487 F.2d 1113 | D.C. Cir. | 1972
Lead Opinion
Illinois Bell Telephone Company (hereinafter referred to as the Company or the Employer) and its predecessors have maintained a contractual relationship with Local 134, International Brotherhood of Electrical Workers, AFL-CIO (hereinafter referred to as Local 134) since 1909. Local 134 represents the Company’s Chicago workers in the “Plant Department,” including not only journeymen and apprentices employed as P.B.X.
Between May 8, 1968, and September 20, 1968, Local 134 engaged in an economic strike against the Company. At the inception of this strike, the Company informed the foremen that it would like to have them come to work during the work stoppage, but it told them that the decision whether to work or to respect the strike was a matter left to the personal discretion of each individual foreman. The Employer indicated that those who chose not to work would not be penalized. On the other hand, a Local 134 representative warned the foremen, at a union meeting held immediately before the strike, that they would be subject to union discipline if they performed rank-and-file work
During the course of the strike, some of the foremen reported to work and performed rank-and-file work, while other foremen chose to honor the strike and stayed away from work. After the strike, the Company in no way discriminated against the latter group, and it indeed promoted some of them to higher positions. Local 134, however, carried out its pre-strike warning and conducted disciplinary proceedings against a number of foremen.
In June of 1969, the Association filed an unfair labor practice charge with the National Labor Relations Board (Labor Board or N.L.R.B.), alleging that Local 134 and the International Union had violated section 8(b) (1) (B) of the National Labor Relations Act, as amended (N.L. R.A.),
The Labor Board concluded, in agreement with the Trial Examiner, that the Company foremen in question were “supervisors” within the meaning of section 2(11) of the Act,
The two unions' and the Association petitioned this court for review of the Labor Board’s decision, and the N.L.R.B. filed a cross-application for enforcement of its order. We affirm the decision of the Labor Board insofar as it pertains to the section 8(b)(1)(B) determination and the denial of the Association’s request to amend the complaint. However, while enforcement of the Board’s remedial order against Local 134 is granted in full, we believe that the remedial order against the International Union must be modified to reflect its proper measure of unfair labor practice responsibility.
I
Section 8(b)(1)(B) of the N.L. R.A. prohibits union coercion or restraint of an employer “in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances”.
A. OAKLAND MAILERS AND ITS PROGENY
In San Francisco-Oakland Mailers’ Union No. 18, International Typographical. Union, 172 NLRB No. 252, 1968-2 CCH NLRB ¶20,195 (1968), the N.L. R.B. held illegal union actions which “were designed to change the [employer’s] representatives from persons representing the viewpoint of management to persons responsive or subservient to [the union’s] will.”
In enacting Section 8(b)(1)(B) Congress sought to prevent the very evil involved herein — union interference with an employer’s control over its own representatives. That [the union] may have sought the substitution of attitudes rather than persons, and may have exerted its pressure upon the [employer] by indirect rather than direct means, cannot alter the ultimate fact that pressure was exerted here for the purpose of interfering with the [employer’s] control over its representatives. Realistically, the Employer would have to replace its foremen or face de facto nonrepresentation by them.18
This conduct of the union could very well be considered as an endeavor to apply pressure on the supervisory employees of the [employer], and to interfere with the performance of the duties which the employer required them to perform * * * and to influence them to take action which it, the employer, might deem detrimental to its best interests. This conduct of the union would further operate to make the [supervisory] employees reluctant in the future to take a position adverse to the union, and their usefulness to their employer would thereby be impaired.
437 F.2d at 57 (emphasis supplied). See New Mexico District Council of Carpenters and Joiners of America, 177 NLRB 500, 502 (1969), enfd., 67 L.C. ¶[ 12, 403 (10th Cir. 1972); N.L.R.B. v. Sheet Metal Workers Intern. Ass’n, Local 49, A.F.L.-C.I.O., 430 F.2d 1348, 1349-1350 (10th Cir. 1970); Local Union No. 2150, International Brotherhood of Electrical Workers, 192 NLRB No. 16, slip op. at 5-6 and cases cited n. 5, 1971 CCH NLRB P3,280 (1971).
This court has also recognized the fact that the imposition of fines upon supervisory employees may coerce or restrain their employer in the effective selection of his representatives within the meaning of section 8(b)(1)(B). See Dallas Mailers Union, Local 143 v. N.L.R.B., 144 U.S.App.D.C. 254, 259, 445 F.2d 730, 735 (1971). Although we did not expressly evaluate the propriety of the legal rationale underlying the Oakland Mailers’ line of cases in our Dallas Mailers opinion, we implicity recognized its correctness. However, in our subsequent Meat Cutters opinion,
The Supreme Court has recognized the fact “that labor legislation is peculiarly the product of legislative compromise of strongly held views, Local 1976, United Broth, of Carpenters & Joiners of America [A.F.L.] Union v. National Labor Relations Board, 357 U.S. 93, 99-100, 78 S.Ct. 1011, 1016-1017, 2 L.Ed.2d 1186, and that legislative history may not be disregarded merely because it is arguable that a provision may unambiguously embrace [or not embrace] conduct called in question. National Woodworkers Mfrs. Assn. v. N.L.R.B., 386 U.S. 612, 619-620, 87 S.Ct. 1250, 1266, 18 L.Ed.2d 357.”
Section 8(b)(1)(B) must not be examined in a vacuum. It must instead be interpreted in conjunction with the other 1947 amendments to the N.L.R.A. relating to supervisory personnel.
Congress was aware of the potential conflict between the obligations of foremen as representatives of their employers, on the one hand, and as union members, on the other. Section 2(3) evidences its intent to make the obligations to the employer paramount. That provision excepts foremen from the protection of the Act. Its purpose was to give the employer a free hand to discharge foremen as a means of ensuring their undivided loyalty, in spite of any union obligations. See H.Rep. No. 245, 80th Cong., 1st Sess. 14-17 (1947); S.Rep.No. 105, 80th Cong., 1st Sess. 3-5 (1947); L.A. Young Spring & Wire Corp. v. National Labor Relations Board, 1947, 82 U.S.App.D.C. 327, 163 F.2d 905, certiorari denied 1948, 333 U.S. 837, 68 S.Ct. 607, 92 L.Ed. 1121 * * *25
In Meat Cutters, we considered this prior analysis of the 1947 legislative history and concluded that “[a] supervisor’s obligations to his union simply cannot detract from the absolute duty, evidenced by section 8(b)(1)(B), which he owes to his employer when exercising his managerial authority.”
To ensure the accomplishment of the clear intention of Congress when it enacted section 8(b)(1)(B), that provision must not be interpreted in a hyper-technical manner. To construe that section as only applying to union discipline of a supervisor based upon his actions on behalf of management regarding a specific disagreement with the union over the proper interpretation of the collective bargaining agreement or the adjustment of a particular grievance, would defeat the reasons underlying Congress’ enactment of section 8(b)(1) (B). When a supervisor is disciplined by a union because of the manner in which he exercised his supervisory or managerial authority — whether or not he was applying a contract provision or adjusting a grievance — that disciplinary action necessarily impinges upon the supervisor’s loyalty to his employer, thereby effectively depriving the employer of the undivided loyalty which he has the right to expect under section 8(b)(1)(B). The fact that in such a situation the union “may [seek] the substitution of attitudes rather than per
The fact that section 14(a) of the N.L.R.A.
8(b)(1)(B). See Toledo Locals Nos. 15-P and 272 of the Lithographers and Photo-Engravers International Union, 175 NLRB 1072, 1080 (1969), enfd., 437 F.2d 55 (6th Cir. 1971); Local Union No. 2150, International Brotherhood of Electrical Workers, 192 NLRB No. 16, slip op. at 5, 1971 CCH NLRB ¶23,280 (1971).
