The opinion
ON PETITION FOR REHEARING
In its petition for rehearing the Board has asked us to reconsider our decision that Section 8(b)(1)(B) does not prevent unions from fining supervisors who perform rank-and-file work behind a picket line.
The Board has asked us to consider NLRB v. Local 2150, International Brotherhood of Electrical Workers, 486 F.2d 602 (7th Cir. 1973), decided shortly after we issued our opinion. In that case strikebreaking supervisors held withdrawal cards which entitled them to pension benefits and waiver of reinstatement requirements. They were fined by the union for crossing picket lines and performing rank-and-file struck work. The Seventh Circuit found that the imposition of such fines was an unfair labor practice because the supervisors were exercising a proper managerial function and were therefore protected under the Act.
Our attention has also been called to International Brotherhood of Electrical Workers v. NLRB, 487 F.2d 1143 (D.C. Cir. 1973) (on rehearing in banc). In that case, also decided after our opinion was announced, the D. C. Circuit, in bane, on a rehearing, came to the opposite conclusion. That Court found, as we did, that although strikebreaking may be in the employer’s economic interest, supervisors who perform rank-and-file struck work are not representing the employer “for the purposes of collective bargaining or the adjustment of grievances” under Section 8(b)(1)(B). We agree.
NLRB v. Boeing Co., 412 U.S. 67 , 93 S.Ct. 1952 , 36 L.Ed.2d 752 (1973), was decided after our opinion was filed. We held that the Board was required to pass on the reasonableness of the $10,000 fines imposed by the union on two of its supervisory members. We remanded the case to the Board for further proceedings on these fines. In Boeing the Supreme Court held that the reasonableness of union fines must be decided in a separate proceeding by the state courts and not by the Board. We therefore delete that portion of our opinion remanding the case to the Board to consider the reasonableness of the $10,000 fines.
In all other respects we adhere to our former opinion.
The full court was informed of the suggestion for an in banc hearing, and no judge requested a vote on the suggestion for a rehearing in banc. Fed.R.App.P. 35(b).
The petition for rehearing is denied, and the suggestion for a rehearing in banc is rejected.