Petition — American Broadcasting Cos. v. Writers Guild of America, West, Inc.

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4 Supreme Court, U. $

FILED

_on FES 14 4977

Supreme Court of the United Statess, ciom

October Term, 1976

Pe <eo 08 112 l

AMERICAN BROADCASTING COMPANIES, INC., CBS INc.,

and NATIONAL BROADCASTING COMPANY, INC.,

Petitioners,

vs.

WRriTerRS GUILD OF AMERICA, WEsT, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

CHARLES G. BAKALY,

611 West Sixth Street,

Los Angeles, Calif. 90017,

Attorney for Petitioners:

American Broadcasting Companies,

Inc., CBS Inc., and National Broad-

casting Company, Inc.

Of Counsel:

O'MELVENY & MYERS,

RICHARD N. FISHER,

Gorpon E. KRiscHEer.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Page

Opinions Below conncmeers > A

EE ae tie a i a ee 2

Question Presented ............. 2

Statute Involved cece 2

Statement of Case . 3

Reasons for Granting the Writ 8

1. The Decision Below Is in Direct Conflict

_ With Decisivizs.of the Seyenth and District

of Columbia Circuits Which Hold That

Union Discipline of Supervisor-Members for

Performing Supervisory Duties During a

Strike Violates § 8(b)(1)(B) of the Act... 8

2. The Decision Below Raises an Important

Question of Federal Labor Law Which

Should Be Settled by This Court 10

Conclusion . , lene. Ce

il.

INDEX TO APPENDICES

Appendix A. Decision of Administrative Law

FUDD <ncesaxtencsncnieeteneantiodetingpebdimgumauatia -App. p. A-l

bor Relations Board ............ B-1

Appendix D. New York Typographical Union No.

6, International Typographical Union, AFL-CIO

and Daily Racing Form, a Subsidiary of Triangie

Publications, Inc., 216 N.L.R.B. 896 (1975) .. Dl

Appendix E. Chicago Typographical Union No.

16 and Hammond Publishers, Inc.,216 N.L.R.B.

903 (1975) . ‘ ie .. Bl

iii.

TABLE OF AUTHORITIES CITED

Cases Page

Booster Lodge No. 405, LA.M. v. NLRB, 412 US. .

OFF CE seleditecnaiinsietedahtonantens Focuitiene eter oa= 7s. 11

Chicago Typographical Union No. 16, 216

N.L.R.B. 903 (1975) ..................- 5

Chicago Typographical Union No. 165 v. NLRB,

No. 75-1320 (D.C. Cir., June 21, 1976); petition

for cert. filed, 45 U.S.L.W. 3385 (U.S. Nov. 16,

1976) (No. 76-688) ............. 9

Florida Power & Light Co. v. I.B.E.W., Local 641,

417 US. 790 (1974) ........ 4, 5, 6, 7, 8, 10, 11, 12

1.B.E.W., Local 134 v. NLRB, 487 F.2d 1143

Cel Gly PSD: vetenenasteneiventinscyene 12

International Brotherhood of Boilermakers v. Harde-

man, 401 U.S. 233 (1971) , 11

New York Typographical Union No. 6, 206

N.L.R.B. 294 (1973), reconsidered and affirmed,

216 N.L.R.B. 896 (1975) ..... . 5, 6

NLRB v. Allis-Chalmers Manufacturing Co., 388

A: a 11

NLRB v. Boeing Co., 412 U.S. 67 (1973) .......... il

NLRB v. Granite State Joint Board, Textile Work-

ers Local 1029, 409 U.S. 213 (1972) . il

Scofield v. NLRB, 394 U.S. 423 (1969) .... il

Wisconsin River Valley District Council of Car-

penters v. NLRB, 532 F.2d 47 (7th Cir., 1976). 8

Rules

Supreme Court Rules, Rule 19 000.0... ccccceeeeeeeee. 2

iv.

Statutes Page

Labor Management Relations Act of 1947, Sec. 8

(b)(1)(B) (29 U.S.C. § 158(b)(1)(B)) ........

sczevsusnasuntanepumapninanienuagiiipenepreiil 2, 4, 5, 6, 7, 8, 9, 10

Labor Management Relations Act of 1947, Sec.

10(6) (29 U.S.C. § 160(€)) ......---cececeoccesscccceee 6

Labor Management Relations Act of 1947, Sec.

BOLT) CD WAG. & BGREED) ccnscecencnectectnenntnencttige 6

United States Code, Title 28, Sec. 1254(1) ........ 2

Supreme Court of the United States

October Term, 1976

Petitioners,

vs.

Writers Gui_p or America, West, INc.,

the judgment of the United States Court of . Appeals

for the Second Circuit which denied enforcement of

an order of the National Labor Relations Board (here-

colin

217 NLRB No. 159, is set forth in Appendix B hereto.

The decision of a divided panel of the court of appeals

which denied enforcement to the Board’s order, with

Judge Moore dissenting, is not yet reported and is set

forth in Appendix C hereto.

Jurisdiction.

The judgment of the court of appeals was entered

on November 22, 1976. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1), and in accord-

ance with Supreme Court Rule 19.

Question Presented.

Does a labor union violate § 8(b)(1)(B) of the

Labor Management Relations Act, as amended, by

those supervisor members and managerial members who

perform solely their normal supervisory and managerial

duties including grievance adjusting and collective bar-

gaining during a strike by said union against their

employer?

Statute Involved.

Section 8(b)(1)(B) of the Labor Management Rela-

tions Act of 1947, as amended, (hereinafter “Act”)

29 U.S.C. § 158(b)(1)(B) provides:

“It shall be an unfair labor practice for a labor

organization or its agents to restrain or coerce

. . » an employer in the selection of his represen-

tatives for the purposes of collective bargaining

or the adjustment of grievances... .”

nsilitain

Statement of Case.

In March of 1973, Respondent, Writers Guild of

America, West, Inc. (hereinafter “Guild”) commenced

a four month economic strike against Petitioners (here-

inafter the “Networks”) and others.* In anticipation of

—4-

prior to the strike. During the strike, supervisor-members

did not perform any rank-and-file struck work. The

Guild’s threats against the supervisor-members were

followed by disciplinary trials and the imposition of

substantial fines. j ;

ing violations by the Guild of § 8(b)(1)(B) of the-Act.

Complaints issued against the Guild alleging violations

of § 8(b)(1)(B) and a hearing was held before an

administrative law judge on said complaints. He deter-

mined that when the Guild prevented or sought to pre-

vent the Networks’ supervisor-members from perform-

ing work in theiz managerial and supervisory capacities

during the strike, the Guild restrained and coerced

the Networks in the selection of their representatives

for the purpose of collective bargaining and adjusting

grievances in violation of § 8(b)(1)(B) of the Act.

(App. A at 46-48). In reaching this conclusion, he

distinguished Florida Power & Light Co. v. 1.B.E.W.,

Local 641, 417 U.S. 790 (1974) where a bare majority

of this Court held that “unions did not violate §

8(b)(1)(B) of the Act when they disciplined their

supervisor-members for performing rank-and-file struck

work.” 417 US. at 813. [Emphasis supplied. |

The Board adopted the findings of fact and decision

of the administrative law judge and additionally held

that the Guild’s threats of discipline also violated

§ 8(b)(1)(B). (App. B at 3). The Board’s decision

does not elaborate its reasoning but it is quite clear that

the Board did not regard Florida Power & Light, supra,

as controlling. Rather, the Board relied on and cited two

subsequent Board decisions to sustain its finding of

§ (8)(1)(B) violations in the instant case: New York

Typographical Union No. 6, 206 N.L.R.B. 294 (1973)

reconsidered and affirmed in light of Florida Power &

Light Co., 216 N.L.R.B. 896 (1975); Chicago Typo-

graphical Union No. 16, 216 N.L.R.B. 903 (1975),

enforced, No. 75-1320 (D.C. Cir., June 21, 1976);

petition for cert. filed, 45 U.S.L.W. 3385 (U.S. Nov.

16, 1976) (No. 76-688). These two Board decisions

are set forth respectively in Appendices D and E hereto.

In Florida Power & Light, the Court had stated:

“The conclusion is thus inescapable that a union’s

discipline of one of its members who is a super-

visory employee can constitute a violation of 8(b)

(1)(B) only when that discipline may adversely

affect that supervisor's conduct in performing the

duties of, and acting in his capacity as, grievance

adjuster or collective bargainer on behalf of the

employer.” 417 U.S. at 804-05. [Emphasis sup-

plied. |

The Board interpreted the Court’s language as follows:

“We believe that the adverse future effect which

the Supreme Court referred to as violative in

Florida Power is as likely to occur, regardless

of a union’s professed reasons or intent, if a

supervisor-member is disciplined after having per-

formed only his normal supervisory duties or if

he is disciplined after having engaged in contract

interpretation. In the latter case it is the super-

visor’s future manner of contract interpretation

which is likely to be influenced and in the former

case it is the supervisor’s actual future performance

of supervisory duties, including grievance adjust-

ment or collective bargaining, which is likely to be

influenced. In either case the employer has been re-

strained in the selection of his 8(b)(1)(B) rep-

resentative.” 216 N.L.R.B. at 897, App. D at 6

(Footnote omitted). See also App. E at 4-8.

Board Member Fanning dissented in the instant case

(App. B at 5) for the reasons set forth in his dissent

in New York Typographical Union No. 6, supra (App.

D at 7-20), to wit: that in light of Florida Power

& Light, § 8(b)(1)(B) must be read to permit unions

to discipline supervisor-members for working during

a strike against their employer despite the fact that

adjudication of an alleged violation of § 8(b)(1)(B).

In the instant case the Board’s petition for enforce-

ment and the Networks’ petition for review of the

Board’s order were filed with the court of appeals pur-

suant to § 10(e) and § 10(f) of the Act, 29 U.S.C.

§§ 160(e), (f), respectively. A divided panel of the

court of appeals denied enforcement of the Board's

order substantially for the reasons set forth in Member

Fanning’s dissent. Notwithstanding the facts as found by

fe 4

en” a eae S

a, Se

the Board, the court held “that the Board, as a matter

of law incorrectly applied Section 8(b)(1)(B) to the

instant case... .” (App. C at 3) Dissenting, Judge

Moore would have enforced the Board’s order because

he found that the majority's reliance on Florida Power &

Light was misplaced in that this Court “made it clear

[therein] that there is a definite cleavage between super-

“ft}he Court of Appeals should not usurp the function

of the ALJ and Board unless there is complete absence

of evidence to support its findings.” (App. C at 6).

Duties During a Strike Violates § 8(b)(1)(B) of

the Act.

In Florida Power & Light Co. v. 1.B.E.W., Local

641, supra, supervisor-members who crossed their

union’s picket lines during a strike to perform struck

bargaining unit work were disciplined by their union.

The Court framed a narrow question for decision:

. . » Whether the unions committed unfair labor

practices under § 8(b)(1)(B) when they dis-

ciplined their supervisor-members for crossing the

picket lines and performing rank-and-file struck

work during lawful economic strikes against the

companies.” 417 U.S. at 792.

It reached an appropriately narrow holding:

“[Wle hold that the respondent unions did not

violate § 8(b)(1)(B) of the Act when they dis-

ciplined their supervisor-members for performing

rank-and-file struck work.” Jd. at 813.

