BCI Coca-Cola Bottling Company of Los Angeles

National Labor Relations Board - Board Decisions

Oct 29, 2014

361 N.L.R.B. 839 (N.L.R.B. 2014)

BCI COCA-COLA BOTTLING CO. 839
BCI Coca-Cola Bottling Company of Los Angeles and
Wayne Abrue. Case 28–CA–022792
October 28, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On August 29, 2013, Administrative Law Judge Wil-
liam G. Kocol issued the attached supplemental decision.
The General Counsel filed exceptions and a supporting
brief. The Respondent filed an answering brief, and the
General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified below and to adopt the recommended Order.
I. PROCEDURAL HISTORY
This case arises from the Respondent’s layoff of eight
employees, including Charging Party Wayne Abrue, in
November 2009. At the time of the layoff, employees
were represented by the United Industrial, Service,
Transportation, Professional and Government Workers of
North America, Seafarers International Union of North
America, Atlantic, Gulf, Lakes and Inland Waters (the
Union), and a collective-bargaining agreement (the CBA)
was in effect.1 The Respondent selected employees for
layoff based on their seniority in their job classification,
which it claimed was agreed to in the CBA. The Union,
relying on a different CBA provision, argued that em-
ployees should have been laid off according to their de-
partmental seniority.
The Union and the individual employees filed griev-
ances pursuant to the contractual grievance-arbitration
provision, alleging that the layoffs violated the CBA.
Abrue also filed a charge with the Board on November
23, 2009, alleging that the Respondent had discharged
the eight employees because of their union membership
and other concerted activity and without giving the Un-
ion notice and the opportunity to bargain.2 On December
28, 2009, the Regional Director deferred Abrue’s charge
under Dubo Mfg. Corp., 142 NLRB 431 (1963), because
the Union was processing a grievance concerning the
allegations in the charge and because the allegations
might be resolved through the grievance-arbitration pro-
cedure, which provided for final and binding arbitration.
1 The Union was subsequently decertified in March of 2010.
2 Abrue also filed an. 8(b)(1)(A) charge alleging that the Union
failed to take his grievance to arbitration after promising to do so.
After investigating the merits of that charge, the Region solicited Abrue
to withdraw it, and Abrue did so.
On January 31, 2012, the Union and the Respondent
finalized a settlement of the grievances. The settlement
agreement required that the Respondent pay $3000 to
each laid-off employee. In return, the Union agreed to
withdraw the grievances. The settlement agreement also
indicated that Abrue had filed an unfair labor practice
charge with the Board and stated that:

The Union acknowledges that its investigation of the
Grievance revealed no evidence to support any allega-
tion that the Company . . . interfered with, restrained,
coerced, and discriminated against employees in the
exercise of their rights under Section 7 of the Act by
discharging any one or more of the Grievance Payees
because of their Union membership and other concert-
ed activity . . . as alleged in Charge 28–RC–22792.[3]
The Union further acknowledges that its agents with
personal knowledge of the Union’s investigation of the
grievance will so testify in any hearing or other pro-
ceeding to collect evidence in Case No. 28–RC–22792.

On March 29, 2012, the Regional Director notified the
parties that he was revoking deferral and resuming the
investigation of the charge. A complaint issued on May
31, 2012, alleging Section 8(a)(1) threats of futility,
layoffs, and other unspecified reprisals4 as well as the
layoff of eight employees in violation of Section 8(a)(3)
and (1). The Respondent filed a timely answer, denying
that it had committed any unfair labor practices. The
answer also pleaded, as an affirmative defense, that a
grievance concerning the layoffs was processed and re-
sulted in a settlement between the Respondent and the
Union.
As the original hearing in this case began on Septem-
ber 12, 2012, the judge questioned why the charge was
deferred under Dubo Mfg. Co., 142 NLRB 431 (1963),
instead of under Collyer Insulated Wire, 192 NLRB 837
(1971). The judge concluded that the dispute was suita-
ble for Collyer deferral and ordered that the case be de-
ferred under Collyer.
The General Counsel filed exceptions to the judge’s
decision, arguing that the judge erred by refusing to al-
low a full evidentiary hearing and by failing to analyze
the existing settlement agreement pursuant to the
postarbitral deferral standards laid out in Spielberg Mfg.
3 The charge was actually numbered 28–CA–22792.
4 Specifically, the complaint alleged that on November 12, 2009,
Night Distribution Supervisor Lou Santos threatened employees with
layoffs and other unspecified reprisals because of their union and other
concerted activities, and that Santos again threatened employees on
November 13 with layoffs and other unspecified reprisals, while also
informing employees that it would be futile to select the Union as their
collective-bargaining representative.
361 NLRB No. 75

