Mercedes-Benz U.S. International, Inc. (MBUSI), (2017)
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.
Mercedes-Benz U.S. International, Inc. (MBUSI) and
Kirk Garner. Case 10–CA–169466
May 5, 2017
ORDER DENYING MOTION
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN
The General Counsel’s Motion for Summary Judgment is denied. The General Counsel has failed to establish that there are no genuine issues of material fact warranting a hearing and that he is entitled to judgment as a matter of law.1 Dated, Washington, D.C. May 5, 2017
Philip A. Miscimarra Chairman
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
1 The Respondent has raised as an affirmative defense that the General Counsel’s allegations are untimely and/or barred by Sec. 10(b). We reject this argument because the Board has long held that “[t]he maintenance during the 10(b) period of a rule that transgresses employee rights is itself a violation of Sec. 8(a)(1).” Register-Guard, 351 NLRB 1110, 1110 fn. 2 (2007), enfd. in relevant part 571 F.3d 53 (D.C. Cir. 2009); accord Eagle-Picher Industries, Inc., 331 NLRB 169, 174 fn. 7 (2000); Trus Joist MacMillan, 341 NLRB 369, 372 (2004); Control Services, Inc., 305 NLRB 435, 435 fn. 2, 442 (1991).
We disagree with our dissenting colleague’s assertion that it is appropriate to grant the General Counsel’s motion for summary judgment. In previous decisions implicating similar rules, the Board has permitted employers to adduce evidence regarding asserted business justifications, and about whether the rules were communicated or applied in a manner that clearly conveyed an intent to permit protected activity. See Whole Foods Market, Inc., 363 NLRB No. 87, slip op. at 4–5 (2015); Mercedes-Benz U.S. International, Inc. v. International Union, UAW, 838 F.3d 1128, 1135–1140 (11th Cir. 2016), citing Our Way, Inc., 268 NLRB 394, 395 fn. 6 (1983). Because the Respondent has raised similar arguments here, we give the Respondent the same opportunity to adduce evidence at a hearing. Thus, contrary to our colleague’s assertion, we find that the Respondent’s arguments are sufficient, at least for purposes of avoiding summary judgment....
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