B. EFFECT OF ALLIS-CHAL-MERS AND SCOFIELD
In our previous Meat Cutters decision, we briefly explained why the rationale underlying the Supreme Court’s decisions in Allis-Chalmers
In Allis-Chalmers and Scofield, the Supreme Court sanctioned the imposition of fines by unions on employees— not supervisors — who had violated valid union rules. However, those cases, unlike the present one, concerned the scope of section 8(b)(1)(A) of the Act,
Under the reasoning of Allis-Chalmers and Scofield, only legitimate internal union affairs are protected. See N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 185-187, 195, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967); Scofield v. N.L.R.B., 394 U.S. 423, 428, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969).
Supreme Court decisions issued subsequent to Allis-Chalmers have made it expressly clear that the Allis-Chalmers rationale only permits “a union * * * to enforce a properly adopted rule which reflects a legitimate union interest [and] impairs no policy Congress has imbedded in the labor laws * * * ” Scofield v. N.L.R.B., 394 U.S. 423, 430, 89 S.Ct. 1154, 1158, 22 L.Ed.2d 385 (1969) (emphasis supplied), and see 394 U.S. at 429, 432, 89 S.Ct. 1154. See N.L.R.B. v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968); Booster Lodge No. 405, International Association of Machinists and Aerospace Workers v. N.L.R.B., 148 U.S.App.D.C. 119, 126, 459 F.2d 1143, 1150.
II
Having discussed the general principles which apply to section 8(b)(1)(B) cases such as the instant one, and the applicability of the Allis-Chalmers and Scofield reasoning to section 8(b)(1) (B) situations, we turn to an evalua
A. SUPERVISORS WHO PERFORMED RANK-AND-FILE WORK DURING STRIKE
Although the Employer did not require his supervisors to report to work during the 1968 strike, the Company made it very clear that it wanted them to perform rank-and-file work in place of the striking employees. However, despite the fact that the Company took action to allow its supervisory personnel to exercise their own personal discretion in this matter, Local 134 sought to prevent this by threatening the imposition of discipline on any supervisor/member who decided to further the interests of his Employer by acceding to the request of the Company and performing rank- and-file work during the work stoppage. When Local 134’s threats were not sufficient to deter some of the supervisors from honoring the request of their Employer, the union imposed fines of $500 on each.
The Labor Board correctly recognized that the disciplinary actions taken by Local 134 were a direct result of the fact that those supervisors who reported to work during the strike placed the interests of their Employer above those of their union. It further emphasized the fact that actions of Local 134 “were designed to change the [Company’s] representatives from persons representing the viewpoint of management to persons responsive or subservient to [Local 134’s] will.”
The underlying dispute giving rise to the imposition of the penalties in question was directly between the union and the Company—not between the union and the supervisor/members. Local 134 called the strike to encourage a collective bargaining settlement favorable to it. Although the union had the right to insist upon the loyalty of those employee/members who were in the bargaining unit covered by the strike,
It is well recognized that “the use of economic pressure by the parties to a labor dispute is not a grudging exception to some policy of completely academic discussion enjoined by the Act; it is part and parcel of the process of collective bargaining.” N.L.R.B. v. Insurance Agents International Union, 361 U.S. 477, 495, 80 S.Ct. 419, 430, 4 L.Ed.2d 454 (1960) (emphasis supplied). It is readily apparent, therefore, that when supervisors’ actions during an economic strike further the interests of their employer, they are performing in a manner which could reasonably be expected from such persons. See Local Union No. 2150, International Brotherhood of Electrical Workers, 192 NLRB No. 16, 1971 CCH NLRB ¶23,280 (1971). See also Texas Co. v. N.L.R.B., 198 F.2d 540 (9th Cir. 1952). As management representá
The Union’s fining of the supervisors who were acting in the Employer’s interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors. Thus, the fines, if found to be lawful, would now permit the Union to drive a wedge between a supervisor and the Employer, thus interfering with the performance of the duties the Employer had a right to expect the supervisor to perform. The Employer could no longer count on the complete and undivided loyalty of those it had selected to act as its collective bargaining agents or to act for it in adjusting grievances.46
The two unions argue that the Labor Board erroneously concluded that the Employer was “restrained or coerced,” within the meaning of section 8(b)(1)(B), by Local 134’s imposition of disciplinary fines, on the theory that the Company did not require its supervisors to perform rank-and-file work during the strike. However, this contention overlooks the fact that the Employer clearly expressed his desire by requesting (without ordering) the supervisors to perform such work in furtherance of the Company’s bargaining interest. It also ignores the possible detrimental effects which such disciplinary action might have upon the future relationship between the Employer and its supervisors. It is also contrary to the well settled judicial decisions interpreting the meaning of “restraint or coercion.”
“[I]n determining whether a § 8(a)(1) or § 8(b)(1) violation has been committed, the answer does not ‘turn on * * * whether the coercion succeeded or failed *' * * the test is whether the employer [Union] engaged in conduct which, it may be reasonably said, tend[ed] to interfere with the free exercise of [the rights protected] under the Act.’ N.L.R.B. v. Illinois Tool Works, [7 Cir.,] 153 F.2d 811, 814 * * *” Local Union No. 167, Progressive Mine Workers of America v. N.L.R.B., 422 F. 2d 538, 542 (7th Cir.), cert. denied, 399 U.S. 905, 90 S.Ct. 2198, 26 L.Ed.2d 560 (1970). See Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N.L.R.B., 147 U.S.App.D.C. 375, 382, 458 F.2d 794, 801 n.20. The fact that the Labor Board did not examine the subjective effect upon the Employer of the union discipline with respect to each supervisor does not detract from its conclusion that the disciplinary action was illegal, since the Board reasonably deter
B. SUPERVISORS WHO FORMED THE ASSOCIATION
We believe that the Labor Board properly determined that the fining of those supervisors who participated in the formation of the Association constituted a separate section 8(b) (1) (B) violation. The Board resolved this issue in the following manner:
[T]he Bell Supervisors Protective Association arose out of relations among the supervisors, the Company, and the Union, and not * * * out of relations solely between the supervisors and the Union. The Association was formed because the Union threatened to fine supervisors for working during the strike, and to protect or aid those who desired to work. As the Association had its inception as a response to what is here found to be illegal union conduct, it is not unreasonable to extend the finding of illegality to cover the Union’s fines relating to the Association. Although the Company was not a party to the creation of the Association, the relationship of the supervisors to the Company underl[ay] the creation of the Association just as it underl[ay] the action of the supervisors in working during the strike. To separate the two sets of fines would be highly legalistic and unrealistic, a practice on which the Board has properly frowned on past occasions, prefering [sic] to treat situations “as a whole.”48
“[W]here the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court’s function is limited. * * * [T]he Board’s determination * * * is to be accepted if it has ‘warrant in the record’ and a reasonable basis in law.” N. L. R. B. v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944). We believe that the Labor Board’s treatment of this issue not only comports with the general principles underlying section 8(b)(1)(B),
Ill
The Labor Board wholly adopted the Trial Examiner’s determination that the International Union violated section 8(b)(1)(B) of the N.L.R.A., due to its affirmance, on appeal, of Local 134’s disciplinary actions.
To rectify the effects of the unfair labor practice, the Labor Board issued the usual cease and desist order, and it affirmatively required both unions (1) to rescind the illegally imposed fines and expunge all records pertaining thereto; (2) to provide separate written notices for each disciplined supervisor; and (3) to reimburse the foremen for any fines already paid by them. However, with respect to the individual written notice requirement and the provision concerning the reimbursement of already collected fines, the-Board only imposed secondary responsibility upon the International Union, with Local 134 being held primarily responsible.
It is clear that the Board’s entire remedial order concerning Local 134 is within the broad remedial discretion which it is granted under section 10(c) of the Act.
All of the union disciplinary charges concerning the improperly fined supervisors were brought at the Local 134 level. The disciplinary fines were similarly imposed at the Local 134 level, and only Local 134 has sought to collect them. The International Union’s sole action with respect to the fines imposed by Local 134 consisted of its affirmance of
The International Union should only be held liable for the illegal fines collected by Local 134, if the local union acted as its agent. “In determining whether any person [was] acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.”
