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

No. 85-1924 :

JOSEPH F. SPANIOL, JR.

) ow emer. eum

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1986

NATIONAL LABOR RELATIONS BOARD.

Petitioner.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS.

LOCAL 340.

Re spondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

DAVID M. SILBERMAN

(Counsel of Record)

815 16th Street, N.W

Washington, D.C. 20006

(202) 637-5383

LSON EPes PRINTING CO Inc 789-O098€ WASHINGT

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TABLE OF CONTENTS

ARGUMENT

Introduction and Summary

Section 8(b)(1)(B) Prohibits Only That Union

Conduct Which Directly Pressures an Employer

With Respect to the Employers Choice of His Bar-

gaining or Grievance-Adjusting Representative

CONCLUSION

Page

26

—_———

EEE EEE eel

il

TABLE OF AUTHORITIES

CASES: Page

Ame rican Broadcasting Cos. v. Write rs Guild, 437

U.S. 411 (1978) 4, 21-24

Chicago Typographic Union No. 16 (Hammond

Publishers), 216 NLRB 903 (1975), enf’d, 539

F.2d 242 (D.C. Cir. 1976) 21-22

Florida Power & Light v. Electrical Workers, 417

U.S. 790 (1974) passim

IBEW and Local 134 (Illinois Bell), 192 NLRB 8&5

(1971) 6

IBEW Local 2150 (Wisconsin Electric Power Co.),

192 NLRB 77 (1971), enf’d, 486 F.2d 602 (7th

Cir.), vacated, 418 U.S. 902 6

IBEW System Council U-4 (Florida Power & Light

Co.), 193 NLRB 30 (1971) 6

New York Typographical Union No. 6 (Triangle

Publications), 216 NLRB 896 (1975) 21, 22

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175

(1967) 10

NLRB v. Boeing Co., 412 U.S. 67 10

NLRB v. City Disposal Systems, Inc., 465 U.S. 822

(1984) 25

NLRB v. General Motors, 373 U.S. 734 (1963) 10

NLRB v. Industrial Union of Marine & Shipbuild-

ing Workers, 391 U.S. 418 (1968) 1]

Packard Motor Car Co., 61 NLRB 4 (1945), aff'd,

330 U.S. 485 (1947) 13

Pattern Makers v. NLRB, —— U.S. , 53 L.W.

4928 (June 27, 1985) 10-11, 25-26

San Francsico-Oakland Mailers’ Union No. 18

(Northwest Publications, Inc.), 172 NLRB 2173

(1968) passim

Scofield v. NLRB, 394 U.S. 423 (1969) 10, 11

STATUTES:

National Labor Relations Act, as amended,

S$ 8(b) (1) (A}, 29 U.S.C. § 158 (b) (1) (A) 9-11, 20

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

lil

TABLE OF AUTHORITIES—Continued

Page

S 2(3), 29 U.S.C. § 152(3) passim

§ 14(a), 29 U.S.C. § 164(a) passin

MISCELLANEOUS:

H.R. 4908, 79th Cong. 2d Sess. (1946) 13

H.R. 5262, 79th Cong. 2d Sess. (1946) 13

H.R. 3020, 80th Cong. 1st Sess. (1947) 15

S. 55, 80th Cong. lst Sess. (1947) 16

S. 360, 80th Cong. Ist Sess. (1947) 16

S. 1126, 80th Cong. Ist Sess. (1947) 16

H.R. Rep. No. 1493, 79th Cong. 2d Sess. (1946) 13

H.R. Rep. No. 245, 80th Cong. Ist Sess. (1947) 15-15

H.R. Rep. No. 510, 80th Cong. Ist Sess. (1947) 18

S. Rep. 1177, 79th Cong. 2d Sess. (1946) 14

S. Rep. No. 105, 80th Cong. Ist Sess. (1947) 17

92 Cong. Rec. 13-15

U

Legislative History of the Labor Management Re

lations Act of 1947 15-18

IN THE

Suyprene Court of the Wuited States

OCTOBER TERM, 1986

No. 85-1924

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 Ninth Circuit

DRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

The American Federation of Labor and Congress of

Industrial Organizations (“AFL-CIO”), a federation of

91 national and international unions representing ap-

proximately 13,000,000 working men and women, files this

brief amicus curiae with the consent of the parties pur-

suant to Rule 36.2 of the Rules of this Court.

ARGUMENT

Introduction and Summary

Under § 8(b)(1)(B) of the National Labor Rela-

tions Act, as amended, 29 U.S.C., § 158(b) (1) (B)

(“NLRA” or “the Act’), it is an unfair labor practice

for a union to “restrain or coerce . .. an employer

in the selection of his representatives for the purposes

of collective bargaining or the adjustment of grievances.”’

In this case the National Labor Relations Board

2

(“NLRB” or “the Board’) held that Local 340, In-

ternational Brotherhood of Electrical Workers (“the

Union’) violated this prohibition by fining two union

members for working in a grievance-adjusting capacity

for employers with whom the Union does not have a

collective bargaining relationship.

The Board’s holding necessarily rests on two premises:

first that § 8(b)(1)(B) proseribes not only direct union

economic pressure on an employer to influence the em-

ployer’s choice of his representatives but also union con-

duct which may indirectly affect an employer’s choice of

representatives; and second, that this prohibition extends

to union actions whose sole purpose and effect is to dis-

courage union members from accepting positions as man-

agement representatives. The brief of the respondent

Union assumes the validity of the Board’s first premise

and demonstrates that, even on that assumption, the sec-

ond premise is unsound and led the Board to an errone-

ous decision in this case. The AFL-CIO submits this

brief amicus curiae because, although we agree with the

Union’s argument, in our view the Board’s fundamental

error lies in its first premise.

The “indirect coercion” doctrine was first announced

by the Board two decades after § 8(b)(1)(B) was en-

acted. in San Francisco-Oakland Mailers’ Union No. 18

(Northwest Publications, Ine.), 172 NLRB 2173 (1968)

The theory of that decision—and the doctrine to which

it has given rise—is that: a purpose of § 8(b) (1) (B)

is to protect an employer’s control over its representa-

tives and that union enforcement of union rules that

place obligations on superviser-members that conflict with

the employer's roles therefore violate § 8(b) (1) (B), Pp.

5-7 infra.

In Florida Power & Light v. Electrical Workers, 417

U.S. 790 (1974) (“FP&L”’), this Court squarely re-

jected that understanding of § 8(b)(1)(B). The Court

there reasoned that although the Board’s interest in as-

f

suring employers the undivided loyalty of their super-

3

visors “is a very real one, the problem is one that Con-

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

a completely different legislative route.” /d. at 807. The

Court explained that Congress’ solution to that problem

was to enact §§2(3) and 14(a) of the NLRA which

remove supervisors from the definition of “employee” and

thereby enable an employer “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 organization.” Pp. 7-9 infra.

The reasoning of /P&L is supported by both the statu-

tory text and its legislative history.

The words of § 8(b) (1) (B), which make it an unfair

labor practice for a union “to restrain or coerce

(B) an employer in the selection of his representatives

.’ do not naturally suggest a statutory protection of

an employer’s right to control the representatives the em-

ployer has selected. Indeed, in light of the employer’s

freedom to require its representatives not to associate

with a union, the only respect in which union discipline

of its members can even affect an employer’s “selection

of his representatives” by requiring the employer

to decide whether he wishes to allow an individual who

highly values union membership to serve as his repre-

sentative. But to conclude that because the employ} er 1S

put to that choice—free from any union pressure as to

which decision he makes—the employer is subject to

“restrain|t] or coerelion| .. . in the selection of his

representatives” strains the statutory language beyond

the breaking point. Pp. 9-12 infra.

The legislative history compels the same conclusion.

[t is clear from the evolution of §§ 2(3) and 14(a) that

those sections were intended by Congress as a complete

solution to the problem of a supervisor-member’s conflict

of loyalties between his employer and his union. And the

legislative history of § 8(b) (1) (B) makes plain that that

section was not intended to provide employers with addi-

d

tional protection in this regard; to the contrary, § 8(b)

(1)(B) consistently was described as a narrow provision

addressed to direct union pressure being placed on the

employer, especially in the context of union attempts to

force an employer to bargain through a multiemployer

association.

Indeed, to treat § 8(b)(1)(B) as protecting an em-

ployer’s control over his representatives, as Oakland Mail-

ers does, is to ignore: the origins of that section and the

political context in which it was enacted; the congres-

sional judgment that underlies §§ 2(3) and 14(a), viz.,

that divided loyalties are inevitable when union members

hold supervisory posts and that the proper solution is to

free employers to require supervisors to surrender any

union membership; and the congressional policy mani-

fested elsewhere in the Act of avoiding interference in

internal union affairs. Pp. 13-21 infra.

We recognize, of course, that in American Broadcasting

Cos. v. Writers Guild, 487 U.S. 411, 487 (1978)

(“ABC”), this Court, in a 5-4 decision, approved the

application of § 8(b) (1) (B) to union discipline of super-

visor-members, stating that it was “not prepared at this

juncture to override’ Oakland Mailers. The Court did

so, in large measure, based on its earlier decision in

FP&L where the Court had found that the discipline

involved in that case did not violate § 8(b)(1)(B) but

had “assumed without deciding” the validity of other

aspects of the Oakland Mailers doctrine.

As Justice Stewart, the author of FP&L demonstrated

in his dissent in ABC, FP&L’s reasoning cannot be

squared with that of Oakland Mailers. Yet the Court in

ABC did not begin from FP&L’s logic nor did the ABC

Court pause to ascertain whether the Board’s view com-

ports with the language and legislative history of § 8(b)

(1)(B). We therefore respectfully urge the Court to

take this occasion to follow the sound premise of FP&L

and to reject Oakland Mailers’ unsound reading of § 8

(b) (1) (B). Pp. 21-24 infra.

|

Section 8(b)(1)(B) Prohibits Only That Union Conduct

Which Directly Prescures an Employer With Respect

to the Employer’s Choice of His Bargaining or Griev-

ance-Adjusting Representatives.

A. As the NLRB acknowledges in its brief, for the

first two decades after it was enacted, § 8(b) (1) (B) was

understood by the Board “to prohibit only direct union

pressure designed to compel an employer to replace its

chosen representative.” NLRB Br. at 10 n.3. In San

Francisco-Oakiand Mailers, supra, 172 NLRB 2173, how-

ever, the Board held that a union violates § 8(b) (1)

(B) by disciplining a union member who also serves

as a representative of the employer for the manner in

which that individual performs his duties as a griev-

ance-adjuster. The Board reasoned tha

+

by attempting

to “compel the employer’s foremen to take prounion po-

sitions in interpreting the collective bargaining agree-

ment,” the union was “interfering with the |employer’s}

control over its representatives” and that as a result

“the Employer would have to replace its foremen or

face de facto nonrepresentation by them”; the Board

iewed this as “indirect{]” restraint or coercion of the

employer in the selection of his representative. 172

NLRB at 2173-74.

Since Oakland Maile rs. the Board has continued to

interpret §8(b)(1)(B) to protect an employer’s “con-

trol over its representatives” and to proscribe any union

actions that “interfere with” such control. That under-

standing of §$ 8(b)(1)(B) lies at the heart of the “in-

direct coercion” doctrine that the Board here champions.

But as we proceed to show, the Board’s interpretation of

8(b) (1) (B) was rejected in principle by this Court in

Florida Power & Light, supra, 417 U.S. 790, and is

inconsistent with the statutory text and its legislative

history.

—— a - +

6

B. In FP&L the Court reviewed two NLRB decisions

in which unions were found to have violated § 8(b) (1)

(B) by disciplining supervisor-members for performing

rank-and-file work during the course of a strike against

the supervisors’ employers, IBEW System Council U-4

(Florida Power & Light Co.), 193 NLRB 30 (1971).

IBEW and Local 134 (Illinois Bell), 192 NLRB &5

(1971) ; both of those cases were decided by the Board on

the basis of its holding in the lead case of IBEW Local

2150 (Wisconsin Electric Power Co.), 192 NLRB 77

(1971), enf’d, 486 F.2d 602 (7th Cir. 1973), vacated, 418

U.S. 902. In Wisconsin Electric, the Board had reasoned

that, as interpreted in Oakland Mailers, § 8(b) (1) (B)

establishes a “ ‘general prohibition’” on any union dis-

cipline which “ ‘deprives the employer of the undivided

loyalty of the supervisor to which it is entitled,’” 192

NLRB at 78, and that disciplining a supervisor-member

for working during a strike violates this prohibition:

The Union’s fining of the supervisors who were

acting in the Employer’s interest in performing the

struck work severely ‘eopardized the relationship be-

tween the Employer and its supervisors. Thus, the

fines, if found to be !awful, would now permit the

Union to drive a wedge between a supervisor and

the Employer, thus interfering with the performance

of the duties the Employer had a right to expect the

supervisor to perform. The Employer could no

longer count on the complete and undivided loyalty

of those it had selected to act as its collective bar-

gaining agents or to act for it in adjusting griev-

ances. [/d.]

And in Florida Power the Board summarized its reason-

ing as follows:

The Board in Wisconsin Electric Power found that

the fines there struck at the loyalty an employer

should be able to expect from its representatives for

e adjustment ef grievances and therefore re

strained and coerced employers in their selection of

|

’

t

such representative. We reach the same conclusion

here. [193 NLRB at 31]

The Florida Power and Illinois Bell cases were con-

solidated for decision by the United States Court of

Appeals for the District of Columbia Circuit which de-

nied enforcement of the Board’s orders. 487 F.2d 1143.

This Court issued a writ of certiorari and affirmed

that court’s decision.

In doing so, the Court did not dispute the factual assump-

tions underlying the Board’s decisions: that, as explicated

by the Board in its brief to this Court, the “ ‘likely ef-

fect’”’ of permitting unions to discipline supervisor-mem-

bers for reporting to work “ ‘is to make [the supervisor]

bservient to the union’s wishes when he performs [su-

pervisory| functions in the future’” or at least “ ‘to de

prive the employer of the full allegiance of, and control

over a representative he has selected for grievance adjust-

Su

ment or collective bargaining purposes.’” 417 U.S. at

807, quoting NLRB Br. in No. 73-795, p. 34. Apparently

referring to Oakland Mailers. the Court stated that “‘it

concern that is reflected in... recent

f the Board holding that [§ 8(b) (1) (B)]

ncompass any situation in which

re f » deprive the employer o!

his supervisory employees.” 417

S. at 806. But although acknowledging that “[t]he con-

he argument is a very real one.” the

ON ‘ol Ss OK that Conare SS ad-

) i J

B). hut through ‘7 CON) -

ite.” Id. at 807 (emphasis

A ( rt, Justice Stewa ©xX-

, ~

, 1947 amended the defini-

e in §2(3), 29 U.S.C. § 152(3), to

| ] ~ R11 the « 4] ; ‘ altis _ }

r py he r ] | |

8

exclude those denominated supervisors under § 2(11),

thereby excluding them from the coverage of the

Act. Further, Congress enacted § 14(a), 29 U.S.C.

s 164(a), explicitly providing:

“Nothing herein shall prohibit any individual

employed as a supervisor from becoming or re-

maining a member of a labor organization, but

no employer subject to this subchapter shall be

compelled to deem individuals defined herein as

supervisors as employees for the purpose of any

law, either national or local, relating to collec-

tive bargaining.”

Thus, while supervisors are permitted to become

union members, Congress sought to assure the em-

ployer of the loyalty of his supervisors by reserving

in him the right to refuse to hire union members

as supervisors, the right to discharge such super-

visors because of their involvement in union activi-

ties or union membership, and the right to refuse to

engage in collective bargaining with them. [/d. at

807-08; citations omitted]

Justice Stewart went on to review the legislative his-

tory of §2(3) and § 14(a) in order to demonstrate that

“Congress’ dominant purpose in [enacting those provi-

sions} was to redress a perceived imbalance in labor-

management relationships that was found to arise from

putting supervisors in the position of serving two mas-

ters with opposed interests.” Jd. at 811. The Court also

examined the legislative history of §$8(b)(1)(B) and

found that “|t]he specific concern of Congress was to

prevent unions from trying to force employers into or

out of multiemployer bargaining units.” Jd. at 803.

Based on this review of those materials Justice Stewart

concluded:

Congress’ solution [to the problem of conflicting

loyalties] was essentially one of providing the em-

ployer with an option. On the one hand, he is at

liberty to demand absolute loyalty from his super-

9

visory personnel by insisting, on pain of discharge,

that they neither participate in, nor retain member-

ship in, a labor organization. Alternatively, an em-

ployer who wishes to do so, can permit his super-

visors to join or retain their membership in labor

unions, resolving such conflicts as arise through the

traditional procedures of collective bargaining. But

it is quite apparent, given the statutory language

and the particular concerns that the legislative his-

tory shows what motivated Congress to enact

$s 8(b) (1) (B), that it did not intend to make that

provision any part of the solution to the general

problem of supervisor-member conflict of loyalties.

(Id. at 812-13; emphasis in original] ?

