Amicus Curiae Brief — Florida Power & Light Co. v. Electrical Workers

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oe See

INTERNATIONAL BrorHerHoop or Eecraica

| Wosxens, AFTL-O10, er at.,

NaronaL Lapor Re.arions Boarn, Petitioner

On Writs of Certiorari 10 the United States Coart of Appeals

for the District of Colamble Clout =

INDEX

Page

L The Interest of the Amicus Curiae ........ os _

IL. Summary of Argument ............++-e-eee- 5

II]. Argument ........- eee cece cere ee eee eee eeees 9

A. Union Disciplinary Action Designed To

Induce Pro-Union Positions on the Part of

Supervisory Personnel Is Violative of

Section 8(b)(1)(B) .......-.eeeeeceeeoes 9

1. Section 8(b)(1)(B) bars union discipline

against supervisors who, by performing

work’ during a strike, are engaged as

representatives of the employer for pur-

poses of collective bargaining .........., 9

2. Section 8(b)(1)(B) bars union discipline

against supervisors who are acting in the

interest of their employer ............. 14

B. This Court’s Rationale in Allis-Chalmers

Does Not Support the Union Actions In-

EO rere mre 18

ey re ree? Pear er 21

CITATIONS

CASES:

Dallas Mailers Union, Local 143. v. N.L.R.B., 445

io G. Bos | ane 10

Local 261, Lithographers & Photoengravers Union,

AFL-CIO (Manharat-Alexander, Inc.), 195 NLRB

408 (1972) ...... oh sk can Maks 4b 0 ease ehh eee es 4

Local 2150, IBEW (Wisconsin Electric Power Co.),

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

ER Arne rer rs LY Cee 8, 10, 15, 17

.

Paina shes Oviatt Pe

Vibe wth

(Rn es

Pb REE ith Sh Ba EAM AN Mt Fe Oe

Cpt st elo Csi

OE ee a oe

uk bie aha eon teat

dae tina 6m

j

li Index Continued

Page

Milwaukee Printing Pressmen €& Assistants Union

No. 7, IPP€&AU (North Shore Publishing Co.),

192 NLRB 914 (1971)

N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388

U.S. 175 (1967)

N.L.R.B. v. Insurance Agents International Union,

AFL-CIO, 361 U.S. 477 (1960)

‘3 O48 6:8 4 6 4 oS So 8 64-68

N.L.R.B. v. New Mexico District Council of Car-

ponbors; GOE Fie S116 (INTE) cok vic vicce nas ccs

N.L.R.B. v. San Francisco Typographical Union No

6,12

21, 1TU, AFL-CIO (California Newspapers, Inc.),

F.2d , 83 LRRM 2314 (CA 9, 1973)

eee ree

N.L.R.B. v. Toledo Locals Nos. 15-P and 272, LPIU,

AFL-CIO (Toledo Blade Co.), 437 F.2d 55 (CA

RE os ono os is ek 4, 14, 16

Radio Officers’ Union v. N.L.R.B., 347 U.S. 17 (1954)... 18

San Francisco-Oakland Mailers’ Union No. 18, ITU,

Rie SER MT CRM os ok dha wi evs i 5, 10

Scofield v. N.L.R.B., 394 U.S. 423 (1969) ........... 20

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474

CS ph os a ok oo ee 18

STATUTES:

National Labor Relations Act, as amended (61 Stat.

136, 73 Stat. 519, 29 U.S.C. 151, et seq.) :

WI Te in oS hick hk kee 19, 20

GUO BIODEA(A) . cess ccciveniens 8, 9, 18, 20

Booties S(O) (1)(B) ..3 ss... 2, 4, 5, 6, 7, 8, 9, 10,

. LBBB LS

BOO TES) 6 inc bins via dueecass 19, 20

CONGRESSIONAL MATERIAL:

93 Cong. Rec. 3952; II Legisl. Hist. 1947, p. 1008-1009

(Senator Taft)

ee ek he ee ee ee ee ee ee ee ee Se

Zé

IN THE

Supreme Court of the United States

OctToBER TERM, 1973

Nos. 73-556, 73-795

Fiorwa Power & Licut Company, Petitioner

Vv.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL

Workers, Locau 641, ET AL., Respondents

NatIonAL LaBor RELATIONS Boarb, Petitioner

Vv.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL

Workers, AFL-CIO, ET AL., Respondents

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR THE GRAPHIC ARTS UNION EM-

PLOYERS OF AMERICA. A DIVISION OF THE

PRINTING INDUSTRIES OF AMERICA, INC..

AS AMICUS CURIAE

This brief on behalf of the Graphic Arts Union

Employers of America, a division of Printing Indus-

tries of America, Inc., as amicus curiae, is filed pur-

suant to written consent of the parties under Rule

ae

ED SEISSOSSSSSS se

= te OM soe RD io! SNM

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4

i

4

+

2

42(2) of the Court. It is in support of the position of —

the National Labor Relations Board (herein called |

the Board) that Section 8(b)(1)(B) of the National

Labor Relations Act, as amended (herein called the

Act), was violated by the disciplinary actions imposed

by the unions involved here against foremen and other

supervisors who performed work during a strike, and

urges reversal of the decision of the court below which

denied enforcement of the Board’s orders.

I. THE INTEREST OF THE AMICUS CURIAE

The Graphic Arts Union Employers of America

(GAUEA), a division of Printing Industries of |

America, Inc., is a national association representing

approximately 3,500 printing companies throughout

the country. Its membership is comprised of

unionized companies in the commercial printing in-

dustry, which employ almost 250,000 unionized work-

ers. Although there are some large printing corpora-

tions which employ substantial numbers of unionized _

employees, the industry is characterized by a vast num- ©

ber of small and medium sized companies whose em-

ployment ranges from only 3 or 4 employees to 25-50

employees. Over 80 percent of the firms in the in-

dustry employ 25 employees or fewer.

Almost all of the companies which are members of |

GAUEA are affiliated with local trade associations -|

which are subordinate bodies of Printing Industries of

America, Ine. Collective bargaining in metropolitan

areas is generally conducted on a multi-employer basis

through the local association or its union employers

division. There are also many collective bargaining

agreements negotiated by individual firms which may

be located outside of a metropolitan area served by a

' ,

Be tee te ee

local association or which may be within such an area

but as a matter of preference desire to negotiate on

their own.

Each of the companies which are members of

GAUEA negotiates with one or more of the labor

unions traditionally associated with the printing in-

dustry. These include locals or affiliates of such

unions as the International Typographical Union, In-

ternational Printing Pressmen and Assistants Union,

Graphic Arts International Union (which as a result

of a merger combines the Lithographers and Photo-

engravers International Union and International

Brotherhood of Bookbinders), and others. Since each

of these unions has traditionally been associated with

a particular printing craft, it is not at all uncommon

for even a small plant to bargain with as many as

three or four different unions. si

The direct and immediate interest of the amicus

herein lies in the fact that it is common in the industry

for collective bargaining agreements to require

foremen or other supervisors to be union members,

though the union may not bargain on their behalf.

Even in the absence of such contractual requirements,

foremen or other supervisors who have been promoted

from bargaining unit status will frequently maintain

their union membership. Particularly in recent

years, the printing unions have been extremely militant

in invoking internal fines or expulsion procedures

against foremen and other supervisors who by their

interpretations of a labor agreement, their assign-

ments of work, or their own performance of work (in-

cluding work during a strike), have acted in their

employer’s interest in a manner adverse to the union’s

position.

“Se

4

Indeed, a substantial number of the cases in recent

years in which unions have been held to have violated

Section 8(b)(1)(B) have involved firms in the com-

mercial] printing industry or newspapers which, though

not part of the commercial printing industry, are

subject to labor contracts with the same unions. Sey-

eral of the cases before the Board and the appellate

courts, Which have presented the very issue now before

this Court of a union’s right to fine or expel a super-

visor for performing work during a strike, have in-

volved printing unions and commercial printers or

newspepers, ¢.g., N.L.R.B. v. Toledo Locals Nos. 15-P

and 272, LPIU, AFL-CIO (Toledo Blade Co.), 431

F.2d 55 (CA 6, 1971); N.L.R.B. v. San Francisco

Typographical Union No. 21, ITU, AFL-CIO (Cali-

fornia Newspapers, Inc.), F.2d——, 83 LRRM

2314 (CA 9, 1973) ; Milwaukee Printing Pressmen &

Assistunts Union No. 7,1 PP & AU (North Shore Pub-

lishing Co.), 192 NLRB 914 (1971) ; Local 261, Lithog-

raphers and Photoengravers Union, AFL-CIO (Man-

hardt-Alexander, Inc.), 195 NLRB 408 (1972).

