IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 10-60771

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”), that the Petitioner, El Paso Electric Company (“EPE”) , e n g a g ed in

1 unfair lab o r practices prohibited by the National Labor Relations Act (the “NLRA”). EPE contends that the record does not support the Board’s findings. First, it i s settled law that this court “do[es] not make credibility determinations or reweigh the evidence” when reviewing the Boar d ’ s d e c isions. NLRB v. Allied U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May18 , 20 12 Lyle W . Cayce Clerk

The Nat ional Labor Relat ions Board wi ll be ref err ed to as the “G ener al Couns el” wh en 1 ref ere ncedas a party and ref err ed toas the “Boar d”w hen ref ere ncedas the de cis ion ma ke r. Case: 10-60771 Document: 00511860901 Page: 1 Date Filed: 05/18/2012No. 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 i n o r a l a r gument that its denial of unfair labor practices is properly considered in the context o f E PE’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. , G ulistan Division , 538 F.2d 1152, 1163 (5th Cir. 1976) (“When a company has historically evinced disdain for employees’ rights and the C o n gressional mandate, its prior history is relevant to the question o f a d e 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 f

irsthand by the administrative law judge (the “ALJ”) and thereafter reviewed b y th e B o ar d , 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 sep a r a t e ly set forth fifteen unfair labor practice findin g s th a t E PE does not dispute. Finally, it 2 should be kept in mind that the crux of the Board’s holdin g is not that EPE is
p r o h ibited from implementing workplace changes and disciplining employe e s based on those changes, but only that it is prohibited from doing so unilaterally, without conferring with the Union. We affirm.

We note that the ALJ sub st antia ted i t s f i n d i n g w i th a clos e look at the rec ord and 2 alm os t fif

ty cit atio ns to that rec ord in its dec isi on. By cont ras t, in the argum ent se cti on of its princip al brie f allegin g multip le clear fac tual err ors , EPE ref ers to the rec ord only thr ee tim es ; the Ge nera l Couns el pr ovide d us wi th for ty p a g e - sp ecif ic rec ord cit atio ns in its res pons ive argum ent wh ere aft er EPE el ect ed to fil e n o r eply brief

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I. Factual Background EPE is a n electric utility that generates and distributes electricity to customers in western Texas and so u th e r n 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 r ocky 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 t o 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 appea l e d the ALJ’s decision to the Board by filing exceptions to certain findings while the Union filed cross-exceptions. Th e B o a r d issued its Decision and Order on August 10, 2010. El Paso Electric Co. , 355 NLRB No. 71. The Dec i s ion and Order adopted most of the ALJ’s factual findings and le g al d e terminations, concluding that EPE had violated the NLRA through assorted interactions with union employees. EPE filed a petition in thi s c ourt to appeal specific portions o f th e 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 oner o u s 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 challenge s to the Board’s decision and requesting enforcement of the Decision and Order. II. Standard of Review We r e view “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

. 3 d 4 2 2 , 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 r e l ev a n t and sufficient for a reasonable mind to accept as adequate to support a conclusion. It is more than a mere scintilla, a n d 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)); s e e a ls o 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 fo r 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 t ri er 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 “r e a s o nable inferences” as “a function primarily for the board” and as determinations “for the trier of the facts

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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 fi n di n g s o f 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 exi s ting term or condition of employment.” Litton Fin. Printing Div. v. NLRB , 501 U.S. 190, 198 (1991) (citing NLRB v. Katz , 369 U.S. 7 3 6 ( 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 c o n n e c t i on 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. 1 9 91). The employer also violat e s § 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. , 1 8 4 NLRB 757, 762 (1970) (c o n c luding that there was a violation where the employer unilaterally imposed new rules regarding absenteeism and tardiness with o u t giving prior notice or b a r gaining with the union). For a unilateral change to require the

e m p l o y e r to bargain with the union, the change must represent a “material, sub s t a nt ial, and a significant change” in the terms and conditions of

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employment. Miss. Power Co. v. NLRB , 284 F.3d 605 , 6 1 5 (5th Cir. 2002); Peerless Food Prods. , 236 NLRB at 161 (c i t i n g Rust Craft Broad. of N.Y., Inc. , 225 NLRB 327, 3 2 7 ( 1 976)); 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 mindf u l o f o u r 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 c o n t r a ry 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 o f i s s ues is not sufficient to trigger review; the petitioner

mu s t d e velop its argument regarding the challenged issues in the body of its brief. Id. Although EPE submitted a list of iss u e s i n i t s 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 vi o l a t ed § 8(a)(1) and (5) of the NLRA by unilaterally implementing changes to its break policy f o r m e t e r 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 EP E a gr e e s , 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 furth e r d e termined that around March 2005, El Paso Meter Reader and C o ll e c tor Supervisor Greg Gonzales told the meter readers at a team m e e ti n g th at the meter readers needed to begin taking their breaks at th e intended times (a morning break, lunchtime, and an afternoon break) and that they could no longer aggregate th e i r b r e ak 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 th e n c o n c luded that because the new limitation