C. The conclusion the Court reached in FP&L—that

s 8(b) (1) (B) is not “any part of the solution to the

general problem of supervisor-member conflict of loyal-

ties’”’-——is confirmed by the statutory language and its

legislative history. And those materials compel the fur-

ther conclusion—to which the analysis of FP&L clearly

points—that § 8(b) (1) (B) prohibits only direct and not

“indirect” coercion of employers.

l. We start, of course, with the statutory text. Section

8(b) (1) provides:

It shall be an unfair labor practice for a labor or-

ganization or its agents—(1) to restrain or coerce

2? Although FP&L squarely rejected the reasoning of Oakland

Mailers, the Court in FP&L refrained from deciding whether the

actual holding of Oakland Mailers was erroneous: it was enough fo!

the FP&L Court that, unlike Oakland Mailers, the supervisors

F P&L were being disciplined for performing rank-and-file work and

not for the manner in which they had performed supervisory dutie

See 417 U.S. at 804-05 (“assum[ing] without deciding that the

Board’s Oakland Mailers decision fell within the outer limits of the

statute” and distinguishing that decision from FP&L) : see also id

at 798 (suggesting that Oakland Mailers stretches § 8(b)(1)(B

beyond “the metes and bounds of the statutory language’): ABC,

i387 U.S. at 442 n.5 (Stewart, J., dissenting) (“adherlfing) to the

view expressed by the Court in FP&L that [Oakland Mailers) is at

best within the ‘outer limits’ of § 8(b) (1) (B

10

(A) employees in the exercise of the rights guaran-

teed in section 7... or (B) and employer in the

selection of his representatives for the purposes of

collective bargaining or the adjustment of griev-

ances.

The most natural reading of these words is that subsec-

tion (A) addresses union conduct directed at employees

and subsection (B) addresses union conduct directed at

employers. Plainly, when a union wages a strike or

exerts other economic pressure against an employer to

secure the appointment or the removal of a particular

employer representative, the union is “restrain{ing] or

coerc{ing] . . . an employer in the selection of his repre-

sentatives.”” Such union conduct “clearly fall{[s] within

the metes and bounds of the statutory language.” FP&L,

417 U.S. at 798.

The words of § 8(b) (1) (B) do not, however, naturally

suggest a statutory protection of an employer’s right to

control his representative nor do these words naturally

suggest a limitation on a union’s power to discipline a

union member whom an employer voluntarily chooses

as his representative. While such discipline arguably

can be seen to restrain or coerce the union member,* it

* Given that union membership under the NLRA has been con-

strued to be purely voluntary—no one can be required to join a

union, cf. NLRB v. General Motors, 373 U.S. 734 (1963). and one

who joins is free to leave the union at any time, see Pattern Makers

v. NLRB, U.S. -, 53 L.W. 4928 (June 27, 1985)— it is far

from clear that requiring one who chooses to join and remain a

member of a union to fulfill the obligations of membership that the

individual voluntarily assumes can be considered to “restrain or

coerce” the union member. In NLRB v. Allis-Chalmers Mfq. Co

888 U.S. 175 (1967), Scofield v. NLRB, 394 U.S. 423 (1969 , and

NLRB v. Boeing Co., 412 U.S. 67 (1972). the Court concluded that

union fines of union members who had refrained from participating

in concerted union activities did not restrain or coerce those mem-

bers (and hence did not violate § 8(b) (1) (A notwithstanding the

fact that in those cases the members were fined for exercising § 7

1]

is difficult, if not impossible, to fit the union’s conduct

into the “metes and bounds” of § 8(b)(1)(B) which

protects an employer from restraint or coercion in se-

lecting his representative. Whatever the impact of union

discipline on union members, the employer retains an

unfettered choice—free from any union pressure—to

decide whether he wishes a union member who is subject

to the demands the union makes on union members to

serve as the employer’s representative.

Finding in § 8(b)(1)(B) a prohibition on union dis-

cipline of supervisor-members is even more difficult when

the other provisions of the LMRA on which the Court

relied in FP&L—specifically §§2(3) and 14(a)—are

considered. The first of those sections provides that the

term “employee” as used in the Act “shall not include . .

any individual employed as a supervisor”; the second

states that “no employer subject to this Act shall be

compelled to deem individuals defined herein as super-

visors as employees for the purpose of any law, either

rights). But in NLRB v. Industrial Union of Marine & S] ipbuilding

Workers, 391 U.S. 418 (1968), the Court ruled that

uled a union violated

> 8(b) (1) (A) by fining a union member for filing an unfair labor

practice charge against the union.

Marine & Shipbuilding Workers was decided long before this

Court in Pattern Makers held that union members have the right to

resign at any time—and 2° a time when the g: verning assumption

seems to have been to the .untrary. See ABC, 437 U.S. at 486 (as-

suming validity of rule restricting membership resignation Be-

cause that is so—and because the decision in Marine & S/ pbuilding

Workers has the anomalous result of requiring the NLRB and th

Courts to “focus on the legitimacy of the union interest vindicated

by [a union] rule” in order to decide whether the enforcement

that rule restrains or coerces union members. Scofield VLRAB,

supra, 394 U.S. at 431—we believe that in an appropriate case the

vitality f Marine & SS} ipbuild nq Workers shi ild be rev nsidere

in light of Pattern Makers. The issue is not raised in the instant

case, however, as the question here is whether the union’s dis

cipline restrained or coerced the employer in the selecti

representatives

12

national or local, relating to collective bargaining.” As

a consequence of these provisions, an employer “is at

liberty to . . . insist[], on pain of discharge that [its

supervisors] neither participate in, nor retain member-

ship in a labor organization.” FP&L, 417 U.S. at 812.

And given that freedom, it is simply not true, as the

Board claimed in Oakland Mailers, that if unions were

permitted to discipline supervisor-members, “/r]ealist-

ically, the Employer would have to replace its foremen

or face de facto nonrepresentation by them.” P. 5

supra. Under §§2(3) and 14(a), a third option,‘ not

taken into account by the Board, is open to the employer,

one that allows the employer to choose whomever he

wants to be his representative without fear of divided

loyalty: the employer is left free by the law to insist

that his supervisors not associate with a union.

In light of the foregoing, the only respect in which

union discipline can be said to atfect an employer’s “se-

lection of his representatives” is that, with respect to an

individual who values union membership more than a

position as an employer represéntative that requires renun-

ciation of union membership, the employer is put to the

choice of deciding whether he wishes to allow such an

individual to serve as a supervisor and to retain union

membership. But to conclude that because the employer

is put to that choice—free from any union pressure on

the employer as to which decision he makes—the employer

is subject to “restrain[t] or coerc{ion] ... in the selec-

tion of his representatives” strains the statutory lan-

guage beyond the breaking point. And to read § 8(b) 1}

(‘B) as saving the employer from that choice—as assur-

ing the employer that if he hires as his representative a

union member who maintains his union membership, that

individual will not owe conflictigg obligations to the

union—is to give § 8(b)(1)(B) a meaning not remotely

suggested by its words.

