BCI Coca-Cola Bottling Company of Los Angeles

National Labor Relations Board - Unpublished Board Decisions

Jun 28, 2013

28-CA-022792 (N.L.R.B. Jun. 28, 2013)

NOT INCLUDED IN PGB
BOUND VOLUMES Tempe, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BCI COCA-COLA BOTTLING
COMPANY OF LOS ANGELES
and Case 28-CA-022792
WAYNE ABRUE
ORDER DENYING MOTION FOR RECONSIDERATION
On April 30, 2013, the National Labor Relations Board issued a Decision and Order in
this proceeding1 remanding the case to the administrative law judge to conduct a hearing and
determine whether the settlement agreement between the Respondent and the Union warrants
deferral pursuant to Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573
(1984). The complaint alleges that the Respondent laid off eight employees in violation of
Section 8(a)(3) and (1) of the Act, and that the Respondent violated Section 8(a)(1) by making
threats of futility, layoffs, and other unspecified reprisals. The settlement agreement specifically
addresses the alleged unlawful layoffs, but does not specifically mention the 8(a)(1) allegations.
In addition, no party addressed the 8(a)(1) allegations at the hearing or in the exceptions briefs,
but they were not dismissed. Accordingly, the Board remanded the case in its entirety, directing
the judge to determine whether the settlement agreement warrants deferral and to decide the
8(a)(1) allegations.
On May 24, 2013, the Respondent filed a motion for reconsideration, arguing: (1) that the
Board did not have a valid quorum under Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013),

1 359 NLRB No. 110.
2
petition for cert. granted 2013 WL 1774240 (U.S. June 24, 2013) (No. 12-1281), and NLRB v.
New Vista Nursing and Rehabilitation Center, __ F.3d __ No. 12-1936 (3d Cir., May 16, 2013),
when it issued its April 30 Order; and (2) that the Board erroneously directed the judge to decide
the 8(a)(1) allegations because those allegations are encompassed by the settlement agreement.
The Acting General Counsel filed an opposition to the motion.
Having duly considered the matter, the Board finds that the Respondent’s motion fails to
present “extraordinary circumstances” warranting reconsideration under Section 102.48(d)(1) of
the Board’s Rules and Regulations.
We reject the Respondent’s quorum-based arguments for the reasons stated in
Bloomingdales, Inc., 359 NLRB No. 113 (2013).
We also reject the Respondent’s argument that the Board erroneously remanded the
8(a)(1) allegations for consideration by the judge. As stated, no party argued on exceptions to
the judge’s initial decision that the settlement agreement encompassed those allegations.
Nevertheless, nothing in the April 30 Order forecloses the Respondent 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.
Accordingly, we conclude that the Respondent has not established extraordinary
circumstances warranting reconsideration of the Board’s Order Remanding.
IT IS ORDERED, therefore, that the motion for reconsideration is denied.
Dated, Washington, D.C., June 28, 2013.
_____________________________
Mark Gaston Pearce, Chairman
_____________________________
Richard F. Griffin, Jr., Member
3
_____________________________
Sharon Block, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD