AMERICAN BROADCASTING COS. v. WRITERS GUILD
Legal provision: National Labor Relations, as amended
Argument of Norton J. Come
Chief Justice Warren E. Burger: We will hear arguments next in 76-1121 and the two consolidated cases, American Broadcasting against the Writers Guild and others.
Mr. Come, you may proceed whenever you are ready.
Mr. Norton J. Come: Mr. Chief Justice and may it please the Court.
This case is here on certiorari to the Second Circuit which by a divided vote to night enforcement of the boards order against the respondent Union Writers Guild of America West.
Three petitions to review the Second Circuit’s judgment were filed.
One by the Board, one by the three major television broadcasting companies and one by the Association of Motion Picture and Television Producers.
This Court granted the three petitions and consolidated them for purposes of hearing and decision.
I am speaking for the Board and will be followed by counsel for the other two petitioners.
This case presents another facet of the problem which was before this Court in Florida Power decided in 1974.
There the Court held that the union does not violate Section 8 (b) (1) (B) of the National Labor Relations Act which makes it an unfair labor practice for a union to restrain or coerce an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances by disciplining supervisor members for crossing a picket line to perform rank-and-file struck work during an economic strike against the employer.
The question here is, whether a different conclusion is warranted where the supervisor members are disciplined or threatened with discipline for crossing the picket line to perform their normal supervisory duties, which includes grievance adjustment or collective bargaining.
Now, the relevant facts are these.
Respondent, Writers Guild represents for collective bargaining purposes, writers, who prepare scripts for a motion picture and television firms and who are employed by the major television Net broadcasting companies and by various member firms of the Association of Motion Picture of Producers.
I refer to both of them as the employers.
The employers also employ producers, directors and story editors to manage and carry out the production of the films.
The producers, directors and story editors when acting as such, are supervisors as defined in Section 211 in the Act and they also represent the employers in the adjustment of grievances and in certain situations producers also represent the employers in collective bargaining.
Some producers, directors and story editors, known as hyphenates and those are the people that we are going to be concerned with in this case, have writing capabilities and are at times employed as writers to prepare scripts or perform other creative writing functions.
These hyphenates are members of the Guild.
The Guild represents hyphenates only when they are employed as writers, not when they are employed as producers, directors or story editors.
Most hyphenates have personal service contracts with the employers covering their employment as producers, directors or story editors and indeed, under these contracts, they are often represented by other labor organizations.
Thus the collective bargaining agreements between the Guild and the employers provide that a person is not subject to those agreements when he is employed in a non-writing capacity, for example, as a producer, director or a story editor.
The agreements further provide that producers, directors and story editors can perform certain editorial writing services known as “"A through H"” functions without becoming a writer subject to the agreements.
Now, in March of 1973, the Guild began a strike against the employers in furtherance of their demands for new contracts covering writers.
The strike continued against some employers until July of 1973.
A month before the strike started, the Guild distributed strike rules to all union members, including the hyphenates.
In addition to prohibiting writing for struck employers, the rules prohibited all members, regardless of the capacity in which they were working from crossing union picket lines.
The strike rules also prohibited union members from working in the future with members who violated the strike rules.
The Guild through a series of special meeting with hyphenate members and phone calls to particular hyphenates, emphasized that the strike rules would apply to hyphenates working in any capacity and that they would be subject to discipline and black listing if they cross the union’s picket lines.
The Guild also refused to allow any members, including hyphenates to resign from membership before or during the strike.
The employers demanded that the hyphenates continue, notwithstanding the strike in the picket lines to perform their duties other than as a writer under their personal service contracts.
Many hyphenates crossed the picket lines to perform their normal supervisory and managerial functions as producers, directors and story editors, including grievance adjustment and collective bargaining.
They performed no writing work, which would otherwise have been performed by the striking writers.
During and after the strike, the Guild filed the internal union charges against 31 hyphenates for crossing the picket lines, 10 hyphenates were subsequently convicted by union trial committees.
They were suspended or expelled from union membership and were fined amounts ranging from a $100.00 to $50,000.00.
Later, the union membership voted to reduce the penalties of 9 of the convicted hyphenates and proceedings against other hyphenates were held in abeyance, pending the disposition of unfair labor practice charges which mean, were filed by the employers with the Board.
The Board with member fanning dissenting concluded that the Guild violated Section 8 (b) (1) (B) of the Act by disciplining and threatening to discipline the hyphenates for crossing the picket line to perform their normal supervisory duties and the a divided Court of Appeals agreeing with member offending the night enforcement of the Board’s order.
Now, we start with Florida Power, which holds that a unions’ discipline of one of its members who is a supervisory employee can constitute a violation of Section 8 (b) (1) (B) only when that discipline may adversely affect the supervisors' conduct in performing the duties of and acting in his capacity as grievance suggester or collective bargainer on behalf of the employer.
The discipline in Florida Power was found not to have this effect because the supervisors were disciplined for crossing the picket line to engage in rank-and-file struck work.
Indeed the union did not discipline those supervisors who merely performed their supervisory duties when they crossed the picket line.
The Board submits that when a supervisor member is threatened with discipline or discipline for crossing a picket line to perform his normal supervisory or management duties and they include grievance adjustment and collective bargaining, such discipline may adversely affect the supervisors’ conduct in performing the duties of grievance adjuster or collective bargainer on behalf of the employer, even though the union’s motive is not to influence a particular grievance or collective bargaining decision, but merely to secure adherence to its picket line.
There are two reasons for this conclusion.
One is referred to or can be called the deprivation theory and that is this, as the administrative law judge whose decision was adopted by the Board pointed out, if the hyphenates had succumbed to the Guilds’ threats of discipline as many of them did and had refused to cross the picket lines, the employers would have been deprived of their chosen representatives for the performance of management functions, including grievance adjustment or collective bargaining for the duration of the strike, no less and if the union had directly pressured the employers into removing those representatives from those duties.
In short, the effect of the threat of discipline would have been to have deprived the employers of their chosen representatives for grievance adjustment and collective bargaining.
Justice John Paul Stevens: Mr. Come, is it not reasonable to infer that the picket line itself may have had that effect?
Mr. Norton J. Come: That is correct Your Honor.
Where the picket line alone is in the picture and the supervisor decides that he is not going to cross that picket line, the employer is deprived of a selected representative because of the free decision of the supervisor to honor or not to honor that picket line.
However, we submit that where the supervisor honors that picket line as a result of threats of union discipline, the element of restraint and coercion on the part of the union has been added and it is up to the union to disentangle that he would not have crossed, but for that restraint and coercion, and we submit that the union cannot do that.
Moreover, as the Board added by the citation of its earlier decisions in Hammond Publisher and Triangle Publications in so far as those hyphenates who defied the union and were disciplined or concerned there is a reasonable likelihood that the discipline would have a carryover effect and affect the future performance of grievance adjustment and collective bargaining functions because hereon like the performance of rank-and-file struck work, which was involved in Florida Power, the duties, which the supervisors were performing, were similar to the functions that they would be performing absent the strike.
I do not want to cut in any further to my colleague’s time.
They will develop these theories in further detail.
Chief Justice Warren E. Burger: Mr. Keaton.
Argument of Harry J. Keaton
Mr. Harry J. Keaton: Mr. Chief Justice and may it please the Court.
In the time allotted to me, I would like to cover primarily two contentions in this case.
The first one being the contention of the Guild, the respondent herein, that in some ways of work done by the hyphenates, whatever you might call it and they do not call it struck work in their briefs, they call it rank-and-file work without using the word struck, that in some ways, that work, put the work on a pie is a work that this Court held in Florida Power to be of the nature, the Section 8 (b) (1) (B) should not apply.
The second point that I would like to address myself, is that, Mr. Come referred to as a deprivation theory in somewhat more detail.
As to the first point that the three-throng argument being made by the Guild at this point.
It comes down to this.
Number one, while there concededly is no evidence in the court, that any writing of scripts was done by any of the people who were disciplined, they might have done writing.
Number two, that the “"A through H"” functions are to be construed as bargaining unit type writing and number three, that even if the “"A through H"” functions are not bargaining unit writing, they are not managerial functions, and that therefore, the performance of such functions is not akin to grievance related type work, and therefore, the supervisors could be disciplined.
Now, taking the first point, namely yes to whether or not they might have done the right thing, the fact of the matter is that the Guild very well knew or at least very well could find out, whether they were writing.
There were 15 strike rules in this case, which provide specifically prohibition against writing.
Not one of them was invoked by the Guild, not a single one.
One of those rules, rule 8 is very significant because it specified that any writer in order to perfect himself and that includes of course rank-and-file writers, to protect themselves against future charges, should file with Guild his scripts that he had completed at the time of the strike in order to make quite sure that he will be able prove that he had not written during the strike.
The respondent’s exhibit six which is not in the printed transcript which is a multi-colored script it is in the Court, will illustrate to the Court that it is very easy to tell from a script when the final script was written and when the changes were made, and therefore, it would have been quite easy for the Guild to tell whether or not that work was done.
Now, turning to “"A through H",” the Guild analogizes in “"A through H"” to the Shelton Construction Company case, the Shelton Pipeline case, wherein the B representative was held not immune from discipline because he was offering equipment which he had also operated at times when there was a labor shortage, but that case is precisely the opposite from this case because in that collective bargaining agreement, operating equipment was covered by the contract, by so many words, and then the contract said, in the case of an emergency of the purposes of training, a supervisor may operate the equipment not so if you are “"A through H".”
The contract specifically states in sections 1 (b) (1) (A) and in 1 (c) (1) (A), that the performance of “"A through H"” functions by producers, directors or story supervisors, shall not be covered by this agreement and shall not cause them to become writers hereunder.
So, what you really have is not collective bargaining unit work that may be done by supervisors, but work that is not covered by the contract which if you perform it, does not make you a bargaining unit employee, but which conceivably at times could be performed by bargaining unit employees.
But now comes the most important point, namely the argument that “"A through H"” supposedly is not managerial.
Let us examine what “"A through H"” is and if the Court please, I will give examples of it, some of them are in the record and some of them are just common sense.
The first A says, cutting for time.
Now, what does it mean?
It means deleting a portion of a movie or a television play in order to make it shorter, in order to accommodate the time for the screen, that is certainly a managerial decision.
B is bridging.
That means, tying up two pieces of the movie, if you will, due to the elimination of the intervening piece.
C is a change in technical or stage direction.
Need I say more, direction?
D is the assignment of lines to existing characters due to cast changes, directors do not make those assignments, managers do.
E are changes for legal clearances, done by executives at the request of the legal department according, in the transcript, the testimony of Mr. Middleman, pages 1307 to page 1311 at the association exhibit 9.
Now, the casual minor adjustments in dialog covered under F, again there is an example given.
Medical terminology used by a writer, which happens to be erroneous, so they call a doctor, the doctor says the diagnosis is all wrong and they change the name of the illness from one to another, again, done by management.
G are changes necessitated by unforeseen events.
An example is in the transcript at page 204 to 205.
What happened to us, that they had to change the names of streets from New York City to Los Angeles and H finally, by its own language, which is clearly managerial work.
It is instructions, directions or suggestions, oral or written to a writer.
All of this work is about as managerial as it can be and the interesting distinction is that if you take a look at the lowest level of bargaining unit work, namely the so called rewrite that is carefully defined in the agreement, and you can get motion picture credit for doing a rewrite.
You can do all the “"A through H"” in the world without getting any motion picture credit, there is no credit for that, but on a rewrite, that sure is a credit, pages 239 to 240 B and C.
The Writer's Guild contends here as the last resort on this issue --
Justice John Paul Stevens: Mr. Keaton, can I ask my question about the “"A through H"?”
You say it is all clearly managerial?
Mr. Harry J. Keaton: Yes sir.
Justice John Paul Stevens: And you have described it?
Is it also not true that is all clearly managerial work that it has nothing to do with the selection of an agent to do any grievance or collective bargaining?
Mr. Harry J. Keaton: That is not entirely correct Your Honor.
We are not relying on the "A through H" functions at the establishing the 8 (b) (1) (B) capacities of the supervisors, but anyone of the steps taken in "A through H" that I described to you might very well lead to a grievance and indeed a grievance of a writer, because most of them involve scripts to illustrate Your Honor if I may.
Writers have the privilege, in fact the contractual right to watch the screening of the final cut of a movie and if that time the writer finds that the picture did not come out the way he hoped it would, he may very well raise a grievance with the associate producer who made the cuts on the picture and may say to him, I do not like the way you did this ending, you deleted a hundred feet of footage that I had in there which was my beautiful idea and now, it is a sad ending instead of a happy one.
Justice Potter Stewart: Well, Mr. Keaton that is a very, very broad implication in your answer to my brother Stevens.
Any action of any foreman, any time and anywhere in any industry can lead to grievance on the part of the employee and is that the test?
Mr. Harry J. Keaton: No Your Honor, that would not be the test, but if the person who is making the decision also has the authority to adjust that grievance, that would be the test.
Justice John Paul Stevens: So, he does not get that authority pursuant to "A through H", does he?
Mr. Harry J. Keaton: No sir, he does not.
He does it by virtue of his position.
Justice John Paul Stevens: And he adjusts the grievance which he creates by his own --?
Mr. Harry J. Keaton: He might.
He might very well and I might also say that the physical change of a movie in cutting for instance might occur because the editor has made the cut who is a person who is not the hyphenate.
There are hyphenate editors in this case.
Now, to turn briefly to the deprivation theory if I may, I think that the Guild, first of all I think we should dispose of an item if it is of concern at all here, namely the contention of both the Guild and amicus, that there was in some way, nothing that could be brought before this Court own the deprivation theory because it was not part of the Board's decision.
In the court below, in the District Court of Appeals, in its reply brief, the Guild argued exactly the opposite.
At page 4 of that brief, the Guild stated, just as it did the Board’s brief writer, the association seeks to justify the decision below in this case on the basis of the rationale of later decided both decisions.