840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB
573 (1984).
The Board concluded that the basis for the initial de-
ferral of a charge does not affect the standard governing
the Board’s review of an ensuing settlement agreement
and explained that the Spielberg/Olin factors are used to
decide whether deferral to a grievance settlement is ap-
propriate. 359 NLRB 988 (2013), citing Alpha Beta Co.,
273 NLRB 1546, 1547 (1985), enfd. 808 F.2d 1342 (9th
Cir. 1987). The Board remanded the case to the judge to
hold an evidentiary hearing as requested by the General
Counsel and to determine whether it was appropriate for
the Board to defer to the settlement pursuant to Spiel-
berg/Olin. The Board also instructed the judge to decide
the 8(a)(1) complaint allegations, which the parties had
not addressed at the hearing or in briefs and which the
judge had not mentioned in his decision or otherwise
dismissed.
The Respondent filed a motion for reconsideration,
contending in part that the Board erred in remanding the
8(a)(1) allegations. In its June 28, 2013 Order denying
the motion, the Board pointed out that no party argued on
exceptions to the judge’s decision that the settlement
agreement encompassed the 8(a)(1) allegations. The
Board further explained, however, that the Respondent
was not foreclosed from arguing to the judge that those
allegations were resolved by the settlement and thus
should be dismissed if the settlement warranted deferral
under Spielberg/Olin.
At the time of the Decision and Order reported at 359
NLRB 988 and of the June 28, 2013 Order denying the
Respondent’s motion for reconsideration, the composi-
tion of the Board included two persons whose appoint-
ments had been challenged as constitutionally infirm.
On June 26, 2014, the United States Supreme Court is-
sued its decision in NLRB v. Noel Canning, 134 S.Ct.
2550 (2014), holding that the challenged appointments to
the Board were not valid.
In view of the Supreme Court’s decision, we have con-
sidered de novo the entire record in this case, the parties’
briefs, and the Respondent’s motion for reconsideration.
Having done so, we agree with the General Counsel that
the judge, in his first decision, should not have ordered
the case deferred under Collyer, but rather should have
determined whether the settlement agreement warranted
deferral under the Spielberg/Olin postarbitral deferral
standards, pursuant to Alpha Beta Co., supra at 1547, and
should have held an evidentiary hearing for the purpose
of making that determination. We further find that it was
appropriate for the judge, in his second decision, to ad-
dress the 8(a)(1) allegations because they were not spe-
cifically mentioned in the settlement agreement and not
addressed at the initial hearing or in the exceptions
briefs.
Turning to the Respondent’s motion for reconsidera-
tion, the Respondent advances two contentions. First,
the Respondent contends that the Board did not have a
quorum when it issued the decision reported at 359
NLRB 988, in which the Board ordered the case remand-
ed to the judge. The Respondent is correct. However,
after de novo review, we have found, above, that the
judge, in his first decision, erroneously failed to deter-
mine whether the settlement agreement warranted defer-
ral, and that he had erroneously failed to conduct a hear-
ing for the purpose of making that determination. Thus,
we reject the Respondent’s first argument as moot. The
Respondent also contends that the Board erred in re-
manding the 8(a)(1) allegations for consideration by the
judge. We have rejected that argument for the reasons
stated above. Accordingly, we deny the Respondent’s
motion for reconsideration.
A second hearing was held on July 23, 2013, where the
judge limited the scope of the evidence to whether or not
the grievance settlement met the Board’s deferral stand-
ards and refused to hear evidence on the merits of either
the 8(a)(3) and (1) allegation or the 8(a)(1) allegations.5
II. FACTS
The evidence introduced at the second hearing shows
that the Union and the Respondent processed the griev-
ances without reaching a resolution. In deciding whether
to submit the grievances to arbitration, Union Vice Pres-
ident Heriberto Perez and his subordinates spoke with
Abrue and several other grievants. With respect to em-
ployees’ claims that they were laid off because of their
union activity, Perez testified that the Union was never
provided with specific facts concerning this allegation,
only “hearsay or gossip stuff.”
Perez then consulted with his superiors about whether
the Union should take the grievances to arbitration. Pe-
rez argued in favor of arbitration, but his superiors con-
cluded, based on their interpretation of the CBA, that the
Union was unlikely to prevail. Perez testified that the
evidence of antiunion animus in the layoff decision was
insufficient to convince his superiors to proceed to arbi-
tration on that claim.
III. JUDGE’S DECISION
The judge found that the Board should defer to the
grievance settlement pursuant to the factors laid out in
5 The General Counsel made an offer of proof at the hearing with re-
spect to the 8(a)(1) allegations, saying that the evidence would show
that the Respondent put Abrue on a list of employees to get rid of be-
cause of their union activity and that supervisors discussed the layoff as
being the only way to do so.