13

2. The legislative history of the Labor Management

Relations Act of 1947 (“LMRA”’), like the language of

$ 8(b) (1) (B), cuts deeply against the Board’s theory.

The legislative materials pertaining to the develop-

ment of § 8(b) (1) (B) are set forth at length in the brief

of the respondent Union in this case; we shall not burden

the Court by reviewing these materials a second time.

But before discussing the significance of those materials

to Oakland Mailers’ theory of § 8(b) (1)(B), we first

pause to review the evolution of §§$ 2(3) and 14(a) of

the LMRA because, as this Court recognized in FP&L,

those sections, and their legislative history, throw a cross

light on the meaning of § 8(b) (1) (B).

(a) The legislative history of §§$2(3) and 14(a

begins in 1946, when the NLRB, in ‘Packard Motor Car

Co., 61 NLRB 4 (1945), aff'd 330 U.S. 485 (1947), over-

ruled several prior decisions and held that supervisors

were employees within the meaning of the Wagner Act

and thus had the right to form a union and bargain col-

lectively with their employer. Almost immediately efforts

began in Congress to overrule that decision.

In the House, the first serious attempt to overrule

Packard Motor came in the form of the Case bill, H.R.

ae 79th Cong 2d Sess (1946), which was offered,

Cong. Rec. 836-38, and adopted, id. at 1027, 1067-70, on

the floor of the House as a substitute for a labor law

bill which the House Labor Committee had reported, H.R.

4908, 79th Cong., 2d Sess. (1946).* Section 12 of the Case

bill provided that “no supervisory employee shall have

the status of an employee for the purpose of sect'ons 7, 8

and 9 of the National Labor Relations Act.’’ Representa-

tive Case stated the theory of this section of the bill as

follows: “No man can serve two masters... . That is all

* The Labor Committee’s bill was one President Truman had re

quested to provide for a fact-finding process and cooling-off period

in labor disputes vitally affecting the public interest. See H.R

Rep. No. 1493, 79th Cong. 2d Sess. (1946

14

that is involved here.” 92 Cong. Rec. 5390. Significantly,

the Case bill did not include an analogue to § 8(b) (1)

(B).

After the Case bill passed the House, the Senate Labor

Committee took up the bill. That Committee reported out

a bill which did not include any provision addressed to

the supervisor issue. See S. Rep. 1177, 79th Cong. 2d

Sess. (1946). But in a dissenting statement, Senator

Ball, writing for himself, Senator Taft and Senator

Smith, urged adoption of an amendment to deny super-

visors any “rights as an ‘employee’”’ under the NLRA;

Senator Ball stated that this proposal was designed to

“meet this issue in a practical and realistic manner,”

and explained the basis for his proposal as follows:

Foremen now occupy an anomalous position under

the National Labor Relations Act. They are both

management and labor or sometimes one and some-

times the other, without regard to the conflict in-

herent in such a situation.

* . * *

The NLRB has found regularly that there can be

no true collective bargaining if management inter-

feres with the designation of the bargaining agent

of the workers. It is equally true that there can be

no effective collective bargaining if the agent of the

workers interferes with the personnel which, as a

part of management, carries out the orders of man-

agement and exercises control over production, dis-

cipline, and the administration of the labor contract.

The capture of the element of management, and the

compromising or impairment of the undivided loyalty

of any element of management, by a labor organiza-

tion is an interference with the function of manage-

ment. [S. Rep. 1177, supra, Pt. 2, at 19.]

Like the Case bill, Senator Ball’s proposed amendment

did not include any provision comparable to § 8(b)

(1) (B).

15

When the Labor Committee’s bill was debated on the

floor of the Senate, Senator Ellender offered as an amend-

ment a variant of the Ball proposal to remove super-

visors from the NLRA; that amendment, too, did not

contain an analogue to § 8(b)(1)(B). 92 Cong. Rec.

0698. Senator Ellender explained that his amendment

was “an essential one” which would rectify “the anoma-

lous situation of having a Federal statute which was

enacted primarily for the benefit of the workers being

construed so as to permit unions which already repre-

sent the workers to become also the legal representatives

of the very men whom management has hired to super-

vise the rank and file.” Jd. The Ellender amendment

was agreed to by the Senate by a vote of 43-30, id. at

5705,° and with this and other amendments, the Case

bill was approved by the Senate, id. at 5739, in a form

to which the House acceded, id. at 5946. President Tru-

man vetoed the bill, however, and the House failed to

override that veto. Jd. at 6674-78.

The following year, early in the session of the Eight-

ieth Congress, the House Labor Committee reported out

the Hartley bill; like the Case bill and Ball and Ellender

amendments, the Hartley bill excluded “supervisors”

from the NLRA’s definition of “employee” and did not

include any provision similar to § 8(b)(1)(B). H.R.

3020, § 2(13), 80th Cong. Ist Sess. 1947). reprinted in

1 Legislative History of the Labor Managment Relations

Act of 1947 at 34 (hereinafter “Leg. Hist.’’).° The

House Committee stated that the status of supervisors

Significantly, in light f the fact that he later authored

8 (} ] B), Senator Morse voted against the Ellender amend-

ha ‘ 4 | >

H supervisor” which

16

was “one of the most important and critical problems”

in the Wagner Act:

|E]mployers as well as workers, are entitled to loyal

representatives in the plants, but when the foremen

unionize, even in a union that claims to be “inde-

pendent” of the union of the rank-and-file, they are

subject to influence and control by the rank-and-file.

+ o * *

Supervisors are management people... ... No one

forced them to become supervisors. They abandoned

the “collective security” of the rank-and-file volun-

tarily because they believed the opportunities thus

opened to them to be more valuable to them than

such “security.” ...