on break timing was a material change to EPE’s prior policy that wa s 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’ b r e a k and lunch periods did not change and that the Bo a rd’s decision was not supported by

s ub s t anti al evidence. Specifically, EPE emphasi z e s th at b e c au s e C a m acho n ever testified that Gonzales used the word “required” when telling the meter readers not to aggregate their breaks and because emp l o y e e s , 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 t estimony 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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The Board prope rly h e l d 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 c o n ditions of

e m p l oyment.”), aff’d , 24 F. App’x 104, 116 (4th Cir. 2001) (unpublished). Th e policy change in Garrison Valley Ctr. concerning break periods was identical to 3 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 a n h o u r l u nch, the Board held that Garrison Valley Center, Inc. “violated Section 8(a)(5) and (1) of the Act by

. . . unilaterally changi n g th e l u n c h 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 Bo a r d ’ s finding that a material unilateral change in break policy occurred is without merit. The new policy was enforced against employees. Mario Navarro

w a s f i red, in part, because he aggregated his breaks. Though he was 4 terminated in June 2006, long after the July 2005 settlement that rescinded the

new break policy, Supervisor Gonzales admitted th a t he terminated Navarro

For brevit y’s sak e, the ter m “p olic y change” is use d as sho rth and for “disc rim inati on 3 in regar d to hire or tenu re of em plo ymen t or any ter m or conditio n of em plo ymen t to enco urage or dis cour age me mbe rs hip i n a ny l ab o r o rganizat ion

. . . .” 29 U. S. C. § 158( a)( 3). The wo rd “p olic y” doe s not app ear in the te xt of 29 U .S .C. § 158. The brie fs andBoardd ecis ions of ten ado pt this sho rth and, how ever. For exam ple , the NLRA can be violat ed wh en an unenf orc ed wo rk plac e pol icy sud denl y beco me s enf orc ed. This is not a pol icy change but a change in the ter ms andc ondi tio ns of em plo ymen t.

Contr ary to EPE’s allegat ion, the Board did not “e nt i r e l y” rely on Navarro’ s 4 ter mi natio n wh en det erm ining that E P E unilaterally ch anged its rule s regar ding me ter read er brea ks

. This wa s one of se veral fac tor s, along wi th, f o r exam ple , an expli cit cre dit ing of Cama cho’ s tes tim ony, cons ide redby the Board

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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 sever a l m o n th s . Though employees stopped taking their breaks separately several months after G o n z a les 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 t e s timony was credited by the ALJ, and thereafter adopted and upheld by the Board. Contrastingly, the ALJ heard Galindo’s testimony and specifically discredited it, dete r m i ning that Galindo’s memory was “not trustworthy,” an d 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 c r e diting 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 ch an ge d it s b re ak 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 reaso n s f o r 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 vi o l ation of the break policy but

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instead was based on Navarro leaving his work area i n a c o m p a ny vehicle for personal reasons wi th o u t 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, subs t a ntial evidence supports the Board’s determination that Navarro was fired in part based on the unlawfully changed break policy. In

r e a c h i n g its decision, the Board relied on EPE’s own admission that, “i t 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 reco n n e c t 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 unilat er al policy change. The Board held in Great Western Produce, Inc. , 299 N.L.R.B. 1004, 1005 (1990) , overruled on othe r gro u n ds b y 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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An employer that refuses t o b a rgain by unilaterally changing its employees’ terms and conditions of employment d a mages the union’s status as bargaining representative of the unit employees. That st a t u s i s 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 H o s p. Corp. , explaining that, “if [management’s] unlawfully imposed rules or poli c i e s w e re 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 *1 3 (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 , th e B o ard 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 n o t address whether the unlawful

reason mus t b e the sole reason for discipline because the employees at issue

EPE’s reli ance on Anhe use r Busch, Inc. , 342 N. L.R. B. 560 (200 4), re m a n ded by 414 5 F.3d 36 (D .C. Cir. 2005) , dec is ion sup plem ented by 351 N. L.R. B. 644 (200 7), is m i sp lace d. Anhe use r Busch conc erne d em plo yee dis cip line for mi sc ondu ct that wa s uncove red in an unlaw ful way. Id. at 561. Anheus er Busc h ins tall ed surveillan c e c ame ras in thei r fac ility wi thou t bargain ing wi th the union. Id. at 560. Later , em plo yees we re dis cip lined for violat ing unalt ere d and pr e-e xist ing plan t rule s unrel ated to the cam era s ; t he cam eras me rely uncove redthe mi sc ondu ct. Id. at561

