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

INDEX

Page

MNRAS UMD Ne recor cesar oat eat ai ow evs asavstieveetanesnnteceine 2

hye C3 0 U5 1) En Ran EN 21.

CITATIONS

Cases :

American Shipbuilding Co. v. Labor Board, 380 U.S.

esac seine ivensiasihoes> 18

ANE A ©, Labor Doar, Hho US. 100 seiescceccicteniersiecsscss iZ

Boys Market v. Retail Clerks, 398 U.S. 235 ........:c000 19

Coler v. Corn Exchange Bank, 250 N.Y. 136, 164

ES IRE” 2d TRG i Ae 20

Labor Bourd v. Brown, 380 U.S. 278 .........ssscsorccsrsesseees 18

Labor Board vy. Drivers’ Local Union, 362 US.

eh ee eae tits ecoisisesensiichsviobeice ests 4, 12, 16, 18

Labor Board vy. Insurance Agents, 361 US.

"ff (ASR ee ee OS ne 4, 14, 16, 17, 18

Labor Board v. News Syndicate, 365 U.S. 695 ............ 6

Machiists v. Labor Board, 362 U.S. 411 ...........00 13, 144

NLRB vy. Allis-Chalmers, 388 U.S. 175 ......5, 8, 9, 10, 12, 20

IGE © OCG CO., 412 UGE asst vssccsscesnssnsssdsscvssesee> 5, 10

NLRB vy. Marine and Shipbuilding Workers, 391

De RO ie et ee ee cecetay cit cicionien sa iiphatiesiaaiaes 10

Packard Motor Co. v. Labor Board, 330 U.S. 485 ........ 6, 9,

12, 16

i

ee ne ee et ee <a

Page

Pipefitters v. United States, 407 U.S. 385 «0.0.0... 10, 11, 12

San Francisco-Oakland Mailers, 172 NURB 2173 .... 19, 20

. Teamsters Union vy. Morton, 377 U.S. 252 we. 12

Typographical Union v. Labor Board, 365 U.S. 705 .. 18, 19

sane Ate a Ae a a SO: —d

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

DD ecenceeneorvens bats aieenetresccnicss tamisraneden 3

4 Woodwork Mfrs. Assoc. v. NLRB, 386 U.S. 612 ........ 13

STATUTES:

! National Labor Relations Act As Amended by the

Labor Management Relations Act, 29 U.S.C. § 151

et seq.:

. DRURY uitesicstes ceri stantacegrarsaceritccaensrsariesiteeeeartcennecs 4, 5, 6, 7,9

§ Q(LL) cesccscccsssssssessssonsvsssnsensesasssessesnnssensennasssesee 4,5, 7,9

4

i § 8(D) (1) (B) wucccsceseesseresctesseeescscags fessersasssasens 2, 3, 4,5

J 7

§ BCG). seccsssssesecnssssssessssesssssenes seen , 3

4 -

4 SIG). siiccessrintscrtettearsristeeroearns T scstenincwun 4, 5, 7, 8,9

4

4 © US arartinnrnsnieniaendineda dines 4

OE siesta nidlonanisnaennsnuininnunenarniasiens 4

MISCELLANEOUS:

Be CONS, 06, G61 6 ieesttienanennsiennennmanen 9

H.R. 4908, 79th Cong., 2d Sess. wo. cccceccscssesceeeteeeseeee 9

Legislative History of the Labor Management Rela- —

tions Act Of 1947 wee cceteeseteeeeseees 2, 3, 4, 7, 8, 9, 11

Supreme Court of the United States

October Term, 1973

No. 73-556

Fiorma Power & Licut Company, Petitioner,

v.

INTERNATIONAL BroTHERHOOD OF ELECTRICAL |

Workers, Loca. 641, et au, Respondents.

No. 73-795

Nationa LaBorn Re.ations Boanp, Petitioner,

v.

INTERNATIONAL BroTHERHOOD OF ELECTRICAL

Workers, AFL-CIO, et au, Respondents,

Ow Writs or CERTIORARI TO THE UNITED States Court OF

APPEALS For THE District or (ol. UMBIA CIRCUIT

BRIEF FOR THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

This brief amicus curiae, in support of the position of the

the union-respondents, is filed by the American Federation

of Labor and Congress of Industrial Organizations (AFL-

(IO), a federation of 111 national and international labor

unions having a total membership of approximately

lads 4 ~4 Pent Bava fd ignitor

et Rael BP al Dn a

2

13,500,000 working men and women, with the consent of the

parties, as provided for in Rule 42 of the Rules of this Court,

ARGUMENT

1. In the instant cases the National Labor Relations

Board seeks this Court’s approval for the agency’s view

that it is an unfair labor practice proscribed by §8(b) (1)

