BCI Coca-Cola Bottling Company of Los Angeles

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 Union1 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 defense6 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.)