This section [§ 2(13)] was enacted to eliminate the strict requirement for proof of authorization and ratification which the Supreme Court read into a somewhat comparable section of the Norris-LaGuardia Act in United Brotherhood of Carpenters and Joiners of America v. United States, 1947, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973 * * * But the legislative history of § 2(13) makes plain that Congress intended to do no more than to restore the applicability of common law agency principles of responsibility * * *
International Ladies Garment Workers Union v. N. L. R. B., 99 U.S.App.D.C. 64, 70, 237 F.2d 545, 551 (1956) (emphasis supplied). See Sheet Metal Workers’ International Association, A. F. L.-C. I. O., v. N. L. R. B., 110 U.S. App.D.C. 302, 309, 293 F.2d 141, 148, cert. denied, 368 U.S. 896, 82 S.Ct. 172, 7 L.Ed.2d 92 (1961).
Where the only action taken by a national or international union is in the nature of an appellate review of the action of a local union, and the national or international union. exercises its appellate function in good faith and in the absence of fraud, the national or international union should not be held answerable in damages to a member who was wrongfully disciplined by the local union. See Annotation, 74 A.L.R.2d 783, 800 (1960); Schouten v. Alpine, 215 N.Y. 225, 109 N.E. 244, 246 (1915). See also Madden v. Atkins, 4 N.Y.2d 283, 174 N.Y.S.2d 633, 151 N.E.2d 73 (1958). Since there is no claim that the International Union in the instant ease did not exercise its review function in good faith and in the absence of fraud,
IV
The Association has challenged that portion of the Labor Board’s decision which upheld the Trial Examiner’s refusal to permit the Association to amend the complaint on the last day of the unfair labor practice hearings, to include the allegation that the Company-Local 134 union-security agreement was in violation of section 8(a) (3) (i) of the Act.
In May of 1968, the Association filed an unfair labor practice charge with the appropriate regional office of the N.L. R.B., contending that the union-security provision in the collective bargaining, agreement between Local 134 and the Company was illegal under section 8(a) (3) (i) of the Act, since it covered a unit which included both supervisors and rank-and-file employees. The Regional Director refused to issue a complaint relating to the Association’s charge, and the General Counsel of the Labor Board upheld that decision on appeal.
[The Association’s proposed amendment] encompasse[d] charges identical to those [it had previously] filed with the General Counsel; the General Counsel [had] refused to issue a complaint. We would not entertain a frontal attempt to review the General Counsel’s decision, Retail Store Employees Union, Local 954, [Retail Clerks Intern. Ass’n, A. F. L. — C. I. O.] v. Rothman, 112 U.S.App.D.C. 2, 4, 298 F.2d 330, 332 (1962), and have not been convinced to review [it] here, through the back door.
Retail Clerks Union 1059, R. C. I. A., A. F. L.-C. I. O. v. N. L. R. B., 121 U.S. App.D.C. 140, 141 n.1, 348 F.2d 369, 370 n.l (1965). See International Union of Electrical, Radio and Machine Workers, A. F. L.-C. I. O. v. N. L. R. B., 110 U. S.App.D.C. 91, 94-96, 289 F.2d 757, 760-762 (1960).
This is certainly not a case where the Labor Board has refused to decide a material issue which was fairly tried by the parties. See American Boiler Manufacturers Association v. N. L. R. B., 366 F.2d 815, 821 (8th Cir. 1966). See also Frito Co., Western Division v. N. L. R. B., 330 F.2d 458, 465 (9th Cir. 1964) ; American Boiler Manufacturers Association v. N. L. R. B., 404 F.2d 547, 556 (8th Cir. 1968), cert. denied, 398 U.S. 960, 90 S.Ct. 2162, 26 L.Ed.2d 546 (1970). The union-security provision in question was only admitted into evidence as part of the applicable collective bargaining agreement. There was no indication, until the end of the proceedings, that its legality was sought to be in issue. The entire unfair labor practice
The decision of the Labor Board is affirmed in its entirety, and enforcement of its remedial order, as modified by this opinion with respect to the monetary responsibility of the International Union concerning the illegal fines already collected by Local 134, is hereby granted.
Judgment accordingly.
. “P.B.X.” is the abbreviation for “private branch exchange,” the telephone apparatus installed and maintained by the Company on the private premises of a customer.
. This arrangement whereby foremen and rank-and-file employees have been included in the same bargaining unit was voluntarily consented to by the Employer.
. Although collective bargaining agreements between the parties had at one time prescribed the monthly wage rates applicable to foremen, recent contracts have not contained such wage provisions. However, the agreement relevant here included a section entitled “Working Conditions for General Foremen and Foremen,” which concerned payment for overtime work and for certain absences. Furthermore, when the Company recently revised the overtime schedule pertaining to foremen, it requested the concurrence of Local 134.
. “Rank-and-file work” concerns that work which is ordinarily performed by regular, non-supervisory employees in the bargaining unit.
. Pursuant to the union-shop provision in the applicable collective bargaining agreement, these foremen were all full members of Local 134.
. 29 U.S.C. § 158(b)(1)(B) (1970) provides: “It shall be an unfair labor practice for a labor organization or its agents — (1) to restrain or coerce * * * (B) an employer in the selection of his representatives ■ for the purposes of collective bargaining or the adjustment of grievances”.
. 29 U.S.C. § 158(a)(3) (1970) provides in relevant part:
(a) It shall be an unfair labor practice for an employer — .
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, * * *
Since the bargaining unit included supervisors [see note 12 and accompanying text and note 24, infra] with regular rank-and-file employees, the Association contended that the unit covered by the Company-Local 134 union-shop provision was not “appropriate” within the meaning of section 8(a) (3) (i). However, due to the fact that Local 134 was the only one of the two contracting parties before the Trial Examiner, the Association did not allege a violation of section 8(a)(3) (i), which only applies to employers, but it instead asserted the presence of a section 8(b)(2) violation. 29 U.S.C. § 158(b)(2) (1970) provides, inter alia: “It shall be an unfair labor practice for a labor organization or its agents— * * * (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section [i. e., section 8 (a)(3)] * * *”
. It is important to note that the precise issue concerning the legality of the union-security provision under section 8(a)(3)
(i) of the N.L.R.A. had been previously raised by the Association, in 1968, at which time the General Counsel of the Labor Board refused to issue a complaint relating to the Association’s unfair labor practice charge. Case 13-CA-8451. At that time, the General Counsel concluded ;
The inclusion of alleged supervisors in the unit by voluntary agreement of the contracting parties did not, standing alone, constitute an unfair labor practice, nor did it render such unit inappropriate for coverage by an otherwise valid union security clause. See Nassau & Suffolk Contractors Ass’n., 118 NLRB 174, 177-184; * * *
. See note 8 supra.
. International Brotherhood of Electrical Workers, AFL-CIO, and Local 134, I.B. E.W., 192 NLRB No. 17, T.X.D. slip op. at 13, 1971 CCH NLRB ¶ 23,282 (1971).
. Id.
. 29 U.S.C. § 152(11) (1970). See N. L. R. B. v. Henry Colder Co., 416 F.2d 750, 754 n. 3 (7th Cir. 1969), and cases cited therein.
. See note 6 supra. Local 134 and the International Union have not challenged, on appeal, the Labor Board’s findings that the foremen were “supervisors” and “Employer representatives,” within the meaning of the N.L.R.A.
. The Labor Board found the International Union in violation of section 8(b) (1) (B), due to its affirmance, on appeal, of Local 134’s imposition of disciplinary fines against the foremen. However, the Board’s remedial order only provided for secondary liability on the part of the International Union with respect to the reimbursement of already collected fines and the providing of individual written notices for the disciplined foremen.
. See note 6 supra.
. See Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 379, 458 F.2d 794, 798 (1972); N. L. R. B. v. Local 294, International Brotherhood of Teamsters, etc., 284 F.2d 893 (2nd Cir. 1960); Los Angeles Cloak Joint Board, 127 NLRB 1543, 1550-1551 (1960); International Union of Operating Engineers, Local 825, 145 NLRB 952, 962 (1964).
. 172 NLRB No. 252, slip op. at 2, 1968-2 CCH NLRB ¶ 20,195.
