INTERNATIONAL BROTHERHOOD OF ELEC. WKRS. v. NLRB, No. 71-1559

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: MacKINNON, Circuit , with whom TAMM, ROBB and WILKEY, Circuit , join, dissenting
• Citation: 487 F.2d 1143
• 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. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS 641, 622, 759, 820 and 1263, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Florida Power & Light Company, Intervenor.
• Decision Date: 29 June 1973
• Docket Number: No. 71-1559,71-1712.

487 F.2d 1143 (1973)

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, and Local 134, International Brotherhood of Electrical Workers, AFL-CIO, Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS 641, 622, 759, 820 and 1263, Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
Florida Power & Light Company, Intervenor.

Nos. 71-1559, 71-1712.

United States Court of Appeals, District of Columbia Circuit.

Reargued January 23, 1973.

Decided June 29, 1973.

Certiorari Granted January 21, 1974.

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Laurence J. Cohen, Washington, D.C., for petitioners in No. 71-1559

Seymour A. Gopman, Miami Beach, Fla., for petitioners in No. 71-1712.

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

Ray C. Muller, Miami, Fla., for intervenor in No. 71-1712.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

Certiorari Granted January 21, 1974. See 94 S.Ct. 913.

J. SKELLY WRIGHT, Circuit Judge:

These cases were consolidated and heard en banc to resolve an important question of first impression arising under the National Labor Relations Act: Does a union commit an unfair labor practice under Section 8(b)(1)(B), 29 U.S.C. § 158(b)(1)(B) (1970), by disciplining supervisor-members for crossing a picket line and performing rank-and-file struck work during a lawful economic strike against the company? The National Labor Relations Board answered the question in the affirmative and issued cease and desist and other orders against the unions involved.¹ We reverse, deny enforcement of the Board's orders, and remand both cases to the Board with instructions to dismiss the complaints.

Although the issue, as stated above, is a legal question of statutory construction, we think it helpful to have a full understanding of the factual context in which the issue arose in the two cases before us.

Florida Power & Light Co., No. 71-1712

The Florida Power & Light Company has, since 1953, maintained a collective bargaining agreement with the International Brotherhood of Electrical Workers, AFL-CIO, through the union's System Council U-4 comprising the local unions involved in this case.² There was no provision in the collective bargaining agreement requiring employees to become members of the union as a condition of employment, and union membership was accordingly voluntary. Section 14(a) of the Act, 29 U.S.C. § 164(a) (1970),³ provides that an employer shall not be compelled to deem supervisors as employees for the purpose of collective bargaining. In addition, Section 2(3)⁴ exempts supervisors, as defined in Section 2(11),⁵ from the definition

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of "employee" in the Act, thereby depriving supervisors of the protections of the Act and permitting an employer to refuse to hire union members as supervisors⁶ and to refuse to engage in collective bargaining with its supervisors.⁷ Florida Power chose not to exercise its rights under these sections and recognized the union as the exclusive bargaining representative for many of its supervisory employees. They were considered part of the bargaining unit and their wages and conditions of employment were set out in the bargaining agreement

Other higher ranking supervisors were not represented by the union for collective bargaining purposes and did not have their wages and conditions of employment determined by the collective bargaining agreement. These included supervisors in the positions of District Supervisor, Assistant District Supervisor, Assistant Supervisor, Plant Superintendent, Plant Supervisor, Assistant Plant Superintendent, Distribution Assistant, Results Assistant, Assistant Plant Engineer, Substation Supervisor, and some miscellaneous supervisory classifications. The company, however, also permitted these higher ranking supervisors, many of whom had attained high ranking supervisory status after passing through the rank and file and through lower bargaining unit supervisory classifications, to maintain their union membership. It is with these high ranking supervisors who, though union members, were not represented by the union for collective bargaining purposes that the present case is concerned.⁸

Although their wages and conditions of employment were not negotiated for them by the union, these supervisors nevertheless received substantial benefits from union membership. In particular, union membership in good standing gave them the right to participate in the System Council Death Benefit Fund⁹ and made them eligible for pension, disability, and death benefits under the terms of the International's constitution.¹⁰

A small number of the supervisors involved in this case were union members who paid no dues because they had obtained withdrawal cards from the union. Some had apparently obtained "honorary" withdrawal cards, under the terms of which the member did not actively participate in the union and did not pay monthly dues. The card constitutes a

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valuable benefit, however, as it permits the holder, in the event he loses his supervisory position and returns to the rank and file, to return to active membership without paying the initiation fee normally required of new members, simply by returning the withdrawal card and resuming payment of dues. It was the practice of the System Council Death Benefit Fund to permit supervisors who had obtained honorary withdrawal cards to continue their participation in the Fund. Other supervisors had apparently obtained "participating" withdrawal cards. Under the International constitution, these members could not actively participate in the union, but continued to pay a monthly fee equal to normal monthly dues, and therefore continued to remain eligible for pension, death, and disability benefits.¹¹

All union members, including those on withdrawal cards,¹² bore certain obligations under the union's constitution, which provides that "any member may be penalized for committing any one or more" of 23 listed offenses. The offenses most relevant to the present case are "(10) Working in the interest of any organization or cause which is detrimental to, or opposed to, the I.B.E.W." and "(21 Working for any individual or company declared in difficulty with a local union or the I.B.E.W., in accordance with this Constitution." In the collective bargaining agreement, however, the union made certain concessions with respect to union discipline of supervisor-members. The contract provides:

"* * * It is further agreed that employees in supervisory classifications have definite management responsibilities and are the direct representatives of the Company at their level of work. Employees in these classifications and any others in a supervisory capacity are not to be jacked up or disciplined through Union machinery for the acts they may have performed as supervisors in the Company\'s interest. The Union and the Company do not expect or intend for Union members to interfere with the proper and legitimate performance of the Foreman\'s management responsibilities appropriate to their classification. * * *"

From October 22, 1969 through December 28, 1969, the union was engaged in an economic strike against the company, and the local unions maintained picket lines at nearly all of the company's operational facilities. Many supervisor-members crossed the picket lines and performed rank-and-file struck work—that is, work normally performed by nonsupervisory employees when no strike is in progress.¹³ Whether they crossed the picket line at the request of the company or totally of their own volition is not revealed in the record. The union brought charges for violations of the union's constitution, and those found guilty of crossing the picket line to perform rank-and-file struck work received fines of from $100 to $6,000. Most were also expelled from the union, thereby losing their right to continue participating in the System Council Death Benefit Fund. By expulsion they were also deprived of the membership in good standing which was a prerequisite for receiving pension, disability, or death benefits under the International constitution.¹⁴

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The Board found that in so disciplining supervisor-members the union violated Section 8(b)(1)(B) because the fines "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." Int. Brhd of Electical Wkrs System Council U-4, 193 NLRB No. 7 (slip opinion at 6) (1971). Accordingly, the Board ordered the union to cease and desist, rescind all fines, expunge all records of disciplinary proceedings, restore union membership, restore eligibility in all benefit plans, and post appropriate notices.

Illinois Bell Telephone Co., No. 71-1559

The Illinois Bell Telephone Company and its predecessors have, since 1909, maintained a contractual relationship with Local 134, International Brotherhood of Electrical Workers, AFL-CIO. Illinois Bell, like Florida Power, chose not to exercise its right under Sections 2(3), 2(11), and 14(a) of the Act to refuse to hire union members as supervisors. The union was recognized as the exclusive bargaining representative, not only for rank-and-file journeymen and apprentice employees, but also for employees within certain supervisory categories, including General Foreman, P. B.X. Installation Foreman, and Building Cable Foreman. These supervisors, as well as rank-and-file members of the bargaining unit, were required to become and remain members of Local 134 under the terms of a union security clause...