# Petition — American Broadcasting Cos. v. Writers Guild of America, West, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1703%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 437 U.S. 411 ## Text 4 Supreme Court, U. $ FILED _on FES 14 4977 Supreme Court of the United Statess, ciom October Term, 1976 Pe 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 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- . Hi ; ; H 3 | LEE i . 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. (c) Advise Hugh Benson, Robert Blees, Cy Cher- 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 (c) by charging, trying, or penalizing any such 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. oe 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 be 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 g i rt cigidt ; f H : Hl : | ze i ; i Hi 4) . ! | } therefore did not resolve these additional allegations = }-3—~ > 4 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 (c) by charging or trying any such employer 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, a 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 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 in 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 Hieiiontiee ie int a ii lita ge. HH Lt ate Hee : : he (hs a He oH | . iE tel SUH Ea ee (ith LS ET Te eI TEE rh a Hira iy + ATE i i i eh it etre E pet GP gfeeetianist cele ie pug : HL TLE iat! : if fag ie He fin ul hii ni HUES aia Wat ti ee GE ie aside 1 aan a 1S 2 i ij ea ee iat uk 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 4 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: lit | iil in a as a i is Hee if itl iti ‘inl aa papas TTT LT CHE Sel he if E : lai lee ‘i i Prune WE it a : Haunt tnt T ; i : Be POLE jb ‘lb is + r > 1} uler: hh at i att im i age i fat fu jet i rit Desir ata ci ani Aun 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 i i i 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 iii aE ee ett q2s8 — at he ene ar i ei Feb Tees a t ih ink Atal: iti Faalalif “tite fs - yal. te uf He HF HH Ti : Fe hi i! = tee fal TRE Ee ” clearly 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 =o 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 is ! | cluding grievance adjusting) but also, at least arguably, i a minimal amount of rank-and-file struck work during ~ aaa sO greg Ga od etl HHL ai? a} i i 47d glyisd pat eit g5 6 ih th tel a pu 3° HA ili hi teal ull ill HT BG : | . : | lit iil uo it precsay PHAGE nh if : EE: [fin lees ay li El aii iii ua iF i 1 i 7 Shi mE ces L; i Gelb i: z i; StdeL igiteantel yates AH nine, | ali thai ant il aca ‘ll bel Hae H [betetde j / —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 | 98 *§ é > F fi —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.) np aac a f ae i i : i il bait, il ab i i sail i i : lh eh i ae a dE ttielt anise eae Ha HF ia rat aL i TRIB THT any erie F £ 242 + ii ‘ 1975 itil Haat lit thee ah shy af aE li i Hap ete 4 E i} Bote | pte 4 i cuit 5 | ' ial gags i he ALE 1 hn i at hil HARTA Lea i ish i Hee area rit tii? aS ehtege ba |: Hh ae hind “eisegee ite [i ca it : t 7 : ia tn iP li ei nf [i TEATTE Hie ee ate HiHe Ht HF ally! a aH drais H: pln ital ‘lint : nit —E-20— [The Appendix to the Board’s Order and the Decision of the Administrative Law Judge have been omitted. ] Ns. - < e a ‘4a Cte «eS Ree eee rh gfe sho dets --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1703%3A01. Public record. Not legal advice.