. 172 NLRB No. 252, slip op. at 2-3, 1968-2 CCI-I NLRB ¶ 20,195 (emphasis supplied). See New Mexico District Council of Carpenters and Joiners of America, 176 NLRB No. 105, slip op. at 4-5, 1969 CCH NLRB ¶ 20,951 (1969), enfd., 67 L.C. ¶ 12,403 (10th Cir. 1972).
. Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 458 F.2d 794 (1972).
. Id., 147 U.S.App.D.C. at 379-380, 458 F.2d at 798-799.
. N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 179, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967).
. II Legislative History of the Labor Management Relations Act, 1947 (N.L. R.B.1948) [hereafter “Legislative History”] at 1077 (comments of Senator
. See sections 2(3), 2(11), and 14(a), 29 U.S.C. §§ 152(3), 152(11), and 164(a) (1970).
. 29 U.S.C. § 152(3) (1970) provides, inter alia: “The term ‘employee’ shall include any employee * * * but shall not include * * * any individual employed as a supervisor * * * ” See section 2(11) of the Act, 29 U.S.C. § 152 (11) (1970), for the statutory definition of “supervisor.”
. Carpenters District Council of Milwaukee County, etc., v. N. L. R. B., 107 U.S.App.D.C. 55, 57, 274 F.2d 564, 566 (1959) (emphasis supplied). See II Legislative History at 1524 (comments of Senator Ball).
. Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 381, 458 F.2d 794, 800 (1972). See Texas Co. v. N. L. R. B., 198 F.2d 540, 542 (9th Cir. 1952), wherein the court stated that “it is clear from the history of the TaftHartley legislation that Congress intended to restore to employers the right and power to insist upon the undivided loyalty of their supervisory personnel.”
. San Francisco-Oakland Mailers’ Union No. 18, International Typographical Union, 172 NLRB No. 252, slip op. at 3, 1968-2 OCH NLRB ¶ 20, 195 (1968).
. This interpretation of section 8(b) (1) (B) does not mean that a union may never discipline a supervisor/member for breaching a valid union rule. See, e. g., Local 453, Brotherhood of Painters, Decorators and Paperhangers of America, 183 NLRB No. 24, 1970 OCH NLRB ¶ 21,981 (1970). It only proscribes union interference for acts performed by a supervisor relating to his supervisory or managerial duties. See Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S. App.D.C. 375, 458 F.2d 794 (1972).
. 29 U.S.C. § 164(a) (1970) provides: (a) Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.
. N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967).
. Scofield v. N. L. R. B., 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969).
. See Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 381-382, 458 F.2d 794, 800-801 (1972).
. 29 U.S.C. § 158(b)(1)(A) (1970) provides :
(b) It shall be an unfair labor practice for a labor organization or its agents—
*252 (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein;
See 29 U.S.C. § 157 (1970).
. Compare Booster Lodge No. 405, International Association of Machinists and Aerospace Workers v. N. L. R. B., 148 U.S.App.D.C. 119, 125, 459 F.2d 1143, 1149, with Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 381, 458 F.2d 794, 800 (1972).
. See San Francisco-Oakland Mailers’ Union No. 18, International Typographical Union, 172 NLRB No. 252, slip op. at 4, 1968-2 CCH NLRB ¶ 20, 195 (1968); Price v. N. L. R. B., 373 F.2d 443, 446 (9th Cir. 1967), cert. denied, 392 U.S. 904, 88 S.Ct. 2051, 20 L.Ed.2d 1363 (1968); Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 381-382, 458 F.2d 794, 800-891 (1972). See also II Legislative History at 1139, 1141, and 1200.
. See also N. L. R. B. v. Sheet Metal Workers Intern. Ass’n, Local 49, A.F.L.C.I.O., 430 F.2d 1348, 1350 (10th Cir. 1970); N. L. R. B. v. Toledo Locals Nos. 15-P and 272 of Lithographers and Photo-Engravers International Union, 437 F.2d 55, 57 (6th Cir. 1971).
. See Silard, Labor Board Regulation of Union Discipline After Allis-Chalmers, Marine Workers and Scofield, 38 Geo. Wash.L.Rev. 187, 196 (1969):
[I]n safeguarding the regulation of union membership from Labor Board review Congress did not authorize unions to violate with impunity the protected rights of other parties — particularly of employers, neutrals, and the public.
. It is vitally, important to remember that sections 8(b)(1)(A) and 8(b)(1) (B) protect different interests. Section 8(b)(1)(A) was only intended to impose some slight controls upon the union-employee relationship, and the legislative history makes it clear that Congress did not intend extensive regulation of the internal union-erapZoyee/member relationship. See N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 183-195, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). See also National Maritime Union, 78 NLRB 971, 982-987 (1948), enfd., 175 F.2d 686 (2nd Cir. 1949), cert. denied, 338 U.S. 954, 70 S.Ct. 492, 94 L.Ed. 589 (1950). Section 8(b) (1) (B), on the other hand, was clearly intended to regulate the external union-employer relationship. It is therefore apparent that considerations concerning the right of a labor organization to regulate its internal union affairs are not really relevant when the union action in question has meaningful external effects upon an employer, in an area wherein the employer is expressly protected under the Act.
. See also District 50, Local 12419, 176 NLRB No. 25, 71 LRRM 1311 (1969); N. L. R. B. v. International Molders and Allied Workers Union, Local 125, 442 F.2d 92, 94 (7th Cir. 1971).
. Although there may be some persons unfamiliar with the Congressional attitudes which prevailed in 1947 who might believe that it is not appropriate to treat the fining of supervisor/members for working during a strike differently from the disciplining of employee/members for the same acts, the superficial surface similarity between the two events underlying the union discipline cannot obfuscate the extremely important difference between “supervisors” and “employees” which is recognized by their different treatment under the N.L.R.A. Had the 1947 Congress intended for such persons to be treated alike, it surely would not have enacted section 8(b) (1) (B) and the exclusionary portion of section 2(3) relating to supervisory personnel.
. International Brotherhood of Electrical Workers and Local 134, I.B.E.W., 192 NLRB No. 17, T.X.D., slip op. at 7, as adopted by N.L.R.B., slip op. at 2, 1971 CCH NLRB ¶ 23,282 (1971).
. See N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180-181, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). See also Booster Lodge No. 405, International Association of Machinists and Aerospace Workers v. N. L. R. B., 148 U.S.App. D.C. 119, 125-126, 459 F.2d 1143, 1149-1150 (1972).
.See Part 1(A) of this opinion, supra.
. There is no question that supervisors enhance the bargaining position of their employer when they perform rank-and-file work during a strike, since their actions reduce the severity of the economic pressure borne by their employer as a result of the work stoppage.
. The unions have not challenged the finding of the Labor Board regarding the representative status of the supervisors.
. Local Union No. 2150, International Brotherhood of Electrical Workers, 192 NLRB No. 16, slip op. at 6-7, 1971 CCH NLRB ¶ 23,280 (1971). See New Mexico District Council of Carpenters and Joiners of America, 177 NLRB 500, 502 (1969), enfd., 454 F.2d 1116 (10th Cir. 1972); Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 379-380, 458 F.2d 794, 798-799 (1972) ; N. L. R. B. v. Sheet Metal Workers Intern. Ass’n., Local 49, A.F.L.-C.I.O., 430 F.2d 1348, 1349 (10th Cir. 1970). See also Part I (A) of this opinion, supra, and cases cited therein.
. See 29 U.S.C. §§ 160(e) and 160(f) (1970). See also Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
. International Brotherhood of Electrical Workers and Local 134, I.B.E.W., 192 NLRB No. 17, T.X.D. slip op. at 10, as adopted by N.L.R.B., slip op. at 2, 1971 CCH NLRB ¶ 23,282 (1971) (emphasis in original).
. See Parts 1(A) and 11(A) of this opinion, supra.
. Although one of the Association’s obvious interests concerned the legality of the union-security provision in the Company-Local 134 collective bargaining agreement, it is important to recognize that it was the strike which precipitated the supervisors’ concern regarding this issue. It was not until they realized that
. International Brotherhood of Electrical Workers and Local 134, I.B.E.W., 192 NLRB No. 17, slip op. at 6-7, 1971 CCH NLRB ¶ 23,282 (1971).