* 7 . .

The bill does not forbid anyone to organize. It

does not forbid any employer to recognize a union

of foremen. Employers who, in the past, have bar-

gained collectively with supervisors may continue to

do so. What the bill does is to say what the law

always has said until the Labor Board, in the exer-

cise of what it modestly calls its “expertness”,

changed the law: That no one, whether employer

or employee, need have as his agent one who is obli-

gated to those on the other side, or one whom, for

any reason, he does not trust. [H.R. Rep. No. 245,

80th Cong. lst Sess. at 16-17 (1947).]

The House adopted the Hartley bill without significant

amendment. See 1 Leg. Hist. at 158-226.

In the Senate, the Labor Committee, chaired by Sen-

ator Taft, held extensive hearings on a series of bills

introduced by Senator Ball, two of which contained iden-

tical provisions to remove supervisors from the protec-

tion of the NLRA, see S. 55, 80th Cong., 1st Sess. § 202

(1947); S. 360, 80th Cong., Ist Sess. §2 (1947). and

neither of which contained an analogue to § 8(b) (1) (B).

The Labor Committee reported out a bill containing a

variant of the Ball proposal (with a narrower definition

of the term “supervisor”), see S. 1126, 80th Cong., Ist

sess. §§ 2(3), 2(13) (1947), 1 Leg. Hist. at 102-104, and

also containing a variant of what is now § 8(b) (1) (B);

as explained in the Union’s brief in this case, the latter

section was taken from bills introduced by Senators

Morse and Ives.

The Senate Labor Committee justified its proposcd

$3 2(3) & 2(13) as follows:

It is natural to expect that unless this Congress

takes action, management will be deprived of the

undivided loyalty of its foremen. There is an in-

herent tendency to subordinate their interests when-

ever they conflict with those of the rank and file.

In recommending the adoption of this amendment,

the committee is trying to make clear what Con-

gress attempted to demonstrate last year when it

adopted the Case bill. . . . It should be noted that

all that the bill does is to leave the foremen in the

same position in which they were in until the Labor

3oard reversed the position it had originally taken

.. . In other words, the bill does not prevent anyone

from organizing nor does it prohibit any employer

from recognizing a union of foremen. It merely re-

lieves employers who are subject to the national act

free from any compulsion by the National Board or

any local agency to accord to the front line of man-

agement the anomalous status of employees. [S. Rep.

No. 105, Pt. 1, 80th Cong., Ist Sess. at 5 (1947

And Senator Taft, in explaining those provisions of th

bill to the Senate, put it this way:

The bill provides that foremen shall not be

sidered employees under the National Labor Rel:

tions Act. They may form unions if they please, or

join unions, but they do not have the protection of

the National Labor Relations Act. They are |

to discharge for union activity, and they are get

erally restored to the basis which they enjoyed |}

fore the passage of the Wagner Act. ,

e * «

18

It is felt very strongly by management that fore-

men are part of management; that it is impossible

to manage a plant unless the foremen are wholly

loyal to the management ... The Committee felt

that foremen either had to be a part of management

and not have any rights under the Wagner Act,_or

be treated entirely as employees, and it was felt that

the latter course would result in the complete dis-

ruption of discipline and productivity in the factories

of the United States. [2 Leg. Hist. at 1008-09]

See also 2 Id. at 1064 (Sen. Ellender), 1946 (Sen. Ball).

The Taft bill was approved by the Senate without

change to its provisions regarding the “employee” status

of supervisors, see 1 Leg. Hist. 230, 282, 264; the House,

in conference accepted the Senate’s definition of “su-

pervisor,” see H.R. Rep. No. 510, 80th Cong., Ist Sess. at

359 (1947); and that version ultimately was enacted into

law as part of the LMRA.

(b) TI ‘an be no doubt, in light of the foregoing,

that, as the Court stated in FP&L, §§ 2(3) and 14(a)

were enacted as “the solution to the general problem of

supervisor-member conflict of loyalties.” 417 U.S. at

813. Those sections give employers the right “‘to demand

absolute loyalty from his supervisory personnel by insist-

ing, on pain of discharge, that they neither participate

in nor retain membership in a Labor organization.” Id.

There is no hint in the legislative materials that any

of the sponsors of those sections viewed the privilege

created thereby as inadequate to protect employers fully

from supervisors with divided loyalties; indeed the fae

that neither the Case bill, the Ball and Ellender amend

ments, the Hartley bill, nor the Ball bills contained any

provision similar to § 8(b) (1) (B) demonstrates that the

sponsors of $§2(3) and 14(a) viewed those sections

as sufficient in and of themselves to “meet th/e] issue”

(p. 14 supra) and to protect employers from the prob-

iem of disioval supervisors.

19

Against this background, the question posed by the

interpretation of §8(b)(1)‘(B) announced in Oakland

Mailers is simply this: did Congress, in enacting that

section, intend to give employers additional protection

with respect to the conflicting loyalty problem. Several

considerations compel a negative answer to that question.

First, and most important, the legislative history of

> 8(b) (1) (B), reviewed in detail in the Union’s brief in

this case, contains no evidence of any such intent. To

the contrary, that section consistently was described as

a narrow provision addressed to direct union pressure

being placed on the employer, especially in the context

of union attempts to force an employer to bargain

through a multiemplover association.

