NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
El Paso Electric Company and
International Brotherhood of Electrical Workers, Local Union 960, AFL–CIO. Cases 28–CA–19551 and 28–CA–20017
June 29, 2007
DECISION AND ORDER
By Chairman Battista and Members
Liebman
and Schaumber
The principal issues in
this case are whether the Respondent (1) violated Section 8(a)(1) of the Act by
impliedly threatening to discharge union supporters by suggesting that they
should seek other work if they were unhappy; (2) violated Section 8(a)(3) by
issuing an unsatisfactory performance evaluation to and later discharging
Cecilia Rodriguez, and by disciplining Sira Fanely; and (3) violated Section
8(a)(5) and (3) by unilaterally changing employees’ lunch schedules and
altering cashier shortage and overage limitations.1 Unlike the judge, we find that the General
Counsel has failed to show that the Respondent unlawfully threatened union
supporters or that the evaluation and discharge of Rodriguez were unlawful. We agree, however, with the judge that the
discipline of Fanely violated Section 8(a)(3).
We also agree that the unilateral changes described above violated
Section 8(a)(5), and we find it unnecessary to decide whether the changes in
employees’ lunch schedules also violated Section 8(a)(3).2
i.
background
The Respondent generates
and distributes electricity in
During the spring of 2004,
the
The alleged unfair labor
practices in this case relate to events at the Chelmont office between June 7
and September 29, 2004. During that
period, Gary Hedrick was the Respondent’s chief executive officer and
president. Judith
Kummrow was the Respondent’s manager for customer services for its outlying offices. Rose Lowe was the CSR supervisor of
the
Rosalba Vargas, Tanya
Walker, Angelina Ornelas, and Cecelia Rodriguez were CSRs at the Chelmont
office. Walker, Ornelas, and Rodriguez
were probationary employees until June 2004.
After their probationary period and review,
Walker and Ornelas were retained as full-time employees. Rodriguez was not.
ii.
the alleged unfair labor practices
A. The Alleged Violation of Section 8(a)(1)
After setting forth the
relevant testimony of several witnesses to this alleged violation, the judge
stated that she was “unable to determine which account” to credit. Despite her
inability to determine precisely what was said, the judge nonetheless found
that a statement made by the Respondent’s president, Hendrick, at a meeting
with the CSRs violated Section 8(a)(1).
We dismiss the allegation, for the reasons that follow.
1. Facts
On June 7, during the union
organizing campaign, President Hedrick spoke to 9 to 10 CSRs at the Respondent’s
Chelmont office. Hedrick began the meeting
with a discussion of his view of the historical role of unions. Although he praised the “proud and proper
place” of unions, he argued that most of the problems that originally prompted
the creation of unions had been solved.
Hedrick stated that the electric industry faced “a different environment
today than in 1930,” and that unions required “burdensome contracts” and were “slow,
cumbersome, and inflexible.” He stressed
that El Paso Electric was prepared to pay and treat employees fairly. He told them “they’re not going to get any
more fair treatment being represented by a union.”
Hedrick then opened the
floor to questions. According to witness
accounts, the rest of the meeting consisted largely of discussions between
Hedrick and employees Cecilia Rodriguez, Lisa Fanely, and Rosalba Vargas. Fanely spoke first, complaining about job descriptions
and announcing that she intended to vote for the
Rodriquez spoke after
Fanely. Rodriguez testified that she
began by telling Hedrick that her only exposure to unions was at her last job
(a bank) and that she wanted to know the pros or cons of unions. She then asked him whether the
The witnesses do not agree
as to Hedrick’s response. Several
testified, in effect, that Hedrick insinuated that if Rodriguez was unhappy
enough to want union representation, she should look for work elsewhere. Thus, Rodriguez testified that after she
raised the sick leave issue, Hedrick replied, “if I was so unhappy, I should go
back to where I came from.” Fanely
testified that after Rodriguez said that things were handled more
professionally at the bank, Hedrick said, “why don’t you go back where you came
from?”
Other witnesses, however,
testified that Hedrick simply wondered why Rodriguez left the bank if conditions
were favorable there. For example,
employee Vargas testified that after Rodriguez mentioned “things [like sick
leave] . . . were handled in a more professional way [at the bank],” Hedrick
responded, “Well, if it was so good there, why did you leave? Why don’t you just stay there?” Employee Ornelas testified that Hedrick asked
Rodriguez if she thought her union bank job “was so good . . . if you liked it
so much, why did you leave? Why are you here?”
Employee Munoz testified that after Rodriguez talked about working at a
more professionally run bank, Hedrick said, “if it was so good, why did you
leave?” Hedrick denied that he asked
employees, “Well, if you liked it so much there, why don’t you go back there?”