. See Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 380-381, 458 F.2d 794, 799-800 (1972) ; N. L. R. B. v. Toledo Locals Nos. 15-P and 272 of Lithographers and Photo-Engravers International Union, 437 F.2d 55, 57 (6th Cir. 1971) ; San Francisco-Oakland Mailers’ Union No. 18, International Typographical Union, 172 NLRB No. 252, slip op. at 2-3, 1968-2 CCH NLRB ¶ 20,195 (1968).
. 29 U.S.C. § 160(c) (1970). See Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941) ; Virginia Electric & Power Co. v. N. L. R. B., 319 U.S. 533, 540, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943) ; Amalgamated Clothing Workers of America v. N. L. R. B., 125 U.S.App.D.C. 275, 281, 371 F.2d 740, 746 (1966) ; Office and Professional Employees International Union, Local 425 A.F.L.-C.I.O. v. N. L. R. B., 136 U.S.App.D.C. 12, 19-20, 419 F.2d 314, 321-322 (1969).
. Id.
. No approval or specific authorization regarding Local 134’s illegal disciplinary action was reguested from, or given by, the International Union before or during the course of the local union proceedings. Nor did the International Union Constitu- . tion or By-laws mandate such unlawful action by local unions.
. Section 2(13) of the N.L.R.A., 29 U.S.C. § 152(13) (1970).
. Regarding the relevant legislative history pertaining to section 2(13), see H.Rep. No. 245, 80th Cong., 1st Sess. 11 (1947), in I Legislative History at 302; H.Conf. Rep. No. 510, 80th Cong., 1st Sess. 36 (1947), in I Legislative History at 540; 93 Cong.Rec. 6442, 6534, and 6859 (1947).
. Although the N.L.R.B. argues that the International Union should be held monetarily responsible due to the Board’s assertion that the fines imposed by Local 134 were “illegal on their face,’’ we reject this contention. Labor Board and court decisions had not previously defined this extremely difficult area with such exactness that the International Union could reasonably be considered to have affirmed obviously unlawful action by Local 134.
We intimate no view concerning the proper liability of a national or international union in a case where it does affirm a local union’s disciplinary action on appeal, where it is clear that the local union’s action is unlawful on its face, preferring to leave the resolution of this issue to a more appropriate occasion.
.[The International Union’s] only action in the case was the exercise of its function to hear the appeal [s] and review the action [s] of the local body. * * * [The International Union] could not be held liable in damages to the [disciplined supervisor/members] because it affirmed [Local 134’s ac
People ex rel. Solomon v. Brotherhood of Painters, Decorators and Paperhangers of America, 218 N.Y. 115, 112 N.E. 752, 754 (1916).
. See section 10(c), 29 U.S.C. § 160(c) (1970). The decisions cited by the N.L. R.B. in support of the imposition of monetary responsibility upon the International Union here are not apposite, since they entailed a greater degree of participation by the international unions involved. See, e. g., N. L. R. B. v. Millwrights, Local 2232, District Council of Houston, etc., 277 F.2d 217, 221 (5th Cir. 1960), cert. denied, 366 U.S. 908, 81 S.Ct. 1083, 6 L.Ed.2d 234 (1961) ; Local Union, 984, International Brotherhood of Teamsters, etc. v. Humko Co., Inc., 287 F.2d 231, 242 (6th Cir.), cert. denied, 366 U.S. 962, 81 S.Ct. 1922, 6 L.Ed.2d 1254 (1961).
. See note 7 supra.
. See note 8 supra.
. Although the prior charge filed by the Association had alleged a section 8(a)(3) violation, while the proposed amendment suggested a section 8(b) (2) violation, the two charges were based upon the identical allegation that the Company-Local 134 union-security agreement was in violation of the requirements of section 8(a) (3) (i).
See note 7 supra.
. See International Brotherhood of Electrical Workers and Local 134, I.B.E.W., 192 NLRB No. 17, T.X.D. slip op. at 13, 1971 CCH NLRB ¶ 23,282 (1971). The Trial Examiner also indicated that such union-shop provisions had been present in
. 29 U.S.C. § 160(b) (1970) provides inter alia: “Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon.” The scope of this language, which was part of the original 1935 Wagner Act, may have been limited, however, by the enactment in 1947 of an amendment to the N.L.R.A., which provides that the General Counsel “shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, * * * ” Section 3(d), 29 U.S.C. § 153(d) (1970) (emphasis supplied). See International Union of Electrical, Radio and Machine Workers, A.F.L.-C.I.O. v. N. L. R. B., 110 U.S.App.D.C. 91, 94-95, 289 F.2d 757, 760-761 (1960). See also cases cited note 65, infra.
. Compare International Union of Electrical, Radio and Machine Workers, A.F.L.-C.I.O. v. N.L.R.B., 110 U.S.App. (1980) and N.L.R.B. v. Raytheon Co., D.C. 91, 94-95, 289 F.2d 757, 760-761 445 F.2d 272, 274 (9th Cir. 1971), with Frito Co., Western Division v. N.L.R.B., 330 F.2d 458, 465 (9th Cir. 1964) and United Packinghouse, Food and Allied Workers International Union, A.F.L.C.I.O. v. N.L.R.B., 135 U.S.App.D.C. 111, 119 n 12, 416 F.2d 1126, 1134 n. 12, cert. denied, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969).
For the purposes of this case, we accept the Labor Board’s assumption, due to the fact that we “must judge the propriety of [its] action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” S.E.C. v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962).
.Even the Association concedes that at most, the Board and Trial Examiner were only “under a duty to exercise sound discretion * * * ” Brief for the Association at 16.
. See notes 65 and 66, and accompanying text, supra.
. \Ye, of course, intend to intimate no opinion concerning the legality of a voluntary union-security provision covering a unit which includes both supervisors and rank-and-file employees. Nor do we foreclose the filing of a new charge by the Association challenging the propriety of any presently existing Company-Local 134 union-security agreement.
Concurrence in Part
concurring in part and dissenting in part:
The opinion of my brethren in the majority is so carefully written and closely reasoned that I hesitate to express any disagreement with it. Indeed, insofar as the majority absolves the International of monetary liability and upholds the trial examiner’s decision not to permit any amendment to the complaint, I concur in its judgment. But in this age of “strict constructionism” I simply cannot bring myself to believe that the words of Section 8(b) (1) (B) mean what the majority says they mean.
I am not suggesting that the TaftHartley Act need invariably be given a rigid or literal construction. Labor legislation does not always lend itself to the “plain meaning” school of jurisprudence. Cf. NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 179, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). But I am suggesting that it is improper for this court to condone a major shift in federal labor policy when the Labor Board can point to nothing in the words of the statute, nothing in its legislative history, and nothing in the ascertainable congressional purpose to support its action. “The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” American Ship Building Co. v. N. L. R. B., 380 U.S. 300, 318, 85 S. Ct. 955, 13 L.Ed.2d 855 (1965). In my view, the determination whether supervisory personnel who are members of a union need protection from union discipline is one “properly made by Congress.” For the moment, at least, Congress has decided not to grant supervisors this protection. Cf. 29 U.S.C. § 152(3) (1970); Carpenters District Council of Milwaukee County, etc. v. NLRB, 107 U.S.App.D.C. 55, 57, 274 F.2d 564, 566 (1959). Until Congress changes its mind, I do not believe it proper for the Board to graft such protection onto the Act by twisting the clear meaning of an unrelated provision so as to serve a purpose which Congress never intended. I must, therefore, dissent from that portion of the majority’s opinion and judgment which enforces the Board’s Section 8(b)(1)(B) order.
I
Section 8(b)(1)(B), 29 U.S.C. § 158(b)(1)(B), provides: “It shall be an unfair labor practice for a labor organization or its agents * * * to restrain or coerce * * * an employer in the selection of his representatives for
That is the way Section 8(b)(1)(B) was interpreted for over 20 years after its initial enactment,
Standing alone, the Oakland Mailers doctrine places a permissible gloss on the statute.