Nor is it plausible to believe in dight of the origins of

+1} +5 YY : .1 > + . ? ] ¥ 4 . . ‘

ne section (in bills introduced by Senators Morse and

ives); the identity of its supporters (including the Dem-

ocratic minority in the Senate); and the political context

in which it was enacted (first by a Senate Labor Com-

mittee in which Senators Morse and Ives held the balance

of power, and second by a full Senate in which the sup-

port of moderate Senators like Senator Ives was critical

n order to obtain the votes necessary to override

presidential veto) that there was any broader, unarticu-

‘ated intent underlying § 8(b)(1)(B). Indeed, to so con-

clude it would be necessary to hypothesize that Senators

Morse and Ives, supported by Senator Murray and his

allies, sought to create for employers a

tion than Representatives Case or Hartley or Senators

ilender and Ball deemed necessary, and that this broader

pretection was considered so obvious and noncontroversia]

is not to merit even a mention during the legislative con-

- _

S collapses of its

A

sideration of the bill. Such a hvpothesi

. " : lL. 4

Wn welgn °

tt | {) Vié ~*~ ) ] | a> aqcgc ress J rine SSL¢

, ra . |

( lil¢ no Tes ~ t ? (ongress proact T¢

7 , ,

~ l¢ I iLS ead I 0) | nvrTress SOiU QO? {) ‘ Cil-

20

vided loyalty problem was (in contemporary parlance)

one of deregulation: Congress excluded supervisors from

the NLRA’s definition of “employee,” and expressly

preempted any state law granting similar rights to su-

pervisors, so that employers would have a self-help rem-

edy available to deal with supervisors whose loyalty was

divided. Congress did so because it believed that super-

visors who belonged to unions were “inherent{ly]” in a

position of conflict. P. 13 supra. Yet Oakland Mailers

purports to resolve what Congress understood to be this

inevitable conflict—and for which Congress provided a

self-help remedy-—by a classic regulatory means: under

that decision the Board claims the power to invalidate any

union conduct which, in the Board’s view, interferes with

an employer’s contro] over his representatives.

The ultimate upshot of this regulation could not be

more anomalous. Whereas Congress intended supervisors

to be non-persons in the eyes of the NLRA—to “restore”

the law as it was “before the passage of the Wagner Act,”

p. 17 supra, the Board has granted supervisors a preferred

status: supervisors alone may receive all of the benefits

of union membership without being held accountable for

breaching the duties of such membership.

Third, and finally, the Board’s approach to § 8(b)

(1)(B) ignores other values embedded in the LRMA,

aside from the goal of protecting employers from super-

visors with conflicting loyalties. In particular, the

Board’s interpretation ignores the determination of Con-

gress—and especially of Senators such as Senator Ives,

whose support was critical to overriding President Tru-

man’s veto—to avoid interfering in internal union af-

fairs. That determination is most clearly evident in the

Senate’s debate over § 8(b) (1) (A), which debate is re-

viewed in the Union’s brief in this case. And Oakland

Mailers trenches on the congressional policy evidenced in

that debate by allowing the Board to preclude unions

from enforcing valid union rules, reflecting legitimate

21

trade union considerations, whenever, in the Board’s view,

such enforcement would threaten an employer’s control

over his representatives.

(c) In sum, the statutory language and its history

prove that the Court correctly concluded in FP&L that

§ 8(b)(1)(B) is not and was not intended to be “any

part of the solution to the general problem of supervisor-

member conflict of loyalties.” P. 9 supra. That being so,

the Board in Oakland Mailers erred in extending § 8(b)

(1) (B) to reach “indirect” coercion of employers, as the

decision in that case rests on the mistaken theory that

$ 8(b) (1) (B) is a “general prohibition” on union conduct

which “deprives the employer of the undivided loyalty of

the supervisor.” P. 5 supra.

D. Against this background we turn to this Court’s

decision in American Broadcasting Co. v. Writers Guild,

supra, 437 U.S. 411, which, we acknowledge, accepts Oak-

land Mailers’ understanding of § 8(b) (1) (B).

(1) The question in ABC was whether § 8(b) (1) (B)

prohibits a union from disciplining a supervisor-member

who, during the course of a strike, performs supervisory

work. In two cases decided shortly before it decided

ABC, the Board had answered that question in the af-

firmative, concluding that such discipline was imper-

missible because of its “adverse carry-over effect” on the

supervisors’ future performance of their § 8(b) (1) (B)

functions. Chicago Typographic Union No. 16 (Ham-

mond Publishers), 216 NLRB 903, 905 (1975), enf’d, 539

F.2d 242 (D.C. Cir. 1976); see New York Typographical

Union No. 6 (Triangle Publications), 216 NLRB 896

(1975). Overturning the decision of its Administrative

Law Judge in Hammond Publishers who had understood

FP&L to teach that when such adverse effects result from

a “conflict of interests for supervisors” they are not the

concern of § 8(b) (1) (B), 216 NLRB at 915 (ALJ opin-

ion), the Board reasoned as follows:

The Supreme Court stated that an employer may

not permit a supervisor to become a union member

22

and yet continue to be able to demand “absolute

lovalty” from that supervisor. We interpret this to

mean that an employer who permits his supervisors

to become union members may no longer demand the

loyalty of these supervisors if they cross a picket line

and, in effect, substitute their services for those of

rank-and-file employees. In this regard, however, we

do not believe that the Supreme Court’s decision is so

broad that it means that an employer surrenders his

right to require the loyalty of these same supervisors

when they cross a picket line and thereafter perform

substantial supervisory functions... [Jd. at 905].

In its decision in ABC the Court agreed with the

Board’s conclusion that union discipline of supervisor-

members for performing supervisory duties during the

course of a strike deprives employers of a § 8(b) (1) (B)

right to “require the loyalty” of such supervisors. The

Court reasoned, in essence, that in light of the likely ef-

fect of the discipline on the supervisor-members, “[f]or

an employer in these circumstances to insure having sat-

isfactory collective-bargaining and grievance-adjustment

services would require a change in his representative.”