The judge did not resolve
this testimonial discrepancy by making a credibility determination; indeed, she
stated that she was unable to do so. She
found, however, that Hedrick unlawfully implied that employees who were
unhappy, or who wanted a union, should seek other employment.
2. Discussion
To determine whether a
statement constitutes a threat under Section 8(a)(1), the Board considers
whether, under all the circumstances, the statement reasonably tends to
restrain, coerce, or interfere with employees’ rights guaranteed under the
Act. Sunnyside Home Care Project,
308 NLRB 346 fn. 1 (1992). The Board has
consistently found violative employer statements that a union supporter who is
unhappy should seek work elsewhere. Such statements suggest that union support
or dissatisfaction is incompatible with continued employment. See, e.g., Paper Mart, 319 NLRB 9
(1995) (finding unlawful an employer’s statement that if employee was not
happy, the employee could seek employment elsewhere); see also Tualatin Electric,
312 NLRB 129, 134 (1993), enfd. 84 F.3d 1202 (9th Cir. 1996); Rolligon Corp.,
254 NLRB 22 (1981); Stoody Co., 312 NLRB 1175, 1181 (1993).
In finding Hedrick’s
remarks unlawful, the judge apparently reasoned that, regardless of which
witness’ version of those remarks was the most accurate, the effect of all of
the versions was that employees should return to a former job or find another
job if they were unhappy. We disagree,
because some versions of Hedrick’s statement cannot reasonably be so
construed. According to Vargas, Ornelas,
and Munoz, Hedrick simply asked Rodriguez why she left her unionized job at the
bank if things were so much better there.
That is not a suggestion that Rodriguez, or any other employee, leave
the Respondent’s employ. It is merely a
way of underscoring Hedrick’s central point, that union representation would
not materially benefit the CSRs, by implying that if conditions were superior
under union representation, Rodriguez would not have left her job at the bank.
Thus, we are faced with
competing versions of what Hedrick said at the June 7 meeting; some are lawful,
and others are not. The judge professed
her inability to make a credibility finding, and we find no record evidence,
inherent probabilities, or reasonable inferences to be drawn from the record as
a whole that would enable us to resolve the conflict in the witnesses’
testimony.3
Accordingly, because we find the evidence to be in equipoise, the General
Counsel has failed to carry his burden to prove that Hendrick’s statement
violated Section 8(a)(1). See RC
Aluminum Industries, 343 NLRB 939, fn. 2 (2004). We thus shall dismiss this allegation.
B. The Alleged Independent 8(a)(3) Violations
The judge found that the
Respondent violated Section 8(a)(3) by terminating union activist Rodriguez and
disciplining another union supporter, Sira Fanely. For the reasons discussed below, we agree
with the judge that the discipline of Fanely was unlawful. However, we find that the General Counsel has
failed to show that anti-union animus was a motivating factor in Rodriguez’ discharge,
and we shall dismiss the allegation that her discharge was unlawful.
1. Facts
In early July, CSR
Supervisor Lowe evaluated Rodriguez’ performance and found it deficient in all
but 1 of 12 job performance areas. Lowe
gave Rodriguez these unfavorable ratings based on Rodriguez’ failure to complete
a 4- to 6-week training course at the Fabens office, time and attendance
problems, poor job performance, and workplace attitude, which was found not to
be conducive to teamwork.
On July 7, Lowe told
Rodriguez that she had not passed her probation and would not be kept as a
full-time employee. When Rodriguez asked
why, Lowe went through each item of her end-of-probation review. She also told Rodriguez she was not a team
player, did not get along well with others, and made working at Chelmont difficult.
On September 29, Lowe
issued Fanely a written disciplinary notice, which read in pertinent part, “You
have made statements and exhibited other behavior in the office that displays
dislike or anger towards others. You also openly resist coaching and
instruction from the office leadership.
This behavior is offensive, creates an uncomfortable work environment,
and is in violation of Company policy.”
Lowe also told Fanely she was rude, disruptive, defensive, negative, and
verbally abusive. Lowe said she had no
problem with Fanely’s work, but only with her attitude.
2. Discussion
Analysis of whether an
employer’s action against employees violates Section 8(a)(3) of the Act is
governed by Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other
grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under the Wright
Line test, the General Counsel has the initial burden of establishing that
employees’ union activity was a motivating factor in the Respondent’s taking
action against them. The General Counsel
meets that burden by proving union activity on the part of employees, employer
knowledge of that activity, and antiunion animus on the part of the employer. See Willamette Industries, 341 NLRB
560, 562 (2004) (citations omitted). If
the General Counsel makes this initial showing, the burden then shifts to the
Respondent to prove as an affirmative defense that it would have taken the same
action even if the employees had not engaged in protected activity.