When Meat Cutters was appealed to this court, we were clearly concerned that the Board’s Section 8(b)(1)(B) decisions might be deteriorating into a flat prohibition against any union discipline of supervisors, thus giving supervisory personnel all the benefits of union membership without having to bear any of the responsibilities. In its Meat Cutters brief the Board sought to meet these fears and dispel them. “[I]t is only when the representative’s obligations to the union conflict with his management
Partially on the basis of these representations we enforced the Board’s decision, but with the explicit caveat that “[t]he rule here applied by the Board only affects union discipline which is imposed upon a member, who has responsibilities as a representative of his employer in administering the collective bargaining agreement or the adjustment of employee grievances, because he has performed duties as a management representative. * * * The N.L.R.B. has made it clear that a union may legally discipline a supervisor-member for acts which are not performed by the individual in furtherance of his obligations as the employer’s representative.” Meat Cutters Union Local 81 v. NLRB, supra, 147 U.S.App.D.C. at 379-380 n.12, 458 F.2d at 798-799 n.12. (Emphasis in original.)
After this warning, I would have supposed it would be obvious to the Board that Section 8(b)(1)(B) had already been expanded to its limits. Yet the Board now seeks to expand it once again, this time by reading it in a way which, in the words of the learned trial examiner, “stretch [es] the statute beyond what I would otherwise consider the breaking point.” Int. Brhd of Electrical Workers, 192 NLRB No. 17 (1971) (trial examiner’s decision at 11). Despite the Board’s explicit assurance that it would find Section 8(b)(1)(B) violations only when supervisors were fined for “the exercise of supervisory or managerial authority,” the Board has here applied the statute to fines levied against supervisors for performance of ordinary rank-and-file work — work which could not possibly be considered to fall within their ordinary managerial responsibilities. This reading of the statute goes beyond Oakland Mailers, beyond Meat Cutters, and beyond anything which the Board has ever suggested in the past.
“readily distinguishable here where the action for which the supervisors were fined bore no direct relation to their work as supervisors or to any interpretation of the contract. As an original proposition I would be inclined to construe Section 8(b)(1)(B) as interdicting union fines of supervisors only when the conduct for which the supervisor was fined bore some relation to his role as a representative of management in ‘collective bargaining or the adjustment of grievances,’ to quote Section 8(b)(1)(B). In the instant case the question confronting the supervisors whether to work or to respect the strike call of their Union was in no way related to those subjects. Moreover, the Company itself has made it clear that it was not demanding that its supervisors work during the strike.*265 On the contrary, the Company expressly left the decision up to each individual supervisor, with specific assurances that no reprisal would be visited on those who chose not to work. After the strike the Company promoted some of the supervisors who had not worked during the strike. I therefore find some difficulty in concluding that the Company was restrained or coerced by the Union’s action in fining the supervisors who worked, or even in finding that the Union’s action had any natural or inherent tendency to restrain or coerce the Company. * * * ”
192 NLRB No. 17 (trial examiner’s decision at 9).
Like the trial examiner, I also find “some difficulty” in so concluding. In fact, as I hope to show in Part II of this opinion, the Board’s present interpretation of Section 8(b)(1)(B), in spite of its explicit language, makes it an essentially limitless prohibition against any union discipline of supervisory personnel. Moreover, as Part III will show, this expansion of the statute is in the teeth of explicit Supreme Court decisions which give it a narrower scope. Finally, as I will argue in Part IV, the Board’s reading of the statute finds no support in the policy of the Taft-Hartley Act and cannot be justified by reference to the Board’s discretion in administering federal labor legislation.
II
It seems to be conceded by all parties that, at least in theory, Section 8(b)(1)(B) does not absolutely proscribe all union discipline of supervisors who are union members. See majority opinion at note 28. Indeed, the Board so held in Local Union 453, Brhd of Painters, Decorators & Paperhangers, supra, and Judge MacKinnon’s opinion in Meat Cutters expressly approved the Local Union 453 decision. See 147 U.S. App.D.C. at 379-380 n.12, 458 F.2d at 798-799 n.12. The Taft-Hartley Act does not compel supervisors to become union members, and an employer is within his rights if he insists that supervisory personnel remain nonunion. But if supervisors are permitted to join a union, they receive certain benefits from their union membership and incur certain concomitant obligations. Surely it cannot be doubted, for example, that a union could discipline a supervisor for refusing to pay his dues, for deliberately disrupting union meetings, or, to cite an example used by the trial examiner, for refusing to join a union bowling league.
To be sure, as Oakland Mailers makes clear, there are also some supervisory activities which Section 8(b)(1)(B) makes immune from union discipline. A supervisor-union member is in the difficult position of simultaneously serving two masters. Any sensible interpretation of the statute must, therefore, involve a determination of what obligations a supervisor owes to his union and what obligations he owes to his employer.
In its opinion today, the majority purports to adhere to these principles. It suggests that a supervisor is immune from union discipline only when he is performing “management functions” and that when he is engaged in “non-management” activity the union is free
At the outset, it should be clear that the “management function” test does not mean what this court has taken it to mean in the past. In Meat Cutters we upheld the Board’s unfair labor practice finding because the supervisors were fined for engaging in usual and traditional management activity. But no one contends that the supervisors in this case were performing functions which supervisors usually or traditionally perform. The record shows that these supervisors were engaged in rank-and-file struck work which, under normal circumstances, was the responsibility of the ordinary employees. Saying that rank-and-file labor is an ordinary management function is like saying that black is white.
Perhaps the majority means to suggest that the supervisors are engaged in a “management function” whenever they take action pursuant to a management order. It should be noted, however, that this reading of the statute is at war with the notion that a supervisor undertakes certain duties when he joins a union and that these duties are enforceable by appropriate union sanctions. Suppose, for example, that management orders its supervisors to disrupt a lawful union meeting. Could it seriously be argued that the union must tolerate this disturbance without taking disciplinary action because the supervisors were merely “following orders” ? If, as argued above, Section 8(b)(1)(B) leaves intact some duties which supervisor-members owe to their unions, then it cannot be that these duties can be abrogated merely because management orders their abrogation. Moreover, even if the management order test were a defensible limiting principle, it would not support the Board’s decision in this case. As the majority itself points out, there was no management order here requiring supervisors to perform rank-and-file work. On the contrary, management explicitly informed the supervisors that they would not be required to cross the picket line during the strike, and several supervisors who declined to do so were subsequently promoted.
My brethren seek to avoid this embarrassment by suggesting that the proper test is not whether the supervisors acted pursuant to a management order, but rather whether their actions were undertaken in the interests of management.
The “management interest” test also fails to justify the actions of the Board concerning the Bell Supervisors Association issue. The Board found that the union committed a Section 8(b)(1)(B) violation when it fined the supervisors for forming the so-called “Bell Supervisors Protective Association.” The Protective Association was formed in part for the purpose of prosecuting an unfair labor practice charge against the company.
I submit that there is something inherently wrong with a mode of statutory analysis that yields a product as nonessential as this. This court purports to limit Section 8(b)(1)(B) to union discipline for performance of management activities ordered by management or taken in the interests of management. Yet it then proceeds to apply the provision to a nonmanagement activity not ordered by management and directly contrary to management’s interests. I am forced to conclude that the unfair labor practices found in this case are ultimately explicable only if one assumes that all union fines of supervisor-members are unlawful on their face. But that is the one theory which my brethren explicitly disavow and which the statute will not permit.
Ill
The Board’s rough sailing through the complexities of Section 8(b)(1)(B) might, perhaps, be more understandable if the seas were entirely uncharted. But in fact union discipline of strikebreakers and other dissidents has been the subject of a series of important Supreme Court decisions which the Board inexplicably chose to ignore. These decisions, unlike the Board’s approach, set out a rational, workable interpretation of Section 8(b)(1) which balances the union’s right to enforce reasonable discipline against the rights of employers and union members to be free from union overreaching. They should, I think, control the outcome of this case.
