Respondent union, which represents persons hired to perform
writing functions for motion picture and television films
(hereinafter respondent), had collective bargaining contracts with
a producers association (petitioner in No. 76-1153) and three
television networks (petitioners in No. 76-1121). Among
respondent's members are a large number of persons (so-called
"hyphenates") who are engaged by petitioners primarily to perform
executive and supervisory functions. Though the hyphenates, who
include various categories of producers, directors, and story
editors, have minor writing tasks, these are not covered in the
collective bargaining contracts; only if the hyphenates are
employed to perform additional writing services are the rates
therefor governed by those contracts. In connection with their
regular, primary duties, many of the hyphenates are represented by
unions other than respondent. In anticipation of an economic strike
upon expiration of its contracts with petitioners, respondent
distributed strike rules to its members, including the hyphenates
(to whom the rules were made expressly applicable). The rules
included a prohibition against crossing a picket line established
by respondent at any entrance of a struck premise. After the strike
began, petitioners informed the hyphenates that they were expected
to continue their regular supervisory functions, though they would
not be asked to perform writing duties covered by the union
contract. Thereafter, respondent notified a large number of the
hyphenates who had returned to work that they had violated one or
more of the strike rules, including, in many instances, the ban on
crossing a picket line. After ensuing disciplinary proceedings (at
which there was no proof that hyphenates had performed any work
covered by the recently expired
Page 437 U. S. 412
contracts) respondent imposed various penalties on the
hyphenates. Meanwhile, the association and network petitioners
filed charges against respondent for allegedly violating §
8(b)(1)(b) of the National Labor Relations Act, which makes it an
unfair labor practice for a labor organization to restrain or
coerce an employer in the selection of his representatives for the
purposes of collective bargaining or the adjustment of grievances.
After extensive hearings, the Administrative Law Judge made
findings that the hyphenates' regular supervisory duties included
the performance of grievance adjustment; that the employer insisted
that hyphenates return to work, but only to perform supervisory,
not rank-and-file, duties; and that the hyphenates who reported did
only supervisory work and had the authority to adjust grievances,
which they did when the occasion arose. He found that § 8(b)(1)(b)
had been violated because, by keeping hyphenates from work, the
union had deprived the employer of fully effective § 8(b)(1)(b)
representatives. The National Labor Relations Board (NLRB) adopted
these findings and conclusions, found that the union's disciplinary
action was an unfair labor practice under that provision, and
issued a remedial order against respondent. The Court of Appeals
denied enforcement.
Held: Respondent's actions against the hyphenates
violated § 8(b)(1)(b). Pp.
437 U. S. 429-438.
(a) In ruling upon a § 8(b)(1)(b) charge growing out of union
discipline of a supervisory member who elects to work during a
strike, the NLRB must inquire whether the sanction may adversely
affect the supervisor's performance of his collective bargaining or
grievance adjustment tasks, and thereby coerce or restrain the
employer contrary to that provision.
See Florida Power &
Light Co. v. Electrical Workers, 417 U.
S. 790. Pp. 42431.
(b) The NLRB's findings were based on substantial evidence that
the hyphenates were coerced or restrained from reporting to work;
that the employer was thereby deprived of the opportunity to choose
particular supervisors as his collective bargaining or his
grievance adjustment representatives during the strike; and that,
as to the hyphenates who reported to work, there was adequate basis
for concluding that the discipline would adversely affect the
performance of their grievance adjustment duties either during or
after the strike. Moreover, since, as the evidence showed, the
union's policy was not to permit a member to resign during a strike
and for six months thereafter, the employer could not free a
supervisor from further threats of union discipline by requiring
him to leave the union. Pp.
437 U. S.
431-437.
547 F.2d 159, reversed.
Page 437 U. S. 413
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART J.,
filed a dissenting opinion, in which BRENNAN, MARSHALL, and
STEVENS, JJ., joined,
post, p.
437 U. S.
438.
MR. JUSTICE WHITE delivered the opinion of the Court.
The issue in this litigation is whether a labor union commits an
unfair labor practice when it disciplines a member who is a
supervisory employee for crossing the union's picket line during a
strike and performing his regular supervisory duties, which include
the adjustment of grievances.
Respondent Writers Guild of America, West, Inc. (hereafter
respondent), represents persons hired to perform writing functions
for employers engaged in the production of motion pictures and
television films, and, in 1973, had contracts with certain
petitioners that were about to expire. Petitioner in No. 71153 is
the Association of Motion Picture and Television Producers, Inc.,
whose members are engaged in the production of motion pictures and
television films. Petitioner
Page 437 U. S. 414
represents its members in the negotiation and administration of
collective bargaining contracts. The three television networks,
NBC, CBS, and ABC, petitioners in No. 76-1121, are also engaged in
the product.ion of television films, and negotiate and administer
collective bargaining contracts. In March, 1973, respondent engaged
in a strike against both of these groups of petitioners, picketed
the various premises, and issued strike rules that it enforced
against its own members. It is this action which gave rise to this
case.
Among respondent's members are a substantial number of persons
who were engaged by petitioners primarily to perform executive and
supervisory functions, including the selection and direction of
writers and including certain limited writing duties. These persons
are referred to as "hyphenates" and include various categories of
producers, directors, and story editors. [
Footnote 1] Although the primary function of hyphenates
is not to write, they do perform minor writing tasks (referred to
in the contract as "A to H" functions) that are an integral part of
their primary duties and that expressly are not covered by the
contracts between petitioners and respondent. [
Footnote 2]
Page 437 U. S. 415
Only in the event hyphenates are assigned or employed by
petitioners to perform additional writing services are the rates
for such services governed by the collective bargaining contracts
with respondent. In connection with the performance of their
regular, primary duties, which, with the limited exception noted,
do not include writing services, many, but not all, hyphenates are
represented by labor organizations other than respondent. Some of
the contracts between these other organizations and petitioners
contained no-strike clauses when the events involved herein
occurred. Certain hyphenates were pressured by these other labor
organizations to honor these no-strike pledges by reporting to
work.
Respondent, meanwhile, was preparing its own kinds of pressure
to keep the hyphenates from working. In preparation for the strike,
respondent issued and distributed to its members, including the
hyphenates, some 31 strike rules. The rules, among other things,
forbade any act prejudicial to the welfare of respondent such as
conduct tending to defeat a strike or to weaken its effectiveness
(Rule 1); prohibited all members "from crossing a picket line which
is established by the Guild at any entrance" of a struck premises
(Rule 12); forbade the entry of any struck premises for certain
purposes, and required notice to respondent when entry was made for
other purposes (Rule 13); [
Footnote
3] and obliged members to accept picket duty when assigned by
respondent (Rule 28). Another
Page 437 U. S. 416
rule (Rule 30), rescinded midway in the strike, provided that no
member could work with any individual, including the writer
executive, who had violated union strike rules. [
Footnote 4] The strike rules' applicability
to hyphenates was made clear in Rule 24:
"All members, regardless of the capacity in which they are
working, are bound by all strike rules and regulations in the same
manner and to the same extent as members who confine their efforts
to writing."
The rules were widely publicized, and respondent repeatedly
emphasized, orally and in writing, that it would enforce the rules
against hyphenates. Nor could a hyphenate escape those strictures
by resigning, for it was respondent's policy, once the strike was
under way,
Page 437 U. S. 417
not to permit withdrawal from the union, then or for six months
following the completion of negotiations.