(B) for a union to discipline a supervisor who is its member

for performing bargaining unit work during a strike. The

asserted statutory source of this prohibition provides that it

is an unfair labor practice for a union or its agent ‘‘to re-

strain or coerce,”’

‘‘an employer in the selection of his representatives

for the purposes of collective targaining or the adjust-

ment of grievances; * * *”’

This language does not readily lend itself to the Board’s

interpretation. Nor do the authoritative Congressional ex-

planations: e.g., under § 8(b) (1) (B)

‘‘a union or its responsible agents could not, without

violating the law, coerce an employer into joining or

resigning from an employer association which ne-

gotiates 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 en-

ployee grievances, or to compel the removal of a person-

nel director or supervisor who has been delegated the

function of settling grievances.’’ (S. Rep. No. 105 on

S. 1126,80th Cong., Ist Sess., p. 21; 1 Legislative His-

tory of the Labor Management Relations Act, 194%,

p. 427, hereafter cited as ‘‘Leg. Hist.’’)

wn

_To circumvent these impediments in its path, the Board

first argues that the result it reached in this case is justified

by the ‘‘evolution of the Board’s interpretation | of

§8(b)(1)(B)’’ (Bd. Br. p. 18, caps omitted), relying on

a line of cases begun in 1968 (over 20 vears after the enact-

ment of that Section). (See Bd. Br. pp, 18-27.) But as the

Chief Justice has recently reminded, while the cireumstance

that a holding is at the end of ‘ta chain of evolutionary

developments * * * [and] appear[s] a reasonable step in

relation to that which preceded it’’ is sufficient to lend it

‘‘seductive plausibility,’’ it is insufficient to warrant its

approval ‘‘where the aggregate or end result is one that

would never have been seriously considered in the first

instanee.’’ (United States v. 12 200-Ft. Reels of Film,

413 U.S. 123, 127.) Therefore it is not necessary to deter-

mine at which point the Board made its first misstep; it

suffices to show that the Board’s holding in the present

cases does not accord with the overall scheme of the Act,

§8(b)(1)(B)’s language, or the legislative history which

further informs our understanding of the Congressional

intent.

2. The error of the Board’s view of the scope of §8(b)

(1)(B) appears most clearly when it is contrasted with the

narrow role envisaged by Congress for that provision. Both

the statutory language and the amplification on that lan-

guage in the Senate Report (just set out at p. 2), as well

as the floor statements by Senators Taft and Ellender that

constitute the remainder of the record,’ evince a determi-

nation that to further perfect the process of collective bar-

gaining delineated in §8(d), and the process of grievance

"See 93 Cong. Ree. 3838; 2 Leg. Hist. p. 1012, and 93 Cong. Ree.

4143 ; 2 Leg. Hist. p. 1077.

ee,

4

dispute settlement approved in §§ 203 & 204, (these three

provisions were also added to the Act in 1947), it is neces.

sary to assure that management is free to choose its spokes.

men without being subject either to union refusals to meet

or to strike action. Indeed, the Senate Report makes it plain

that the major purpose of §8(b)(1)(B) is to protect em.

ployers from being ‘‘coerce[d] into joining or resigning

from an emplover association.’’ In this respect, the Section

represents a more restrained approach to the problem of

multi-employer bargaining than that which had been pro-

posed by the House. Section 9(f)(1) of H.R. 3020 would

have outlawed multi-employer bargaining;* but the Senate,

and eventually Congress, provided that employers and

unions should retain the privilege to engage in such bar.

gaining by voluntary mutual agreement.® The secondary

function of §8(b)(1)(B), and the one with which we are

here concerned, furthers the overall purpose just described

by ‘‘also’’ prohibiting union ‘‘dictat[ion of] who shall rep-

resent an employer,’’ (S. Rep. No. 105, 80th Cong, 1st

Sess., p. 21; 1 Leg. Hist., p. 427).

But there is not a word in § 8(b)(1)(B) or its history that

even suggests a Congressional intent to empower the Board

to go beyond regulation of the bargaining process and to

enter the entirely distinct and highly sensitive area of the

use of economic weapons during a lawful strike. (Compare

2 See House Report No. 245 on H.R. 3020, 80th Cong., Ist Sess.,

pp. 8-9, 56; 1 Leg. Hist. pp, 299-300, 347.