There was only one basis, upon which a violation was found here, namely, that the Guild's discipline kept the employers from utilizing the services of 8 (b) (1) (B) supervisors during the strike, not as a subsequent decision in other cases, rationalized that the discipline would carry over to the supervisors’ future 8 (b) (1) (B) functions.
The Guild is now arguing exactly the opposite in this Court, that this was not the basis of the Board decision and only the future function about the basis.
The answer of course is both are.
Now, in terms of the question of whether or not the statute was violated here, I do not think we have to get involved with such things as Oakland Mailers because what we really have is the other simple preposition.
We have people who were told, unlike in Florida Power, if you come to work in any capacity, including of course 8 (b) (1) (B) capacities, we will fine you, we will discipline you, we will expel you and you cannot resign, all those things were said and to answer further the question that Mr. Justice Stevens asked of Mr. Come, I do not think that a union can fall back on what might well be a legal picket line, if at the same time that the picket line is up, it is threatening people and coercing people and telling them, if you do cross over a picket line, we will punish you.
Anymore, than this Court would hold illegal, that if a union has gone to an employer and said to him, we would like you cease dealing with another employer that this picket line that was subsequently established would in some way be immunized because the employer may have exited because of the unions’ voluntary request, rather than the illegal secondary boycott under the 8 (b) (4) (B).
I think the analogy is very much the same.
Now, what really have here is very simple.
The union in effect is saying, you must not use these supervisors.
It means we eliminate the supervisors.
They cannot be designated.
If they cannot be designated, you have a clear violation of the statute itself and you have the violation, just as surely as the union had put up a picket line to prevent the hiring of a supervisor or the use of a designated representative of the employer for purposes of collective bargaining.
It is precisely the case of Congress was talking about in the legislative history.
Senator Taft, I believe said, do not send us Mr. Y and send us Mr. X, Mr. Y as being excluded in this case.
The union will argue, they could resign, in fact the AFL-CIO does, not so.
They were not allowed to resign.
In fact, they were deactivated, and the decisions of this Court aim on the 8 (b) (1) (A) and I recognize 8 (b) (1) (A) is not applicable because the supervisors are not protected, but the decisions of this Court under 8 (b) (1) (A) themselves indicate very clearly that even there discipline would not be lawful if there is not any right to resign at some point.
Since I want to reserve a little time for a rebuttal for Mr. Come, I would like to conclude on a couple of points.
By deactivating and keeping the supervisors as (Inaudible) members in effect the employers were being given two choices.
Either, do not use the supervisors during the strike, in other words, do not designate them as 8 (b) (1) (B) representatives and there was plenty of work going on, the record is full of it, scripts were being written and scripts were available, scripts have been finished, there are lots of them in the record and no other union must strike, either, do not use them during the strike or if you do, we are going to expel them, find them, and punish them and you will never be able to use them again because nobody will work with them and you cannot be a producer without the writers.
Those were the choices given in effect to management and the other point I wanted to make is that the only way that the decision of the Court of Appeals can be sustained is this Court were to ask to the statute the provision, this Section shall be inapplicable in the event of a strike.
Chief Justice Warren E. Burger: Very well, Mr. Keaton.
Argument of Charles G. Bakaly
Mr. Charles G. Bakaly: Mr. Chief Justice and may it please the Court.
I would like to say one thing about the "A through H."
It is clear that "A through H" was not struck work.
Struck work, is work which would have been done by the bargaining unit employees, but for the strike.
The "A through H" work is never done by the employees.
It is done only by the producers, the associate producers and the story consultants and so forth.
So that, it is clear that "A through H" cannot be struck work.
I would like to talk a moment about it.
Justice Potter Stewart: But it is not equally clear that it is not itself either a collective bargaining or the processing of grievances?
Mr. Charles G. Bakaly: Well, I would agree.
Justice Potter Stewart: Not in and off itself?
Mr. Charles G. Bakaly: I would agree what Mr. Keaton said about that, but the authority for grievance handling and collective bargaining is in the record apart from "A through H."
Justice John Paul Stevens: But "A through H" activity is a bridging or amending to meet the legal department’s objections or cutting or whatever, it is not collective bargaining or the processing of grievances, in and off itself?
Mr. Charles G. Bakaly: In and off itself, I would agree with that.
Now, let me talk about the adverse carryover theory of the Board for liability of the union in this case and that theory started with Florida Power.
In Florida Power, the Court said, a union discipline of one of its members who is a supervisor employee can constitute a violation of 8 (b) (1) (B) only when that discipline may adversely affect the supervisor's conduct in the performance of the duties of and acting in his capacity as grievance suggester or collective bargainer on behalf of the employer.
Now, that is where we start and in this case, we have tremendous conduct on the part of the Guild which Judge Moore in the Second Circuit characterizes in terrorem conduct to adversely affect the supervisors in the future.
Not only, are we talking about the fines of up to $50,000.00 or the threats or the refusal to accept resignations, but more importantly, they blacklist them and to understand the effect of that on an associate producer or a producer whose whole livelihood is because he gets the right creative people to work with him, that if he wants a writer to work for him in the future in another production and he understands that because of what he does now, that writer is not going to work for him, that blacklisting threat has a tremendous effect on the producer in the future.It has an effect upon the director.
It has an effect upon all of these hyphenates and his conduct, to say that this kind of conduct does not engender fear in that supervisor, so that in the future when that union or any other union says to him to do something that the union wants, he is going to think that if he does not do what the union wants, he is going to have that same kind of punishment again.
This adverse effect, certainly affects supervisors who in fact adjust writers grievances and we have evidence of some of the supervisors adjust writers grievances.
It would affect supervisors who adjust grievances of other employees like directors because people do not just think about one union and what it does.
What one union can do another union can do and if the Writers Guild can cause writers not to work with an associate producer then the Directors Guild can cause Directors not to work with an associate producer and the director is very much concerned with that.
There is one bit of testimony in the record that just cries out, and Mr. Crichton who was talking with Mr. Furia, the leader of the Writers Guild and the President of the Writers Guild and Crichton is saying “I told him finally that if push came to shove, I would be rather be thrown out of the Writers Guild than the Directors Guild since I felt my future was really more with the Directors Guild” and he explained it was not that simple.
If I were expelled from the Writers Guild I could not work as a Director in the future, work solely as a director because members of the Writers Guild could not work as Directors and me as a director if I have been thrown out of the Writers Guild.
That kind of threat has to have an adverse effect in the future and that adverse effect, that carryover effect does pertain to the selection of the representative for grievance handling and for a collective bargaining.
So, not just a question of identities the Guild would have.
What an employer wants, he wants the supervisor who will do what he says.
He wants a supervisor that will be tough with the union perhaps, if that is the way that particular employer wants, while the union buy this kind of discipline and threats can change that supervisor from a tough supervisor to a supervisor that agrees with the union and then they are in effect changing the identity.
Employers do not really care whether a supervisor has a black hair or red hair.
They do not care about that.
They care how he is going to perform with the union.
Justice Byron R. White: Did the Court reject this theory in the Florida Power or not?
Mr. Charles G. Bakaly: The Court of Appeals, the Court in Florida Power, no.
I do not believe they --
Justice Byron R. White: The carryover theory?
Mr. Charles G. Bakaly: No, in fact I believe that is where the theory was originated from the language that I said Mr. Justice White, you were in the dissent in that case, but the majority did definitely state that plan, the discipline may adversely effect.
They are talking about the future there and that is the carryover effect.
That was not rejected by the Court in Florida Power.
Finally, one of the arguments that is relied on a great deal by the Guild is the argument that after Florida Power the loyalty of the supervisor member to its employer is irrelevant and without merit.
And that language comes from the Court that says that it has a statement in Florida Power about loyalty not being a part of the remedy that Congress intended for the solution of the conflict over all these problems.
Now, assuring loyalty is really one of the only purposes for 8 (b) (1) (B), why else would the Court put in 8 (b) (1) (B), why would the legislature put in 8 (b) (1) (B)?
It is perfectly logical to have grievance handlers as the most senior person.
Why not let the bargaining decide that?
Well, the reason has to be because as I said earlier, that one of things that an employer wants other than competence and an articulate supervisor perhaps, but he wants the one who is loyal to him.
He wants the one that will do what he wants done in the handling of grievances in the collective bargaining, so the loyalty is still a part of 8 (b) (1) (B).
Now, the respondent says that the only solution is to keep supervisor that has the union.
That solution really proves too much as the Court, as the Court again said there are instances where a supervisor does or a union does violate 8 (b) (1) (B) by adversely affecting the supervisor’s conduct.
Now, the Court in Florida Power recognizes that there can be a situation where a supervisor member is threatened, is disciplined and that adversely affects his conduct.
We submit that this is that case.
With this kind of in terrorem conduct that Judge Moore said certainly these supervisors would be adversely affected and these employers would be deprived of their grievance handlers and collective bargainers and I would reserve the rest of time for Mr. Come's rebuttal.
Chief Justice Warren E. Burger: Very well. Mr. Reich.
Argument of Julius Reich
Mr. Julius Reich: Mr. Chief Justice and may it please the Court.
From this Court’s statement in Florida Power that the conduct in a case called Oakland Mailers was without the outer periphery of what the Labor Board could proscribe or maybe at the outer periphery what Labor Board could prohibit.
Justice Potter Stewart: We just assume that.
Mr. Julius Reich: That is right.
Justice Potter Stewart: We may assume without deciding?
Mr. Julius Reich: It may have been out of the periphery.
Justice Byron R. White: Or within the outer periphery?
Mr. Julius Reich: It may have been within, but from the fact that this Court said that it may be within the outer periphery, the Labor Board has drawn a conclusion that it was approved by this Court.
I thought it was questionable.
Justice Potter Stewart: It was permissible for the Board to conclude within that language that it was within it?
Mr. Julius Reich: But what it is done from that Mr. Bakaly said that we have to start with Florida Power.
What the Board has done is end it with Florida Power.
What they have done is they taken Florida Power and limited it to its exact facts and that is all.
They have taken a statement which says that supervisors may be disciplined for performing struck work and ended it there without any regard to this Court's rationale for the decision, without any regard for the legislative history, without any regard for the statutory language and all of that went to show that 8 (b) (1) (B) had a specific purpose.
It was directed at curbing union interference with the selection by an employer of his representative for purposes of collective bargaining or adjusting of grievances.
Now, this Court made an extensive survey of the legislative history in Florida Power and the Board neither in this case nor in any of the cases that fall in Florida Power has gone to the legislative history to see where Florida Power should lead.
In fact, what this Court said and what the legislative history showed, is that while employers may have certain expectations from their supervisors, unions too have certain expectations from their members despite the fact those members may also be supervisors and in order to give the employers some relief from this conflict of loyalties, to help the employers to resolve this clash of expectations, Congress in 1947 simply took supervisors out from the under provisions of the Act by Section 23 and also absolved employers from the necessity to deal with supervisors or their representatives bargaining for them.
Justice Potter Stewart: And conferred upon employers the absolute right to have supervisors who are not union members and not to hire any supervisors who are union members, is that not correct?
Mr. Julius Reich: That is right.
The employers thus have at this point the ability to make their own decision to have their Supervisors not be members of the union, does not subject to that discipline.
Now, the Board has come up with two theories in support of decision in this case.
One of them is the deprivation theory in which the Board says that if a supervisor has an 8 (b) (1) (B) functions, that is he has the right to bargain collectively or the right to adjust grievances then it is sufficient if the union deprives the employer of the services of that supervisor regardless of the fact the supervisor is not performing 8 (b) (1) (B) functions while he is at work.
Now, with respect to those who were actually disciplined in this case, those were exactly the people who worked.
The employers were not deprived of the services of those persons, so they clearly were not restrained and coerced in the designation of those people who worked.
The Board to overcome that in its replied brief says yes, but they maybe afraid in the next strike to work and the employers will be restrained and coerced in the designation of their supervisors in the next strike, and therefore, it is a violation of the act, but the clear answer is that they can ask those supervisors to resign before the next strike comes up.
Justice William H. Rehnquist: Mr. Reich, is it fair to say that the argument you are now making really -- you are not helped much more in it by a Florida Power and like than your opponents.
You are saying that Florida Power went off on a fairly narrow ground and you want to get back to a broader ground?
Mr. Julius Reich: I think that is correct Your Honor.
I think that the language in Florida Power is helpful to our position and the position is that we have done nothing to interfere with the selection of the representatives for purposes of collective bargaining and there is nothing in either of the two Board theories which establishes that their would be a violation in this case.
Justice Thurgood Marshall: But what about Mr. Bakaly’s point that this man wants to progress up the ladder, he is in trouble in the future?
Mr. Julius Reich: Well, that man which Mr. Bakaly mentioned, Mr. Crichton is one of people who is working.
So evidently the threats did not affect him and in the appendix at the 8296, Crichton is one of the persons who was charged with a violation of the Act which indicates that he in fact did work.
I assume that that is the point that you are getting at, that is that --
Justice Thurgood Marshall: No, the point is that if he does not participate here to the full extent that the Guild wants him to then if he is promoted to another job, he still can hold that job because the members of the Guild below him will not work with him, I though that was his problem?
Mr. Julius Reich: Okay, you are talking about the blacklist.
Well, that is inherent in any situation where an employee becomes a scape and fellow employees may not wish to work with him.
Justice Thurgood Marshall: Why is that disconnect with him on the right to employ him in a better job?
Mr. Julius Reich: Well, it has no connection.
First of all the rule was rescinded during the strike.
So that there was no such mandatory rule.
An announcement was made that people can deal with him as they wish just to as in any strike situation, if a person crosses the picket line they suffer perhaps the enmity of their fellow workers, but if that is discipline then this Court has held in cases dealing with the reasonableness of the discipline by unions that, that is a matter for state court concern.
They certainly could have gone to a state court and get a declaration that, that discipline should not be erased from the record.