BCI COCA-COLA BOTTLING CO. 841
Spielberg/Olin. In addition to finding that the proceed-
ings were fair and regular and that the parties had agreed
to be bound by the settlement, the judge further found
that the Union fully considered the contractual aspect of
the layoffs and concluded that the contract required the
Respondent to act as it did. Given that the Union con-
cluded that the grievances lacked merit, the judge found
that the settlement was not repugnant to the Act, even
though it failed to grant all the relief the Board would
order were the General Counsel to fully prevail on the
merits.
The judge dismissed the 8(a)(1) allegations, finding it
“obvious” that the allegations were subsumed in the set-
tlement.
The General Counsel excepts to both of the judge’s
conclusions.
III. ANALYSIS
A. Deferral to the Settlement
The Board applies the Spielberg/Olin factors to decide
whether deferral to a settlement agreement arising from
contractual grievance-arbitration procedures is appropri-
ate. Alpha Beta, supra, 273 NLRB at 1547.6 Under
Spielberg/Olin, the Board will defer to an arbitration
award/settlement agreement when the proceedings are
fair and regular, all parties agree to be bound, and the
decision is not repugnant to the Act. Spielberg, supra,
112 NLRB at 1082. An additional condition for deferral
is that the arbitral/settlement forum must have considered
the unfair labor practice issue. Raytheon Co., 140 NLRB
883 (1963), set aside 326 F.2d 471 (1st Cir. 1964). Un-
der current law, the Board deems the unfair labor prac-
tice issue to have been adequately considered if the con-
tractual issue is factually parallel to the unfair labor prac-
tice and the arbitrator was presented generally with the
facts relevant to resolving the unfair labor practice. Olin
Corp., supra, 268 NLRB at 574.
There is no contention that the proceedings here were
not fair and regular. The General Counsel argues that,
although the Union and the Respondent agreed to be
bound, Charging Party Abrue and the other alleged dis-
criminatees did not. As noted by the judge, however, the
approval of the Charging Party and other alleged dis-
6 We find that the judge properly declined to consider the General
Counsel’s request that the Board modify its approach to determining
whether deferral to a settlement agreement reached by the parties dur-
ing contractual grievance-arbitration procedures is appropriate. The
General Counsel argued from the beginning of this proceeding that the
judge should analyze the settlement under Spielberg/Olin and first
raised his request to change Board law in his posthearing brief after the
second hearing. The Respondent had no notice that the General Coun-
sel would be requesting a change to the Board’s longstanding practice
and was not given a sufficient opportunity to address the issue.
criminatees is not necessary for the Board to defer to the
settlement under Spielberg/Olin, and a Union can ap-
prove a settlement agreement despite a grievant’s express
objection. See Postal Service, 300 NLRB 196, 197
(1990).7
The General Counsel also argues that the Union did
not adequately consider the unfair labor practice issue
and that the settlement is repugnant to the Act. On the
contrary, the evidence clearly establishes that the Union
considered the employees’ allegations that they were
selected for layoff because of their union activity, but
simply concluded that it lacked sufficient evidence to
substantiate those allegations.
Our review of this issue is informed by the fact that,
under the duty of fair representation (“DFR”), unions are
afforded a “wide range of reasonableness” in serving the
units they represent. See Ford Motor Co. v. Huffman,
345 U.S. 330, 338 (1953). In particular, absent discrimi-
nation or bad faith (and there is no allegation of either
here), unions have broad discretion in deciding which
grievances to pursue and how to handle them. See Ser-
vice Employees Local 3036 (Linden Maintenance), 280
NLRB 995, 996 (1986); see also Auto Workers Local 651
(General Motors Corp.), 331 NLRB 479, 480 (2000)
(citing Teamsters Local 814 (Beth Israel Medical), 281
NLRB 1130, 1146 (1986)). Further, a union is not re-
quired to carry out an investigation of the same scope
and rigor as one that the Region might carry out or to
follow any particular procedures in processing an em-
ployee’s grievance. See Pacific Maritime Assn., 321
NLRB 822, 823 (1996); Asbestos Workers Local 17, 264
NLRB 735, 735–736 (1982); Plumbers Local 195, 240
NLRB 504, 504 fn. 3 (1979), enfd. 606 F.2d 320 (5th
Cir. 1979).
Here, there is no complaint allegation that the Union
violated its DFR either through its investigation into the
grievances or by agreeing to the settlement.8 That is not
surprising given the evidence that, as described by Union
Vice President Heriberto Perez, the Union apparently
conducted a good-faith investigation, which involved
speaking with Abrue and other alleged discriminatees,
but simply did not uncover any specific facts supporting
the allegation that employees were selected for layoff
because of their union activity; there was only “hearsay
or gossip stuff.” As a result, the Union concluded that it
was unlikely to prevail in arbitration proceedings and
7 The General Counsel recognized that employees’ individual con-
sent was not necessary to make deferral appropriate and conceded at
the initial hearing and in his subsequent exceptions that all parties had
agreed to be bound.
8 The Region, in fact, asked Abrue to withdraw his charge making
such an allegation.

842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that there were insufficient facts to support an unfair la-
bor practice charge. That evidence shows, contrary to
the General Counsel’s argument, that the Union did ade-
quately consider the grievants’ statutory claims, and the
settlement agreement reflects the Union’s assessment of
the strength of those claims.
Furthermore, we disagree with the General Counsel’s
contention that the settlement is repugnant to the Act.
Because the Union did not believe it could prevail on its
contractual claim in arbitration, and determined that it
had insufficient evidence of an unfair labor practice, set-
tling the grievances and obtaining at least some monetary
settlement for the grievants, rather than pursuing a doubt-
ful arbitration proceeding, was a reasonable resolution.
There remains one issue to be resolved before we may
conclude whether the judge appropriately deferred to the
settlement agreement. As explained, on remand the
judge prohibited the General Counsel from introducing
evidence concerning the 8(a)(1) allegations. The judge
did, however, allow the General Counsel to make an of-
fer of proof, in which the General Counsel stated that
certain of the Respondent’s supervisors had informed
employees, apparently including Abrue and another of
the alleged discriminatees, that Abrue was put on a list of
employees to get rid of because of their union activity
and that supervisors discussed the layoff as being the
only way to do so. The General Counsel argues that the
judge should have admitted the proffered testimony,
which, if credited, not only would have proved the al-
leged 8(a)(1) violations, but also would have established
that the layoffs were unlawfully motivated as alleged.
The General Counsel also argues that the settlement
agreement was repugnant to the Act because it does not
remedy the unlawful layoffs. He therefore urges us not
to defer to the settlement agreement but instead to re-
mand the case for a full evidentiary hearing on the merits
of both the 8(a)(3) and the (1) allegations.
We are not persuaded. First, as found above, the Un-
ion considered the employees’ allegations that they were
selected for layoff because of their union activity based
on the evidence that it had at the time, obtained through
interviewing Abrue and other discriminatees.9 The Un-
ion reasonably concluded that the evidence did not sup-
port this allegation, and the fact that the General Counsel
now assesses the merits of the allegation differently is
not alone a sufficient reason to reject the settlement un-
der the Spielberg/Olin standard.
9 To the extent that the General Counsel claims that evidence of the
Respondent’s animus comes from Abrue himself, we note that Abrue
had the opportunity to present that evidence to the Union during its
investigation into the grievances. He apparently either failed to do so
or failed to convince the Union of its persuasiveness.
The General Counsel argues that some evidence of the
Respondent’s animus was acquired only after the settle-
ment agreement was signed and was therefore not con-
sidered by the Union. However, under the Spiel-
berg/Olin standard, whether the contractual issue is fac-
tually parallel to the settlement agreement, and whether
that agreement is repugnant to the Act, must be deter-
mined in light of the facts and theories known to the par-
ties at the time the settlement agreement was reached.
See Electrical Workers Local 1522, 180 NLRB 131, 132
(1969) (finding that Board will not disregard an arbitral
award simply because certain facts and contentions were
presented to the Board but not to the arbitrator).
In light of the foregoing, we agree with the judge that
it is appropriate to defer to the settlement agreement.
There is no dispute that the proceedings were fair and
regular, and all necessary parties agreed to be bound by
the settlement. It is clear that the parties specifically
considered the statutory issue and found no evidence to
support the allegation that the layoffs were unlawfully
motivated. In those circumstances, moreover, we cannot
say that the settlement agreement was repugnant to the
Act. Accordingly, we defer to the settlement agree-
ment.10
B. The Independent 8(a)(1) Allegations
The remaining issue is whether the independent 8(a)(1)
allegations were subsumed in the settlement agreement
or are still before us. The General Counsel argues that
there is no evidence that the 8(a)(1) statements were in-
cluded in the settlement agreement or were even known
10 In reaching that conclusion, we do not rely on certain erroneous
factual findings in the judge’s decision. Specifically, in addition to
finding that some union officials agreed with the Respondent’s inter-
pretation of the contract, the judge found that the Union concluded that
the contract “required” the Respondent to act as it did, that employees
told the Union “much of the same things” that those employees told the
General Counsel and that form the basis of the 8(a)(1) allegations, and
that the Union concluded that the grievances “lacked merit.” We agree
with the General Counsel that these findings do not follow inexorably
from the evidence. Although the Union concluded that it was unlikely
to prevail in arbitration, this does not mean that the Union concluded
that the grievances lacked merit or that the Respondent was “required”
to act as it did. Rather, as described, the Union simply concluded that
the available evidence would be insufficient to persuade an arbitrator.
Further, there is no evidence that grievants told union investigators any
of the facts underlying the 8(a)(1) allegations.
As for the judge’s statement that the Union “simply refused to pro-
cess the grievances through arbitration or settle them in a manner satis-
factory to all parties,” we emphasize that settlement is a legitimate
resolution of a grievance and is not disfavored. See Catalytic, Inc., 301
NLRB 380, 382 (1991), petition for review denied sub nom. Plumbers
Local 520 v. NLRB, 955 F.2d 744 (D.C. Cir. 1992), cert. denied 506
U.S. 817 (1992); Alpha Beta, 273 NLRB at 1547. Further, as the judge
recognized elsewhere in his decision, the Union did not need to obtain
the consent of the grievants in reaching a settlement, and the grievants’
objections to a settlement do not alone make it unsatisfactory.