Petitioners, however, informed the hyphenates that petitioners'
operations were continuing, and that the hyphenates were expected
to report for work and perform their regular supervisory functions.
Petitioners were careful to assure that hyphenates would not be
requested to perform writing duties covered by the union
contract.
Some hyphenates went to work, informing their employers, as
respondent knew, that they would perform only their primary duties
as producer, director, or story editor. Others refrained from
reporting for work. Between April 6 and November 8, 1973,
respondent notified more than 30 hyphenates who returned to work
that they had been charged with violating one or more of the strike
rules. Most often, the charges related to Rules 1, 12, and 13.
[
Footnote 5] Various
disciplinary trials ensued. In these proceedings, the evidence was
that the hyphenates who returned to duty performed only the normal
functions of the supervisory positions for which they were
employed. There was no proof that hyphenates performed any work
covered by the recently terminated contracts between petitioners
and respondent. As the Administrative Law Judge observed,
respondent "for the most part professed little or no interest in
what kind of work was done during the strike"
Page 437 U. S. 418
by the hyphenates who chose to work. [
Footnote 6] Between June 25 and September 28, 1973,
various penalties were imposed by respondent as the result of these
disciplinary proceedings. The penalties included expulsions,
suspensions, and quite substantial fines. [
Footnote 7]
Meanwhile, the Association and network petitioners had filed
unfair labor practice charges, and the General Counsel of the
National Labor Relations Board had issued complaints against
respondent charging violations of § 8(b)(1)(B) of the National
Labor Relations Act, 61 Stat. 141, 29 U.S.C. § 158(b)(1)(B), which
provides that
"[i]t shall be an unfair labor practice for a labor organization
. . . to restrain or coerce . . . an employer in the selection of
his representatives for the purposes of collective bargaining or
the adjustment of grievances."
Extensive hearings followed, the Administrative
Page 437 U. S. 419
Law Judge ultimately recommending that the charges be sustained
and making findings and conclusions that were adopted by the
National Labor Relations Board.
These findings included an analysis of the primary functions for
which the hyphenates were employed. It was concluded that all of
the producers, directors, and story editors involved were employed
to perform supervisory functions, and were supervisors within the
meaning of § 2(11) of the Act, 29 U.S.C. § 152(11). It was also
found that the hyphenates in each of these categories regularly had
the authority and the task of adjusting grievances. [
Footnote 8]
"It is clear, as has
Page 437 U. S. 420
been found, that the normal performance of the hyphenates'
primary functions involves the adjustment of employee grievances,
and, in the case of producers on distant location, to engage in
collective bargaining with labor organizations. [
Footnote 9]"
Furthermore, the record indicated that,
"during the strike, where the situation arose, the hyphenates
dealt with grievances of employees who worked during the strike,
or, in any event, were available to deal with such matters in their
normal capacities when and if such grievances arose. [
Footnote 10]"
It was also found that the hyphenates who reported for duty
during the strike performed only their primary functions, and did
not engage in writing or do any work that had been covered by
respondent's collective bargaining contract. Significantly, none of
the hyphenates was charged with violating the strike rule
forbidding the performance of writing functions for a struck
employer. During the disciplinary hearings, respondent was "not
concerned with what work the hyphenates did when working during the
strike," [
Footnote 11]
although it would have been quite easy to determine these facts
from testimony of union writers about what work was found completed
upon their return.
Page 437 U. S. 421
The ultimate factual conclusions of the Administrative Law Judge
were that the hyphenates were supervisors "selected by their
employers to adjust grievances"; [
Footnote 12] that, in issuing strike rules and engaging
in other conduct designed to compel the hyphenates to refrain from
working, respondent had
"restrained and coerced the hyphenates from performing
managerial and supervisory services for their employers during the
strike, including the adjustment of employee grievances and
participation in collective bargaining,"
and had thus
"coerced and restrained those employers in the selection of
representatives for collective bargaining and the adjustment of
grievances within the meaning of Section 8(b)(1)(B); [
Footnote 13]"
and that, by charging, trying, and disciplining the hyphenates
who chose to work and who, the Administrative Law Judge found,
"performed managerial and supervisory functions including the
adjustment of grievances on collective bargaining as required, and
did not perform rank and file work,"
respondent "further coerced and restrained the employers" within
the meaning of § 8(b)(1)(B). [
Footnote 14]
In arriving at these conclusions, the Administrative Law Judge
rejected the claim that
Florida Power & Light Co. v.
Electrical Workers, 417 U. S. 790
(1974) (
FP&L), required a contrary result, saying that
respondent's conduct "violated the plain meaning of the statute
without the necessity of resort to statutory exegesis." [
Footnote 15]
On exceptions and supporting briefs, a majority of a
three-member panel of the Board, except in one respect, [
Footnote 16] adopted as its own the
rulings, findings, and conclusions of the Administrative
Page 437 U. S. 422
Law Judge. The Board also reasoned that
FP&L, which
involved supervisors who performed bargaining unit work, did not
extend to cases where union discipline was imposed upon supervisors
who performed only their ordinary supervisorial functions
(including the adjustment of grievances). The Board relied upon two
of its cases decided subsequent to
FP&L: Chicago
Typographical Union No. 16 (Hammond Publishers, Inc.), 216
N.L.R.B. 903 (1975);
New York Typographical Union No. 6,
International Typographical Union, AFL-CIO (Daily Racing Form, a
subsidiary of Triangle Publishers, Inc.), 216 N.L.R.B. 896
(1976).
On application to review by the networks and the Board's
application to enforce, a divided panel of the Court of Appeals for
the Second Circuit denied enforcement in a brief per curiam opinion
indicating that, like the dissenting member of the Board, it
considered
FP&L, supra, to bar the results reached by
the Board in this case. 547 F.2d 159 (1976). We granted the
petitions for certiorari of the Board as well as of the Association
and the networks because of an apparent conflict between the
decision below and decisions in other Courts of Appeals, and
because of the recurring nature of the issue. [
Footnote 17] 430 U.S. 982 (1977).
II
As the Court has set out in greater detail in its comprehensive
review of § 8(b)(1)(b) in
FP&L, the prohibition
against restraining or coercing an employer in the selection of his
bargaining representative was, until 1968, applied primarily to
pressures exerted by the union directly upon the employer
Page 437 U. S. 423
to force him into a multiemployer bargaining unit or otherwise
to dictate or control the choice of his representative for the
purpose of collective bargaining or adjusting grievances in the
course of administering an existing contract. In
San
Francisco-Oakland Mailers' Union No. 18, International
Typographical Union (Northwest Publications, Inc.), 172
N.L.R.B. 2173 (1968), however, the Board applied the section to
prohibit union discipline of one of its member supervisors for the
manner in which he had performed his supervisory task of grievance
adjustment. Although the union
"sought the substitution of attitudes, rather than persons, and
may have exerted its pressures upon the [employer] by indirect,
rather than direct, means,"
the ultimate fact was that the pressure interfered with the
employer's control over his representative. "Realistically, the
Employer would have to replace its foremen or face
de
facto nonrepresentation by them."
Oakland Mailers,
supra at 2173.