The judge found that the
General Counsel satisfied his initial Wright Line burden by establishing
that the protected activities of Rodriguez and Fanely were motivating factors
in Rodriguez’ evaluation and discharge, and Fanley’s disciplinary warning. She found that the General Counsel proved
that Rodriguez and Fanely openly supported the
The judge also found that,
because many of its explanations were pretextual, the Respondent failed to demonstrate
that it would have taken the same actions against Rodriguez and Fanely
notwithstanding their union activity.4 She therefore concluded that the unfavorable
evaluation and discharge of Rodriquez and the disciplinary warning of Fanely
violated Section 8(a)(3).
The validity of the judge’s
conclusions depends on whether the record supports her findings of animus. Those findings cannot rest on Hedrick’s
statement to the CSRs on June 7, because—as discussed above—we are unable to
find that that statement was coercive.
However, we find that the evidence of pretext, together with other
testimony, supports the judge’s finding that the Respondent had an unlawful
motive in disciplining Fanely. By
contrast, we find insufficient evidence of pretext to support a finding that
the Respondent’s actions against Rodriguez were unlawfully motivated.
a. Fanely
We agree with the judge,
for the reasons discussed in her decision, that most of the Respondent’s
proffered reasons for disciplining Fanely were pretextual, and thus indicative
of unlawful motive.5 In addition, Manny Hernandez, one of the
Respondent’s labor relations representatives, told Union Business Manager
Felipe Salazar that the Respondent had made changes in the CSRs’ lunch
schedules to “straighten out” Fanely.
That statement, together with the pretextual nature of many of the Respondent’s
explanations for her disciplinary warning, suffices to establish that Fanely’s
union activities were a motivating factor in her discipline. And because most of its professed reasons
were pretextual, the Respondent has not shown that it would have disciplined
Fanely even absent her union activities.6 Accordingly, we affirm the judge’s finding
that the discipline violated Section 8(a)(3).
b. Rodriguez
We reach a different
conclusion with regard to Rodriguez.
First, there is no evidence of any statement analogous to that made by
Hernandez indicating that the Respondent was retaliating against Rodriguez for
her union activities. Second, we
disagree with the judge’s finding that the Respondent’s reasons for giving Rodriguez
an unsatisfactory evaluation and later discharging her were pretextual. We find instead that out of the numerous
reasons given for Rodriguez’ termination at most only one was arguably
pretextual.
The judge faulted the
Respondent’s citation of Rodriguez’ time and attendance problems as a basis for
its actions. But the record indicates
that Rodriquez did indeed have time and attendance problems. The judge conceded that Rodriguez “miss[ed]
more time than the other two probationary CSRs.” Garcia gave uncontradicted testimony that
Rodriguez was tardy “at least twice a week.”
And, contrary to the judge’s finding that “Lowe never told Ms. Rodriguez
that her time was a problem” before her discharge, Lowe testified that she told
Rodriguez during her 3-month evaluation that she “had to work [on] her
attendance adherence [and] schedule adherence.”
Further, Rodriguez admitted that she was chastised for arriving a
half-hour late on Tuesday when all of the CSRs were told to arrive early after
a 3-day weekend. Thus, Rodriguez was, in
fact, informed prior to her discharge that her tardiness and attendance were
problems.
The judge found the
Respondent’s reliance on Rodriguez’ error rate to be pretextual because
Rodriguez was “never informed her error rate was unacceptable.” In fact, Rodriguez admitted that Garcia
brought her mistakes to her attention “every now and then.” Garcia corroborated this testimony,
testifying that Rodriguez was “advised of [her] errors that are done.” Both Lowe and Garcia testified that Rodriguez
was warned about her errors in her 3-month review.
The judge also found the
Respondent’s citation of Rodriguez’ poor attitude to be pretextual. This finding was based in part on what the
judge apparently found to be a contradiction between the lack of any mention of
attitude problems in Rodriguez’ 3-month review and Lowe’s subsequent statement
that her “conduct at work the last six months has not been conducive to
positive, professional working relationships.”
We do not see a contradiction. The review covered only the first 3 months of
Rodriguez’ employment, while Lowe’s testimony was directed at a 6-month period. Further, Lowe’s testimony that at times
during the 6-month review period, Rodriguez’ attitude was a problem, is
consistent with his further testimony that Rodriquez “developed a negative
attitude” in the 3 or 4 months before her discharge. Accordingly, we disagree with the judge’s
finding that the Respondent’s reliance on Rodriguez’ poor attitude is evidence
of pretext.
Finally, the judge faulted
the Respondent’s reliance on Rodriguez’ failure to complete her training at the
Fabens office because of transportation problems. The judge found that, even after those
problems had been resolved, the Respondent failed to schedule Rodriguez for
training; thus, she found that the Respondent itself was responsible for
Rodriguez’ incomplete training.
Arguably, this suggests pretext.