BCI COCA-COLA BOTTLING CO. 843
to the parties at that time. When the Board remanded
this case, there was no indication in the record as to what
allegedly unlawful statements were made, and there was
no way to tell if the statements were related to the layoff
or if they constituted completely separate violations.
From the General Counsel’s offer of proof at the second
hearing and his argument on exceptions, however, we
now know that the 8(a)(1) allegations are indeed related
to the layoffs and are offered as proof of the Respond-
ent’s discriminatory motive. Because we are deferring to
the settlement agreement, which states that its “express
intent” is to resolve all unfair labor practice issues raised
by Abrue’s charge, and because the 8(a)(1) allegations
complement and support the 8(a)(3) allegation, we find
that all of the allegations are inextricably bound together
and that the parties intended to resolve all such allega-
tions through the settlement agreement. As a result, we
dismiss the 8(a)(1) allegations.11
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Sandra Lyons, Esq., for the General Counsel.
Douglas M. Topolski, Esq. (McGuire, Woods, LLP), of Balti-
more, Maryland, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. The Board
has recently confirmed its support for the longstanding deferral
policies under Collyer Insulated Wire, 192 NLRB 837 (1971).
Sheet Metal Workers Local 18 (Everbrite LLC), 359 NLRB
1095 (2013). For decades now the Board’s deferral policies has
been well settled, in large part thanks to the seminal General
Counsel Memorandum 73-31. This case serves as a reminder
11 In his supplemental decision, the judge again explained his view
of the differences between Dubo deferral and Collyer deferral. Be that
as it may, the basis for the initial deferral of a charge does not affect the
standard governing the Board’s review of an ensuing settlement agree-
ment. The Spielberg/Olin factors are applied to decide whether deferral
to a grievance settlement is appropriate regardless of whether the
charge was deferred under Dubo or Collyer. We do not pass on or
adopt any portion of the judge’s discussion of this issue.
However, as to the judge’s assertion that the Regional Director ini-
tially deferred the charge under the wrong deferral standard, we point
out that Sec. 3(d) of the Act gives the General Counsel final authority
to investigate charges and issue complaints. The General Counsel has
unreviewable discretion over “prosecutorial” decisions, and his authori-
ty in this realm is “exclusive and final” and “independent of the
Board’s supervision and review.” Beverly California Corp., 326 NLRB
232, 236 (1998) (citing NLRB v. Food Workers Local 23, 484 U.S. 112,
126 (1987)), enf. denied on other grounds 227 F.3d 817 (7th Cir. 2000).
Deciding what steps to take before issuing a complaint, including how
to investigate the charge and whether to defer to pending or possible
arbitration of the charge, is one of those prosecutorial decisions.
that those policies have successfully defined the rules of the
game and should not be flippantly ignored.
The complaint in this case alleges that Coca-Cola violated
Section 8(a)(3) and (1) by laying off eight employees because