So we are not really concerned at this point with the reasonableness of the discipline and if it is not a violation of the Act to begin with we do not have to get in to the question of whether or not the discipline was reasonable or unreasonable.
Justice John Paul Stevens: Mr. Reich, could I go back to a point you made just a moment ago.
You, if I understood your argument correctly, you said that the discipline may have been ineffective because some of the people went to work anyway and may have been presumed they have gone ahead and done, performed their collective bargaining function (Inaudible) there could be no violation.
I find that argument, unless I missed something, I find it totally unpersuasive.
Supposing they blatantly said we will find you a $50,000.00 if you go into the plant and adjust the grievance or engage in collective bargaining and the fellow went ahead and did it anyway.
He was not deterred.
That could be a plain violation, would it not?
Mr. Julius Reich: Well --
Justice John Paul Stevens: And how can you test it by whether the man is in fact deterred by the coercion or not.
The test has to be whether there is coercion, does it not?
Mr. Julius Reich: That goes to the second theory of the Board, the carryover theory.
Justice John Paul Stevens: Well, I thought we are talking about the deprivation theory?
Mr. Julius Reich: That is right.
Justice John Paul Stevens: For which you agree the argument has no merit with respect to the deprivation theory?
Mr. Julius Reich: As far as the deprivation theory, the supervisor is there.
Now, if --
Justice John Paul Stevens: Well, what is your answer to my question?
Mr. Julius Reich: If the threat of a fine against -- well, first of all my answer is that I would concede that the person who is going in, who crosses a picket line for the purpose of adjusting grievances, the representative who goes in to perform those functions that are listed in 8 (b) (1) (B) may not be disciplined by the union.
It is restrain and coercion on the employer to deprive --
Justice John Paul Stevens: It is restraint even though the in fact goes in and performs those tasks?
Justice Byron R. White: You know it is unsuccessful, in other words?
Mr. Julius Reich: Even though the threat is unsuccessful?
Justice Byron R. White: Yes.
Mr. Julius Reich: Yes.
I would say --
Justice John Paul Stevens: So, we cannot measure the violation by the success or lack of success of the coercion?
Mr. Julius Reich: Well, I am only repeating what the Board’s theory is.
The Board takes the position in its reply brief that while the threat of discipline did not deter these people who actually went in and performed their services, and therefore, the deterrence theory does not apply in this strike as to them.
The Board takes the position that in the next strike, they will be deterred from going across the picket line and that is how the deterrent --
Justice Byron R. White: Well, not only the next strike, but just in the future in the ordinary course of conducting their collective bargaining and adjustment of grievance functions duty?
Mr. Julius Reich: Well, now that goes to the carryover theory.
Justice John Paul Stevens: Well, I still do not understand what your response is to the Board’s argument.
You have identified the Board’s argument and you said well they really want to work, but then you have admitted that is not a response.
What is your response to their deprivation theory?
Mr. Julius Reich: I am sorry.
If they are at work regardless of the threat or fine it would be my position that the employer has not been restrained and coerced under the deprivation theory.
The Board may have a good argument, if a supervisor is told that he will be disciplined for performing 8 (b) (1) (B) functions, the Board may have a good argument to show that he will be restrained and coerced or the employer will be restrained and coerced with respect to this supervisor.
Justice John Paul Stevens: Would this be another way of stating your theory that under deprivation theory, the Board should have made a finding that somebody was in fact deprived from going to work, that there is an absence of a critical finding?
Is that really what you really are arguing?
Mr. Julius Reich: There was sufficient evidence that people did go to work despite the threat and they have adjusted grievances while they were there.
We have examples of stunt people and actors whose grievances were adjusted.
Justice John Paul Stevens: Well conversely there is no finding there that but for the discipline, somebody additionally would have gone to work and adjusted some grievances he never adjusted?
Mr. Julius Reich: There is no such finding.
Justice John Paul Stevens: Is that not your real argument, it improved the deprivation, prove actual deprivation?
Mr. Julius Reich: But one point that I want to make is that if a particular individual would have crossed the picket line for the purpose either wholly or primarily of adjusting grievances and collective bargaining then it would be a violation in our view if the threats kept him from going across the line, but we do not have any such case here.
There is no finding and there is no evidence to that effect.
Justice Potter Stewart: In short, your short answer to the deprivation argument is there was no deprivation?
Mr. Julius Reich: That is right.
Thank you, Your Honor.
The Board says though that the threat may have kept people out and that is a violation.
There was no evidence in this case of anybody who was being asked to go across for the purpose, either in whole or primarily of performing 8 (b) (1) (B) functions and the Board’s position, the Board’s answer to that is that so long as the employer invests his representative with 8 (b) (1) (B) functions, any work that the representative does, any supervisory work, any work short of doing rank-and-file struck work, any work that the employee would have done would be work which according to the Board, if as a result of the threat, the supervisor refrains from crossing picket line to perform his normal supervisory functions, the employer without more is deprived of the representative he has selected for collective bargaining or grievance adjustment purposes.
Now, what this does is to simply make a shambles of what this Court carefully told the Board it should distinguish.
The distinction between Section 211 functions which has supervisory functions and Section 8 (b) (1) (B) functions which are representative functions.
There is a difference between a representative as that word is used in Section 8 (b) (1) (B) and a supervisor and the Board simply meshes them.
Now, Congress could have simply said in 8 (b) (1) (B) that the union shall not restrain and coerce an employer in the selection of his supervisor and then the Board’s theory would make sense, but it did not do that.
It specifically said a representative, a representative for only two purposes and this Court recognized that in footnote 21 of the decision in Florida Power, may declare that there is a distinction between the two and there is only one function that of adjusting grievances which overlaps between Section 211 and 8 (b) (1) (B) and the Board’s argument proves too much.
There would be no basis upon which, if the Court accepted the Board's argument, that somebody with 8 (b) (1) (B) functions went to work and part of his work was that of doing rank-and-file struck work, the Board would have to say in those circumstances that the union cannot discipline him and cannot keep him from going to work because a person with authority to adjust grievances is being kept out of the plant and that would apply in the Florida Power situation just as it would apply in our situation.
We have a case of the tail wagging the dog here.
The result is, what the Board says is that all the employer has to do is designate a person as its representative and that person can freely go through the picket line and disavow his obligations to his union despite the fact that he never adjusted a grievance.
We have an example at page 132 of the appendix for example of a person who has asked of one of his supervisors, who was asked, do you adjust grievances and he said I have the authority.
Well, can you give me an example and he said I cannot think of one.
In the last few years we have had not any disagreements, but that person would be entitled to a protection under the Board’s theory just as well as somebody who is there for this specific purpose of adjusting grievances.
Justice Potter Stewart: You do not claim that the work performed by these supervisors who did cross the picket line during the strike was struck work?
You claim that it was a rank-and-file work, is that it?
It was not limited to struck work as was the work in Florida Power, is that fair to say?
Mr. Julius Reich: Well, if by struck work you mean work which would have been performed by --
Justice Potter Stewart: By other people not by these people?
Mr. Julius Reich: There was work of the type that might have been performed.
We do not know.
For example, well, I have given examples in the brief of the types of work, polishing a script for example, that is considered to be "A through H" and which is done equally by writers as well as these hyphenates.
Justice Potter Stewart: Well, maybe some of struck work, some of them was not, but it was not confined to struck work?
Some of it was done that would not even have been done except by these people?
Mr. Julius Reich: They were doing normal producer work, normal director work.
Chief Justice Warren E. Burger: How do you categorize the changing of the script which either omits a substantial part or changes the thrust of a substantial part, you regard that as managerial or partly writing function?
Mr. Julius Reich: It is writing but --
Chief Justice Warren E. Burger: Well, of course it is writing, but that does not exclude a management decision, does it?
Mr. Julius Reich: No, but a writer can do that also.
A writer can --
Chief Justice Warren E. Burger: Well, we can pursue that at 1 o’clock.[Recess]
I should say that Mr. Justice Brennan is unavoidably detained.
He will be absent for part of these arguments, but he will participate on the basis of arguments, briefs, and tape recording of the oral argument.
You may precede counsel.
Mr. Julius Reich: Thank you Your Honor.
Your Honor asked as we departed whether the "A through H" work was managerial work or rank-and-file work and in our view it is immaterial, it is not relevant which it was.
The fact is that it was not 8 (b) (1) (B) work and the unions are prohibited by Section 8 (b) (1) (B) only from disciplining persons because of their performance of 8 (b) (1) (B) work.
Now, we concede that a supervisor may not be disciplined for the performance of 8 (b) (1) (B) work and the question is whether the threat of disciplining this --
Chief Justice Warren E. Burger: By that you mean, we included hyphenated supervisors?
Mr. Julius Reich: Any supervisor who is called upon to do 8 (b) (1) (B) work, hyphenate or a story editor or anyone.
The supervisors were threatened with discipline for crossing the picket line and the question arises as to whether or not that threat kept the employer from having present persons with 8 (b) (1) (B) functions.
Our reading of the threat to discipline persons if they cross the picket line in light of the minimal amount of 8 (b) (1) (B) work that they had to perform, the example that I gave of somebody who said that it had been years since he could think of an 8 (b) (1) (B) function that he performed, the impact on a person who receives a threat is not that he is going to be disciplined for performing 8 (b) (1) (B) duties, but they are going to be disciplined for crossing the picket line for performing non-8 (b) (1) (B) duties and there is no finding here in this record that anyone was threatened for the performance of or because he did perform 8 (b) (1) (B) duties.
To conclude, the networks in this case, both in their opening brief and their reply brief had made no secret of what the case is about.
What they are trying to do is to get this Court to give to them an advantage that they were unable to secure through Congress and the Court should not do.
Chief Justice Warren E. Burger: Mr. Gold.
Argument of Laurence Gold
Mr. Laurence Gold: Mr. Chief Justice and may it please the Court.
In Florida Power & Light Mr. Justice Stewart noted that the Board’s view of Section 8 (b) (1) (B) had evolved to the point that it served as a “general prohibition of the unions, disciplining supervisor members for their conduct in the course of representing the interest of their employer.”
I suggest that as Mr. Come made quite clear, the Board has continued to hue to that view with one exception.
They now say that in a situation in which the supervisor member performs a substantial amount of rank-and-file work, some of which is struck work that the union can discipline the supervisor.
We suggest that that analysis is no more responsive to the statute and its legislative history than the broad position taken before this Court the last time this question was here because as Mr. Reich indicated, at the end of his argument, it is our position that assuming that Oakland Mailers is correct, namely assuming that the Section does not simply protect employers against strikes against them, but protects supervisors against discipline for performing certain functions for the employer.
Section 8 (b) (1) (B) is given the full scope that it can possibly be given so long as it is a violation for the Union to discipline the supervisor for performing 8 (b) (1) (B) functions or because of the way he performs those 8 (b) (1) (B) functions, but that the union has a privilege which Congress did not choose to take away of disciplining supervisor members for performing any non-8 (b) (1) (B) functions.
We think that line is that so long as the cause is the way the supervisor performs his 8 (b) (1) (B) function, assuming as I said that the Oakland Mailers is correctly decided, the Union commits a violation, but that if the union’s discipline is based on the way the supervisor performs other supervisory duties or rank-and-file duties or the fact that it crosses the picket line and thereby tends to undermine the strike, that is outside the prohibition of this unfair labor practice.
At that point, the employer’s option, again to quote from Florida Power & Light is to force the supervisor to resign from the union, thereby protecting his interest and we think that the source of this understanding is basically on three different facets of the Act and its legislative history.
First of all, Section 8 (b) (1) (B) is far narrower than Section 211.
Section 8 (b) (1) (B) protects employers in their selections of grievance handlers and negotiators whereas Section 211 defines supervisors far more broadly.
Both Sections came into the law at the same.
If congress wanted to prohibit unions from disciplining supervisors, it would have written 8 (b) (1) (B) to say that is unlawful for union either to discipline supervisors or unlawful for union to restrain or coerce an employer in the choice of his supervisors, simply said neither of those things.
Secondly, the legislative history indicates that this provision created no stir in what was otherwise as this Court again has noted time and again, one of the most though for legislative conflicts of the post war period because of the assurance of its sponsors that it had a narrow scope and that scope basically was to prefect the collective bargaining process by assuring that the union was not on both sides of the table in both selecting its own representatives and selecting or having a voice in the selection of the employer representatives.
The more difficult and controversial issue of whether to restrict the right of supervisors to be union members was solved through Section 14 and 211 and 23 in favor of giving the employer a privilege to keep supervisors out of unions, to fire supervisors who joined unions and to refuse to bargain with unions about supervisory units, even where the union had majority support in the union, thereby reversing the decision in the Packard Motor Company case.
It is not surprising I would contend that the sponsors of 23, 211 and 14 did not choose to give supervisor members protection in law against discipline as supervisors because they were at the same time stripping those supervisor members of all legal protection vis-a-vis the employer.
I think that we of course have deferred with many aspects of Taft-Hartley, but Senator Taft was not the type of man who would carry water on both shoulders at least that blatantly.
Justice Byron R. White: What if a supervisor, a member the union and as a supervisor crosses the picket line does a non-rank-and-file work and the employer asks him or designates him to do grievance adjustment, and he says no I would not do it, I would be fined and the employer says well I guess I must get somebody else and he said yes, you must get somebody else.
Now, with your argument still go?
Mr. Laurence Gold: Yes.
In other words we -- may I ask a question about that because under our position, we could not discipline him for handling the grievance.
If it would have occurred the other way, we could discipline.
In other words, he goes to work and the employer says --
Justice Byron R. White: No, but he says I will not do it because I just would not do it because I am --
Mr. Laurence Gold: I would be subject to discipline.
I will not do supervisory functions or I will do rank-and-file work.
Justice Potter Stewart: I will not do collective bargaining or grievance proceeding?
Justice Byron R. White: I will not handle any grievances because --
Mr. Laurence Gold: Because I will be disciplined?
Justice Byron R. White: Yes.