3 Compare §§2(3), 2(11) & 14(a) discussed at pp. 5-7 infra

in which, as we demonstrate, Congress chose to reinstate the nt

plover’s privilege to discharge supervisors for union membership

or union aetivity rather than enacting new federal prohibitions.

5

Labor Board v. Insurance Agents, 361 U.S. 477 and Labor

Board vy. Driver’ Local Union, 362 U.S. 274, diseussed at

pp. 14-18 infra.) And of course, disciplining a supervisor-

member who performs rank-and-file work during a strike is

the union’s counterpoise to the employer’s use of his super-

visors to break the strike. Nor is there a word in §8(b)

(1)(B) or its history suggesting that Congress, despite its

determination to continue to allow unions to exercise their

historic right to discipline rank-and-file members who work

during a strike, intended to prohibit such discipline of

supervisor-members. (Compare NLRB vy, Allis-Chalmers,

388 U.S. 175 and NDRB v. Boeing Co., 412 U.S. 67 discussed

at pp. 9-10 infra.)

3. The Board purports to provide a statutory justification

for its conclusion here by arguing that in 1947 ‘‘Congress’

dominant objective [was to] insure the employer the un-

divided loyalty of his supervisors,’’ and that the Board’s

reading of §8(b)(1)(B) “effectuates [that] objective,’’ (Bd.

Br. p. 31). But, as we now show, while recognition was given

in 1947 to the employer interest in a supervisory force which

owes undivided loyalty to the employer, that end was ad-

vanced, not by creating an unfair labor practice in §8(b)

(1)(B), but by providing the employer a privilege to dis-

charge supervisors because of their union membership or

union activity. This was accomplished by amending the

definition of ‘‘employee’’ in § 2(3) to exclude those denomi-

nated ‘supervisors’’ in § 2(11), and by providing in § 14(a)

that while ‘‘nothing herein shall prohibit any individual

employed as a supervisor from becoming or remaining a

member of a labor organization,’’ no employer “shall be

compelled to deem individuals defined herein as supervisors

AAI IR Cha RE

6

as employees for the purpose of any law, either national or

local, relating to collective bargaining.’”’

Thus, Congress protected employers by reserving in them

the privilege to discharge, or not to hire, supervisors who

are union members, and to refuse to bargain about super-

visors’ wages, hours and working conditions. But Congress

did not afford employers the added protection of making it

an unfair labor practice, enforceable by Board sanctions,

for supervisors to be union members (see Labor Board y.

News Syndicate, 365 U.S. 695, 699), or for unions to exer-

cise their traditional authority over their members, by dis-

ciplining supervisor-members (like rank-and-file members)

for strikebreaking.

(a). In Packard Motor Co. v. Labor Board, 330 U.S. 485

(1947), this Court, agreeing with the Board, answered in

the affirmative the question, ‘‘whether foremen are entitled

as a class to the rights of self-organization, collective bar-

gaining, and other concerted activities as assured to em-

ployees generally by the National Labor Relations [Wag-

ner] Act,’’ (id. at 487).

The 1947 Congress regarded that ‘‘recent development

** * [viz.] the successful efforts of labor organizations to

invoke the Wagner Act for covering supervisory person-

* * * f-**

nel,’’ as one which would ‘‘deprive managemen

of the undivided loyalty of its foremen * * * unless this

Congress takes action.’’ (S. Rep. No. 105, 80th Cong., Ist

Sess., pp. 3, 5; 1 Leg. Hist., pp. 409, 411.) The ‘‘action”

recommended by the Senate Labor Committee, and by the

House Labor Committee as well, and adopted by Congress,

was directly responsive to the Packard Motor Co. decision:

iE SSSSSESC—CiCiCi

AOD MAREN NEI nahin ae

7

as already noted the term ‘‘employee’’ in ¢2(3) was rede-

fined to exclude ‘‘supervisors,’’ a class which was delineated

in a new §2(11); additionally, Congress adopted § 14(a)

which established that neither the NLRB nor any state

agency could afford supervisors the status of “employees.”

On the other hand, Congress did not make it unlawful for

‘supervisors to join unions or for employers to accept their

doing so; indeed, §14(a) provides also that ‘‘[n]Jothing

herein shall prohibit any individual employed as a super-

visor from becoming or remaining a member of a labor orga-

nization.’’ In sum, Congress ‘‘relieve[d] employers * * *

free of any compulsion by this national Board or any local

agency to accord to the front line of management the anom-

alous status of employees’’ (S. Rep. No. 105, 80th Cong., 1st

Sess., p. 5; 1 Leg. Hist., p. 411), and thereby reinstated the

employer’s previously recognized privilege ‘‘to discharge

** * foremen for union activity,’’ (93 Cong. Rec. 3836; 2

Leg. Hist., p. 1008; remarks of Sen. Taft).

