*1 BOARD v. INTER RELATIONS LABOR NATIONAL BROTHERHOOD OF ELECTRICAL NATIONAL
WORKERS, LOCAL February 25, May 1987 Decided Argued No. 85-1924. *2 Court, opinion in which MARSHALL, J., of the BRENNAN, delivered J., JJ., Scalia, joined. filed an Blackmun, and Powell, Stevens, J., judgment, post, p. 596. filed a dis- White, opinion concurring in the J., O’ConnOR, J., joined, and senting opinion, C. Rehnquist, in which post, p. 598. J. Jerrold cause argued petitioner. Ganzfried Deputy Fried, General Solicitor him were on the briefs
With Come, Linda Sher. Cohen, Norton General J. Solicitor Laurence J. Cohen cause for argued respondent. Kathryn Larry A. Silver, D. him on the brief were With Renner, Sure, Mark and Laurence Gold.* S. opinion delivered the the Court. Brennan
Justice a union “restraints] for decision whether question *3 selection his represent- ... an coerce[s] the adjust- of collective or atives for the purposes 158(b)(1)(B), it disci- 29 U. S. when ment of C. grievances,” does not union member who participate a supervisor plines and grievances, contractual adjust collective bargaining into a collective-bargaining has not entered whose employer the union. agreement
I (Nutter) are Electric (Royal) and Nutter Royal Electric Association National Electrical Contractors members (NECA). in a series of collective- 1981, In the last May Interna- NECA and the between bargaining agreements (IBEW Workers, of Electrical Local tional Brotherhood a new failed agreement Union), Negotiations expired. all employ- and the struck NECA thereafter, Union shortly and Nutter. ers, Royal including Valley Chapter of *Mark R. Thierman filed brief for the Sacramento amici curiae Inc., Association, et al. as the National Electrical Contractors urging reversal. of Labor M. American Federation
David Silberman filed brief for the as amicus curiae urging Organizations Congress Industrial and affirmance. September 15,1981,
The strike several lasted months. On represent- “in sent interest Union NECA a disclaimer of ing multi-[employer] bargaining employees . . . the of the (1984); previously established,” unit 271 N. L. R. B. following day. accepted the disclaimer the The NECA seeking petitions represent employees Union then filed single-employer members units. Neither of 17 NECA petition represent did the file a then nor thereafter Union employees Royal or Nutter. single- attempt represent employees Union’s 1, 1981, units was unsuccessful. October On signed agreement NECA with the National Association (NAIU). Independent Royal adopted Unions and Nutter agreement NECA’s with NAIU. practice charges in
The unfair labor this case arise from the imposition Union’s of fines on two of its members, Albert supervisors Royal and Choate, Schoux Ted who work as respectively. and Nutter In the fall of internal Union charges against alleging filed and Choate, were Schoux they by working had violated Union’sconstitution for em- ployers collective-bargaining relationship that did not have a guilty charged; with the Union.1 Each was found as Schoux $8,200 $6,000. was fined and Choate Royal practice charges and then filed unfair Nutter labor against alleging by fining IBEW, that, Schoux and Royal Choate, the Union had restrained or coerced *4 representatives [their] “in Nutter the selection of for the purposes bargaining adjustment griev- of collective or the of § ances” violation of of the National Labor (NLRA Act), Relations Act or as 61 amended, Stat. 29 158(b)(1)(B). § Judge U. The Administrative Law S. C. (ALJ) agreed. First, he found that Schoux and Choate were
1 for, the “[w]or[k] The Constitution of IBEW forbids members to or on of, any employer. position . . is behalf whose adverse or detrimental to the App. I. B. E. W.” 152. 2(11) of § of the NLRA.2 He within the meaning
supervisors find that doctrine” to relied on the so-called “reservoir then “[employer] the narrower of category were also they part or collective bargaining of] purposes [the representatives the 8(b)(1)(B), despite covered adjustment” B., R. duties. N. L. neither such performed fact that doctrine, the the National 998. Under reservoir 997 and Board) (NLRB inter- Relations Board or expansively Labor collec- for the purposes the phrase “representative] prets to include adjustment grievances” or the tive bargaining §of the 2(11), ground on meaning all within supervisors from which form the ‘reservoir’ logical that “such individuals collec- to select his likely at 997. The Id., or grievance adjustment.” tive selected to these might perform be supervisor fact him or classify in the future is therefore sufficient tasks as a representative. her that, even aside from res- The ALJ further determined represent- was a doctrine, ervoir Schoux time off and resolved “granted employees because he ative or problems regarding job assignments.” complaints personal on the Board’s broad Ibid. interpretation The ALJ relied 2(11) and Sec- “as used both Section term grievances only grievances to include not contractual so as tion Ibid. also personal grievances.” but held that Schoux and Choate this ALJ reasoning, On repre- or grievance-adjustment as acted 8(b)(1)(B). He found under for their sentatives “ of [the effect ‘the foreseeable intended reasonably authority, any having means individual ‘supervisor’ “The term recall, hire, transfer, off, pro suspend, lay employer, interest respon reward, or employees, or other mote, discharge, assign, effectively adjust to rec them, grievances, sibility to direct their foregoing the exercise of action, if in connection with the such ommend nature, requires merely but authority is routine or clerical not of such 152(11). independent judgment.” S. C. U. use *5 supervisor-member Union’s] the will is that cease “ ” nonsignatory employer, ‘thereby depriv working’ the for grievance adjustment ing services of his of the the (quoting representative.’” at 1000 Plumbers Id., chosen 364, (1981)). Conse 254 N. L. R. B. Local by fining and Choate quently, that, ALJ decided Schoux working Royal the Union had restrained Nutter, for and representatives employers in the selection of coerced and bargaining. adjustment collective and at 1000and 1002. B., L. R. N. argument
Finally, rejected the Union’s that no the ALJ could occur when a union did not violation collective-bargaining relationship with the have a supervisor-member disciplined. was IBEW at the time represented argued a union which neither nor intended employees company represent to of a had no incentive company’s representative, or to af- influence choice performance grievance-adjustment or collective- fect rejected argument this for two duties. The ALJ it was irrelevant that the First, he concluded that reasons. employer’s with the rela- Union did not intend to interfere representatives, tionship because the with its forcing have the could nonetheless effect depriving representative quit, of his or her argument he determined that the was in- Second, services. applicable repre- the Union did seek to this case because Royal employees and Nutter at some future date. sent the 1002. Id., findings adopted the ALJ’s and conclusions.
The NLRB
to rescind the fines levied on Schoux
It ordered the Union
disciplinary
expunge from their records the
Choate,
post appropriate
against
and to
notices.
them,
action taken
sought
1984, the Board
enforcement of its
On November
Appeals
for the Ninth
order
the Court of
Circuit.
Appeals agreed with the NLRB’s conclusion
The Court of
were
of the em
that Schoux and Choate
*6
8(b)(1)(B).
for the
It
ployer
purposes
however,
rejected,
did,
fact,
the Board’s conclusion that the Union
intend to
result,
and Nutter.3 As a
represent
employees
Royal
violation,
the court reversed the
of a
hold
finding
that “when a union does not
or intend to
ing
represent
repre
sent the
can
complaining company’s employees[,] there
be no
a
Section
violation when union
members
disciplines
even if
are
they
designated bargaining representatives.”
1986).
(CA9
‘We hold that where a Union has filed a disclaimer of
and has
subsequent
efforts,
made no
organizing
fully
of members
a
year
bargaining relationship
after the termination of the
between the
reasonably
Union and the
cannot
be construed as an effort to
employer.
require
restrain or coerce the
specific
We
some evidence of
picketing, handbilling, making
overt acts such as
statements of interest to
employers,
passing
opposition
out
represent
cards to find desire to
particular
these
employees. Here there was no evidence of such an
(CA9 1986).
intent.
. .
780 F. 2d
1492-1493
4The
Appeals
Court of
for the Eleventh Circuit has held that even if a
represent
represent
union does not
company’s employees,
or intend to
pressures
supervisor-member
working
cease
for a non
8(b)(1)(B).
company
NLRB
violates
v. International Brotherhood
(1983).