Subsequent to Florida Power & Light, the Seventh

and District of Columbia Circuits have reviewed and

enforced Board orders finding § 8(b)(1)(B) violations

where unions disciplined supervisor-members who per-

formed their normal supervisory duties against their

unions’ wishes. Both courts regard the nature of the

work performed by the supervisor-members as being

the key legal issue in § 8(b)(1)(B) adjudications.

In Wisconsin River Valley District Council of Car-

penters v. NLRB, 532 F.2d 47 (7th Cir., 1976),

as the Board 20 found, adversely affect the supervisor's

conduct of his § 8(b)(1)(B) duties. The Seventh Cir-

cuit stated:

. . . Florida Power and its antecedents teach that

the focus of a Section 8(b)(1)(B) inquiry rests

on the nature of the supervisors’ duties when dis-

cipline is imposed. Where supervisors cross picket

lines to perform regular supervisory duties, union

discipline violates Section 8(b)(1)(B) since it

tends to deprive the employer of its supervisors’

services—including their § 8(b)(1)(B) services—

and because the supervisors would reasonably an-

ticipate that union discipline would also be imposed

if future performance of their § 8(b)(1)(B) fune-

tions did not meet with union approval.” 532 F.2d

at 53.

Similarly, in Chicago Typographical Union, No. 16

v. NLRB, No. 75-1320 (D.C. Cir., June 21, 1976),

petition for cert. filed, 45 U.S.L.W. 3385 (U.S. Nov.

16, 1976) (No. 76-688) the District of Columbia

Circuit enforced the Board’s order on the basis of

the Board’s opinion reported at 216 N.L.R.B.

90? (1975) (App. E). In Chicago Typographical

Union, No. 16, the union disciplined supervisor-

members who we:‘ced behind picket lines during a law-

ful strike but performed supervisory duties including

grievance adjusting. The court thus sustained the

=— =

Board's finding of a violation of § 8(b)(1)(B) and the

Board’s interpretation of Florida Power & Light.

By affirming the Board’s decisions, the Seventh

and District of Columbia Circuits have clearly and

unmistakably rejected Member Fanning’s interpretation

of Florida Power & Light to the effect that the nature

of the work actually performed by supervisor-members

who are disciplined for working in violation of union or-

ders is irrelevant to the determination of a § 8(b)(1)(B)

violation. The Second Circuit's decision herein by

adopting Member Fanning’s dissent as a matter of law

is thus directly in conflict.

2. The Decision Below Raises an Important Ques-

tion of Federal Labor Law Which Should Be

Settled by This Coart.

The question presented has not been decided by

this Court and until it is it will remain an open

and persistently recurring question with which both

sides to labor disputes must contend and somehow

govern their conduct.

The Court in Florida Power & Light reached the

narrow holding that “unions did not violate § 8(b)(1)

(B) . . . when they disciplined their supervisor-members

for performing rank-and-file struck work.” 417 U.S. at

813. [Emphasis supplied]. In his dissenting opinion in

Florida Power & Light, joined by three other Justices,

Justice White stated: “I do not read the Court to

say that § 8(b)(1)(B) would allow a union to disci-

pline supervisor-members for performing supervisory or

management functions, as opposed to customary rank-

atone

and-file work, during a labor dispute.” 417 U.S. at

815, n.2. Therefore, it is clear that the question pre-

sented herein has not been decided by this Court.

The circumstances under which the question arises

is the common, everyday economic strike wherein some

supervisors of the struck employer may also be members

of the striking union. The striking union, in order to

maintain solidarity and to increase its economic pres-

sure, fines members who work during the strike, and

now, under the principle established by this case, will no

doubt fine supervisor-members who, even though they

work, do not perform bargaining unit work. With good

reason, the ability of a union legally to levy fines and

discipline its members has in the past been and continues

=— =

on.* Under its principle, workers are allowed to tell

their supervisors and managers who may retain some

form of union membership, “Now that we are on strike,

you can’t work either. If you continue working, by

ance adjusting and collective bargaining, you will re-

ceive a substantial fine.” It is submitted that such a dra-

matic change in the traditional economic weapons

available to unions is one not contemplated by the Act

or by federal labor policy.

normal supervisory duties which is strongly indicated

by the Court’s narrow holding in Florida Power &

Light, supra, is firmly rooted in articulated federal

labor policy and is founded upon the traditional and

—13—

Conclusion.

For the foregoing reasons, this petition for a writ

of certiorari should be granted.

Respectfully submitted,

CHARLES G. BAKALY,

Attorney for Petitioners:

American Broadcasting Companies,

Inc., CBS Inc., and National Broad-

casting Company, Inc.

Of Counsel:

O'MELVENY & MYERS,

RICHARD N. FISHER,

Gorpon E. KRISCHER.

February 11, 1977.

APPENDIX

Jt ee. 2 ao tk ae

—A-1—

APPENDIX A.

Decision.

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D.C.

Writers Guild of America, West, )

Inc. )

ont ) Case No.

sina Pieiees cag) 24D 1208-2

)

. Case No.

) 31-CB-1223

)

) Case No.

4 31-CB-1316

)

Case No.

31-CB-1313

po nes

= -

—_s

Writers Guild of America, West, )

Inc. ) Case No.

and ) 31-CB-1355

QM Productions )

Philip R. LeVine, Esq., for the General Counsel.

Charles K. Hackler, Esq., and Gerald Goldman, Esq.

(Levy, VanBourg & Hackler), and John A. Men-

donsa, Esq., Los Angeles, Calif., for the Respond-

ent.

Harry J. Keaton, Esq. (Mitchell, Silberberg & Knupp;

Andrew B. Kaplan, Esq., on the brief); David

G. Miller, Esq. (Loeb and Loeb), Los Angeles,

Calif.; for the Charging Party AMPTP.

Richard N. Fisher, Esq. (O'Melveny & Myers; Ray-

mond P. Herman, Esq., on the brief), Los An-

geles, Calif. for the Chargirg Party Networks.

DECISION

Statement of the Case

SIDNEY J. BARBAN, Administrative Law Judge:

This matter was heard at Los Angeles, California,

on several dates from May 21 until November 26,

1973." The hearing was closed by an order dated

January 25, 1974.

1. Procedure

Upon a charge filed in Case No. 31-CB-1203-2,

on March 8, against Writers Guild of America, West,

Inc. (herein “Respondent”) by Association of Motion

Picture and Television Producers, Inc. (herein

‘All dates herein are in 1973, unless otherwise noted.

—A-3—.

“AMPTP”), and a charge filed in Case No. 31-CB

anf tion

General Counsel filed a motion dated December 11,

to substitute a Second Consolidated Amended Com-

plaint for all complaints previously issued in the above-

captioned cases, to which Respondent filed an answer

dated December 13. Finally, in lieu of further hearing

in these matters, all parties submitted a stipulation

of facts with exhibits attached, dated December 17.

By Order dated January 25, 1974, General Counsel's

motion to substitute the Second Consolidated Amended

Complaint for all prior complaints was granted and

the complaint and the answer thereto were received

into the record, and the stipulation of facts, with speci-

fied exhibits, was received, the hearing in this proceed-

ing was closed, and date set for receipt of briefs.’

2. Allegations

The various complaints issued in this proceeding,

cumulated in the Second Consolidated Amended Com-

plaint (herein referred to as the complaint), allege

that Respondent violated Section 8(b)(1)(B) of the

Act by restraining and coercing employer-members of

AMPTP, and NBC, CBS, ABC, and OM in the selection

of their representatives for collective bargaining and

the adjustment of grievances by threatening to dis

Upon the entire record in this case, from observation

of the witnesses, and after due consideration of the

briefs filed by the General Counsel, the Respondent,

and the Charging Parties," I make the following:

$100,000 from sales to customers located outside Cali-

fornia, and each annually purchases goods valued in

excess of $50,000 directly from suppliers located outside

California.

OM, a corporation with its principal place of busi-

ness in Burbank, California, engaged in the production

and distribution of motion picture and television films,

annually sells such films valued in excess of $50,000

directly to customers located outside California.

Respondent’s answer admits, and it is found that

the Association, and its members through the Associa-

tion, CBS, NBC, ABC, and QM are employers engaged

in commerce within the meaning of the Act.

Respondent's answer admits, and it is found that

Respondent is now and at all times material has been

a labor organization within the meaning of the Act.

II. Preliminary Statement of Facts

and Principal Issues

Respondent has for some time represented persons

engaged in writing functions employed by members

of AMPTP, the Networks, and certain independent

producers such as QM. As a result of prior bargaining,

Respondent was a party to collective-bargaining agree-

ments with AMPTP, for its members, with the Net-

works, and with QM due to expire in 1973. The

AMPTP agreements were terminated effective March

4, by notice from the Respondent pursuant to the

terms of the agreements. On or about that same date,

Respondent engaged in a strike against the AMPTP

and its employer members which continued until June

24, during which time Respondent picketed some of

those employers at various times. Beginning on or

for on strike, or to cross picket lines to

go upon the premises of such employers without

permission of Respondent. Respondent took other ac-

tion, and caused certain publicity to issue designed

to impress upon its members the consequences of violat-

ing these Rules.

even when their principal function is other than writing,

the nature of the work is such that they must and

do engage in some writing. The hyphenate’s principal

work function (other than writing) will sometimes be

referred to herein as his (or the) “primary function.”

enfiiiiies

General Counsel contends that these hyphenates oc-

cupy supervisory positions within the meaning of the

Act, and are representatives, or potential and likely

representatives, for their respective employees [sic] for

the purposes of collective bargaining or the adjustment

of grievances.

The record indicates that Respondent was particu-

larly concerned that its hyphenate members should

not cross picket lines or go to work during the strike.

Members who were in a withdrawn status prior to

the strike were reactivated. Most of the hyphenates

appear to have held only associate membership in Re-

spondent at the time. Those hyphenates questioned

indicated their understanding that, as associate mem-

bers, they had no right to vote on the adoption of

the Respondent's strike rules, and did not do so. With

one exception, the hyphenates also testified to the same

effect with respect to the vote authorizing Respondent

to strike. Herbert Wright, an associate producer, testi-

fied that at the strike vote meeting he was given

a card permitting him to vote on authorization of

the strike, but was not given an opportunity to vote

on the strike rules.

Respondent’s Constitution and By-Laws in evidence

(G.C. Exh. 12a) are confusing on the issue. Those

in effect until December 1972 in Article IV,

Section 6, paragraph 1, that associate members shall

not have the right to vote, while Article XTV, Section

mative

IV, Section 7(b) provides that associate members under

certain conditions (different from those noted above)

might vote on strikes. However, it is not shown that

prior to the strike, to resign from membership in Re-

—A-10—

The major issues to be resolved are the following:

2. Whether various actions of alleged restraint and

coercion of hyphenates by Respondent designed to com-

pel the hyphenates to cease work for the struck em-

ill

;

_-—-

under the supervision of the producer or others associ-

ated with the producer; the employment of a director

and cast for the film, as well as other employees

necessary to make the film (cameraman, etc.); the

selection of sets, locations; the performance of executive

Het

—A-12—

if the producer had decided that a commitment had

been made, that would have been binding and resolved

tion in situations in which there may be dispute over

the assignment of screen credits to writers, although

this is a complex matter, subject to extensive review.