In its memorandum amicus curiae in Beasley v. Food Fair

(No. 72-1597, this Term), the Board accurately summarizes

the scope and rationale of §§ 2(3), 2(11) and 14(a):

‘‘These amendments were designed to provide a solu-

tion to the conflict-of-loyalty problem created by the

unionization of supervisors. Supervisors were free to

join unions and to bargain through them if the em-

ployer was willing; on the other hand, the employer

could insist that his supervisors not join unions and

discharge them if they did.’’ (Bd. Mem. in No. 72-1597,

p. 6.)*

‘It is particularly instructive to compare the Board’s Beasley

memorandum (at pp. 5-12), where §14(a) is regarded to be of

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8

The discussions of §§ 2(3), 2(11) & 14(a) are the only ones

which advert to a Congressional desire ‘‘to insure the em-

ployer the undivided loyalty of his supervisors,’’ (Bd. Br.

p. 31). And there is nothing in those discussions to support

the Board’s view that Congress’ ‘‘solution”’ to this.‘‘ conflict

of loyalty problem’’ (Bd. Mem. in No. 72-1597, p. 6), en-

compassed the creation of an unfair labor practice pro-

hibiting union discipline of supervisor-members for strike-

breaking.

(b). As this Court observed in NLRB vy. Allis-Chalmers,

388 U.S. at 181-182, the 1947 Congress was well aware that

‘*[pJrovisions in union constitutions and bylaws for fines

and expulsion of recalcitrants, including strikebreakers, * **

were commonplace at the time of the Taft-Hartley amend-

ments.’’ Moreover, in explaining why supervisors were

being deprived of the status of employees the House Report

observed that leading foremen’s union, the Foremen’s

Association of America, had, in order to obtain the support

of the rank-andffile for strikes by its foremen-members,

‘‘adopted a formal ‘policy’ forbidding ifs members, when

the rank-and-file unions strike, to enter the struck plants

and protect and maintain them without the consent of the

rank-and-file unions.’’ (H. Rep. No. 245, 80th Cong., 1st Sess.,

pp. 15-16; 1 Leg. Hist., pp. 306-307, emphasis in original.)

It was thus understood that union membership of super-

visors diminishes the employer’s ability to use supervisors

as strikebreakers.

controlling importance, with its brief in this case (at pp. 31-32),

where it attempts to deprive that section of all significance. Indeed,

the understanding of §14(a) expressed by the court below, which

the Board seeks to rebut at this point in its brief, accords with the

Board's own reasoning in Beasley.

But Congress was not willing to press the principle of

‘insuring the employer the undivided loyalty of his super-

visors’? (Bd. Br. p. 31), to the extent of enacting a pro-

hibition against supervisors’ union membership or of limit-

ing the right of unions to discipline their supervisor-mem-

bers for strikebreaking.

The first of these solutions would have further sharpened

the division between the proponents of legislation to reverse

the Packard Motor Co. decision and those who desired to

safeguard the right of supervisors to join and form unions.

One of the grounds for the veto of the Case bill, the prede-

cessor of the 1947 amendments to the Wagner Act, had been

the 1946 Congress’ restrictions on supervisors’ union mem-

bership.® So, too, in 1947, the minority in both the House

and Senate Labor Committees attacked §¢2(3), 2(11) &

14(a) for withdrawing from supervisors the right even to

form and join their own (if not rank-and-file) unions.®

The second alternative, and the one advocated by the

Board herein, would have conflicted with the desires of both

the majority and the minority to minimize interference with

the internal affairs of unions, see the discussion in Allis-

Chalmers, supra, 388 U.S. at 184-195, from which this Court

concluded :

‘‘What legislative materials there are deating with

_ §8(b)(1)(A) contain not a single word referring to the

° H.R. 4908, 79th Cong., 2nd Sess. President Truman’s veto

message is set out at 92 Cong. Rec. 6674; the issue of supervisors’

union membership is discussed id. at 6677.

°H. Min. Rep. No. 245 80th Cong., Ist Sess., pp. 71-72; 1 Leg.

Hist., pp. 362-363 ; S. Min. Rep. No. 105, Pt. 2, 80th Cong., 1st Sess.,

pp. 39-40; 1 Leg. Hist. pp. 501-502.