Mr. Laurence Gold: If the union disciplined him for handling the grievance that would be a violation of 8 (b) (1) (B)?
Justice Potter Stewart: That is not quite my Brother White’s question?
Mr. Laurence Gold: Well, that is why I asked because I am not sure, I understood it.
Our position is that a supervisor member crosses a picket line, he does work what we are calling Section 211 work, but it is not handling a grievance, our position is the union can discipline.
Justice Byron R. White: Well, he crosses the picket line and he does supervisory work, but when the employer -- and then he tells the employer “by the way I have been doing grievance work for you, but I am not going to do any” and I will get fined?
Mr. Laurence Gold: Well, the union cannot fine him in our view for handling the grievance.
It could fine him but doing the supervisory work other than handling grievances.
Justice Potter Stewart: Now, Mr. Gold, I do not remember and I do not have before me your briefs.
In Florida Power & Light, that is the respondent's brief, but it is asserted in one or more of these briefs, if you took the position in that case that supervisors who cross picket lines to perform 211 work could not legally be fined by the union?
Mr. Laurence Gold: We did not take that position.
I have gone back over the AFL-CIO brief and we simply did not even address it.
In the union’s brief, the IBW’s brief, they argued first at Oakland Mailers itself was wrong, but even assuming that it was right, the union could fine those individuals who crossed the picket line and did rank-and-file work.
They limited their argument that way because under their internal union rules they did not choose to discipline supervisors who did not do struck work.
So that was the only issue they posed.
Justice Byron R. White: Well, those are facts of that case?
Mr. Laurence Gold: Yes, the facts of that case where that the union fined people for doing struck work.
Justice Byron R. White: Right.
Mr. Laurence Gold: But --
Justice Byron R. White: But it is asserted in the present case, in the briefs that the position was taken by at least one of the respondents in that case that the unions could not permissively discipline those who cross picket lines in order to perform what you called 211 work i.e. just general supervisory work, performance work?
Mr. Laurence Gold: All I can say is that first of all in support of that statement they quote a portion of the transcript in oral argument of the counsel for the union and he said that even assuming that Oakland Mailers is correct, unions can fine individuals for performing struck work.
I do not regard that as a concession.
Secondly, I have gone over our brief and what they do is tax us for saying that by arguing the issue presented by that case, namely whether unions can discipline supervisors for doing struck work, we were taking the opposite position on 211.
Justice Byron R. White: Well, lawyers to lawyers and that was the different case.
You were not trying to win the case. Now, you are trying to win this one?
Mr. Laurence Gold: Right and we believe that the theory of your opinion in Florida Power & Light supports our attempt to win this case, but we do not argue that we have already won this case by reason of that opinion.
We are arguing that the rationale particularly a point made in your opinion that 8 (b) (1) (B) is narrower than 211 and that the overall problem of assuring that supervisors are loyal in performing non-8 (b) (1) (B) functions supports our view here.
If I may, since it being through our interest, I am going to quote you extensively.
I would like to point out that --
Justice Byron R. White: That was a Court opinion?
Mr. Laurence Gold: Yes.
Justice Byron R. White: It was a Court opinion, it was not a separate opinion?
Mr. Laurence Gold: Right, I want to quote another Court opinion that you are also the author of it, that is all I want to say.
We think that the 8 (b) (1) (B) situation here is very much like the 883 case presented in American Ship Building.
There, as here, you had a situation where Congress left something to employers, namely the right to discipline even union members so long as the basis for the discipline was not their union activity and on the other hand, Congress in 883 made it unlawful to discipline a union member for union activity.
And the Board, of course read 883 to create a prophylactic rule that an employer could never lock out, and the theory of that court opinion was that where Congress leaves the privilege on the one hand and creates a prohibition on the other, the Board can prohibit activity motivated, wrongfully motivated, but cannot prohibit all of activity which has adverse effect on the ground that that is necessary.
And I would suggest that here too, if Oakland Mailers is correct, the Board has moved to protect the supervisor in performing 8 (b) (1) (B) functions to assure that a union cannot discipline the supervisor for the way he performs that function or for the fact that he is performing to go the next step and say it is necessary or else, employers will believe, I mean that supervisors will believe that they can be disciplined for 8 (b) (1) (B) functions to assure that they are not disciplined for anything.
We believe it is impermissible because we think that it cuts into the privilege that Congress left which was to fine or otherwise discipline supervisor members for activities other than 8 (b) (1) (B) functions and that is why we believe that both they so called carryover theory and the deprivation theories are unsound.
The Board has a direct method of protecting supervisor members who are disciplined for performing 8 (b) (1) (B) activities, that is to make it an unfair labor practice to so discipline it to say that in order to protect them you must go one step further and assure that they can be disciplined for anything.
It seems to us to disregard the limitations that Congress observed when they wrote the section and to go back to the general view that the Board has espoused all along, making only the narrowest adjustment for Florida Power & Light.
Justice Byron R. White: Well, assume as supervisor has been performing the bargaining functions along with his supervisory duties and the strike comes along and he is a member of the union and the union says do not cross the picket line, he says well, I really ought to do, I have lot of work to do, they say, well, we will fine you, so he stays away.
The employer calls him up and says I got a lot of bargaining for you to do over here and he says, I am awfully sorry, but I will be fined, you better get somebody else and you would still say that, there is no unfair labor practice?
Mr. Laurence Gold: No, I would not.
Justice Byron R. White: That?
Mr. Laurence Gold: I would not.
Justice Byron R. White: Oh! You would not, so you can -- so --
Mr. Laurence Gold: I apologize.
Justice Byron R. White: Well, if he has been performing the bargaining duties and the union wants to fine him from going to work, there is an unfair labor practice?
Mr. Laurence Gold: That is right, if he comes to the union or the employer comes to union and says this man is going to perform --
Justice Byron R. White: He said he is going to do his usual job.
He is going to do supervisory duties and he is going to do his bargaining?
Mr. Laurence Gold: The union can fine him for doing the supervisory --
Justice Byron R. White: Well, he just says, I will come to work, but I will only do my bargaining?
Mr. Laurence Gold: That is right.
That is where the --
Justice Byron R. White: Well, the employer says, well I cannot pay you for that.
You come to work or not, so he is going to get somebody else one way or another?
Mr. Laurence Gold: Well, he may have to get some somebody else, but that will be his choice because of the fact that the union cannot exert discipline on the supervisor for doing non-8 (b) (1) (B) work.
It will not be because the union is transgressed the limitation.
In terms of the hypothetical you posed, if there is a situation in which the employer says to a supervisor, I got struck work that has to be done during this strike and if you would not come here and do it in addition to doing the adjustment of grievances or bargaining, I am going to fire you and the supervisor says I will not do that because I will be fined by the union.
We think the minimum that Florida Power & Light means is that the union has not committed a violation and we do not think that 211 work is any different from struck work.
Justice Byron R. White: But in either of them if the employer said, well, just come and do your bargaining?
Mr. Laurence Gold: It would be a violation for the union to fine the man.
Unknown Speaker: Are we in a rather unreal situation in this?
Who is going to do with any bargaining or grievance procedure when the employees are in strike out there?
Mr. Laurence Gold: I think that in a real world the employer arguments and the Board arguments are most unlikely, but all I am saying is that --
Unknown Speaker: Because we are hypothesizing a strike when the ordinary employees are not there, there is nobody to file a grievance, is it not?
Mr. Laurence Gold: I would --
Justice Byron R. White: There is only one union on strike?
Mr. Laurence Gold: I would think it is very rare.
I can think of some situation.
One suppose the employer get strike breakers.
Now, it is unlikely that he will handle their grievances, but he may.
In that situation if he wants to have his trusted supervisor handle those grievances, we think we would violate the law --
Justice Thurgood Marshall: Well, there has been a grievance with another union?
Mr. Laurence Gold: Or in this case there were grievances with other union.
Those are possibilities, remote possibilities, we are not arguing that our theory --
Justice Byron R. White: Which happens to be in this case?
Mr. Laurence Gold: Well, they did not fine, so far as anything the Board has said, people were not fined for performing those functions, indeed the Board said it was illegal.
Justice Byron R. White: But if any supervisor has stayed away because of the fine, he would no longer be available to do any bargaining for the employer?
Mr. Laurence Gold: The poses the question of fact that Mr. Reich was arguing and responding to the Chief Justice’s question.
It may be that the union’s threat here can be read as going beyond what it could properly do.
We do not think that is a fair reading under the circumstance, but that maybe, but that does not justify the Board’s theory because the Board finds that it is an unfair labor practice to discipline somebody who does not touch a grievance and that we say is beyond the pale.
That is what the Board was not given the right to do.
We do not believe that supervisors got caught blash from union discipline when their union members, we think that they got protection for these collective bargaining related functions and nothing else.
Justice William H. Rehnquist: What is your position Mr. Gold as to burden of proof?
Supposing that a supervisor simply goes across the picket line, the union disciplines him, does he have to show that after he went across the picket line he was doing contract adjustment or grievance work?
Mr. Laurence Gold: I think that the union would have to have a basis for believing that he was doing a work other that grievance adjustment, but I think that under the normal rule that the party in possession of the facts although have the burden of going forward, I would think that they ought to be some burden on him to show that he did not do anything other than handle grievances and bargain.
Justice William H. Rehnquist: So the union can impose a flat rule of discipline for crossing the picket line and he is got to at least come up with something or the Board has to, before they can show an error on unfair labor?
Mr. Laurence Gold: That would seem to me to be the most logical burden of proof.
In other words, in a situation and it would seem to me that it would be something like Green v. McDonald Douglas whether under Title VII circumstance, you go back and forth.
If the supervisor came up to the picket line and said I am crossing solely to do bargaining unit, I mean, grievance handling, the union, it might be fair to say that the union has to show something that he did not keep his word or be in the soup.
On the other hand, he just goes in and comes up against the background where he has never solely the handling of grievances and says goodbye fellows, I am going to this line, then it would seem to me proper for the union to discipline him and for him to have to show in defense that he restricted his work to grievance handling and bargaining.
Chief Justice Warren E. Burger: What if he came to the picket line with an affidavit reciting in detail that employer had called him and had a serious grievance and bargaining problems to deal with, that he was going to the end of the plant, crossing the line for that purpose and only that purpose, where is the burden of proof now?
Mr. Laurence Gold: On the union.
Chief Justice Warren E. Burger: Thank you Mr. Gold.
Mr. Come, you have some time left.
Rebuttal of Norton J. Come
Mr. Norton J. Come: First of all with respect to the Florida Power, at pages 30 and 31 of the transcript of the oral argument, this question was put the union counsel.
Suppose in an employee strike, you had a group of rank-and-file employees across the picket line and then the supervisor crossed the picket line to supervise them, would you feel that this made this a different case?
Answer; it is a completely different case.
On what basis do you draw that distinction?
Answer; because when a supervisor is in fact directing the work for us, doing what he normally does, he is performing at the very least, his supervisory duty as that is defined in Section 211.
Justice Byron R. White: Who was answering?
Mr. Norton J. Come: Mr. Come, the counsel for the union.
Justice William H. Rehnquist: We have said that agencies may be penalized and the weight we give their interpretation for taking inconsistent position, I have never heard that rule applied to private entities?
Justice Byron R. White: Or when they are different entities?
Mr. Norton J. Come: Well --
Justice Potter Stewart: And particularly when his answer is only consistent with the position here, that was a different case from the facts of Florida Power & Light?
Mr. Norton J. Come: I am not intending to get a waiver or any collateral or estoppel.
I just wanted to make it perfectly clear that in so far as the decision in Florida Power was concerned the Court did not have before it the question --
Justice Potter Stewart: The facts of this case?
Mr. Norton J. Come: The facts of this case and indeed it was specifically left out of the case on the submission.
I think in terms of the policy that went behind Florida Power, it also made a big difference that only rank-and-file work was involved because that to deprive the union of the right to discipline people for performing that truly cut at the heart of the union strike weapon and in view of the Insurance Agents and Curtis in Section 13, this Court has made it clear that absent clear indication from Congress that it intends to so limit, it is not going to do that.
I think that when you get to the performance of supervisory work as you had here, the balance is a different one and I think that there is that policy difference, but getting to the last argument that my brother made that the burden is on the supervisor or the Board to show that the supervisor was not in fact performing grievance adjustment or collective bargaining work.
It is not only an unreal situation, but it is not required by the statute because the statute prescribes restraining and coercing the employer in the selection of his representative for a grievance adjustment and collective bargaining.
We submit that when the employer selects a supervisor with those posts and directs him to come to work in a situation where there is a potential for exercising those powers, it is as much an interference with the employer selection, if you deprive him of that representative's authority, whether he in fact was called upon on a particular day to adjust grievances or not.
Because in the real world there is no way of knowing exactly when a grievance is going to arise or a collective bargaining situation is going to arise and certainly a supervisor does not cease to be become any less the management selected representative for that purpose due to the fortuity that on a particular hour or a particular day he did not have a grievance to adjust.
Justice Thurgood Marshall: And during that whole time, he could be doing struck work?
Mr. Norton J. Come: But the fact is that he was not doing struck work in this case.
There is no indication, no evidence whatsoever.
As a matter of fact --
Justice Thurgood Marshall: Well, I did not understand if you limit this up to this case, in that broad statement you made of the right of “a employer.”
Are you talking about this employer?
Mr. Norton J. Come: Well, I am talking about this employer and other employers similarly situated.
Justice Thurgood Marshall: Well then, could this employer require them to do struck work or not?
Mr. Norton J. Come: If we require them to do struck work then you get into a situation as to whether the struck work that was being required was minimal or substantial under the Board and if it was no more than he would normally do absent the strike.
In some of these situations, you have supervisors that do a minimal amount of rank-and-file work as well as their supervisory duties.
If it is no more than that under the Board’s view, you would have the same result as you had here.
If there were asking him to do more than they would normally do but for the strike then you would have a Florida Power situation.