In situations in which the film is being shot on a

distant location, the producer may be involved in negoti-

ating or agreeing to short-term agreements with local

unions where the services of local craft members are

required, and possibly adjusting, or attempting to adjust,

local jurisdictional conflicts.

In general, an executive producer supervises one

or more producers (this seems to be particularly the

case in the television industry where an executive pro-

ducer may have responsibility for several series or

projects at the same time, each with its own producer).

The associate producer is an assistant to the producer.

Without distinguishing among them in detail, it is clear

on this record that persons occupying these positions

in the motion picture or television industries have the

authority to hire, terminate, and responsibly direct other

employees, and to adjust employee grievances, or to

effectively recommend such action, and are thus super-

visors within the meaning of Section 2(11) of the

Act. Respondent does not contest this finding or conclu-

sion (brief, pp. 7-8), except, as noted, in respect to

the producer's role in adjusting grievances of writers.

(Brief, pp. 4, 7-8). As found above, however, I find

that producers, executive producers and associate pro-

ducers do or potentially may adjust grievances involving

writers.

Respondent contends that persons performing the

functions considered here, as well as those occupying

g 8

5 E

—A-14—

hire or effectively recommend the employment of crew

employees. They have authority to and do adjust griev-

ances of such employees. It is found that persons

performing the functions of director in the television

grievances of employees within the meaning of the

Act.

The record indicates approximately 15 hyphenate

members of Respondent in this position employed by

the charging parties (without duplicating those listed

as producer-directors, or the like). Of these Respondent

charged the following with violation of its strike rules:

Philip Kaufman, Michael Crichton and Sam Peckinpah,

Crichton was brought before a trial panel and was

3. Story editors, story consultants, script consult-

ants, executive story editors, executive story consultants.

—A-15S—

He also may serve as a buffer between management

and the writer, as in ameliorating a writer's distress

over material that has been rewritten. Thus one execu-

tive story editor testified that because he is the first

person in the studio that the writer meets, and due

to the story editor's close association with the writer,

“if he [the writer} has a problem, more likely than

not, he will come to me because it is usually a problem

with a producer, or things aren't working out.” During

the disciplinary trial of one in this group, Coles Trap-

nell, it was indicated that he supervised story analysts

employed by the employer.

In all of these functions it is found the story

editor is expected to and does use individual judgment,

initiative and responsibility. On the basis of the entire

record, it is found that those persons in the television

Of approximately 15 hyphenate-members of Respond-

ent in this position employed by the charging party

Hari a

bers of AMPTP, it is noted that the

i ie

—_Y =

series interviewing other writers, suggesting story ideas

or script changes to other writers, or recommending

approval of material submitted by writers, shall be

subject to this Basic Agreement (excluding Executives,

Executive Producers, and Producers; and also excluding

persons who are employed as bona fide Associate Pro-

ducers, who do not perform services as a writer for

the series and where the above duties of such persons

are incidental to their primary duties ).”

The term “writer” as defined in Article 1, paragraph

B.1.a., and paragraph C.1.a. of that Agreement, in-

cludes, in pertinent part, a person “who pé@rforms serv-

ices . . . in writing or preparing . . . literary material

or making revisions, modifications, or changes in such

literary material .. . , provided, however, that any

writing services described below performed by Produc-

ers, Directors, Story Supervisors (other than as provided

in Article 14 hereof), . . ., or other employees, shall

not be subject to this Basic Agreement and such sources

shall not constitute such person a writer hereunder:

(a) Cutting for time, (b) Bridging material necessitated

by cutting for time, (c) Changes in technical or stage

directions, (d) Assignment of lines to other existing

characters occasioned by cast changes, (e) Changes

necessary to obtain continuity acceptance or legal clear-

ance, (f) Casual minor adjustments in dialogue or

narration made prior to or during the period of principal

photography, (g) Such changes in the course of produc-

tion as are made necessary by unforeseen contingencies

(e.g., the elements, accidents to performers, etc.), (h)

Instructions, directions, or suggestions, whether oral

or written, made to writer regarding story or teleplay.”

These latter eight exceptions were referred to during

the hearing, and will be referred to herein, as “A

to H functions.”

bargaining agreement. Some producers and directors

these changes, perhaps most, involve A to H functions,

and may be made by producers or directors or story

editors whether or not they are members of the Re

spondent. It is indicated that prior to the strike, other

changes of a more substantial nature might be made

in the script when the producer or the director desired.

Such changes would be made by persons qualified

under the applicable contract between Respondent and

the employer.

Respondent argues, however, that even when manage-

ment executives and supervisors perform functions

—A-20—

which have been excluded from the bargaining agree-

ments, such as A through H functions, they are never-

theless performing writing functions within the jurisdic-

tion of Respondent. The argument misses the point.

It is not necessary to decide here what constitutes

writing, or even what different segments of the industry

might consider writing as such. The important point

is that when these executives and supervisors perform

those functions excluded from the Respondent’s bargain-

ing agreements they thereby perform functions which

the parties have acknowledged do not constitute work

reserved to Respondent’s non-hyphenate members under

the agreements, but rather are accepted as a normal

part of the duties and responsibilities of the executives

and supervisors (as hereinabove discussed) employed

by the employers involved.”

V. Strike Related Activities

1. Respondent's strike rules

In February, the Respondent promulgated and dis-

tributed to all its members, including hyphenates oc-

cupying positions discussed above, a list of 31 RULES

FOR CONDUCT OF MEMBERS DURING A

STRIKE. These received considerable publicity in the

local papers and the trade press. Fifteen of these strike

rules relate, in whole or in part, to prohibitions against

writing for struck employers, or the submission of

literary material to such employers (Rules 2, 3, 4,

5, 6, 7, 8, 9, 10, 11, 14, 16, 18, 23, 25). Various

15), acts of agents (Rules 17, 20),

individual negotiations by members (Rule 21), penalties

provided by Respondent's Constitution and By-Laws

(Rule 29), and enforcement of the rules by committees

(Rule 31). The remaining rules in pertinent part, are

as follows:

1. Amy act or conduct which is prejudicial to

the welfare of the Guild is subject to discipli-

nary action. Conduct tending to defeat a s’rike

or in any way. weaken its effectiveness is per

se conduct prejudicial to the welfare of the

Guild.

12. All members are prohibited from crossing a

picket line which is established by the Guild

at any entrance to the premises of a struck

producer. 3

13. Members are prohibited from entering the prem-

ises of any struck producer for the purpose

of discussion of the sale of material or contract

of employment, regardless of the time it is

to take effect. Members are also prohibited

from entering the premises of any struck produc-

er for the purpose of viewing any film . . . should

a member find if necessary to visit the premises

of a struck producer for any reason apart from

the foregoing he should inform the Guild in

advance of the nature of such prospective visit.

19. A member may not, during the course of a

strike, conduct negotiations with a struck pro-

ducer for financing the production of any of

his literary material or scripts, or for his partici-

pation in such production in any capacity.

22.

24.

26.

27.

28.

—A-22—

A member is chargeable with knowledge of

all strike rules and regulations, . . . circularized

through the mail to the membership and of

any strike information made known . . . through

.. . trade papers, newspapers, radio broadcasts

or telecasts. .. .

All members, regardless of the capacity in which

they are working, are bound by all strike rules

and regulations in the same manner and to

the same extent as members who confine their

efforts to writing.

The term “member” encompasses anyone admit-

ted to the membership rolls of the Writers Guild

of America, both West and East, and classi-

fied as either active or inactive, associate, with-

drawn or suspended, whether in good standing

or bad.

No member may be relieved of the responsibil-

ity for the payment of any fine, or from any

disciplinary action fesulting from any infraction

of strike rules by offering his resignation from

the Guild. Membership in any guild or union

is not a voluntary association of parties but

a binding contract between them which cannot

be abrogated unilaterally by either party except

under provisions of the Guild constitution or

state or federal law. It should be noted that

fines levied for infringement of strike rules are

collectible in a suit at law.

The Guild shall have the authority to assign

and direct members in the performance of duties

relating to the strike including, but not limited

to, picket duty. Any member found guilty of

refusal to perform picket duty shall be fined

—A-23—

not less than $100 per day for each day of

satiety

antl

Halu

with certain

Dishonor *” and “be listed in Guild publications ‘in

perpetuity so that Guild members for years to come

will never forget.’ ”. The Guild official assertedly “char-

acterized those members guilty of scabbing as ‘pariahs

who have betrayed their colleagues.’ ”

was maintaining an improper sanction, a matter

of anathema to this Guild, the Board of Directors

rescinded old Rule 30 at its regular monthly meet-

ing of April 30, 1973. This action was taken

voluntarily, in the belief that ample disciplinary

measures remain available to trial committees, in-

cluding penalties of fines, expulsion from member-

—A-25—

ship and other sanctions, and with the conviction

that even in the pursuit of strike discipline, mem-

bers of the Guild do not wish to be a part

of an action which carries the odious implications

may have threatened you with fines

listing in the event it calls a strike and

services for us in any capacity or you fail to

a ee 2

—A-26—

report for picket duty. Any attempt of the Guild

to interfere with your services for us in a capacity

other than as a writer is unlawful and the Guild's

threat of fines, censure, expuision and blacklisting

damages and other penalties."*

3. Enforcement of Respondent's strike rules

As has been previously noted, Respondent, by issu-

ance of the strike rules, by a meeting with the hyphenate

members prior to the strike, by communications and

publicity, emphasized that it would take disciplinary

producers, directors, etc., as the case might be. There

is evidence that Respondent was informed of this."*

;

; .

Hit

———————————— ll tti—(iCt:~S™

e.g., director, producer, story editor, etc., or in some

other executive position, and exercised the authority

appertaining to such positions.**

From April 6 through November 8, 1973, Respond-

ent notified more than 30 hyphenate members that

E F

ini!

a FL

i"}

lk.

—A-29—

they had been charged with violation of Respondent's

strike rules and set hearings on the charges. The only

rules alleged to have been violated were rules 1, 12,

13 and 28. Most hyphenates were alleged to have

violated rules 1, 12 and 13; some culy rules 12 and

13; some rules 1, 12, 13 and 28; some rules 12,

13 and 28, and one only rule 12. Typical of the

language of the charges is the following:

*- + *#

NOTICE IS HEREBY GIVEN that you are

charged with violation of the Guild’s Strike Orders

and Sections 1, 12, 13, and 28 of the Rules for

the Conduct of Members during a Strike, dated

February 20, 1973, as amended May 1, 1973,

copies of which is attached hereto.

Specifically, you are charged with: (1) having

crossed the Guild’s picket lines at CBS Studio

Center, during the months of March, April, May

and June 1973, without having informed the Guild

in advance of the nature of your business with

said company and without having obtained a Guild

pass to enter said premises; (2) having during

the months of March, April, May and June 1973,

rendered services for Columbia Broadcasting Sys-

tem, Inc., a company against whom the Guild

was at such times on strike; and (3) refusing

—A-31—

bon copy to the Board’s Regional Director. The follow-

ing letter to AMPTP sets forth the basis for the requests:

Gentlemen:

Reference is made to the Writers Guild of America

1970 Theatrical and Television Film Basic Agree-

ment (“Agreement”). A dispute exists between

the Guild on the one hand and the Association

its member companies on the other hand concern-

ing the interpretation of the terms of the Agree-

ment and their application and effect with respect

to the effect of the current strike by the Guild

on the employment contracts of its members and

the claimed right of yourself and the companies

to complain of the Guild’s enforcement of its

strike rules with respect to all its members, includ-

ing those employed in other capacities. The Guild

- — i

—A-32—

ened or imposed by the Guild on any of its

members.