Workers,
present case,
Electrical
I—II—I Appeals holding first review the Court of We Schoux employer representatives. were To Choate necessary briefly issue, address this is first to retrace treatment the Board and this Court. provides: of the NLRA Section practice organiza- be an unfair “It shall labor for a labor —agents or its tion
“(1) (B) to restrain or . . in the coerce.. *7 representatives purposes of his selection for the of collec- bargaining adjustment grievances.” tive or the of prevent exerting This section was enacted to a union from di- pressure employer multiemployer rect on an to force it into a unit or to dictate its choice of employee grievances. Rep. of the settlement S. No. 105, (1947). Cong., pt. p. Sess., 80th 1st enactment, For two decades after the Board construed 8(b)(1)(B) § prohibit only pressure applied directly union employer compel replace to the and intended to it to its representative. In 1968, chosen however, the Board sub- 8(b)(1)(B) § stantially in extended San Francisco-Oakland (Northwest Inc.), Publications, Mailers’ No. 18 Union (Oakland Mailers). N. L. R. B. 2173 The NLRB held that a 8(b)(1)(B) § disciplines union violates it when an 8(b)(1)(B) § representative in for the manner which his or her performed. duties are The Board reasoned that the union [employer’s] represent- “interfer[ed] with the control over by attempting compel employer’s atives” “to foremen to positions prounion interpreting bargain- take in the collective ing agreement,” replace because the have to “would ” nonrepresentation its foremen or face them. Id., defacto pres- Hence, at 2173-2174. that union Board concluded designed employer rep- an sure to alter the manner in which 8(b)(1)(B) § performs functions coerces resentative the em- 8(b)(1)(B) representative. ployer in its selection of that ways. in First, it extended two This decision employer’s prohibited selection of indirect coercion might pressure representative result from on representative. suggested Second, that con- bargain- closely interpretation related to collective tract is so activity. ing is a This Court has it, too, expansion in that the Board’s since indicated Mailers at best “within the outer limits” Oakland was Light Co. v. Electrical Workers, Florida Power & section. (1974). 790, 805 417 U. S. subsequent however, decisions of the meantime,
In the prohibit union disci- NLRB further extended pline employer representatives for the manner which supervisory they performed functions other than collective interpretation, adjust- bargaining, contract supervisor “disciplining view, In the Board’s ... ment. management supervisory engaged in ac- whenever he was though grievance- his tivities, even adjustment have the same duties were not involved” would employer representative disciplining as en- coercive effect §8(b)(1)(B) gaged at 802. Id., duties. Section general eyes prohibition “a Board, became, *8 disciplining supervisor-members for their conduct in union’s employers.” representing the interests their of of the course Ibid. abrupt expansion Power, came to an halt;
In Florida this 8(b)(1)(B) The Court that a retreat was called. held indeed representa- prohibit discipline of read to cannot be during performance a strike. of rank-and-file work tives created test de- decision a restrictive “adverse-effect” The 8(b)(1)(B) is violated: termine when legislative history in is there to be “Nowhere Congress implication sought any to extend found protection from or to the union restraint coer- activity any engaged than the selec- other cion when representatives purposes tion for the of collective of its bargaining grievance adjustment. and The conclusionis inescapable discipline a thus union’s of of one supervisory employee members who is can constitute a only discipline may of when that violation adversely supervisor’s performing conduct in affect acting capacity the duties in his of, as, ad- bargainer juster employer.” or collective on behalf of added). (emphasis S.,U. at 804-805 then Court found that the union’s picket who line to crossed do struck work adversely performance not could affect duties. finding, employer rep- In so the Court stressed that the engaged bargaining resentatives “were not collective or grievance adjustment, any or in activities related thereto.” 805. Id., at language implicitly application
