El Paso Electric Co. v. National Labor Relations Board, 681 F.3d 651

Background

EPE, an electric utility in western Texas and southern New Mexico, faced NLRA unfair labor practice charges by the Union (IBEW Local 960) that had been ongoing since 2002.
The Union represents EPE linemen, other operational employees, with meter readers joining in 2003 and CSRs in 2004; a long history of labor disputes followed unionization.
The case culminated in a Board Decision and Order (2010) finding multiple unilateral changes by EPE and ordering enforcement; the ALJ had weighed extensive witness testimony and exhibits.
EPE challenged five specific Board determinations: (i) unilateral break policy for meter readers, (ii) unilateral tightening of CSR disciplinary procedures, (iii) restriction on CSRs working on co-workers’ accounts, (iv) failure to bargain over Chelmont facility closure effects, and (v) unilateral boot replacement policy change.
The Fifth Circuit reviews Board factual findings for substantial evidence and legal conclusions de novo, deferring to credibility determinations made by the Board unless irrational.
The crux of the Board’s holding was that EPE’s changes to terms/conditions of employment without bargaining with the Union violated NLRA § 8(a)(1) and (5), though the opinion notes EPE’s changes were not sought to bar changes in principle, but to limit unilateral action without union involvement.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Meter readers’ breaks policy change was unilateral	EPE argues no policy change; Branched testimony shows break timing shift was not mandatory.	Board credited Camacho; change was material and enforced, violating NLRA.	Affirmed: unilateral break policy change violated NLRA
Navarro termination linked to unlawful break policy	Navarro terminated for improper reasons unrelated to the break policy change.	Navarro’s termination partly based on policy violation; other non-policy factors present.	Affirmed: termination improper because policy change was unlawfully imposed and contributed to discipline
Disciplinary procedure change (PIPs) without bargaining	PIPs were part of prior discipline and not a new policy; no right to bargain required.	PIPs created a formal, probation-like system affecting terms/conditions; required bargaining.	Affirmed: PIPs constituted a unilateral, disciplinary change in violation of NLRA
Co-workers’ accounts prohibition discipline tied to policy change	Policy against working on co-workers’ accounts existed in writing; discipline for violations was proper.	No preexisting policy expressly barred coworker account work; discipline based on written policy violations.	Affirmed: discipline based on violation of a written policy; Board’s reasoning sustained
Chelmont facility closure and effects bargaining	EPE negotiated the effects of closure; union discussions occurred, though not with full satisfaction.	EPE failed to meaningfully bargain over effects; union proposals largely not incorporated.	Affirmed: EPE did not meaningfully bargain over closure effects

Key Cases Cited

Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991) (unilateral change of a term or condition violates NLRA)
NLRB v. Katz, 369 U.S. 736 (1962) (employer bargaining obligations under NLRA)
Mississippi Power Co. v. NLRB, 284 F.3d 605 (5th Cir. 2002) (material changes in terms and conditions evaluated with deference to Board)
Garrison Valley Ctr., Inc., 246 N.L.R.B. 700 (1979) (breaks and lunch periods as terms and conditions under NLRA)
Murphy Diesel Co., 184 NLRB 757 (1970) (unilateral changes in discipline require bargaining)
Great Western Produce, Inc., 299 N.L.R.B. 1004 (1990) (unlawful changes in rules or policies factor into discharges)
First Nat. Maint. Corp. v. NLRB, 452 U.S. 666 (1981) (duty to bargain over effects of managerial decisions)
Amoco Chem. Corp., 529 F.2d 427 (5th Cir. 1976) (notice and bargaining required before changing disciplinary systems)
San Miguel Hosp. Corp., 355 N.L.R.B. No. 43 (2010) (board reaffirmed unilateral change as factor in discipline)