OL TES ot aad a ee eee

eA RO aS sities fa amt awison

10

application of its prohibitions to traditional internal

union discipline in general, or disciplinary fines in p>

ticular. On the contrary there are a number of assur-

ances by its sponsors that the section was not meaut to

regulate the internal affairs of unions.’’ (388 U.S. at

185-186 quoted with approval and followed in NLRB y.

Boeing Co. 412 U.S. at 73; emphasis in the latter.)*

Thus, in the context of ‘‘a predictable Presidential veto”

(ef. Pipefitters v. United States, 407 U.S. 385, 409), a more

radical proposal than changing the statutory status of

supervisors, such as creating a federal prohibition cither

against supervisors’ union membership, or against union

discipline of supervisor-members for strikebreaking, would

have endangered the delicate political balance required by

the anticipated need to secure a two-thirds majority in both

houses if the bill were to become law. The sponsors of the

1947 amendments were therefore content to restore the

relationship between employers and supervisors to that

7™In NLRB v. Marine and Shipbuilding Workers, 391 U.S. 418,

424, the Court stated that ‘‘§ 8(b)(1) (A) assured a union freedom

of self-regulation where its legitimate internal affairs are con-

cerned. But where a union rule penalizes a member for filing an

unfair labor practice charge with the Board, other considerations

of public policy come into play.’’ As the sole example of union

discipline to further ‘‘its legitimate internal affairs,’’ Mr. Justice

Douglas cited Allis-Chalmers, which he described as having held

‘‘that §8(b)(1)(A) does not prevent a union from imposing fines

on members who cross a picket line created to implement an author-

ized strike.’’ (Id.) Thus, there can be no doubt that Marine Work-

ers was not intended to sanction Board regulation of union dis-

cipline of members for strikebreaking on the theory that such dis-

cipline like expulsion for filing a charge does not concern ‘‘its

legitimate internal affairs.’’ The Board’s reliance on Marine Work-

ers (Bd. Br. pp. 45-46), in this case is therefore entirely misplaced.

11

which had obtained before the Wagner Act; they did not

choose to take the additional risk entailed in giving affirma-

tive protection to the employers against conflicting super-

visory loyalties.

Further evidence that § 8(b) (1) (B), in particular, was not

intended to deal with the controversial ‘‘conflict-of-loyalty’’

issue, is that this Section is unique among the Senate bill’s

proposed union unfair labor practices in achieving the

approval of the minority both as to the end sought and the

means utilized to secure that end.* This was undoubtedly

due to its carefully delineated language, whose narrow

meaning was confirmed by the Senate Report. The under-

standing at the time is highlighted by Senator Taft’s floor

explanation of § 8(b)(1)(B) which tracked the Section’s

language and was introduced by his statement that ‘‘[t]his

unfair labor practice referred to is not perhaps of tre-

mendous importance * * *,’’ (93 Cong. Rec. 3954; 2 Leg.

Hist., p. 1912).° Cf. Pipefitters v. United States, 407 U.S. at

*See S. Min. Rep. No. 105, Pt. 2, 80th Cong., 1st Sess., pp. 40-41;

1 Leg Hist., pp. 502-503, describing this provision as one of the

‘‘Aeceptable Provisions of the [Senate] bill.’’

* Senator Taft stated :

‘“‘This unfair labor practice referred to is not perhaps of

tremendous importance, but employees cannot say to their em-

ployer, ‘we do not like Mr. X, we will not meet Mr. X. You

have to send us Mr. Y.’ That has been done. It would prevent

their saying to the employer, ‘You have to fire Foreman

Jones. We do not like Foreman Jones, and therefore you will

have to fire him, or we will not go to work.’ This is the only

section in the bill which has any relation to Nation-wide bar-

gaining. Under this provision it would be impossible for a

inion to say to a company, ‘we will not bargain with you un-

less you appoint your national employers’ association as your

(qupoermmmmtesercsres ne sean (en 2 00 ka SNE AP Na Oe . ‘ a

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12

409, where this Court said that Senator Taft’s ‘‘view of the

limited reach of’’ a different provision, ‘‘entitled in any

event to great weight, is in this instance controlling.’ ”

The Board’s conception of §8(b)(1)(B) attributes to

Senator Taft, and his colleagues who were responsible for

drafting and explicating the Senate bill a cynical disingen-

uousness never @ttributed to them even by their open oppo-

sition. For, its operative premise is that while the propo-

nents stated that they had focussed on and met the problem

of conflicting supervisory loyalty in §§ 2(3), 2(11) & 14(a),

and never adverted to that problem in connection with

§ 8(b) (1) (B), their true purpose in the latter provision was

to go beyond the employer privilege they had reinstated

by the acknowledged reversal of the Packard Motor Co.

decision.