The Court’s limited the of the adverse-effect test: adverse effect on future only employer rep- activities exists when an disciplined resentative is behavior that occurs while he §8(b)(1)(B) engaged or she is is, duties—that “collective bargaining grievance adjustment, any or .or . . activities supported by related thereto.” Ibid.5 This conclusion is agree scope. See, Commentators that the test has g., this limited e. Comment, Section of the National Labor Relations Act and Discipline Supervisor-Members Union after Writers Equipoise Guild: Imbalance?, (“By intimating 1978 S. Ill. U. L. J. that section supervisors protecting limited to they from when are specifically representing management in collective and the ad justment grievances, the Court not specifically overruling while Oak Mailers, land restricting post-1968 seemed to be extension section”), Comment, 8(b)(1)(B), Section National Labor Relations Act: Discipline Supervisor-Members When Does Union Constitute Restraint Employer Representatives?, Coercion of the Selection of 1976 Wis. L. Rev. 882-883: implies ‘engaged’ “The Court’s use of the word that for union to violate *9 8(b)(1)(B) supervisor disciplined section actually must be engaging in grievance adjustment, bargaining, collective A related activities. mere impact general of determination that the Court’s the 8(b)(1)(B) loyalty § representative’s to the em- on a § ployer violation. The to create a is insufficient “likely recognized effect” of union of that a Court performing employer representative tasks other than grievance adjustment would be “to and collective representative] [the to the union’s wishes subservient make ” performs Id., in future. at 807. those functions when he potential the Court refused to consider this Nonetheless conflictingloyalties problem of union dis- an adverse effect § design guar- Congress cipline not because did § loyalty repre- undivided antee legislative history on a review of the Based sentatives.6 2(11), 14(a), §§2(3), Act,7 of the Court held: potential fear of the union duties —a connection to those
theoretical loyalty to the caused the lack of undivided supervisor-member or honoring picket line —is too remote to supervisor-member’s by the appear In view it would violation. the Court’s cause a section only supervisor will occur when a violation of the section actually performing protected one of the she is disciplined while he or activities.” 6The Court stated: one, very argument is a real but the expressed in this “The concern 8(b)(1)(B), § addressed, through but Congress not
problem is one that Congress in Specifically, completely legislative different route. through a 152(3), 2(3), 29 U. S. C. ‘employee’ 1947 amended the definition §2(11), thereby supervisors . . . exclud- under those denominated exclude S., Power, at 807. Florida 417 U. coverage of the Act.” ing them from part: 152(3), pertinent 2(3), provides C. U. S. Section any employee, . but shall not . . ‘employee’ shall include “The term supervisor employed as a . . . .” any . individual include . . 152(11), “supervisor,” 2(11), which defines the term 29 U. S. C. Section 2, supra. is set forth n. 164(a), congres- 14(a), part reveals another S. C. U.
Section conflict-of-loyalty question: of the sional resolution supervisor employed as a prohibit any individual “Nothing herein shall organization, but no em- remaining a member of a labor becoming or from compelled to deem individuals de- subject subchapter shall be ployer to this *10 “Congress’ [to problem conflictingloyal- the solution essentially ties] providing was one option. liberty an hand, On one he is at to demand loyalty supervisory personnel absolute from his in- sisting, pain discharge, they partici- on neither pate membership organization. in, nor retain in, a labor Alternatively, per- who wishes to do can so supervisors join membership mit his or retain their resolving through labor unions, such as conflicts arise procedures bargaining. the traditional of collective But quite apparent, given statutory language it is particular legislative history concerns that the shows Congress §8(b)(1)(B), motivated to enact that it did not provision any part intend make that of the solution to generalized problem supervisor-member conflict (citation loyalties.” of omitted). Id., at omitted; 812-813 footnote willing In addition, the Court stated that was to assume that “the Board’s Oakland Mailers decision fell within the outer limits” of the Id., Thus, adverse-effect test. at 805. implicitly, beyond “[i]n. the Board went those limits .(cid:127). subse- quent [where] cases ... the Board held that the same coercive likely disciplining supervisor effect was arise from of a engaged management supervisory he whenever was or ac- though grievance- tivities, even his adjusting duties not were involved.” at 801-802. Id., years Broadcasting
