Cianelli Operating, Inc., f/k/a Pre-Cast Specialties, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 2016

12-CA-155900 (N.L.R.B. Jun. 23, 2016)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
CIANELLI OPERATING, INC. f/k/a
PRE-CAST SPECIALTIES, INC.
and Case 12-CA-155900
CONSTRUCTION AND CRAFT WORKERS LOCAL
UNION NO. 1652, LABORERS’ INTERNATIONAL
UNION OF NORTH AMERICA, AFL-CIO
PRE-CAST SPECIALTIES, LLC f/k/a
PCS ACQUISITIONS, LLC
and Case 12-CA-167524
CONSTRUCTION AND CRAFT WORKERS LOCAL
UNION NO. 1652, LABORERS’ INTERNATIONAL
UNION OF NORTH AMERICA, AFL-CIO
ORDER1
The Motion for Partial Summary Judgment filed by Respondent Cianelli
Operating, Inc. f/k/a Pre-Cast Specialties, Inc. 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 and before the Board on any
exceptions that may be filed to the judge's decision, if appropriate.2

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2 The Respondent seeks summary judgment on whether a Transmarine remedy is
appropriate in this case. Member Miscimarra agrees with the denial of Respondent’s
motion as stated in the Board’s order, but he believes that the General Counsel’s failure
to respond to the Respondent’s argument is deficient, and in a different case could be
grounds to grant the motion for summary judgment. 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 the General
Counsel at least must explain in reasonably concrete terms why a hearing is required.
2
Dated, Washington, D.C., June 23, 2016
PHILIP A. MISCIMARRA, MEMBER
KENT Y. HIROZAWA, MEMBER
LAUREN MCFERRAN, MEMBER

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 and Lymphoma Society, 363 NLRB No. 124, slip op. at 2 (2016)
(Member Miscimarra, dissenting) and 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….”). In the instant case, Member Miscimarra agrees with the denial
of partial summary judgment because scrutiny of the parties’ pleadings reveals that
genuine issues of material fact exist regarding whether a Transmarine remedy is
appropriate in this case. See Carney Hospital, 350 NLRB 627, 630 (2007).