10th Circuit sides with NLRB over fired bill collector

Michael P. Tremoglie Sep. 7, 2012, 10:37am

DENVER (Legal Newsline) - The U.S. Court of Appeals for the Tenth Circuit has affirmed the ruling of the National Labor Relations Board in the case of an angry electric company bill collector.

The collector disconnected the gas line of a customer who was past due. The company fired the bill collector for his actions, but the union filed a grievance claiming the utility engaged in an unfair labor practice.

The National Labor Relations Board backed the union. The appeal of the NLRB ruling was made to the Tenth Circuit.

Robert Madrid worked for Public Service Company of New Mexico, collecting overdue bills for the power company. Allegedly, Madrid was more than a bit indignant about one delinquent customer and without his supervisor's permission, went to the customer's home and disconnected the gas line.

It was not even PNM's gas line.

Madrid was soon fired for violating the company's ethics policy and state law. The union decided to file a grievance on his behalf to contest his dismissal. It argued that it violated its collective bargaining agreement with the company.

PNM responded that the agreement allows the company to fire unionized employees for "reasonable cause." But the union countered that although Madrid's conduct violated company policy and state law, he may have been treated more harshly than other employees guilty of similar things. If there were such disparate treatment, the union said, it would be enough to undermine any claim of "reasonable cause" for Madrid's termination.

Since the union did not have evidence to substantiate its theory, it asked for discovery of PNM's personnel actions to see if there any cases to substantiate its claim. The union sent PNM a request demanding documents showing whethe rand to what extent PNM had disciplined other employees who, like Madrid, violated the company's ethics policy or state law. Included in the request were two supervisors involved in a gas leak.

The company refused the requests. It claimed the information was not relevant. A hearing was subsequently held before a NLRB administrative law judge.

But just before the hearing, PNM furnished the union with the requested documentation. Because of the delay in furnishing the requested documents, first the ALJ - and then the NLRB - found that PNM had engaged in an unfair labor practice

Thematter eventually made its way to the appeals court, which found that it could not consider several of the employer's arguments because they were not first mentioned to the NLRB. The Court concluded that the record did not support the rest of PNM's arguments and affirmed the NLRB order.

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