Four in American later, v. Cos. Writers (1978) (ABC), ap- Guild, West, Inc., 437 U. S. the Court plied the adverse-effect test enunciated in Florida Power and employer representatives that union held who performed specifically grievance adjust- duties, during employer’s rights ment, a strike violated under 8(b)(1)(B): supervisors fined herein as employees purpose any law, as for the either local, relating bargaining.” national to collective Power] [Florida the bound- “[T]he delineated Court 8(b) ‘carryover’ violate effect would aries of when adversely (1)(B): may affect such whenever capacity ad- supervisor’s as a in his conduct bargainer. —that justor In situations these or collective impact might would be felt—the is, when such *11 deprived of his the full services be in and coerced his selec- restrained would be and hence (em- representatives.” S., 437 U. those tion of added). phasis 8(b)(1)(B) § can violation before a that, also held
The Court finding that a must make a factual sustained, the NLRB be repre- employer adversely affect sanction will union’s grievance- performance or sentative’s adjusting at 430. Id., duties. agreed, and the Court found, the Board ABC, therefore,
In representatives engaged fines of that the union adjustment grievance effect on have an adverse would in performance supervisor-member’s of that same future 8(b)(1)(B) analysis duty. holding § This is consistent with 8(b)(1)(B) § only forbids in Florida Power—that of the Court discipline that occur while an acts or omissions 8(b)(1)(B) § engaged representative Accord- activities.8 is An plausible theory nature. a of human consistent with It is also disciplined for acts or omissions who has been employer representative 8(b)(1)(B) activity might §in well be engaged he or she is occur while that in the future. performing such duties crossing the union when wary about disciplined unrelated has been for behavior supervisor-member who But a 8(b)(1)(B) perform her unlikely altering to react his or is § functions Comment, Supervisors Discipline of Union tasks. Cf. ance of Performing Struck Work Is Rank-and-File Members for are Union Who (1973) (“[S]uper- Practice, L. Rev. 87 Harv. Labor Not an Unfair performing rank-and-file struck discipline easily distinguish can visors they represent the manner which discipline for from work suggests that a 8(b)(1)(B)] as dictum in ABC Insofar processes”). in [§ for acts or omissions discipline supervisor-members may not supervisory engaged in activities supervisor-member while the occur ingly, supervisor a we conclude member is prohibited only under when that member is en- §8(b)(1)(B) gaged bargaining, is, activities—that collective grievance adjustment, closely activity some other related (e. Mailers). interpretation, g., as contract in Oakland §8(b)
One obvious ramification of this conclusion is that (1)(B) prohibits discipline only supervisor-members those perform actually Clearly super- who duties. disciplined be visor cannot during for acts or omissions that occur performance if duties he or she has reject We none. therefore the NLRB’s “reservoir doctrine,” Appeals on the Court of which relied. above, As stated §2(11) supervisors of the rationale doctrine is that constitute reservoir workers available for selection at some future collective-bargaining agents date as adjusters. speculates permitted The Board that if a union is supervisor-member, even one without duties, discipline might supervisor’s loyalty the union affect the *12 employer, her discipline might linger, his or the of effect loyal pool supervisors might a smaller of available, be and the employer might therefore be restricted in its choice future 8(b)(1)(B) representatives § purposes. of The reservoir suppositions and doctrine, this chain of on which it rests, can- not be reconciled with the structure of the NLRA or with the § Court’s limited construction of in Florida Power and ABC. §
The structure of the NLRA reveals that in Congress separate prob- addressed “a and far more limited loyalties.” lem than that of of conflict Florida Power, 417 only compare U. at scope S., 811, n. 21. One need with that of other sections of the Act: only employer’s represent- covers individuals selected as the purposes atives “for the of collective or the ad- justment grievances,” supervisors while the total class of 8(b)(1)(B) activities, other than the dictum is inconsistent with Florida Power, and we disavow it. §2(11) engaged in a sub- include individuals “is defined range stantially S., 811, 417 U. at of activities.” broader n. 21. justification the “reservoir doc- the Board’s