. The Board heldthat the re w as “an ins uff icie nt nexus

. . . betw een [Anhe use r Busc h’s ] unlaw ful ins tall atio n and u s e o f t h e cam eras and the e m p l o yees ’ mi sc ondu ct to wa rra nt a mak e-w hole rem edy. ” Id. The Board als o expli cit ly dis tinguis hed cas es lik e Anhe use r Busch wh ere the unilat eral change “did not conc ern any rule that the em plo yees we re dis cip lined for violat ing” fr om ins tanc es , lik e the pr es ent cas e, wh ere the change “w as to the very pol icy unde r wh ich the em plo yeesw eredisc harged .” Id.
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were solely disciplined for vio l a t i n g the unilaterally changed rules. Id. at 824. It merely addressed what relief should be given to employe e s who are fired as

a result of an unfair labor practice in vio l ation 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 Boa r d r ej ected the Union’s claims, finding that the

nurses were not fired, even in part, b e c a u s e o f the unilateral change (the transfers of employees); they were fired for failing to cooperate and perform adequately on ce in their new positions. Id. In a footnote, the B o a r d e x p lained in dicta that Boland’s assertion that discipline only vi o lates the NLRA if it is

s o l e ly 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 l aw shoul d b e a dopted rather than controlling precedent holding the opposite but did not develop the issue because it still would have concluded that the discharges were law f u l u n der Great Western ’s analysis because “they were caused solely by the inability of the nurses to perform.” Id. 6

Not ably, the dis se nt in Essex Va lley Vi si ting Nurses wa s car efu l to dis agree even wi th 6 the foo tnot e dic ta and acc urat ely cit ed thr ee cas es that expla in that an unlaw ful change need only be one fac tor sup porting the dis cip line: Fla mbe au Ai rm old Corp

. , 334 N. L.R. B. 165, 167 (200 1) (a pp lying Grea t We ster n Produceto hold th at thenew w orkrequir em ent w as a fac tor in the em plo yee’s dis char ge and, thus, the dis char ge violate d § 8(a) (5) ); Conse c Secur ity , 328 N. L.R. B. 1201, 120 2 ( 1999) ( det erm ining thatthe firing w as mo sts ignif icant ly ba se d on the unlaw ful change in pol icy and thus violat ed the NLRA); and Grea t Wes tern Produc e, Inc. , 299 N. L.R. B

. 1004. Essex Va lley Vi si ting Nurses , 343 N. L.R. B. at 824–25 (M ember Wals h, dis se nting)

. As the dis se nt explained , “G rea t Wes tern requ ires that the unilat eral act ion be a fac tor in—n ot the dir ect caus e—o f the dis char ge, and the wo rd ‘m ay’ now here app ears in the Grea t Wes tern tes t; if the unilat eral act ion is a fac tor in the dis char ge, the dis char ge violat es Sec tio n 8(a) (5)

. ” Id

. T h is, again, has been the Board ’s announc ed legal pos itio n app lied rec entl y in San Miguel

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Thus, because Navarro was terminated in part for violating an unlawfully changed policy, we affi r m the Board’s determination that Navarro was improperly terminated. D. Change in Disciplinary Procedure Next, the Board determined tha t 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 I m p rove m e nt Plans (“PIPs”) to put CSRs on notice that their continued tar din e s s would subject them to discipline if their schedule adherence did n ot improve. 7 EPE first claims that no policy change resulted from the issuanc e of the PIPs because the PIPs merely required employees to arrive at work on time and avoid

u n e xc u s e d absences, requirements that EPE had always had. According t o EPE, PIPs were only used to remind certain CSRs of EPE’s policy regardi n g 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 c o n t i n u i ng 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 u se 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

Ca rra sc o and Valde z expla ined that “s chedule adhe renc e” me ant abs ente eis m and 7 tar dine ss . Valde z als o tes tif ied that it inclu ded the fai lure to adhe re to brea k and lunch tim e sc hedu les

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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 C S R ’ s t a r diness or

ab s e nces. CSR Linda Montes testified that after Carrasco was told that she needed to “start cracking down on employees” i n J a n u a ry 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 sup ervi s or an d 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 giv e n f o r any problems unrelated to work performance, including being late or absent. Human Resources’ policy r e m a i ned in place even after Carrasco specifically requested in 2002 that she be allowed to use PIPs to deal with absenteeism and tardiness. The only d o c u m e n t 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 b e c au se he was absent or tardy. Romero had no issues w i th 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 c u s t omer 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 th e s e problems is related to work

Aft er being ques tio ned about the PIPs, Carra sc o wa s ask ed during the hearing, 8 “[y]ou’ve ne ver putan em plo yee on any kindof a proba tio nary periodot her than wh at we ’ve dis cus se d heret oday. Is thatright?” S he res pond ed thats he had not. 14 Case: 10-60771 Document: 00511860901 Page: 14 Date Filed: 05/18/2012No. 10-60771

performance and thus, would have allowed a PIP t o b e i s sued under Human Resources’ policy prior to 2006. Romero’s work development p l a n o n ly was issued afte r m u l t i ple meetings in the preceding months and a “fact finding inquiry c o n du cted 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 resu l t 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 E P E ’ s normal company disciplinary procedure whereby m an a ge m e nt c oul d i s s u e

an i nformal verbal warning followed by a written warning, a suspension, and 9 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 resul t 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 termi n a t i o n 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 probatio n a n d “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