GAUEA is seriously concerned over the rule pro-

nounced by the court below which would permit

unions to exercise control over work performed by

management representatives during a strike through

the imposition of internal union discipline. The deci-

sion of that court, if permitted to stand; would seri-

ously compromise the loyalty expected by employers

of their supervisory personnel. Moreover, by- effec-

tively depriving the employer of his opportunity to

counteract a strike by maintaining production through

the use of supervisory personnel, that court’s interpre-

tation of the statute would substantially increase the

bargaining strength of unions by sacrificing tradi-

tional rights of the employer. The decision of the

court below, in the view of GAUEA, is unsound as a

matter of statutory interpretation and detrimental as a

matter of national labor policy.

IL SUMMARY OF ARGUMENT

Section 8(b)(1)(B) makes it unlawful for a union

to restrain or coerce ‘‘an employer in the selection of

his representatives for the purpose of collective bar-

gaining or the adjustment of grievancés.’’ It has been

uniformly accepted by the Labor Board and the courts

that that section not only reaches union restraint or

coercion designed to force the employer to change such

representatives, but also bars such conduct where

designed to cause the employer’s representative to

adopt an attitude more amenable to the union’s wishes.

In cases where a supervisor has retained his union

membership, either because he is required to do so

by the terms of a collective bargaining agreement or

for reasons of personal preference, unions have under-

taken such restraint or coercion through the device of

imposing fines upon the offending supervisor or have

expelled him. The vice in such a procedure, as the

Board has properly concluded, is that such actions are

designed to change the supervisors from ‘‘persons

representing the viewpoint of management to persons

responsive or subservient to [the union’s] will.’’ San

Francisco-Oakland Mailers’ Union No. 18, ITU, 172

NLRB 2173 (1968).

The court below does not take issue with the basic

proposition that union restraint or coercion designed

to change the attitudes of employer representatives

involved in collective bargaining or grievance adjust-

ment constitutes a violation of Section 8(b) (1) (B), or

6

that. union-imposed fines or expulsion can constityt:

such restraint or coercion. Rather, it has adopted the

premise that the fines and expulsions involved here.

against supervisors who performed what the cour

characterized as ‘‘rank-and-file’’ work during a strike:

are not barred by Section 8(b)(1)(B) because the--

supervisors were not engaged at that time as employer

‘representatives for the purpose of collective bargain.

ing or the adjustment of grievances.’’

In our view the court below reached an erroneous

result because it both misconstrued the nature of the

work of the supervisors and the purposes for which

it was performed, and failed to grasp the coercive

impact of the union’s discipline upon the supervisors

in the performance of their duties on behalf of the

employer in the future. At bottom, the court took an

improperly restrictive view of the employer interests

protected by Section 8(b)(1)(B).

Presumably if the court had believed that the per-

formance of work by supervisors during a strike which

would ordinarily have been performed by rank-and-

file employees was undertaken for ‘‘the purposes of

collective bargaining,’’ it would have agreed with the

Board that the statute had been violated. ~ What it

failed to recognize was that just as a strike is “part

and parcel of the process of collective bargaining,”

N.L.R.B, v. Insurance Agents’ International Union,

AFL-CIO, 361 U.S. 477, 495 (1960), so are employer |

efforts to diminish the impact of the strike by maintain-

ing production and thereby improving its bargain-

ing position.

The particular tasks that the supervisor happens to

perform during a strike are irrelevant, for the con-

ats AP aD tb int Pe,

7

cept of ‘‘pank-and-file’’? work has meaning only with

respect to the division of labor when both supervisory

and non-supervisory personnel are working. The

salient point is that the supervisor, as a member of the

management team upon which managemeut is entitled

to rely, is called upon to perform whatever work is

expected of him by the employer during a strike with

a purpose of enhancing the employer’s position in bar-

gaining negotiations by dramatizing the minimal

impact of a strike upon the employer’s business. In

a very real sense, the supervisor who works during a

strike—particularly one who helps maintain produe-

tion operations—is the counterpart of the employer

representative at the bargaining table who underscores

the employer’s resistance to a union demand by as-

serting that even a strike will not cause the employer

to change his position. The employer representative

at the bargaining table has orally communicated the

employer’s position to the union; the supervisor

working during the strike has translated talk into

action.