The first and most important of these decisions is NLRB v. Allis-Chalmers Manufacturing Co., supra. In all relevant respects, Allis-Chalmers is indistinguishable from this case. There, as here, the union sought to impose reasonable fines on union members who had crossed a picket line during a lawful strike. In Allis-Chalmers, however, none of the fined members were supervisors, so the relevant provision governing the union’s conduct was subsection (A) of Section 8(b)(1) rather than
Of course, Allis-Chalmers did not mean that unions were free to impose discipline for any purpose at all. Section 8(b)(1) must be read so as to conform with the other provisions of federal labor law. See, e. g., NLRB v. Int. Ladies’ Garment Workers Union, 3 Cir., 274 F.2d 376 (1960); Silard, Labor Board Regulation of Union Discipline After Allis-Chalmers, Marine Workers and Scofield, 38 Geo.Wash.L.Rev. 187, 193-196 (1969). Thus if a union rule “invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating § 8(b)(1).” Scofield v. NLRB, 394 U.S. 423, 429, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969). See NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U. S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968). But if one thing is clear after Allis-Chalmers, it is that there is no “overriding policy of the labor laws” which prohibits reasonable union fines levied against members who cross a lawful picket line to perform rank-and-file struck work. In fact, quite the contrary is true.
“Integral to [the] federal labor policy has been the power in the chosen union to protect against erosion its status under that policy through reasonable discipline of members who violate rules and regulations governing membership. That power is particularly vital when the members engage in strikes. The economic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms, and ‘[t]he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent > * -X- #»
NLRB v. Allis-Chalmers Manufacturing Co., supra, 388 U.S. at 181, 87 S.Ct. at 2006. (Footnotes omitted.)
The majority utilizes two arguments in attempting to distinguish Allis-Chalmers. First my brethren contend that the Allis-Chalmers Court relied on the proviso in Section 8(b)(1)(A) — a proviso which is not attached to subjection (B) of Section 8(b)(1).
Perhaps sensing that substantial reliance on the proviso does little to advance its position, the majority resorts to a second argument. Allis-Chalmers, it is argued, dealt only with internal union rules affecting the relationship between a member and the labor organization to which he belongs. Here, however, the union rule had an “effect on parties external to [the union-member] relationship” and therefore falls outside the Allis-Chalmers rationale. Majority opinion at 252 of 159 - U.S.App.D.C., at 1123 of 487 F.2d.
This distinction is so subtle that someone in an uncharitable frame of mind might be tempted to characterize it as altogether chimerical. It seems clear, for example, that the union rule in Allis-Chalmers had, and was intended to have, an external effect on the employer. By deterring strikebreakers, the rule assured union solidarity and thereby allowed the union to bring greater economic pressure on the company. I simply cannot understand why the anti-strikebreaking rule in Allis-Chalmers should be characterized as “internal” while precisely the same sort of anti-strikebreaking rule in this case suddenly becomes “external.”
Perhaps there is nonetheless some substance to the internal-external dichotomy, but the distinction, if one exists, was apparently too subtle for the Supreme Court to grasp. In Scofield v. NLRB, supra, the Court unambiguously rejected the internal-external test as a basis for resolving Section 8(b)(1) cases. “It is doubtless true,” the Court conceded, “that the union rule in question here affects the interests of all three participants in the labor-management relation: employer, employee, and union. Although the enforcement of the rule is handled as an internal union matter, the rule has and was intended to
IV
Of course, it is true that Allis-Chalmers dealt with fines imposed on ordinary members while here the fines were imposed on supervisors. As argued above, this fact is without relevance to the problem of statutory construction, since the Allis-Chalmers Court relied on the general language of Section 8(b)(1) which is applicable to both subsections (A) and (B). Nonetheless, the difference between the two cases might be relevant to the existence of a countervailing “statutory labor policy” which would justify finding a Section 8(b)(1) violation. Specifically, the majority argues that, even if there is no “statutory labor policy” favoring the freedom of union members to- perform struck work, there is such a policy which favors insulating supervisory personnel from union discipline.
If this argument is kept within proper bounds, I think it has some validity. Indeed, I think Section 8(b)(1)(B) itself expresses a statutory labor policy which favors allowing supervisory personnel to perform their collective bargaining and grievance settling functions free from union coercion. That, as I understand it, was the holding of Oakland Mailers, and I have no quarrel with that decision. But the Board has not kept this argument within proper bounds. Instead, the Board purports to find a broader “statutory labor policy” requiring that the supervisor’s absolute duty to his employer always take precedence over any conflicting duty to his union.
With all respect, I think this policy has been manufactured out of whole cloth. While the majority finds it “intuitively obvious” that such a policy exists, majority opinion at 251 of 159 U. S.App.D.C., at 1122 of 487 F.2d, it is unable to cite a single court decision, a single provision in the statute, or a single element of the legislative history to support its conclusion.
We can be safe in assuming that neither the union nor management agreed to the unionization of supervisors because of an abstract belief in the virtues of trade unionism. The union presumably insisted on this clause in the contract so that it would have some control over the actions of supervisors, and management presumably accepted it because the union gave up something else in return. By enacting Section 14(a), which permits supervisors to join unions, Congress expressly permitted management and labor to reach just such an agreement. See also 29 U.S.C. § 158(a)(3)(i) (1970). Yet now management seeks to abrogate its part of the bargain by insisting that supervisors obey management alone. Like the Supreme Court, I can “discern no basis in the statutory labor policy encouraging collective bargaining for giving the employer a better bargain than he has been able to strike at the bargaining table.” Scofield v. NLRB, supra, 394 U.S. at 433, 89 S.Ct. at 1159.
Nor can I see a basis in federal labor policy for permitting supervisors to retain all the benefits of union membership while incurring none of the costs. As Professor Gould has pointed out:
“ * * [Supervisors who remain union members are most often obtaining additional benefits. Frequently, they have remained members in order to retain possession of withdrawal cards which will make it less expensive for them to re-enter the trade or another plant under union jurisdiction. Under the Allis-Chalmers rationale, this would seem to indicate a pledge of allegiance by the supervisor and therefore should be deemed consent by such an individual to render himself liable to financial obligations where the union’s interest is di-. rect and where the conduct engaged in is somewhat distant from basic supervisory functions. If the employer is unduly harmed by such a rule, it seems to me that its obligation is to make the supervisory position financially attractive enough for the supervisor to forego the benefits of union membership and to resign.”
Gould, Some Limitations Upon Union Discipline Under the National Labor Relations Act: The Radiations of Allis-Chalmers, 1970 Duke L.J, 1067, 1129 (1970).
To be sure, the Labor Board is entitled to great deference when it interprets the act it , administers. See, e. g., Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). But this deference has its limits. In the final analysis, “administrative experience is of weight in judicial review only to this point — it is a persuasive reason for deference to the [Board] in the exercise of its discretionary powers under and within the law. It cannot be invoked to support action outside of the law. And what action is, and what is not, within the law must be determined by courts, when authorized to review, no matter how much deference is due to the agency’s fact finding. Surely an administrative agency is not a law unto itself * * *.” SEC v. Chenery Corp., 332 U.S. 194, 215, 67 S.Ct. 1760, 1762, 91 L. Ed. 1995 (1947) (Mr. Justice Jackson, dissenting).
. The majority’s assertion to the contrary notwithstanding, there is not so much as a word in the legislative history of this or any other section of the Taft-Hartley Act which indicates that § 8(b) (1) (B) was intended to go further and protect supervisors from union discipline. In fact, Congress made quite clear that it had no intention to interfere with the disciplinary activity of unions against members. See, e. g., S.Rep. No. 105- on S. 1126, 80th Cong., 1st Sess., 20, in 1 Legis. Hist, at 426.
. See, e. g., Iron Workers Union v. Perko, 373 U.S. 701, 708 (1963) ; Cheney California Lumber Co. v. NLRB, 9 Cir., 319 F.2d 375, 381 (1963) ; NLRB v. Puerto Rico Rayon Mills, Inc., 1 Cir., 293 F.2d 941, 947 (1961) ; NLRB v. Local 294, Int. Brhd of Teamsters, 2 Cir., 284 F.2d 893 (1960) ; NLRB v. Int. Ladies’ Garment Workers Union, 3 Cir., 274 F.2d 376 (1960) ; Brhd of Teamsters & Auto Truck Drivers Local No. 70, 183 NLRB No. 137 (1970).