I think this case is an easy case because there was no history of the supervisor is doing any bargaining unit, struck work and there was no requirement that they perform any and as a matter of fact the employers made it perfectly clear that they would not require them to do any writing that was covered by the bargaining agreement.
They were only required to perform their normal functions as producers, directors, and storytellers.
Unknown Speaker: That was "A through H" work?
Mr. Norton J. Come: It included some "A through H" work, but the finding of the administrative law judge which was affirmed by the Board is that "A through H" work was not bargaining unit work.
It was not struck work.
Whatever you may call it, it was not struck bargaining unit work.
Justice John Paul Stevens: Do you think Mr. Come that just the performance with the supervisory duty day-to-day means that the supervisor is representing the employer in the administration of the contract?
I mean, holding aside from whether at any phase of agreement procedure he is the employer’s representative?
Mr. Norton J. Come: I think that argument has validity.
I do not think we need to go that far in this case because on the findings of the administrative law judge and the Board, it was perfectly clear that each one of these hyphenates had grievance adjustment functions and they were exercised during the strike because this is not a situation where the strike shutdown the plant.
You had operations.
They were filming these films to be sure there was no new writing of scripts, but they were proceeding to direct and photograph and edit work that was in process and you had other employees at work whose grievances were being adjusted.
Chief Justice Warren E. Burger: Are you saying this distinguishes it from Florida Power?
Mr. Norton J. Come: I think it does Your Honor.
It distinguishes it from Florida Power because in Florida Power at least on the submission, the supervisors there were disciplined because they went across the picket line to perform rank-and-file struck work that they would not have been performing but for the strike.
Unknown Speaker: And in Florida Power those who have crossed the line to do supervisory work were not fined?
Mr. Norton J. Come: They were not disciplined.
Yes, Your Honor.
Chief Justice Warren E. Burger: Mr. Gold seem to concede that if the employee represented at the picket line through the pickets that he is going to perform only these managerial functions, then you can not be disciplined, is that correct?
Mr. Norton J. Come: Well, I would say that, I heard him and I think as I read his brief, that is inconsistent with the position that they have taken up to now because their basic position has been the one that member finding talk in dissent on the Board namely that in order to establish a violation of 8 (b) (1) (B) under Florida Power, you would have to show that the discipline was meted up for the manner in which they perform the grievance adjustment or collective bargaining function.
And the position of the Board majority and the position that I am urging here is that under Florida Power, you can affect the employer selection of his representative for these purposes, merely by threatening to discipline employee or supervisors if they cross the picket line to perform their supervisory duties where they include these functions and it does not have to be for the manner in which they performed any particular grievance adjustment or collective bargaining matter.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.
Argument of Norton J. Come
Chief Justice Warren E. Burger: We will hear arguments first this morning, in 76-1121 American Broadcasting Cos. against Writers Guild and the cases consolidated with that case.
Mr. Come, you may proceed whenever you are ready.
Mr. Norton J. Come: Mr. Chief Justice and may it please the court.
This case presents another facet of the problem which this court considered in Florida Power fours years ago.
The question is whether Section 8(b)(1)(B) of the National Labors Relations Act which makes it an unfair labor practice for a union to restrain in course an employer in the selection of his representatives for collective bargaining or grievance adjustment whether union violates this provision by threatening to discipline and disciplining supervisors who are also members of the union for crossing a picket line to perform their normal supervisory duties during the strike.
Now, the facts very briefly are these.
Respondent at the Writers Guild represents for collective bargaining purposes, writers who prepare scripts for motion pictures and television films.
The employers also employ producers, directors, and story editors to manage and carry out the production of the films.
The producers, directors and story editors are supervisors within the meaning of the Act and when engaged as such they also represent the employers and the adjustment of grievances and the producers also represent them in some cases for collective bargaining purposes.
Some producers, directors, and story editors known as hyphenates and these are the people that we will be concerned with here have writing capabilities and are at times employed by the employers as writers.
The Guild represents the hyphenates only when they are employed as writers and when they are employed as producers, directors, or story editors.
Most hyphenates have personal service contracts with the employers when they are so engaged.
The collective bargaining agreement with the Guild provides that a person's subject employed in a non-writing capacity such as a producer, writer, or director is not covered by the agreement.
The agreements further provide that producers, directors, and story editors may engage in certain editorial writing functions called "A to H" Functions without becoming subject to the agreements.
Now in March of 1973, the Guild began a strike against the employers in furtherance of their demands for new contracts covering the writers.
The strike continued against some employers until July of that year.
A month before the strike started, the Guild distributed strike rules to all members including the hyphenates.
In addition to prohibiting writing for struck employers, the rules prohibited all members regardless of the capacity in which they were working from crossing the union picket lines.
The union strike rules also prohibited union members from working in the future with members who violated the strike rules and the Guild through a special meeting of the hyphenates and the phone calls to particular hyphenates emphasized that the strike rules would apply to the hyphenates working in any capacity.
And that they would be subject to discipline and blacklisting if they crossed the picket lines.
The employers on the other hand demanded that the hyphenates continue notwithstanding the strike in the picket lines to perform their duties other than as a writer under their personal service contracts.
Some hyphenates crossed the picket lines to perform their normal supervisory and managerial functions as producers, directors, and story editors.
They perform no writing work which would otherwise had been performed the striking writers.
Many hyphenates did not go to work.
During and after the strike, the Guild filed internal charges against 31 of the hyphenates for crossing the picket line and 10 of them were subsequently convicted and were suspended or expelled from union membership and fines ranging from $500.00 to $50,000.00 were assessed.
Later, the union membership voted to reduce the penalties of nine of the convicted hyphenates.
Upon charges filed by the employers, the board with member offending and dissenting concluded that the Guild had violated Section (8)(b)(1)(B) of the Act by disciplining and threatening the discipline.
The hyphenates for crossing the picket line to perform their normal supervisory duties.
Now Florida Power holds that a union's discipline of one of its members who was a supervisory employee can constitute a violation of Section (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.
Now, the discipline in Florida Power was found not to have this effect because the supervisors were disciplined for crossing the picket line to engage in rank-and-file struck work which is neither collective bargaining or grievance adjustment nor any activities related thereto.
We submit that a different conclusion is called for whereas here the supervisor crosses the picket line to perform his normal supervisory duties and they include as was true in this case grievance adjustment and collective bargaining functions.
Now, there are two bases on which we believe we can satisfy the Florida Power test.
The first refer to as a deprivation theory and the other is a carryover theory.
Turning to the deprivation theory first, we believe that the threats of discipline restrain the employers in their selection of a representative or grievance adjustment and collective bargaining no less than if the union had engaged in a direct strike to obtain the removal of a disfavored foreman with such authority would have done for two reasons.
In so far as the threat kept hyphenates away from work and it appears that about a hundred of them did no go to work.
The employers were deprived of their services which included grievance adjustment and collective bargaining.
In so far as the hyphenates defied the union and went to work and about at least 31 then because there was a number of discipline, the employers will nonetheless have been coerced by the union strikes because the legality of a threat is not dependent upon its effectiveness and the strike rules here were in effect for at least a month before the strike started, before the employer was able to ascertain who would or would not come to work.
Now, in the first argument of this case, the union conceded that if it had threatened to discipline the hyphenates for crossing the picket lines to perform grievance adjustment or collective bargaining functions, it would have violated Section (8)(b)(1)(B) irrespective of whether the threat was effective.
It contends however that the board has not proved that the union's threat deprived the employers of their representatives for grievance adjustment or collective bargaining purposes because there is no finding, first that the hyphenates stayed away because of the threats rather than the picket line.
And two, there is no fining that the union intended to find the hyphenates for performing grievance adjustment and collective bargaining functions as distinguished from performing their other supervisory duties.
Now, we submit that these contentions do not stand up for these reasons.
In the first place, since the union threatened the hyphenates with discipline, if they went to work in any capacity, we submit that the burden is on them under familiar principles of law but this entangles the consequences for which they are chargeable from those in which they are immune.
You do not have just a picket line in a strike and supervisors electing not to honor that picket line.
Secondly, as I pointed out, the union threatened the hyphenates with discipline if they went to work in any capacity.
They knew that the employers had asked the hyphenates to perform their normal supervisory duties, these included grievance adjustment and collective bargaining and with the other employees remaining at work as they did.
It was likely that they would be called upon to engage in grievance adjustment and collective bargaining and the record shows that they in fact work.
In these circumstances, we submitted these --
Justice Lewis F. Powell: I do not know if the record shows they are engaged in collective bargaining.
Maybe I have a limited view of what the definition of collective bargaining but it seems to me that that has to do with negotiating the collective agreement.
Mr. Norton J. Come: Well, the record shows that the producers when they were on location or frequently called upon to enter into on the spot agreements to cover people that had to be hired to perform services.
The producers are the only ones that on occasion were required to engage in collective bargaining.
The others adjusted grievances and the record thus show that they did adjust grievances because they were shooting films.
There was no new writing going on but there were prepared scripts for the strike and they were being filmed.
They had actors at work.
They had the other people other than writers and?-
Justice John Paul Stevens: Do you include grievance adjustment as part of collective bargaining or in addition to collective bargaining?
It is merely not part of it, under the statutes it says, for the purpose of collective bargaining or the adjustment of grievances.
Mr. Norton J. Come: Well, the statute does distinguish to, I think that you could make a good agreement, that the concept of collective bargaining as it is understood in labor management relations could in a broad sense include the day-to-day administration of the agreement and in so far as the adjustment of grievances under the contract is part of that day-to-day administration or the contract as part of the process of collective bargaining.
Justice John Paul Stevens: But assuming Mr. Come if an employer refuses to process grievances under the collective bargaining agreement, can that be the basis of an (8)(b) 5 charge?
Mr. Norton J. Come: An (8)(a) 5 charge?
Justice John Paul Stevens: So, it is collective bargaining.
Mr. Norton J. Come: It is.
Justice Stewart is correct however that Congress distinguished it in this statute.
I submit that it was unnecessary to separate the two out.
The collective bargaining would have covered the whole thing.
Chief Justice Warren E. Burger: So, in other words, that second phrase have been omitted that could be no difference at all?
That is you position?
Mr. Norton J. Come: That is correct.
Justice Potter Stewart: Now, was there a collecting bargaining agreement in existence.
And if so, what was the strike about?
Mr. Norton J. Come: Well, there were agreements covering these other people who were working during the strike.
The actors and the cameraman and the others that go to work that have to be employed in producing a film.
This is not a situation where you have the plant shut down and there is nobody at work.
I mean the supervisors merely go in there to update their records or something.
Justice Potter Stewart: To keep the heat on or something?
Mr. Norton J. Come: To keep the heat on.
You had a going operation here.
I would like to and I cut in further into my colleague?s time.
Chief Justice Warren E. Burger: Very well Mr. Come.
Argument of Harry J. Keaton
Mr. Harry J. Keaton: Mr. Chief Justice and may it please the court.
In the time allotted to me, I would like to primarily discuss what has come to be called in this case the deprivation theory.
It is basically a very straightforward and simple theory as it was described by the administrative law judge in this case.
It does not require consideration such as whether something might have an effect in the future.
But it deals with the present, the time of the strike and the basic question is, does the union's pressure from a supervisor not to work by coercion and restraint and threats and discipline.
Foreseeably could it have the effect of preventing that person from working and thereby depriving the employer of the selected (8)(b)(1)(B) representative thereby coercing and restraining the employer in such selection.
The classical case on this subject was the Horner Case which is cited on our brief in which there was no contract and the union instructed the union members to withhold their services.
The superintendent on the job was a union member and he too was instructed not to work.
He disobeyed the union's order and was punished.
The National Labor Relations Board has no difficulty fining that the employee had been coerced and restrained in the selection of this supervisor of the 8(b)(1)(B) representative because the foreseeable effect to what the union did would have been that he would not have worked or alternatively if it did work and was punished, his services might not be available in the future.
In that case, there was no refusal by any of the employees to work including the supervisor.
The effect was manifestly unsuccessful, I am stressing that point.
Post Florida Power, we have a very similar situation.
In the case involving Skippy Enterprises now know us Wisconsin River Valley which was affirmed in the Seventh Circuit in the decision by Judge Becker.
In that case, there was a very similar situation.
There were two union elections, both lost.
After the election, the union said we will not permit any members to work on this job and they told the superintendent you cannot work or we will punish you.
He did work and they punished him.
And again the board heard it to be an 8(b)(1)(B) and the court affirmed on the theory that clearly here there was foreseeable that provision of the employer of his 8(b)(1)(B) designated representative and therefore for coercion and restraint in the selection.
Now the very important point of this to be made is.
This issue was not really before the court in Florida Power.
Because in Florida Power, first of all, at least in the Illinois Florida Power, the supervisors were told if you want to come to work, we would love to have you come.
If you do not want to come to work you do not have to.
They will not even designated as 8(b)(1)(B) representatives.
They were given the option to designate themselves.
In Florida Powers, the record is silent as to what these circumstances were because it is a stipulated record
But in both cases, the union said if you come to work and perform your normal supervisory functions you can do that, we will not punish you.
Thereby clearly not interfering, not coercing, not restraining the employee and selection if one accepts of you as a majority in Florida Power that struck work is not part of collective bargaining agreement adjusting and not emulated to it because the whole gamut of what a supervisor does could have been done without any interference on the part of the union.
Now the touchstone of the Florida Power Case actual in the decision was the future.
What future effect may the conduct of the union have?
That is not necessarily needed here even though it is present too because of the fact that there was an intended curtain effect during the strike.
Now, in this case, the employers ordered the union representatives to work.
They did not give them an option, only the supervisors, only the normal management functions.
And they were told, if you do not come to work we will discharge you and we will fine you.
The union on the other hand said, you cannot work at all, no services in any capacity whatsoever including of course grievance adjusting and collective bargaining.
Now clearly, the union threats in the subsequent discipline had one purpose and one purpose only.
One just has to look at what preceded the strike.
