelmont” and therefore violated the NLRA. However, in support of
its conclusion, the Board simply concluded, with no citation to record evidence,
that EPE labor relations specialist Manuel Hernandez “refused to discuss the
issues [involving the closure].” Instead, the Board’s decision appears to mistake
several of Hernandez’s comments to union representative Felipe Salazar
regarding EPE’s business decision to close Chelmont—stating that the decision
to close the facility was not up for discussion—as a refusal to bargain, which is
not part of this appeal, when the actual issue is whether EPE refused to bargain
over the effects of the closure.2
       A review of the record paints a far different picture than the Board’s
unsupported conclusion that EPE refused to bargain over the effects of the
closure. The record reflects that Hernandez spoke with Salazar multiple times
to discuss the union’s and specific member’s concerns in order to address the
effects of the closure. Despite the majority’s assertion that “Salazar complained
to Hernandez, but no changes were made to the effects of the closure as a result
of the complaints,” the majority acknowledges in a later footnote that
complained-of issues regarding the effects of the closure and resulting job
transfers on employees’ vacation “were satisfactorily resolved to allow the



       2
          The majority’s attempt to paint EPE’s communications in a negative light by pointing
out that the union was “only given seventeen minutes notice about the closure of the facility
and a few hours notice about the transfers before the employees were informed” is similarly
immaterial to this appeal. The Board remanded the question of whether the decision to close
the facility was subject to bargaining and therefore it is undetermined whether the union was
entitled to any advance warning with respect to that decision. With respect to the transfers,
the relevant time period for bargaining with respect to the transfers as an effect of the decision
to close Chelmont is not the few hours before the employees were informed because the
decision to close the facility and the need to transfer the employees is effectively one and the
same. That is, EPE could not decide to close the facility without offering a simultaneous
proposed course of action with respect to the employees of the Chelmont facility. Instead, the
relevant time period for bargaining was the intervening month between the announcement
and the closure, which is exactly when Hernandez and Salazar spoke multiple times.

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                                  No. 10-60771

employees to take their scheduled vacations” and the “three employees who had
expressed some concerns over their respective transfers were ultimately satisfied
with the transfers.” It is unclear how, if EPE was in fact refusing to bargain over
the effects of the Chelmont closure as concluded by the Board and the majority,
these complaints were satisfactorily resolved.
      And, while the union did not get everything it wanted, such as the union’s
request that the transferred CSRs receive three months of training, Hernandez
and EPE accommodated Salazar’s and the concerned employees’ concerns to the
best of their abilities, including three weeks of call center training. Given the
standard articulated in First National Maintenance Corp. v. NLRB, 452 U.S.
666, 678 n.17 (1981), EPE did not have to agree to the union proposal but only
needed to “in good faith consider any proposals the union advances.” The
testimony indicated that EPE did consider the union’s training proposal by
determining that the three-month training period given to brand new EPE
employees was not required for the Chelmont employees being transferred to the
call center because the transferred employees already had significant experience
handling EPE customer service issues in their roles as customer service
representatives at the Chelmont facility.
      EPE’s willingness to negotiate is even acknowledged in the General
Counsel’s brief before this court, noting that “Hernandez agreed to look into” the
issues raised about the transferred employees’ vacations—issues that, according
to Salazar’s own testimony, were ultimately resolved to the employees’
satisfaction. Other issues, such as two employees’ concerns about seniority as
a result of the transfers, cannot be held against EPE because the employees
themselves told Salazar that they decided to “acquiesce in EPE’s decision.”
Respondent’s Brief at 17. Given the employees’ acquiescence, it is unclear how
Hernandez was expected to “consider[] changing the transfers after complaints
were made” as stated by the majority. Furthermore, when given the chance to

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                                 No. 10-60771

submit objections about the proposed transfers on behalf of the affected CSRs,
Salazar never called Hernandez. In summary, it is not clear how EPE’s
willingness to look into employees’ concerns, employees voluntarily choosing to
go along with proposed changes, and the union representative’s failure to raise
timely objections regarding the effects of the Chelmont closure can be termed a
“refusal to bargain” on EPE’s part. The evidence therefore does not support a
conclusion that EPE refused to bargain over the effects of closing Chelmont.
      6. Boot Replacement Policy
      The Board’s finding and the General Counsel’s argument that “for the first
time [Supervisor Debbie Duran] was requiring employees to demonstrate the
need for new boots,” thus constituting an improper unilateral policy change, is
not supported by substantial evidence. Janet Hallsted, the meter reader whose
testimony was cited in support of the NLRA violation, acknowledged she had
received a policy statement from Duran that stated all equipment replacements
had to be preapproved by management. Additionally, Duran testified that she
has always required a visual inspection of meter readers’ boots before
authorizing replacement “ever since we issued boots.”
      Instead, the only “change” in policy was that she needed to post a message
on the dry erase board due to an unusual phone call by one meter reader asking
if all meter readers could get new boots on a specific day in August 2006. It is
undisputed that this was a unique event to the extent that Duran had not
previously received such a group request to replace all meter readers’ boots on
a specific day. There is also no dispute that Duran had not previously posted a
message to remind the meter readers to come see her to get approval for boot
replacements. But the reason she had never needed to post such a message is
because she had never received a phone call requesting all meter readers’ boots
be replaced on a single day. Posting the message reminding meter readers to