However, the Respondent relied on numerous other reasons for its
actions, none of which we find to be pretextual. Indeed, the judge implicitly found most of
those reasons to be valid. Given the
abundance of valid reasons, we are unwilling to infer, from this one arguably
pretextual explanation, that the Respondent was motivated by antiunion
animus. Accordingly, we find that the
General Counsel has not shown that Rodriguez’ union activities were a
motivating factor in her evaluation and discharge, and we shall dismiss this
allegation.7
C. Unilateral Changes in Lunch Schedules
The judge found, and we
agree, that the Respondent violated Section 8(a)(5) by making unilateral
changes to the CSRs’ lunch schedule on August 23, 2004.8 The General Counsel cross-excepts to the
judge’s failure to find that those changes also violated Section 8(a)(3).
We find it unnecessary to
pass on this exception because finding the alleged 8(a)(3) violation would not
materially affect the remedy. To remedy
the Respondent’s 8(a)(5) violation, the judge ordered the Respondent to cease
and desist from making unilateral changes and to rescind the unilateral lunch
schedule changes. These provisions would
also be an adequate affirmative remedy for a 8(a)(3) violation. Our
Order also includes a provision directing the Respondent to cease and desist
from violating Section 8(a)(3) by discriminating against any employee for
engaging in union activities, in order to remedy the Respondent’s unlawful
discipline of employee Fanely. This
provision, in combination with the provision requiring the Respondent to cease
and desist from “like or related” misconduct, would serve to preclude the
Respondent from engaging in future misconduct such as unilaterally changing employees’
terms and conditions of employment for discriminatory reasons. Accordingly, our Order provides an adequate
affirmative and cease-and-desist remedy for the alleged 8(a)(3) violation.
ORDER
The National Labor
Relations Board orders that the Respondent, El Paso Electric Company,
1. Cease and desist from
(a) Unilaterally changing
terms and conditions of employment for employees in the following unit: All full-time and regular part-time customer
service representatives I, II, III and customer service-clerk-telephone center
at the telephone center at 100 N. Stanton, El Paso, Texas, and the outlying
offices including Chelmont, Fabens, and Van Horn, Texas, and Anthony, Hatch,
and Las Cruces, New Mexico.
(b) Issuing written
disciplinary warnings to or otherwise discriminating against any employee for engaging
in union activities.
(c) In any like or related
manner interfering with, restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act.
(a) Rescind the lunch hour
schedule and cashier shortage and overage limitations unilaterally instituted
on August 23, 2004, and notify the
(b) Make whole employees in
the unit, with interest, for any loss of earnings and other benefits that they
may have suffered due to the Respondent’s altered CSR lunch hour schedules and
cashier shortage and overage limitations instituted on August 23, 2004.
(c) Within 14 days from the
date of this Order, remove from its files any reference to the unlawful disciplinary
warning to Sira Fanely, and within 3 days thereafter notify her in writing that
this has been done and that the warning will not be used against her in any
way.
(d) Preserve and, within 14 days of a request, or
such additional time as the Regional Director may allow for good cause shown,
provide at a reasonable place designated by the Board or its agents, all
payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Within 14 days after
service by the Region, post at its
(f) Within 21 days after
service by the Region, file with the Regional Director a sworn certification of
a responsible official on a form provided by the Region attesting to the steps
that Respondent has taken to comply.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Wilma B. Liebman, Member
______________________________________
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice
To Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor
Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not unilaterally
change terms and conditions of employment of employees in the following
unit: All full-time and regular
part-time customer service representatives I, II, III and customer
service-clerk-telephone center at the telephone center at 100 N. Stanton, El
Paso, Texas, and the outlying offices including Chelmont, Fabens, and Van Horn,
Texas, and Anthony, Hatch, and Las Cruces, New Mexico.
We will not issue
disciplinary warnings to or otherwise discriminate against any of you for
supporting International Brotherhood of Electrical Workers, Local Union 960,
AFL–CIO, or any other labor organization.
We will not in any
like or related manner interfere with, restrain, or coerce you in the exercise
of the rights listed above.
We will rescind the
lunch schedule and cashier shortage and overage limitations we unilaterally
changed on August 23, 2004; we will reimburse any employee for any loss they suffered due to
these changes; and we
will notify the
We will, within 14
days from the date of the Board’s Order, remove from our files any reference to
the unlawful disciplinary warning to Sira Fanely, and we will, within 3 days thereafter,
notify her in writing that this has been done and that the warning will not be
used against her in any way.
El Paso Electric Company
Mara Anzalone, Esq., for the General Counsel.