The application of the section to indirect coercion of employers
through pressure applied to supervisory personnel continued to
evolve until the
FP&L and
Illinois Bell
[
Footnote 18] cases reached
the Court of Appeals for the District of Columbia Circuit and then
this Court. In each of those cases, the union disciplined
supervisor members who had performed rank-and-file work behind a
union picket line during a strike. In a companion case to
Illinois Bell. [
Footnote 19] upon which
Illinois Bell explicitly
relied, [
Footnote 20] the
Board found an infraction of § 8(b)(1)(B),
Page 437 U. S. 424
broadly construing its purpose "to assure to the employer that
its selected collective bargaining representatives will be
completely faithful to its desires" and holding that this could not
be achieved
"if the union has an effective method, union disciplinary
action, by which it can pressure such representatives to deviate
from the interests of the employer. [
Footnote 21]"
In like fashion, in
FP&L, the Board held that
fining supervisors for doing rank-and-file work during a work
stoppage
"struck at the loyalty an employer should be able to expect from
its representatives for the adjustment of grievances, and therefore
restrained and coerced employers in their selection of such
representatives. [
Footnote
22]"
The Court of Appeals overturned both decisions of the Board,
holding that, although the section could be properly applied to
union efforts to discipline supervisors for their performance as
collective bargaining or grievance adjustment representatives, it
could not reasonably be applied to prohibit union discipline of
supervisors crossing picket lines to perform bargaining unit
work:
"When a supervisor forsakes his supervisory role to do
rank-and-file work ordinarily the domain of nonsupervisory
employees, he is no longer acting as a management representative,
and no longer merits any immunity from discipline."
159 U.S.App. D C., at 286, 487 F.2d at 1157.
This Court affirmed the judgment of the Court of Appeals:
"The conclusion is thus inescapable that a union's discipline of
one of its members who is a supervisory employee can constitute a
violation of § 8(b)(1)(b) only when that discipline may adversely
affect the supervisor's conduct in performing the duties of, and
acting in his capacity as, grievance adjuster or collective
bargainer on behalf of the employer."
417 U.S. at
417 U. S.
804-805.
Page 437 U. S. 425
The Court thus rejected the claim that,
"even if the effect of [union] discipline did not carry over to
the performance of the supervisor's grievance adjustment or
collective bargaining functions,"
it was enough to show that the result would be
"to deprive the employer of the full allegiance of, and control
over, a representative he has selected for grievance adjustment or
collective bargaining purposes."
Id. at
417 U. S. 807.
Assuming without deciding that the Board's decision in
Oakland
Mailers fell within the outer reaches of § 8(b)(1)(b), the
Court concluded that the
Illinois Bell and
FP&L decisions did not, because it was
"certain that these supervisors were not engaged in collective
bargaining or grievance adjustment, or in any activities related
thereto, when they crossed union picket lines during an economic
strike to engage in rank-and-file struck work."
417 U.S. at
417 U. S.
805.
Subsequent to
FP&L, in applying § 8(b)(1)(B) to
cases involving union discipline of supervisor members, the Board
directed its attention, as it understood
FP&L to
require, to the question whether the discipline may adversely
affect the supervisor's conduct in performing his grievance
adjustment or collective bargaining duties on behalf of the
employer. In
Hammond Publishers, supra, and
Triangle
Publishers, supra, the Board held that it was an unfair
practice under § 8(b)(1)(b) for a union to discipline a supervisor
member whose regular duties included the adjustment of grievances
for crossing a picket line to perform his regular functions during
a strike.
See also Wisconsin River Valley Dist. Council (Skippy
Enterprises, Inc.), 218 N.L.R.B. 163 (1975). These cases
rested on the Board's conclusion that such discipline imposed on
the supervisor would have a "carryover" effect and would influence
the supervisor in the performance of his adjustment functions after
the strike, and hence interfere with and coerce the employer in the
choice of his grievance representative.
See Triangle, 216
N.L.R.B. at 897;
Hammond, 216 N.L.R.B. at 904. The
Triangle decision
Page 437 U. S. 426
was not challenged in the courts, but
Hammond was
enforced, 176 U.S.App.D.C. 240, 539 F.2d 242 (1976), as was
Skippy Enterprises, 532 F.2d 47 (CA7 1976). [
Footnote 23]
III
This case was tried to the Administrative Law Judge prior to the
issuance of this Court's decision in
FP&L, but
hearings continued and the record was not closed until after the
Court of Appeals' final decision in that case; and the
FP&L opinion here was handed down on June 24, 1974,
some three months before the Administrative Law Judge issued his
recommended decision. As we have already indicated, the findings of
the Administrative Law Judge, accepted by the Board, were that the
hyphenates' regular supervisory duties included the performance of
grievance adjustment; that the employer insisted that hyphenates
return to work, but only to perform supervisory, not rank-and-file,
duties; [
Footnote 24] and
that the hypenates who reported did only supervisory work and had
the
Page 437 U. S. 427
authority to adjust grievances, which they did when the occasion
arose. [
Footnote 25] After
analyzing this Court's pronouncements in
FP&L, the
Administrative Law Judge rejected the claims that union discipline
of a supervisor member for working during a strike can never be a §
8(b)(1)(B) violation, and went on to hold that, under the test
prescribed by
FP&L, there was a violation here. His
conclusions were that, through its strike rules and other pressures
"designed to compel such hyphenates from going to work during the
strike," regardless of the tasks that they might perform, the union
had
"restrained and coerced the hyphenates from performing
managerial and supervisory services for their employers during the
strike, including the adjustment of employee grievances and
participation in collective bargaining. . . . [
Footnote 26]"
By "coercing or restraining" hyphenates from going in to do
their normal work, which included grievance adjustment, or in the
case of producers, on distant location, the task of collective
bargaining, the union had
"actually coerced and restrained their employers from selecting
those persons as the employers' representatives for the adjustment
of grievances and for collective bargaining during the strike.
[
Footnote 27]"
He also concluded that, by charging, trying, and disciplining
those hyphenates who did report for work, and by "threatening to
blacklist in perpetuity . . . [and] to drive [them] out of the
industry," [
Footnote 28] the
union had coerced and restrained these hyphenates from performing
their regular
Page 437 U. S. 428
duties in the normal manner, including the adjustment of
grievances and collective bargaining. The employer, in turn, had
been further coerced and restrained in the free selection of those
hyphenates as his collective bargaining and grievance adjustment
representatives.
The Administrative Law Judge thus found the section violated
according to the test as elaborated in
FP&L because,
by keeping hyphenates from work, the union had deprived the
employer of any opportunity to select those particular supervisors
as his grievance adjusting or collective bargaining representatives
[
Footnote 29] and because
disciplining and threatening those supervisors who had reported for
duty deprived the employer of fully effective § 8(b)(1)(B)
representatives. Although
Page 437 U. S. 429
the Board embraced these findings and conclusions of the
Administrative Law Judge, [
Footnote 30] it also found that the disciplinary action
taken by the union against those hyphenates who crossed the picket
line was an unfair practice under § 8(b)(1)(B) as that section had
been construed in
Hammond and
Triangle, and that
threats of such illegal discipline against others also violated the
section.