of their union activities and also independently violated Section
8(a)(1) by making unlawful statements. The employees at the
time were represented by a labor organization and were covered
by a collective-bargaining agreement. The General Counsel
asserts that Coca-Cola wanted to lay off Wayne Abrue, the
Charging Party, because he was an activist shop steward and it
laid off the other seven employees in order to get to Abrue.
Coca-Cola asserts that it selected the employees for lay off in
accordance with the contract with the Union; the General
Counsel counters that Coca-Cola’s past practice was not entire-
ly consistent with its interpretation of the contract. Coca-Cola
asserts that complaint allegations were settled with the Union
after grievances were filed. As described below, the Union
ultimately agreed with Coca-Cola’s interpretation of the con-
tract and concluded it could not convince an arbitrator that
Coca-Cola breached the contract. In other words, this is an
ideal case for the deferral to the grievance-arbitration procedure
under Collyer Insulated Wire, 192 NLRB 837 (1971). But,
alas, first the General Counsel and then the Board itself have
refused to do so.
I issued my original decision in this case on September 28,
2012. In that decision I concluded that the General Counsel
incorrectly deferred this case under Dubo Mfg. Corp., 142
NLRB 431 (1963), instead of under Collyer. I pointed out the
differences between the two types of deferral. Under Dubo, if
the grievance is not arbitrated, then the Region proceeds to
complete the investigation of the case; under Collyer, if the
grievance is not arbitrated or properly settled the case is dis-
missed. A union is not requested to arbitrate a Collyer deferred
case, it is instructed to do so or else the case will be dismissed.
Equally important is the fact that when a case is deferred under
Collyer, the parties realize that the General Counsel has inves-
tigated the case and has determined that the case has at least
“arguable merit.” No such determination is made when a case
is deferred under Dubo; such a case may be entirely without
merit. This difference is not simply a matter of words. It may
impact the way in which the parties process or resolve the un-
derlying grievance. In an attempt to correct this significant
error I ordered that the case be correctly deferred under Collyer
to allow the Union, Coca-Cola, and the Charging Party to
properly assess their actions knowing the correct consequences.
The Board reversed. The Board held that I should have as-
sessed whether the grievance settlement reached in this case
meets the standards laid out in Spielberg Mfg. Co., 112 NLRB
1080 (1955), and Olin Corp., 268 NLRB 573 (1984). Implicit-
ly the Board concluded that it made no difference whether the
parties are correctly advised of the consequences of failing to
take a grievance to arbitration or even of the General Counsel’s
assessment as to the possible merits of the case; the parties
would act the same in any event. The Board cited Alpha Beta
Co., 273 NLRB 1546, 1547, enfd. 808 F.2d 1342 (9th Cir.
1987), and Postal Service, 300 NLRB 196, 197 (1990), as au-
thority for its holding. But neither case involved the situation
here, namely a case that should have been deferred under Col-

844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lyer; those cases simply did not address this issue. The Board
stated:

This is true whether the unfair labor practice charge was de-
ferred under Collyer, deferred under Dubo, or never deferred.
Alpha Beta, 273 NLRB at 1547.

But the Board in Alpha Beta most did not say what this Board
said it said, not even in dicta as that case did not involve a Col-
lyer deferral case. Nonetheless, I recognize that I am bound to
apply Board law. The problem, however, is that the Board does
not typically issue ipse dixit rulings. Rather, it generally rec-
ognizes that cited cases are not directly on point and then ex-
plains why, in light of the differences, it decides to apply those
cases to a different situation.
And to make matter worse the Board then went on to order,
sua sponte, that I:

[S]hall decide the complaint allegations that Respondent vio-
lated Section 8(a)(1) by making threats of futility, layoffs, and
other unspecified reprisals. These allegations were not ad-
dressed by any party at the hearing or in the briefs, but they
have not been dismissed.”

Of course these allegations were not addressed for the obvious
reason that those allegations were subsumed as part of the de-
ferral. For decades now it has been the Board policy to defer
these type 8(a)(1) allegations as part and parcel of deferring the
8(a)(3) allegations. The Board simply ignored decades of prec-
edent. When Coca-Cola pointed this out to the Board in a mo-
tion for reconsideration, the Board refused to acknowledge its
error and stated “We . . . reject Respondent’s argument that the
Board erroneously remanded the 8(a)(1) allegations for consid-
eration by the judge.” (Emphasis added.)1 But the Board con-
tinued:

Nevertheless, nothing in the April 30 order forecloses the Re-
spondent from arguing to the judge that the 8(a)(1) allegations
in fact were resolved by the settlement and thus should be
dismissed if the settlement warrants deferral under Spielberg,
supra, and Olin Corp., supra.

So as I read the Board’s instructions to me, I am to resolve the
8(a)(1) allegations on their merits; the Board confirmed this
instruction was not erroneous. Understandably, this is the po-
sition the General Counsel takes at the remand hearing and re-
iterates in his post-hearing brief. But Coca-Cola argues to me
that I should not do so. What am I to make of this? I con-
clude what the Board lacked the intellectual integrity to con-
clude: That its remand order instructing me to decide the
8(a)(1) allegations on the merits without first determining
whether they were subsumed by the grievance settlement was
erroneous. At the remand hearing I decided to proceed in the
only manner that was consistent with existing law, notwith-
standing the Board having twice instructed me to determine
the merits of the independent 8(a)(1) allegations without re-
gard to the grievance settlement.
1 Of course, this is not an accurate statement; the Board did not
simply remand these allegations to me for my consideration. Rather, it
ordered me to resolve them on their merits.
I. FACTS REGARDING DEFERRAL
The remanded portion of this case was tried in Phoenix, Ari-
zona, on July 23, 2013. At that hearing I limited the scope of
the evidence to whether or not the grievance settlement met the
Board’s deferral standards. The grievances stem from a layoff
that occurred in November 2009. Heriberto Perez was the Un-
ion’s vice president for the West Coast Region at that time; his
duties included overseeing the contract the Union had with
Coca-Cola. Perez admitted that the Union knew that it was
apparent that layoffs were coming; remember the country was
then in the midst of the Great Recession. The dispute between
the Union and Coca-Cola concerned which employees should
be laid off. Coca-Cola laid off the employees according to
seniority in their job classification, the Union argued that the
employees should have laid off according to departmental sen-
iority; each cited different provisions in the collective-
bargaining agreement for support. After the parties were ini-
tially unable to resolve the matter through the grievance proce-
dure the Union was faced with the decision of whether to take
the grievances to arbitration. Perez consulted with his superiors
concerning that matter; he argued in favor of arbitrating the
grievances. His superiors, however, concluded that the Union
would not prevail in arbitration and therefore decided not to go
to arbitration. They ultimately agree with Coca-Cola’s inter-
pretation of the contract.
Perez and his subordinates also examined the facts to deter-
mine whether Coca-Cola included the Charging Party in the
layoffs because of his actions as union steward. Remember that
the Union ultimately concluded that the contract allowed Coca-
Cola to lay off employees according to their classification sen-
iority and that therefore the Charging Party was properly
among those selected for lay off and that the layoffs were ex-
pected because of declining business.2 In conducting its inves-
tigation the Union spoke with the Charging Party and several
other employees. Perez concluded that the Union:

[W]as never provided with . . . specifics other than a
lot of hearsay or gossip stuff that was heard through
the grapevine or whatever, but nothing substantial
that I could produce to argue with counsel for . . . ev-
idence to proceed on that.

I conclude that the Union refused to take the grievances to arbi-
tration, and that it did so because it reasonably concluded, from
its point, that the grievances did not have merit. Of course, it
did not know the General Counsel felt otherwise, but as de-
scribed above the Board has concluded that this is irrelevant.
Under these circumstances, the Union agreed to settle the
grievances by payment of $3000 to each laid off employee and
include the language in the settlement agreement, described in
my earlier decision, concerning its investigation into the 8(a)(3)
allegations. None of the alleged discriminatees agreed to ac-
cept the settlement, and it appears that several objected to it.
The General Counsel calculates net backpay for the alleged
discriminatees as follows:

2 The General Counsel’s theory is that the other seven employees
were selected for lay off in order to disguise Abrue’s unlawful lawful.