Carras co tes tif

iedthat thes e w rit ten warnings w erec ons ide redt o b e disc ipl ine. 9
15 Case: 10-60771 Document: 00511860901 Page: 15 Date Filed: 05/18/2012No. 10-60771

t o a C S R wh o was excessively absent or late.” The institution of PIPs after a change in policy by Human Resources is a significant change f r o m th e 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 sy s t e m 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. 19 7 1 ) ; N LRB

v. Miller Brewing Co. , 408 F.2d 1 2 , 1 6 ( 9 th 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 c h a n g e from

an oral to a written s y s t e m , the Respondent did not impose discipline more harshly.” In re Golden Stev e doring Co., Inc. , 335 NLRB 410, 415 (2001). In addition, Supervisor Valdez testified that, at the time of his testimony, all of the PIPs issued i n 2 0 0 6 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 dis c i p l i n ary 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 ( 19 76), and Crittendon Hosp. , 342 NLRB 686 (2004), asserting that the issuance of PIPs for absenteeism and tardi n e s s was part of the flexibility granted to management to fashion innovations in order to promote a more efficient work fo r c e . T ra ding Port

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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 Portand Wabash Transformer Corp. , 215 NLRB 546 (1974), from cases where “new penalties [were] imposed f o r low productivity” or a “new form of discipline” was imposed. Trading Por t , 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 n o t if ication and bargaining with the statutory bargaining representative.” Id. (citing Amoco , 211 NLRB at 622–23). In Crittendo n , th e B o ar d 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, sub s t antial, and significant” change because no

e vidence was presented that any of the impacted nurses wore acrylic o r decorated nails. Thus, there was no evidence th a t th e 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 imp a c t e d CSRs. EPE used PIPs to place CSRs on probation and immediately put those CSRs at risk for termination without first receivi n g a verbal warning and a written warning. Fi n a lly, Carrasco testified that she did not discuss her decision to b e gi n using PIPs for issues unrelated to work pe rf o r m a n c e with anyone other than Human Resources. EPE stipulated that, “the [ P I P s ] w ere issued without affording the Union an opportunity to bargain with [EPE], without prior notice to the Union and witho u t affording the Union an opportunity to bargain with [EPE] with respect to the notices.”

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Therefore, we affirm the Board’s c o n c l u s i o n that the use of the PIPs

without notic e an d b ar gaining unilaterally altered EPE’s disciplinary procedure, violating the NLRA. We also affirm the Board’s determination th a t the PIPs issued to Atonya Watson, Delma Gon z ales, Lucy Flores, Pat Cruz, and Mary P e rryman 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 workin g o n fellow CSRs’ accounts and unlawfully imposed discipline on three CSRs pursuant to that policy. In doing so, it found that EPE had no preexisting pol i c y p rohibiting 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
p r e v e n t ing CSRs from working on the accounts of their friends. EPE asse rt s that the employees who were disciplined f o r 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 h av e b e e n 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 h a d th e au thority to modify EPE

c u s t o m e r b ills, 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 a g a inst CSRs working

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on their “personal account, relatives or friends,” co-workers w e r e not included

as a prohibited group in the written policy. As Carrasc o a c k n o w l edged, there

was no written policy preventing CSRs from working on co-workers’ accounts. 1 0 Ultimately, the B o a r d 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, 200 6 , E P E 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. EPE claims that during the intervening 1 1 month between the announ c e ment and the closure, EPE’s Labor Relations Specialist Manuel Hernandez (the management liaison to the Unio n) a n d the Union’s Business Manager Felipe Salaza r bargained over the effects of the closure.

Not ably, the Board cons ide red Carra sc o’s unsu pp ort ed clai m that she pr evious ly had 1 0 giv e n writt en warnings to tw o CSRs for wo rk ing on othe r CSRs ’ acc ount s, yet dis cre dit ed it as lacking any evid enti ary valida tio n. Theac tual clos ure of the Chelm ont fac ility is no t at iss ue in thisap pea l. 1 1
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Management has a duty to bargai n o v e r the effects of closing a facility. First Nat. Maint. Corp. v. NLRB , 452 U.S. 666, 679 n.15 ( 1 9 8 1 ) ; s e e also E.I. DuPont de Nemours & Co. v. Sawyer , 517 F.3d 785, 793 (5th Cir. 20 0 8) ; Local 2179, United Steelworkers of Am. v. NLRB , 822 F.2d 559, 570 n . 1 5 (5th Cir. 1987). “[U]nder § 8(a)(5 ) , b a r g a ining over the effects of a decision must be conducted in a meaningful manner and at a meaningful time, and the B o a r d 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

e f f ects of the closure, we focus on two key issues: (1) when managemen t f i r s t notified th e u n i on 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 o n [management’s] communications to and bargaining with the union.” Id. at 794. Though management d o e s n o t need to agree to the union’s proposals, management is required to “meet with the union, provide information necessary to the u nion’s understanding of the problem, and in good faith consider any proposals the union advances.” United Steelworkers ofAm. , 822 F.2d at 679 n.17. Based on the record before us, we conclude that there is subs t a n t i al evidence to support the Board’s determination that EPE did not m e aningfully bargain over the effects of the closure o f the Chelmont facility. EPE VicePresi d e nt Kerry Lorre indicated that no Union representative was part of the discussion concerning the facility’s closure o r the transfer of employees. Discussions concerning the Chelmont facility began in April 2005 without Union inclusion. According to Hernandez, the Chelmont closi n g a n d 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 c o n t a c t e d. Lorre testified that she met with Supervisor of the

