Trinity Technology Group, Inc.

1828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364 NLRB No. 133 Trinity Technology Group, Inc. and Mark Schumerth. Case 12–CA–165643 October 25, 2016 ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN On June 30, 2016, the General Counsel issued a com- plaint alleging that the Respondent, Trinity Technology Group, Inc., violated Section 8(a)(1) of the Act by dis- charging employee Mark Schumerth because he engaged in protected concerted activity, and by directing employ- ees not to talk to other employees about their wages and not to speak negatively about the Respondent at check- points. On September 27, 2016, the Respondent filed a Motion for Summary Judgment and a brief in support, and on October 4, 2016, the General Counsel filed an opposition to the motion. Having duly considered the matter, the Respondent’s motion 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.1 This denial is without prejudice to the Respondent’s right to renew its arguments to the administrative law judge and before the Board on any exceptions that may be filed to the judge’s decision, if appropriate. MEMBER MISCIMARRA, concurring. In L’Hoist North America of Tennessee, Inc., 362 NLRB 958, 960 (2015) (concurring), I observed that “in response to a motion for summary judgment, . . . the General Counsel at least must explain in reasonably con- crete terms why a hearing is required. Under the stand- ard 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 1084, 1085 (2016) (Member Miscimarra, dissenting). In the instant case, the Respondent’s Motion for Sum- mary Judgment is supported by sworn affidavits, and Respondent points out that the conduct leading to the employee discharge at issue here, which is alleged to constitute protected concerted activity, consisted of a telephone call to a national radio show that is reflected in a written transcript of the show. In contrast, the General Counsel’s opposition appears to presume that the Board will deny motions for summary judgment and conclude that a hearing is necessary merely because a respondent has denied liability, or merely because the General 1 Our concurring colleague agrees that this case involves genuine is- sues of material fact that require a hearing. Therefore, we need not address the other matters that he discusses. Counsel disagrees with the respondent’s version of events. See, e.g., General Counsel’s Opposition to Re- spondent’s Motion for Summary Judgment (hereinafter “Opposition”), p. 3 (“Respondent argues that ‘there is no evidence that Charging Party was acting on behalf of other employees, and his conduct was not protected by the NLRA,’ thus demonstrating that there are issues of material fact as to whether [the employee] engaged in protected concerted activity on behalf of himself and other employees”). The Board’s rules provide for the entry of summary judgment without a hearing when there is no genuine issue of material fact and when one party is entitled to judgment as a matter of law, even though the parties ob- viously disagree. For example, it does not establish that summary judgment is inappropriate merely because the Respondent here maintains “there is no evidence that Charging Party was acting on behalf of other employees, and his conduct was not protected by the NLRA.” I do not prejudge whether the employee in this case engaged in protected concerted conduct. However, the absence of “evidence” supporting the General Counsel’s legal theo- ry would be a reason that summary judgment should be granted, not denied. Here, notwithstanding the com- plaint’s contrary allegations, the Respondent has made a credible claim that everything needed to resolve this case is reflected in the transcript of the radio show telephone conversation involving the employee. Therefore, if Re- spondent is correct that “no evidence” supports a finding that the Charging Party’s conduct was “protected by the NLRA,” then the Board should appropriately decide this case on summary judgment without a hearing. Obvious- ly, the General Counsel’s attorneys disagree, since they are charged with the hard work associated with prosecut- ing claims against respondents. But a party’s disagree- ment does not, standing alone, mean summary judgment should be denied. In short, under our rules, I believe it is inappropriate for the General Counsel or other parties to presume that summary judgment should never be granted, or that a hearing is always necessary merely because one party argues the other party incorrectly maintains there is no dispute as to material facts. Here, regarding the question of whether the employee engaged in protected concerted activity, the General Counsel’s opposition does not iden- tify any contention or particular facts—disputed or not— that explain why the Board, with the benefit of a hearing, may ultimately decide that the employee’s conduct has the Act’s protection. I believe the General Counsel must provide some explanation “in reasonably concrete terms” regarding particular facts that support the complaint’s allegations and regarding the theory by which the Gen- TRINITY TECHNOLOGY GROUP, INC. 1829 eral Counsel believes relevant legal issues, following a hearing, may be resolved in the General Counsel’s favor. L’Hoist North America, supra. Notwithstanding the conclusory nature of the General Counsel’s opposition, the General Counsel has identified some facts material to the disposition of this case, includ- ing potential questions regarding “the nature of the duty [the employee] had to keep certain information confiden- tial” that allegedly may also be affected by “widespread public information available at the time.” Opposition, pp. 3–4. Moreover, it remains possible that evidence regarding these questions may influence whether the employee whose conduct is at issue here engaged in pro- tected concerted activity. For these reasons, I concur in the denial of the Respondent’s Motion for Summary Judgment.