If at First You Don't Object, You Probably Can't Try Again

As the Tenth Circuit Court of Appeals describes it, "This case began with an angry bill collector, metamorphosed into a discovery dispute, and now serves mostly as another reminder about the importance of preserving your best arguments in the proper administrative forum rather than trying them for the first time in an appellate court."

Robert Madrid worked for Public Service Company of New Mexico (PNM), collecting overdue bills for the electric utility. One day, Madrid got mad at a "particularly obstinate customer" and disconnected the customer's gas line without his supervisor's permission. Making matters worse? PNM didn't even provide the gas service, another utility did.

Madrid admitted what he had done, and PNM fired him for violating the company's ethics policy and state law. That sounds like cause for firing, right?

Madrid's union didn't see it that way.

The union decided to file a grievance contesting Madrid's dismissal. It argued that Madrid's firing violated its collective bargaining agreement with the company.

PNM replied by pointing out that the agreement allows the company to fire unionized employees for "reasonable cause." The union countered that, while Madrid's conduct was indisputably in violation of company policy and state law, he may have been treated more harshly than other employees guilty of similar things. Disparate treatment would be enough to undermine any claim of "reasonable cause" for Madrid's termination.

The union sent PNM a discovery request for personnel documents showing whether and to what extent PNM had disciplined other employees who had violated the company's ethics policy or state law, according to the CBA CLE Legal Connection. PNM initially refused to provide the personnel records, claiming that they were irrelevant. By the time PNM complied with the request months later, the National Labor Relations Board found that PNM had engaged in an unfair labor practice.

PNM appealed that ruling to the Tenth Circuit Court of Appeals, asking the appellate court to find that the records weren't relevant in the first place. The problem? PNM never raised that objection with the NLRB, so it couldn't raise it on appeal.

Federal appeals aren't like the Dancing with the Stars finale. You don't want to save your super-secret star-making moves for the finale. There is no prize for surprise. If you have to argue a case before the NLRB, make every relevant objection before the Board to preserve the claims for appeal.

Related Resources:

• Public Service Company of New Mexico v. NLRB (FindLaw's CaseLaw)
• Mooning Your Boss is 'Cause' For Firing (Chicago Employment Law Blog)
• 10th Circuit Sides with NLRB over Fired Bill Collector (Legal Newsline)