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Chelmo n t f

a cility Rose Lowe to determine where employees should be reassigned. Lorre could not remember when the decision concerning employee transfers was made b u t t estified 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 th ree 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 obj e cted 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 custom e r s e rvice facilities in Faben, Texas and Anthony, New Mexico. He also objected to transf e rr ed 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 w e r e s l a ted 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 betwe e n S a l a zar and Hernandez, Hernandez notified S a lazar 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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the complaints concerning the transfers could be discussed and consi d e r e d

. Ul t imately, EPE never discussed that it would consider making nor offered t o make concessions to the Union concerning the effects of the Chelmont closure; EPE’s initial proposal remained unchanged f ro m th e ti m e of it s initial conception by EPE administrators until implementation. In the end, the Board ’ s d e c i s i on that the closure violated the NLRA was based on a credibility determination developed in the e xtensive 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.” Specifically, 1 2 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. Hernandez responded 1 3 to S al a z ar’ s c o ncern about training saying that the transferred em p loye e s “b ett er

TheBoa rdexp lainedthat: 1 2 H e r nande z sai d that the tra nsf err ed em plo yees wo uld get only 3 we ek s o f tra ining and they had bett er cat ch on. He rnand ez mad e it clea r that thes e mat ter s we re not subject s for dis cus sio n sin c e the dec isi on to clos e Chelm ont wa s a busi nes s de cis ion. Salaza r sai d it wa s unfa ir to give t hemonly 3 w eek s of tra ining wh e n o t h e r new em plo yees rec eived 3 mo nths tra ining. Salaza r call ed He rnand ez again in Februa ry 2006 and tri ed to get him to bargain about the iss ues surround in g t h e e f fec ts of the Chelm ont clos ing and He rnand ez ref use d to talkt o S alazarabo ut the iss ues . Altho ugh the iss ue s r e garding em plo yees ’ vacat ion conf lict s we re sat isf

act oril y 1 3
res olved to allo w the em plo yees to tak e thei r sc hedu led vacat ions , and altho ugh thr ee em plo yees wh o had expres se d so me conc erns over their res pec tive trans fer s were ulti mat ely s a t i sf ied wi th the tra nsf

ers , ther e we re num ero us othe r eff ect s of the Chelm ont fac ility’ s clos ure that did im pac t t r ans fer red em plo yees but we re not subject to bargain ing. The Chelm ont fac ility, unlik e the El Paso fac ility, wa s a wa lk -in fac ility rather than a call cent er. As a res ult, the El Paso fac ility had mo re regula tio n of em plo yee act ivity and requ ired em plo yees to wo rk late shift s one or tw o days each we ek

. The El Paso fac ility als o did not have f r ee parki ng and had les s fle xible vacat ion sc hedu ling. Additio nally, Chelm ont em pl o y e e s wo uld only rec eive tw o or thr ee we ek s of tra ining wh ile all othe r El Paso CSRs rec eived thr ee to six mo nths of

t raini ng. 22 Case: 10-60771 Document: 00511860901 Page: 22 Date Filed: 05/18/2012No. 10-60771

catch on.” When Salazar told Hernandez that he wou l d f ile a charge against E P E , Hernandez told Salazar to “do whatever you have to do.” This court ha s held that, “[i]n determining whether the Board’s factual findings are supported by the record, we do not make credibility determinations or r e w e igh the

e vidence.” 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 su p p o rted by enough relevant evidence that a reasonable mind may accept that evidence a s a d e quate to support the decision. In sum, Salazar, and therefore the Union, were only giv e n seventeen minutes notice about the closure of the facility and a few hours notice about the transfe r s before employees were informed. Although Salazar objected to the transfers, Salazar and the Union were not given a c h a n c e meaningfully to discuss these changes before they were officially announced. There is no evidence that EPE consi d e r e d 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 col l e ctors 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 conditi ons of employment, as are uniform and meal allowances, longevity pay, and premium pay for overtime.” Pine Brook Care Ctr. , 322 NLRB 740, 748 ( 1 9 9 6) (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 i n spection before new boots were

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issued. It f

o u n d 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 M et er Re a der an d C oll ector Supervisor Debra Duran for reimbursement. Collec t o r Janet Hallsted testified that meter readers and collectors would receive eith e r an email from Field Analyst Art Sanchez or a message would be posted on the facility’s dry erase board by Duran telling meter reader s a n d c ollectors 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 m e . D D , ” e f f ectively 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 i n th a t manner, no.” Duran’s admission matches the t e s t i m o ny of Hallsted. In addition, Duran testified that, at one 1 4