Real activation of these their own members if you please who had no loyalty obligations to the union whatsoever who were paying no dues and had no union benefits.
They were put back into the union by mandate in order to put them under the union's yoke and the neighbor's union to force them not to work and there by prevent the employer from selecting representatives.
Now whether or not there was collective bargaining during the strike, I submit is not really relevant.
Collective bargaining in the sense of negotiating a contract.
The important thing is that these people who went to work were authorized to negotiate conflicts.
They were authorized and designated to settle grievances.
Now the union was in no way here relying on any appeal to the loyalty of the supervisors.
Quite the contrary it was bringing them back, drafting them if you will.
Many of them were associate members who did not have the right to vote on this strike rules and did not vote on them.
No one was allowed to resign.
They were locked in.
And in those circumstances they were told, if you come to work in any capacity we will do terrible things to you not only now but for the future.
You will never be able to work again putting on maximum pressure on these people in order to force them not to work now and thereby coercing the employer for the present as well as for the future.
Now the union argues here basically four points in defense of its position.
First of all, it says that there is no 8(b)(1)(B) because its efforts were unsuccessful.
A lot of people came to work, the ones they fined and punished and attempted to expel until the membership reversed them.
Secondly, that the motive of the union here was not established to be to prevent the performance of 8(b)(1)(B) work or indeed the manner of such performance.
And thirdly, the union argued in effect that 8(b)(1)(B) is designed to protect the supervisor rather than the employer but only in the performance of collective bargaining and grievance adjusting functions.
All premises, all of those four premises I would submit are totally wrong.
Beginning with the first one, success is not required and we can cut through all the other possibilities and go straight to Florida Power because when this court said in Florida Power that a violation can be found only if it may adversely affect the conduct of the supervisor, very obviously the court did not say will affect.
It said may affect.
That does not have to be success within the terms of Florida Power itself.
And again in Florida Power this court said of its approval.Cases when 8(b)(1)(B) had been found when attempt was made to force an employer to accept only union members and supervisors.
So without going beyond the decision of this court in Florida Power it manifestly cleared that all that's involved in attempt, are not success.
The number of cases in 8(b)(1)(B) involving all the attempts are legion.
The union relies on 8(a)(3) case to the contrary, 8(a)(3) does not deal with coercion and restraint.
It deals with discrimination.
Where motive is important and a lot of other things are important that are not important under coercion and restraint.
As to the motive in this situation incidentally, the question here is clearly not why the union was doing it but what the effect of the employer is.
That, the issue, is the employer being restrained and coerced?
If he is, no one cares why the union did what it did, against turning to the Florida Power language, the question is what the effect is, not what the motivations were.
8(b)(1)(B) comprises what the union suggests in its supplemental brief.
It is not intended to protect supervisors.
It is crystal clear under Section 2, 3, 11, and 14 of the Act that supervisors have no Section 7 guides to protect.
The protection is afforded to the employer in its selection of supervisors.
And furthermore, that protection is accorded to the employer not in the performance of the function but in the selection of the persons who will perform the function that is the issue.
Now let us do the performance of the function.
On prior argument, there was a discussion and questions from the court to counsel for the union and it ultimately in effect counsels for the union conceded that if a supervisor came in with an affidavit I believe was the language stating, I will do only 8(b)(1)(B) work, I will only adjust grievances and bargains collectively, then indeed the union could not punish him.
Well, Your Honors, looking at this realistically other than academically, what we have here is a concession that a man who maybe paid as much as $10,000.00 a week is a producer of a motion picture or even more can be brought in by an employer to sit there for a day, a week, a month, or maybe a year until a grievance arises which he has a right to adjust.
No one knows when grievances occur.
No one can predict and to say that employers can bring in supervisors for the sole purpose of doing 8(b)(1)(B) work is to say that it can be made economically impossible for them to make the selection and therefore they have to select someone else.
And to me the situation is absolutely no way different from the situation in California Cottage Company 208 NLRB 994 at page 1004 affirmed by the Court of Appeals for the District of Columbia in 515 Section 1018 and in which this court denied cert, where a labor organization at Longshoremen Union of the Pacific Maritime Association entered into a contract in which they said if any containers have to be handled that have not been stuffed by Longshoremen, then we will impose a tax on those containers and it was a pretty stiff tax.
And the board held and the court affirmed that the imposition of that tax was exactly the same thing as saying we will not handle the containers.
And I submit in the same way in this case, one cannot say, that the 8(b)(1)(B) rights of the employers to select the representative are really protected.
If he has to pay the price of having someone sit all day waiting for a possible grievance.
Now, the work involved here in the last argument by the union is of course that some of the work here involved collective bargaining type work.
While the A through H function says we discussed on prior argument are very clearly managerial work.
First of all the conflict says that they are not covered by the conflict but performed by excluded personnel and secondly, by there are very initial decisions involved are management decisions.
In that respect, the work differs importantly from the Florida Power for two reasons.
First of all, it clearly was not work that was struck work in the legal sense of the bargaining units work in the sense but more importantly it is managerial work.
And this managerial work of any sort from which grievances flow.
If someone is performing management work, that is how grievances come about and if the person who is the manager performing these functions has grievance adjustment authority as all these people did then it necessarily follows that the performance of these management functions is "grievance related" as this court stated in Florida Power and its majority opinion.
Now, basically 8(b)(1)(B) I would submit is a policy determination, unambiguously expressed by congress as Mr. Justice Stevens said in an opinion.
Namely, and I do not mean on this subject, but on a different statute equally, unambiguously expressed here that the intent is to protect the employer's right to select its management representatives free of coercion or restraint by the union, that is the issue.
And I think the only way that court could fine in favor the right of Guild in this case would be to in effect tack to the statute of provision saying, this provision shall be inapplicable in case of a strike.
I would like to reserve my remaining time for rebuttal.
Chief Justice Warren E. Burger: Mr. Bakaly.
Argument of Charles G. Bakaly
Mr. Charles G. Bakaly: Mr. Chief Justice and may it please the court.
I would like to make one observation concerning the deprivation theory before I talk about the adverse theory effect.
The Guild contends that the board did not make findings that the threats were made to others than those who worked.
I would like to submit that that statement is erroneous in the board's decision in the petition at the appendix B3, the board goes on to say that it sustains the complaints alleged violation of Section 8(b)(1)(B) of the Act in toto and 13(d) of the second amended complaint alleges that commencing February through the promulgation of its strike rules and rule 30, its blacklist rule and by other actions if threatened numerous persons occupying the positions of the hyphenates that for all times in the future, no member or respondent would work with or perform services for them if they failed to honor or otherwise support the strike described in paragraph 10 above.
That I submit is a finding by the board that there were threats to hyphenates other than those who crossed the picket line that they would be threatened and blacklisted if they did cross the picket line and failed to honor the strike.
Now, with respect to the second theory of the board which I would like to direct most of my time, the adverse carryover effect theory begins with this court's decision in Florida Power where it has been said the court stated that the union's discipline, one of its members who was a supervisory employee can constitute a violation at 8(b)(1)(B) only when that discipline may adversely affect the supervisor's conduct in performing the duties of an acting as the grievance adjuster or collective bargainer.
Now this conduct of the Guilds in this case which Judge Moore in his dissent in the Second Circuit characterized as the Guild's in terrorem conduct.
Certainly would have an adverse carryover effect to supervisors in the future.
Not only are the fines absolutely horrendous $50,000.00 even to somebody making $5,000.00 a week is a substantial sum of money.
The threats to expel from the union is certainly substantial but more importantly the blacklisting threats to creative people is absolutely an abhorrent.
The fact that after the strike started, the Guild rescinded rule 30 really does not absolve the guild or does the after effect reduction of the $50,000.00 fines take away the fact that the threats were made and they had an effect.
The Guild or any other union could blacklist in the future if this court holds such kinds of unlawful and furthermore the role of dishonor was not rescinded at all.
There is evidence that it may well have continued in effect while the Guild argues with individual members acting along might have been able to refuse to work with as they call them scabs.
Certainly, they could not do it in concert and they could not do it if the Guild suggested it or condoned it and we submit that the evidence here is certainly very strong that that occurred.
Now the unions says, well, the employer could take care of the effects of this after the strike by requiring resignation and they could require the supervisors to resign after the strike and then in the future they would not have the power to submit that this is -- well, all that really could not happen in this case.
In the first place, the blacklist and the throughout the blacklist is still there?
Justice Byron R. White: Do you say that putting out of the blacklist or a list of people union regard to the scabs is by itself violative of the Act?
Mr. Charles G. Bakaly: Yes, I think so your Honor by the union.
You say that you will not work with other members when your whole livelihood depends upon your ability to attract the best creative people, yes I think that is definitely --
Justice Byron R. White: Well, if there is any difference in the labor law between creative people and carpenters?
Mr. Charles G. Bakaly: Oh I do not think so.
However there is a difference that here the associate producer and the director's sold their value, their services as the ability to get outstanding creative people to work with them and that is not quite the same as a carpenter or someone working with the carpenter and so I think there may well be a difference in this industry because of that situation.
But nevertheless, the answer to the question about resignation after the strike is whether that then was the remedy for the employer.
The blacklist would still be there and remember that the record is clear that the Guild have the right to prevent resignation for two years after the strike of any member.
And of course, we submit that the self-help options really are not valid in this case because of the fact that a substantial percentage or the management people comes from the rank-and-file and will return to the position of writers as time passes and as a practical matter, resignation just is not going to get us the kind of producers that we need.
Producers have to have the ability to work with the writers and therefore we feel that the self-help options are really not valid.
There is no question about what this conduct did in gender fear and the supervisor's members and gender fear and to those who adjusted writers grievances and gender fear and those who adjusted grievances of other employees because employees do not differentiate between the kind of union that makes the threats.
One union makes the threat and they feel that any union can also make a similar threat.
The record is to replete with evidence of the effect these threats upon individuals and I will not go on to that at this point in time.
The carryover effect clearly restrains the selection of a supervisor as a statute sets forth.
If a union cannot by threats and by fines change the way a supervisor performs, it has an effect negated the employer's selection and has changed the supervisor.
In the legislative history, Mr. Senator Taft talks about Mr. 'x' and Mr. 'y'.Well suppose, that Mr. 'x' is a person who rigorously enforces the contract, keeps the union employees towing the mark and supervisor 'y' is very easy and very soft upon the employees and if that employer wants supervisor 'x', certainly if the union can then fine supervisor 'x' to such an extent but to turn him and the supervisor 'y', a supervisor that acts better towards the union members and softer towards them, he has in effect changed, the union has an effect changed the selection of that employer from 'x' to 'y.
Justice John Paul Stevens: Have these fines had any such effect in changing the attitude of any supervisor towards any grievance or towards any collective bargaining issue.
Mr. Charles G. Bakaly: I think that is a question for the board to decide Mr. Justice Stevens and the board is the agency which Congress has "expertise and experience".
It is found that this kind of conduct may adversely affect the supervisors in the way they perform their grievance adjusting or collective bargaining in the future and I believe?
Justice John Paul Stevens: But as I understood that if both 'x' and 'y', one is soft and one is hard, both crossed the picket line, they are both equally subject to the fine, equally subject to discipline are they not?
Mr. Charles G. Bakaly: Well, that would be correct and that --
Justice John Paul Stevens: And how does the discipline tend to make 'y' act more like 'x'?
Mr. Charles G. Bakaly: Well, I am using a situation where both do not cross the line.
That is the point that I am trying to make that you have a situation?
Justice John Paul Stevens: Well, in other words, just as much deterred on 'y' as there is on 'x' and whether he is tough or soft, he is equally deterred from crossing the line.
Mr. Charles G. Bakaly: Certainly, it may well be the fact and that of course, goes to the deprivation theory which is the first theory Mr. Justice Stevens.
Justice John Paul Stevens: Yes, I understood but you are arguing on a carryover theory--
Mr. Charles G. Bakaly: I do not really think on the carryover theory.
The point I am trying to make is that we have two separate supervisors -- let us take away from the picket line for a moment.
We have two separate supervisors or two candidates, 'x' and 'y' and the employer wants 'x' because of his certain characteristics.
If the union can fine 'x' and turn him into somebody like 'y' then they in effect have changed the employer's selection from 'x' to Y, that is the point I am trying to make.
And it is clear from the legislative history that this was just the kind of action that Senator Taft was talking about but employees cannot say to their employer we do not like Mr. 'x, we will not meet Mr. 'x', you have to send us Mr. 'y.
That has been done, it would prevent their saying to the employer you have to fire Foreman Jones and therefore you have to fire him or we will not go to work.
Certainly, we have in this case when the Guild establish this blacklist and the roll of dishonor, they were really saying, here is a list of foreman Jones who we will not work with and therefore a list of people the employer cannot --
Justice Thurgood Marshall: Well, all on 'x' or on 'y'?
Mr. Charles G. Bakaly: Either one.
Justice Thurgood Marshall: You do not know?
How can you make statements to all 'x' or 'y'Do you not need that to make your argument?
Mr. Charles G. Bakaly: Well, I think you can assume that the people that the employer wanted to work were all 'x's.I think you can assume that.
Justice Thurgood Marshall: And you can assume that the ones that the union put on are all what, 'x's or Y's?
While we assume, do you not have too many assumptions here?
Mr. Charles G. Bakaly: I do not believe so Mr. Justice Marshall.
I think that what I am using is the example of how you can turn by fines someone into a different person.
That is the point I am trying to make.
Justice Thurgood Marshall: But was it done here?
Mr. Charles G. Bakaly: That is for the board to decide.
The board decided that it may well have been done and that is in its expertise that as the agency that has this experience, it made that finding and we submit that that finding is ?
Justice Thurgood Marshall: They supported the findings --
Mr. Charles G. Bakaly: I beg your pardon.
Justice Thurgood Marshall: They supported that findings by what?
Mr. Charles G. Bakaly: With inferences and with their knowledge of --
Justice Thurgood Marshall: Assumptions that you made.