Dan C. Dargene and
Jarrett R. Andrews, Esqs. (Winstead, Sechrest & Minick), of
Felipe Salazar, Business Manager, of
DECISION
i. statement
of the case
Lana H. Parke, Administrative Law Judge. This matter was tried in El Paso, Texas, on February 15 and 16, 2005,1 upon order consolidating cases, consolidated complaint, and notice of hearing (the complaint) issued November 19, 2004, by the Regional Director of Region 28 of the National Labor Relations Board (the Board) based upon charges filed by International Brotherhood of Electrical Workers, Local Union 960, AFL–CIO (the Union or the Charging Party).2 The complaint, as amended, alleges El Paso Electric Company (Respondent) violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). Respondent essentially denied all allegations of unlawful conduct.
ii. issues
1. Did Respondent independently violate Section 8(a)(1) of the Act by threatening to discharge or to make unspecified reprisals against employees if they engaged in protected activities?
2. Did Respondent violate Section 8(a)(3) of the Act by issuing an unsatisfactory performance evaluation to and discharging Cecelia Rodriguez on July 7, and by issuing a written warning to Sira Fanely (Fanely) on September 29?
3. Did Respondent
violate Section 8(a)(5) of the Act by promulgating and implementing changes
concerning the following terms and condition of employment without prior notice
to the Union and without affording the
iii.
jurisdiction
Respondent, a
iv. findings
of fact
A. Supervisory/Agency Status of Yvonne Garcia
Respondent employs about 66 customer service representatives
(CSRs) in several locations. About 44
work in the downtown
During the 2004 union campaign, Garcia handed out campaign literature for Respondent that explained what the company could do in the absence of a union. She also distributed “Payday” candy bars with a missing portion to represent how union dues decreased a paycheck.
B. Hiring and Training of CSRs in 2004
Prior to January 2004, in the Chelmont office, Respondent
utilized the services of several workers referred by a temporary labor agency
as cashiers. In 2004, Respondent did
away with all temporary positions, combined cashier and CSR duties, and hired
five full-time CSRs. Cecelia Rodriguez
(Rodriguez), who had previously held a temporary cashier position with Respondent
was among the five new hires whom Respondent employed on January 12, and was
assigned to the Chelmont office as were new hires Tanya Walker (
Respondent planned for Rodriguez, Walker, and Ornelas, seriatim, to attend 4 to 6 weeks of training at the Fabens office, a site 63 miles from Rodriguez’ home, where each could receive one-on-one training. Rodriguez attended training for 9 days, after which she experienced transportation problems. Respondent agreed that she could be the last CSR to attend training.4 Thereafter, Respondent sent Ornelas and then Walker for training. In mid-April, Rodriguez’ informed supervision that her transportation dilemma had resolved, and she was ready to go to training.5 Lowe told Rodriguez that Respondent would wait and see how the vacation schedule went before sending her to training. Lowe provided Rodriguez with training materials, and other CSRs helped Rodriguez under Lowe’s observation. Although Lowe did what she could to help her learn the job, Rodriguez reported to Lowe that she needed more training. Respondent never rescheduled Rodriguez for training at Fabens.
C. The Union Campaign
During the spring of 2004, the
There is no dispute that only CSRs Rodriguez, Sira Fanely (Fanely), and Rosalba Vargas (Vargas) spoke up during the question and answer period of the meeting with Rodriguez and Fanely being the most vocal. While witnesses to the meeting gave somewhat varying versions of Hedrick’s responses to questions, credible consensus establishes the following:
Of all the campaign meetings Hedrick held with CSRs, the
employee exchange in the Chelmont meeting was the most intense. To use Hedrick’s words, Rodriguez asked “lots
of questions very quickly,” and her interchange with him was “spirited” and “fast
and furious.” Relating a past experience
where a supervisor had forced her to stay at work although she was so ill she
later required hospitalization, Rodriguez, in Hedrick’s opinion, “kind of
dominat[ed] the meeting” with a repetitious discussion that frustrated
Hedrick. When Rodriguez admitted not
using internal company processes to complain, Hedrick said it was impossible
for Respondent to deal with problems of which they were not made aware. Rodriguez and Fanely, supported by Vargas
also brought up time off and equal treatment issues.6
Fanely said job descriptions should be updated because some CSRs were not being appropriately compensated. Hedrick encouraged employees to use company processes to address work issues. One of the three vocal CSRs said, “Well, but if you talk and it doesn’t get fixed, then an employee might . . . turn to the union as a last resort.” One of the three CSRs pointed out that the union had a grievance process. Fanely said she would vote for the union so that issues and grievances could be investigated outside the company.
Witnesses to the meeting dispute whether and/or how Hedrick responded to Rodriguez’ expressed opinion that conditions in her former unionized job had been better than those at Respondent. Vargas and Nora Munoz (Munoz), the latter of whom testified as a witness for Respondent, remembered Hedrick asking Rodriguez why, if work had been so good with her former employer, she had left. Rodriguez, Fanely, and Ornelas recalled that Hedrick asked why Rodriguez did not return to that job. Walker and Ornelas testified, essentially, that Hedricks told the CSRs that if they were not happy there, they could look for other jobs where there was a better work environment. Munoz recalled that Hedrick said a lot of people would like to work for Respondent, which she interpreted as notice that if employees did not like the conditions at Respondent, there were others to replace them. Hedrick denied telling any employee that she should return to her former employer.
