Sterling Towing and Recovery, LLC

National Labor Relations Board - Unpublished Board Decisions

Jan 18, 2017

16-CA-177429 (N.L.R.B. Jan. 18, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
STERLING TOWING AND RECOVERY, LLC
and Case 16-CA-177429
ANDREW WORLEY
and Case 16-CA-177438
KEVIN HODGES
and Case16-CA-177446
CLARENCE MACK
ORDER DENYING MOTION
The Respondent’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.1

1 Member Miscimarra agrees with the denial of the Respondent’s motion as stated in the
Board’s Order, but he notes that the Respondent raises an argument (indicating that its gross
revenues are insufficient to support Board jurisdiction) which could be grounds for granting a
motion for summary judgment, particularly since the General Counsel has not filed any timely
response to Respondent’s motion. As Member Miscimarra stated in L’Hoist North America of
Tennessee, Inc., 362 NLRB No. 110, slip op. at 3 (2015) (concurring), “in response to a
motion for summary judgment, I believe that 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.” See also Leukemia & Lymphoma Society, 363
NLRB No. 124, slip op. at 2 (2016) (Member Miscimarra, dissenting). In the instant case,
however, Member Miscimarra agrees with the denial of summary judgment because the facts
supporting Respondent’s motion are set forth only in a supporting brief, unaccompanied by
an affidavit or sworn statement, which makes it appropriate for Respondent’s arguments to
be addressed in a hearing, based on record evidence, which will permit the judge to address
and resolve any genuine issues of material fact that exist regarding the existence or absence
of Board jurisdiction, and the judge can likewise determine, in the first instance, the extent to
which the hearing should also proceed on the merits. Charter Communications, Case 07-CA-
140170 (Order issued 4/26/16) (Member Miscimarra concurring with the denial of the
respondent’s motion for summary judgment despite the “conclusory argument” made by the
GC because “scrutiny of the parties’ pleadings reveal[ed] that genuine issues of material fact
exist….”).
Dated, Washington, D.C., January 18, 2017
MARK GASTON PEARCE, CHAIRMAN
PHILIP A. MISCIMARRA, MEMBER
LAUREN McFERRAN, MEMBER