Second, loyalty supervisor’s protects to the em- that it trine” is discipline.9 conflicting pressures ployer of union from §'8(b) engage supervisors in no who Yet union (1)(B) only by creating activity coerces the grievance- hypothetical potential for interference with adjustment it cannot have a duties; performance contemporaneous on the effect precisely vague This is conflict-of- themselves. duties 8(b) support loyalties could not the Court said concern (1)(B) supra, against charge Power, Florida the union. 812-813.10 Assn., 988, 514 F. 2d 992-993 v. Rochester Musicians 9 See NLRB 1975) (“The
(CA2 super reservoir] doctrine is [the rationale likely manpower to be a reservoir of available are viewed as visors grievance adjusters at some later date. bargainers or chosen as collective loyalty em supervisor’s to the discipline could affect Since represent restricted in his choice of future ployer, would be 1973) (CA3 NLRB, atives”); 489 F. 2d Newspaper Erie Guild v. (“The disciplined by supervisors were contends that once these Board fully loyal union, they longer to the who would be could no be representatives”); International Assn. in his future selection of coerced (Cork Insulating Co.), & Asbestos Workers Heat and Frost Insulators (“[T]he (1971) right... employer [has a] select N. L. R. B. 854 from an grievance] uncoerced [collective-bargaining and prejudiced”). him not been See supervisors loyalty to has group of whose Employee Unions, Comment, Supervisors 40 U. The Role of generally (1972). Rev. *13 L. Chi. 10 reason, Appeals concluded that the deci one of Court’s For this Court of the the demise reservoir doctrine: signified Florida Power sion in process grievance surely with actual no more interference “There is supervisor present plays part discipline of a who at no adjustment in union discipline authority of one with actual than there is process, in that non-supervisory work. In each case the adjust performing grievances management’s rights pro- insignificant to affect the union’s action is too Finally, holding the crux of the Court’s in ABC was that inquiry the Board must make a factual whether a union’s may adversely employer representative’s sanction affect the performance grievance-adjusting or § duties before a violation can be sustained. 437 simply discipline S.,U. at 430. One cannot discern whether impact supervisor-member’s will have an adverse on a future performance of duties when their existence is purely hypothetical.11 discipline conclude
We that the union at issue was not an practice. Although unfair labor both Schoux and Choate supervisors meaning §2(11), were grievance-adjustment within the neither had collective-bargaining responsibil-
or 8(b)(1)(B).12 protected by 2(11) possibility ities that a 8(b)(1)(B).” by § tected NLRB Assn., v. Rochester supra, Musicians at 992-993. Comment, (“The J.,
See also 1978 S. Ill. L.U. at 475 Board must find the supervisor-members actually empowered are bargain- real collective ing grievance adjusting functions”); Comment, Changing Interpretation of NLRA Section Discipline Supervisors in the After- —Union Light, math of Florida Power & John Marshall J. Prac. & Proc. (1976) (“In short, the Court . . . abolished doctrine’”); the ‘reservoir cf. Newspaper NLRB, Erie Guild v. supra, at (disapproving “reservoir decided). doctrine” before Florida Power was 11 Comment, Rev., See 87 Harv. L. n. 65: eases in disciplined “[I]n which the supervisors union members are but not representatives, a finding practice of an unfair labor will be. . . justify, difficult to since a impact crucial factor is the will they perform have on the members when bargaining collective griev- adjustment Although ance duties. the union arguably could in- supervisors fluence perform fellow duties, might who do such influence disciplined supervisors performance any they such duties might granted future, likely be in the impact grievance adjustment on clearly and collective significant.” less 12The NLRB held in the adjust alternative that did per because Schoux grievances sonal opposed grievances qualified to contract as a —as —he supervisor, application even without reservoir doctrine. consequence III, As a infra, of our we conclusion Part need not decide whether the Board’s broad definition of hence of “griev- —and *14 someday perform might supervisor functions and past discipline might effect on the then have an adverse that simply speculative performance too duties is of such “restrain[ed] finding support has been that coerce[d]” “in of his or the selection bargaining adjustment purposes or the the of collective grievances.”
