VOLVO GROUP NORTH AMERICA, LLC

National Labor Relations Board - Board Decisions

Feb 6, 2018

15-CA-179071 (N.L.R.B. Feb. 6, 2018)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
VOLVO GROUP NORTH AMERICA, LLC
and Cases 15-CA-179071
15-CA-184912
WALTER EVANS 15-CA-195183
ORDER1
The Respondent’s Motion to Dismiss the Second Consolidated Complaint is
denied. The Respondent has failed to establish that there are no genuine issues of
material fact and that it is entitled to judgment as a matter of law. This denial is without
prejudice to the Respondent's right to renew its arguments to the administrative law
judge, after presenting evidence, and to raise the deferral issue before the Board on any
exceptions that may be filed to the judge's decision, if appropriate, including its
arguments regarding the appropriate standard for deferral.2
Dated, Washington, D.C., February 6, 2018.
MARVIN E. KAPLAN, CHAIRMAN
WILLIAM J. EMANUEL, MEMBER
MEMBER MARK GASTON PEARCE, concurring in part, dissenting in part.
Although I agree with my colleagues’ denial of the Respondent’s Motion to
Dismiss, I would dismiss the motion categorically. The Respondent argues in its motion

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2 Our dissenting colleague cites no precedent, and we are not aware of any, that would
give the denial of the Respondent’s motion the preclusive effect he advocates.
2
that the Board should defer the Section 8(a)(3) suspension and discharge allegations to
the arbitration award. Under extant law, the Respondent’s argument lacks merit. First,
the arbitration award to which the Respondent seeks deferral clearly fails to meet the
applicable requirements for deferring the Section 8(a)(3) allegations. Babcock &
Wilcox, 361 NLRB 1127 (2014). Even the Respondent acknowledges that, under
Babcock & Wilcox, deferral is not warranted.
Second, the complaint alleges that the Respondent independently violated
Section 8(a)(1) by suspending and discharging Charging Party Walter Evans in May
2016, and Section 8(a)(4) by terminating Evans in March 2017 because he filed charges
against the Respondent in Cases 15-CA-179071 and 15-CA-184912. The Board has
long held that Section 8(a)(1) and Section 8(a)(4) allegations, like these, are not suitable
for deferral. See e.g. Chrysler Corp., 242 NLRB 577, 580 (1979) (inasmuch as
discharge allegedly rose out of protected concerted activity in violation of 8(a)(1),
deferral is not appropriate); United States Steel Corp., 264 NLRB 76, 81 fn. 11 (1982)
(“It is well established that the Board will not apply the Spielberg deferral doctrine to
issues involving access to the Board’s processes as protected by Sec. 8(a)(4) of the
Act.”). Because the 8(a)(3) allegations that the Respondent seeks to dismiss are
intertwined with the nondeferrable independent 8(a)(1) and 8(a)(4) allegations deferral
is inappropriate. See generally, Hoffman Air & Filter Systems, 312 NLRB 349, 353 fn.
19 (1993).
3
Accordingly, I would deny the Respondent’s motion to dismiss categorically.
Dated, Washington, D.C., February 5, 2018.
MARK GASTON PEARCE, MEMBER