By: Michele Haydel Gehrke, Esq.

On August 29, 2013, well-respected NLRB Administrative Law Judge William Kocol issued a decision (here) blasting the NLRB and its General Counsel for lacking “intellectual integrity” in how they refused to properly defer and later dismiss a case under Collyer Insulated Wire, 192 NLRB 837 (1971).  See BCI Coca Cola Bottling Co. of Los Angeles, 28-CA-022792 (Aug. 29, 2013 ALJ Decision).

The case arose after a worker filed a NLRB Charge following his layoff from BCI Coca Cola Bottling Co. of Los Angeles.  The United Industrial, Service, Transportation, Professional and Government Workers of North America filed a grievance on his behalf and the other seven laid off workers.  The Board deferred processing of the Charge under Dubo Mfg. Corp., 142 NLRB 431 (1963) instead of under Collyer.  The distinction is important. Under Dubo, if the grievance is not arbitrated, then the Region proceeds to complete its investigation of the Charge.  However, under Collyer, if the grievance is not arbitrated or properly settled, then the Charge is dismissed. 

After agreeing with the Company that the layoffs were not a breach of the collective bargaining agreement, the union agreed to settle the case.  The Board refused to honor and approve of the settlement between the employer and the union, and issued a complaint under Section 8(a)(1) and 8(a)(3), citing the layoffs and the alleged threats to the workers.  In his original September 2012 ruling, Judge Kocol found that the case should have been deferred under Collyer instead of Dubo, and remanded for the parties to consider the implications of the settlement. 

The Board reversed the Judge’s decision and held that the Judge should have considered approval of the settlement, and held that the deferral standards were immaterial.  The employer filed a motion for reconsideration, pointing out the error in the Board’s application of the deferral standards.  However, the Board and the General Counsel refused to back down despite decades of Board precedent contrary to their position. 

On remand, Judge Kocol considered the settlement under applicable Board standards and approved the settlement, resulting in dismissal of the Charge under Collyer.  In his ruling, the Judge took the Board and the General Counsel to task for the lack of “intellectual integrity” in how they handled the case, and for requiring an analysis that would have been unnecessary if they had properly applied Collyer in the first place.

This case is an illustration of the potential difficulties in litigating with the General Counsel and before the Board when decades-old precedent may be ignored to achieve the results desired by the agency.