But even if the court below were correct in its view

that the work of a supervisor during a strike does not

make him the employer’s representative for the

purposes of collective bargaining, union discipline

against such supervisors nonetheless constitutes illegal

restraint or coercion in violation. of Section 8(b) (1)

(B). The Board has correctly recognized that the

purpose of that section of the Act is to prevent the

union from driving a wedge between the supervisor

and his employer which would interfere with. the

supervisor’s effective performance of his duties on

behalf of the employer, for the fear of such disciplin-

ary action would tend to inhibit supervisors from

vigorously asserting themselves in their employer’s

feraeaBON Een es Se SAIS So SARTRE Pao ,

8

interest. Thus the Board has properly taken the posi.

tion that ‘‘when the underlying dispute is between

the employer and the union rather than between the

union and the supervisor, then the union is precluded

in taking disciplinary action by Section 8(b)(1)(B),” |

Local 2150, IBEW (Wisconsin Electric Power Co.),

192 NLRB 77, 78 (1971), enf’d, 486 F.2d 602 (CA 7,

1973). The Board’s rationale is a sound one, in keep.

ing with the purposes of Section 8(b)(1)(B),.and

mandates the illegality of the union actions here.

Although the court below professed to find support

for its view in this Court’s Allis-Chalmers decision;

that decision is wholly inapplicable tothe case at bar, |

for the subsection of the Act involved in that proceed-

ing was designed to safeguard interests which are

wholly different from those protected by the subsec-

tion involved here.

The Allis-Chalmers decision, which upheld the right

of a union to fine or expel emplovee-members who

worked during a strike, involved the construction of

Section 8(b) (1) (A) of the Act. That section makes it

unlawful for a union to restrain or coerce ‘‘employees

in the exercise of rights guaranteed in Section 7,” and

thus by its own terms is made inapplicable to super-

visors. The rationale underlying the decision in that

case was expressed in this Court’s statement, 388 U.S.

at 181, that ‘‘The economic strike against the employer

is the ultimate weapon in labor’s arsenal for achieving

agreement upon its terms, and ‘the power to fine or

expel strikebreakers is essential if the union is to be

an effective bargaining agent.’ ”’

IN D.R.B. vy. Allis-Chalmers Manufacturing Co., 388 U.S. 175

(1967).

te aE AIREY BIS OF we BEDE OE US Ls Ra

9

The role of the supervisor in the statutory scheme,

even one who holds union membership, is scarcely to

enhance the union’s power as ‘‘an effective bargain-

ing agent.”’ Indeed, particularly insofar as a strike

reflects the polarization of union and management posi-

tions, the supervisor’s role as a representative of man-

agement is to reflect management’s opposition to

union demands. Accordingly, inasmuch as Section 8

(b)(1)(A) reflects a statutory policy which would

permit a degree of restraint or coercion by a union

over its membership for the purpose of bargaining

more effectively, it can have no bearing upon a com-

peting section of the statute designed to draw the line

between a union’s effective representation of employees

and a union’s control over representatives of the

employer.

III. ARGUMENT

A. UNION DISCIPLINARY ACTION DESIGNED TO INDUCE

PRO-UNION POSITIONS ON THE PART OF SUPERVISORY

PERSONNEL IS VIOLATIVE OF SECTION 8(b)(1)(B)

1. Section 8(b)(1)(B) Bars Unicn Discipline Against Super-

visors Who, by Performing Work During a Strike, Are

Engaged as Representatives of the Employer for Purposes

of Collective Bargaining

Section 8(b)(1)(B) makes it unlawful for a union

to restrain or coerce ‘‘an employer in the selection of

’ his representatives for the purposes of collective bar-

gaining or the adjustment of grievances.’’ This sec-

tion of the Act. has been uniformly and properly con-

strued by the Board and the courts to prevent union

disciplinary efforts designed not only to force the

removal and replacement of a supervisor whom the

union finds offensive; but also bars union efforts to

dictate the manner in which the supervisor performs

10

his duties on behalf of the employer. This rationale

was articulated by the Board in San Francisco-Qak-

land Mailers’ Union No. 18, ITU, 172 NLRB 2173

(1968) :

**TUnion disciplinary actions] were designed to

change the [employer’s] representatives from

persons representing the viewpoint of manage-

ment to ial pesponsive or subservient to [the /,

union’s] will .

That Respondent may have sought the substitu- |

tion of attitudes rather than persons .. . cannot |

alter the ultimate fact that pressure was exerted),

here for the purpose of interfering with the Charg-/

ing Party’s control over its representatives,

Realistically, the Employer would have to em)

place its foremen or face de facto nonrepresen

tion by them.”’