IV
We cannot agree with what appears to be the fundamental position
of the Court of Appeals and the union that, under § 8(b)(1)(B), as
the section was construed in
FP&L, it is never an
unfair practice for a union to discipline a supervisor member for
working during a strike, regardless of the work that he may perform
behind the picket line. The opinion in
FP&L expressly
refrained from questioning
Oakland Mailers or the
proposition that an employer could be coerced or restrained within
the meaning of § 8(b)(1)(B) not only by picketing or other direct
actions aimed at him, but also by debilitating discipline imposed
on his collective bargaining or grievance adjustment
representative. Indeed, after focusing on the purposes of the
section, the Court in
FP&L delineated the boundaries
of when that "carryover" effect would violate § 8(b)(1)(b):
whenever such discipline may adversely affect the supervisor's
conduct in his capacity as a grievance adjustor or collective
bargainer. In these situations -- that is, when such impact might
be felt -- the employer would be deprived of the full services of
his representatives, and hence would be restrained and coerced in
his selection of those representatives.
Furthermore, because this was the test prescribed and employed
by the Court to adjudicate the very situation where
Page 437 U. S. 430
union discipline was imposed for crossing a picket line, it is
unlikely that the Court anticipated that the test could never be
satisfied in such disciplinary cases, that it could never be true
that the sanction could or would affect the supervisor's collective
bargaining or grievance adjustment functions, or that the employer
in such circumstances could never be restrained or coerced in the
selection of his representatives.
This is not to say that every effort by a union to discipline a
supervisor for crossing a picket line to do supervisory, rather
than rank-and-file, work would satisfy the standards specified by
FP&L, or that, on facts present here, there is
necessarily a violation of § 8(b)(1)(b). But we are of the view
that the Board correctly understood
FP&L to mean that,
in ruling upon a § 8(b)(1)(b) charge growing out of union
discipline of a supervisory member who elects to work during a
strike, it may -- indeed, it must -- inquire whether the sanction
may adversely affect the supervisor's performance of his collective
bargaining or grievance adjustment tasks, and thereby coerce or
restrain the employer contrary to § 8(b)(1)(b). The Board addressed
those issues here, and if its ultimate factual conclusions in this
regard are capable of withstanding judicial review, it seems to us
that its construction of the section fairly recognizes and respects
the outer boundaries established by
FP&L, and
represents an "acceptable reading of the statutory language and a
reasonable implementation of the purposes of the relevant statutory
sections."
NLRB v. Iron Workers, 434 U.
S. 335,
434 U. S. 341
(1978).
Respondent objects that this construction of the Act
impermissibly intrudes on the union's right to resort to economic
sanctions during a strike. However, an employer also has economic
rights during a strike, and the statute declares that, in the
unrestrained freedom to select a grievance adjustment and
collective bargaining representative, the employer's rights
dominate. Ample leeway is already accorded to a union in permitting
it to discipline any member, even a supervisor, for
Page 437 U. S. 431
performing struck work -- to carry that power over to the case
of purely supervisory work is an inappropriate extension and
interference with the employer's prerogative. The Board has so
ruled, and, as the Court has often observed,
"'[t]he function of striking [the] balance to effectuate
national labor policy is often a difficult and delicate
responsibility, which the Congress committed primarily to the
National Labor Relations Board, subject to limited judicial
review.'"
NLRB v. Iron Workers, supra, at
434 U. S. 350,
quoting
NLRB v. Truck Drivers, 353 U. S.
87. 96 (1957);
NLRB v. Insurance Agents,
361 U. S. 477,
361 U. S. 499
(1960). Here, in adjudicating as it did the intertwining interests
of union, employer, and supervisor member during an economic
strike, we cannot say that the Board has moved into a new area of
regulation not committed to it by Congress,
ibid., or
conclude that the role assumed by the Board is "fundamentally
inconsistent with the structure of the Act and the function of the
sections relied upon."
American Ship Building Co. v. NLRB,
380 U. S. 300,
380 U. S. 318
(1965);
NLRB v. Iron Workers, supra. [
Footnote 31]
V
We are also unpersuaded that the Board's findings and
conclusions are infirm on any of the grounds submitted. First, it
is urged that there was an insufficient showing and insufficient
findings that any hyphenates were coerced or restrained from
reporting for work. But the Administrative Law Judge carefully
detailed the strike rules that he expressly found were designed and
enforced with the intent of restraining hyphenates from going to
work and from performing the normal duties of their positions,
which included the adjustment of
Page 437 U. S. 432
grievances. [
Footnote 32]
It was also found that the hyphenates were especially vulnerable to
pressure from the union, and that many of them were actually
restrained and prevented from performing their normal duties,
including the adjustment of grievances. These are sufficiently
clear findings that union pressures kept many hyphenates from the
job, and, on the record before us, it approaches the frivolous to
argue that there is insufficient evidence to support them. It also
follows, as the Administrative Law Judge and the Board concluded,
that, as to those hyphenates whom the union kept from work, the
employer was restrained and coerced within the meaning of §
8(b)(1)(B) by being totally deprived of the opportunity to choose
these particular supervisors as his collective bargaining or
grievance adjustment representatives during the strike.
Second, as to those hyphenates who reported for work, it is
strenuously urged that there is no basis for concluding that the
discipline imposed upon them would adversely affect the performance
of their grievance adjustment duties either during or after the
strike. Again, however, we are unwilling to differ with the Board
in these respects. The inquiry whether union conduct would or might
adversely affect the performance of the hyphenates' grievance
adjustment duties is, as petitioners assert, necessarily a matter
of probabilities, and its resolution depends much on what
experience would suggest are the justifiable inferences from the
known facts. This seems to us to be peculiarly the kind of
determination that Congress has assigned to the Board:
"An administrative agency with power after hearings to
Page 437 U. S. 433
determine on the evidence in adversary proceedings whether
violations of statutory commands have occurred may infer within the
limits of the inquiry from the proven facts such conclusions as
reasonably may be based upon the facts proven. One of the purposes
which lead to the creation of such boards is to have decisions
based upon evidential facts under the particular statute made by
experienced officials with an adequate appreciation of the
complexities of the subject which is entrusted to their
administration."
Republic Aviation Corp. v. NLRB, 324 U.
S. 793,
324 U. S. 800
(1945);
Radio Officers v. NLRB, 347 U. S.
17,
347 U. S. 48-49
(1954).
See also NLRB v. Erie Resistor Corp., 373 U.
S. 221,
373 U. S. 227
(1963);
Teamsters v. NLRB, 365 U.
S. 667,
365 U. S. 675
(1961). The Board's findings are "entitled to the greatest
deference in recognition of its special competence in dealing with
labor problems."
American Ship Building Co. v. NLRB, supra
at
380 U. S.
316.
Furthermore, it does not strike us as groundless or lacking
substantial evidence for the Board to conclude on this record that
the discipline imposed would have the necessary adverse effect.
Strike rules were distributed in February; the strikes against the
Association began on March 4 and terminated June 24; the strikes
against the networks began on March 29 and ended on July 12.
Between April 6 and November 8 -- both during and after the strikes
-- some 31 hyphenates who had worked during the strikes were
charged with violating union rules, [
Footnote 33] 15 hearings had been held prior to the
closing of evidence in November, 1973, and from June 25 to
September 28, very substantial penalties were imposed in 10 cases
although 9 have already been reduced on appeal. These penalties
were widely publicized at the time of their imposition.
Page 437 U. S. 434
Other charges were pending and remained to be tried when the
record was closed in this case.
These penalties were meted out at least in part because the
accused hyphenates had complied with the orders of their employers
by reporting for work and performing only their normal supervisory
functions, including the adjustment of grievances, during the
strike. Hyphenates who worked were thus faced not only with
threats, but also with the actuality of charges, trial, and severe
discipline simply because they were working at their normal jobs.
