BCI Coca-Cola Bottling Company of Los Angeles

National Labor Relations Board - Board Decisions

Apr 30, 2013

359 N.L.R.B. 988 (N.L.R.B. 2013)

988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 110
BCI Coca-Cola Bottling Company of Los Angeles and
Wayne Abrue. Case 28–CA–022792
April 30, 2013
DECISION AND ORDER REMANDING
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On September 28, 2012, Administrative Law Judge
William G. Kocol issued the attached bench decision.
The Acting General Counsel filed exceptions and a sup-
porting brief, the Respondent filed an answering brief,
and the Acting General Counsel filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order Remanding.
I.
This case arises from a charge filed by Charging Party
Wayne Abrue in November 2009, alleging that the Re-
spondent discharged eight employees because of their
union membership and other concerted activities, and
without giving the Union
1
notice and an opportunity to
bargain over the discharges. The Union had grieved the
discharges, however, and that grievance was still pending
when Abrue filed his charge. In those circumstances, the
Regional Director deferred processing of the charge un-
der Dubo Mfg. Corp., 142 NLRB 431 (1963).
On January 31, 2012, the Union and the Respondent
finalized a settlement of the grievance.
2
Upon reviewing
the settlement, the Regional Director notified the parties
that he was revoking the deferral and resuming the inves-
tigation of the charge.
A complaint subsequently issued, alleging that the Re-
spondent made threats of futility, layoffs, and other un-
specified reprisals, in violation of Section 8(a)(1) of the
Act, and that the layoff of the eight employees violated
Section 8(a)(3) and (1). The Respondent filed a timely
answer, denying that it had committed any unfair labor
practices and pleading, as an affirmative defense, that a
grievance concerning the layoffs was processed and re-
sulted in a settlement between the Respondent and the
Union.
3

1 United Industrial Service, Transportation, Professional, and Gov-
ernment Workers of North America, Seafarers International Union of
North America, Atlantic, Gulf, Lakes, and Inland Waters Dis-
trict/NMU, AFL–CIO (the Union).
2 On March 12, 2010, the Regional Director issued a certification of
results of election decertifying the Union as the employees’ exclusive
collective-bargaining representative.
3 The settlement agreement does not purport to resolve any 8(a)(1)
threat allegations.
As the unfair labor practice hearing began, the judge
expressed his view that the charge should have been de-
ferred under Collyer Insulated Wire, 192 NLRB 837
(1971), and not Dubo, supra. The judge recognized that
the Union and the Respondent had already settled the
grievance, but he decided to “allow the parties another
opportunity to handle the matter under the Collyer doc-
trine.” The judge then dismissed the complaint before
any witnesses were called, but retained jurisdiction for
the limited purpose of entertaining a motion for further
consideration upon a proper showing that: (1) the dispute
had not, with reasonable promptness, been resolved by
amicable settlement in the grievance procedure or sub-
mitted promptly to arbitration; (2) the grievance or arbi-
tration procedures had not been fair and regular; or (3)
the grievance or arbitration procedures reached a result
that was repugnant to the Act.
II.
The Acting General Counsel excepts to the judge’s
dismissal of the complaint, arguing that the judge should
have held an evidentiary hearing and analyzed the exist-
ing settlement agreement pursuant to the postarbitral
deferral standards laid out in Spielberg/Olin. See Spiel-
berg Mfg. Co., 112 NLRB 1080, 1082 (1955); Olin
Corp., 268 NLRB 573, 574 (1984).
4
The Acting General
Counsel argues in particular that the evidence would
show that the settlement agreement is repugnant to the
Act because it permitted the Respondent to discipline
Abrue solely for engaging in protected concerted activi-
ties and failed to award a full remedy.
5
We agree that the
judge should have held an evidentiary hearing to deter-
mine whether the settlement agreement is repugnant to
the Act under Spielberg/Olin.
III.
The Board applies the Spielberg/Olin factors to decide
whether deferral to a grievance settlement is appropriate,
just as it applies those factors to arbitration awards. Al-

4 Under Spielberg/Olin, the Board defers to an arbitration award
when the arbitration proceedings were fair and regular, all parties
agreed to be bound, the arbitral forum adequately considered the unfair
labor practice issue, and the decision is not repugnant to the Act. See
Spielberg, 112 NLRB at 1082; Olin Corp., 268 NLRB at 574.
5 The Respondent argues that counsel for the Acting General Coun-
sel did not object at the hearing to the judge’s decision to defer under
Collyer and did not make any offer of proof about what evidence
should be allowed and for what purpose. We find no merit in this ar-
gument. Counsel for the Acting General Counsel clearly disputed the
judge’s Collyer interpretation multiple times on the record. The judge
made it clear that he was not going to decide whether to defer to the
settlement agreement and that he did not want to hear any arguments
related to that issue. In those circumstances, a detailed offer of proof
by the Acting General Counsel about evidence to be presented at the
hearing was not necessary.
BCI COCA-COLA BOTTLING CO. OF LOS ANGELES 989