As the Court of Appeals for the Seventh Circuit has

recognized, N.L.R.B. v. Local 2150, IBEW (Wisconsin

Electric Power Company), 486 F.2d 602, 607 (CA 7,

1973), ‘‘We agree that an employer's right to select

those representatives whom he chooses would be worth-

less if the Union could accomplish the functional

equivalent of restraining or coercing him in that selec-

tion by applying pressure upon those whom the em-

ployer has already selected so as to compromise their

loyalty.’”’ That proposition has been approved by

the court below not only in the case at bar, but prior

eases as well, Dallas Mailers Union, Local 143 vy.

N.L.R.B., 445 F.2d 730 (1971), Meat Cutters Union

Local 81, AMC&4hBW, AFL-CIO v. N.L.R.B., 458 F.2d

794 (1972).

Consistent with that rationale, unlawful restraint

pr coercion violative of Section 8(b)(1)(B) has been

11

found where the union has imposed disciplinary sanc-

tions through fines or expulsion against supervisors

for actions within the scope of their supervisory or

managerial responsibilities. For the most part, these

eases in recent years have involved union efforts to

fine or expel supervisors whose interpretations of the

collective bargaining agreement, or assignments of

work, or performance of work that the union deemed

reserved to bargaining, unit personnel, were at odds

with the union’s view. But not all. The court, below

has recognized, for example, that Section &(b) (1) (B)

bars union discipline against supervisors not only for

their role in grievance adjustment or collective bar-

gaining, but also for performance of other duties as a ~

management representative. See Meat Cutters

Union Local 81, AMCaA: BW, AFL-CIO v. N.L.R.B.,

supra, where it enforced a Board order against a union

which disciplined a supervisor for his managerial

decision to implement a new Company meat procure-

ment policy. The court below likewise noted its ap-

proval of a decision by the Court of Appeals for the

Tenth Cireuit, N.L.R.B. v. New Merico District

Council of Carpenters, 454 F.2d 1116 (1972), barring

union discipline against a supervisor who exhorted

employees to vote against a union during an organizing

drive, in performance of -his collective bargaining

function.

In the case at bar, however, the court below has

taken an unduly restrictive view of the statutory ref-

erence in Section 8(b)(1)(B) to ‘‘the purposes of

collective bargaining’? and hence has concluded

erroneously that that section of the Act fails to reach

union discipline against supervisors who perform

work for their employer during a strike. Its decision

Ver ttn

wenn

Se ap

Se ee eo te) ae a

12

rests primarily on the erroneous premise that the rok |

of a supervisor who performs work during a strike

is ‘“‘totally unrelated’’ to the collective bargaining

process. To the contrary, if a strike called by a unio, |

is “‘part and parcel of the process of collective bar.

gaining,’ as this Court has recognized,? then dis.

cipline imposed by a union against supervisors who

counter the damaging effects of a strike by performing

work at the behest of their employer serves to restraiy

or coerce that employer in the ‘‘selection of his rep.

resentative for the purposes of collective bargaining.”

(Emphasis added.)

Indeed, it is at the time of a strike called by the

union that the stakes involvéd in the collective bar.

gaining process are usually at the highest—for the

issues have become vital enough and the positions of

the parties sufficiently polarized as to warrant a dis.

ruption of production and loss of earnings—and hence

the employer’s capacity to withstand the strike by con-

tinuing production can have enormous impact on the

nature of the bargain that will ultimately result. The

employer’s ability to rely upon his representatives—

his supervisory foree—to maintain production despite

the withdrawal to the picket lines of the rank-and-file

employees is thus vitally related to the purposes of col-

lective bargaining. If his representatives remain

steadfast in their loyalty to him, the employer may well

generate sufficient counter-pressures upon the union to

moderate the terms of settlement.

To suggest, as the court below did, that supervisors

who during a strike perform work ordinarily per-

2N.L.R.B. v. Insurance Agents’ International Union, 361 US.

477, 495 (1960).

I ESSS'‘F

as a HAE

BIER PRON. he 5 ESR ae CBD EDIE EN Peal

13

formed by rank-and-file employees are not acting as

management’s representatives, misses the basic point

that the employer has enlisted the aid of his manage-

ment team in an effort to enhance his bargaining posi-

tion. The inference is compelling that the threat of

union discipline against a supervisor which would

prevent him from coming to the employer’s aid must

restrain or coerce the employer in the selection of his

representatives for the purposes of collective bar-

gaining.