EPE argues that Ha lls ted ’s tes tim ony wa s unde rm ined by a Februa ry 2005 pol icy 1 4 st atem ent dis tribute d by Du ran. Ho we ver, Ha lls ted tes tif ied that t h e F eb ru a ry 2005 s t a t e m ent did not mak e app roval of an em plo yee’s new boot s contingent on the conditi o n o f the em plo yee’s old boot s, unlik e EPE’s 2006 pol icy change. In additio n, EPE als o clai ms that Ha lls ted’s tes tim ony is further unde rm ined by her fai lure to reques t new boot s in July 2006. 24 Case: 10-60771 Document: 00511860901 Page: 24 Date Filed: 05/18/2012No. 10-60771

point prior to the policy change, she had allowed employees to be reimbursed for

a second pair of boots though they had j ust 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 unreas o n ab l e or s elf

- c o ntr a dictory,’”

we will not disturb the Board’s decision to credit Duran’s initial testimony rather than her later contra di c t o ry testimony. Cent. Freight Lines , 666 F.2d at 239 (quoting Proler Corp. , 635 F.2d at 355). She also admitted that she n ever had discussed her authorization of boot replacements with the Union. We affirm the Board’s decision with respect t o th e existence of a unilateral boot allowance policy change. 1 5 Second, we reject EPE’s argument th a t 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 discour a gi n g nurses from having acrylic or artificial nails to banning the nails. 342 NLRB at 686. The Boar d i t self 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 Ha lls ted tes tif

ied that she did not requ es t boot s in July 2006 beca use she did not rec eive an em ail or se e a dry eras e boar d me ss age info rm ing her that rec eip ts need ed to be tur ned in, as wa s the norm al pr actice.

EPE poi nts to Du r a n ’ s rec ord s to cont end that she had ins pec ted boot s bef ore 1 5 reim burs ing me ter read ers . Though the rec ord s lis t wh en each me ter read er rec eived new boot s and sp ecif

ic det ails about the st yle, brand , price, dat e iss ued, and size of each new pair , the rec ord s only d o c u m e n t t h e char act eris tic s of the new ly pur chas ed boot s. There wa s no tes tim ony f

romD uran thatthe conditio n o f the oldbo ots w as part of thes e r eco rd s. 25 Case: 10-60771 Document: 00511860901 Page: 25 Date Filed: 05/18/2012No. 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 th e pay period from beginning on Sunday and ending on Saturday to b e gi nning on Sunday and ending on Monday in order to standardize p ay periods across the parent company and to p r e p a re for Y2K was not a material, substantial, and significant change to the terms and conditions of employment. 339 NLRB at 1 214–16, 1220. The Board found, based on employee testimony, th a t th e company fixed any impact on employee vacations, there w a s n o reduction of work h o u r s , 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. I n b oth Crittenden Hosp

. and McClatchy Newspapers , therefore, the Boar d deter m i n e d th at 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 th e ir e m p l oyment change due to the new po l i c y . 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 reader s w o r e, 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 po l i c y , d o e s 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 Ab e yt a ’ 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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is a change from approval of new boots irrespective of old boo t s t o a policy in which m a n a g e m e nt must determine if meter readers qualify. Under the new policy, th e m eter readers would have to change their practice of simply submitting receipts. Each employee would have to undergo a n i n s pection by Duran, and n e w b o o t s would not be guaranteed twice a year. As the Board concluded, based on an adequate factual record we cannot ignore, “[e]mployees could n o l o n g e r merely submit their boot receipts but now had to prove to Duran’s satisfaction that they needed new boots.” W e c a n n o t 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 h o l di ngs is supported by substantial evidence; therefore, we AFFIRM.

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EDITH BROWN CLEMENT, Circuit Judge, dissenting in part: This case provides six examples of why compan i e s s t ruggle to remain competitive and efficient when they are u n ab l e t o enforce basic rules of the workplace under the fear of being sued for labor violation s . B e cause I do not believe El Paso Electric (“EPE”) “effect[ed] a u nilateral change of an existing t e r m or condition of employment” with respect to any of the six challenge d 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 th ere are no direct consequences when those employees decide to simply ignore the suggestion after a short p e riod of time, has the employer unilaterally changed a c ondition of the employees’

e m p l o yment? Unlike the conclusion reached by the majority, I think not. A request or sugge s t i on 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 re a d ers 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. This is borne out by the actions 1 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

Altho ugh the ALJ did not cre dit Ga lind o’s tes tim ony, Ga lind o wa s not the only per so n 1 othe r than Cama cho to tes tif y that the em plo yees we re not requ ired to change wh en they too k thei r brea ks

