# Amicus Curiae Brief — Florida Power & Light Co. v. Electrical Workers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0320%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 417 U.S. 790 ## Text 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 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 ; x SP a OPC a as ASO NR a ROME nc ate class 4 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 heap can RE EIRA RS: Kolitsiase: LAA See hOB YE PS OREO i Le ALAA LAP IOED Cte tn 24 ny es a 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 Sf TG NRA OETA LIA TENE EE ae PRR ON, SN ATR AN Oe , —selliaabre i it bd ah hkledy ne ® 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. SNIPERS Digs ones es To RRR or aN SEG ALAR IN A ASTORIA I DE AR AR ALL AR DEDA LN A $2 pda aD GOR RU I SPRL: Pn EP ee i OTE, Sera Pa aaa pent Ke) Gini! alanine leek NY aye ae wer 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0320%3A13. Public record. Not legal advice.