This will constitute a notice of grievance in ac-

cordance with the provisions of the Agreement

with you and your member companies that the

Guild submits the dispute to grievance and arbi-

tration pursuant to the provisions of Articles 10,

11, and 12 of the Agreement. In that connection,

the Guild is willing to waive the grievance step

By letters dated May 14, and May 18, AMPTP

and the Networks replied denying Respondent’s griev-

ance and request for arbitration. The pertinent part

of the AMPTP letter, in substance similar to the Net-

work’s [sic] reply, is as follows:

This is in response to your letter of April 28,

1973, in which you claimed that there is a dispute

between the Guild and the Association and its

and application of the terms of the . . . (“Agree-

ment”) in connection with the current strike of

the Guild.

* + *#

In view of the legal nature of the questions raised

by you, and by virtue of the fact that your

letter was obviously an effort to make a record

for purposes of the imminent National Labor Re-

lations Board proceeding in which a complaint

has been issued against the Guild, your letter

was carefully reviewed by our attorneys.

Your request to arbitrate the foregoing issues is

hereby denied for the following reasons:

1. The Grievance and Arbitration procedure

which you seek to invoke is no longer in effect

—A-33—

an impasse by letter of March 27, 1973, we

advised you that effective April 2, 1973, our

member companies intenced to effectuate certain

changes in working conditions including that they

would no longer apply the Grievance Arbitration

provisions of the Agreement, except as to matters

arising before March 5, 1973. You were given

an opportunity to bargain about this intended

change but failed to do so and on April 2, 1973,

said change was implemented.

posed. You have heretofore advanced this theory

unsuccessfully to the General Counsel of the Na-

tional Labor Relations Board. You will no doubt

urge it again in the impending hearing on the

complaint issued by the General Counsel.

* ¢ ¢

—_ so

In Respondent’s answer — the complaint, it raised

three affirmative defenses based upon the above. In

the first two “special defenses,” Respondent asserted,

almost in haec verba, the two positions set forth above,

which would have required the Board to interpret the

agreement, or find the defenses irrelevant. In its original

brief, as previously noted, Respondent has withdrawn

these two defenses. In Respondent’s “Third Separate

Special Defense,” Respondent recites the fact that it

has requested the Association and the Networks to

arbitrate the two issues set forth, and concludes: “In

view of the pendency of the above described arbitration

proceedings, Respondent respectfully requests that the

issues raised in thé Second Consolidated Amended Com-

plaint be deferred to arbitration and the Board retain

jurisdiction pending the arbitral decision thereof.”

Analysis and Conclusions

Under Section 8(b)(1)(B) of the Act it is an

unfair labor practice for a labor organization “to restrain

or coerce . . . an employer in the selection of his

representatives for the purposes of collective bargaining

or the adjustment of grievances.” The Board, in a

series of cases, some of which are discussed in Florida

Power & Light Co. v. IBEW Local 641, supra, has

previously held that action by a union to restrain

or coerce the performance of duties by supervisors

who were or might be selected by their employers

for the purposes of collective bargaining or adjustment

of grievances violates that section of the statute. Thus

it has been held that union threats to discipline super-

visors for allegedly violating bargaining agreements or

asserted practices or policies of the union, charges

brought by a union against such supervisors, trials

—A-35—

held, and penalties levied against then for contravening

the purposes and directives of the union were prohibited

by this section of the law, on the ground that such

action subverted the loyalties the employer was entitled

to expect from the supervisor in the performance of

his functions and deprived the employer of the super-

i whom the employer had selected—or potentially

in Florida Power & Light, the Board had held that

union discipline of union-member supervisors who

and file struck work during the strikes involved there

thus violated Section 8(b)(1)(B)). The Court of Ap-

(slip opinion, p. 7, footnotes omitted): "it

In a 5-4 decision, the court [of appeals] held

that

to enforce the Board’s Orders. Section 8(b)(1)

(B), the court held, was intended to proscribe

only union efforts to discipline supervisors for

their actions in representing management in col-

lective bargaining and the adjustment of griev-

ances. It was the court’s view that when a super-

—tt—

discipline” 487 F.2d at 1157. We granted cer-

tiorari, 415 US. ..., to consider an important

and novel question of labor law.

The Supreme Court itself affirmed the Court of

Appeals by a vote of 5-4, holding that the legislative

history of the pertinent amendments to the Act made

it clear that in enacting Section 8(b)(1)(B), “Congress

was exclusively concerned with union attempts to dictate

to employers who would represent them in collective

bargaining and grievance adjustment” (slip op. p. 13),

and not with the general problem of the supervisor's

conflict of loyalty as between his employer and his

union. As the Supreme Court said (slip op. p. 14,

emphasis in original ):

Nowhere in the legislative history is there to be

found any implication that Congress sought to

extend protection to the employer from union

restraint or coercion when engaged in any activity

other than the selection of its representatives for

the purposes of collective bargaining and griev-

ance adjustment. The conclusion is thus inescap-

able that a union’s discipline of one of its members

who is a supervisory employee can constitute a

violation of §8(b)(1)(B) only when that disci-

pline may adversely affect the supervisor’s con-

duct in performing the duties of, and acting in

his capacity as, grievance adjuster or collective

bargainer on behalf of the employer.

The Court then noted that in the cases before it

(Florida Power & Light and Illinois Beil) “it is certain

that these supervisors were not engaged in collective

bargaining or grievance adjustment, or in any activities

related thereto, when they crossed union picket lines

—s

during an economic strike to engage in rank and file

struck work.” (Slip op. p. 15)

The Court concluded, “for these reasons, we hold

that the Respondent unions did not violate Section

8(b)(1)(B) of the Act when they disciplined their

supervisor-members for performing rank and struck

file

In coming to this conclusion, the Court also noted

flue

oul

sarily incur obligations to the union. And,

while have

by their employer after the strike had ended. Those

who did work during the strike but performed

only their regular duties were not disciplined by

the union. In Florida Power, the record does not

disclose whether the supervisors crossed the picket

lines at the company’s request or not, but in

any event, the union did not discipline those who

did so only to perform their normal supervisory

functions.

Similarly, in N.L.R.B. v. San Francisco Typographi-

cal Union No. 21, etc. (California Newspapers, Inc.)

486 F.2d 1347 (also relied upon by Respondent),

where the Board had found the union there involved

had violated Section 8(b)(1)(B) by disciplining super-

visor-members for crossing the union’s picket lines,

the Court held that “the Board’s broad interpretation

of Section 8(b)(1)(B) .. . is an unjustifiable extension

of the limited language of Section 8(b)(1)(B). Had

the members elected to resign from the union, the

power of the Union over them would have ended.

ment duty.” (486 F.2d at 1349-50)

Compare Scofield v. N.L.R.B., 394 US. 423, where,

in the course of holding that Section 8(b)(1)(A)

did not proscribe a union's enforcement of productivity

ceilings through the discipline of members, the Supreme

Court stated (at p. 430), “. . . Section 8(b)(1)

(Emphasis added. ) meth

In this case we are concerned with certain super-

ployers the terms for renewal of Respondent's

arpaining agreements. Respondent promulgated

distributed strike rules to all its members

coverage of the Guild contract. ...

—_A42—

a strike situation, normally called upon to act

as the principal recruiter of strike breakers.

In order to perform under his producer contract,

the hyphenate Guild member necessarily must

place himself directly in direct opposition to the

strike strategy of the Guild and, at the same

time, be free from the normal discipline imposed

upon strike-breakers. The matter of disloyalty aris-

es from the continued performance of the hiring

function itself.”

In its supplementary brief, Respondent

it would be difficult to determine in these

—A4+4—

Further, it has long been established that an employer

may legally employ replacements for striking employees

during a strike (in union terminology “strikebreakers” )

see N.L.R.B. v. Mackay Radio & Telegraph Co., 304

U.S. 333, 345. Thus action by managerial or supervi-

sory employees in recruiting employees during a strike

would manifestly fall within the normal functions of

such persons. There is no evidence of which I am

aware that any hyphenate performing as a producer

during the strike (as argued by Respondent) recruited

or hired a writer during the strike—for the most part

the evidence is that such producers were involved with

scripts already written and ready for production but

if any such writer was recruited or hired by a producer,

this was clearly a proper managerial or supervisory

function.

Nor is it material, in the circumstances of this case,

that by going in to work at managerial and supervisory

functions during the strike, hyphenate-members frustrat-

ed Respondent’s strike strategy, or provided the employ-

ers with more economic clout than they otherwise might

have possessed. Respondent cannot deny the hyphenates

the right to resign from membership, and thus be

free of the obligations of membership, while at the

same time argue that because the hyphenates continued

to be members they cannot be “free from the normal

discipline imposed upon strike breakers.” It was well

known among the hyphenates that Respondent would

not permit them to resign prior to or during the strike.

At least one hyphenate’s attempt to resign from member-

ship in Respondent during this period was rejected.

It is, of course, known how many hyphenates

would have if this had been an option available

to them. It is inferred that at least those who went

iio

back to work during the strike would have done so,

and possibly others. The rights of the hyphenates and

their employers are not reduced because the exercise

of those rights might make Respondent’s position more

difficult.

The result of the strike would be of only problem-

atical benefit to many of the hyphenates involved.

Respondent's contracts did not cover the hyphenates’

managerial and supervisory functions (as was the situa-

tion in Florida Power) and would have benefited the

hyphenates only if they engaged in writing covered

by the bargaining agreements. There was testimony

from a number of hyphenates that they had done

no substantial writing of such character for a consider-

able number of years There is little indication that

the hyphenates received other substantial benefits from

their membership in Respondent, except that derived

from being part of the writing community which provid-

ed significant contacts with writer-members of Respond-

ent, a sense of pride in belonging to the organization,

and, perhaps most important, providing the hyphenate

with a wider range of capabilities and thus enhancing

his usefulness to his employer.

It has been previously found that those hyphenates

occupying the positions of Executive Producers, Produc-

ers, Associate Producers, Directors, Story Editors, Story

Consultants, Script Consultants, Executive Story Editors

and Executive Story Consultants, as considered herein-

above, are supervisors within the meaning of Section

2(11) of the Act selected by their employers to adjust

grievances, and, in the case of the producer function,

to negotiate agreements with labor organizations within

the meaning of Section 8(b)(1)(B) of the Act. On

the basis of the above discussion and the record as

—A-46— -

a whole it is found that by issuing strike rules designed

to compel such hyphenates from going to work during

the strike called by Respondent, and by meetings, per-

sonal contacts, telegrams, and phone calls designed

to restrain and coerce such hyphenates from going

to work during the strike, Respondent restrained and

the strike, including the adjustment of employee griev-

ances and participation in collective bargaining, and

thus coerced and restrained those employers in the

selection of representatives for collective bargaining

and the adjustment of grievances within the meaning

of Section 8(b)(1)(B); that those hyphenates involved

in this matter who worked during the strike performed

managerial and supervisory functions including the ad-

justment of grievances on collective bargaining as re-

quired, and did not perform rank and file work; and

that by charging, trying, and disciplining such hyphen-

ates who worked during the strike in such circum-

stances, Respondent further coerced and restrained the

employers in the selection of their representatives for

the purposes of collective bargaining within the meaning

of Section 8(b)(1)(B) of the Act. It is therefore

found that Respondent, by the activities set forth above,

violated Section 8(b)(1)(B) of the Act.

In coming to this conclusion, I have given careful

consideration to Respondent’s contention that the Su-

preme Court in Forida Power, not only disapproved

of the Board’s finding that a violation of Section 8(b)

(1)(B) had occurred in those cases, but, by completely

overturning the Board's rationale in those cases, in

effect held that coercion, restraint and discipline of

supervisor-members by a labor organization for working

—A47—

during a strike cannot be held by the Board to violate

the Act. I disagree. It is clear that Respondent’s action

in this case violated the plain meaning of the statute

without the necessity of resort to statutory exegesis.

To illustrate: A person performing the function of

a director acts in a managerial or supervisory capacity,

which normally includes the adjustment of grievances

employee grievances. In addition, if the film is being

shot on distant location the producer has authority

erced and restrained their employers in the selection

of those specific producers and directors for the purpose

of collective bargaining and the adjustment of griev-

—A-48—

restrained their employers from selecting those persons

as the employers’ representatives for the adjustment

of grievances and for collective bargaining during the

strike.

The General Counsel also contends that Respondent's

rule restricting the right of hyphenate-membexs to resign

from membership should also be found to violate the

Act. This raises what seems to me a quite important

: 22As to the rank and file since they are compelled!

: by law to accept labor cheese, Sy Go saguy

in the unit, and be compelled to join or assist

unions even if vi to them, and to comply with

3 their rules if obnoxious to the employees in-

F rules. Some commentators who have considered the

suBject indicate that this is a likely direction of the law. See

estrictions the Right to Resign: Can ember’s Freedom

—A49—

tion and the complaint in this proceeding be dismissed.

I have determined that this contention should be denied

for the following reasons:

1. The parties have not agreed that the issues pre-

sented by the complaint in this matter should be de-

and further that these pro-

ments do

formed by the

visions of

members of Respondent could respect Respondent's matter are subject to arbitration in any event. Almost

picket lines or its strike call with impunity from action all of Respondent’s conduct with which we are here

by the employers, but we are concerned with whether concerned, including the charges against the hyphenates,

the Respondent may legally restrain and coerce the the disciplinary trials and the penalties imposed, oc

hyphenate-members from going to work, at the insist- curred after the termination of the bargaining agree-

ence of their employers, to perform functions not ments and at a time when neither Respondent nor

covered by Respondent’s contracts, and whether Re- the employers had consented to arbitration of their

spondent may discipline such members for going to actions.

work in such circumstances. No contractual basis ap- 3. The legal issues involved in this proceeding are

pears and Respondent points to none which would matters of importance to the administration of the

authorize an arbitrator to pass on such issues.” Act, as shown by the Supreme Court’s recent decision

Assuming, without deciding, that the employers had in Florida Power. The application of the principles

to absolve Respondent’s hyphenate-members of laid down in that decision and the development of

all liability for breach of their personal services con- the law in this area should be made by the Board

tracts (which, es noted, the employers vigorously dis- in an unified and consistent fashion, and not delegated

pute), it does not follow, as Respondent argues, that to the diverse opinions of various arbitrators who have

the employers thereby agreed not to ask, direct, or neither been selected to administer the Act nor sworn

insist that such members come in to work. or agreed to do so. This matter is highly complex and involves

that the employers would not select such members many factual and legal issues having little or no relation

as their representatives for adjustment of grievances to contractual questions. The parties have spent much

or collective bargaining, or that the employers agreed time litigating these issues and at considerable expense.

that Respondent could restrain or coerce the members It would seem to me an act of administrative abnega-

not to work, or, if the members did come in to work tion of duty to tell the parties to start over again

at the employers’ insistence, that Respondent could before another tribunal when the proceeding has already

discipline the members for doing so been tried before the agency appointed by Congress

> There is substantial doubt that Respondent's ac- to hear and decide the issues.

"CE. Houston Beaters One 0. 36, ote. (Houston Cle. 1. The employer members of the Association of

icle), 199 NLRB No. 36, vets employer and the wnlon there Motion Picture and Television Producers, Inc., Ameri-

involved had specifically agreed in their bargaining agreement can Broadcasting Companies, Inc., Columbia Broad-

the only issue before the Board concerned discipline of a 4

by the union, the Board deferred to the arbitration Inc.. and QM Productions (herein collectively referred

with the bargaining agreement of the

—A-52—

an employer engaged in commerce within the meaning

of Sections 2(6) and (7) of the Act.

2. Writers Guild of America, West, Inc. (“the Re-

spondent” ) is a labor organization within the meaning

of Section 2(5) of the Act.

3. By restraining and coercing the employers of

hyphenate-members of the Respondent, and each of

the employers, in the selection of their representatives

for the purpose of collective bargaining or the adjust-

ment of grievances, as found hereinabove, the Respond-

ent has engaged in and is engaging in unfair labor prac-

tices within the meaning of Section 8(b)(1)(B) of the

Act.

4. The aforesaid unfair labor practices affect com-

merce within the meaning of Sections 2(6) and (7)

of the Act. :

The Remedy

Having found that the Respondent engaged in unfair

labor practices in violation of Section 8(b)(1)(B)

of the Act, it will be recommended that Respondent

cease and desist therefrom and take certain affirmative

action designed to effectuate the policies of the Act.

The record is convincing that Respondent, well aware

of the primary supervisory, management, and executive

functions of its hyphenate-members, drafted its strike

(Resp Exh. 12) In at least one instance, in the disci-

;

LEE

TRoHIAR EH Re

ip H jie a td

stay! lis ele . i ij

rit: Hcgetatsdges

i: afl AW if ips Lae

aatle A aD nee i

nga CHEE

—

Sir He TUBULE Tepe tere

HAH HH STR HH He

Aya atid

RUA EH Gee Eee

—A-56—

ORDER

Writers Guild of America, West, Inc., the Respondent

herein, its officers, agents and representatives, shall:

1. Cease and desist from:

(a) Restraining or coercing any employer in the

selection. of its representatives for the purpose of col-

lective bargaining or the adjustment of grievances:

(1) by issuing rules, orders, directions or instruc-

tions in any form to any supervisor, executive or other

management personnel whose functions involve or may

invoive collective bargaining or the adjustment of griev

ances not to perform supervisory, managerial or ex-

ecutive functions for such employer, or

(2) by threatening any such employer representative

with fines, suspension or expulsion from membership,

blacklisting, obstracism, or any other penalty or reprisal

for performing supervisory, managerial or executive

functions for such employer, or

(3) by citing or charging any such employer repre-

sentative with violation of any such rule, order, direction

or instruction, or by summoning any such employer

representative before any committee, board, panel,

tribunal to be tried for, or by trying any such employer

representative for violation of any such rule, order,

direction or instruction forbidding such representative

from performing supervisory, executive, or managerial

—A-57—

(5) by enforcing in any other manner any such

rule, order, direction, or instruction.

(b) In any like or related manner restraining or

coercing any employer in the selection of representatives

for the purpose of collective bargaining or the adjust-

ment of grievances.

2. Take the following affirmative action designed

to effectuate the purposes of the Act:

(a) Revoke, rescind, and expunge from Respond-

ent’s records, the fines, suspensions, or expulsions from

membership, or other disciplinary action, or penalty

imposed upon Hugh Benson, Robert Blees, Cy Cher-

mack, Jon Epstein, David Levinson, John T. Mantley,

Herman S. Saunders, David Victor, Robert A. Cinader,

Barry Crane, or upon any other employer representative

as described in paragraph 1.(a)(1) above, for working

during the strike beginning on or about March 4,

1973, as a supervisor, executive, or in a managerial

capacity.

(b) Reimburse Hugh Benson, Robert Blees, Cy

Chermack, Jon Epstein, David Levinson, John T.

Mantley, Herman S. Saunders, David Victor, Robert

A. Cinader, and Barry Crane, and any other employer

representative as described in paragraph 2(a) above,

for the fines levied against them, with interest thereon

at 6 percent per annum.

mack, Jon Epstein, David Levinson, John T. Mantley,

Herman S. Saunders, David Victor, Robert A. Cinader,

anitinn

and Barry Crane, and any other employer representative

as described above, in writing, that any fines levied

against them, and any action suspending or expelling

them from membership in the Respondent, or any

other penalty imposed upon them for working during

the said strike, has been revoked and rescinded, and

that such fines and suspensions or expulsions, or other

penalties have been expunged from Respondent’s rec-

ords.

(d) Post at its office and meeting halls copies of

the notice attached, marked “Appendix.”"” Copies of

—A-59—

(f) Publish the attached notice marked “Appendix”

for one week (6 consecutive issues) in “Hollywood

Reporter” and “Daily Variety,” immediately after post-

ing said notice.

(g) Notify the Regional Director for Region 31,

in writing, within 20 days from the date of the receipt

of this Decision, what steps have been taken to comply

herewith.

Dated at Washington, D.C.

/s/ Sidney J. Barban

Sidney J. Barban

Administrative Law Judge

Form NLRB—4726. agerial position during the strike which began on of

NOTICE TO about March 4, 1973:

MEMBERS Hugh Benson

Robert Blees

POSTED BY ORDER OF THE Cy Cl

NATIONAL LABOR RELATIONS BOARD Robert A. Cinad

AN AGENCY OF THE Berry Crane

UNITED STATES GOVERNMENT Jon Eostel

WE WILL NOT restrain or coerce any employer in David Levinson

the selection of representatives for the purpose of collec- ee ee

” See “e David Victor

(a) by ordering, directing, or instructing any such

representative not to perform supervisory, execu-

tive or managerial functions for an employer, or

representative for working as a supervisor, execu-

tive, or in a managerial position.

WE WILL NOT in any like or related manner restrain

or coerce any employer in the selection of representa-

tives for the purpose of collective bargaining or the

adjustment of grievances.

WE WILL rescind and revoke, and expunge from

our records any fine, suspension or expulsion from

membership or any other penalties to the extent pre-

viously imposed on the following persons or on any

other representative of an employer for the purpose

of collective bargaining or the adjustment of grievances

who worked as a supervisor, executive, or in a man-

WE WILL reimburse the persons named and described

above for any fines imposed upon them for working

during the strike which began on or about Mar-h

4, 1973, with interest thereon at 6 percent per annum.

THIS IS AN OFFICIAL NOTICE AND MUST

NOT BE DEFACED BY ANYONE

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any ques-

tions concerning this notice or compliance with its

provisions may be directed to the Board’s Office, Federal

Building, Room 12100, 11000 Wilshire Boulevard, Los

Angeles, Calif. 90024, Telephone (213) 824-7351.

APPENDIX B.

Decision and Order.

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Writers Guild of America, West, ) C

inc. ss ; 31-CB-1203-2,

Association of Motion Picture and ) saan

Television Producers, Inc.’ ) ’

and ) Cases

American Broadcasting Compa- ) 31-CB-1223,

nies, Inc. ) and

Columbia Broadcasting System, ) 31-CB-1313,

National Broadcasting Ccmpany, ) and

Inc." Case

and )

OM Producti ) 31-CB-1355

On September 18, 1974, Administrative Law Judge

Sidney J. Barban issued the attached Decision in this

Insulated Wire, 192 NLRB 837 (1971). Accordingly, that

issue is not before the Board for resolution.

a Ginn

The Board has considered the record and the attached

Decision in light of the exceptions and briefs and

has decided to affirm the rulings, findings, and con-

clusions of the Administrative Law Judge to the extent

consistent herewith, and to adopt his recommended

Order.

1. The Administrative Law Judge found violations

of Section 8(b)(1)(B) only with respect to the

phenates™ in the producer, dire tor, and

record

of the

the Union

cigidt

;

H :

;

}

therefore did not resolve these additional allegations

= }-3—~ >

in the complaint. The Association and the Networks,

two of the Charging Parties herein, except to this

omission for reasons we deem meritorious.

There is no question that, although only some of

the hyphenates were brought to trial and actually fined

or disciplined for crossing the picket line, all of the

hyphenates named in the complaint were threatened

with similar discipline and adverse action if they crossed

the picket line to go to work. There is also no question

spondent was determined to enforce its threats without

regard to the fact that the Charging Parties uniformly

jowed a policy during the strike not to require hy-

phenates to perform any unit or struck work. Further-

more, if it had any doubt at all, Respondent could

easily have ascertained whether any struck work was

in fact performed by comparing dated scripts to the

8(b)(1)(B) of the Act, in toto.

~ €Chicago Typographical Union No. 16 (Harmmond Pub-

lishers, Inc.), 216 NLRB No. 149 (1975); New York Typo-

Union No. 6, International

graphical

AFL-CIO 0) Form, a Subsidiary of

lishers, _ 216 NLRB 147 (1975).

Pub-

en Oe Eee ee ee on

AFL-CIO (Mansfield NLRB

(1972); International Union Bn Bog BH By FB ~

Cie Cees Se Cee en ee

png bs Free Inc.), 189 = a tb Nec

Slate, ew grag by dpm | se orkers

Association, No. 220 (Jones and Jones, Inc.), 177 NLRB

av ™

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Rela-

tions Board adopts as its Order the recommended Order

of the Administrative Law Judge and hereby orders

that the Respondent, Writers Guild of America, West,

Inc., Los Angeles, California, its officers, agents, and

representatives, shall take the action set forth in the

said recommended Order, except that the attached no-

tice is substituted for that of the Administrative Law

Judge.

Dated, Washington, D.C. May 13, 1975.

Howard Jenkins, Jr.,

Member

John A. Penello,

Member

NATIONAL LABOR

RELATIONS BOARD

(Seal)

| . vy. International Brotherhood

of Electrical Workers, Local 641, 417 U.S. 790 (1974).

*For a discussion of the history of Section 8(b)(1)(B)

— a=GiG=

D—9835

| APPENDIX

NOTICE TO MEMBERS

) Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT restrain or coerce any employer

in the selection of representatives for the purpose of

collective bargaining or the adjustment of grievances:

(a) by issuing rules, orders, directions, or instruc-

tions in any form to any such employer repre-

sentative not to perform supervisory, executive,

or managerial functions for an employer, or

(b) by threatening any such employer representa-

tive with fines, suspension, or expulsion from mem-

bership, blacklisting, ostracism, or any other pen-

alty or reprisal for performing supervisory, execu-

tive, or managerial functions, or

representative for performing supervisory, execu-

tive, or managerial functions, or

(d) by fining or otherwise disciplining any such

representative for performing supervisory, execu-

tive, or managerial functions, or

(e) by enforcing in any other manner any such

rule, order, direction, or instruction.

WE WILL NOT in any like or related manner

restrain or coerce any employer in the selection of

representatives for the purpose of collective bargaining

or the adjustment of grievances.

—B-8—

This is an official notice and must not be defaced

by anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material.

Any questions concerning this notice or compliance

with its provisions may be directed to the Board’s

Office, 12100 Federal Building, 11000 Wilshire Boule-

vard, Los Angeles, California 90024, Telephone 213—

824—7351.

- ce

APPENDIX C.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT .

’

Nos. 604, 1161—September Term, 1975.

(Argued May 10, 1976 Decided November 22, 1976.)

No. 75-4089

No. 75-4121

Intervenors,

Petition to review, and application to enforce, order

of National Labor Relations Board, 217 N.L.R.B. No.

159 (1975), requiring a labor union to cease and

desist from certain conduct during a four month strike

in the spring of 1973 which the Board found to be

in violation of Section 8(b)(1)(B) of the National

Labor Relations Act and to take certain affirmative

action to remedy the violations. _

Enforcement denied.

John G. Eiligers, Atty., NLRB, Washington, D.C.

(John S. Irving, Gen. Counsel, John ©. Higgins,

Jr., Deputy Gen. Counsel, Elliott Moore, Deputy

Assoc. Gen. Counsel, NLRB, Washington, D.C..,

on the brief), for Petitioner-Respondent Nation-

al Labor Relations Board.

Richard N. Fisher, Los Angeles, Cal. (Steven C.

Babb, and O'Melveny & Myers, Los Angeles,

Cal., on the brief), for Petitioners-Intervenors

American Broadcasting Companies, Inc., CBS,

Inc., and National Broadcasting Co., Inc.

Harry J. Keaton, Los Angeles, Cal. (Andrew B.

Kaplan, and Mitchell, Silberberg & Knupp, Los

Angeles, Cal., on the brief), for Intervenor As-

sociation of Motion Picture and Television Pro-

ducers, Inc.

Julius Reich, Los Angeles, Cal. (Reich, Adell &

Crost, and Selvin & Weiner, Los Angeles, Cal.,

on the brief), for Respondent Writers Guild

of America, West, Inc.

=—

Per Curiam:

On this petition to review by the networks (American

Broadcasting Companies, Inc., CBS, Inc., and National

Broadcasting Company, Inc.), and an application by

the National Labor Relations Board to enforce, an

order of the Board, 217 N.L.R.B. No. 159 (1975),

requiring the vaion (Writers Guild of America, West,

Inc.) to cease and desist from certain conduct during

a strike found to be in violation of Section 8(b)

(1)(B) of the National Labor Relations Act and to

take certain affirmative action to remedy the violations,

we find the essential issue to be whether as a matter

of law the Board correctly applied Section 8(b)(1)(B)

a strike.

For substantially the reasons set forth in the dissent-

ing opinion of Board Member John H. Fanning, 217

N.LL.RB. No. 159, we hold that the Board as a matter

US. 790 (1974).

Enforcement denied.

ofit

Moore, Circuit Judge (Dissenting) :

I cannot join in the conclusion of the majority

that enforcement should be denied because in my opin-

ion the facts and the law clearly call for an opposite

In Florida Power, the Court of Appeals (487 F.2d

1143, 1157 [D.C. Cir., 1973]) stated:

ee eee >

a we

“The question to be decided is whether the unions

committed unfair labor practices under §8(b)(1)

(B) when they disciplined their supervisor-mem-

bers for crossing the picket lines and performing

rank-and-file struck work during lawful economic

strikes against the companies.” (Emphasis added)

417 US. at 792.

The basis of the Supreme Court’s decision was made

even clearer when it stated:

“The ¢>nclusion is thus inescapable that a union's

discipline of one of its members who is a super-

visory employee can constitute a violation of §8

(b)(1)(B) only when that discipline may adverse-

ly affect the supervisor's conduct in performing

the duties of, and acting in his capacity as, griev-

ance adjuster or collective bargainer on behalf of

the employer.” 417 U.S. at 804-5.

The Court of Appeals should not usurp the function

of the ALJ and Board unless there is a complete

absence of evidence to support its findings. Both con-

cluded that the hyphenates were bona fide supervisors

and had managerial functions. Since there is more

than adequate proof to support these findings, I would

enforce the Board’s order.

ail is

APPENDIX D.

New York Typographical Union No. 6, International

Typographical Union, AFL-CIO and Daily Racing

Form, a Subsidiary of Triangle Publications, Inc.

Case 22-CB-2345.

March 6, 1975

SUPPLEMENTAL [DECISION

On October 5, 1973, the Board issued a decision’

in the above-entitled proceeding in which it affirmed

the rulings, findings, and conclusions of the Adminis-

trative Law Judge, as contained in his Decision of

June 27, 1973, and ordered that the Respondent take

the action set forth in the recommended Order of

the Administrative Law Judge. :

Thereafter, on July 30, 1974, the Board advised

the parties of its decision, sua sponte, to reconsider

the decision in the above-entitled proceeding in light

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the Na-

tional Labor Relations Board has delegated its authority

in this proceeding to a three-member panel.

1206 NLRB 294 (1973).

*Florida Power and Light Co. v. International Brotherhood

of Electrical Workers, 417 U.S. 790 (1974).

a Ge S482 eens eee ——— =

working behind the Union’s picket line.” _

In Florida Power and Light, supra, the Supreme

Court held that whether or not a union violates Sec-

tion 8(b)(1)(B) by disciplining a supervisor-member

depends on whether that discipline may adversely

these employees, although it claimed jurisdiction over the Com-

pany’ room and that the performing

Rack work Flood was one of the ow, i not the only

individual at struck plant was a member

wf Rocpondeat et oo tame of tae oui.

—I)-3—

the supervisor’s performance of his 8(b)(1)(B) duties.

Thus, the Court said:

The conclusion is thus inescapable that a union’s

discipline of one of its members who is a super-

visory employee can constitute a violation of 8(b)

(1Y(B) only when that discipline may adversely

affect that supervisor’s conduct in performing the

duties of, and acting in the capacity as, grievance

adjuster or collective bargainer on behalf of the

employer. [Emphasis supplied. |

In Hammond Publishers, Inc.,* a Board majority

interpreted the Supreme Court’s holding in Florda Pow-

er and Light to mean, inter alia, that in situations

where the disciplined supervisor has engaged “only

in the performance of supervisory activities (not limited

to grievance adjustment or collective bargaining),” a

union’s disciplining of that supervisor violates Section

8(b)(1)(B) of the Act because “it is reasonably likely

that an adverse effect will carry over to the supervisor's

performance of his 8(b)(1)(B) duties. .. .” In so

holding in Hammond, the Board focused on the type

and amount of activities performed by the supervisor-

member during the strike rather than, as urged by

the dissent herein, on the union’s professed reason

for imposing the discipline.

We agree with the reasoning in Hammond and feel

that it controls in the instant case since the disciplined

supervisor-member herein performed only his normal

supervisory duties during the strike. Our dissenting

colleague feels, however, that the discipline in the in-

stant case was not violative of Section 8(b)(1)(B).

*Chicago Wm mer Union No. 16 (Hammond Publishers,

Inc.), 216 No. 149 (1975).

In so concluding, the dissent intimates that Section

8(b)(1)(B) is violated only where the discipline is

directed toward the manner in which a supervisor per-

forms his 8(b)(1)(B) duties, since it is asserted,

only under such circumstances may the discipline ad-

versely affect the supervisor's future performance of

his 8(b)(1)(B) duties. Under the dissent’s analysis,

therefore, a union may legally discipline a supervisor-

member for “crossing a picket line” or for “working

during a strike,” etc., even though the supervisor has

performed only supervisory functions. Thus, under the

dissent, a union may in effect tell a supervisor-member

that he may not perform any functions, even grievance

adjusting or collective bargaining, during a strike with-

out running the risk of being disciplined. The reasoning

of the dissent seems to be rooted in the conviction

that a supervisor-member is acting as a “strikebreaker”

and thus should be subject to union discipline if he

performs any function during a strike. The justification

for this analysis draws support from the dissent’s asser-

F.24 1143, 1157 (CA.DC., 1973), in

‘supra: When a Be as

—D-5S—

In fact the majority noted® that the supervisors who

had performed only their regular duties during the

strike had not been disciplined. As Mr. Justice White

stated in the dissent: “I do not read the Court to

say that § 8(b)(1)(B) would allow a union to disci-

pline supervisor-members for performing supervisory or

management functions, as opposed to customary rank-

and-file work, during a labor dispute.”

Therefore, nothing in the Supreme Court's Florida

Power decision dictates the conclusion, urged by the

dissent, that a union has a right to discipline a super-

visor-member who performs any function during

a strike." The most that can be said is that the

Court sanctioned the disciplining of supervisor-members

who performed rank-and-file struck work during

a strike. In this same vein, it is apparent to us that

it was the performance of rank-and-file struck work

$417 U.S. 790, 812 (1974), fm. 22.

*Id. at 815, fn. 2.

_ TAs stated in the circuit court opinion in /Winois Bell, 487

ailiifes

permitting a supervisor to be a union member, is that

the supervisor-member cannot, with immunity, cross

union picket lines to perform rank-and-file work.’

We believe that the adverse future effect which the

Supreme Court referred to as violative in Florida Power

is as likely to occur, regardless of a union’s professed

reasons or intent, if a supervisor-member is disciplined

after having performed only his normal supervisory

duties or if he is disciplined after having engaged

in contract interpretation.” In the latter case it is

the supervisor’s future manner of contract interpretation

which is likely to be influenced and in the former

case it is the supervisor's actual future performance

of supervisory duties, including grievance adjustment .

or collective bargaining, which is likely to be influenced.

In either case the employer has been restrained in

the selection of his 8(b)(1)(B) representative.

Ae At By Eb GER CHEE. A SREY, OS CO A

oo aa mar ym ty Ap na

t Join unions = the employe aa laren

his right to . Even if he permits them to

join unions, Section 8(b)(1)(B), as by Oak-

land Mailers and Meat Cutters, immunizes from union

—D-7—

grievances and participating in the collective-bargaining

process, we find, for the reasons stated above, that>

the Respondent violated Section 8(b)(1)(B) of the

Act by fining and expelling Figod from membership

for working behind its picket line. We, therefore, reaf-

firm our previous Decision and Order. |

MEMBER FANNING, dissenting:

Section 8(b)(1)(B) of the Act makes it an unfair

labor practice for a labor organization “to restrain

or coerce . . . an employer in the selection of his

representatives for the purposes of collective bargaining

or the adjustment of grievances.” (Emphasis supplied. )

The Supreme Court’s analysis of Section 8(b)(1)(B)

in Florida Power & Light Co. v. International Brother-

hood of Electrical Workers" now leads me to conclude

that the statutory language of Section 8(b)(1)(B)

means only what it says and no more. Because there

is absolutely no evidence tending to establish that the

Company herein was restrained or coerced in its selec-

tion of representatives for the purposes of collective

bargaining or the adjustment of grievances, I dissent.

The basic defect in the majority's analysis is that

it attempts to interpret Florida Power & Light at

the expense of the history of Section 8(b)(1)(B).

I do not believe a meaningful analysis of Florida Power

is possible under such circumstances and therefore pro-

vide that history.

Section 8(b)(1)(B) was enacted, via the Taft-Hart-

ley amendments, in 1947. Its legislative history irre-

futably indicates, as the Supreme Court in Florida

HIT U.S. 790 (1974).

—D-8—

Power recognized, that Congress intended, solely and

exclusively, to prevent labor organizations from forcing

employers to join or withdraw from multiemployer bar-

gaining groups and to end the practice of some labor

organizations at that time of dictating whom employers

should select as bargaining or grievance adjustment

representatives. As the Supreme Court pointed out,

Senator Taft’s remarks were illustrative:

This unfair labor practice referred to is not

perhaps of tremendous importance, but employees

cannot say to their employer, “We do not like

Mr. X, we will not meet Mr. X. You have to

send us Mr. Y.” That has been done. It would

prevent their saying to the employer, “You have

to fire Foreman Jones. We do not like Foreman —

Jones, and therefore you have to fire , or

we will not go to work.” This is the only section

in the bill which has any relation to Nation-

wide bargaining. Under this provision it would

be impossible for a union to say to a company,

“We will not bargain with you unless you appoint

your national employers’ association as your agent

so that we can bargain nationally.” Under the

bill the employer has a right to say, “No, I will

not join in national bargaining. Here is my repre-

sentative, and this is the man you have to deal

with.” I believe the provision is a necessary one,

and one which will accomplish substantially wise

purposes.”

For some 20 years after its enactment, the Board’s

view of the parameters of Section 8(b)(1)(B) substan-

tially coincided with both the legislative history and

1993 Cong. Rec. 3950, 3953-54 (1947).

—D-11—

management when called on to serve as a management

718

and its members, and the union’s particular objec- ~

tive—solidarity in strike action—was deemed by

sTHRIHHT fl i ‘

Ait li

Hi el ih iu

HAHA:

tia ait lie

Nell Tbega: Hi Hi neds

ii tt

i} at al fpl:

eet het Ba

—

—>13—

functions. In all of those cases it could reasonably

be inferred that the union’s discipline was imposed

because of the manner in which a supervisor had

performed a collective-bargaining or grievance adjust-

ment function, and was therefore properly proscribed.

However, in a strike situation, what the supervisor

does behind the picket .line is, in the ordinary case,

and most assuredly in this one, completely irrelevant.

The union's interest is quite simply to preserve strike

reasonable conclusion the supervisor can draw the con-

clusion that he has been disciplined simply for working

at all? In the future, when the supervisor represents

the employer at the bargaining table, is it reasonable

for the supervisor to fear subsequent discipline if he

defects in the Board’s position when it wrote the

8(b)(1)(B) to proscribe union discipline

arising out of disputes arguably related to a grievance

adjustment or collective-bargaining function, but also

union discipline of supervisor-members who acted as

strikebreakers; i.c., union members who crossed a lawful

picket line to in part replace their fellow union members

honoring the line. The discipline was violative, it was

found, because the supervisors were working at the

behest or in the interest of the employer and any

other result

had

193 NLRB 30 (1971).

™192 NLRB 85 (1971).

192 NLRB 77 (1971).

—D-14—

selected to act as its collective-bargaining agents

or to act for it in adjusting grievances.”

That refrain is echoed in the Administrative Law

Judge’s Decision adopted by the majority here:

[T]he pressure extended by Respondent’s actions

on the Company's supervisor would tend to inhibit

him and impair his effectiveness as a loyal super-

visor in maintaining the Company’s interests.

My reading of Florida Power, on the other hand,

compels the conclusion that the “loyalty” an employer

may demand from any supervisor is, during a strike,

no greater than the loyalty that may be demanded

by his union, at least for 8(b)(1)(B) purposes. As

the Court stated:

It is strenuously asserted, however, that to per-

mit a union to discipline supervisor-members for

performing rank-and-file work during an economic

strike will deprive the employer of the full loyalty

of those supervisors. Indeed, it is precisely that

concern that is reflected in these and other recent

decisions of the Board holding that the statutory

language “restrain or coerce . . . an employer

in the selection of his representatives for the pur-

poses of collective bargaining or the adjustment

of grievances” is not confined to situations in which

the union’s object is to force a change in the

identity of the employer’s representatives, but may

properly be read to encompass any situation in

which the union’s actions are likely to deprive

the employer of the undivided loyalty of his super-

192 NLRB at 78.

—D-15—

The concern expressed in this argument is a

very real one, but the problem is one that Con-

gress addressed, not through § 8(b)(1)(B), but

through a completely different legislative route."

Similarly, when Florida Power is read against the

backdrop of the history of Section 8(b)(1)(B), one

would think my colleagues would at least consider

the following statement:

Nowhere in the legislative history is there to

be found any implication that Congress sought

to extend protection to the employer from union

restraint or coercion when engaged in any activity

other than the selection of its representatives for

the purposes of collective bargaining and griev-

ance adjustment. [Emphasis in original. ]™

says it will because (a) the Board said so in Hammond

Publishers and (b) the Board says so now.

2417 U.S. at 805-807 (emphasis supplied).

21d. at 804,

=i}.1G-=

over effect may result where the disciplined supervisor

had been engaged in the activity of contract inter-

pretation.” This “recognition,” the Hammond majority

reasoned, led to the conclusion that when the supervisor

engaged only in supervisory duties there was “clearly

a violation” in the discipline because “it is reasonably

likely that an adverse effect will carry over to the

supervisor's performance of his 8(b)(1)(B) duties

where he is disciplined after having engaged only in

the performance of supervisory duties.” The Ham-

mond “rationale” reappears here:

We believe that the adverse future effect which

the Supreme Court referred to as violative in

Florida Power is as likely to occur, regardless

of a union’s professed reasons or intent, if a

supervisor-member is disciplined after having per-

formed only his normal supervisory duties or if

he is disciplined after having engaged in contract

interpretation [citing Oakland Mailers). In the

latter case it is the supervisor's future manner

of contract interpretation which is likely to be

influenced and in the former case it is the super-

visor’s actual future performance of supervisory

duties, including grievance adjustment or col-

lective bargaining, which is likely to be influenced.

Several flaws come immediately to mind. First, the

majority has engaged in a semantic gambit. The super-

therein were not disciplined for that reason but rather

because they had also performed bargaining unit work;

they knew that to be the reason and with that knowledge

there could be no argument that their performance

of the specific 8(b)(1)(B) functions could reason-

ably be expected to be influenced. Third, an effect

on one’s performance of supervisory duties does not

constitute a violation of Section 8(b)(1)(B), as I

read Florida Power, if the effect is not also on one’s

cited to appear before Respondent's executive committee

which had the power to discipline union members. The cits-

tions involved certain alleged violations by the individuals of

evidence of a number of threats made Respondent's agents

aes ot A

These threats also arose over disagreements contract

7 or grievance adjustment... .” 172 2173

(

Unless colleagues still of the view that Florida

Peear tam ther ba Games oo Gees Oe rule

seen C1 yee See, a Seneien Land fe. S00

(Anheuser Busch, Ine), 19 NLRB $51 (1972)

TEA EHHE

eal

itl

hi TER Hn

union members as supervisors, the opportunity

2 ddaads iin oe aie

fairs, the opportunity to incorporate into a collective-

iv daa a

ity Hi Roo

HHI i ule {i=

Dra ee Hiiles 1 nA

Hite 2|=4 : - aL ait 1

Fayizsese°2 it of ee PPE il:

aun ten wy He

THULE Rs Hen

HEH eae Hut Hi

Thi Hal Ha

—D-20—

er, having forsaken such opportunities, cannot now

be heard to argue that the union is affecting its selec-

tion of the very grievance adjustment or collective-

bargaining representative it permits to retain union

membership.