If Senator Taft is credited, what he would not’say during

the debates is also pregnant with significance. His expla-

nation of §¢ 2(3), 2(11) & 14(a) made it plain that the Sen-

ate bill did not retain any statutory protections for super-

visors. The removal of all such protections was the means,

agent so that we can bargain nationally.’ Under the bill the

employer has a right to say, ‘No, I will not join in national

bargaining. Here is my 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 purposes.”

10 For Senator Taft’s limiting construction: of § 8(b) (1) (A), see

Drivers’ Local Union, supra, 362 U.S. at 287-288 and Allis-Chal-

mers, supra, 388 U.S. at 185-190; of the damage remedy provided by

§ 303, see Teamsters Union v. Morton, 377 U.S. 252, 260 n. 16; of

the reach of §8(b)(6), see ANPA v. Labor Board, 345 U.S. 100,

106-111; and of the regulation of union political activity by 18

USC § 610, see Pipefitters cited in the text.

ee a

13

as we have seen, by which employers were to be assured the

‘undivided loyalty’’ of their supervisors. It is, therefore,

utterly anomalous for the Board to argue in support of a

construction of §8(b)(1)(B) which would give employers

a greater protection than Congress contemplated, that this

construction would also protect the interests of supervisors,

(Bd. Br. pp. 41-42).

(c). The short of the matter is that the elaborate policy

arguments advanced by the Board in its decisions herein

and in its arguments to this Court do not “reconstitute the

gamut of values at the time that the [statutory] words were

uttered’’;"’ they rebel against them. Very much in point,

therefore, is Mr. Justice Harlan’s criticism in Machinists v.

Labor Board, 362 U.S. 411, 428, of an earlier Board’s re-

fusal to hew to the lines Congress drew:

‘‘We think this analysis inadmissible for the reason

that the accommodation between these competing fac-

tors has already been made by Congress. It is a com-

monplace, but- one too easily lost sight of, that labor

legislation traditionally entails the adjustment and

compromise of competing interests which in the ab-

stract or from a purely partisan point of view may seem

irreconcilable. The ‘policy of the Act’ is embodied in

the totality of that adjustment, and not necessarily in

any single demand which may have figured, however

wéeightily, in it. Cf. Note 7 [362 U.S. at 425].”’

Here it ‘‘may be asserted, without fear of contradiction,

that the interest in [undivided loyalty of supervisors to

employers] is one of those given large recognition by the

" Woodwork Mfrs. Assoc. v. NLRB, 386 U.S. 612, 620 (quoting

L. Hand, J.).

Site SII Mad PE TS

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14

Act as amended.’’ (Jd.) But here, too, it is impermissible to

disregard the ‘‘eompeting interests.’’ (/d.) The Board’s

decisions in these cases disrespect the ‘‘totality of [the]

adjustment’’ which Congress made; they provide to this

particular employer interest an implementing force—the

Board’s unfair labor practice sanctions—with which it was

not endowed by Congress, and protect ‘perceived interests

of supervisors which Congress, rightly or wrongly, did not

recognize. Once again, ‘‘It is not necessary for us to justify

the policy of Congress. It is enough that we find it in the

statute. That policy cannot be defeated by the Board’s

policy * * *,’’ (Machinists, supra, 362 U.S. at 429.)

4. We have seen thus far that § 8(b)(1)(B) was enacted

to safeguard the right of employers to bargain and settle

grievances through representatives of their own choosing

and that the Board has wrenched that provision out of

context in order to grant an additional protection (not pro-

vided by Congress) to the employer who wishes to meet

a strike by having his supervisors do rank-and-file work,

and to deprive the union of a countervailing economic

weapon—discipline of its supervisor-members—otherwise

available. This is not the first time the Board has misused

one of the ‘‘five specific practices by labor organizations’’

that Congress determined ‘‘should be defined as unfair

labor practices’ (S. Rep. No. 105, 80th Cong., Ist Sess.,

p. 8, 1 Leg. Hist., p. 414), in order to implement the agency’s

own views as to the validity of certain economic weapons.

In Insurance Agents, supra, 361 U.S. 477, the question

presented was whether the Board, as it claimed, was:

‘‘authorized under the Act to hold that * * * certain

planned ‘eancerted on-the-job activities designed to

15

harass the company * * * which the Act does not spe-

cifically forbid but See. 7 does not protect, support a

a finding of a failure to bargain in good faith as re-

quired by See. 8(b)(3).’’ (Id. at 480, 482-483; foot-

notes omitted.)