pha Beta Co., 273 NLRB 1546, 1547 (1985), enfd. 808
F.2d 1342 (9th Cir. 1987); see also Postal Service, 300
NLRB 196, 197 (1990). This is true whether the unfair
labor practice charge was deferred under Collyer, de-
ferred under Dubo, or never deferred. See Alpha Beta,
273 NLRB at 1547 (finding deferral principles of Colly-
er, Spielberg, and Olin apply equally to all settlements
and applying those principles to a settlement resolving an
undeferred charge); Postal Service, 300 NLRB at 197
(applying Spielberg/Olin standard to settlement reached
while charge was deferred under Dubo). Thus, contrary
to the judge’s suggestion, the basis for the initial deferral
of a charge does not affect the standard governing the
Board’s review of an ensuing settlement agreement.
Moreover, when a respondent pleads deferral as an af-
firmative defense
6
and the Acting General Counsel coun-
ters that the award or settlement is repugnant to the Act,
the proper procedure is for the judge to hold an eviden-
tiary hearing. This is not a hearing on the merits of the
unfair labor practice charge, but is instead limited to tak-
ing evidence that will allow the judge to determine if the
award or settlement is repugnant to the Act; that is,
whether it is susceptible to an interpretation consistent
with the Act. See Texaco, Inc., 279 NLRB 1259, 1259
(1986) (inappropriate for judge initially to assess the
merits of the case and decline to defer because result
does not “replicate the Board’s own findings, analytical
framework, and remedial scheme”). If the award or set-
tlement is not repugnant, and can be interpreted in a way
that is consistent with the Act, the judge should defer to
it. See, e.g., Aramark Services, 344 NLRB 549, 551–552
(2005); cf. Earl C. Smith, Inc., 278 NLRB 664, 664
(1986).
IV.
In accordance with the foregoing principles, we shall
remand this case to the judge to conduct a hearing and
determine whether the settlement agreement warrants
deferral pursuant to Spielberg Mfg. Co., 112 NLRB 1080
(1955), and Olin Corp. 268 NLRB 573 (1984).
7

In addition, the judge shall decide the complaint alle-
gations that the Respondent violated Section 8(a)(1) by

6 Deferral is an affirmative defense that is waived if not timely
raised. See SEIU United Healthcare Workers–West, 350 NLRB 284,
284 fn. 1 (2007), enfd. 574 F.3d 1213 (9th Cir. 2009).
7 Because the deferral standard makes no material difference in this
case, we do not pass on the accuracy of the judge’s description of the
consequences of the two deferral standards—Collyer or Dubo—with
respect to revoking deferral and resuming processing of the charge.
We disavow the judge’s characterization of a settlement agreement
as a “failure to take the grievance to arbitration.” Settlement is a legit-
imate resolution of a grievance and is not disfavored. See Catalytic,
Inc., 301 NLRB 380, 382 (1991), enfd. 955 F.2d 744 (D.C. Cir. 1992);
Alpha Beta, 273 NLRB at 1547.
making threats of futility, layoffs, and other unspecified
reprisals. These allegations were not addressed by any
party at the hearing or in the briefs, but they have not
been dismissed.
ORDER
It is ordered that this proceeding is remanded to Ad-
ministrative Law Judge William G. Kocol for further
appropriate action as set forth above.
IT IS FURTHER ORDERED that the judge shall afford the
parties an opportunity to present evidence on the re-
manded issues and shall prepare a supplemental decision
setting forth credibility resolutions, findings of fact, con-
clusions of law, and a recommended Order. Copies of
the supplemental decision shall be served on all parties,
after which the provisions of Section 102.46 of the
Board’s Rules and Regulations shall be applicable.