Ill Appeals the law, a matter of that found, as The Court of relationship collective-bargaining Union did not have represent Royal their it did not seek to and that Nutter, finding pre- employees It held that such a future. the 8(b)(1)(B). liability for violation cluded union argues, circum- even under these however, that NLRB its no-contract-no- enforcement stances, the Union’s supervisor-members against would restrain work rule way by affecting Royal which the the § and Nutter coerce performed tasks and supervisor-members their representatives. restricting the selection analogous the reasoning we find that II, that in Part On relationship the between of a absence employer, the absence of like union and disciplined supervisor-member, makes responsibilities in a and possibility of Schoux the Union’s that Royal to form too attenuated and Nutter coerce will Choate charge. practice unfair labor of an basis scope purpose and narrow consistent with adjustment” anee —is Power the Court said in Florida however, 8(b)(1)(B). observe, We activity.” explicitly stated and “particular adjustment grievance Dunlop, and the American Labor D. Bok & J. S., also at 803. See 417 U. application (1970) “disput[e] over is a (“grievance” Community 220 Act, Management Relations contract”). of the Labor Other sections §§203 and meaning. See narrow 1947, similarly suggest a (“In Rev., L. at 879 Comment, Wis. §§ also 174. See U. S. C. both [collective have defined appears Supreme Court Florida Power narrowly”). very adjustment] First, not affect discipline will the manner in which *15 employer representatives perform or grievance-adjustment tasks. When a has collective-bargaining union a collective- with an bargaining relationship employer, have an may incentive to affect supervisor-member’s its of handling and grievance-adjustment chores. Moreover, union of discipline 8(b)(1)(B)
behavior that occurs during performance §of duties might affect the future adversely performance those duties. supra, See at 585-586. But when a union has no collective- an with and does seek relationship employer, not one, to establish both the to a incentive affect supervisor’s and an performance that possibility adverse effect will occur vanish. The union has nothing to gain by interference with supervisor-member’s loyalty grievance ad during or justment collective can bargaining; nor the employer repre sentative reasonably that or expect he she will be to subject the manner which in discipline those are duties performed in In the future.13 words, other the assumption underpinning Florida Power and ABC—that an adverse effect can occur virtue of simply by the fact that an employer representative is for behavior that occurs disciplined during performance 8(b)(1)(B) —is applicable tasks not when the employer has no continuing with the union.14 relationship 13 8(b)(1)(B) employer’s Direct coercion of an selection of a represent always violation, ative would be a whether not has union a bargaining relationship employer. or seeks with an This case not does present question whether indirect of an employer coercion in its selec representative tion a through a facially union’s selective enforcement of a rule uniform would constitute a violation of regard without relationship whether union has a bargaining with employer. The Appeals suggested might. Court of has that it See NLRB v. Interna (“The Workers, 2d, tional Brotherhood Electrical may 714 F. at 872 case if be different there that purpose evidence enforcing union’s actual selection”). bylaw employer’s was to interfere with the 14 Broadcasting Guild, West, Inc., In American Cos. v. Writers U. S. (1978) (ABC), the Court found that imposed grievance- on and Second, the Union’s of Schoux Choate does in their selection § not coerce and Nutter Royal Section was intended representatives. primarily long-term relationship prevent engaged represent- the latter’s choice of dictating from (single-unit would take representation ative or the form unit). No. 80th multiemployer Rep. Cong., See S. (1947). It en- Sess., p. 1st was not intended prevent of uniform union have may occasionally forcement rules incidental effect less supervisory of making position desirable. (both only sense which those with with the
those without a collective-bargaining relationship in their selection union) be coerced may repre *16 of the no-contract-no-work rule sentatives the application left may is that the be with employer to supervisor-members may individuals from which it choose rep a smaller pool will This is some union members be resentatives. because if the price § reluctant to serve as disciplinary union or fines.15 membership is loss of payment 8(b)(1)(B), picket § supervisors who crossed union lines violated handling adjust grievances not for the though supervisor-members did even the striking union employees, only employees whom the did striking but 437-438, case, Id., n. In that represent represent. or to at 37. not desire employees however, represent employer’s the and the union did some of employer. The bargaining relationship a with the coerced therefore had continuing relationship employer and an incentive a union had recurrent) representative’s performance of employer (possibly to affect support ABC, example, the union needed the § In duties. seeking for its members effective. to make the strike benefits employees all 15 supervisor- discipline a any in that that affects suggest dictum ABC does 8(b)(1)(B) supervisor is unlawful. to as a “willingness serve” member’s the union’s the intended effect of Id., observed that at 436. The Court represent services ofits chosen ofthe deprive was to any in strike strike adjustment for the duration ative for id., future, and concluded: at willingness to serve either their supervisors can affect pressure on “Union in bargainers, or the manner which grievance adjusters collective as 592 example, designed