. Two me ter read er sup ervis ors , Gr eg Go nzalez and John Robine tte both tes tif ied that me ter read ers coul d alw ays tak e thei r brea ks wh enever they chos e and the me ter read ers we re never pr ohibit ed fr omaggre gating thei r lunch and brea k tim es . 28 Case: 10-60771 Document: 00511860901 Page: 28 Date Filed: 05/18/2012No. 10-60771

“kind of died out.” Without asking if it was permitted, and notably, without being disciplined for not complying with the a l l egedly changed policy, the meter readers coll e c t ively chose to return to their prior practice of aggregating their breaks at the end of the day. Despite the majority’s stateme n t th at this alleged policy change “was id e n t i c a l 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 ( 1 9 7 9) , the situation here is not “identical.” While the general c o n c e p tual issue may be similar—whether employees could aggregate their lunch and two b r eak time s—the ALJ in Garrison Valley found “[t]he housekeeping personnel were required to take a 30 min u t e l u n c h 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 f a c t th a t the meter readers were ultimately able to ignore the sug g e s t i o n without repercussions. EPE, or any other employer, has not unilaterally changed an existing condition of employmen t simply because a supervisor makes a suggestion or recommendation t o a group of employees who choose to follow the

r e commendation for a short period of time but face no consequences o r disciplinary actio n wh e n they later choose to ignore the recommendation. Stated in terms of the e vi d e n c e , 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 conclu s ion that Mario Navarro’s termination was a violation o f th e N LRA is primarily based on precedent that, because EPE acknowledged that Navarro was terminated in part b e c a u s e 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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the cited precedent if EPE had unilaterally changed the break time po l i c y . 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 t ook a company truck to attend to personal matters at his new residen c e a n d Gonzalez also testified that “it was not uncommon for him to authorize meter readers to take a company t ru c k du ring 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 pers o n a l b u s i n e ss was a new or unilaterally changed policy. A d di tionally, it was undisputed that Navarro was not authorized t o reconnect electric service at his new residence. In s t e a d , th e General Counsel argued that because the primary reas o n f o r the rule against unauthorized reconnections is to prevent th eft and because Navarro had put in an order to reconnect service, there was no theft concern and his actions w ere thus a non-issue. Yet the testimony established that a n o th er employee had been assigned to turn on the electricity at the house and when she arrived to perform the reconnection, she discovered that Navarro h a d 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 b a s i s for the rule against unauthorized reconnections or not, the fact remains

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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 meeti n g a s a senior corporate executive—is a basic requirement everyone should learn early in life. When you do no t s h o w u p on time, you learn that there may be consequences for being tardy, some expected an d 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 repriman d ed, and possibly even being expelled or terminated if you are continually tardy. Th e G e n er al C oun s el argued that this basic requirement, and the pot e nti al
consequences that go with it, apparently di d n o t a p ply 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 coul d s e rv e customers in their jobs answering p h o n e 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) ther e

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was no prior reco r d 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 t o th e B oard’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 w ri t t en 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. Th e use of PIPs was also not necessarily new. While EPE h a d n o t regularly used PIPs befor e C a rr a sco issued them to the six CSRs, EPE had previou s ly 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 majori ty a cknowledges that

one of the five issues addressed in the Plan was that the s u p e rvisor 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 employee s a re 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
que u es until one of the representatives who is at work when he is supposed to be can answer the calls.

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Furthermore, the Board’s finding that the PIPs “ e s sentially” 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 a n d conditions of their jobs as CSRs were impacted, nor did any of the PI P s re s ult in any further actual disciplinary actions. While the General C oun s el argued it is “ difficult to comprehend how placing employees on probation for several months, with the looming threat of discipline inclu din g t er min atio n , 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

“p r obation.” Regardless of whether the CSRs received a PIP or not, e a c h 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 B o a r d ’ 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 th e t e s timony of seven CSRs that they understood this policy. And for goo d 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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If the evidence consisted solely of the testimony that there was no written policy prohibiting C S R s f r om 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 evidenc e . H o w ever, 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 expl i c i t u n disputed written terms. Whether the employees admitted th a t they knew about an explicit rule against working on co-workers accounts or not, there was evidence they at least understood the possibl e consequences of the common sense rule that a co-worker can also be a friend, as there wa s e vidence 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 clea r 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 corr ectly and succinctly stated that the CSRs had viol a ted company policy: “The Company determined you violated Company and de p art m e nt al p olicies.” 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 disc i plined. 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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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 E P E 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 representativ e 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 effectsof the closure. 2 A review of the record paints a far differ e nt p i c t u re than the Board’s unsupported conclusion that EPE refused to bargain o v e r 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 addr e ss 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 compla i nt s , ” the majority acknowledges in a later footnote that complained-of issues regarding the effects o f th e closure and resulting job transfers on employees’ vacation “were satisfactorily resolved to allow the