Sandra Lyons, Esq., for the General Counsel.
Douglas M. Topolski and Sabrina Beldner, Esqs. (McGuire
Woods, LLP), of Baltimore, Maryland, for the Respondent.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Phoenix, Arizona, on September 13, 2012. Wayne
Abrue filed the charge on November 23, 2009, and the General
Counsel issued the complaint on May 31, 2012. The complaint
alleges that BCI Coca-Cola Bottling Company of Los Angeles
(Coca-Cola) violated Section 8(a)(1) of the Act (the Act) by
threatening its employees with unspecified reprisals and layoff
because of their union and other concerted activities and in-
formed employees that it would be futile for them to select the
Union as their collective-bargaining representative. The com-
plaint also alleges that Coca-Cola violated Section 8(a)(3) and
(1) by laying off Abrue, James Conway, Othon Garcia, Heath
Gessner, Chris Langley, Craig Stephenson, Tony Peden, and
Donell Winston because those employees “formed, joined, or
assisted” the United Industrial Service, Transportation, Profes-
sional, and Government Workers of North America, Seafarers
International Union of North America, Atlantic, Gulf, Lakes,
and Inland Waters District/NMU, AFL–CIO (the Union) or
because Coca-Cola “believed” that those employees had done
so. Coca-Cola filed a timely answer that admitted the allega-
tions of the complaint concerning the filing and service of the
charge, interstate commerce and jurisdiction, and labor organi-
zation status; it denied that it had committed any unfair labor
practices. Coca-Cola pled a number of affirmative defenses,
including that it laid off the employees in the manner required
by the collective-bargaining agreement it had with the Union
covering those employees and that a grievance concerning the
layoffs was processed and resulted in a settlement between
Coca-Cola and the Union.
On the entire record, and after considering the arguments
made by the General Counsel and Coca-Cola, I make the fol-
lowing
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
Coca-Cola, a corporation, is engaged in the manufacture and
distribution of beverage products at its facility in Tempe, Ari-
zona, where it annually purchases and receives goods valued in
excess of $50,000 directly from points outside the State of Ari-
zona. Coca-Cola admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The issues presented by this case include whether the charge
should have been deferred to the grievance-arbitration process
under Collyer Insulated Wire, 192 NLRB 837 (1971), instead
of under Dubo Mfg. Corp., 142 NLRB 431 (1963), and if so,
whether a union’s failure to pursue a Collyered case to arbitra-
tion results in the dismissal of the charge instead of the resump-
tion of the processing of the charge by the General Counsel.
For reasons set forth in the Bench Decision, attached as Appen-
dix A, and further explained below, I conclude that this charge
should have been deferred under Collyer and I do so now.
Furthermore, I indicate that absent circumstances so far not
apparent in this case, if the Union again fails to take the case to
arbitration, then the charge should be dismissed.
The Union had represented a unit of employees based on a
certification issued by the Board in Case 28–RM–00305. Co-
ca-Cola and the Union’s last contract ran from February 1,
2005, through January 31, 2010.1 That contract has a nondis-
crimination provision under which:

Both parties acknowledge their respective obligations under
. . . federal statutes and agree that neither will discriminate, as
defined in applicable federal statute . . . against any employee
. . . because of . . . membership in the Union.

The contract also specifies a grievance-arbitration procedure
that results in binding arbitration.
On December 28, 2009, the Regional Director deferred the
charge in this case under Dubo. In doing so the Regional Di-
rector noted that there was a grievance pending that covered the
allegations of the charge On January 31, 2012, the Union and
Coca-Cola finalized a settlement of that grievance. Among
other things, that settlement indicated that Abrue had filed the
charge in this case containing allegations that the layoffs violat-
ed the Act; it provided that Coca-Cola pay each of those em-
ployees $3000. In return, the Union agreed to withdraw the
grievance. Furthermore, in the settlement:

The Union acknowledges that its investigation of the Griev-
ance revealed no evidence to support any allegation that the
Company . . . interfered with, restrained, coerced, and dis-
criminated against employees in the exercise of their rights
under Section of the Act by discharging any one or more of
the Grievance Payees because of their Union membership and

1 On March 12, 2010, the Regional Director issued a certification of
results of election that decertified the Union as the bargaining repre-
sentative of the employees.
other concerted activity . . . as alleged in Charge 28–RC–
22792 [sic]. The Union further acknowledges that its agents
with personal knowledge of Union’s investigation of the of
the [sic] grievance will so testify in any hearing or other pro-
ceeding to collect evidence in Case No. 28–RC–22792 [sic].

On March 29, 2012, the Regional Director notified that parties
that he was revoking the deferral and resuming the investiga-
tion of the charge; the complaint issued 2 months later.
III. ANALYSIS
The Union and Coca-Cola were parties to a contract that
provided for final and binding arbitration; it also contained a
specific provision forbidding discrimination by Coca-Cola
against employees based on union membership. Coca-Cola
agreed to waive any timeliness defenses it may have to the
processing of the grievance and it affirmed its legal obligation
to process such grievance notwithstanding the expiration of the
contract because such grievance arose under an existing con-
tract. There is no history of employer hostility to the Section 7
rights of employees. And the interests of the Union are in sub-
stantial harmony with the interests of Abrue, the individual
charging party. Thus, all conditions are met for deferral of the
charge to the grievance-arbitration process. Collyer, supra;
United Technologies Corp., 268 NLRB 557 (1984).
As described above, the parties in this case were advised that
this case was being deferred under the principles underlying
Dubo, supra. However, as has been the policy for nearly four
decades and as the General Counsel has described in his semi-
nal memorandum concerning deferral procedures cases that are
deferrable under Collyer should be done under the Collyer
principles; only if the case is not deferrable under Collyer
should consideration be given to whether or not the case is
nonetheless deferrable under Dubo. (GC Memorandum 73–31.
Arbitration Deferral Policy Under Collyer—Revised Guide-
lines, p. 38 fn. 63, and cases cited therein.) This is not just a
matter of theoretical consistency; it has consequences. If a case
deferred under Dubo does not get to arbitration, deferral is re-
voked and processing of the charge is resumed. (GC Memo, p.
39 fn. 65.) However, under Collyer, if the Union fails to sub-
mit the case to arbitration, the charge is dismissed. (GC Memo
p. 45.) Of course, to do otherwise would make deferral under
Collyer not a requirement but merely a request that a Union
was free to reject.

