BGC Partners, Inc. d/b/a Newmark Grubb Knight Frank

National Labor Relations Board - Unpublished Board Decisions

Mar 21, 2017

28-CA-178893 (N.L.R.B. Mar. 21, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BGC PARTNERS, INC. d/b/a
NEWMARK GRUBB KNIGHT FRANK
and Case 28-CA-178893
PATRICK S. THURMAN
ORDER
Respondent BGC Partners, Inc.’s Motion for Summary Judgment is denied. The
Respondent has failed to establish that there are no genuine issues of material fact
warranting a hearing and that it is entitled to judgment as a matter of law.
Dated, Washington, D.C., March 21, 2017.
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
ACTING CHAIRMAN MISCIMARRA, dissenting.
Contrary to my colleagues, I would issue a notice to show cause why the
Respondent’s Motion for Summary Judgment should not be granted. This case
involves, among other issues, a dispute as to whether Respondent BGC Partners, Inc.
(BGC) is the employer of the Charging Party or is an employer at all within the
jurisdiction of the Board under Section 2(2), (6), and (7) of the Act. The Respondent
moves for summary judgment on the ground that it is not an employer and submitted
with its motion a sworn declaration from one of its attorneys. The Respondent argues
that the facts set forth in the motion and declaration demonstrate that it is solely a
holding company and employs no employees, and therefore it is not an employer under
the Act.
2
In his response, the General Counsel argues that the Board should deny the
Respondent’s motion, because by denying in its answer to the complaint and its motion
that it is an employer and that it has an employment relationship with the Charging
Party, the “Respondent has put the matter into dispute.” The General Counsel further
argues that under Section 102.24(b) of the Board’s Rules and Regulations, it “is not
required that either the opposition or the response be supported by affidavits or other
documentary evidence showing that there is a genuine issue for hearing.”
In my view, the General Counsel’s response is deficient. As I found in L’Hoist
North America of Tennessee, Inc., 362 NLRB No.110 (2015), and Leukemia and
Lymphoma Society, 363 NLRB No. 123 (2016), when a party files a motion for summary
judgment that fairly establishes the absence of any dispute as to material facts and that
the party is entitled to judgment as a matter of law, the General Counsel must respond
with something more than conclusory statements and at least explain in reasonably
concrete terms why a hearing is required. To meet this standard, the General Counsel
must normally identify material facts that are genuinely in dispute.
Applying the above framework, I would find that the General Counsel’s
opposition is insufficient, because in response to the Respondent’s motion and
accompanying affidavit, it provides only conclusory assertions and makes no
reasonable effort to identify what genuine disputes of material fact, if any, warrant a
hearing. Therefore, I would issue a notice to show cause why the Respondent’s motion
should not be granted.
PHILIP A. MISCIMARRA, ACTING CHAIRMAN