. Thus until recently it seems to have been assumed that, while management was entitled to insist on nonunion supervisory personnel, a union was free to discipline supervisors who were union members. See, e. g., Int. Typographical Union Local 38 v. NLRB, 1 Cir., 278 F.2d 6, 12 (1960), affirmed by equally divided Court, 365 U.S. 705, 81 S.Ct. 855, 6 L.Ed.2d 36 (1961).
. Indeed, when a union disciplines a supervisor with the specific intent of forcing management to replace him, the union’s conduct falls within the core prohibition of § 8(b)(1)(B). See, e. g.,
. The Board won judicial approval of the Oakland Mailers doctrine in Dallas Mailers Union, Local No. 143 v. NLRB, supra note 4; NLRB v. Sheet Metal Workers Int. Assn., Local 49, 10 Cir., 430 F.2d 1348 (1970) ; and NLRB v. Toledo Locals Nos. 15-P & 272 of Lithographers, etc., Union, 6 Cir., 437 F.2d 55 (1971). The doctrine was applied without essential change in New Mexico District Council of Carpenters & Joiners and Galen R. Wilson, 176 NLRB 797 (1969) ; New Mexico District Council of Carpenters & Joiners and Marvin Freese, 177 NLRB 500 (1969) ; Houston Typographical Union No. 87, 182 NLRB 592; and Freight, Construction, General Drivers, etc. Union, Local 287, 183 NLRB No. 49 (1970).
. Superficially, Meat Cutters migh appear similar to NLRB v. Sheet Metal Workers Int. Assn, Local 49, supra note 5. In Sheet Metal Workers the Board found a § 8(b)(1)(B) violation when the union fined a supervisor for performing rank- and-file work ostensibly unrelated to his collective bargaining and grievance adjustment functions, and the 10th Circuit enforced the Board’s order. However, a close examination of that case makes clear that the fine was imposed because the supervisor intrepreted the union contract in a manner which permitted him to perform the rank-and-file work. See also NLRB v. Toledo Locals Nos. 15-P & 272 of Lithographers, etc., Union, supra note 5. Contract interpretation is, of course, part of a supervisor’s grievance settlement duties. In Meat Cutters no claim was made that the supervisors were engaged in their grievance settlement functions when they elected to obey the management order to institute a new meat procurement policy.
.The case would have been considerably easier if the Board had found that the supervisors were disciplined with the intent to influence their collective bargaining and grievance settlement decisions. Cf. Local Union No. 453, Brhd of Painters, Decorators & Paperhangers, 183 NL RB No. 24 (1970). But no such finding was made.
. Once before, the Board applied § 8(b) (1) (B) to union fines of supervisors doing rank-and-file struck work. See Toledo Locals Nos. 15-P & 272 of Lithographers etc. Union, 175, NLRB 1072 (1969), enforced, 6 Cir., 437 F.2d 55 (1971). However, in the Toledo case the supervisors were fined for interpreting the contract in a manner which permitted them to perform the work. See 437 F.2d at 57. Since contract interpretation is clearly a part of a supervisor’s normal grievance settling duties, the Toledo case is easily distinguishable. See note 6 supra.
. Although plainly reluctant to find a § 8(b) (1) (B) violation, the trial examiner nevertheless felt compelled to do so because of the Board’s prior decision in New Mexico District Council of Carpenters & Joiners and Galen K. Wilson, supra note 5. A close look at New Mexico District Council, however, makes clear, that that case is inapposite. The Carpenters & Joiners Union was held to have violated § 8(b)(1)(B) when it disciplined a supervisor who co-signed a letter urging employees to vote with management in a union election. Obviously, it is part of a supervisor’s collective bargaining duties to urge management’s viewpoint on union members. The Board’s holding in New Mexico District Council is therefore squarely within the Oakland Mailers rule. It is far from obvious, however, that a supervisor’s ordinary duties include performance of rank-and-file work. See text at notes 10-11 infra.
. Thus, as the majority itself concedes, “ ‘Rank-and-file work’ concerns that work which is ordinarily performed by regular, non-supervisory employees in the bargaining unit.” Majority op. at note 4. Inasmuch as the majority also concedes that supervisors can be fined for their non-supervisory activities, majority op. at note 28, it is difficult to understand the theory under which fines for performance of rank-and-file work are proscribed.
. It is interesting that none of the conduct for which these supervisors were punished fell within the description of supervisory functions contained in the Act. Section 2(11) of the Act, 29 U.S.C. § 152(11) provides: “The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” Since these “supervisors” were performing none of these functions at the time when discipline was imposed, but rather were assigned to ordinary rank- and-file work, it could be argued that they were not then supervisors within the meaning of the Act and, hence, were not within the ambit of § 8(b)(1)(B).
. On May 21, 1968, the Protective Association filed an unfair labor practice charge, No. 13-CA-8451, alleging that the company’s collective bargaining contract was illegal because the union security clause required that supervisory and non-supervisory personnel be placed in the same collective bargaining unit. The General Counsel refused to prosecute the complaint, citing Nassau & Suffolk Contractors Assn, Inc., 118 NLRB 174, 177-184 (1957). See Joint Appendix at 201-202. Subsequently, the Protective Association attempted to amend its § 8(b) (1) (B) complaint so as to include a similar charge against the union. See JA at 184-185. The trial examiner refused to permit the amendment, and we uphold that decision .today. See majority op. at 259-261 of 159 U.S.App.D.C., 1130-1132 of 487 F.2d.
.Section 8(b)(1)(A), 29 U.S.C. § 158 (b)(1)(A), provides, in relevant part: “It shall be an unfair labor practice for a labor organization or its agents * * * to restrain or coerce * * * employees in the exercise of the rights guaranteed in section 157 of this title * * sjc ft
. The proviso states: “Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein *
. Thus the Allis-Chalmers plurality held: “It is no answer that the proviso to §
. To support its argument that the proviso makes the Supreme Court’s Allis-Chalmers decision irrelevant to § 8(b) (1) (B) cases, the majority cites Gould, Some Limitations Upon Union Discipline Under the National Labor Relations Act: The Radiations of Allis-Chalmers, 1970 Duke L.J. 1067, 1128. This is what Professor Gould says to the page cited: “Of course, the existence of the proviso was not critical to the Court’s conclusion in Allis-Chalmers although it did provide ‘cogent support.’ In Allis-Chalmers the Court was primarily concerned with an assessment of the language ‘restrain or coerce’ — language which is applicable to section 8(b) (1) (B) as well as section 8 (b) (1) (A). Therefore, the mere failure of Congress to attach the proviso to section 8(b) (1) (B) does not establish the conclusion that a union’s internal affairs are to be excluded from consideration.” Interestingly, Professor Gould ultimately concludes that under Allis-Chalmers § 8(b) (1) (B) does permit unions to fine supervisor-members for performance of struck work. See 1970 Duke L.J. at 1128-1129.
. The majority quotes dicta from Carpenters District Council of Milwaukee County, etc. v. NLRB, 107 U.S.App. D.C. 55, 57, 274 F.2d 564, 566 (1959), to the effect that an employer is free to discharge supervisors to prevent them from joining unions. But no one is claiming that employers have a statutory obligation to allow their supervisors to become union members. Rather, the issue in this case is whether anything in the Act prohibits a union from enforcing reasonable obligations of union membership against supervisors once the employer has decided to allow his supervisory personnel to assume union membership.
. Section 2(3), 29 U.S.C. § 152(3) (1970), provides: “The term ‘employee’ shall include any employee * * but shall not include any individual employed ns * * * a supervisor * * *.” Section 7, 29 U.S.C. § 157 (1970), in turn, guarantees to “employees” only the right to form or join labor unions.
. Section 14(a), 29 U.S.C. § 164(a) (1970), provides: “Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter sliall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.”