Free Uncategorized - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

MARCELA JOHNSON, Plaintiff, vs. CHARLES SCHWAB CORPORATION, Defendant.

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CIV 04-790 PHX JWS

ORDER FROM CHAMBERS [RE: Motion at doc. 27]

I. MOTION PRESENTED At docket 27, defendant Charles Schwab Corporation ("Schwab") moves for reconsideration of the court's order at docket 25 which denied its motion for summary judgment on Counts II through V of the First Amended Complaint filed by plaintiff Marcela Johnson ("Johnson"). II. DISCUSSION The court incorporates the factual and procedural background set forth in the order at docket 25. The theory supporting Schwab's original motion was that by virtue of the NLRB decision, Johnson had been collaterally estopped from pursuing the claims she described as Counts II through V against Schwab in this court. As Schwab put it in its

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motion papers: "[Johnson] filed a claim against Schwab before the [NLRB] alleging essentially what she alleges in this case­that she was discharged by Schwab because she asserted a claim of sexual harassment against a fellow employee."1 However, Schwab's assertion is misleading. What Johnson actually asserted in the complaint she filed with the NLRB was that Schwab committed an unfair labor practice on the ground that it had discharged her because she engaged in a concerted activity for the "mutual aid and protection" of Schwab employees. In the NLRB decision, the administrative law judge ("ALJ") clearly found that Johnson's activities were not undertaken for the mutual aid and protection of her fellow workers, and so he held there was no unfair labor practice, which is, of course, the only issue that Johnson brought before the NLRB. In the order at docket 25, the court rejected Schwab's argument for collateral estoppel because the ratio decidendi of the NLRB Decision was that Johsnon's activities did not constitute an effort to obtain mutual aid and protection, and so there was no unfair labor practice. Thus, the actual holding did not reach the issues now before this court. However, as the court recognized in its original order at docket 25, the ALJ continued after stating the basis for his decision: "However, for the sake of completeness, and in the event that either the Board, or a reviewing court, disagrees with my finding, I shall go on and analyze Johnson's termination under the

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Doc. 10 at p. 1.

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assumption that her conduct did constitute protected concerted activity within the meaning of the Act."2 In its motion for reconsideration, Schwab characterizes the remaining discussion by the ALJ as an alternative holding. Correctly citing In Re Westgate-California Corporation3 for the proposition that an alternative holding may be used to support collateral estoppel, Schwab contends that the order at docket 25 is in error. The order at docket 25 is not in error, however, because the court held that the lengthy discussion was not an alternate holding by the NLRB. The initial finding that there was no unfair labor practice was the holding. The remainder of the ALJ's discussion was presented "just in case" on review the Board or a court might disagree. There was no further review, so the disposition of Johnson's claim was necessarily based on the fact that there was no unfair labor practice. The remainder of the ALJ's discussion was simply not necessary to the NLRB Decision, and so, in this court's view, it constitutes dicta, not an alternate holding. III. CONCLUSION For the reasons above, the motion at docket 27 is DENIED. However, the court takes this opportunity to again pose the question: Why in the world does Johnson believe that a fact-finder in this proceeding will see the facts any differently than the ALJ

2

Id .at p. 14, ll. 14-17 (bold emphasis added). 642 F.2d 1174 (1981).

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did when he engaged in the unnecessary prophylactic discussion of the reasons why Johnson was terminated. His discussion is, as noted dicta, but it certainly appears to be a very careful and complete assessment. DATED at Anchorage, Alaska this 27th day of July 2005.

JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

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