Mr. Charles G. Bakaly: You may call on that Mr. Justice Marshall but that is really what the Congress intended this agency to do was to take from their knowledge of what occurs in real everyday life and they made the decision.
Justice Thurgood Marshall: Everybody on that list was a 'y' man, everyone.
Mr. Charles G. Bakaly: I would like to reserve Mr. Chief Justice the rest of my time for rebuttal.
Justice Thurgood Marshall: You did not answer my question.
Mr. Charles G. Bakaly: Excuse me, I thought we were through.
I am sorry Mr. Justice Marshall.
Justice Thurgood Marshall: I said did they assume that everyone on the list was 'y'?
Mr. Charles G. Bakaly: No, they did not so assume.
Chief Justice Warren E. Burger: Mr. Reich.
Argument of Julius Reich
Mr. Julius Reich: Mr. Chief Justice and may it please the court.
In our view, there are two things that were clearly stated in Florida Power which this court said to the board it has to consider and which the board has not considered and in not considering it, the board was able to come up with result with which it has come up.
Those two things are: that first, employers have an option, unfettered option to have their supervisors withdraw their membership in unions, not join unions thereby resolving what was said in 1947 to be the conflict of loyalties possibility where a supervisor has loyalties to the union and to the employer.
And the second point was that Section (8)(b)(1)(B) was designed to protect employers in two discrete functions, collective bargaining and adjustment of grievances.
In order for the board to find a violation in this case, it has to ignore the court's rationale and ignore the legislative history.
Justice John Paul Stevens: Suppose the employer orders an employee to come to work and to perform a grievance functions.
That is all he says, please come to work, I have got some grievances to be settled, will you please come and settle it for me and the employee crosses the picket line and he is fined.
And he has crossed the picket line to perform those duties and performs them and is fined for it, is that a violation?
Mr. Julius Reich: That is a violation.
Justice John Paul Stevens: And if he says, please come to work generally and part of his duties happen to be settling grievances and he does them and he does settle them and the employee is then fined by the union, what about that?
Mr. Julius Reich: That may or may not be a violation under these circumstances.
In Oakland Mailers, the board took the position that a supervisor who is disciplined for the manner in which he adjusts grievances for the manner in which he carries out his supervisory functions, that the union violates the Act by restraining in course any employer through such discipline.
And under Oakland Mailers that would be a violation.
It would be a violation if the union restrained and if the union disciplined the supervisor for the manner or because he adjusted grievances.
This decision goes beyond Oakland Mailers because the board takes the position that is not necessary to show that the supervisor had any grievance adjustment functions when he crossed the line.
As an example of that, I cite you to the case of the story editors.
The story editors in our case only supervise writers.
This was a successful strike.
There were no writers to supervise.
There was no grievance to adjust.
There was no bargaining for the story editors to do.
Despite that, the board proceeds on a theory that so long as he has the authority whether used or not, to adjust grievances or to engage in collective bargaining, there is a violation and we understand the law to be that the board must come up with evidence that the union disciplines the supervisor because of the manner of his performance of his (8)(b)(1)(B) functions or because he performed (8)(b)(1)(B) functions.
Justice John Paul Stevens: So, if the employer says to the employee, please come to work, I may have some grievances to be settled.
Come over here and sit around and if there are any, I want you to settle them and he goes.
Nothing happens, no grievances and he come home and he is fined, well what about that?
Mr. Julius Reich: No, I would say no fine in it.
I would say that a discipline in that case would be violation.
Justice John Paul Stevens: So, are you saying that the board's ruling can be set aside here as was done by the Court of Appeals and leave Oakland Mailers good law?
Mr. Julius Reich: That is right.
I do not think that this ruling has anything to do with Oakland Mailers because the board in this case went beyond Oakland Mailers.
Chief Justice Warren E. Burger: Florida Power unlike did not overrule Oakland Mailers?
Mr. Julius Reich: No, I am not suggesting that it did and I am not suggesting that this court even has to get to Oakland Mailers.
I am suggesting that under the theory expressed by the board, it is gone beyond Oakland Mailers.
The carryover which the board expresses says that because the supervisor will be deterred by the discipline on this occasion from crossing the unions picket line and future strikes, the discipline is a violation of the Act and I read that on page 17 of the board's brief and at page 7 note 5 of the board's reply brief.
That simply ignores what this court took 8 pages to express and in Florida Power, namely that the employer can avoid this carryover effect in the future strike by requiring that the supervisor withdraws membership from the union or by not having permitted him to be a member in the first place.
Justice John Paul Stevens: But there is a difference in this case, these employees were told very unambiguously before the strike began that they could not resign during the course of the strike.
Mr. Julius Reich: Yes.
Justice John Paul Stevens: And that is a substantial difference in fact between this case and Florida Power Light and Illinois Bell and the others?
Mr. Julius Reich: You are right your Honor.
It is a difference while I would argue.
First of all, I would point out that Mr. Bakaly was incorrect when he said that the rule was that you could not resign for two years.
In fact, not that it makes substantial amount of difference but the rule was that you could not resign for six months after negotiations and that was at page 579 of the appendix.
But the rule was that you could resign prior to entering in to negotiations and so that the employer have the option before the strike started, before the negotiation started.
But I acknowledge that this case is a little bit more difficult because of that but that does not make any difference to the board's theory because it has found a violation on the same theory in other cases, one which is presently before this court on the petition for certiorari, the Hammond Case, regardless to the fact that there was not that restraint of resignation.
What it comes down to as both Mr. Bakaly and Mr. Keaton argued is that it is to onerous for us to require our supervisor members to withdraw from membership in the union and in fact the board found in this case that it was a substantial benefit to the employers to have their supervisors, members of the unions.
But that is not the line that this court should draw.
That is the line that Congress drew and Congress said that the option is with the employers and if it is too onerous then the employers have to petition Congress or they have to give something up.
They have to give something up in terms of negotiating something in the agreement or as they did in this case, what they did was to tell the supervisors that we will reimburse you for any fines that you are required to pay and we will provide a lawyer for your defense and that is what has happened.
Our view is that in Oakland Mailers the board found a violation by union discipline for the manner in which the supervisor had carried out his supervisory duties.
In the present set of cases, the board says that it does not matter how the supervisor carries out his supervisory duties and it does not matter whether he in fact does any supervisory duties, in this case we have what we have describe in our supplemental brief as non-struck rank-and-file work, that is the A to H work, but that is not an issue so far as the board is concerned.
Any discipline for any reason, other than performing 50% rank-and-file struck work is in the board's view a violation and that it seems to us overlooks the second major point that this court stressed in Florida Power and namely that there is a distinct difference between (8)(b)(1)(B) functions.
The two things collective bargaining and grievance adjustment and those functions that are normal supervisory functions that are contained in Section 211 of the Act.
Now, the board simply obliterates the distinction between them and does not even allude to that distinction in this court's decision.
In this case, a violation was found despite as I have said the fact that there was scant evidence of any (8)(b)(1)(B) functions by anybody and no evidence of any (8)(b)(1)(B) functions at least with respect to story editors.
As an afterthought in the board's supplemental brief, they state that the employers were restrained in course in the interim between the time that the union announced its strike rules and the time that the supervisors came to work, the employers did not know whether they would have those supervisors at work and therefore their production expectations were up in the air.
Well, I think it is sufficient to point out that the board's argument to that effect was not supported by a citation to the record or by a citation to a board findings, I guess there was not.
With respect to the threats, the board based its findings of a violation on the conclusion that since the discipline is a violation, the threat is a violation.
And if that is the board's theory, then the same arguments that are made with respect to the discipline are also applicable to the threats.
The board's brief goes on to state the deprivation theory and in our view, the deprivation theory requires at a minimum that at least under Oakland Mailers that a person was restrained in course; the person was disciplined for the manner in which he performed his supervisory functions, a finding which was not made and which was deemed not relevant to the board's theory.
Thank you, your Honor.
I would like to reserve any remaining time for Mr. Gold.
Chief Justice Warren E. Burger: Mr. Gold.
Argument of Laurence Gold
Mr. Laurence Gold: Mr. Chief Justice and may it please the court.
In the time I have, I would like to begin by outlining the board's various approaches to Section (8)(b)(1)(B) to stating the defects in those approaches as we see them and finally to suggesting what we consider to be the proper reading of that provision.
For the first 20 years after this provision which had received the support of both of the majority and the minority in the Senate and one of the very few provisions in Taft-Hartley to do so was enacted.
The board took the position consistent with the language and legislative history that if a union applied economic pressure directly against an employer to get him to change his collective bargaining or grievance handling representative that was a violation of the law and we take no issue at all whatever with that reading of that statute.
As the court described the change in the board's thinking in the Oakland Mailers Case, the board moved on to the proposition that disciplinary action against an individual, a supervisor member for the way he performs his grievance handling or collective --
Justice Potter Stewart: (8)(b)(1)(B) says nothing about supervisors.
Mr. Laurence Gold: No, that is why I corrected myself Mr. Justice Stewart.
Justice Potter Stewart: No supervisory functions.
Mr. Laurence Gold: We agree with that point entirely.
What I meant to say was that Oakland Mailers, the board said that discipline of supervisor members for the way they perform grievance handling or collective bargaining functions violates the Act as well as economic pressure directly on the employer.
And while I return to that holding, I think it suffices to say here that at least the board's approach to that point had the virtue of confining itself to the subjects that Congress had indicated it wished regulated namely the selection of grievance handling and collective bargaining representatives.
Justice Potter Stewart: A representative for the purpose of collective bargaining or the adjustment of grievances may or may not be a supervisor in fact.
Now, it is relatively coincidental.
Mr. Laurence Gold: That is right and in the normal collective bargaining situation one that Congress was most particularly concerned about, the employer said he will not be a supervisor.
Then the board took what we regard as the quantum step in this progression and stated the rule that Section (8)(b)(1)(B) is a general prohibition of union discipline of supervisor members for the conduct in the course of representing the interest of the employer that is the board's language.
And that theory came to this court in the Florida Power and Light Case because the board said that doing rank-and-file struck work turn strike was conduct in the course of representing the interest of the employer and that discipline of that type by the union was therefore a violation of Section (8)(b)(1)(B).
This court rejected both the theory as applied in that case and we most strenuously argue rejected the reasoning as well.
Since Florida Power and Light, the sum total of the board's recognition of this court's decision and its reasoning in Florida Power and Light, is to say that (8)(b)(1)(B) is a general prohibition of union discipline of supervisor-members except for members who spend a minimal amount of time performing supervisory duties.
For everybody else, even if the individual performs struck work, the pre-Florida Power and Light rule continues to represent the board's thinking.
So not only has the board ignored the reasoning of this court's opinion in that case but we would submit it to even narrowed the holding because there can be instances in which a union disciplines a member for performing struck work and in which the board will say that the discipline is unlawful namely a situation in which he also performed more than a minimal amount of supervisory activity.
So even in that situation we say the board has given very little credence to this court's approach to the problem.
We think the defects in the board's thinking since Oakland Mailers can be summed up as follows: First and most importantly, the board destroys another interest recognized by Congress in 1947.
The interest that it destroys is the union's right to discipline members which by and large was left untouched by Congress in 1947 and as a historic fact in this court has noted this fact Congress very well understood in 1947 that union's disciplined their members.
There is nothing left of that right under the board's theory as regards the supervisory members.
We do not think that the board has the authority to view the statute as a one value statute and to say that the interest protected in Section (8)(b)(1)(B) that of selecting a representative to engage in grievance handling or collective bargaining is so important that all other interest must be denied and that there must be a broad prophylactic rule which prohibits discipline no matter what its purpose and no matter or whether or not it is intended to affect the protected interest.
Justice Byron R. White: Would you agree that if the union fine one of this hyphenates here for performing at all a grievance adjustment that would be a violation?
Mr. Laurence Gold: Yes, your Honor I do.
Justice Byron R. White: And if he went to work and part of his work was the grievance adjustment but the other part was not but it nevertheless was not rank-and-file so to speak and the union fined him for whatever he did, would that be a violation?
Mr. Laurence Gold: Well, our view on that is that at that point the question becomes the union?s purpose and the board would have to make findings of fact.
In the union's supplemental brief, it refers to this court's opinion and the American Ship case.
Justice Byron R. White: But did the union here not take the position that you cannot go to work without being fined and no matter what you are going to do with the work.
Mr. Laurence Gold: Well, I do not think that the union took that position.
The matter simply was not'
Justice Byron R. White: Suppose it did?
I thought the union in the hearing, I thought the general counsel or the lawyer representing the union took the position, it did not make any difference what the purpose of the person going to work was, they were going to fine it.
Mr. Laurence Gold: Well, that simply is not my understanding.
I do not believe that is the case here.
Justice Byron R. White: Here is the administrative law judge.
It was stipulated that the hearing in this matter that counsel for respondent who participated in the disciplinary hearings instituted by respondent would testify that each of the position at such hearings that the hyphenates charged are subject to discipline for crossing respondent's picket line without regard whether they cross the picket line for the purpose of performing bargaining services.
Now, let us assume the union said, we do not care what you are going to work for, you may or you may not be performing collective bargaining work, but even if you are, you are going to be fined.
Mr. Laurence Gold: Well, I think at that point, the union is taking a terrible chance at the least.
If they in fact perform a collective bargaining or grievance handling functions.
Justice Byron R. White: Well, here is the administrative law judge making a finding.
It is clear and it has been found that the normal performance of the hyphenates primary functions involves the adjustment of employee grievances, now do you accept that or not?
Mr. Laurence Gold: I accept that but the problem with that point in this case is that is not responsive to the issue because we think the question is whether they perform such activities during the strike and if so, whether the union disciplined them for doing that as opposed to performing other activities.
Justice Byron R. White: But if the threats succeed, they will never show up and presumably whether or not there is that sort of work to be done, they will not be there to do it.
