¶ 5). The Local represents for purposes of collective bargaining persons who are employees within the meaning of N.L.R.A. Section 2(3), 29 U.S.C. § 152(3), and who are employed by companies that are employers within the meaning of N.L.R.A. Section 2(2), 29 U.S.C. § 152(2). (Id.

Defendant On Par Contracting Corp. ("On Par") is a member of the Wall-Ceiling Association, and defendant James Murray was, at all relevant times, the President and Principal Operating Officer of On Par. The plaintiffs commenced this lawsuit on July 26, 2006, alleging, inter alia, that On Par failed to make required contributions on behalf of its employees to the Benefit Funds, in violation of their collective bargaining agreement and federal law. Employees Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.; Labor Management Relations Act of 1947, 29 U.S.C. § 152 et seq. Defendant On Par was properly served on August 11, 2006.

This Court Has Already Found That the Parent Company Is Agent for Its Shell Subsidiaries CONSOL Energy, Inc. persistently but incorrectly refuses to accept that jurisdictional language of LMRA Section 301 makes explicit provision for suits by and against agents of employers in the statute’s definition of the term “employer.” 29 U.S.C. § 152(2). CONSOL Energy, Inc. argues once again that the Fourth Circuit’s decision in Intl.

“The term "employer" includes any person acting as an agent of an employer, directly or indirectly, but shall not include …any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.” 29 U.S.C. § 152(2). As such the Union does not hire or fire employees.

We note that, under the NLRA, an employeris specifically defined to include "any person acting as an agent of an employer,directly or indirectly" (29 U.S.C. § 152(2)), and explicitly states that "[1]n determining whether any personis acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.” (29 U.S.C. § 152(13).) In light of that statutory scheme, the Heinz court explained "[t]he question is not one oflegal liability of the employer in damagesor for penalties on principles of agency or respondeat superior, but only whether the [NLRA] condemnssuchactivities as unfair labor practices so far as the employer may gain from them any advantagein the bargaining process of a kind which the Act proscribes.”

Wenote that, under the NLRA, an employer is specifically defined to include "any person acting as an agent of an employer, directly or indirectly" (29 U.S.C. § 152(2)), and explicitly states that "[i]n determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whetherthe specific acts performed were actually authorized or subsequently ratified shall not be controlling." (29 U.S.C. § 152(13).) In light of that statutory scheme, the Heinz court explained "[t]he question is not one of legal liability of the employer in-damagesor for penalties on principles of agency or respondeat superior, but only whether the [NLRA] condemnssuchactivities as unfair labor practices so far as the employer may gain from them any advantage in the bargaining process of a kind which the Act proscribes."

The NLRA permits the NLRB to find liability against employers and labor organizations for unfair labor practices. See 29 U.S.C. §§ 152, 158. Although the Union is a labor organization, it is not a party to this proceeding.

Collins, 850 F. at 1468. 2 “The NBPA is a labor organization within the meaning of § 2 of the National Labor Relations Act (NLRA), 29 U.S.C. § 152. For more than thirty years the NBA has recognized the NBPA as the exclusive bargaining representative for all professional basketball players employed by each of the NBA member teams, pursuant to § 9 of the NLRA, 29 U.S.C. § 159.”

First, section 2(3) of the NLRA specifically excludes from the definition of “employee” an individual having the status of an independent contractor. 29 U.S.C. § 152(3) (“The term ‘employee’ … shall not include … any individual having the status of an independent contractor…”).

B. Whether Cavallo is an Employee Covered by the NLRA is a Threshold Issue for the Arbitrator The issue in Lewis was whether the arbitration agreement violated Sections 7 and 8 of the NLRA, which apply only to employees; independent contractors are excluded from coverage under the NLRA. See 29 U.S.C. § 152(3). Critically, there was no debate in Lewis whether the plaintiff was an employee and, accordingly, whether the NLRA applied.7 In contrast, whether Cavallo was an employee or independent contractor is a threshold issue from which all of Cavallo’s allegations stem.