# Respondents Brief — National Labor Relations Board v. International Brotherhood of Electrical Workers, Local 340 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0123%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1987 - **Citation:** 481 U.S. 573 ## Text [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 . ] e) ~ L3-] ) i T st? ( ! } 1¢ ) (y ) j-2 | ? } ‘ _ ? Si) ‘ - ~ } ‘ 4 7 v4 4 ‘7 a oI-4U S1gT 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0123%3A07. Public record. Not legal advice.