This Court held that the Board had no such authority.

In so doing, Mr. Justice Brennan emphasized:

“‘(I]f the Board could regulate the choice of economic

weapons that may be used as part of collective bar-

gaining, it would be in a position to exercise consider-

able influence upon the substantive terms on which

the parties contract. As the parties’ own devices

became more limited, the Government might have to

enter even more directly into the negotiation of col-

lective agreements. Our labor policy is not presently

erected on a foundation of government control] of the

results of negotiations. See S. Rep. No. 105, 80th Cong.,

Ist Sess., p. 2. Nor does it contain a charter for the

National Labor Relations Board to act at large in

equalizing disparities of bargaining power between

employer and union.’’ (Id. at 490.)

That being so the Court disagreed with the Board as to

the extent to which the agency was free to adjudge union

activity not affirmatively protected by the Act to be an

unfair labor practice: ,

“The Board suggests that since * * * the union

members’ activities here were unprotected, and they

could have been discharged, the activities should also

be deemed unfair labor practices, since thus the remedy

of a cease-and-desist order, milder than mass dis-

charges of personnel and less disruptive of commerce,

would be available. The argument is not persuasive. -

There is little logic in assuming that because Congress

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16

was willing to allow employers to use self-help against

union tactics, if they were willing to face the economic

consequences of its use, it also impliedly declared these

tactics unlawful as a matter of federal law. Our prob.

lem remains that of construing § 8(b)(3)’s terms, and

we do not see how the availability of self-help to the

employer has anything to do with the matter.’’ (Jd.

at 495.)

Yet, in the instant cases the Board seeks to supplant the

use of ‘tself-help * * * [which] Congress was willing to

itlow employers’? by reversing the Packard Motor (Co.

lectsion, through the device of making it an unfair labor

ractice for a union to discipline supervisor-members for

trikebreaking.

«romee Agents is additionally instructive in that the

there stated the limits of the,deferrence due to the

irs expertise :

Where Congress has in the statute given the Board

\ question to answer, the courts will give respect to

‘hat answer; but they must be sure the question has

been asked. We see no indication here that Congress

has put it to the Board to define through its processes

what economic sanctions might be permitted nego-

tiating parties in an ‘‘ideal’’ or ‘‘balanced’’ state of

collective bargaining.’’ (Jd. at 499-500.)

The analysis developed thus far demonstrates that here as

in that case the Board has sought to answer a question that

Congress has not asked of it.

The Board’s misinterpretation of § 8(b)(1)(B) is also

checked in Drivers’ Local Union, supra, 362 U.S. 274. There

the Board had held that

—— —

17

‘‘neaceful picketing by a union, which does not rep-

resent a majority of the employees, to compel imme-

diate recognition as the employees’ exclusive bargain-

ing agent, is conduct of the union ‘to restrain or

coerce’ the employees in the exercise of rights guar-

anteed in §7, and thus an unfair labor practice under

§8(b)(1)(A).”’ (Id. at 275.)

This Court reversed. Mr. Justice Brennan, again writing

for the Court, noted that the Board’s lack of authority to

regulate economic weapons without a particularized statu-

tory mandate as stated in Insurance Agents embodied the

central lesson of § 13, which:

‘‘declares.a rule of construction which cautions against

an expansion reading of [one of the unfair labor prac-

tice provisions] which would adversely affect the right

to strike, unless the congressional purpose to give it

that meaning persuasively appears either from the

structure or history of the statute.’’ (/d. at 282.)

And, he returned to a point also central to the dnsurance >

Agents’ decision :

“The Board asserts that the very general standard

in §8(b)(1)(A) vests power in the Board to sit in

judgment upon, and to condemn, a minority union’s

resort to a specific economic weapon, here peaceful

picketing. The structure of § 8(b), which defines unfair

labor practices, hardly supports the Board’s claims.

Earlier this Term we pointed out that ‘Congress

has been rather specific when it has come to outlaw

particular economic weapons on the part of unions.’ ”’

(Jd. at 282-283.) .

Here, the expansion of the second subdivision of § 8(b) (1)

attempted. by the Board does equal violence to a limited

AUN MA Cio See eo se waist aNd

18

prohibition enacted by Congress. And, again, the exten.

sion essayed by the Board has the effect of restricting the

right to strike and to utilize kindred peaceful economic

weapons guaranteed by § 13.”

