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KEEPING UP WITH... Texas Supreme Court Grants Mandamus Relief in Product Defect Litigation to Remedy Trial Court’s Ruling on Impermissibly Overbroad Discovery Requests By Ruth E. Piller In In re Graco Children’s Products, Inc., 50 Tex. Sup. Ct. J. 87, 2006 Tex. Lexis 1073 (Tex. Oct. 27, 2006) (per curiam) (orig. proceeding), the Texas Supreme Court vacated a trial court’s order for a baby-product manufacturer to produce more than 20,000 pages of documented complaints.Patricia Galnares was driving a Jeep Liberty in which her brother and infant son were passengers. During a rollover, Galnares’s son -- who was found on the front floorboard after the accident -- sustained fatal head injuries. Galnares sued Graco, the manufacturer of the baby’s car seat, asserting the harness clip failed to restrain the baby. (Investigators at the accident scene reportedly found the harness unbuckled and were told by Galnares’ brother that at the time of the rollover, the baby had been sitting unrestrained on the front seat while Galnares fed him).Two weeks before trial, the Consumer Products Safety Commission (“CPSC”) announced a settlement with Graco for allegedly failing to report defects in more than a dozen baby products. The announcement noted a $4 million civil penalty imposed on Graco and listed some of the defective products, which did not include the harness that Galnares claimed was defective in her son’s seat. Galnares’s attorneys promptly noticed a deposition and served a fourth request for production on Graco, seeking 20 categories of documents, including anything that mentioned or referred to any of the defects, products, complaints or people involved with those products or the CPSC investigation. Graco objected, stating the carrier and alleged defect involved in Galnares’s suit were not involved with the announcement and that the requested documents were in Pennsylvania, Ohio and Illinois. The trial court ordered Graco to comply with the discovery requests and to produce two representatives for deposition. The Thirteenth Court of Appeals denied mandamus relief sought by Graco.The Texas Supreme Court granted Graco’s petition for writ of mandamus, concluding that Galnares could determine whether any of the products connected with the announcement had harnesses like the one at issue without forcing Graco to produce 20,000 documents. The Court further held Galnares’ requests were impermissibly overbroad because they were not reasonably tailored to the relevant product defect. The Court said evidence about different products and dissimilar accidents had long been inadmissible because such evidence is typically distracting and proves nothing. Ruth E. Piller is a shareholder at Hays, McConn, Rice & Pickering, P.C., where she practices civil appellate and trial law. She is a former editor in chief of The Houston Lawyer and serves on its editorial board.
New NLRB Guidelines for Determining Supervisory Status By Scott Davidson The National Labor Relations Board recently issued three decisions implementing new guidelines for determining “supervisory” status under the National Labor Relations Act. The Board set forth the new guidelines in Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (2006), and applied them in two other decisions the same day regarding supervisory status: Beverly Enterprises-Minn. Inc., d/b/a Golden Crest Healthcare Ctr., 348 N.L.R.B. No. 39 (2006), and Croft Metals Inc., 348 N.L.R.B. No. 38 (2006).The Board’s rulings are particularly important because supervisors generally are excluded from the protections afforded by the NLRA, and the new guidelines are viewed as an expansion of the supervisory definition. Although the Board concluded that its interpretation of supervisory status under the NLRA is consistent with the NLRA’s text and legislative intent, the new guidelines have come under fire by organized labor. Moreover, Board Members Liebman and Walsh in their dissenting opinion in Oakwood cautioned that the Board’s ruling “threatens to create a new class of workers under Federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary workers.”Section 2(11) of the NLRA defines a “supervisor” as an individual having the authority, through the use of independent judgment, to engage in any one of twelve enumerated actions. The Board’s new rulings address two of the twelve enumerated tasks, the authority to “assign” and “responsibly direct.” The new guidelines also address what it means for an employee to exercise “independent judgment” with respect to the enumerated tasks.Regarding the meaning of “assign,” the Board held that the term referred to the act of designating an employee to a place (such as a location, department or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties to an employee. With respect to the charge nurses at issue in the Oakwood case, the Board held that the term “assign” applied to the charge nurses’ responsibility to assign nurses and aides to particular patients.On the definition of authority to “responsibly direct,” the Board held that it must be shown that the employer delegated to the putative supervisor the authority to direct the work of another employee and take corrective action, as well as the prospect of adverse consequences for the putative supervisor if the tasks performed by the employee are not performed properly.Finally, with respect to “independent judgment,” the Board held that a statutory supervisor must exercise independent judgment involving a degree of discretion that rises above the “routine or clerical.”Applying the above guidelines to the charge nurses in question in the Oakwood case, the Board held that employees that were “permanent” charge nurses fell within the statutory definition of supervisors because they are delegated authority to “assign” using independent judgment. The Board also held that certain irregularly scheduled “rotating” charge nurses did not meet the statutory supervisor definition because the employer failed to demonstrate that they performed supervisory responsibilities on a “regular” basis.The Board applied its new guidelines in the Golden Crest and Croft Metals decisions, declining under the specific facts of those cases to find supervisor status with respect to (a) nursing home charge nurses and (b) lead persons at a manufacturing plant respectively. Although the Board declined to find supervisor status in either of the latter cases, guidelines from Oakwood, and the ruling with respect to the charge nurses in the Oakwood decision, have caused widespread consternation amongst organized labor that certain employees once considered outside the statutory supervisor definition will now be exempt from the protections of the NLRA.Scott Davidson is a partner with Locke Liddell & Sapp LLP, engaged in laborand employment law.
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