Leukemia and Lymphoma Society

National Labor Relations Board - Board Decisions

Feb 17, 2016

363 NLRB No. 124 (N.L.R.B. 2016)

363 NLRB No. 124
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Leukemia and Lymphoma Society and Brittany Lynn
Doering. Case 16–CA–152958
February 17, 2016
ORDER DENYING MOTION
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On October 29, 2015, the General Counsel issued a
complaint alleging that the Respondent, Leukemia and
Lymphoma Society, violated Section 8(a)(1) of the Act
by terminating its employee, Charging Party Brittany
Lynn Doering, for engaging in protected concerted activ-
ity, and by maintaining several overbroad handbook
rules. The Respondent filed an answer denying the com-
plaint allegations and, on December 4, 2015, filed a Mo-
tion for Summary Judgment with supporting argument.
The General Counsel filed an opposition, and the Re-
spondent filed a response to the opposition.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Respondent’s motion 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.1
Dated, Washington, D.C. February 17, 2016
______________________________________
Mark Gaston Pearce, Chairman

1 The dissent argues that the General Counsel’s opposition to the
Respondent’s motion is insufficient to establish that there is a material
issue of fact warranting a hearing. We disagree. Sec. 102.24(b) of the
Board’s Rules and Regulations provides:
It is not required that either the opposition or the response be support-
ed by affidavits or other documentary evidence showing that there is a
genuine issue for hearing. The Board in its discretion may deny the
motion where the motion itself fails to establish the absence of a genu-
ine issue, or where the opposing party’s pleadings, opposition and/or
response indicate on their face that a genuine issue may exist.
Here, the pleadings, including the Respondent’s denial of the complaint
allegation that Doering was an employee and its affirmative defense assert-
ing the same argument, indicate that a genuine issue exists as to this critical
fact. In addition, the Respondent submitted a lengthy “record” providing its
version of the facts, supporting its motion and controverting the relevant
allegations of the complaint. In response, the Region reasserted its position,
summarily but sufficiently to comply with the Board’s Rules. Therefore, we
find that this factual issue remains unresolved and that a hearing is required.
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER 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. Among other issues,
this case involves a dispute over whether an alleged
discriminatee, Brittany Doering, is a supervisor under
Section 2(11) of the Act. Section 102.24(b) of the
Board’s Rules and Regulations provides for the potential
entry of summary judgment without a hearing, which
may be warranted if there is “‘no genuine issue as to any
material fact’” and “‘the moving party is entitled to
judgment as a matter of law.’” Security Walls, LLC, 361
NLRB No. 29, slip op. at 1 (2014) (quoting Conoco
Chemicals Co., 275 NLRB 39, 40 (1985)).
Here, the Respondent moves for summary judgment
with respect to the 8(a)(1) discharge allegation described
in the complaint. The Respondent submitted with its
motion various sworn declarations, as well as an appen-
dix including its employee handbook and numerous pag-
es of emails. The Respondent argues that, based on these
facts, as applied to the relevant law, the alleged
discriminatee meets various indicia of supervisory status
under Section 2(11), and is therefore a statutory supervi-
sor excluded from coverage under the Act and its protec-
tions.
In his response, the General Counsel argues that the
Board should deny the Respondent’s motion because the
“[m]otion simply highlights the factual and legal disputes
that are framed by the pleadings and warrant a hearing
before an administrative law judge . . . .” The General
Counsel further argues that he “intends to establish at
hearing that the Charging Party was, in fact, an employee
within the meaning of the Act at the time of the alleged
unfair labor practices. Specifically, the General Counsel
intends to offer documentary and testimonial evidence in
support of the complaint allegations, including the fact
that the Charging Party should be afforded the protection
of the Act as an employee within the meaning of the
Act.” Finally, the General Counsel argues that the
signed “self-serving” declarations attached to the Re-
spondent’s motion should be “stricken” because they,
along with “various assertions in Respondent’s
[m]otion[,] raise factual issues which are best left to a
hearing before an Administrative Law Judge.” Accord-
ing to the General Counsel, the testimony of Respond-
ent’s witnesses should not be considered unless and until
they have testified before a judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
In my view, the General Counsel’s response is defi-
cient. As provided in Section 102.24(b), I believe the
Board should issue a notice to show cause why summary
judgment should not be granted. In L’Hoist North Amer-
ica of Tennessee, Inc., 362 NLRB No. 110, slip op. at 3
(2015), I indicated that—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 enti-
tled to judgment as a matter of law—the General Coun-
sel must respond with something more meaningful than
conclusory statements that there needs to be a hearing.
In L’Hoist, I indicated that “this necessarily requires
some ‘preview of the evidence to be presented at trial’
that conflicts with the material facts set forth in a sworn
affidavit and relied upon by the party seeking summary
judgment.” It is true that Section 102.24(b) does not
require that an opposition be “supported by affidavits or
other documentary evidence showing that there is a
genuine issue for hearing.” However, “in response to a
motion for summary judgment . . . the General Counsel
at least must explain in reasonably concrete terms why a
hearing is required. Under the standard that governs
summary judgment determinations, this will normally
require the General Counsel to identify material facts that
are genuinely in dispute.” Id.
Applying the framework I described in L’Hoist North
America of Tennessee, supra, I would find that the Gen-
eral Counsel’s opposition is insufficient because, on its
face, it provides nothing more than conclusory assertions
and refuses to make any reasonable effort to identify
what genuine disputes as to material facts, if any, warrant
a hearing. At bottom, the General Counsel has failed to
explain, in reasonably concrete terms, why—based on
material facts that are genuinely in dispute—a hearing is
required. Thus, I would issue a notice to show cause
why the Respondent’s motion should not be granted, and
I respectfully dissent.
Dated, Washington, D.C. February 17, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD