Respondents Brief — National Labor Relations Board v. International Brotherhood of Electrical Workers, Local 340

[Sapreme Court, US.

FILED

ORC 22 1986

No. 85-1924

———

In THE

Supreme Court of the United Stairs

OCTOBER TERM, 1986

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

V.

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL 340,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Nixth Circuit

BRIEF OF RESPONDENT

LAURENCE J. COHEN

LARRY D. SILVER

1125 15th Street, N.W.

Washington, D.C. 20005

KATHRYN A. SURE

MARK S. RENNER

101 Park Center Plaza

San Jose; CA 95115

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202/637-5390)

a

t yA’ =,

~

TABLE OF CONTENTS

STATEMENT OF FACTS

SUMMARY OF ARGUMENT

ARGUMENT

SECTION &(b)(1)(B) OF THE NLRA

NOT PROHIBIT A UNION FROM

PLINING A UNION MEMBER FOR TAKING

A SUPERVISORY POSITION IN VIOLATION

OF THE UNION’S CONSTITUTION

A. Threshold Consideratior

RB. The Legislative Materia]

Oo. The Lessons

CONCLUSION

ii

TABLE OF AUTHORITIES

CASES: Page

American Broadcasting Cos. v. Writers Guild,

137 U.S. 411 (1978) passim

American Newspaper Publishers Ass’n v. NLRB,

193 F.2d 783 (7th Cir. 1951), aff'd, 345 U.S.

100 LO

American Steel Foundries v. Tri-City Central

Trades Council, 257 U.S. 184 (1921) 10

Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940) 10

Arden Electric, 275 NLRB No. 95 (June 4,

1985) 3

5

Communications Workers Local 1122, 226 NLRB

97 (1976), enf'd, 562 F.2d 37 (2d Cir. 1977) 17

Connell Co. v. Plumbers & Steamfitters, 421 U.S.

616 (1975) 10

Democratic Party v. Wisconsin, 450 U.S. 107

(1981) 1]

Doud Box Cox. v. Courtney, 368 U.S. 502 (1967) 19

Federal Trade Commission ° Bunte Brothers,

Inc., 312 U.S. 349 (1941) 33

Florida Power & Licht Co. v. Electrical Workers,

117 U.S. 790 (1974) passim

Meurer v. Detroit Musicians, 95 Mich. 451

th. jp = 8)

National Association of Letter Carriers, 240

NLRB 519 (1979) 17-18

New Mexico District Council of Carpenters and

Joiners of America (A. S. Horner, Inc.) 177

NLRB 500 (1969), enf’d, 454 F.2d 1116 (C.A.

LO 1972) 15

Norwegian Nitrogen Products Co. v. United

States, 288 U.S. 294 (1933) -........ 33

Pipefitters v. United States, 407 U.S. 385 (1972) 19

Reiter v. Sonotone Corp., 442 U.S. 300 (1979) 16

Roberts v. United States Jaycees, 468 U.S. 609

(1984) ll

San Francisco-Oakland Mailers’ Union No. 18

(Northwest Publications, Inc.), 172 NLRB

2173 (1968) 13, 15-16, 33-36

1)

TABLE OF AUTHORITIES-—Continued

Schauten v. Alpine, 215 N.Y. 225 (1915) 9

Systems Council T-6, 236 NLRB 1209 (1978),

enf’d, 599 F.2d 5 (1st Cir. 1979) 1’

Teamsters Local 665, 195 NLRB 581 (1971) 17

The Tribune Co., 226 NLRB 379 (1976) Ls

United States v. 12 200-Ft. Reels of Film, 413 U.S

123 (1975) 34

Woodwork Manufacturers v. NLRB, 386 U.S. 612

(1967) 18

STATUTES:

National Labor Relations Act, as amended, 29

U.S.C. § 151 et seq. 12

S$ 2(3), 29 U.S.C. § 152(3)

§ 8(b) (1) (A), 29 U.S.C. § 158(b) (1) (A) 22,

28-29

S$ 8$(b) (1) (B), 29 U.S.C. § 158(b) (1) (B) pa

§ 14(a), 29 U.S.C. § 164(a) 12

LEGISLATIVE MATERIALS:

H.R. 4908, 79th Cong. 2d Sess. (1946)

H.R. 3020, 80th Cong. lst Sess. (1947) 19-26

S. 55, 80th Cong. Ist Sess. (1947) 22

S. 103, 80th Cong. lst Sess. (1947) 22

133, 80th Cong. Ist Sess. (1947) 22

360, 80th Cong. Ist Sess. (1947) 22

. 858, 80th Cong. lst Sess. (1947) 20

871, 80th Cong. lst Sess. (1947) 23

MND

S. 1126, 80th Cong. Ist Sess. (1947) 25

H.R. Rep. No. 245, 80th Cong. Ist Sess. (1947) ....12, 20-21

S. Rep. No. 105, 80th Cong. Ist Sess. (1947) 24, 25-26

S. Rep. No. 99, 81st Cong. lst Sess. (1949) 31

Legislative History of the Labor Management Re-

lations Act of 1947 passim

92 Cong. Rec. 23

VISCELLANEOUS:

G. Fink, Labor Unions (1977) LO

H. Millis & E. Brown, From the Wagner Act to

the Taft-Hartley Act (1950) ;, 24, 30

iv

TABLE OF AUTHORITIES—Continued |

Page

M. Mulcaire, The International Brotherhood of

Electrical Workers: A Study In Trade Union

Structure and Functio (19755) 10

New York Times, Oct. 22. 1946 23

New York Times, Oct. 26, 1946 23

New York Times, April 16, 1947 23

New York Times, April 30, 1947 .....................------s. 22

New York Times, May 30, 19417 19

R. Lee, Truman and Taft Hartley (1966) 23

Reilly, The Legislative History of the Taft- /

Hartley Act, 29 G.W.L.Rev. 285 (1966) 19, 22, 23, |

24, 30, 31 |

S. Bailey & H. Samuel, Congress at Work (1952) 19, 23,

24, 29, 30, 3 |

Summers, Legal Limitations on Union Discipline, |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-1924

NATIONAL LABOR RELATIONS BOARD,

Pe hitioner.

V.

INTERNATIONAL BROTHEPHOOD OF

ELECTRICAL WORKERS, LOCAL 340,

Re spond yt

On Writ of Certiorari to the United States Court of Appeals

for the Ninch Circuit

BRIEF OF RESPONDENT

The citations to the opinions below and the basis for

this Court’s jurisdiction are correctly set forth in peti-

tioner’s brief at p. 1. In addition to the statutory provi-

sion quoted in that brief, the following additional provi-

sions of the National Labor Relations Act, as amended,

29 U.S.C. $$ 151 et seg., are pertinent here:

Section 2, 29 U.S.C. § 152. Definitions

When used in this subchapter

>

(3) The term “employee” shall include any em-

ployee, and shall not be limited to the employees of

a particular employer, unless this subchapter explic-

itly states otherwise, and shall include any individual

whose work has ceased as a consequence of, or in con-

nection with, any current labor dispute or because of

any unfair labor practice, and who has not obtained

any other regular and substantially equivalent em-

ployment, but shall not include any individual em- |

ployed as an agricultural laborer, or in the domestic

service of any family or person at his home, or any

individual employed by his parent or spouse, or any

individual having the status of an independent con-

tractor, or any individual employed as a supervisor,

or any individual employed by an employer subject

to the Railway Labor Act [45 U.S.C.A. § 151 et

seq.|, as amended from time to time, or by any other

person who is not an employer as herein defined.

* * *

(11) The term “supervisor” means any individual

having authority, in the interest of the employer, to

hire, transfer, suspend, lay off, recall, promote, dis-

charge, assign, reward, or discipline other employ-

ees, or responsibly to direct them, or to adjust their |

grievances, or effectively to recommend such action,

if in connection with the foregoing the exercise of

such authority is not of a merely routine or clerical

nature, but requires the use of independent judg-

ment.

Section 14(a), 29 U.S.C. $ 164(a). Construction of

Provisions

(a) Supervisors as union members

Nothing herein shall prohibit any individual em-

ployed as a supervisor from becoming or remaining

a member of a labor organization, but no employer

subject to this subchapter shall be compelled to deem

individuals defined herein as supervisors as employ-

ees for the purpose of any law, either national or

local, relating to collective bargaining.

STATEMENT OF FACTS

The International Brotherhood of Electrical Workers

Local 340 (‘Local 340” or “the Union’), represents elec-

tricians in an area that includes Sacramento, California.

Pet. App. 2a, lla-12a. For many years prior to 1981,

Local 340 had negotiated a series of collective bargaining

agreements with the Sacramento Chapter of the Nationa!

Electrical Contractors Association, Inc. (NECA), a multi-

employer bargaining unit. (/d.) Harold E. Nutter, Inc.

(“Nutter”) and Royal Electric Co. (‘Royal’), electrical

‘ontractors in Sacramento, were represented by NECA.

Id.

In September, 1981, in the course of a labor dispute

between NECA and Local 340, the Union disclaimed in-

terest in representing the employees of NECA members

in “the multi-[employer| bargaining unit previously es-

tablished.” Pet. App. 2a, 12-13a. The following day,

NECA adopted the disclaimer, causing the multi-employer

unit to be “dissolved” (as the Board has found in a re-

lated case, Arden Electric, 275 NLRB No. 95 (June 4,

1985)). Shortly thereafter, the Union filed separate rep-

resentation petitions seeking to represent, in single-

employer units, the employees of those employers that

had been in the NECA bargaining unit and whose em-

ployees the Union believed desired representation by Lo-

cal 340. J.A. 126. Local 340 did not then or subse-

quently file petitions to represent the employees of Royal

or Nutter, and since September, 1981, Local 340 has

played no part in negotiating the terms and conditions

of me syne for employees of those two employers. Pet.

App. 2a, 12a- , J.A. 55-57, 77-79.

On October 1, 1981, NECA signed a labor agreement

with an “independent” union, the National Association of

Independent Unions, Pet. App. 2a, 13a, which operated, at

least in part, out of the same building as NECA, J.A.

09. Both Nutter and Royal immediately adopted that

contract, Pet. App. 2a, 13a, which provided for electricians

to be paid wages below the level established in Local 340’s

collective bargaining agreements with other employers.

J.A. 82, 136.

Under the Constitution of the International Brother-

hood of Ele ctrical Workers (“IBEW”’), the international

union which the parent of Local 340, IBEW members

4

are not to “work[] for, or on behalf of, any employer .

whose position is adverse or detrimental to the IBEW.”

J.A. 152. By paying wages below union scale, Royal and

Nutter assumed a position “adverse or detrimental to the

IBEW”; indeed, some time after January 1982, Local 340

picketed one of Nutter’s jobsites for several days because

Nutter was undermining the union’s scale by paying sub-

standard wages. J.A. 72, 79. The picketing was “normal

area standards picketing.” J.A. 133, 136.

In March, 1982, a member of Local 340 filed a charge

with the Local against a fellow member, Marvin Miller,

alleging that Miller was working for Nutter. On Novem-

ber 1, 1982, the Local’s business manager filed a similar

charge against union member Ted Choate. And on De-

cember 20, 1982, a third union member filed a charge

against Albert Schoux, a member of a sister loca! of the

Union, alleging that Schoux was working for Royal, an-

other employer with which the Union did not have a

bargaining relationship. Pet. App. 2a-3a, 14a, 17a-18a,

20a-22%

nt beet CA

Following notices to Miller, Choate and Schoux, trial

boards established by the Union held a hearing in eac!l

case. Based on the evidence presented at these hearings,

the trial boards found the individuals in question guilty,

inter alia, of violating the constitutional prohibition on

working for adverse employers. A fine was imposed on

each individual. Pet. App 2a-3a, 18a, 2la, 22a.

,

After the fines were assessed, Nutter and Rova

ral filed

unfair labor practice charges against Local 340, alleging

that by fining individuals who worked for those employ-

ers, the Union had restrained or coerced the employers

in the selection of their representatives in violation of

$8(b)(1)(B) of the National Labor Relations Act, 29

U.S.C. § 158(b)(1)(B) (“NLRA” or “the Act’). An

Administrative Law Judge of the National Labor Rela-

tions Board (““NLRB” or “the Board’) found the fines

of Choate and Schoux to be unlawful on the theory that

those fines would have “ ‘the reasonably forseeable and

y

. 4 } ; Ye see ¢ . 41 j 4

> = 7. . 7. 9171 . hh sta SL ‘Oc} ,

ntvenaea ere OI Causing se individuals » resign

their supervisory posts. Pet. App. 27a. The ALJ sus-

+. ; +) + " . ‘ ‘ . ¥ ; ‘ +h +7 .

ained the fine of Miller, however. because, although Mille

. . . . ‘ err tT - + . . .

linarily served as one of Nutter’s foremen, Mille

\ eC] ~ ‘ T TT al t | | a ne 1. rT ‘ 4 i

u} ‘ \ ey) (] eT LPer VOrKI! y ? } 1e low’ l?

| 7

— a] lille vas a The ALJ cor

>

cluded lisciplining Miller for working o1 a Db did

I it el I O] Su cl SUIS Pet Apt 29a

Pp}

\ es filed exceptio1 o the AL.J’s decisior Or

\ugust 14, 1984. the Board, without opinio1 affirm | ed

idge rulings, findings conclusions Pe Ap]

)

| ‘ BR ' ‘ al | ne | ’ ec ‘ os { y’? \T \

~ | ) neé \ 7 ' { Zz lit T¢ ey) “Oree TS { (lie) (}Y

1a) 2? 1986. that coun lenied enforcement, ruline

ecause Local 340 did not have a collective bargain-

¢ relationship with Roval or Nutter and was not seek-

= ‘ Te 4] ee ™ 4] _

ng to organize those employers’ employees, the Local’s

nduct in fining union members for working for those

emplovers “cannot reasonably be construed as an effort to

‘ . 47 - | . ‘* ) 4 _

restrain or coerce tne empiovers. | SU. App. fad.

On October 6, 1986, this Court granted the Board’s

on tora writ or certiorari.

SUMMARY OF ARGUMENT

The theory on which the Board’s decision in this case

rests is that $ 8(b)(1)(B) of the National Labor Rela-

tions Act, as amended, 29 U.S.C. § 158(b)(1)(B), not

only prohibits a union from disciplining a union member

who serves as a Management representative for the indi-

vidual’s conduct qua management representative but also

prohibits union discipline whose purpose and effect is to

discourage union members from accepting management

positions. The implications of this theory are far-reach-

]

|

ing. As the instant case illustrates, the Board’s under

standing of § 8(b)(1)(B) prohibits a union from en-

6

forcing as against supervisor-members union rules re-

quiring members to work only for employers who pay the

union’s collectively negotiated wage scale. And the logic

of the Board’s theory would make it equally unlawful for

a union to limit its membership to rank-and-file workers

and to exclude all supervisors from membership. PP. 7-

12 infra.

The Board bases its theory almost entirely on this

Court’s decision in American Broadcasting Cos. v. Writers

Guild, 4837 U.S. 411 (1978) (“ABC’’). There is language

in that case which can be read to establish an independ-

ent rule that any union discipline which affects union

members’ “willingness to serve’ as management’s repre-

sentatives violates § 8(b)(1)(B). But that language was

written in a case in which a union, having allowed its

members to assume a supervisory status, sought to use

the supervisors’ union membership as a handle to control

the supervisors’ conduct as management’s representative.

Against that background ABC, fairly read, goes no fur-

ther than to suggest that § 8(b) (1) (B) proscribes union

action which interferes with the employer’s control over

his representative and thereby affects the representative’s

“willingness to serve.”” The NLRB itself has so under-

stood ABC in some of its decisions. Pp. 12-17 infra.

The legislative histo:‘y of the statute leaves no doubt that

the narrower reading of ABC better reflects Congress’ in-

tent. Although Congress did not focus specifically on and

reject in terms the theory the Board here seeks to extract

from ABC, the legislative materials make clear that § 8(b)

(1)(B) was intended, understood, and defended as a nar-

row prohibition addressing precisely defined evils far re-

moved from the type of union conduct at issue here. In-

deed, as we show, by a full review of the 1947 Congress’

actions and deliberations in amending the labor law, the

Board’s attempt to stretch § 8(b)(1)(B) to cover the

instant case ignores the political context in which that

section was enacted, and the “gamut of values current”’

at that time. PP. 18-36 infra.

ARGUMENT

SECTION 8(b)(1)(B) OF THE NLRA DOES NOT PRO-

HIBIT A UNION FROM DISCIPLINING A UNION

MEMBER FOR TAKING A SUPERVISORY POSITION

IN VIOLATION OF THE UNION’S CONSTITUTION

A. Threshold Considerations

The Constitution of the International Brotherhood of

Electrical Workers—like that of many other unions, se

n.3 infra—has for many years, prohibited members of

the Union from “working for, or on behalf of, any em-

ployer . . . whose position is adverse or detrimental to

the IBEW.” In the instant case, the Union sought to

enforce that rule by disciplining three members who had

accepted jobs with non-union employers.’ The Board here

contends that although the Union is free to discipline

the one member who accepted a non-supervisory job,

$s 8(b)(1)(B) of the NLRA makes it unlawful for the

Union to discipline the two members who happened to

accept supervisory positions with grievance adjustment

responsibilities.

In making that argument the Board does not contend

that the Union in this case placed economic pressure on

the employers in an effort “to dictate . . . who would

represent them in collective bargaining or grievance ad-

justment.” Florida Power & Light Co. v. Electrical

Workers, 417 U.S. 790, 803 (1974) (“FP&L”). Nor does

the Board claim that the Union’s conduct “would or might

adversely affect the performance of the [supervisor-mem-

bers’| grievance-adjustment duties” or “interfere with the

employer’s control over his representative.” American

Broadcasting Cos. v. Writers Guild, 487 U.S. 411. 482.

133 (1978) (“ABC”). Rather the Board’s theory is that

‘We use the term “non-union employers” to refer to employers

whose employees are unrepresented by any union and employers who

do not have a collective-bargaining relationship with the union

imposing the discipline.

8

the Union’s action has “the reasonably foreseeable and in-

tended effect” of reducing the supply of workers available

for supervisory positions and in that sense “restrain([s]

or coerce[s]”’ the employer in filling such positions. See

Pet. App. 27a; NLRB Br. at 3-4, 13-14. It is our sub-

mission, per contra, that §8(b)(1)(B) cannot be

stretched so far as to prohibit all union conduct which

affects the size of the pool from which an employer

chooses his supervisors, especially union conduct aimed at

preventing union members from working for an employer

with whom the union does not have a collective bargain-

ing relationship.*

1. It is helpful at the outset to observe the sweeping

implications of the Board’s theory. As this case makes

clear, the Board’s understanding of § 8(b) (1) (B), pro-

hibits a union from enforcing as against supervisor-mem-

* Unlike the court below, we do not believe that a union’s right to

discipline union members for accepting a supervisory position is

limited to instances in which the member is working for an em-

ployer with whom the union does not have a bargaining relationship

and as to whom the union has not engaged in “overt acts’”’ manifest-

ing the union’s “desire to represent” the employees of that employer

Compare Pet. App. 7a.

We do agree with the view of the court of appeals that this case

does not raise any issue concerning the application of § 8(b) (1) (B)

with respect to union discipline of supervisor-members employed by

employers with whom the union does have a collective-bargaining

relationship. Indeed, all that is necessary to affirm the judgment

of the court of appeals denying enforcement of the Board’s order

in the present case is a holding that whatever § 8(b) (1) (B)’s sig-

nificance where a union and employer have a collective-bargaining

relationship, the section does not prohibit a union from requiring its

members to refrain from working for non-union employers. As we

show below, the legislative history establishes at least this much.

For the reasons set forth infra, however, we suggest that the

soundest basis for affirming the decision below is by distinguishing

union discipline aimed at preventing union members from accepting

management positions from union discipline aimed at controlling

the manner in which union members represent management, and by

holding the former to be outside the reach of § 8(b)(1)(B

9

bers union rules requiring members to work only for em-

ployers paying the union’s collectively-negotiated wage

scale. Such rules were quite common at the time § 8(b)

(1) (B) was enacted in 1947;* indeed, rules prohibiting

3 See International Brotherhood of Electrical Workers Constitu-

tion, Art. XVII §12 p. 26 (1941) (non-signatory employers rule) ;

Bricklayers, Masons and Plasterers International Union of America,

Constitution and Rules of Order, Art. XVIII §2 p. 77) (1946)

(non-signatory employers rule) ; United Brotherhood of Carpenters

and Joiners of America, Constitution and Laws, § (T p. 33)

1944) (non-signatory employers rule); International Union of

Elevator Constructors, Constitution and By-Laws, Art. VIII §6

(p. 19) (1946) (withdrawal penalties for members working for

non-signatory employers in industry); International Association of

Heat and Frost Insulators and Asbestos Workers, Constitution and

By-Laws, Art. XV $1 (p. 23) (withdrawal restrictions), Art. XV

$9 and §11 (pp. 29-30) (union wage scale) (1942); International

Union of Operating Engineers, Constitution, Art. XXIII, Subdiv. 3

pp. 82-83) (non-sSignatory employer), Art. XV (p. 55 with-

drawal restrictions) (1944): Sheet Metal Workers International

Association, Constitution and Ritual, Art. VII, §§ 2, 5 (pp. 25, 26)

an

(1946 inion wage scale), § 19 (p. 31) (non-signatory employer

Art. XV, $81, 2 (withdrawal restrictions) (1946); United Slate,

Tile and Composition Roofers, Damp and Waterproof Workers As-

sociation, Constitution and By-Laws, Art. II §7 (p. 12) (union

wage scale), Art. II §18 (p. 14) (non-signatory employers), Art

IV §4 (p. 26) (withdrawal restrictions) (1940); Brotherhood of

Painters, Decoraters and Paperhangers of America, Constitution

; 303 (p. 104) (non-signatory employer), § 304 (p. 104) (union

wage scale) (1947); International Association of Bridge, Structural

ind Ornamental Iron Workers, Constitution, Art. XVII §§ 18, 14

(pp. 51-53) (withdrawal restrictions), Art. XVIII, $7 (pp. 76-77)

(union wage scale) (1944); Operative Plasterers’ and Cement

Finishers’ International Association, Constitution §§ 158-60 (p. 56)

(1948) (non-signatory employer); see also United Mine Workers

of America, Constitution of the International Union, Art. XIV § 10

p. 52) (1938) (working in non-union mine); United Stone and

Allied Products Workers of America, Constitution, Art. XLIII

1(f) (p. 76) (1946 non-signatory employer); Oil Workers

International Union, Constitution and By-Laws, Art. IV § (p. 61

1946) (union wage scale); Amalgamated Clothing Workers of

America, Constitution, Art. IX, $8 (p. 21 (1948) (withdrawal

restrictions) ; International Association of Machinists, Constitution

10

union members from working for non-union employers

date from the beginnings of the labor movement in this

country, and were long enforced at common law.* The

nation’s oldest national union, the International Typo-

graphical Union, adopted such a rule prior to 1885,° and

the IBEW’s very first constitution, adopted at its found-

ing in 1891,° included a similar prohibition.

Such union rules further a vital union interest: the

“elimination of . . . competition based on differences in

labor standards.” Apex Hosiery Co. v. Leader, 310 U.S.

469, 503 (1940). That “is the objective of any national

labor organization,” id., and it is the predicate of the fed-

eral labor laws which embody a “strong labor policy

favoring the association of employees to eliminate com-

petition over wages and working conditions,” Connell Co.

v. Plumbers & Steamfitters, 421 U.S. 616, 622 (1975).

As this Court recognized long ago, to be “at all effective”

in this endeavor

employees must make their combination extend be-

yond one shop. It is helpful to have as many as may

be in the same trade in the community united, be-

cause in the competition between employers, they are

bound to be affected by the standard of wages of

their trade in the neighborhood. [American Steel

Foundries v. Tri-City Central Trades Council, 257

U.S. 184, 209 (1921).]

of the Grand Lodge, District and Local Lodges, Art. E §1 (p. 75

and Art. I, §1 (p. 82) (1946 minimum union wage

* See, e.g., Schauten v. Alpine, 215 N.Y. 225 (1915); Meurer v.

Detroit Musicians, 95 Mich. 451 (1893): Summers, Legal Limita-

tions on Union Discipline, 64 Harv.L.Rev., 1049, 1064 (1951

5 See American Newspaper Publishers Ass’n v. NLRB, 193 F.2d

782, 787-89 (7th Cir. 1951), aff'd, 345 U.S. 100 (1953); G. Fink,

Labor Unions, 301 (1977).

® Constitution of the National Brotherhood of Electrical Workers

of America, First Convention, Art. XIX § 9 (1891). See M. Mulcaire,

The International Brotherhood of Electrical Workers: A Study in

Trade Union Structure and Function 42 (19238

11

It is for that reason that unions seek to organize as

many workers as possible within an industry, and then

seek to assure that union members work only for employ-

ers paying collectively-bargained wages. There can be no

doubt that the understanding of §$ 8(b)(1)(B) that the

Board champions here would significantly limit the abil-

ity of labor unions to achieve this central aim.

The logic of the Board’s theory would, moreover, make

it unlawful for a union to ljlimit its membership to rank-

and-file workers and to exclude a// supervisors from

union membership (regardless of where the superviso1

works) as such a rule would have “the reasonably fore-

seeable and intended effect”? of causing union members

who desire to maintain their union membership not to ac-

cept supervisory positions. Yet, at the time § 8/b) (1) (B)

was enacted, many unions, in an exercise of a core aspect

of their associational freedom the “freedom to identify

the people who constitute the association and to limit t]

association to those people o1 " Democratic Party

Wisconsin, 450 U.S. 107, 122 (1981)'—allowed only

rank-and-file workers to maintain their membership and

terminated the membership of those who accepted a su-

pervisory post.* And at the same time § 8(b) (1) (B)

7 See also Roberts v. United States Jaycees, 468 U.S. 609, 623

1984 A “regulation that forces the group to accept members it

does not desire” is a “clear[ |] example of an intrusion into the in-

ternal structure and affairs of an association”

8 See, e.g., United Automobile, Aircraft and Agricultural Imple-

ment Workers of America, Constitution of the International Union

Art. 6 $10 (p. 10 1946) ; United Mine Workers of America, Con-

‘titution of the International Union, Art. XIV § 2 (p. 48 1938) ;

Amalgamated Clothing Workers of America, Constitution, Art. IX

>1 (p. 19 1948); United Stone & Allied Products Workers of

America, Constitution, Art. X §$1(b p. 25 1946) ; American

Communications Association. ]nternational Constitution, Art. V

l(a), 17 (1944): United Steelworkers of America, Constitution

of the International Union, Art. III (p. 4 1946); Industrial

Workers of the World. Preamble and Constitution, Art. II $1

p. 9 1946).

£

12

was enacted Congress also amended the NLRA to make

it lawful for an employer to prohibit his supervisors from

belonging to a union, see NLRA §§ 2(3), 14(a), 29

15213), 164(a); those sections were enacted be-

cause Congress believed that granting supervisors the

legal right to join a union representing rank-and-file em-

ployees “is inconsistent with the policy of Congress to

assure to workers freedom from domination or control

by their supervisors” and “is inconsistent with our policy

to protect the rights of employers.” H.R. Rep. 245, 80th

Cong. Ist Sess. at 14 (1947). Yet, the Board’s reading

of §8(b)(1)(B) would transform that section into a

vehicle requiring unions to remain open to workers who

opt To hecome supervisors.

2. The Board makes no attempt to justify its far-

reaching and anomalous interpretation of § 8(b) (1) (B)

by reference to the language and history of that provision

the traditional sources for statutory interpretation.

Instead, the Board dismisses the legislative materials as

quickly as possible, see NLRB Br. at 8-10, and devotes

the remainder of its brief to parsing this Court’s decision

in ABC in the apparent belief that ABC is determinative

of the instant case. But as we now show, the question

decided in ABC is analytically distinct from the question

presented here, and ABC’s holding does not compel the

conclusion for which the Board here argues. And while

the ABC opinion does contain language that can be read

to support the Board’s argument, the fairer reading is

that those passages were not intended to apply to, much

less dictate the result in, the present context.

As the Court stated in ABC, although § 8(b) (1) (B)

has not been amended since enacted by Congress in 1947,

the “application” of that section has “‘continued to evolve”

under successive Labor Boards. 4387 U.S. at 423. In order

to understand ABC, it is useful to begin by briefly tracing

that evolution, as the Court did in ABC itself. See id. at

122-26.

_

13

“For more than 20 years after § 8(b)(1)(B) was

enacted in 1947, the Board confined its application to

situations clearly falling within the metes and bounds ot

the statutory language,” FP&L, 417 U.S. at 798, viz,

to cases in which “‘pressures [were] exerted by [a] union

directly upon [an] employer to force him into a multi-

employer bargaining unit or otherwise to dictate or con-

trol the choice of his representative for the purpose of

collective bargaining or adjusting grievances in the

course of administering an existing contract,” ABC, 437

U.S. at 422-23. During that period no broader sweep

was ever imputed to § 8(b) (1) (B).

sé

In 1968, however, the Board significantly expanded

the reach of §8(b)(1)(B) with its decision in San

Francisco-Oakland Mailers’ Union No. 18 (Northwest

Publications, Inc.), 172 NLRB 2173.” FP&L, 417 USS.

at 799-800. In that case, “the Board applied the section

to prohibit union discipline of one of its member-

supervisors for the manner in which he had performed

his supervisory task of grievance adjustment.” ABC, 437

U.S. at 423. The Board in Oakland Mailers reasoned

that by seeking to “compel the employer’s foremen to

take pro-union positions in interpreting the collective bar-

gaining agreement,” the union in that case “interfered

with the [employer’s|] control over his representatives’”’

and thereby “indirectly” coerced the employer to dispense

with the services of the supervisor whom the employer

otherwise would have desired to retain as the employer’s

representative. Oakland Mailers, supra, 172 NLRB at

2173-74.

“Subsequent Board decisions extended § 8(b) (1) (B

to proseribe union discipline” of a supervisor-member

“whenever he was engaged in management or super-

visory activities, even though his collective bargaining or

grievance adjustment duties were not involved.” FP&L.

417 U.S. at 800-02. “Through the course of these deci-

sions, § 8(b)(1)(B) thus began to evolve in the view of

the Board and the [lower] courts ‘as a general prohibi-

14

tion of a union’s disciplining of supervisor-members for

their conduct in the course of representing the interest

of the employer,’ or for acts ‘performed in the course of

[their] management duties.’ ” /d. at 802.

In FP&L and ABC the Court confronted this under-

standing of § 8(b)(1)(B) in the context of cases in

which supervisor-members were disciplined by their union

for reporting to work during a strike against their em-

ployers. In FP&L the supervisor-members had reported

to work to perform “rank-and-file struck work,” 417 U.S.

at 793; the Court concluded that the union discipline did

not violate § 8(b)(1)(B) because it did not threaten to

“adversely 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 em-

ployer,” id. at 804-805. But in ABC, in which the super-

visor-members were disciplined “for crossing the unior

picket line during a strike and performing [their] regu-

lar supervisory duties, which included the adjustment of

grievances,” 437 U.S. at 413, the Court sustained the

Board’s conclusion that these individuals were being dis-

ciplined for their acts gua supervisors and that such dis-

cipline “would or might adversely affect the performance

of the |supervisor-members’] grievance-adjustment du-

° ‘9 ? o<

ties, id. at 432.

The ABC Court distinguished FP&L by observing that

‘“*[w]hen a supervisor forsakes his supervisory role to do

rank-and-file work ordinarily the domain of nonsuper-

visory employee he is no longer acting as a management

representative and no longer merits any immunity from

discipline.” Jd. at 424. And the ABC Court reasoned

that disciplining a union member for what he does “as a

management representative” is different for two reasons:

first, disciplined supervisor-members (who in ABC were

referred to as “hyphenates’”) “might be tempted to give

the union side of a grievance a more favorable slant

while the threat of discipline remained”: and, second, in

any event “the employer could not be certain that a fined

15

hyphenate would willingly answer the employer’s call to

duty during a subsequent work stoppage, particularly if

it occurred in the near future.” /d. at 435. The Court

thus concluded:

Union pressure on supervisors can affect either their

willingness to serve as grievance adjusters or collec-

tive bargainers, or the manner in which they fulfill

these functions; and either effect impermissibly co-

erces the employer in his choice of a representative.

(Id. at 436. ]

The Board bases virtually its entire argument on the

words just quoted, which the Board interprets as estab-

lishing an independent rule that any union discipline

which affects union members’ “willingness to serve’ as

management’s representatives violates § 8(b)(1)(B).°

That is, admittedly, one possible reading of the quoted

language. But, read fairly, the foregoing passage sug-

gests a far narrower rule.

As previously noted, the crucial fact in ABC was that

the “hyphenates” were “management representative|s]”

and that tive union, having allowed its members to as-

sume that status, was seeking to use the hyphenates’

union pile mbe rship to re gulate the hyphenates’ conduct as

management representatives. In other words, in ABC

(as in Oakland Mailers), the union was “interfer|ing|

® The Board also heavily relies on the footnote to the passage

quoted in text in which the Court reviewed the reasoning of the

United States Court of Appeals for the District of Columbia in

FP&L, observing that in that case the appellate court had “noted

its agreement with New Mezico District Council of Carpenters and

Joiners of America (A. S. Horner, inc.), 177 NLRB 500 (1969

enf'd, 454 F.2d 1116 (C.A. 10, 1972),” a case which is quite

similar to the instant case. See ABC, 4387 U.S. at 436 n.36.

The Board claims that the Court in ABC “cited that aspect of

A. S. Horner with approval,” NLRB Br. at 13, see id. at 16-18; we

do not so read the footnote which is, in terms, limited to an explica-

tion of the reasoning of the appellate court in FP&L. Indeed, if that

footnote were to constitute approval of A. S. Horner, it would, for

the reasons explained in text, go considerably beyond the body of

the ABC opinion and address an issue that was not raised in ABC.

16

with the employer’s control over his representative,” as

the Court stated in ABC, 437 U.S. at 423, using almost

the identical words that the Board has used in Oakland

Mailers, 172 NLRB at 2173. It was in this context thai

the Court discussed what “effect{s}” are “impermissi-

blfe!” under § 8(b) (1)(B). So understood, the language

from ABC on which the Board here relies can be read

to mean that where a union “interfere([s} with the em-

ployer’s control over his representatives” by disciplining

individuals for their conduct qua management repre-

sentatives the union’s action is unlawful regardless of

whether the ultimate impact of the discipline is to “affect

[the supervisors’|] willingness to serve as grievance ad-

justors or collective bargainers, or the manner in which

they fulfill these functions.” ABC, 437 U.S. at 436. On

this reading, ABC—and § 8(b) (1) (B)—would safeguard

the employer’s control over his representatives, but would

not preclude a union from seeking to prevent its members

from becoming management’s representatives.

3. The question as to what ABC means thus can be re-

formulated as follows: should ABC be interpreted to

proscribe all union action that can be said to affect a

union member’s “willingness to serve” as management’s

representative, or should ABC be interpreted to proscribe

only union action which “interferes with the employer’s

control over his representative’ and thereby affects the

represertative’s “willingness to serve?” Because what is

at stake in the choice between these two interpretations of

ABC is a decision as to the reach of § 8(b) (1) (B), we sub-

mit that the question is best resolved not by further pars-

ing the words of ABC," but by examining the language

and history of the statute. One additional consideration

peculiar to this case reinforces that approach.

10 See Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979) (“the

language of an opinion is not always to be parsed as though we were

dealing with the language of a statute”).

17

Although the Board’s counsel here boldly argue for

the first interpretation of ABC and of § 8(b) (1) (B), the

Board’s own decisions are far less clear and, indeed, are

internally inconsistent. In particular, the Board has

struggled unsuccessfully with the question whether union

discipline against union members who leave rank-and-file

positions to become temporary supervisors is unlawful.

In three cases—two of which predate ABC and the third

of which was decided within a week of ABC (and does

not cite this Court’s decision) the Board, consistent with

the position championed here, answered that question in

the affirmative and held the unions in those cases guilty

of violating § 8(b)(1)(B) by adopting and enforcing

such rules." But in National Association of Letter Car-

riers, 240 NLRB 519 (1979), which was decided after

ABC, the Board reached the opposite conclusion in a case

in which a union, by constitutional amendment, denied

membership status to those accepting positions as tem-

porary supervisors and precluded such individuals from

participating in the union’s health-insurance plan. In

holding that the adoption of that union rule was not un-

lawful, the Board reasoned:

t

I

The fact that the Postal Service may have fewer

letter carriers who are willing to serve as tempo-

rary supervisors as a result of the [union’s constitu

tional] amendment in no way affects the Postal

Service’s selection of which letter carriers will serve

as temporary supervisors. The method for select-

ing temporary supervisors remains completely within

the control of the Postal Service. The decision to

place one’s name on the list of employees who are

willing to serve as temporary supervisors remains

completely within the power of each individual letter

carrier, and the decision to rate an employee as eli-

gible to serve as temporary supervisor remains com-

11 Teamsters Local 663, 193 NLRB 581 (1971); Communications

Workers Local 1132, 226 NLRB 97 (1976), enf’d, 562 F.2d 37 (2d

Cir. 1977) ; Systems Council T-6, 2836 NLRB 1209 (1978), enf’d, 559

F.2d 5 (1st Cir. 1979).

18

pletely within the power of the Postal Service. The

final decision to appoint an employee as a temporary

supervisor, and the final decision to accept such an

appointment, remains solely within the power of the

Postal Service and the employee respectively. Noth-

ing that the [union] has done can influence this

selection procedure. [Id. at 525; last emphasis

added. |

In support of this conclusion, the Board cited ABC. See

240 NLRB at 525 n. 29. Thus, although the Board’s

theory here accords with some of its decisions, that theory

is manifestly inconsistent with other recent NLRB prece-

dent.’2 It is therefore particularly appropriate in this

case, in order to resolve the conflict in the Board’s deci-

sions and to choose between the alternative interpretation

of ABC, to turn to the legislative materials.

B. The Legislative Materials

So far as we can determine, in enacting § 8(b) (1) (B),

Congress did not focus specifically on and reject in terms

the theory the Board here seeks to extract from ABC, viz.,

that § 8(b)(1)(B) prohibits all union actions that tend

to reduce the size of the pool of would-be supervisors. But

as we proceed to show—based on a review of the origins

of §$8(b)(1)(B), its authoritative legislative explana-

tions, and the political context in which it was enacted-

that section was intended, understood and defended as a

narrow prohibition addressing two precisely defined evils

far removed from the Union’s conduct in the instant case.

The Board’s attempt to expand the reach of § 8(b) (1)

(B) to cover conduct of the type involved here is at war

with the “gamut of values current” when that section was

enacted. Woodwork Manufacturers v. NLRB, 386 U.S.

612,620 (1967).

1. In order fully to understand the legislative history,

some brief background is required as to the political set-

ting in which Congress was acting. From the time the

l2 See also The Tribune Co., 226 NLRB 379 (1976

19

Wagner Act was enacted in 1935, bills were introduced

in every Congress to amend that Act in various respects.

No bill cleared Congress until 1946, however, when the

Case bill, H.R. 4908, 79th Cong., 2d Sess.—the “direct

antecedent” of the LMRA, Doud Box Co. v. Courtney,

368 U.S. 502, 509 (1967)—was approved by Congress,

92 Cong. Rec. 5739, 5946. That bill was vetoed by Presi-

dent Truman, and Congress failed to override the veto.

Id. at 6674-78.

In the 1946 elections, the Republicans gained control

of both the House and the Senate; the Republicans held

a 57-vote majority in the House (246-189) and a six-vote

majority in the Senate (51-45). Facing a “predictable

presidential veto,” Pipefitters v. United States, 407 U.S.

385, 409 (1972), and the need to develop legislation that

two-thirds of the Congress would support in order to

override that anticipated veto, the Eightieth Congress

took up the subject of labor law revision.

2. The House Committee on Education and Labor.

chaired by Representative Hartley, was the first to report

out a labor law bill in 1947. That bill was sweeping in

its scope ; before the Act was finally passed Representa-

tive Hartley stated that “we deliberately put everything

we could into the House bill.” * As reported by the Com-

mittee—and as approved by the House with minor

changes following brief debate—the Hartley bill: would

have precluded any union from representing the employ-

ees of more than one “competing employer” (H.R. 3020,

80th Cong., Ist Sess. § 9(f)(1)); would have made it

unlawful for employees of “competing employers” to act

in concert (id. $$ 2(16), 12(a) (3) (A)); would have pro-

scribed sympathy strikes (id. $$ 2(13), 12(a) (3) (A)

strikes (or economic pressure) over unfair labor practices

ISS. Bailey & H. Samuel, Congress at Work, 416 (1952). This

was the first time since before the Wagner Act was passed that

the Republicans controlled Congress. Reilly, The Leqislative His-

tory of the Taft-Hartley Act, 29 G.W.L.Rev. 285, 289 (1966

14 New York Times, May 30, 1947.

20

(id. § 12(A)(B)), informationa! or labor-standards pick-

eting (td. §12(a)(2)), and strikes (or economic pres-

sures) aimed at work preservation (id. §§ 2(17), 12(a)

(3) (B)) or at obtaining recognition for a majority-repre-

sentative as the exclusive representative (id. § 12(a) (3)

(C) (i}); and would have required, as a condition of any

strike, a government-conducted election in which an abso-

lute majority of the bargaining unit voted to strike (id.

$s 2(11) (B)(vi)). As to most of these practices, unions

which committed wrongs would have been subject to pri-

vate damage actions (see id. § 12(b)) and to injunctions,

notwithstanding the provisions of the Norris-LaGuardia

Act (see id. § 12(c)).*

The House Committee stated the philosophy animating

its bill as follows:

For the past 14 years, as a result of labor laws

ill-conceived and disastrously executed, the American

workingman has been deprived of his dignity as an

individual . . . [H]is mind, his soul, and his very

life have been subject to a tyranny more despotic

than one could think possible in a free country.

The employer’s plight has likewise not been happy.

He has witnessed the productive efficiency in his

plants sink to alarmingly low levels. He has been

required to employ or reinstate individuals who have

destroyed his property and assaulted other employees.

He has seen the loyalty of his supervisors under-

mined by the compulsory unionism imposed upon

them by the National Labor Relations Board. He

has been required by law to bargain over matters to

which it was economically impossible for him to ac-

cede, and when he refused to accede he has been ac-

cused of failing to bargain in good faith. He has

been compelled to bargain with the same union that

15 The text of H.R. 3020 as reported by the House Committee

and as approved by the House is reprinted in National Labor Rela-

tions Board, Legislative History of the Labor Management Rela-

tions Act of 1947, at 31-98, 158-225 (hereinafter “Leg. Hist. at

”

— )

bargains with his competitors and thus to reveal to

his competitors the secrets of his business. He has

had to stand helplessly by while employees desiring

to enter his plant to work have been obstructed by

v.olence, mass picketing, and general rowdyism. He

has had to stand mute while irresponsible detractors

slandered, abused, and vilified him.

* * *

This sordid story was unfolded before the com-

mittee in its hearings. Those hearings demonstrate

the need for action by Congress—and action now.

[H.R. Rep. No. 245, 80th Cong., Ist Sess. 4-5 (1947),

reprinted mn 1 Leg. Hist. at 295-96.

In this context, what is most significant about the

Hartley bill is that it did not include any analogue to

what is now § 8(b)(1)(B). That bill provided employers

absolute protection from being pressured into joining a

multi-employer bargaining unit by outlawing multi-em-

ployer bargaining, and the bill gave employers absolute

control over their supervisors by removing supervisors

from the definition of “employees” (see H.R. 3020, supra,

;2(3)). But having done that much, no one in the

House apparently deemed it necessary to further protect

employers in selecting their representatives.'®

3. While the House was developing the Hartley bill,

the Senate Committee on Labor and Public Welfare was

also at work. At the start of the Eightieth Congress,

Senator Ball, a member of that Committee, introduced

16 The House bill did include a section aimed at regulating the

internal affairs of unions in order to promote “democracy in unions”

and to give union members “greater control of the union’s affairs.”

H.R. Rep. No. 245, supra, at 7, 1 Leg. Hist. at 298. That section,

while “recogniz|ing| the right of the union to maintain discipline

in the ranks and to expel members who are disloyal to the union,”

id., contained some limitations on the grounds on which, union

discipline could be imposed. There is no suggestion in the legislative

history that these limitations were intended to protect employers

from “indirect coercion” resulting from union discipline of super-

visors who also are union members.

22

four bills** drafted by Gerard Reilly, whom the Labor

Committee later hired as its Special Counsel for that

purpose.'* Those bills became the subject of extensive

hearings in the Senate Committee and the source of much

of what was eventually enacted in the LMRA.

The Ball bills were, in many respects, similar to the

bill Representative Hartley developed. Of particular rele-

vance here, one of the Ball bills would have made it un-

lawful for a union to represent the employees of more

than one competing employer, or to act in concert with a

union representing employees of a competing employer;

such a prohibition, of course, would have spelled the end

of multi-employer bargaining. See S. 133, supra. An-

other Ball bill would have removed supervisors from the

protection of the NLRA. §S. 360, supra, §§ 2, 10. Senator

Ball also proposed a section prohibiting unions from re-

straining or coercing employees in the exercise of their

; 7 rights, see S. 360, supra, § 5; that proposal eventually

was adopted, in somewhat modified form, as § 8(b) (1)

(A). But none of the Ball bills contained any provision

analogous to what eventually was enacted as § 8(b) (1)

(B).*

Thus, unlike most other provisions of the LMRA, § 8

(b) (1) (B) did not have its genesis in either the Hartley

bill or in the Ball bills. Rather, that section can be traced

to two bills introduced towards the close of that Commit-

tee’s hearings by Senators Morse and Ives, two Republican

17S. 55, §. 105, S. 133,

5. 360. 80th Cong., Ist Sess. (1947)

1S Reilly, supra, n.13 at 289-290, 294 n.14.

'? In addition to the provisions noted in text, the Ball bills also

would have outlawed all forms of union security agreements, se:

5. 133, supra; modified the Norris-LaGuardia Act so as to permit

injunctions against various types of strikes or other concerted

economic activity, including unfair labor practice strikes, recogni-

tional strikes, and secondary boycotts, see S. 360, supra, § 10; S. 55,

supra, § 204; and would have provided an action for treble damages

with respect to secondary boycotts, S. 55, supra, § 204(d).

,

92

members of that Committee whose views on labor legisla-

tion were markedly more temperate than those of Repre-

sentative Hartley or Senator Ball. See S. 858, 80th Cong.,

Ist Sess.; S. 871, 80th Cong., lst Sess. (Sen. Ives) .*’ Those

bills were quite brief and provided for only the most

modest of changes in the Wagner Act; neither bill ad-

dressed most of the subjects that eventually were dealt

with in the LMRA. In particular, neither bill removed

supervisors from the definition of employee, and neither

bill in any way interfered with the ability of unions to

organize on an industry-wide basis, or to engage in multi-

employer or multi-plant bargaining. Instead each bill

contained a provision—from which § 8(b) (1) (B) even-

tually was derived—making it an unfair labor practice

for a union to coerce an employer in the selection of his

bargaining representative.

Following the close of its hearings, Senator Taft, the

Chairman of the Labor Committee, prepared a bill in

the form of a “tentative committee print” for use by the

Committee in its mark-up sessions. That bill incorpo-

“0 Senator Morse was one of 29 Senators who had voted against

the Case bill in 1946. 92 Cong. Rec. 5739. Senator Morse eventualiy

joined only two other Republicans in voting against the bill that

became the LMRA, see Reilly, supra, n.13 at 298, and he played a

leading role in seeking to prevent President Truman’s veto from

being overridden, see id. at 300; see also S. Bailey & H. Samuel,

supra n.13, at 438-40; R. Lee, Truman and Taft-Hartley at 101

(1966).

Senator Ives was elected to the Senate in 1946 with the support

of the American Federation of Labor, see New York Times, April

16, 1947, p. 22; while running for office he had opposed the Case

bill, Reilly, supra n.13, at 293, and had campaigned on a platform

opposing any “change in the law affecting industry and labor rela-

tions,” New York Times, Oct. 22, 1946, p. 22; Oct. 26, 1946, p. 18.

[ves was offered a position on the Labor Committee in part because

he represented a different wing of the party than Senators Taft

and Ball; Governor Dewey had urged Senator Ives not to accept

a} sition on the Labor Committee because Ives was “too far to the

left to meet the position the Republican party will assume.” New

York Times, April 30, 1947, p. 18.

24

rated a variant of Senator Ball’s proposal to prohibit

multi-employer bargaining, and also included a modified

version of the proposal of Senators Morse and Ives to

prohibit unions from coercing employers in selecting their

bargaining representatives. An analysis of the tentative

committee print that was distributed to the committee

members explained the purpose of this latter provision as

follows:

This would mean that labor organizations could no

longer strike against an individual employer in order

to force him to bargain through an employer’s as-

sociation. It would also bar strikes by a union to

enforce a demand that an employer fire a personnel

director or a foreman regarded as obnoxious. [Anal-

ysis of Tentative Committee Print of April 7, 1947,

80th Cong., lst Sess. at 4.]

By a vote of 7-6, the Labor Committee decided not to

include the Ball proposal with respect to multi-employer

bargaining in the Committee’s bill; 2! Senators Morse and

Ives led the opposition to inclusion of that proposal (as

well as to three other proposals that were drawn from

Senator Ball’s bills and were included in Senator Taft’s

“tentative committee print”).*? The Committee did agree

to include in its bill a variant of § 8(b) (1) (3B), derived

“1 See S. Rep. No. 105, Pt. 1, 80th Cong., 1st Sess. at 50, 51-52

(1947) (Supplemental views of Senators Taft, Ball, et al.).

22 See, Reilly, supra n.13, at 295; S. Bailey & H. Samuel, supra

n.13, at 427; H. Millis & E. Brown, From the Wagner Act to the

Taft-Hartley Act at 375 (1950).

The other three proposals from the Ball bills that were defeated

in committee were: (1) a proposal to make it an unfair labor prac-

tice for a union to interfere, restrain or coerce employees in the

exercise of the rights guaranteed in section 7; (2) a proposal to

regulate welfare funds; and (3) a proposal to authorize damage

and injunctive actions against secondary boycotts and jurisdictional

strikes. See S. Rep. No. 105, Pt. 1, supra, at 50-56 (supplemental

views of Senators Taft, Ball, et al.) The fate of those proposals on

the floor of the Senate is discussed infra at 24.

VAS

from the Morse and Ives bills. Following the explanation

of that section in the analysis of the tentative committee

print, the Committee’s Report explained the import of

that language as follows:

This proscribes unions and their agents from inter-

fering with, restraining, or coercing employers in the

selection of their representatives for the purposes of

collective bargaining or the settlement of grievances.

Thus, a union or its responsible agents could not,

without violating the law, coerce an employer into

joining or resigning from an employer association

which negotiates labor contracts on behalf of its

members; also this subsection would not permit a

union to dictate who shall represent an employer in

the settlement of « ployee grievances, or to compel

the removal of a personnel director or supervisor who

has been delegate the function of settiing grievances.

Rep. No. 105, Pt. 1, 80th Cong., Ist Sess. 21

(1947), 7 printed m1 Leg. Hist. at 427.)

Notwithstanding the fact that the Senate Committee

bill did not contain any of the most controversial feat

Ball (or Hartley) bills, three Democratic members

Labor Committee filed a lengthy and blistering dis-

sent from the Committee’s Report. See S. Rep. No. 105,

supra, Part 2, reprinted in 1 Leg. Hist. 463-504. These

dissenters objected to most provisions of the Committee’s

bill including, e.g., the prohibition on closed shops, see id.

at 8-10; the provision authorizing the NLRB to conduct

+L

aecertineation ele ns, ( a 11-12: ne provislon au-

1. a ; ate r ~~ } re. —_— .—

noriZing SuIlts Oo entorce coieciulve DargalniIng agvret

oS 26 .

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26

employer in the designation of his representatives, as pro-

vided by § 8(b) (1) (B).” S. Rep. No. 105, Pt. 2, supra,

at 41. This was the only union unfair labor practice con-

tained in the committee bill with which the minority

agreed.

1. The Senate debated the Labor Committee’s bill for

three weeks. In the course of those debates, Senator Taft

explained the approach his Committee had followed in

developing its bill:

We took each of the abuses which were testified to

in the evidence and tried to find a remedial provi-

sion which could finally become enacted into law.

When we got through, eleven members of the com-

mittee signed the report, including Senators who hold

different views from myself, such as the Senator

from Oregon [Sen. Morse]. {2 Leg. Hist. at 1520.

Against this general background, Senator Taft outlined

the intent of $ 8(b)(1)(B) by delineating the “abuses”

to which it was addressed. Acknowledging that the sec-

,’ Senator

Taft explained, as had the Committee Report, that under

> 8§$ib) (1)(B)

tion “is not pe rhaps of tremendous importance

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 pre-

vent their saying to the employer, “You have to fire

foreman Jones. We do not like Foreman Jones, and

therefore you have to fire him, or we will not go to

work.” This is the only section in the bill which has

any relation to nationwide 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 employer’s association as

your agent so that we can bargain nationally.” Un-

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

will not join in national bargaining. Here is my

representative, 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 pur-

poses. [2 /d. at 1012. |

Later in the debates, Senator Taft echoed this theme stat-

ing:

The union cannot say to an employer, “We will deal

with you only if you designate your employers’

association as the bargaining agent.”’ The union

cannot coerce an employer to join an employers’ as-

sociation. . . . That has a rather indirect effect on

nationwide bargaining. [2 /d. at 1241.]

And Senator Ellender. a Democratic member of the

Labor Committee added:

Other abuses exist, such as strikes over questions re-

lating to invasion of management prerogatives. It

often happens that management is forced to replace a

foreman because the union does not like him—be-

eause he is too strict. Cases of that nature are very

numerous. ... The bill outlaws such conduct.

* * *

The bill prevents a union from dictating to an em-

ployer on the question of bargaining with union rep-

resentatives through an employer association. The

bill in subsection 8(b) (1) (B) ... makes it an un-

fair labor practice for a union to attempt to coerce

an employer in the selection of a personnel director

or foreman, or other supervisory official. Senators

who heard me discuss the issue early in the afternoon

will recall that quite a few unions forced employers

to change fouremen. They have been taking it upon

themselves to say that management should not ap-

point any representative who is strict with the mem-

bership of the union. This amendment seeks to pre-

scribe a remedy in order to prevent such interfer-

ences. [2 Jd. at 1066, 1077. |

J

These are the only explanations in the Senate debates

of the reach of § 8(b) (1) (B); the section was not other-

wise discussed as it was acceptable to ail parties. Senator

28

Murray, the leader of the Democratic opposition stated,

“we find no disagreement with the provisions prohibiting

coercion of employers in their choice of collective bargain-

ing representatives.” 2 Leg. Hist. at 1454. Indeed, Mur-

ray included § 8(b)(1)(B) in the Democratic alternative

bill which he offered towards the close of the Senate de-

bates. 2 Leg. Hist. at 1439, 1443. Senator Ball described

that bill as “made up of all the completely innocuous pro-

visions of [the Committee’s] bill, and nothing else.” 2

Id. at 1499.

Although there were no further discussions of § 8(b)

(1) (B) in the Senate, additional insight into its meaning

can be gleaned from the debate that took place over the

addition of subsection ‘A) to § 8(b)(1). As reported,

s 8(b) (1) was not divided into subsections; it prohibited

only “interfere[nce], restrain[t], or coerclion]” of an

employer in the selection of his representative for the

purposes of collective bargaining or the adjustment of

grievances. On the floor of the Senate, Senator Ball pro-

posed to add a subsection to § 8(b)(1) to provide em-

ployees in the exercise of their § 7 rights the same pro-

tection being afforded by the proposed § 8(b) (1) to em-

ployers in the selection of their representatives. 2 Leg.

Hist. at 1018. That proposal, which had been defeated

in the Labor Committee by a vote of 7-6, see n. 22, supra,

generated lengthy debate.

Senator Ives led the initial opposition to the Ball

amendment. He expressed concern over “the tremendous

possibilities for abuse that [would] exist” if such a pro-

hibition were enacted, arguing that if adopted the Ball

amendment “inevitably will serve not alone to discourage

legitimate labor organizations, but may later, by interpre-

tation and effect, defeat legitimate attempts at labor or-

ganization.” 2 /d. at 1024-25. But Senator Ball and his

Supporters provided repeated reassurances that they un-

derstood the words “interfere, restrain or coerce’—the

words that defined the prohibition for both proposed sub-

29

sections of § 8(b) (1)—to address only “threats of vio-

lence or of reprisal and that sort of thing,” 2 id. at 1202

(Sen. Ball), and not to “interfere with the internal af-

fairs or organization of unions,” 2 id. at 1141 (Sen.

Ball). See also 2 Id. at 1200 (Sen. Ball) (“we are not

trying to interfere with the internal affairs of a union

which is already organized’). And to assure that his

amendment would not be overbroad in its reach, Senator

Ball accepted a modification proposed by Senator Ives to

delete the word “interfere” from § 8(b) (1) so that the

violation for either subsection would be limited to acts

of “restraint” or “coercion”. Senator Ball acknowledged

that “interfere” is “very vague,” 2 id. at 1139, and Sena-

tor Taft, in urging Senator Ball to accept the Ives pro-

posal, stated that the original language “is perhaps some-

what broad,” id. With this modification the Ball amend-

ment was endorsed by Senator Ives, and was overwhelm-

ingly approved by the Senate. See 2 Jd. at 1217 (adopt-

ing Ball amendment by vote of 60-28) .**

24 Senator Ives played an equally critica] role with respect to

several other amendments which had been rejected by the Labor

Committee and were offered by Senator Ball on the floor of the Sen-

ate. See n.22, supra.

The Ball proposal to limit multi-employer bargaining was de-

feated by one vote, 2 Leg. Hist. at 1302, with Senator Ives leading

the opposition, see 2 id. at 1246-50, 1253-54, 1271-84. (Although

Senator Taft supported that proposal, he joined in preventing the

vote from being reconsidered even though the vote of absentee

Senators could have altered the outcome; Senator Taft feared that

if this amendment were adopted the bi!l would not generate suffi-

cient support to overcome the anticipated veto. S. Bailey & H.

Samuel, supra n.13, at 431-32.)

Senator Ives also successfully opposed the Ball amendment ‘to

authorize injunctive and damage actions with respect to secondary

boycotts, see 2 Leg. Hist. at 1323-24, 1356-57, 1370, and then worked

with Senator Taft to develop an alternative amendment providing

only for damage actions, which amendment was overwhelmingly

approved by the Senate, see 2 id. 1356-57, 1370-71, 1400.

{ Continued |

30

As thus amended, the Senate Committee’s bill passed

the Senate by a vote of 68-24. 2 Id. at 1522.

5. The House and Senate appointed conferees to resolve

the differences between their respective bills; although

only a freshman, Senator Ives was appointed as a con-

feree (ahead of several more senior colleagues) “‘because

it was felt that his views would carry weight with the

newly-elected Republican Senators” whose support would

be critical to override the anticipated veto.* In confer-

ence, the House “receded on virtually all the important

provisions,” in an effort to secure passage of a _ veto-

proof bill;*° Representative Hartley acknowledged as

much in presenting the conference report to the House,

see 1 Leg. Hist. at 882, 883-884. The conference report

was approved by both Houses by wide majorities. 1 /d.

at 899-900 House vote of 320-79); 2 Id. at 1620-21

(Senate vote of 54-17).

As anticipated, President Truman vetoed the Taft-

Hartley bill. The House easily overrode that veto by a

vote of 331-83. 1 /d. at 922-23. In the Senate, however,

it was “generally known” that “two Democrats who had

voted for the conference report would shift out of loy-

24 | Continued |

Only one amendment of Senator Ball’s was adopted over Sena-

tor Ives’ opposition: the amendment regulating welfare funds. See

2 Id. 1302-03, 1314-15, 1323.

Senator Morse also opposed each of the Ball amendments and,

unlike Senator Ives, did not agree to the compromises that were

negotiated on two of those amendments. See 2 /d. at 1182-97, 1357-

64. The adoption of these compromises, plus the Ball amendment

pertaining to welfare funds (which Senator Morse also opposed,

2 id. at 1317-20) led Senator Morse to oppose fina! passage of

the bill, even though he had voted in favor of reporting the Com-

mittee’s bill.

25 Reilly, supra n.13, at 298.

26S. Bailey & H. Samuel, supra n.13, at 434. See also Reilly,

supra n.13, at 298-99; H. Millis & E. Brown, supra n.22, at 384-85.

$1

alty to the Administration” and that opponents of the

bill needed “to gain [only] three more votes.” *’ The

opponents conducted a brief filibuster in the hopes of

securing those votes; as part of the filibuster, Senator

Morse held the floor from 6:30 a.m. until late in the after-

noon of the second day of the debate.** No additional

Senators changed their positions, however, and the Taft-

Hartley bill was enacted into law.

6. One year after the LMRA was enacted, the Demo-

crats regained control of both the House and the Senate,

and an attempt was made to repeal that law. Although

nothing ultimately came of that effort, the record of that

effort provides yet additional insight into the contempo-

raneous understanding of § 8(b) (1) (B).

Within a few months after the Eighty-First Congress

convened, the Senate Labor Committee reported out a bill

to repeal the LMRA. See S. Rep. No. 99, Pt. 1, 8lst

Cong., lst Sess. (1949). Senator Taft, who was then the

ranking minority member of that Committee, opposed the

bill and in his minority report propounded a series of

amendments to the Committee’s bill which would have re-

enacted most of the LMRA; among the provisions he pro-

posed to reenact was § 8(b)(1)(B). He explained the

point of that section in precisely the same terms as he

had used when the section was enacted two years earlier:

The typical situation to which this provision would

apply is illustrated by the case of the Southern Coal

Producers and the United Mine Workers Union

The miners’ union refused to recognize the associa-

tion or its president . .. as the representative of the

operator members. [S. Rep. No. 99, supra, Pt. 2

at 25. |

Again, no other purpose was attributed to § 8(b) (1) (B).

27 Reilly, supra n.13, at 300.

“8S. Bailey & H. Samuel, supra n.13, at 439.

32

C. The Lessons

Against this background, we return to the question:

should § 8(b) ( . }(B) and ABC be understood to prohibit

all union conduct which tends to affect the willingness of

union members to serve as management’s representatives,

or should § 8(b) (1) (B) and ABC be read more narrowly

to prosecribe union conduct which interferes with an em-

ployer’s control over his representatives. For two rea-

sons, we submit, the materials just reviewed compel the

narrower reading.

First, the authoritative explanations of § 8(b) (1) (B)

in the legislative history—_from the first statement in the

analysis of the Senate Committee’s tentative print to

Senator Taft’s explanation in 1949 in the course of a con-

sideration of a bill to repeal the LMRA—clearly and

consistently define the purposes of that section in nar-

row terms and contain no hint of any congressional intent

to go so far as to prohibit unions from enforcing rules

iainst union members working as supervisors generally,

or as supervisors for non-union employers. Rather,

$8(b)(1)(B) was described time and again as a nar-

row provision addressed to two specific and identified

evils: union actions forcing employers into muliti-

employer bargaining units or forcing employers to hire

or fire a particular individual as a supervisor. No other

purpose was ever suggested for § &(b) (1) (B)

Second, the political context in which the section was

enacted makes clear that there was not some broader,

unspoken intent underlying the section. The fact that

the section originated with Senators Morse and Ives, and

not Senator Ball or Representative Hartley, is probative

of the limited reach intended for § 8(b)(1)(B). More-

over, the section was included in the Senate Labor Com-

mittee’s bill whose content was determined by the more

moderate members of the Committee, and it was that

Committee’s substitute for a more severe limitation on

multi-employer bargaining. Indeed, even Senator Murray

] u*

and the othe

ar 6 Ooppone

nts of the Committee bill endorsed

41.3 a *1 ‘ eo — } 4 -s

his provision, while Senator Taft described the section

as “not perhaps of tremendous importance,” and Senator

of the bill. And on t

was watered-down fu

acts of “interference”

referred to it as

one provisions

}

A

of the “innocuous”

he floor of the Senate the |

by deleting the prohibition on

(as distinguished from acts of “re-

roy ision

riner Dy

straint” or “coercion” Against this background, it is

simply inconceivable that $ 8(b)(1)(B) was understood

intended by

anyon

e in Congress to go beyond the lim-

ited Statement Of 1ts purpose.

? : : +] ical — :

We recognize, of course, that the legislative materials

_ ‘eviewed. and th anale: +] ™ < sale cai

just revie wet , ant Lit anaivslIs ol L Use Illa erla > oct v

forth above, not only compel rejection of the Board’s

argument in the instant case Dut also call into question

Oakland J

ultimate lesson to be

lailers as well. It

drawn from these materials. is that

the Board’s understanding of § 8(b) (1 B) for the first

two decades after that section was enacted—that the

section “prohibit

e]

~

on]

Aad

y direct union pressure designed

to com) an employer to replace its chosen representa-

tive,’ NLRB Br. at 10, and not the so-called “indirect

coercion” supposedly resulting from union discipline of

union members—is the correct understanding. And it

is noteworthy in

e

gard that the Board in Oakland

Mailers did not treat with a of the legislative ma-

terials.

rhe ct that the Board interpreted the statute shortly after

it was enacted, and hered to that interpretaion for two decades

tself probative. See, e.g., Norwegian Nitrogen Products |

United States, 288 U.S. 294, 315 (1933 the “contemporaneou

construction of a statute by the men charged with the responsibility

f st ng its machine nn n, of making the parts work effi

ciently and smoothly while they are yet untried and new” is cntitled

to “peculiar weight’ Federal Trade Commission Bunte Broth-

ers, Inc., 312 U.S. 349, 351-52 (1941 “the want of assertion of

power by those who presumably would be alert to exercise it i

significant in determining whet such power was actually con-

34

That conclusion is buttressed by the statutory text.

Section 8(b) (1)(B), in terms, makes it an unfair labor

practice for a union to “restrain or coerce... (B) an

employer in the selection of his representatives for the

purposes of collective bargaining or the adjustment of

grievances.” That language naturally suggests a pro-

hibition on direct pressure on employers with respect to

the employer’s choice of a representative; it strains the

statutory words to the breaking point to find a prohibi-

tion on union discipline of supervisor-members. Although

such discipline may affect a member’s willingness to serve

as a supervisor or an employer’s willingness to hire the

member as a supervisor, such union discipline still leaves

the employer with a free choice as to whom to hire as his

representative. And, it is that choice that § 8(b) (1) (B)

safeguards from union pressure or reprisals.

Notwithstanding the foregoing considerations, in ABC

the Court stated that it was “not prepared at this junc-

ture to override” the Board’s conclusion in Oakland Maii-

ers. 437 U.S. at 437. We do not urge the Court to revisit

that decision here. As we have seen, the theory the Board

propounds in the instart case represents yet a further

extension of Oakland Mailers, one not compeiled by the

decisions to this point. See pp. 13-16, supra. in this con-

text, the words of Chief Justice Burger, speaking for the

Court in United States v. 12 200-Ft. Reels of Films, 413

nor

U.S. 125, 127 (1973), are especially apt:

The seductive plausibility of single steps in a chain

of evolutionary development of a legal rule is often

not perceived until a third, fourth, or fifth “logical”

extension occurs. Each step, when taken, appeared a

reasonable step in relation to that which preceded it,

although the aggregate or end result is one that

would never have been seriously considered in the

first instance. This kind of gestative propensity calls

for the “line drawing” familiar in the judicial, as in

the legislative process: “thus far but not beyond.”

The legislative materials provide a wholly rational basis

for drawing such a line at Oakland Mailers and not allow-

35

ing the the doctrine to be extended to cover cases in which

a union seeks only to prevent its members from assuming

supervisory positions. The core concern underlying Oak-

land Mailers and underlying what we propose as the pre-

ferred interpretation of ABC—that supervisors should not

be subject to union control for the manner in which they

perform their supervisory responsibilities—is at least a

concern shared by the Congress that enacted the LMRA,

albeit not one that § 8(b)(1)(B) was designed to ad-

dress.*° But Oakland Mailers fully vindicates that con-

cern by proscribing union conduct that interferes with

an employer’s control over his representatives.

The extension of Oakland Mailers that the Board here

champions is not justified by the interest in protecting

employers from supervisors with divided loyalties. Rather,

the value underlying the Board’s decision in the instant

case is quite different: protecting employers from any

diminution in the size of the pool from which they hire

their supervisors, thereby assuring employers the ability

to hire as management representatives persons who are

union members.

There is not one iota of evidence in the statutory mate-

rials to suggest that Congress shared that value or that

Congress sought to preclude unions from inducing their

*” As the Court explained in FP&L, “it is clear that the conflict-

of-loyalties problem that the Board has sought to reach under

$ 8(b) (1) (B) was intended by Congress to be dealt with in a very

different manner.” 417 U.S. at 811. “Congress’ solution” was to

exclude supervisors from the coverage of the Act, so that the em-

ployer would be “at liberty to demand absolute loyalty from his

supervisory personnel by insisting, on pain of discharge, that they

neither participate in, nor retain membership in, a labor union.”

Id. at 812. “[I]t is quite apparent, given the statutory language

and the particular concerns that the legislative history shows were

what motivated Congress to enact §8(b)(1)(B), that it did not

intend to make that provision any part of the solution of the gen-

eralized problem of supervisor-member conflict of loyalties.” Jd

at 813 (emphasis in original)

36

members not to enter the pool of would-be-supervisors. To

]

legislative materials are replete with

the contrary, the

evidence of Congress’ reluctance to intrude into internal

union affairs in the manner the Board’s theory in this

case requires.

CONCLUSION

‘the foregoing reasons, the judgment of the court of

appeals should be affirmed.

»

vespectfully submitted,

LAURENCE J. COHEN

LARRY D. SILVER

1125 15th Street, N.W.

Washington, D.C. 20005

KATHRYN A. SURE

MARK S. RENNER

101 Park Center Plaza

San Jose, CA 95115

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202/637-5390)