Mr. Laurence Gold: In the situation of a threat, it may well be that the proper rule is that the union has to more carefully state its intent than was done here.For example, if there are people who perform both a grievance handling work and other work for the employer it might be that the proper rule is that union must say we will discipline people who cross our picket line and perform non-(8)(b)(1)(B) work.
I would not argue that that is a rule that the board could not reach.
All I say at this point is that the board is nowhere near having thought through the problem to that extent because it is still taking the position that whatever the individual does after he crosses the picket line and whatever the union's purpose, there is a violation as long as that person sometimes handles a grievance and that we believe is absolutely wrong.
Justice John Paul Stevens: But your general counsel at the hearing apparently took the other extreme position.
Are you judging from the colloquy that Justice White read?
Mr. Laurence Gold: Yes, let me just say that I am here arguing for the AFLCIO, not for this particular union and even if I were arguing for the union, maybe I would feel free to disagree but I certainly do disagree arguing for the client I am arguing for and?
Justice John Paul Stevens: I do not doubt you of the authority to do it.
Mr. Laurence Gold: I am not sure what my authority would be representing a particular union.
But at any rate, our view is that the board has to find that individual who was disciplined actually performed grievance handling or collective bargaining work and that the union fined him or otherwise disciplined him for doing so and that means in a situation in which somebody crosses a picket line and performs only grievance handling or collective bargaining work and the union fined him the board's general counsel have a relatively easy case to prove where somebody crosses a picket line and performs some grievance handling work and some other work then you would have the classic case that you always have under Section 8(a)(3) of the Act which prohibits employer discipline of employees for engaging any union activity that normally arises.
And as I was about to say when Mr. Justice White asked me the question that began this discussion in the union's supplemental brief, they refer to the American Ship Case and it does seem to us that that is helpful in putting this section in perspective.
In 1935, Congress said to employees, who cannot discipline employees for engaging in protected activity but did not prohibit employers from disciplining people for breaking sharp rules.
The board has never and we believe that it is plain they could not say that because employees will suspect that when a union activist is disciplined for breaking a sharp rule, everybody in the plant will fear discipline that the employers have lost their right to discipline people for breaking sharp rules.
And because employees both engaged in union activity and to earn a living continue to work to the employer and subject to his rules, the board in an (8)(a)(3) Case must show not that the person who is fired or otherwise disciplined was engaged in protected activity but also that the employer's purpose was to punish him for doing so.
Justice Byron R. White: The thing that brought on these proceedings was the fine.
I take it after a proceeding within the union.
Mr. Laurence Gold: Yes.
Justice Byron R. White: And what is the union's burden before it can fine the person who has crossed a picket line?
The union's position apparently in those hearings was, we do not care once you cross the picket line for, we are going to fine you.
That is what the record shows.
Now, is the union free to do that?
Does it not have some burden there to show that it was not fining him what its purpose was?
They seemed to take the position it does not make it whether you cross the picket line to a just grievances or not you are going to be fined.
Mr. Laurence Gold: Well, the situation the union found itself and here as I understand it is that these people who disciplined people did not appear at trials, is that correct?
Justice Byron R. White: Yes.
Mr. Laurence Gold: Most did not and so the union is left with the situation that its people are not at the plant.
Justice Byron R. White: I give you the administrative law judges the second time that he said it in his opinion, it was stipulated that respondent's counsel during the disciplinary hearings was not concerned with what work the hyphenates did when working during the strike.
Mr. Laurence Gold: If I may in that, it may have been the respondent's argument before the administrative law judge.
I suspect that it was his --
Justice Byron R. White: This is the description of what the union's position was during the disciplinary hearings inside the union.
Mr. Laurence Gold: Well, my view on that is if the union goes forward in that way and the people actually performed grievance handling activity, I think that the general counsel by proving both the performance and the union's disinterest has proved a bad motive.
But let us take another case.
Suppose the union fines a particular individual for working for the employer and it turns out that he did not do any Section (8)(b)(1)(B) work for that employer.
I do not see how the union has committed any violation at all.Certainly, if an employer disciplines somebody for breaking a sharp rule and it turns out that that employee was not engaged in any protected activity has not violated (8)(a)(3).
Justice Byron R. White: Yes, but the union fines him and says, we do not care what you did, you could have been engaged exclusively in collective bargaining but we are fining you and we are not going to make any record about what you did or what you did not do but you are fined.
Mr. Laurence Gold: Well, as I say, in that situation if the individual in fact performs Section (8)(b)(1)(B) activity, it would be my view that the union might well in that situation commit a violation.
Justice Byron R. White: Well then how about this fining of the administrative law judge that the duty of this hyphenates did include collective bargaining and adjustment of grievances.
Mr. Laurence Gold: But as I attempted to say before, that is a general statement of what they are overall job description include as Mr. Reich has pointed out at least one group of the disciplined individuals here where the story writers who could not have performed any grievance handling or collective bargaining functions during the strike because they did not engaged in collective bargaining and because there were no writers there to supervise and handle grievances.
So, the board does not care at all whether or not the individuals performed Section (8)(b)(1)(B) functions.
It finds a violation on a general theory that if no matter what the union fines people for what its interest is, what its motive is and what they have done during the strike, it is illegal because it may have some effect on the way that they will carry out their collective bargaining or grievance handling functions in the future.
And what we say is that is just like saying that whenever an employer disciplines somebody for breaking a sharp rule that is a violation of section (8)(a)(3) on the ground that employees may in the future fear to engage in protected activity and whether or not that individual actually broke the sharp rule and the employer was motivated by the breach of the rule.
There are many ways and the board has 40 odd years of experience improving what motive is in these situations where people are sometimes engaged in protective activity and sometimes engaged in a un-protective activity and you do not solve the problem by taking away under one instance the employer's right to discipline which he had prior to 1935 or to take away from the union completely its right to discipline the supervisory members which unions had prior to 1947 and which there is no indication that Congress intended to take away.
Justice John Paul Stevens: Mr. Gold, do you agree that some of the hyphenates refrain from crossing the picket line in response to the union's prohibition?
Mr. Laurence Gold: Your Honor, in regard to that we agree with the statement made in the union's supplemental brief that it might well have been within the board's province to find that as a fact if it had inquired into the issue.
But it did not attempt to do so and all we can say is that if that issue would go back to the board for it to make a determination of whether the threat had that effect and it found that it did not have substantial evidence to support it, we would not say that the board had not shown a violation to that extent.
Justice Potter Stewart: Now would not the board in your submission also have to fine that had they crossed the picket lines, these hyphenates would have performed (8)(b)(1)(B) functions?
Mr. Laurence Gold: Oh yes.
What I meant is perform -- would have proved the case as to those people who would have performed (8)(b)(1)(B) functions during the strike.
In other words, if the union threatened the story writers who had no (8)(b)(1)(B) functions to perform and concededly so as far as the record shows, we do not think there would be a violation.
But if a union threatens somebody who was to use an example that Mr. Justice White has given, if the union was to say to somebody who walked up to a picket line and said, I have been called into adjust grievances and the union says, if you do so we will fine you.
In that situation, we would agree?
Justice Lewis F. Powell: But let us take this situation.
Let us assume there were only half-a-dozen hyphenates and all of them in response to union rule and instructions not to cross the line, refrained from doing so, at that point, no one could be sure I supposed whether or not there would be a need for grievance adjustment.
Suppose the record was silent and as to whether or not such a need actually arose, would there be an 8(b)(1)(B) violation there?
Mr. Laurence Gold: Well, our view on that Mr. Justice Powell would be that part of the general counsel's case would be to show that the employer had grievance handling or collective bargaining activities that he wanted performed that he asked these people to do so.
So, I think that is the first point in case that he must prove.
Justice Lewis F. Powell: Well, he must be arguable that management was entitled to have at least some of its representatives they are to deal with the situation or perhaps unforeseeable that might arise.
Mr. Laurence Gold: I would say that in a situation in which the employer says, I want you to come to work to perform grievance handling functions or collective bargaining functions as they arise, and the union threatened to fine the individuals who obeyed that order that you would have an unlawful threat.
But if the employer said, I want you to come to work and do whatever I tell you to do, then it is our view that the union would violate the law only if the individuals actually did one of these two (8)(b)(1)(B) functions and nothing else or that they performed this (8)(b)(1)(B) functions as well as other activity and the union was motivated by their performance of (8)(b)(1)(B) functions to discipline them.
So that is the line we draw -- only (8)(b)(1)(B) functions we concede the union can either threatened them or actually discipline them.
If they performed both protected and unprotected activity then we say the situation presented here is the same as the classical (8)(a)(3) case and the general counsel to prove a violation must show that the union was motivated by a desire to punish them for performing the (8)(b)(1)(B) functions or also the way they performed.
And that would be the line and we believe that that protects the employer's interest to select anyone he wants to perform (8)(b)(1)(B) functions and protects the union's right to discipline members for breaching the union's rules against working during a strike.
It gives each part of this overall spectrum precisely as well as one can judge Congress believed or to be given to the employer and to the union and it destroys nothing of substance of either side.
Now it is argued on the employer side that they do not very much like what Congress gave them because what they would really benefit them would be the right to have individuals handled both grievances and collective bargaining and perform other supervisory functions and have those individuals immune from discipline.
Because it is inconvenient or expensive to them to have somebody only just grievances or only engage in collective bargaining they would like to combine these various functions in one person and assure that that individual cannot be disciplined for anything he does.
And our view on that is that there are many things we would like as well that the statute does not provide us and that there is no way that we concede in reading the statute which would give the employers what they want without destroying entirely the other interest which Congress recognized in 1947.
Justice Byron R. White: Mr. Gold maybe I misunderstood you, I thought you said that if a supervisor performed 100% (8)(b)(1)(B) work he would be immune from discipline.I think you conceded that?
Mr. Laurence Gold: Yes.
Justice John Paul Stevens: Suppose he did not pay his union dues, could he not be disciplined by that?
Mr. Laurence Gold: Well I am sorry.
He would be immune for discipline for his conduct as an employer representative.
I do not know of any case in which ?
Justice John Paul Stevens: Maybe he is just immune from discipline for performing the (8)(b)(1)(B) work.
As I say, he did not pay his dues or some other neutral requirements.
He would be like any other supervisor, would he not?
Mr. Laurence Gold: I would think so, I have never even seen a complaint issued which said that supervisor members even when they handle grievances are immune from the normal legal requirements.
Our view is that what Congress said was that if you credit Oakland Mailers is that we cannot go after them for performing (8)(b)(1)(B) functions or the way they performed (8)(b)(1)(B) functions and what the board is saying is that we cannot do anything to them ever because of the supposed carryover or deprivation effects and that is the difference.
Justice Byron R. White: That is the effects on the employer, (8)(b)(1)(B) is directed exclusively to coercion of the employer, it does have anything to do with freedom of any employers, supervisory or otherwise.
Mr. Laurence Gold: Right.
Justice Byron R. White: It has to do with coercion upon the employer.
Mr. Laurence Gold: That is right and it is one thing to say that the employers coerce the way you deprive him of somebody who is loyal in carrying out the grievance handling function which is the Oakland Mailers step and is at least a step from the plain meaning of the statute.
But it is quite another thing to say that if your ostensible purpose is far removed, you also commit a violation just in the minute I have, I would say that the board's theory in this regard that no matter what your reason for disciplining the supervisor member is you commit an (8)(b)(1)(B) violation is the same type of theory presented to this court in Teamster's Union v. Labor Board and Labor Board v. News Syndicate, the hiring court cases where they said that any union involvement in the hiring process through its own representatives was per se a violation because the people subjected to that system would fear that the union would act improperly and this court in those cases said no it is like (8)(a)(3) and the board must prove its case.
Thank you very much.
Chief Justice Warren E. Burger: Thank you Mr. Gold.
Mr. Come you have about four minutes left.
Rebuttal of Norton J. Come
Mr. Norton J. Come: Yes.
I would just like to -- well on one point, as it was pointed out earlier, we are not dealing here with Section (8)(a)(3) which describes discrimination, encourage or discourage union membership or it is well settled that ordinarily motive is a crucial ingredient.
We are dealing here with (8)(b)(1)(B) which prescribes restraint and coercion of the employer and it is equally well settled that there the test is normally the reasonable tendency of the conduct.
Now, the union here as I understand its position concedes that if the union threatened a supervisor for going to work to perform grievance adjustment and collective bargaining functions, that would be a violation of (8)(b)(1)(B) even if the threat were not effective.
The employer would be restrained and coerced by such a threat.
They say however, that there was no finding here that the union intended to discipline them for performing grievance adjustment and collective bargaining purposes.
There are two answers to that contention.
In the first place, on this record, they cannot be heard to make such an argument because in view of the file examiners findings that Mr. Justice White alluded to, the union made it quite clear that they were indifferent to whatever work it was that the hyphenates performed, they were going to be disciplined for that.
And where a union couches its threat that broadly in a circumstance where the individuals involved are cloaked with collective bargaining and grievance adjustment functions, it must be deemed to have intended to effect their collective bargaining and grievance adjustment functions.
But beyond that we submit that it is irrelevant whether the union intended to discipline the hyphenates from performing over on the grievance adjustment or collective bargaining functions because in the real world, an employer does not select a representative just for grievance adjustment or collective bargaining functions.
These are only part of the representatives total functions and a union assurance that a representative can go in to perform collective bargaining assuming that you have a representative as you had here who was armed with those functions as well as others that he can only go in to perform those but if he performs any of his other functions, he is going to be fined, he is going to restrain the employer no less than if they merely said you cannot go in there and perform collective bargaining and grievance adjustment functions because no employer is likely to hire only a half management representative and therefore we submit that you have to look at the reasonable tendency of the union's conduct and on the facts here, the board properly concluded that the reasonable tendency of it was to restrain the employer in the selection of his representative for (8)(b)(1)(B) functions.
Chief Justice Warren E. Burger: Thank you Mr. Come.
Thank you gentlemen.
The case is submitted.