Under the Collyer policy, in the exercise of its discretion, the
Board requires (emphasis added) a charging party to resort to
the available grievance arbitration procedures under the con-
tract. Under the Dubo policy, the Board does not require
(emphasis in original) such a resort to these procedures; ra-
ther, it defers because one or the other party to the contract is
pressing the dispute to arbitration and the Board is unwilling
to provide a second forum for the litigation of the same dis-
pute. [GC Memo, p. 40 fn. 66.]

I recognize that the Union and Coca-Cola have already
reached an amicable settlement of the grievance. But because
there may have been some confusion of the respective rights
and obligations of the parties resulting from the deferral under
BCI COCA-COLA BOTTLING CO. OF LOS ANGELES 991

Dubo instead of Collyer, I will allow the parties another oppor-
tunity to handle the matter under the Collyer doctrine.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The complaint is dismissed, provided that: jurisdiction of this
proceeding is hereby retained for the limited purpose of enter-
taining an appropriate and timely motion for further considera-
tion upon a proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of this Decision
and Order, either been resolved by amicable settlement in the
grievance procedure or submitted promptly to arbitration, or (b)
the grievance or arbitration procedures have not been fair and
regular or have reached a result which is repugnant to the Act.
APPENDIX A
I’m going to issue a bench decision now. And I’ll issue a
fuller decision once I get the transcript. But it’s my decision
now that I am going to defer this case under Collyer. In order
to do so I need a stipulation from the Respondent: (1) that it
will waive any defensive timeliness as far as processing the
underlying grievance, and (2) that that grievance arose under
the prior contract and that Respondent is willing to arbitrate
that grievance.

MR. TOPOLSKI: So stipulated, Your Honor.
JUDGE KOCOL: All right. That stipulation is received.
It’s not actually a stipulation but an agreement.
MR. TOPOLSKI: So agreed, Your Honor.
JUDGE KOCOL: Okay. We we’ll—so we have that
agreement on the record. The issue as I see it has been
sharpened I think as to one, whether this case should have
been properly deferred under Collyer instead of Dubo, and
that’s one issue.

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
And the second issue is assuming it was properly de-
ferred under Collyer despite the fact that it’s an 8 (a)(3) al-
legation and filed by an individual. If the case was not
promptly submitted to arbitration existing Board law re-
quires a dismissal. And that’s the issue where I think there
is some disagreement with the General Counsel and there
may be some desire on the part of the General Counsel to
look at those issues again.
And I think the most efficient way, given the fact that
I’m bound by existing law, is to go ahead and as I’ve indi-
cated defer this under Collyer. And then this will allow
time for the General Counsel to decide what it wants to do,
if anything, and we’ll proceed in that fashion.
If the Board either concludes that I was wrong that this
was properly deferred under Collyer and not Dubo, or that
I was wrong in the conclusion that a failure to arbitrate
under Collyer results in a dismissal, not a resumption of
the processing of the case, or the Board will tell me. And
of course the Board may change existing law, they’re
not—they can do so. In which case, of course I’ll follow
Board law.
So with that that’s my decision, my bench decision.
And as I indicated, once I get back to the office and look
at the transcript I’ll issue a more formal written decision,
which is essentially what I just said maybe with a case cite
or two. And then of course you’ll have an opportunity to
appeal that bench decision. You would I would expect,
would do that if you so desire. And I think that’s the most
orderly way to proceed in this matter. If I’m correct, well
we’ve saved 4 or 5 days of hearing.
So anything further at this point, Ms. Lyons?
MS. LYONS: No, Your Honor.
JUDGE KOCOL: Anything from Respondent?
MR. TOPOLSKI: No sir, Your Honor.
JUDGE KOCOL: All right. The hearing is now closed.
(Whereupon, the hearing in the above-entitled matter
closed at 2:34 p.m.)