I find that each employee witness attempted sincerely and candidly to recount all that she remembered of what was said at the meeting. The inability of these witnesses to recount the entire employee/management exchange at the June 7 meeting and the absence of completely corroborative testimony on every point is no basis for disbelieving individual recollections, and I do not discount any employee testimony. Given the differing versions of the meeting, I am unable to determine which account most closely reflects Hedrick’s statements. However, after considering all of the testimony and allowing for the reality that honest witnesses may recall parts but not the whole of what is said in a meeting, I conclude that Hedrick did convey to employees the message that if CSRs were unhappy with Respondent, they should seek other employment.
Witnesses to the meeting also disagree whether and/or how
Hedrick told Rodriguez, Fanely, and Vargas that he believed they would vote for
the
Both Lowe and Garcia were aware that Rodriguez and Fanely got upset with Hedrick in the meeting: following the meeting, Rodriguez told Garcia that she was displeased at how unprofessional Hedrick had been, and Lowe told Vargas she knew what had occurred in the meeting. About 6 weeks after the meeting, Respondent promoted Vargas to a CSR-2 position.
A representation election conducted by the Board on August
20 resulted in the certification and corrected certification on August 30 and
November 19, respectively, of the
All full-time and regular part-time customer service representatives I, II, III and customer service-clerk-telephone center [employees] at the telephone center at 100 N. Stanton, El Paso, Texas, and the outlying offices including Chelmont, Fabens, and Van Horn, Texas, and Anthony, Hatch, and Las Cruces, New Mexico.
D. The
July 7 Unsatisfactory Performance Evaluation
and Termination of Rodriguez
Sometime in March, Lowe and Garcia met with Rodriguez for her 3-month progress review. Lowe told Rodriguez she was doing “pretty good.” She praised Rodriguez’ performance in connecting customers and communicating effectively with them. She said nothing about any attitude problems but reminded her, as she did all employees, to watch her tardiness or “schedule adherence.” Rodriguez said she did not feel she had sufficient training to be comfortable in the job. Lowe said the best way to learn was on the job.
Beginning at least in March, Rodriguez told coworkers she did not like the way the Chelmont office was running, that she thought supervision showed favoritism to CSR Hilda Bautista (Bautista), especially with regard to attendance. On May 28, Rodriguez sent the following e-mail to Lowe, protesting denial of leave:
ROSE I KNOW I AM SUPPOSE[D] TO CHECK IN ADVANCE IF I CAN HAVE SOME TIME OFF. WELL I ASKED BACK IN APRIL IF I COULD HAVE THE 16TH OF AUGUST OFF FOR THE FIRST DAY OF SCHOOL. I WAS TOLD NO BECAUSE LUCY WAS OFF!
HILDA ASKED FOR JUNE 1ST & 2ND TODAY . . . IT WAS APPROVED! BY THE WAY SHE CALLED IN SICK ON WEDNESDAY I WAS OUT AND THEN SHE LEFT TODAY FRIDAY EARLY.
I AM VERY UPSET BECAUSE I AM ASKING ALMOST 3 MONTHS IN ADVANCE AND I GET A NO BECAUSE LUCY IS ON VACATION.
SOMETHING IS WRONG HERE. MAYBE WE NEED TO TALK ABOUT THIS WHEN YOU GET BACK.
Lowe responded as follows:
. . . I apologize for any confusion. I am always trying to do things to improve our operations, but it’s trial and error. I do not see a problem with you taking the 16th of August off and I will let the others know that it is possible to let more than one person off per office.
At the June 7 meeting with Hedrick, Rodriguez expressed negative opinions of CSR working conditions, as described above. Garcia heard Rodriguez complain to other employees about conditions at Respondent compared to her previous employment.
In early July, Lowe filled out “Probationary Employee’s 6-Month Rating Sheet” for Rodriguez, evaluating her in the following job performance areas as follows:
|
1.
Job knowledge: Does employee
know job requirements well? |
NO |
|
2.
Quality of work: Is quality of
work good? |
NO |
|
3.
Quantity of work: Is quantity
of work meeting standards? |
NO |
|
4.
Safety: Does employee try to
work safely and follow safety rules? |
YES |
|
5.
Initiative: Is employee a “Self-Starter”? |
NO |
|
6.
Dependability: Can you count on
the employee to follow instructions and to do what you expect? |
NO |
|
7.
Conduct: Does employee follow
conduct rules? |
NO |
|
8.
Punctuality: Is employee at
work on time regularly? |
NO |
|
9.
Cooperation: Does employee try
to work as a team member? |
NO |
|
10. Does
employee meet established standards regularly? |
NO |
|
11.