437 U.S. at 435. And the Court concluded that this im-

pact sufficed to establish a violation of § 8(b) (1) (B):

As the Board has construed the Act from Oakland

Mailers to Triangle [Publications|, Hammond [Pub-

lishers| and the cases now before us, such a likely

impact on the employer constitutes sufficient restraint

and coercion in connection with the selection of col-

lective-bargaining and grievance-adjustment repre-

sentatives to violate § 8(b)(1)(B). In FP&L the

Court declined the invitation to overrule Oakland

Mailers, and we do so again. [/d., at 435-36. ]

In reaching this conclusion, the Court rejected the

union’s argument that the employer could avoid the

dilemma the Court posited—and thereby avoid any “im-

permissible coerc[ion]’”—by following the course empha-

sized in FP&L: “requir[ing] the [supervisor-member] to

23

leave the union and thus free himself from further threats

of union discipline.” /d. at 426. Significantly, the Court

did not fault the logic of the union’s position. Instead

the Court stated that

if the argument were to be accepted, indirect pres-

sure on the employer by sanctioning supervisor-

members for the manner in which they perform their

grievance-adjusting function (as in Oakland Mail-

ers) would never be a violation because the super-

visor could, at the employer’s request, escape from

union threats and sanctions. The Board’s construc-

tion of the Act is to the contrary, however, and, as

we have said, we are not prepared at this juncture

to override it. [/d. at 437]

Justice Stewart, the author of FP&L, vigorously dis-

sented from the majority’s decision in ABC. Unlike the

majority, who viewed FP&L as supporting—indeed al-

most compelling the decision in ABC—Justice Stewart

was of the opposite view. He reasoned that the Court

“clearly held in FP&L [that] an employer’s remedy if

he does not want to share the loyalty of his supervisors

with a union is to insist that his supervisory personnel

not belong to a union,” ABC, 437 U.S. at 441 (Stewart,

J., dissenting), and that FP&L

flatly rejected the argument that union discipline

aimed at enforcing uniform rules violated § 8(b)

(1)(B) simply because it might have the ancillary

effect of “depriv{ing] the employer of the full al-

legiance of, and control over, a representative he

has selected for grievance adjustment or collective

bargaining purposes.” [ABC, 437 U.S. at 439-40

(Stewart, J., dissenting) ; emphasis in original]

(2) As Justice Stewart’s ABC dissent demonstrates,

ABC’s major premise conflicts with FP&L’s reasoning.

For notwithstanding the fact that the supervisors did

rank-and-file work during the strikes in FP&L and super-

visory work during the strike in ABC, the likely effect

of the union discipline was indistinguishable in the two

24

cases. And the principal lesson of FP&L is that, in light

of the employer’s right under § 2(3) to require his rep-

resentatives to refrain from joining a union, the effect

of union discipline on supervisors whom an employer al-

lows to retain their union membership is not a basis

for finding a violation of § 8(b) (1) (B).

The Court in ABC was, of course, correct in recogniz-

ing that the logic of this lesson extends not only to cases

in which supervisor-members are disciplined for strike-

breaking but to any case involving union discipline of

its members. But the ABC Court’s belief that FP&L had

rejected that conclusion finds no support in the Court’s

opinion in FP&L: while it is true, as the Court in ABC

stated, that FP&L had “declined the invitation to over-

rule Oakland Mailers,” ABC, 437 U.S. at 436, it is equally

true that FP&L declined the invitation to endorse Oak-

land Mailers. See FP&L, 417 U.S. at 804-05 (“We may

assume without deciding that the Board’s Oakland Mail-

ers decision fell within the outer limits of the statute”) ;

see also n.2 supra. Thus FP&L left open the continuing

vitality of Oakland Mailers. And while ABC answered

that question, it did so without confronting the logic of

FP&L or of the 1947 Congress, and it did so without pro-

viding a basis in principle for sustaining the Board’s doc-

trine. We therefore respectfully urge the Court to follow

the sound logic of FP&L.

E. One final point needs to be made. The Oakland

Mailers doctrine is not only contrary to the language and

legislative history of § 8(b)(1)(B), but also produces

results at war with the policies of the Act as a whole.

The decision in ABC provides a clear illustration.

As Justice Stewart observed in his dissenting opinion

in that case, the end result of the Court’s decision in

ABC is to tip the “balance of power” between labor and

management “measurably in favor of the employer at

the most delicate point of direct confrontation, by com-

pletely preventing the union from enlisting the aid of

25

its supervisor-members in a strike effort.” 437 U.S. at

442. (Stewart, J., dissenting). Stated more simply, ABC

“prevents a union with supervisory members from effect-

ively calling and enforcing a strike.” Jd. at 440-41

(Stewart, J., dissenting).

Nothing in the legislative history remotely suggests

that §8(b)(1)(B) was intended to have this effect;

indeed, given the origins of that section and the political

context in which it was enacted, it is most implausible

to attribute such an intent to Congress. To so read

§ 8(b)(1)(B) it again is necessary to assume that Sen-

ators Morse and Ives (joined by Senators Murray and

his allies) created a protection for employers that neither

Representative Hartley nor Senator Ball had deemed

necessary, and that this added protection was so readily

agreeable that to all so concerned it went wholly un-

noticed during the legislative debates.

Moreover, as this Court has repeatedly stated, the

NLRA seeks “generally to equalize the bargaining power

of the employee with that of his employer by allowing

employees to band together in confronting an employer

regarding the terms and conditions of their employment.”

NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 835

(1984). And as Justice Blackmun has explained:

Because the employees’ power protected in the

NLRA is the power to act collectively, it has long

been settled that the collective has a right to pro-

mulgate rules binding on its members, so long as

the employee’s decision to become a member is a

voluntary one and the rules are democratically

adopted . . . Unless internal rules can be enforced,

the union’s status as bargaining representative will

be eroded, and the rights of the members to act col-

lectively will be jeopardized. “Union activity, by its

very nature, is group activity, and is grounded on

the notion that strength can be garnered from unity,

solidarity and mutual commitment. This concept is

of particular force during a strike, where the in-

26

dividual members of the union draw strength from

the commitments of fellow members, and where the

activities carried out by the union rest fundamen-

tally on the mutual reliance that inherences in the

‘pact.’”” [Pattern Makers v. NLRB, supra, 53 L.W.

at 4934 (dissenting opinion) .]

In sum, because it protects the broader policies of the

NLRA and vindicates the specific legislative judgments

embodied in §8(b)(1)(B) and $§2(3) and 14(a),

FP&L—rather than Oakland Mailers—states the proper

understanding of the reach of § 8(b) (1) (B).

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

DAVID M. SILBERMAN

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5383