And if this were not enough, they were threatened with a union
blacklist that might drive them from the industry. How long such
hyphenates would remain on the job under such pressure was a matter
no one, particularly the employer, could predict.
Moreover, after the strike, with the writers back at work, the
hyphenates who had worked during the strike still faced charges and
trials or were appealing large fines and long suspensions. At the
same time, they were expected to perform their regular supervisory
duties and to adjust grievances whenever the occasion demanded,
functions requiring them to deal with the same union which was
considering the appeal of their personal sanctions. As to these
supervisors, who had felt the union's wrath, not for doing
rank-and-file work contrary to union rules, but for performing only
their primary supervisory duties during the strike, and who were in
a continuing controversy with the union, it was not untenable for
the Board to conclude that these disciplined hyphenates had a
diminished capacity to carry out their grievance adjustment duties
effectively. and that the employer was deprived of the full range
of services from his supervisors. [
Footnote 34] Such a hyphenate
Page 437 U. S. 435
might be tempted to give the union side of a grievance a more
favorable slant while the threat of discipline remained, or while
his own appeal of a union sanction was pending. At the very least,
the employer could not be certain that a fined hyphenate would
willingly answer the employer's call to duty during a subsequent
work stoppage, particularly if it occurred in the near future.
[
Footnote 35] For an
employer in these circumstances to insure having satisfactory
collective bargaining and grievance adjustment services would
require a change in his representative.
As the Board has construed the Act from
Oakland Mailers
to
Triangle, Hammond, and the cases now before us, such a
likely impact on the employer constitutes sufficient restraint and
coercion in connection with the selection of collective bargaining
and grievance adjustment representatives to violate
Page 437 U. S. 436
§ 8(b)(1)(B). In
FP&L, the Court declined the
invitation to overrule
Oakland Mailers, and we do so
again. Union pressure on supervisors can affect either their
willingness to serve as grievance adjustors or collective
bargainers, or the manner in which they fulfill these functions;
and either effect impermissibly coerces the employer in his choice
of representative. [
Footnote
36]
Third, it is further urged that union discipline could not
adversely affect a supervisor's later performance of his §
8(b)(1)(B) duties because the employer could require him to leave
the union, and thus free himself from further threats of union
discipline. This submission has little force in this case, since,
as the Administrative Law Judge found, the union's known policy was
not to permit a member to resign during a strike and for a period
of six months thereafter. For the entire period to which the
Board's findings were addressed, hyphenates could not terminate
their membership, and the
Page 437 U. S. 437
employer's only recourse would have been to replace them as his
grievance representatives.
Carried to its logical end, this submission is simply another
argument that union sanctions applied to supervisor members who
work during a strike can never violate § 8(b)(1)(B), because the
employer could always insist that his supervisors either terminate
union affiliation or face discharge. Yet, as we have noted, the
test posited by this Court in
FP&L plainly recognizes
the possibility of a § 8(b)(1)(B) violation arising from union
fines imposed during a strike. Moreover, if the argument were to be
accepted, indirect pressures on the employer by sanctioning
supervisor members for the manner in which they perform their
grievance adjusting function (as in
Oakland Mailers) would
never be a violation, because the supervisor could, at the
employer's request, escape from union threats and sanctions. The
Board's construction of the Act is to the contrary, however, and,
as we have said, we are not prepared at this juncture to override
it. [
Footnote 37]
Page 437 U. S. 438
Because we have concluded that the Board's construction of §
8(b)(1)(b) is not an unreasonable reading of its language or
inconsistent with its purposes, and because we cannot say that the
Board's findings lacked substantial evidence, we must reverse the
judgment of the Court of Appeals.
So ordered.
* Together with No. 76-1153,
Association of Motion Picture
& Television Producers, Inc. v. Writers Guild of America, West,
Inc., et al.; and No. 76-1162,
National Labor Relations
Board v. Writers Guild of America, West, Inc., et al., also on
certiorari to the same court.
[
Footnote 1]
Executive producers, with the help of producers and associate
producers, have the primary responsibility for the production of
films for motion pictures or for television. The responsibility
begins with the idea or concept for the film or the series, and
carries through to the post-production stages after filming.
Directors are in personal charge of the principal photography of
the film. They are responsible for the employment of crew and
actors, and effectively direct such employees. Story editors, story
consultants, script consultants, executive story editors, and
executive story consultants principally assist the producer in the
highly important function of dealing with scripts and writers. They
have individual judgment, initiative, and responsibility, and their
tasks are clearly supervisory. Approximately 80 hyphenate members
of respondent were principally employed as producers of one kind or
another, approximately 15 were directors, and another 15 were in
the story editor category.
[
Footnote 2]
The finding of the Administrative Law Judge in this regard
was:
"The important point is that, when these executives and
supervisors perform those functions excluded from the Respondent's
bargaining agreements, they thereby perform functions which the
parties have acknowledged do not constitute work reserved to
Respondent's non-hyphenate members under the agreements, but rather
are accepted as a normal part of the duties and responsibilities of
the executives and supervisors (as hereinabove discussed) employed
by the employers involved."
(Footnote omitted.) App. to Pet. for Cert. in No. 76-1162, p.
35a. The contract provided that performance of any "A to H" writing
"shall not constitute such person a writer hereunder."
Id.
at 33a.
[
Footnote 3]
Rule 13 provided:
"Members are prohibited from entering the premises of any struck
producer for the purpose of discussion of the sale of material or
contract of employment, regardless of the time it is to take
effect. Members are also prohibited from entering the premises of
any struck producer for the purpose of viewing any film. . . .
[S]hould a member find it necessary to visit the premises of a
struck producer for any reason apart from the foregoing, he should
inform the Guild in advance of the nature of such prospective
visit."
Id. at 36a-37a.
[
Footnote 4]
Rule 30 provided:
"No member shall work with any individual, including a
writer-executive who has been suspended from Guild membership by
reason of his violation of strike rules, or has been found by the
Council to have violated strike rules, in the event no disciplinary
action was instituted against such person."
Id. at 38a.
After the issuance of the initial complaint in this case, Rule
30 was rescinded by respondent in a letter to all of its members,
which stated, among other things, that.
"because the old rule could be misconstrued to mean that the
Guild was maintaining an improper sanction, a matter of anathema to
this Guild, the Board of Directors rescinded old Rule 30. . .
."
The assessment of the Administrative Law Judge was:
"In particular, by threatening to blacklist in perpetuity such
hyphenates who worked during the strike, the rules threatened to
drive these hyphenates out of the industry. Though the mandatory
effect of the rule was rescinded . . . there are other indications
that Respondent's actions encourage a voluntary blacklist. . . .
[T]he fact is that Respondent did suggest it, and it is now
impossible to disentangle the consequences flowing from its
actions."
Id. at 69a-70a.
[
Footnote 5]
The Administrative Law Judge found that a typical notice of
charges against a hyphenate contained the following:
"Specifically, you are charged with: (1) having crossed the
Guild's picket lines . . . during the months of March, April, May
and June, 1973, without having informed the Guild in advance of the
nature of your business with said company and without having
obtained a Guild pass to enter said premises; (2) having during the
months of March, April, May and June, 1973, rendered services for .
. . a company against whom the Guild was at such times on strike;
and (3) refusing to perform picket duties during the strike after
having been requested to do so by representatives of the
Guild."