The majo rity’s att em pt to paint EPE’s com mun ications in a negative light by poi nting 2 out tha t the unio n was “only given sevent een mi nute s notice abo ut the cl os ure of the fac ility and a fewho ursno tic e aboutthe tra nsf ers be for e t he em plo yeesw ereinfor me d”is sim ilarly im mat eria l to this app eal. The Board rem ande d the ques tio n of wh ethe r the dec isi on to clos e the fac ility wa s subject to bargain ing and ther efo re it is unde ter mi ned wh ethe r the union wa s enti tle d to any advanc e wa rning wi th res pec t to that dec isi on. With res pec t to the tra nsf ers , the rele vant tim e period for bargain ing wi th res pec t to the tra nsf ers as an ef

fe ct of the dec isi on to clos e Chelm ont is not the few ho u r s b e f o r e the em plo yees we re info rm ed beca use the dec isi on to close the facili ty and the need to trans fer the empl oyees is effe ctively one and the s a m e . That is, EPE coul d not dec ide to clos e the fac ility wi thou t off erin g a sim u l t a n e o u s pr opo se d cour se of act ion wi th res pec t to the em plo yees of the Chelm ont fac ility. Inst ead , the rele vant tim e period for bargain ing wa s the inte rvenin g mo nth be t w e e n the announc em ent and the clos ure, w hich is exact ly w hen He rnand ez a nd Salaza r sp ok e m ulti plet im es . 35 Case: 10-60771 Document: 00511860901 Page: 35 Date Filed: 05/18/2012No. 10-60771

employees to take their scheduled vacations” and the “three employees who had

exp re s s e d s o m e c o nc ern s over their respective transfers were ulti m at ely s ati s f i e d 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 thre e w e e k s of call center training. Given the standard articulated in First Nati o nal Maintenance Corp. v. NLRB , 452 U.S. 666, 678 n.17 (1981), EPE did not have to agree to the union proposal but only

n e e d e d to “in good faith consider any proposals the union advances.” The testimony indicated that EPE did consider the union’s training proposal by determini n g that the three-month training period given to brand new EPE employees was not required for the Chelmont employees being transferred to the

c all center because the transferred employees already had significant exp eri e nc e 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 G eneral Counsel’s brief before this court, noting that “Hernandez agreed to look into” the issues raised about the transferred employees’ vacations—issue s th at , according t o Salazar’s own testimony, were ultimately resolved to the employees’ satisfaction. Other issues, such as two employees’ co ncerns about seniority as

a r e s u l t o f the transfers, cannot be held against EPE because the employees themselves told Salazar that they decided to “ a c qu i esce 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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submit objections about the proposed transfers on behalf of the affected CSRs, S a l a z a r n ever 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 t i me [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 s u p p o rt 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 tes tif i e d 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 th a t 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

m e s sage to remind the meter readers to come see her to get approval for boot replacements. But the reason she had never ne e d ed 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 remindin g meter readers to

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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, th e 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 e vi d e nce 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 B o ard’s finding or the argument in its brief. Nor does the General Counsel make any connectio n b e tween the sending of this alleged email by field analyst Sanch e z to any policy or course of action by

s u p e rvisor Duran with respect to boot reimbursement—it is not even cle a r 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 fi e l d a nalyst 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 r e ceived

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 b y p ointin g out that the spreadsheet does not indica t e th e c o ndition of the old boots and the r e fore calls into question whether Duran inspected employees’ boots before reimbursing the purchase of new boots, the f a c t r e m a i n s that if she had only received receipts for b o o t p urchases without visually inspecting the meter readers’ boots, it is unlikely she wou l d h av e been able to collect this detailed data. Furthermor e , Duran was able to visually identify the boots worn by the

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meter readers when she saw the m du ring 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.” Howev e r , th e 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 i n c o nv enience or change to operating procedure results in a labor violation as a change in “terms and conditions of employment” i n l i gh t of the fact that there was no evidence that Duran actually denied any specific emplo y e e ’ s r equest for new boots, employers effectively h av e no control over how to manage their day-to-day business operatio n s . Th i s is particularly evident, given the standard in In re McClatchy Newspapers , 3 3 9 N LR B 1214 (2003), where, as here there was no testimony that any employe e w a s actu ally, as opposed to “effectively” or possibly, affected by the allegedly changed policy. [T] h e c h a n ge in payroll caused no reduction of work hours and seemed to be “purely for internal bookkeeping purposes.” The General Counsel presented no evidence that th e c hange affected employees after it was put in place. F o r 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)). Th a t is,

even without any evidence of actual har m o r effect, the majority endorses a finding that requiring meter readers to show their boots before being rei mb ur sed is a material, substantial, or significant change in employment. Because there i s n o t substantial evidence to support such a conclusion and, even if Dura n ’ s 39 Case: 10-60771 Document: 00511860901 Page: 39 Date Filed: 05/18/2012No. 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 er a i n which unions were the necessary, staunch defenders of e m p loyee rights in the face of abusive, domineering, and exploitive employers. Where unions once protected employees from dangerous working condi t i o n s 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 per s onal business without approval and improperly

c o nn ected his own electric service; “refusing to bargain” despite trying to addre s s employees’ conce r n s 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 def e n s e s to l ab or violations, respectively. Companies are then overly constrain e d 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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