Employment Law: NLRB Accused Of Not Following Its Own Rules

, The Connecticut Law Tribune

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National Labor Relations Board Administrative Law Judge William G. Kocol recently penned a neat summation of a complicated, but well-settled area of NLRB law. His decision very succinctly explained board policies regarding the deferral of unfair labor practice charges to the grievance and arbitration procedures in the parties' collective bargaining agreement.

In so doing, however, it seemed apparent that he was trying to draw attention to a very different issue.

In BCI Coca-Cola Bottling Co., 28-CA-022792 (Aug. 29, 2013), Kocol not only decided the case, but also vented frustration with what he evidently viewed as the board's seeming reluctance to acknowledge the correct application of its own law. Noting that the board itself had recently confirmed its support for its long-standing deferral policies, Kocol opened his decision with the following remark: "This case serves as a reminder that those policies have successfully defined the rules of the game and should not be flippantly ignored."

The BCI case revolved around a complaint alleging that Coca-Cola violated the National Labor Relations Act by, among other things, laying off eight employees because of their union activities. The NLRB general counsel's theory was that Coca-Cola wanted to lay off an activist shop steward, and so it also laid off seven other employees in order to get to its target. The layoffs took place during the "great recession" of 2009 and the union's vice president had admitted that the union knew "that it was apparent that layoffs were coming." Coca-Cola asserted that the layoffs were conducted in accord with the parties' collective bargaining agreement, and raised as an affirmative defense that the complaint allegations were settled with the union after grievances were filed.

In setting the stage for his critical assessment of the general counsel and the board's handling of the matter, Administrative Law Judge Kocol explained that in his original decision, he concluded that the general counsel incorrectly deferred the case under the so-called Dubo standards instead of under the so-called Collyer standards. Under Dubo, the ALJ explained, "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 dismissed."

Kocol further explained that he attempted to correct the "significant error" by ordering "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." To his evident dismay, the board reversed him.

Scathing Decision

In the administrative law judge's estimation, the board's decision implicitly concluded "that it made no difference whether the parties are correctly advised of the consequences of failing to take a grievance to arbitration." He further noted that the board's conclusion rested on cases that did not even address the immediate situation, i.e., a case that should have been deferred under Collyer. To make matters worse, according to Kocol, the board then ordered him to engage in an analysis that he later described as "entirely unnecessary."

At the heart of his scathing decision is Kocol's unwavering belief that the charge should have been deferred under Collyer but that the general counsel and the board "lacked the intellectual integrity" to so conclude.

Criticism of the board is nothing new, but the harsh tone in BCI follows fast on the heels of several recent federal court cases undermining the board's ability to act at all — not just the manner in which it chooses to handle a case. See National Association of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013)(invalidating a rule that employers subject to NLRB jurisdiction would be guilty of an unfair labor practice if they did not post a "Notification of Employee Rights under the National Labor Relations Act"); Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013) cert. granted, 133 S. Ct. 2861 (2013)(President Barack Obama's recess appointments were not constitutionally valid and, therefore, the board could not lawfully act when it issued its order); Chamber of Commerce of U.S. v. NLRB, 879 F. Supp. 2d 18 (D.D.C. 2012)(holding invalid a board rule that amended the procedures for determining whether a majority of employees wanted union representation because the rule was adopted without the statutorily required quorum).

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