There is no doubt that if the union attempted to

dictate, by similar pressures, the employer’s selection

of a pliable supervisor or industrial relations director

as the employer’s representative at the bargaining

table, a violation of Section 8(b)(1)(B) would be

plainly established. The thrust of the objection to

such conduct, of course, is that it deprives the em-

ployer of a member of his management team—upon

whom the employer should be expected to rely—who in

the interest of the employer would press for conces-

sions from the union or otherwise persuade the union

of the weakness of its case. The supervisor who works

during a strike is providing much the same function

with precisely the same objective. He serves as the

counterpart of the employer’s representative at the

bargaining table who forcefully tells the union that

even a strike over an issue deemed vital to the employer

will not bring the employer to its knees. By working,

he underscores the point made at the bargaining

table.

The emphasis placed by the majority in the court

below on the supervisor’s performance of supposedly

rank-and-file work fails to come to grips with the

te ® . ae es

SS

14

realities of a strike. The performance during a strike

of work normally performed by non-supervisory em-

ployees would seemingly have more of an impact upon

bargaining negotiations than work of any other kind

in that it would impress upon the union and its mem-

bership that their withholding of services has not

brought about the anticipated cessation of operations,

The salient factor, however, is that the concept of

rank-and-file work has meaning only in terms of a

division of labor where both supervisors and non-

supervisory employees are working, and is meaning-

less in the event of a strike. What is significant

where a strike has occurred is that all work performed

by supervisors is in keeping with their position as

representatives of management acting in the further-

ance of management’s interests and management's

bargaining position.

2. Section 8(b)(1)(B) Bars Union Discipline Against Supervisors

Who Are Acting in the Interest of Their Employer

Union discipline of a supervisor is prohibited by

Section 8(b)(1)(B) when the wnderlying dispute is

between the employer and the union. The Board has

noted that if the right given the employer to ‘‘select”’

his representative is to be protected in meaningful

fashion, he must be free ‘“‘to make and rely upon a

selection of representatives from an uncoerced group

of such supervisors whose lovalty to him has not been

prejudiced ....’’ Toledo Locals Nos. 15-P and 272,

LPIU (The Toledo Blade Co., Ine.), 175 NURB 1072

(1969), enf’d, 4837 F.2d 55 (CA 6, 1971). The em-

ployer’s right to the undivided loyalty of his repre-

sentatives is unlawfully compromised if the union ean

hold the supervisor hostage by threats of fine or ex-

pulsion when he acts in the interest of the employer.

15 /

The Board has forcefully stated its position in

Local Union No. 2150, IBEW (Wisconsin Electric

Power Co.), 192 NLRB TT, 78:

“The intent [of Section 8(b)(1)(B)] is to pre-

vent the supervisor from being placed in a posi-

tion where he must decide either to support his

employer and thereby risk internal union dis-

cipline or support the union and thereby jeopard-

ize his position with the employer. To place the

supervisor in such a position casts doubt both upon

his loyalty to his employer and upon his effective-

ness as the employer’s collective-bargaining and

grievance adjustment representative. The pur-

pose of Section 8(b)(1)({B) is to assure to the

employer that its selected collective bargaining

representatives will be completely faithful to its

desires. This cannot be achieved if the union has

an effective method, union disciplinary action, by

which it can pressure such representatives to de-

viate from the interests of the emplover. Accord-

ingly, we find that Section 8(b)(1)(B) has been

violated.”’

It is this driving of a wedge between the supervisor

and his employer through internal union discipline

that the section is designed to prevent, for the fear of

disciplinary action is likely to impede—indeed is de-

signed to impede—the supervisor’s effectiveness then

and thereafter in representing the employer’s in-

terests. The court below expressed its awareness of

this danger in Meat Cutters Union Local 81 AMCA-BW,

AFL-CIO v. N.L.R.B., supra, 458 F.2d at 799, by ob-

serving that if the union’s discipline were permitted to

stand ‘‘there would have been serious doubt thereafter

as to whether [the supervisor] could represent the

Company in a bona fide manner against the Union in

other matters where their interests were adverse.”’

Be Sa eB ees Us

_ SUR Senden a

16

The Sixth Cireuit in N.L.R.B. v. Toledo Locals Nos,

15-P and 272, LPIU, AFL-CIO (Toledo Bladc Co.,

—Ine.), 487 F.2d d9, OT (1971), was equally sensitive i

this point, noting that ‘‘[t]his conduct of the unioy

would further operate to make the employees reluctant

in the future to take a position adverse to the union,

and their usefulness to the employer would thereby

be impaired.”’