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                                 No. 10-60771

follow what was an existing policy in response to an unexpected group request
is not a “change” of policy that supports an NLRA violation.
      Nonetheless, the General Counsel attempts to portray Duran’s message
as a distinct change of policy by referencing an email message that was allegedly
sent by field analyst Art Sanchez to all meter readers twice a year reminding
them to get new boots. Despite claiming that “[s]ubstantial evidence supports
the Board’s finding that, in practice,” employees would get reimbursed for boots
if they turned in receipts after Sanchez’s email, the General Counsel provides no
other support for either the Board’s finding or the argument in its brief. Nor
does the General Counsel make any connection between the sending of this
alleged email by field analyst Sanchez to any policy or course of action by
supervisor Duran with respect to boot reimbursement—it is not even clear
whether Sanchez is a member of the union or part of EPE management, or that
he had any authority regarding boot reimbursement. Given the existing policy
that equipment replacements needed to be preapproved by management, there
is little basis for why a field analyst would send what the General Counsel
attempts to portray as a blanket approval for everyone to buy new boots. In fact,
the evidence contradicts such a conclusion, as EPE was able to produce a
detailed spreadsheet documenting not only when each meter reader received
new boots but also specific details about the every employee’s boots, such as the
brand and style of each pair of boots.
      While the majority minimizes the existence of this spreadsheet by pointing
out that the spreadsheet does not indicate the condition of the old boots and
therefore calls into question whether Duran inspected employees’ boots before
reimbursing the purchase of new boots, the fact remains that if she had only
received receipts for boot purchases without visually inspecting the meter
readers’ boots, it is unlikely she would have been able to collect this detailed
data. Furthermore, Duran was able to visually identify the boots worn by the

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                                  No. 10-60771

meter readers when she saw them during the work day, as evidenced by the
testimony recounting several exchanges with meter readers after she saw them
wearing boots that were older than or different from the boots for which she had
paid reimbursement.
      Additionally, the majority finds a unilateral policy change because “meter
readers would have to change their practice of simply submitting receipts.”
However, the meter readers apparently had always been required to do more
than simply submit a receipt to get reimbursement for new boots as evidenced
by the boot replacement spreadsheet, which could only have been developed by
either speaking with Duran or showing her the new boots so she could record the
details of the brand and style of the boots. If such a minor inconvenience or
change to operating procedure results in a labor violation as a change in “terms
and conditions of employment” in light of the fact that there was no evidence
that Duran actually denied any specific employee’s request for new boots,
employers effectively have no control over how to manage their day-to-day
business operations. This is particularly evident, given the standard in In re
McClatchy Newspapers, 339 NLRB 1214 (2003), where, as here there was no
testimony that any employee was actually, as opposed to “effectively” or possibly,
affected by the allegedly changed policy.
      [T]he change in payroll caused no reduction of work hours and
      seemed to be “purely for internal bookkeeping purposes.” The
      General Counsel presented no evidence that the change affected
      employees after it was put in place. For these reasons, we cannot
      find that a “material, substantial, and significant” change in a term
      of employment occurred in this instance.
Id. at 1215–16 (citing Peerless Food Products, 236 NLRB 161 (1978)). That is,
even without any evidence of actual harm or effect, the majority endorses a
finding that requiring meter readers to show their boots before being reimbursed
is a material, substantial, or significant change in employment. Because there
is not substantial evidence to support such a conclusion and, even if Duran’s

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                                  No. 10-60771

message could somehow be construed as a policy change, the lack of evidence of
any effect precludes a finding that EPE violated the NLRA.
      Conclusion
      We are far removed from the era in which unions were the necessary,
staunch defenders of employee rights in the face of abusive, domineering, and
exploitive employers. Where unions once protected employees from dangerous
working conditions and unfair treatment, EPE is being held liable for labor
“violations” including: asking, but not requiring, employees to take their breaks
at the logically intended times; warning excessively tardy employees that they
might be subject to discipline if they do not start showing up on time; asking to
see employees’ boots before paying to replace them; firing an employee who took
a company vehicle on personal business without approval and improperly
connected his own electric service; “refusing to bargain” despite trying to address
employees’ concerns when closing a facility; and disciplining employees for
violating a published company policy. In lieu of common sense and attempting
to abide by the basic rules of the workplace we all learn as young people in
school or in a first job, employees and companies now resort to allegations of and
defenses to labor violations, respectively. Companies are then overly constrained
by the subsequent findings of liability that regulate workplace interactions and
limit the ability of companies to manage basic day-to-day business operations.
With respect to the majority’s conclusions on the six challenged labor violations,
I respectfully dissent.




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