Because the Board majority continues to ignore the

fundamental questions posed by its “relatively straight-

forward” approach,” because the Board majority is,

in my view, still wedded to preserving the remnants

of its pre-Florida Power intrusion into the area of legit-

imate and substantial intraunion interests, and because

I believe union discipline of all members for conduct

Yelated to and during a strike remains unregulated

by Congress” and is both outside the line of cases™

commencing with Oakland Mailers and within the line

of cases beginning with the Supreme Court’s decision

in Allis-Chalmers,* 1 reject the majority's purported

analysis.

*°The Janguage comes from the majority opinion in Hammond.

*But see fn. 11, supra.

*] know of no case not since overruled, and the majority

cites none, wherein a violation of Sec. 8(b)(1)(B) has been

found in a union's discipline of a supervisor for crossing a

%Gould, Some Limitations Upon Union Under the

. The Radiations Allis-Chalmers,

On July 10, 1974, Administrative Law Judge Jerry

B. Stone issued the attached Decision in this proceeding.

Thereafter, the Charging Party and the General Counsel

filed exceptions and supporting briefs, and the Respond-

ent filed a brief in answer to the exceptions. —

The Board has considered the record and the at-

tached Decision in light of the exceptions and briefs

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discipline of one of its members who is a super-

visory employee can constitute a violation of § 8

(b)(1)(B) only when that discipline may adverse-

ly affect the supervisor's conduct in performing the

duties of, and acting in his capacity as, grievance

.), 172 NLRB 2173

=_ To

decision as turning on a determination of the motivation

behind a union’s act of discipline, but rather on 4

determination of the reasonable effect of that discipline

The conclusion is thus inescapable that a

adjuster or collective bargainer on behalf of the

employer. {Emphasis supplied. }

The further question of “when that discipline may

of the union’s motivation. That this is so seems apparent

from the Supreme Court's treatment in Florida Power

of the Board’s decision in San Franciscg-Oakland Mail-

ers’ Union No. 18, International Typographical Union

Inc.)

(1968). By assuming without deciding that Oakland-

Mailers’ fell within the outer limits of its test, the

Supreme Court has implicitly recognized that an adverse

to have

The

Union,

7 US.

on the supervisor’s activities as an 8(b)(1)(B) repre-

sentative.* As stated by the Supreme Court:

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under our view of Florida Power it makes no difference

whether a supervisor performs a minimal amount of

struck work because it is still reasonably likely that

an adverse effect may carry over to the supervisor's

We do not believe that this analysis conflicts in

any way with the Supreme Court's treatment of the

issue of a supervisor-member’s conflict of loyalties.

interviewed and hired by Andress. Thus, Andress testified that

he hired 3 to 4 new on about 3, 1973,

and that by 1973, he had around 33

new employees (the original 10 went back to their other jobs).

—E-9—

thereto they also arguably perform a minimal amount

of rank-and-file struck work.”

In sum, due to the fact that these supervisor-members |

crossed Respondent's picket line and thereafter per-

formed substantially the same duties as they had done

before the strike, which were principally or only super-

visory functions (including grievance adjusters), we find

that Respondent has violated Section 8(b)(1)(B) of

the Act.

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Rela-

tions Board thereby orders that the Respondent, Chica-

go Typographical Umion No. 16, Chicago, Illinois, its

officers, agents, and representatives, shall:

1. Cease and desist from restraining or coercing

Hammond Publishers, Inc., in the selection of represen-

tatives for the purpose of collective bargaining or the

adjustment of grievances:

(a) By fining, expelling, otherwise disciplining, or

attempting by any means to collect or enforce any

In the words of the majority of the circuit court in Jn-

ternational Brotherhood of Electrical Workers, AFL-CIO [Illinois

Bell) v. N.L.R.B., 487 F.2d 1143, 1169-70 (C.A.D.C., 1973):

right to ven if he permits them to

join unions, Section 8(b)(1){B), as interpreted by Oak-

eta mse Pena Ping rafts meery a from

manner

dministrative Law Judge

—i—

* The A

s decision to discipline

all the evidence,

the discipline

it construed subject to its disci-

pline from working during a

Respondent's

ial ip

work stoppage.”

was to “keep those

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depends on an analysis of the activity engaged in

172 NLRB 2173

The conclusion is thus inescapable that a union's

(1968). By assuming without deciding that Oakland-

discipline of one of its members who is a super-

visory employee can constitute a violation of § 8

(b)(1)(B) only when that discipline may adverse-

ly affect the supervisor's conduct in performing the

duties of, and acting in his capacity as, grievance

adjuster or collective bargainer on behalf of the

employer. [Emphasis supplied. |

The further question of “when that discipline may

decision as turning on a determination of the motivation

behind a union’s act of discipline, but rather on @

determination of the reasonable effect of that discipline

of the union’s motivation. That this is so seems apparent

from the Supreme Court's treatment in Florida Power

by the supervisor during the period for which the

discipline is imposed, rather than on an evaluation

of the Board’s decision in San Franciscg-Oakland Mail-

ers’ Union No. 18, International Typographical Union

on the supervisor's activities as an 8(b)(1)(B) repre-

sentative.® As stated by the Supreme Court:

adversely affect the supervisor's conduct . .

(Northwest Publications, Inc.),

iin

cluding grievance adjusting) but also, at least arguably,

a minimal amount of rank-and-file struck work during

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—E-8—

acts of discipline in the instant case violated Section

8(b)(1)(B) notwithstanding the fact that Palmer and

Andress may have performed a minimal amount of

rank-and-file struck work. This follows, we feel, since

under our view of Florida Power it makes no difference

whether a supervisor performs a minimal amount of

struck work because it is still reasonably likely that

an adverse effect may carry over to the supervisor's

performance of his 8(b)(1)(B) duties when he is

disciplined after having performed substantially only

supervisory functions and only a minimal amount of

what might arguably be called rank-and-file struck work

during a work stoppage. 2s

We do not believe that this analysis conflicts in

any way with the Supreme Court’s treatment of the

issue of a supervisor-member’s conflict of loyalties.

and that by mid December’ 1973, he had around

new employees (the original 10 went back to their other jobs).

—E-9—

thereto they also arguably perform a minimal amount

of rank-and-file struck work.”

In sum, due to the fact that these supervisor-members

that Respondent has violated Section 8(b)(1)(B) of

the Act.

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Rela-

tions Board thereby orders that the Respondent, Chica-

go Typographical Union No. 16, Chicago, Illinois, its

officers, agents, and representatives, shall:

1. Cease and desist from restraining or coercing

2. Take the following affirmative actions which,

we find, will effectuate the policies of the Act:

(a) Rescind and expunge all records of the fine

and expulsion levied against Norman E. Andress on

November 25, 1973, and against Vernon M. Palmer

on December 30, 1973, after they had performed sub-

copies of the attached notice marked “Appendix.””

—E11—

able steps shall be taken by Respondent to insure

that said notices are not altered, defaced, or covered

by any other material.

(d) Furnish the Regional Director for Region 13

with signed copies of said notice for posting by Ham-

mond Publishers, Inc., if willing, in places where potices

to employees are customarily posted.

(e) Notify the Regional Director for Region 13,

in writing, within 20 days from the date of this Order,

what steps Respondent has taken to comply herewith.

MEMBER FANNING, dissenting:

The facts of the case, the law as set out in the

i re s

—B12—

joined by approximately 10 other employees, 7 of which

Hammond had secured from various other companies

within its organization. Of these latter employees, none

were even apprentices at the trade. Approximately three

had some composing room experience but not in the

work over which Respondent has jurisdiction. The rec-

ord does not detail its exact function, but an essential

process in production is performed by the “505 photo-

graphic unit.” Prior to August 23, only three employees

were trained in its operation. Two of those employees

were engaged in the work stoppage—the third was

Andress. According to his own testimony, it took

Andress 2 or 3 weeks of training given by the manu-

facturer to learn the operation of the 505 in addition

to “several months” of concurrent textbook study. The

mechanical operation of the machine is, according to

Andress, quite simple and can be taught in a matter

of moments; however, when problems arise with the

machine more extensive knowledge is required.

As to the composing room itself, Andress testified

that immediately upon commencement of the picketing:

All windows were completely sealed; the doors

were kept under lock; there was no exit in or

out of the composing room unless it was okayed

by me by getting in or out. There was also,

as I said, all the windows were completely blanked

over so there was no way of anyone seeing into

the composing room what was going on at that

particular time. .. . We had a guard at two areas.

These conditions existed at Hammond for the extent

of Andress’ stay in the composing room.” Andress

when he was replaced by Palmer, the foreman of

the composing room. Palmer had participated in the

work stoppage from August 23 to September 9.

Both Andress and Palmer testified that while behind

the picket line they performed work which normally

would have been perrormed by rank-and-file employees

had there not been a strike, ic., Andress and Palmer,

by their own words, admitted performing struck work,

albeit they characterized the extent of struck work

performed as “minimal.”

Although Hammond had sealed off the composing

men and guards

that Andress and

the striking em-

Respondent was

*§

—b14—

charges were being brought against them for “ratting.”

Neither Andress nor Palmer attended his hearing on

the charges. Both trial committees were told that both

had, according to reports, performed the work of em-

ployees engaged in the work stoppage. The record

further establishes that both trial committees had ex-

pressed concern with the hearsay nature of the charge

that Andress and Palmer hac. performed struck work,

but, given their failure to appear, coupled with the

secrecy with which their actions were undertaken, little

choice remained but to recommend guilty verdicts. Both

Andress and Palmer were notified that any defenses

they might have offered to the trial committees would

not be deemed waived upon their attendance at the

—E-15—

majority, it is necessary to clarify what that case (and

its companion case, N.L.R.B. v. International Broth-

erhood of Electrical Workers, and Local 134, IBEW

(Illinois Bell Telephone Company), 487 F.2d 1143),

involved. The complaint in Florida Power charged the

respondent unions with violation of Section 8(b) (1) (B)

because the unions fined certain supervisors who “con-

tinued working for Florida Power and crossed Respond-

ent’s picket lines as required in order to do so” (empha-

sis supplied). The case came to the Board on stipulated

facts. The stipulation indicated that the fined super-

visors “performed bargaining unit work.” There was

no indication that the supervisors performed “only”

bargaining unit work. In point of fact, the Board's

original decision in Florida Power stated that “the

Company’s supervisors routinely crossed the picket line

during the course of the strike and performed work,

including unit work for the company.”

In the companion Illinois Beli case, the supervisors,

according to the General Counsel’s complaint, “worked

and/or supervised the performance of work on behalf

of the Employer” (emphasis supplied). A hearing was

conducted in the case during which all parties stipulated

that the fined supervisors “during the same period

performed work of a supervisory nature.” At least

one fined supervisor testified that besides performing

rank-and-file work, “I acted in the capacity of a super-

visor to other people who were performing work during

the strike.” ! |

As a point of logic and given the clear, irrefutable

facts of both Florida Power and Iilinois Bell, 1 am

at a loss to understand the majority's “doubt” as to

1193 NLRB 30 (1971). (Emphasis supplied.)

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—E-20—

[The Appendix to the Board’s Order and the Decision

of the Administrative Law Judge have been omitted. ]

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.