The thrust of these decisions is that the imposition

of union discipline against supervisors for actions

undertaken in furtherance of management’s interests

will tend to coerce such supervisors not only with

respect to their actions in the immediate dispute but

in the performance of their future managerial duties.

Hentce the rule pronounced by the Board, that union

disciplinary action imposed against supervisors is un-

lawful whenever the dispute can be characterized as a

dispute between the employer and the union rather

than between the union and its members, is a sound

one and is in keeping with the statutory purposes.

It appears that the court below would have held the

union’s discipline to be unlawful had it believed that

the supervisors were engaged in a managerial capacity

while performing work during a strike which was or-

dinarily performed by rank-and-file employees. In-

deed, its decision in Meat Cutters Union Local 81,

supra, would have dictated such a holding. However,

it flatly rejected the Board’s contention that such work

during a strike was in fact managerial in nature, and

stated, F.2d at , 83 LRRM at 2591, “The di-

viding line between supervisory and non-supervisory

work in the present context is sharply defined and

easily understood.’’ Based upon this inaccurate

premise, it erroneously concluded that ‘‘There is ac-

17

cordingly no reason to believe that ...a supervisor will

suffer from a change in attitude when, after the strike,

he returns to the performance of his normal super-

visory duties.”’

To the egutrary, there is no reason to believe that

the supervisor performing whatever work he can in

aceordance with his employer’s instructions will share

the court’s view of this ‘‘sharply defined and easily

understood”’ line. Nor does the Court of Appeals for

the Seventh Circuit, which observed, V.L.2.B. v.

Local 2150, IBEW, AFL-CIO (Wisconsin Electric

Power Company ), 486 F.2d 602, 608, ‘‘ What a super-

visor’s proper functions are when the full comple-

ment of employees is at work under the regime of a

collective bargaining agreement then in force is not

determinative of supervisory responsibility during a

strike.”’

The particular kind of work a supervisor performs

during a strike can have no bearing on the legality of

union disciplinary action, for all of it is managerial

in nature. As the Court of Appeals for the Seventh

Cireuit pointed out in N.L.R.B. v. Local 2150, IBEW,

supra, 486 F.2d at 608:

“Insofar as their effort helps to keep the busi-

ness going in order to fulfill commitments to eus-

tomers and to preserve the company’s clientele

and good name from deterioration, it lies at the

very core of the entrepreneurial function... .

Accordingly, we think supervisors who act in their

employer’s interests by performing rank-and-

file work during a strike are indeed performing a

properly managerial function.’’

Hence union disciplinary action does have a lasting

impact in compromising the supervisor’s effectiveness

Besginc— SEAR RRS os

18

and loyalty as the employer’s representative. The

court below has improperly and erroneously substi-

tuted its judgment for that of the agency entrusted

with administration of a basie labor law with respect

to inferences of fact within the special competence of

the Labor Board. Radio Officers Union v. N.L.R.B.

347 U.S. 17, 48-50 (1954) ; Universal Camera Corp, x.

N.L.R.B., 340 US. 474, 488, 490 (1951).

B. THIS COURT’S RATIONALE IN ALLIS-CHALMERS DOES Not

SUPPORT THE UNION ACTIONS INVOLVED HERE

Although the court below purported to find support

for its decision in this Court’s ruling in N.L.R:B. y.

Allis-Chalmers Manufacturing Co., 388 U.S. 175

(1967), neither this Court’s holding nor its rationale of

decision lends support to the view of the court below.

Allis-Chalmers, of course, involved the construction of

Section 8(b)(1)(A) of the Act,* not Section 8(b) (1)

(B) as here.

Section 8(b) (1) (A) reflects an attempt by Congress

to strike a balance between the protection of the rights

of employees under Section 7—rights which include

self-organization, collective bargaining, and other con-

certed activity, as well as the right to refrain from

such activities—and, by its proviso, the safeguarding

of the rights of a union to govern its own affairs,

This Court, noting that national labor policy was built

on the premise that by pooling their economic strength

and bargaining through a labor organization em-

ployees ‘‘have the most effective means of bargaining

3 Section 8(b)(1)(A) makes it unlawful for a union to restrain

or coerce “‘employees in the exercise of the rights guaranteed in

Section 7: Provided, That this paragraph shall not impair the

right of a labor organization to prescribe its own rules with

respect to the acquisition or retention of membership therein ....”