Has this employee been fully trained in his/her job? |
NO |
|
12.
Is employee making satisfactory progress in training? |
NO |
The attached explanation of the evaluation ratings, reads in pertinent part:
Ceci did not complete the [required] four to six weeks training at the Fabens office location. Although her training [was scheduled to] commence in January at Fabens, Ceci gave personal transportation problems as the reason why she could not continue. . . . By mid-March or April there still was no resolution so we began her training at the Chelmont office. This has been a slower process because customer activity at Chelmont is the busiest of all EPE outlying offices and inhibits and lengthens the training process. Meanwhile, the rate of errors in Ceci’s work and the level of assistance she needs to perform her duties affect EPE’s level and quality of customer service. She has not met the level of skill and knowledge expected within six months.
Shortly after employment, Ceci expressed her inability to report to work at 7:45 a.m. Her children had started school and she needed to drop them off at 8:00 a.m. Understanding that this was a temporary situation until she could make other arrangements, I changed her reporting time from 7:45 a.m. to 8:15 a.m. In spite of this accommodation, she reported late (after 8:15 a.m.) on numerous occasions, of which four were documented. On another occasion, I advised all CSRs to come in at 7:30 a.m. because the company had been closed three straight days due to a holiday and it would take extra time to process night depository payments on a timely basis. Ceci reported to work at 8:15 a.m. I was in my office with the Chelmont office leader. I asked Ceci if she had forgotten that I directed everyone to report early that day. Ceci responded, “Rose, I told you that I can’t come in before 8:15 a.m.” Then she walked off.7
Ceci’s conduct at work the last six months has not been conducive to positive, professional working relationships and a team environment.
Ceci has displayed a noticeable negative attitude towards others in the way she talks to co-workers and sometimes, even customers. She has been loud, rude and has projected negative body language such as rolling her eyes and shrugging her shoulders. She has been particularly condescending towards her coworkers.
. . . .
All vacation schedules were turned in by February 1. Ceci was angry because one of the days she requested was unavailable. She sent me an inflammatory note on May 28, because she was still pressing for the unavailable day upcoming in August. I responded with a note to let her know circumstances had changed; I could probably permit her to take the day off and we should talk about it when I returned from the Fabens office a day or two later. In spite of my note, Ceci was quiet and moody with co-workers to the point of not even exchanging simple greetings. When I returned and we met, she stated . . ., “I am not the same person I was before.” I replied, “Ceci, we all have bad days.” She said, “No, this is the way I am now.”
Ceci’s conduct has not had a positive effect on team environment and spirit. She has looked for the negative in others and has even challenged why others ask questions related to job functions. She has shown a defensive attitude when being questioned about work processes and tasks.
It is not recommended that this employee become a regular employee.
At the hearing, Lowe explained the basis of her 12-criteria assessment of Rodriguez, as follows:
1. Job Knowledge: Ms. Rodriguez still required a lot of help to “complete her training and to do the basics as far as customer service, and general information for customers.” She was still making errors.
2. Quality of work: Ms. Rodriguez averaged two errors a day.
3. Quantity of work: Ms. Rodriguez’ non-cashier customer walk-ins were “very minimal compared to the amount that the others were taking.”
4. Safety: Ms. Rodriguez worked safely.
5. Initiative: Ms. Rodriguez required help with a lot of accounts. “She couldn’t just start looking things up. We had to walk her through it.”
6. Dependability: “On occasions we needed [extra help with] different things, and it wasn’t there.”
7. Conduct: “[T]his goes to our code of conduct, attitude, that falls in the respective of the attitude, and because she had several incidents, not witnessed just by me but by others, she did not meet the conduct.”
8. Punctuality: Occasionally Ms. Rodriguez was late and missed work for various doctor appointments and other things.
9. Cooperation: Ms. Rodriguez “did her work, got her stuff done, and would go. She . . . seldom worked with the others.”
10. Meet established standards: Ms. Lowe gave no specific explanation other than as set forth above.
11. Fully trained: Ms. Rodriguez did not complete her training.
12. Satisfactory progress: Ms. Lowe gave no specific explanation other than as set forth above.
With regard to attitude, Lowe testified that Rodriguez was angry and showed she disliked being at work, saying, “I really hate being here.” When Lowe told her she was just having a bad day, Rodriguez replied on several occasions, “No, this is the way I am now.” Lowe also testified that Rodriguez “answer[ed] Yvonne or . . . some of the CSRs [in a negative] tone of voice, the body language, the roll of the eyes, suggestions, and stuff like that. . . .” Garcia also thought Rodriguez had a negative attitude in that she “constantly complain[ed] about how things were done at El Paso Electric compared to her previous employment [in a bank].” Garcia noticed Rodriguez criticized Respondent to other CSRs in her presence and said she did not like to work for the company. Lowe never told Rodriguez her attitude was a problem prior to her discharge.
During 2004, all CSRs, even nonprobationary employees, made mistakes, but the probationary employees made more than the seasoned employees. Both Lowe and Garcia believed Rodriguez’ errors predominated. Lowe did not, however, single out Rodriguez for counseling about mistakes but told all three new hires they needed to improve in customer training, saying they were making some errors. At the hearing, Respondent presented records of CSR mistakes showing the following:
During the period June 24 through July 1, Ms. Rodriguez made ten mistakes.
During the period June 1 through October 28, Ms. Walker made nine mistakes.
During the period April 20 through December 14, Ms. Ornelas made 12 mistakes.
The above documentation of CSR mistakes is not clearly reliable. Respondent did not explain why it selected three different demonstrative periods; there is no evidence that mistake documentation was automatic or consistent rather than discretional, and Fanely and Ornelas observed that Garcia, who openly pointed out CSRs’ mistakes, did so more frequently to Walker and Ornelas than to Rodriguez. Moreover, Ornelas testified that Garcia pointed out to her far more mistakes than the proffered records identified. I cannot, therefore, give significant weight to this documentation. Prior to her discharge, Respondent did not inform Rodriguez she was making an unacceptable number of mistakes.
With regard to employee attendance, Lowe looked for patterns, such as Monday, Friday, or before or after payday tardiness. She did not notice any such pattern with Rodriguez, but she explained why she focused on Rodriguez’ absences: “[T]here was quite—a couple, and I noticed that the doctor appointments, and because she was on probation they have to be there. It’s a little bit more—it’s different when you’re on probation than when you’re a seasoned employee.” Employee time-off records from January through June show that Rodriguez did miss more time than the other two probationary CSRs; the records also show that Bautista missed more time (by approximately 100 hours) than any other CSR. Prior to her discharge, Respondent did not inform Garcia she was missing too much work.
Lowe testified that she also terminated Rodriguez because she was “not a team player,” which Lowe explained as an unwillingness to cooperate or to stay after hours and help out other workers. Lowe never spoke to Rodriguez specifically about not helping her coworkers but told all the employees they had to help each other. Lowe’s testimony regarding Rodriguez’ work ethic and attitude was contradicted by another of Respondent’s witnesses, Munoz. Munoz, a Fabens’ CSR who at various relevant times filled temporary details to the Chelmont office, testified that Rodriguez preferred cashiering to customer service, which she was having difficulty with. However, Munoz observed Rodriguez to be “peppy, outgoing, very hard working . . . [and that she] picked up a lot of the slack there.”
After receiving input from Garcia, Lowe discussed her decision with Judy Kummrow (Kummrow) and with Dahlia De Los Santos (De Los Santos) of human resources. Kummrow agreed Respondent should terminate Gonzalez for the following reasons: failure to complete the CSR training, poor job performance, “unavailability to conduct business,” and an “attitude in the workplace that was not conducive to a teamwork environment.”
On July 7, Lowe and De Los Santos, Respondent’s human resources representative, met with Rodriguez. Lowe told Rodriguez that she had not passed her probation and that Respondent would not keep her as a full-time employee, as she was not a good fit for the job. When Rodriguez asked why, Lowe went through each item of Rodriguez’ end-of-probation review. Lowe told Rodriguez she was not a team player, did not get along well with others, and made working at Chelmont difficult.
E. The September 29 Disciplinary Warning to Fanely
Fanely, employed since August 21, 2002, was an outspoken union supporter in 2004, and wore a union pin during the summer. Although Lowe denied knowing Fanely was a union supporter during 2004, she admitted that Fanely was the only CSR who wore a union pin, which she brought to Lowe’s attention, saying, “Do you like my pin?” Fanely frequently complained to Lowe that she had to do much of Garcia’s job without compensation. She also complained to Lowe, on behalf of Walker and Ornelas, that the two new CSRs had to do their follow-up work during their lunch and breaktime.
Garcia testified that beginning in March, after she was named office team leader, Fanely developed a negative attitude: she was not “a team leader;” she was defensive; she protested that certain tasks were not her “job;” she didn’t say “good morning,” and she slammed drawers.
On July 22, Respondent met with Fanely for her 6-month written review, at which Garcia was present. Despite Garcia’s perception of Fanely’s ongoing negativity, the review was glowing. In pertinent part, the review reads:
[Fanely] has assisted her fellow team members showing them how to analyz[e] customer concerns and issues with a favorable outcome . . . [Fanely] is diligent about following rules and regulations. She tries to insure that the other employees are aware of any changes that have taken place or brings it to the supervisor’s attention . . . [Fanely] is well aware of her job duties and continues to provide good customer service. She is helpful to her fellow co-workers and is willing to change her reporting hours as needed. . . .
Although the July 22 revi