Id. at 45a. (Footnote omitted.)
[
Footnote 6]
Id. at 43a-44a. Respondent, through counsel, took the
position at the disciplinary hearings that the hyphenates charged
were subject to discipline simply for crossing respondent's picket
line, whether or not they crossed for the purpose of performing
bargaining services for a struck employer. Respondent held that
charges would properly lie even against hyphenates who had given
assurances not to perform any writing services for a struck
employer.
[
Footnote 7]
The Administrative Law Judge noted the penalties against 10 of
the hyphenates charged and tried:
"Two were expelled from membership and fined $50,000 each; one
was expelled from membership and fined $10,000; one was suspended
from membership for 2 years and fined $10,000; one was suspended
for 2 years and fined $7,500; one was suspended for 3 years and
fined $5,000; one was expelled from membership and fined $2,000;
one was expelled and fined $100; and one was suspended for 2 years
and fined $100. These penalties received wide publicity in the
local press and trade papers. The appeals of nine of these men has
[
sic] been voted upon by Respondent's membership at a
special meeting, and the penalties were drastically reduced.
Apparently all remaining actions with respect to discipline of
hyphenate members for working during the strike are now being held
in abeyance pending resolution of these cases."
Id. at 46a.
[
Footnote 8]
The Administrative Law Judge found:
"The producer has substantial responsibility and authority in
adjusting grievances between directors and craft employees,
directors and actors and actresses, between two or more actors or
actresses, and in other similar situations. Producers also have
responsibility and authority to adjust grievances involving
writers, as in the case of disputes between writers and story
editors."
Id. at 26a. Executive producers supervise one or more
producers, and associate producers assist the producer.
"Without distinguishing among them in detail, it is clear on
this record that persons occupying these positions in the motion
picture or television industries have the authority to hire,
terminate, and responsibly direct other employees, and to adjust
employee grievances, or to effectively recommend such action, and
are thus supervisors within the meaning of Section 2(11) of the
Act."
Id. at 27a.
With respect to directors, the Administrative Law Judge
determined that they
"hire or effectively recommend the employment of crew and
actors, effectively direct such employees, and may discharge or
effectively recommend the discharge of employees. They have
authority to and do adjust grievances of such employees. It is
found that persons performing the functions of director in the
television and motion picture industries are supervisors and adjust
grievances of employees within the meaning of the Act."
Id. at 28a.
Story editors supervise writers in the development of ideas and
the preparation of scripts. They interview and recommend the hiring
of new writers, and advise the producer concerning writers who
should not be retained.
"On a television series, the story editor may participate with
the producer in the initial determination of any dispute over
screen credits. He also may serve as a buffer between management
and the writer, as in ameliorating a writer's distress over
material that has been rewritten. . . ."
"
* * * *"
"On the basis of the entire record, it is found that those
persons in the television and motion picture industries performing
the functions of story editor, story consultant, script consultant,
executive story editors, and executive story consultants are
supervisors and adjust grievances of employees within the meaning
of the Act."
Id. at 29a-30a.
[
Footnote 9]
Id. at 57a.
[
Footnote 10]
Id. at 60a.
[
Footnote 11]
Id. at 59a
[
Footnote 12]
Id. at 62a.
[
Footnote 13]
Ibid.
[
Footnote 14]
Id. at 63a.
[
Footnote 15]
Ibid.
[
Footnote 16]
The Board held that there had been a violation with respect to
certain hyphenates in addition to those in the categories of
producer, director, and story editor.
[
Footnote 17]
In
Chicago Typographical Union No. 16 v. NLRB, 176
U.S.App.D.C. 240, 539 F.2d 242 (1976), the Court of Appeals for the
District of Columbia Circuit enforced the Board's order in
Hammond Publishers, relied on by the Board in this case.
In
Wisconsin River Valley Dist. Council v. NLRB, 532 F.2d
47 (1976), the Court of Appeals for the Seventh Circuit also took a
position seemingly at odds with the judgment under review here. The
issue is also a recurring one before the Board.
[
Footnote 18]
IBEW, Local 14 v. NLRB, 159 U.S.App.D.C. 242, 487 F.2d
1113,
rev'd on rehearing en banc, 159 U.S.App.D.C. 272,
487 F.2d 1143 (1973),
refusing to enforce IBEW, Local 14,
192 N.L.R.B. 85 (1971) (
Illinois Bell),
and IBEW
Systems Council U-4, 193 N.L.R.B. 30 (1971)
(
FP&L).
[
Footnote 19]
Local Union No. 2150, IBEW, and
Wisconsin Electric
Power Co., 192 N.L.R.B. 77 (1971).
[
Footnote 20]
"We find no discernible difference between the two cases, and
for the reasons set forth in that case, we find that, in the
instant case, the Union violated Section 8(b)(1)(b). . . ."
Illinois Bell, 192 N.L.R.B. at 86.
[
Footnote 21]
Id. at 78.
[
Footnote 22]
193 N.L.R.B. at 31.
[
Footnote 23]
In
Hammond and
Skippy, the supervisor also
performed some rank-and-file work during the strike. The Board in
Hammond characterized the amount of rank-and-file work as
minimal, and only incidental to the supervisory functions, but in
Skippy, the supervisor performed rank-and-file work for
about 30% of his time. In light of the finding that the supervisors
performed no rank-and-file writing in this case, we are not
presented with that element of the Board's reasoning in
Hammond and
Skippy.
[
Footnote 24]
We note also respondent's argument that the limited writing
duties -- the A-to-H functions -- normally performed by the
hyphenates should be considered rank-and-file work within the
meaning of
FP&L. The Administrative Law Judge gave
careful attention to the issue, and concluded to the contrary, App.
to Pet. for Cert. in No. 76-1162, p. 59a, and the Board accepted
his findings and conclusions in this respect. We also find them
unexceptionable. The dissenting Board member did not premise his
opinion on the A-to-H issue. We thus do not have here the situation
where the disciplined supervisor has performed not only supervisory
duties, including grievance adjustment, but also has done some
rank-and-file tasks.
See Hammond and
Triangle,
and also
Wisconsin River Valley.
[
Footnote 25]
It is suggested that there was insufficient proof t hat the
hyphenates who actually engaged in grievance adjustment of any kind
during the strike. But the findings were to the contrary; and, in
any event, there is no question that they were authorized to do so,
and were available for that purpose when and if the occasion arose.
Section 8(b)(1)(B) obviously can be violated by attempting
coercively to control the choice of the employer's representative
before, as well as after, the representative has actually dealt
with the grievance.
[
Footnote 26]
App. to Pet. for Cert. in No. 76-1162, p. 62a.
[
Footnote 27]
Id. at 64a.
[
Footnote 28]
Id. at 69a.
[
Footnote 29]
The Administrative Law Judge reasoned as follows in support of
his conclusion.
"To illustrate: a person performing the function of a director
acts in a managerial or supervisory capacity, which normally
includes the adjustment of grievances of actors, actresses, craft
employees and others. One occupying the position of a producer
normally has a similar capacity and similar duties with respect to
employee grievances. In addition, if the film is being shot on
distant location, the producer has authority to negotiate on the
spot agreements with local unions. Thus, when Respondent prevented
or sought to prevent, such hyphenate members from going to work in
their managerial and supervisory capacities as producers and
directors during the strike, Respondent obviously coerced and
restrained their employers in the selection of those specific
producers and directors for the purpose of collective bargaining
and the adjustment of grievances of employees working during the
strike within the plain meaning of the statute. Similarly, those
persons employed as story editors or in like classifications
perform executive functions normally, and appear to have done so
during the strike, in which the record indicates they were engaged
as supervisors and actual or potential representatives of their
employers for the adjustment of grievances. Respondent, by coercing
or restraining persons in these classifications from going in to do
their normal work thereby actually coerced and restrained their
employers from selecting those persons as the employers'
representatives for the adjustment of grievances and for collective
bargaining during the strike."