19

for improvements in wages, hours and working con-

ditions,” stressed that such a policy ‘‘extinguishes the

individual employee’s power to order his own relations

with his employer and creates a power vested. in the

chosen representative to act in the interests of all em-

ployees,”” 388 U.S. at 180. (Emphasis supplied.)

The result, as this Court noted, is that ‘‘the employee

may disagrée with many of the union decisions but is

pound by them.’’

It is this recognition of the fact that the individual

employee has given up rights that in the absence of

representation by a union he might otherwise have so

that he might obtain the benefits of collective bar-

gaining, that in our view lies at the core of this Court’s

decision in Allis-Chalmers. The Court, focusing on

the union’s role as bargaining agent for employees,

stated, 388 U.S. at 181, ‘‘The economic strike against

the employer is the ultimate weapon in labor’s arsenal

for achieving agreement upon its terms, and ‘(t]he ,

power to fine or expel strikebreakers is essential if the

union is to be an effective bargaining agent.’ ”’

Thus, the restraints that a union may be permitted

to impose upon its employee-members in cases where

such control enhances its capacity to act effectively as

their statutory bargaining representative stand on a

far different footing than obligations imposed by a

union upon supervisor-members who serve the em-

ployer’s interest. Obviously the union would be an

‘The Act expressly provides in Section 2(3) that a supervisor

is not an ‘‘employee’’ within the meaning of the Act, and under-

scores that declaration in Section 14(a), which makes explicit

that an employer cannot be compelled to treat supervisors as

employees for purposes of collective bargaining. The employer’s

right to the undivided loyalty of his supervisors was the basis for

a

20

even more effective bargaining agent for the emplovees

it represents if it could compel the employer to choose

as his representatives at the bargaining table person;

who would comply with the union’s dictates. But

that is precisely the evil that Section 8(b) (1) (B) was

designed to prevent. The statutory policy underlying

Section 8(b) (1) (A) which permits a degree of re

straint Opscoercion over employee-members in order to

enable the union to function more effectively as bar.

gaining agent is matched by the countervailing statu.

tory policy of Section 8(b)(1)(B) which prohibits

any degree of restraint or coercion where employer

interests are at stake. Hence this Court’s rationale

of decision in Allis-Chalmers can have no bearing

whatsoever here.

What is clear, moreover, is that a union disciplinary

rule against members can be enforced only to the ex-

tent that it ‘reflects a legitimate union interest [and]

impairs no policy Congress has imbedded in the labor

laws,’’ Scofield v. N.L.R.B., 394 U.S. 423, 4380 (1969).

Inasmuch as Sections 2(3), 14(a), and 8(b) (1) (B) are

the incorporation of Section 2(3) and 14(a) into the Act. The

rationale of Congress was aptly summed up by Senator Taft, a

prime architect of the statute, when he stated:

‘It is felt very strongly by management that foremen are

part of management; that it is impossible te manage a plant

unless the foremen are wholly loyal to the management. We

tried various in-between steps, but the general conclusion

was that they must either be a part of management or a part

of the employees... .

The committee felt that foremen either had to be a part of

management and not have any rights under the Wagner Att,

or be treated entirely as employees, and it was felt that the

latter course would result in the complete disruption of dis-

cipline and productivity in the factories of the United States.”

93 Cong. Ree. 3952 (1947), IT Legis. Hist~at 1008-1009.

The same considerations underlie Section 8(b)(1)(B) as well.

21 \

designed to assure the undivided loyalty of supervisors

to their employer—without restraint or coercion from

unions—union attempts to impose internal discipline

upon supervisory personnel for their efforts during a

strike violate national labor policy and cannot be per-

mitted to stand.

Iv. CONCLUSION

For the foregoing reasons, Graphie Arts Union

Employers of America respectfully urges this Court

to reverse the decision of the eourt below in both

cases and decree enforcement of the Board’s orders.

Respectfully submitted,

LAWRENCE T. ZIMMERMAN

1000 Connecticut Avenue

Washington, D.C. 20036

WiuiaM F. Quirk

1730 North Lynn Street

Arlington, Virginia 22209

Counsel for Amicus

Of Counsel:

JOHNS AND ZIMMERMAN

1000 Connecticut Avenue

Washington, D.C. 20036

March 7, 1974