BCI COCA-COLA BOTTLING CO. 845
1. Wayne Abreu—$74,941
2. James Conway—$104,044
3. Othon Garcia—$120,198
4. Heath Gessner—$19,659
5. Chris Langley—$71,886
6. Craig Stevenson—$27,594
7. Tony Peden—$70,490
8. Donnell Winston—$94,373

The parties stipulated that the charge in Case 28–CB–074569
alleged that the Union breached its duty of fair representation
by its handling of the grievances at issue. After conducting an
investigation of the merits of the charge the General Counsel
solicited withdrawal of the charge and the charge was with-
drawn. In other words, there is no evidence that the Union
breached its duty of fair representation in settling the grievanc-
es as it did.
II. ANALYSIS
I now apply the Spielberg/Olin standards in a manner con-
sistent with Alpha Beta, supra, to assess whether the Board
should defer to the grievance settlement. First, the grievance
proceedings were fair and regular. Coca-Cola claimed the con-
tract required it to select employees for lay off based on classi-
fication seniority while the Union claimed the contract required
that the employees be laid off based on departmental seniority.
The Union advocated as best it could through all the pre-
arbitration steps of the grievance procedure. Next, I conclude
that all parties, including the Charging Party and the other al-
leged discriminates, agreed to be bound by the result of the
grievance procedure. This is so both because the alleged dis-
criminatees themselves invoked the grievance procedure by
filing grievances and because the Union is the representative of
those employees in the grievance process. In other words, as a
matter of law the employees have agreed to be bound by the
actions of their collective-bargaining representative, at least in
the absence of any evidence that the Union acted outside of the
broad boundaries of its duty of fair representation. The next
Spielberg/Olin standard is whether the “arbitrator” considered
the unfair labor practices in the sense that the arbitrator was
generally presented with the evidence concerning the unfair
labor practice. In this case the question must be whether the
Union adequately considered the evidence of any unfair labor
practice, because the grievances never made it to arbitration. I
conclude the Union has done so. It fully considered the con-
tractual aspect of the layoffs and it ultimately concluded that
the contract required Coca-Cola to act as it did. And the Union
interviewed the Charging Party and other alleged discrimi-
natees. In the absence of evidence to the contrary I conclude
those employees told the Union much of the same things that
those employees told the General Counsel during the investiga-
tion of the charge and form the basis of the independent 8(a)(1)
allegations. Finally, I assess whether the grievance settlement
is repugnant to the Act. In this regard, the General Counsel
argues that the issue must be assessed as if the complaint alle-
gations are meritorious. If this is the test, then the settlement is
clearly repugnant because it provided only for a tiny fraction of
backpay and no reinstatement. But I conclude that the General
Counsel misapplies the standard. Rather, the test must be as if
an arbitrator (or here the Union) has considered the complaint
allegations and concluded they were without merit. Having
concluded that the grievances (and implicitly the complaint
allegations) lacked merit there is nothing repugnant about a
failure to grant relief. I conclude that the grievance settlement
meets the standards for deferral and I dismiss the complaint.
I further conclude that the analysis in the preceding para-
graph was entirely unnecessary. This is so because the charge
should have been deferred under Collyer and the Union simply
refused to process the grievances through arbitration or settle
them in a manner satisfactory to all parties. When a union re-
fuses to arbitrate a case under these circumstances, the result is
dismissal of the charge.3 As I stated in my previous decision,
to conclude otherwise would fundamentally alter the well-
settled principle that deferral under Collyer is not a request to
arbitrate but rather an order to do so.
Finally, in his brief the:

General Counsel would also urge the ALJ and the Board to
modify its approach to pre-arbitral deferral cases by applying
current non-Board settlements practices, including review un-
der Independent Stave, 287 NLRB 740 (1987).

However, the General Counsel does not present any arguments
as to why existing law should be changed or how the applica-
tion of Independent Stave would impact the Board’s deferral
policy. In the absence of such arguments I am unable to make
any recommendation to the Board as to whether it should con-
sider changing existing law.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The complaint is dismissed.
3 I have repeatedly asked the General Counsel whether he agrees
with this statement of the law and if not to explain why. The General
Counsel has just as consistently refused to do so. For some reason it
seems intellectual integrity appears in short supply in this case.
4 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.