Id. at 63a-64a. (Footnote omitted.)
[
Footnote 30]
It is suggested by respondent that the Board did not fully adopt
the approach of the Administrative Law Judge, but it is plain that,
with the single exception noted above, the Board adopted all of the
findings and conclusions of the Administrative Law Judge.
[
Footnote 31]
The Board's decision holding the union responsible under §
8(b)(1)(b) for the foreseeable course and consequences of its
actions is not inconsistent with
Teamsters v. NLRB,
365 U. S. 667
(1961), and
NLRB v. News Syndicate Co., 365 U.
S. 695 (1961). The holding does not rest on any
assumption that the union will act illegally in the future.
[
Footnote 32]
The findings were also that:
"The record is convincing that Respondent, well aware of the
primary supervisory, management, and executive functions of its
hyphenate members, drafted its strike rules and enforced them with
the intent of compelling those hyphenate members from going to work
during the strike, without regard to the capacity in which they
performed or the work done."
App. to Pet. for Cert. in No. 76-1162, p. 69a.
[
Footnote 33]
Violations of Rules 1, 12, 13, and 28 were alleged.
See
supra at
437 U. S. 415,
437 U. S. 416,
437 U. S. 417,
and n. 3.
[
Footnote 34]
In determining that the Board had exceeded the limitations of
the statute in the
FP&L and
Illinois Bell
cases, the Court of Appeals for the District of Columbia
Circuit recognized that, when a supervisor acts as a grievance
adjustor,
"he is a representative of management, and, as such, he should
be immune from union discipline. The unions participating in the
present cases conceded as much at oral argument when they agreed
that, when a supervisor crosses a picket line to perform
supervisory work, he remains immune from discipline. . . . The
dividing line between supervisory and nonsupervisory work in the
present context is sharply defined and easily understood."
159 U.S.App.D.C. at 286, 487 F.2d at 1157.
As the Court of Appeals for the Seventh Circuit said:
"[W]here supervisors cross picket lines to perform rank-and-file
struck work, union discipline does not violate Section 8(b)(1)(b),
since it merely deprives the employer of services normally rendered
by strikebreaking replacement employees."
Skippy Enterprises, 532 F.2d 47, 53 (1976). On the
other hand,
"Where supervisors cross picket lines to perform regular
supervisory duties, union discipline violates Section 8(b)(1)(b),
since it tends to deprive the employer of its supervisors' services
-- including their § 8(b)(1)(b) services -- and because the
supervisors would reasonably anticipate that union discipline would
also be imposed if future performance of their § 8(b)(1)(b)
functions did not meet with union approval."
Ibid. .
[
Footnote 35]
Union discipline might even result in depriving the employer of
the supervisors' services forever if the blacklist involved in this
case had been successful. The employer would have had no choice but
to let the hyphenate go, since the positions of director, producer,
and script editor unavoidably require working with rank-and-file
writers.
[
Footnote 36]
In the
FP&L and
Illinois Bell cases, the
Court of Appeals for the District of Columbia Circuit noted that
its consistent view has been that the
"basic rationale [of
Oakland Mailers] is consistent
with the purposes of Section 8(b)(1)(b). . . [for] management's
right to a free selection would be hollow indeed if the union could
dictate the manner in which the selected representative performed
his collective bargaining and grievance adjustment duties."
159 U.S.App.D.C. at 282, 283, 487 F.2d at 1153, 1154. The court
also noted its agreement with
New Mexico District Council of
Carpenters and Joiners of America (A. S. Horner, Inc.), 177
N.L.R.B. 500 (1969),
enf'd, 454 F.2d 1116 (CA10 1972),
where a union member worked as a supervisor for a company which had
no contract with the union. 159 U.S.App.D.C. at 284 n.19, 487 F.2d
at 1155 n.19. A fine imposed in these circumstances violated the
section because compliance by the supervisor with the union's
demands would have required his leaving his job, and thus have "the
effect of depriving the Company of the services of its selected
representative for the purposes of collective bargaining or the
adjustment of grievances." 177 N.L.R.B. at 502. The Court of
Appeals said that
A. S. Horner "thus falls close to the
original rationale of § 8(b)(1)(b), which was to permit the
employer to keep the bargaining representative of his own
choosing." 159 U.S.App.D.C. at 284 n.19, 487 F.2d at 1155 n.19.
[
Footnote 37]
It is also argued that, at the very least, the Board erred with
respect to director hyphenates, because there is no evidence and no
finding that directors ever dealt with writers or adjusted their
grievances, even if producers and story editors did. Hence, it is
alleged that union discipline of directors could not possibly
affect their adjustment of writers' grievances during or after the
strike, for the simple reason that they had none to adjust. But
during the strike, no supervisor, writer, director, producer, or
story editor had writer grievances to adjust -- at least no new
grievances -- because there were no writers on the job, and only
the possibility that there might be replacements or a few
strikebreakers. Nevertheless, directors, as well as others, had
adjustment duties with respect to other employees. The
Administrative Law Judge found that directors
"hire or effectively recommend the employment of crew and
actors, effectively direct such employees, and . . . have authority
to and do adjust grievances of such employees."
App. to Pet. for Cert. in No. 76-1162, p. 28a. Directors'
willingness to work and to perform these duties subjected them to
sanctions and financial loss, making them less than completely
reliable and effective employer representatives for the duration of
the strike, and less likely to perform any supervisory task during
future strikes. A union may no more interfere with the employer's
choice of a grievance representative with respect to employees
represented by other unions than with respect to those employees
whom it itself represents.
International Organization of
Masters, Mates and Pilots, International Marine Division, 197
N.L.R.B. 400 (1972),
enf'd, 159 U.S.App.D. C. 11, 14, 486
F.2d 1271, 1274 (1973),
cert. denied, 416 U.S. 956 (1974),
and
International Organization of Masters, Mates and Pilots v.
NLRB, 539 F.2d 554, 559-560 (CA5 1976). We note also that all
hyphenates, including directors, were threatened with a permanent
blacklist -- a refusal by other Guild members, including producers,
other directors, and story editors, as well as writers, to work
with the offending director -- and that revocation of the formal
rule on April 30 did not completely remove the threat. Because of
his central role, refusal to work with a director means refusal to
participate at all in a particular film. The union thus threatened
a strike by all of its members against the employer who permitted
director hyphenates to work, plainly an independent violation of §
8(b)(1)(b). The Administrative Law Judge found that, of the 15
union members employed as directors by petitioners, 3 were charged
with strike rule violations, and 1 was brought before a trial panel
and disciplined. App. to Pet. for Cert. in No. 76-1162, p. 29a.
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, and MR. JUSTICE STEVENS join, dissenting.