5. The Board’s decisions in the first twenty vears after

the adoption of the Taft-Hartley amendments confirmed

Senator Taft’s evaluation that § 8(b)(1)(B) ‘‘is not per-

haps of tremendous importance.’’ In 1960 the Board was

able to advise the Second Circuit that only 11 cases under

§ 8(b)(1)(B) had thus far arisen.” This paucity of cases

was due to the Board’s confining that provision to its

intended reach; it can not have been because unions did

not discipline their supervisor-members or because em-

ployers did not utilize supervisors to perform rank-and-file

work during strikes.

The furthest that the Board would go in those days was to

assert that a union violates § 8(b)(1)(B) by striking for a

clause which would require foremen who handle grievances

to be members of the union; the Board’s position ultimately

prevailed in this Court by a 4-4 affirmance of the First

Cireuit. Typographical Union v. Labor Board, 365 US.

705, affirming by an equally divided court, 278 F.2d 6, 11-18

(C.A. 1). In the support of that position the Board took

12—In both Insurance Agents and Drivers’ Local Union, the

Board’s freewheeling regulation of economic weapons resulted in

an advantage for employers. That, however, has not always been

the case. See e.g., American Shipbuilding Co. v. Labor Board,

380 U.S. 399; Labor Board v. Brown, 380 U.S. 278.

13 Brief for the NLRB in NLRB v. Local 294 Teamsters (C.A. 2

No. 26,224) p. 16. (The Court of Appeals decision is reported at

284 F.2d 893.) Of these, 5 concerned multi-employer bargaining.

19

pains to bring its view within the statutory language and

the purpose stated in the Senate report: the Board con-

tended that a requirement of union membership for fore-

men would prevent employers from selecting those in-

dividuals who were not, or did not wish to remain, union

members."* Yet, under the agency’s present conception of

§8(b)(1)(B) the Typographical Union case would have

been a simple one.

It was not until 1968, when the Board took what is

admittedly a broader view of §8(b)(1)(B), that litigation

under this Section began to burgeon and this hitherto

unimportant unfair labor practice came to assume substan-

tial dimensions. We have stated at the outset that it is

not our task to demonstrate that San Francisco-Oakland

Mailers, 172 NLRB 2173 (hereafter ‘‘Oakland Mailers’’),

or any of its progeny, before the present cases, reached the

wrong result. But it does bear emphasis in light of the

importance the Board attaches to the ‘‘evolutionary pro-

cess’’ by which the decisions herein were reached (Bd. Br.

p. 18), that this evolution commenced not when the Act was

born, but when it had almost reached voting age. More-

over, the ‘‘specialized experience’’ (Bd. Br. p. 39), which

avowedly underlies the present decision is not industrial

experience, either in the years before Oakland Mailers or

in the relatively short period thereafter; it is not even

“experience’’ in the form of a new insight into the original

understanding of §8(b)(1)(B) resulting from collateral

developments in the law, (cf. Boys Market v. Retail Clerks,

398 U.S. 235). The only ‘‘experience’’ that has been

“Brief for the NLRB in No. 340, Oct. Term 1960, p. 39.

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20

brought to bear by the Board in these cases is in the

manipulation of the concepts and policies introduced into

§ 8(b)(1)(B) in Oakland Mailers. How little that is worth

appears from the inability of the Board to reconcile the

view it took of the Allis-Chalmers case in Oakland Mailers

with its decisions herein, as well as from the other incon-

sistencies between these decisions and their predecessors,

as set forth in the majority opinion below and in the

brief for the union-respondents, (see pp. 28-45, 49-55 of

that brief).

Surely, then, the Board’s construction of § 8(b)(1)(B) in

the present cases derives no support from its origins in

recent administrative history. On the contrary, if-in a case

where the direct evidence of legislative intent points uni-

formly to a single result the more indirect evidence of

administrative interpretation is to be given any weight,

it is the narrower interpretation which prevailed in

the first twenty years which merits consideration. ‘‘Not

lightly vacated is the verdict of quiescent years.’’

18 Coler v. Corn Exchange Bank, 250 N.Y. 136, 141; 164 N.E. 882,

884 (Cardozo, J.).

21

CONCLUSION

For the foregoing reasons as well as those stated by the

union-respondents, the decision below should be affirmed.

Respectfully submitted,

J. ALBERT WoLL

General Counsel, AFL-CIO

Rosert C. Mayer

LAURENCE GoLp

736 Bowen Building

815 Fifteenth Street, N.W.

» Washington, D.C. 20005

cA Tuomas E. Harris

Associate General Counsel

AFL-CIO

815 Sixteenth Street, N.W.

Washington, D.C. 20006

April, 1974.