INTERNATIONAL BRO. OF ELECTRICAL WORKERS v. NLRB

• Decision Date: 22 September 1972
• Docket Number: No. 71-1559,71-1785.,71-1559
• Citation: 487 F.2d 1113
• Parties: INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, and Local 134, International Brotherhood of Electrical Workers, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. BELL SUPERVISORS PROTECTIVE ASSOCIATION (not a labor organization), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

487 F.2d 1113 (1972)

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, and Local 134, International Brotherhood of Electrical Workers, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

BELL SUPERVISORS PROTECTIVE ASSOCIATION (not a labor organization), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 71-1559, 71-1785.

United States Court of Appeals, District of Columbia Circuit.

Argued March 9, 1972.

Decided September 22, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. Laurence J. Cohen, Washington, D.C., and Mr. Robert E. Fitzgerald, Jr., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, for petitioners in No. 71-1559.

Mr. George B. Christensen, Chicago, Ill., for petitioner in No. 71-1785.

Mr. Daniel M. Katz, Atty., N.L.R.B., with whom Messrs. Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Deputy Asst. Gen. Counsel, N.L.R.B., were on the brief, for respondent.

Before WRIGHT and MacKINNON, Circuit Judges, and MATTHEWS,^* Senior District Judge for the District of Columbia.

MacKINNON, Circuit Judge:

Illinois Bell Telephone Company (hereinafter referred to as the Company or the Employer) and its predecessors have maintained a contractual relationship with Local 134, International Brotherhood of Electrical Workers, AFL-CIO (hereinafter referred to as Local 134) since 1909. Local 134 represents the Company's Chicago workers in the "Plant Department," including not only journeymen and apprentices employed as P.B.X.¹ installers but also persons employed as "P.B.X. Installation Foremen," "Building Cable Foremen," and "General Foremen."² Under Article III, Section 1 of the collective bargaining agreement between Local 134 and the Company, which was in effect at all times relevant to the instant case, all members of the bargaining unit, including the above-mentioned foremen, were required to become and remain members of Local 134 within thirty days of the commencement of their employment.³

Between May 8, 1968, and September 20, 1968, Local 134 engaged in an economic strike against the Company. At the inception of this strike, the Company informed the foremen that it would like to have them come to work during the work stoppage, but it told them that the decision whether to work or to respect the strike was a matter left to the personal discretion of each individual foreman. The Employer indicated that those who chose not to work would not be penalized. On the other hand, a Local 134 representative warned the foremen, at a union meeting held immediately before the strike, that they would be subject to union discipline if they performed rank-and-file work⁴ during the strike. In response to this warning, several foremen formed the Bell Supervisors Protective Association (hereinafter referred to as the Association), and through it they retained counsel to protect the rights of those foremen who chose to work during the strike. The Association also planned to encourage other Company foremen to report to work during the work stoppage.

During the course of the strike, some of the foremen reported to work and performed rank-and-file work, while other foremen chose to honor the strike and stayed away from work. After the strike, the Company in no way discriminated against the latter group, and it indeed promoted some of them to higher positions. Local 134, however, carried out its pre-strike warning and conducted disciplinary proceedings against a number of foremen.⁵ Local 134 imposed fines of $500 on each foreman who performed rank-and-file work during the strike, and it imposed fines of $1,000 each on the five foremen who were instrumental in the formation of the Association. Most of the foremen who were fined exercised their right under the constitution of the International Brotherhood of Electrical Workers, AFL-CIO (hereinafter referred to as the International Union) to appeal from the disciplinary action of Local 134?€”first to the International Union Vice President, and then to the International Union President. The appellants contended that Local 134's imposition of fines upon them was illegal, and they asserted that the contractual union-security provision which required them to be members of Local 134 was similarly unlawful. Of those foremen who appealed, three had their appeals sustained on the ground that the charges against them had not been timely filed. Three others had their appeals disqualified based upon the procedural ground that their appeals were untimely. The other appellants had their disciplinary fines upheld. Local 134 has commenced suit in the Illinois courts to collect some of the fines. Insofar as any of the foremen have paid any part of the fines, the Company has reimbursed them.

In June of 1969, the Association filed an unfair labor practice charge with the National Labor Relations Board (Labor Board or N.L.R.B.), alleging that Local 134 and the International Union had violated section 8(b)(1)(B) of the National Labor Relations Act, as amended (N.L.R.A.),⁶ by fining the Company foremen because of their performance of rank-and-file work during the 1968 strike and by fining the five foremen who were instrumental in the formation of the Association. A complaint was issued pursuant to this charge, and a hearing relating thereto was held before Trial Examiner Frederick Reel. The first three days of hearings were devoted exclusively to the section 8(b)(1)(B) issue. However, on the afternoon of the fourth and final day of hearings, as the hearings were about to be closed, counsel for the Association offered a motion to amend the complaint "to Conform Pleading i. e., the complaint to Proof." The Association indicated that the collective bargaining agreement which contained the union-security provision had been admitted into evidence as part of the section 8(b)(1)(B) case, and it argued that this provision was in clear violation of section 8(a) (3)(i) of the N.L.R.A., since it covered a bargaining unit which included both "employees" and "supervisors."⁷

The counsel for the General Counsel of the Labor Board did not join in or consent to the Association's motion to amend the complaint.⁸ The Trial Examiner noted that the identical legal contention presented by the Association had previously been rejected by the General Counsel,⁹ and he decided that it would not be appropriate to permit such an amendment under the circumstances of the case before him. He noted that "the amendment offered by the Association would of necessity add factual allegations to the complaint as well as new N.L.R.A. subsections to the list of those violated."¹⁰ The Trial Examiner pointed out that the Association was seeking the invalidation of a contractual provision which had been in existence for many years, and he emphasized the fact that cases which had been recently before the Labor Board itself had involved such union-shop arrangements without evoking any intimation that the Board found anything irregular in them. In finally concluding that it would be "inadvisable" to permit the Association's amendment, the Trial Examiner said that he doubted "the wisdom of deciding so far reaching a question which enters this litigation only by the back door, as it were."¹¹ The N.L.R.B. sustained this determination.

The Labor Board concluded, in agreement with the Trial Examiner, that the Company foremen in question were "supervisors" within the meaning of section 2(11) of the Act,¹² at all times relevant to the case. It also affirmed the determination that such foremen were "Employer representatives" within the meaning of section 8(b)(1)(B) of the Act.¹³ The Labor Board finally concurred in the Trial Examiner's conclusion that both unions?€”Local 134 and the International Union¹⁴?€”had restrained and coerced the Company in the selection of its collective bargaining and grievance adjustment representatives, in violation of section 8(b)(1)(B), by disciplining foremen/members for performing rank-and-file work during the 1968 strike and by fining foremen/members because of their action in forming the Association. A cease and desist order was issued, and the two unions were affirmatively ordered to rescind and expunge all records of the fines imposed upon the foremen in violation of section 8(b)(1)(B) of the N.L.R.A.; to reimburse the foremen for any portions of their fines already paid; to advise each such foreman in writing that the fines have been rescinded and that the records pertaining thereto have been expunged; and to post appropriate notices.

The two unions and the Association petitioned this court for review of the Labor Board's decision, and the N.L.R.B. filed a cross-application for enforcement of its order. We affirm the decision of the Labor Board insofar as it pertains to the section 8(b)(1)(B) determination and the denial of the Association's request to amend the complaint. However, while enforcement of the Board's remedial order against Local 134 is granted in full, we believe that the remedial order against the International Union must be modified to reflect its proper measure of unfair labor practice responsibility.

I

Section 8(b)(1)(B) of the N.L. R.A. prohibits union coercion or restraint of an employer "in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances".¹⁵ This provision, of course, clearly proscribes direct union interference with an employer's selection of his section 8(b)(1)(B) representatives.¹⁶ However, as the Labor Board and several courts, including this one, have recently recognized, it also has much broader application. It prohibits indirect union restraint or coercion of an employer, accomplished through the imposition of discipline upon the employer's representatives for actions performed by them within the general scope of their supervisory or managerial responsibilities. Although the unions involved in the instant case have challenged this latter ...