The Court holds today that a labor union locked in a direct
economic confrontation with an employer is powerless to impose
sanctions on its own members who choose to pledge their loyalty to
the adversary. Nothing in § 8(b)(1)(B) or any other provision of
the National Labor Relations Act permits such a radical alteration
of the natural balance of
Page 437 U. S. 439
power between labor and management. I therefore respectfully
dissent.
A union's ability to maintain a unified front in its
confrontations with management and to impose disciplinary sanctions
on those who "adher[e] to the enemy in time of struggle" are
essential to its survival as an effective organization.
See Summers, Legal Limitations on Union Discipline, 64
Harv.L.Rev. 1049, 1066 (1951). An employer also has an interest in
securing the loyalty of those who represent him in dealings with
the union, and that interest is protected by specific provisions of
the Act. [
Footnote 2/1] Thus, as
the Court observed in
Florida Power & Light Co. v.
Electrical Workers, 417 U. S. 790
(
FP&L), very real concerns are raised on both sides
when supervisory employees with collective bargaining and grievance
adjustment responsibilities are also union members. But 8(b)(1)(B)
is not "any part of the solution to the generalized problem of
supervisor member conflict of loyalties." 417 U.S. at
417 U. S.
813.
That statutory provision was enacted for the primary purpose of
prohibiting a union from exerting direct pressure on an employer to
force him into a multiemployer bargaining unit or to dictate his
choice of representatives for the settlement of employee
grievances. S.Rep. No. 105, 80th Cong., 1st Sess., pt. 1, p. 21
(1947). The Court in
FP&L reserved decision on whether
union pressure expressly aimed at affecting the manner in which
supervisor members performed their collective bargaining or
grievance adjustment functions might
Page 437 U. S. 440
fall within the "outer limits" of the proscription of §
8(b)(1)(b). 417 U.S. at
417 U. S. 805.
See San Francisco-Oakland Mailers' Union No. 18 (Northwest
Publications, Inc.), 172 N.L.R.B. 2173. But it flatly rejected
the argument that union discipline aimed at enforcing uniform rules
violated § 8(b)(1)(B) simply because it might have the ancillary
effect of
"depriv[ing] the employer of the full allegiance of, and control
over, a representative he has selected for grievance adjustment or
collective bargaining purposes."
417 U.S. at
417 U. S.
807.
In the present cases, it is entirely clear that the union had no
interest in restraining or coercing the employers in the selection
of their bargaining or grievance adjustment representatives, or in
affecting the manner in which supervisory employees performed those
functions. As the Court notes,
ante at
437 U. S.
417-418, and n. 6, the union expressed no interest at
the disciplinary trials in the kind of work that was done behind
its picket lines. Its sole purpose was to enforce the traditional
kinds of rules that every union relies on to maintain its
organization and solidarity in the face of the potential hardship
of a strike.
Cf. NLRB v. Allis-Chalmers Mfg. Co.,
388 U. S. 175,
388 U. S.
181-184.
In reversing the judgment of the Court of Appeals, this Court
today forbids a union from disciplining a supervisor member who
crosses its picket line -- who clearly gives "aid and comfort to
the enemy" during a strike,
see Summers,
supra,
at 1066 -- solely because that action may have the incidental
effect of depriving the employer of the hypothetical grievance
adjustment services of that particular supervisor for the duration
of the strike. This ruling quite simply gives the employer the
superior right to call on the loyalty of any supervisor with
grievance adjustment responsibilities [
Footnote 2/2] whenever
Page 437 U. S. 441
the union to which the supervisor belongs calls him out on
strike. In short, the Court's decision prevents a union with
supervisory members from effectively calling and enforcing a
strike. [
Footnote 2/3]
Nothing in § 8(b)(1)(B) permits such a sweeping limitation on
the choice of economic weapons by unions that include supervisory
employees among their members. On the contrary, as the Court
clearly held in
FP&L, supra, an employer's remedy if
he does not want to share the loyalty of his supervisors with a
union is to insist that his supervisory personnel not belong to a
union; or. if he does not welcome the consequences of his
supervisors' union membership. he may legally penalize them for
engaging in union activities,
see 437
U.S. 411fn2/1|>n. l,
supra, or "resolv[e] such
conflicts as arise through the traditional procedures of collective
bargaining."
FP&L, supra at
417 U. S. 813.
[
Footnote 2/4]
The sole function of § 8(b)(1)(B) is to protect an employer from
any union coercion of the free choice of his bargaining or
grievance adjustment representative. In prohibiting union
interference in his choice of representatives for dealings with the
union, this statutory provision does not in any
Page 437 U. S. 442
way grant him a right to interfere in the union's relationship
with its supervisor members. [
Footnote
2/5] The statute leaves the balance of power in equipoise. The
Court's decision, by contrast, tips it measurably in favor of the
employer at the most delicate point of direct confrontation, by
completely preventing the union from enlisting the aid of its
supervisor members in a strike effort. It seems to me that the
Court's reading of § 8(b)(1)(B) is "fundamentally inconsistent with
the structure of the Act and the function of the sections relied
upon."
American Ship Building Co. v. NLRB, 380 U.
S. 300,
380 U. S.
318.
Accordingly, I would affirm the judgment of the Court of
Appeals.
[
Footnote 2/1]
This interest is protected by § 2(3) of the National Labor
Relations Act, which excludes "supervisors" as defined in § 2(11)
from the definition of "employees," thereby excluding them from the
coverage of the Act. Thus, an employer may discharge or otherwise
penalize a supervisory employee for engaging in what would
otherwise be protected concerted activity under the Act. In
addition, § 14(a) of the Act provides that "no employer . . . shall
be compelled to deem . . . supervisors as employees for the purpose
of any law . . . relating to collective bargaining."
See
Florida Power & Light Co. v. Electrical Workers,
417 U. S. 790,
417 U. S.
808-811.
[
Footnote 2/2]
Since the power to adjust employee grievances is one of the
statutory indicia of supervisory status under § 2(11) of the Act,
many, if not most, supervisory employees will fall within the
Court's ruling when they are "restrain[ed] . . . from going to work
and from performing the normal duties of their positions, which
includ[e] the adjustment of grievances."
Ante at
437 U. S.
431-432.
[
Footnote 2/3]
Under this rule, it would appear that a separate union
consisting entirely of supervisory employees would commit an unfair
labor practice if it ordered its members not to cross the picket
lines of another union, or indeed, if it called an economic strike
entirely on its own, since the employer would thereby be deprived
of the services of his chosen grievance adjustment
representatives.
[
Footnote 2/4]
Alternatively, the employer may ease the dilemma of his
supervisory employees by offering to provide their defense or to
indemnify them against any fines that might be imposed by the union
for a breach of strike discipline. Several of the employers in this
case did in fact extend such offers to the hyphenates.
See
decision of the Administrative Law Judge, App. to Pet. for Cert. in
No. 76-1162, p. 42a.
[
Footnote 2/5]
In
San Francisco-Oakland Mailers Union No. 18 (Northwest
Publications, Inc.), 172 N.L.R.B. 2173, the Board found a
violation of § 8(b)(1)(b) when a union expelled member foremen for
allegedly assigning bargaining unit work in violation of the
collective bargaining agreement. It reasoned that the employer's
statutory right to choose his bargaining representative would be
rendered illusory if the union could effectively control the
actions of any individual who happened to occupy the position. I
adhere to the view expressed by the Court in
FP&L, 417
U.S. at
417 U. S. 805,
that this ruling is, at best, within the "outer limits" of §
8(b)(1)(b).