NLRB v. Local 2150, International Bro. of Elec. Wkrs.

• Decision Date: 13 July 1973
• Docket Number: No. 71-1864.,71-1864.
• Citation: 486 F.2d 602
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, and Wisconsin Electric Power Company, Intervenor, v. LOCAL 2150, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

486 F.2d 602 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, and Wisconsin Electric Power Company, Intervenor, v. LOCAL 2150, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Respondent.

No. 71-1864.

United States Court of Appeals, Seventh Circuit.

Argued November 29, 1972.

Decided July 13, 1973.

Rehearing Denied August 6, 1973.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Daniel M. Katz, Atty., N. L. R. B., Washington, D. C., for petitioner.

Robert H. Gorske, Milwaukee, Wis., for intervenor.

Alan M. Levy, Milwaukee, Wis., for respondent.

Before KILEY and CUMMINGS, Circuit Judges, and ESCHBACH,¹ District Judge.

Rehearing En Banc Denied August 6, 1973.

CUMMINGS, Circuit Judge.

The National Labor Relations Board found that the Union² violated Section 8(b)(1)(B) of the National Labor Relations Act by disciplining certain company supervisors for performing bargaining unit work during the Union's economic strike. This case arises on the Board's application for enforcement of its order issued pursuant to that finding. The Board's decision and order are reported at 192 NLRB No. 16.

Since the 1930's the Company and the Union have enjoyed a collective bargaining relationship. When their then current two-year contract expired on June 16, 1969, the Union initiated an economic strike which continued until July 1, 1969. During the strike all the Company's supervisors in the categories of those disciplined save one, who was hospitalized at the time, reported for work. The record contains no suggestion that the Company gave the supervisors an option to choose not to cross the picket line.³ Following the strike the Union preferred charges against 60 supervisors (including the hospitalized one) for doing struck work.⁴ All but two of these were holders of union withdrawal cards. A withdrawal card entitles the holder to a very qualified union membership as explained below. After a trial at which none of the charged supervisors appeared, the Union found all guilty except for the hospitalized supervisor and one of the two who did not possess a withdrawal card. The other supervisor not retaining a withdrawal card had his discipline nullified upon appeal to the International Union. The Union imposed on each guilty supervisor a $100 fine and a year's suspension. This sentence was to be suspended on condition that the supervisors were not found guilty of a similar offense for a period of two years, which period extended beyond the expiration of the new collective bargaining agreement.

None of the supervisors here involved were members of the bargaining unit, and the Union did not represent them in bargaining with the Company. Nevertheless, the collective bargaining agreement in force prior to the strike provided that upon an employee's promotion to a supervisory position the Union would give him a withdrawal card if he so requested. Union withdrawal cards are either of the honorary or participating type. Some supervisors involved here held the former; others the latter. Both types carry an exemption for the holder from the dues obligation to the Union and entitle the holder to regain regular membership without fulfilling normal reinstatement requirements. In addition, the holder of the participating withdrawal card is entitled to participate in the pension and insurance benefits of the Union's International Affiliate upon the payment of certain fees. Withdrawal cardholders are denied all other benefits of membership including even the right to attend union meetings, but are subject to the Union's constitution.

The Board agreed with the Trial Examiner that all 60 of the concededly statutory supervisors⁵ possessed the authority to adjust grievances and were representatives of the Employer within the meaning of Section 8(b)(1)(B). The Union does not contest this finding. With Member Fanning dissenting, a three-member majority of the Board panel concluded that the Union violated Section 8(b)(1)(B) when it disciplined the supervisors for crossing the picket line and performing struck work. Relying on the general principles of law defining the thrust of Section 8(b)(1)(B) as enunciated in Lithographers Locals 15-P and 272 (The Toledo Blade Co., Inc.), 175 NLRB 1072, 1080, enforced, 437 F.2d 55 (6th Cir. 1971), which principles the Board found long settled in its decisions and the courts', the Board reasoned:

"Here the supervisors, by doing struck work, as directed, by the Employer, were furthering the interests of the Employer in a dispute not between the Union and the supervisor-union members but between the Employer and the Union. During the strike of the Union, the Employer clearly considered its supervisors among those it could depend on during this period. The Union\'s fining of the supervisors who were acting in the Employer\'s interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors. Thus, the fines, if found to be lawful, would now permit the Union to drive a wedge between a supervisor and the Employer, thus interfering with the performance of the duties the Employer had a right to expect the supervisor to perform. The Employer could no longer count on the complete and undivided loyalty of those it had selected to act as its collective-bargaining agents or to act for it in adjusting grievances. Moreover, such fines clearly interfere with the Employer\'s control over its own representatives.

"Of course, our decision is not meant to imply that a union is completely precluded from disciplining supervisor-union members. It only means that when the underlying dispute is between the employer and the union rather than between the union and the supervisor, then the union is precluded in taking disciplinary action by Section 8(b)(1)(B). The intent is to prevent the supervisor from being placed in a position where he must decide either to support his employer and thereby risk internal union discipline or support the union and thereby jeopardize his position with the employer. To place the supervisor in such a position casts doubt both upon his loyalty to his employer and upon his effectiveness as the employer\'s collective-bargaining and grievance adjustment representative. The purpose of Section 8(b)(1)(B) is to assure to the employer that its selected collective-bargaining representatives will be completely faithful to its desires. This cannot be achieved if the union has an effective method, union disciplinary action, by which it can pressure such representative to deviate from the interests of the employer. Accordingly, we find that Section 8(b)(1)(B) has been violated."⁶

Section 8(b)(1)(B) of the Labor-Management Relations Act (29 U.S.C. § 158(b)(1)(B)) provides: "It shall be an unfair labor practice for a labor organization or its agents * * * to restrain or coerce * * * an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." The Union raises three principal arguments against the Board's decision that discipline of supervisor-members for performing struck work for the Employer was prohibited by this Section. First, the Union urges that the Section should be interpreted literally so as only to prohibit unions from "restraining or coercing employers—not supervisors—in the selection of representatives for bargaining or grievance adjustment process." Second, it argues that even if Section 8(b)(1)(B) does prohibit union restraint or coercion against employers through the imposition of discipline on supervisor-members (who are concededly representatives of the employer) for their exercise of management responsibilities, it does not reach disciplinary action taken against these persons for their performance of struck work. Third, it contends that the Supreme Court's decision in National Labor Relations Board v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123, demonstrates that the Union's exertion of internal discipline against any members for crossing its picket lines is not restraint or coercion within the meaning of Section 8(b)(1)(B).

Each of these arguments was raised and rejected in International Brotherhood of Electrical Workers v. National Labor Relations Board, 487 F.2d 1113 (D.C. Cir. 1972).⁷ In that case also, the union disciplined supervisors who performed rank-and-file work during an economic strike. We are persuaded by much of Judge MacKinnon's reasoning and consider it largely dispositive of the arguments the Union makes on the facts of this case.⁸ Although we shall not traverse in detail the same ground he has so thoroughly covered, because the panel in the District of Columbia Circuit was so sharply divided, we shall briefly respond to the Union's arguments and address what we believe to be the critical points of difference between the majority there and Judge Wright in dissent.

The Union's literal interpretation argument was squarely rejected by the Board in San Francisco-Oakland Mailers No. 18, 172 NLRB 2173 (1968). In that case the union brought charges against certain supervisor-members for alleged contract violations including the use of an assistant foreman to repair a machine and the permitting of non-union members to do bargaining unit work, and the union fined the supervisors for contempt when they failed to appear before the executive committee. In finding a violation of Section 8(b)(1)(B), the Board stated:

"* * * Respondent\'s actions * * * were designed to change the Charging Party\'s representatives from persons representing the viewpoint of management to persons responsive or subservient to Respondent\'s will. In enacting Section 8(b)(1)(B) Congress sought to prevent the very evil involved herein—union interference with an employer\'s control over its own representatives. Footnote omitted. That Respondent may have sought the substitution of attitudes rather than persons, and may have exerted its pressure upon the Charging Party

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