For the no-contract-no-work rule is prevent any working union member from for an pay wage that does scale, not the union but does have peripheral making representative effect of a willing capacity less in that than serve he she other thereby be, wise would see ABC, S., U. limit ing employer’s Any discipline imposed selection. on a representative, willingness however, will affect in to serve this sense.16
they functions; fulfill these impermissibly and either effect coerces the representative.” Id., his choice of at 436. This unnecessary disposition statement was to the of ABC. There the Court held adversely that the union fines had affected the manner which the employer representatives and therefore fulfilled functions employer’s representatives. interfered with the control over its NLRB, (1969). 8(b) Cf. v. S.U. involved Scofield Scofield (1)(A) of the NLRA which forbids a “to employees union restrain or coerce” in the rights exercise of their activity to refrain from collective and which proviso stating contains impair right the section “shall not of a organization labor prescribe respect acquisition its own rules with to the membership or retention of upheld therein.” The Court union fines of members who by refraining had broken union rule from certain collective activity, concluding such not did restrain or coerce the union §8(b)(1)(A), members and not hence did violate saying: 8(b)(1) “[Section] leaves union free a properly adopted to enforce rule legitimate interest, which reflects a impairs policy Congress no has laws, reasonably imbedded the labor and is against enforced union mem- *17 bers who are free to escape S., leave the union and the rule.” 394 U. at 430. similarly
Section must interpreted be to allow unions to enforce impair Gould, internal union policy. rules that no labor See Some Limita Upon tions Discipline Union Under the National Labor Act: Relations Allis-Chalmers, 1067, 1128-1129 (“If, Radiations 1970Duke L. J. as the Allis-Chalmers, in Court said the union has a substantial interest disci plining strikebreakers, analysis ought that not simply to be altered because they happen supervisory positions. to be against The thrust union an against as institution just and its strike function is as direct and effective”).
593 any long is attraction to union addition, In so as there preclude membership, of union this test would existence Again, supervisors membership. excluding this from rules membership any would union member who valued is because supra, willing if cost of 436, see at serve, ABC, be less to any membership, and because reluctance were loss service up membership supervisor give would limit the size of the to represent- pool from could select its which employer’s This minimal effect on an selection of atives.17 8(b)(1)(B) representatives support § to is insufficient every charge. It that union rule is inconceivable willingness super- as member’s to serve that affects a union provision scope by prohibited as narrow as visor could be 8(b)(1)(B). supervisor-member A both masters without cannot serve incurring simply obligations re- to it is unfair to both; some accept quire all of the unions to members who receive bene- obligations.18 and none of the We fits of association bear unlikely Congress union highly that intended ban a It supervisors saying so. un without It is forbidding rule its members to be enacted, many unions allowed disputed the time was that at membership. Respond retain Brief only rank-and-file workers to See 11, n. 8. ent super- prohibit so amended could In the NLRA was obtaining maintaining membership, see 29 U. S. C. from union visors supervisors a 152(3), 164(a), Congress that granting because believed §§ Congress policy of join a is “inconsistent with the protected right to supervi- their freedom from domination control to assure workers employers.” policy protect rights with our sors” “inconsistent (1947). Sess., Cong., 1st Yet the NLRB’s Rep. H. R. No. 80th requiring result interpretation would have anomalous supervisors. who decide to become open to workers unions remain (“[Wjhile S., Power, n. 22 both the em 417 U. Florida Cf. conflicting legitimate may have but nonetheless and the union ployer strike, during a the fact loyalty supervisor-members expectations of from beneficiary any advan will in some measure be supervisor inherently inequita- through makes it by the union the strike tages secured *18 reject argument accept the that therefore unions must both grant supervisor-members immunity them from enforce- ment of uniform rules.
Finally, both the structure the NLRA and recent devel- opments interpretation suggest in its that are no longer represent- restrained or coerced their selection of by supervisor-members. union atives The stat- employer, supervisor- ute itself reveals that isit the not the protected member, statutory who is from coercion scheme. It is difficult to maintain accept restrained or coerced because union member must expulsion supervi- union or other to continue sory position. employer’s problem supervisor- —that might representative align member decline to serve as a during deprive with the union a strike and making. dissenting services —is its own A member of the Board has said:
“Having opportunity been afforded the to refuse to hire supervisors, opportunity union members as to dis- charge supervisors for involvement in union affairs, the opportunity incorporate to into a agreement permissible supervisor- extent of a functioning during member’s a strike and, indeed, the opportunity provide making additional incentives worthwhile for all union members to forfeit union bene- upon taking supervisory positions, employer, fits having opportunities, such forsaken cannot now be heard argue affecting union is selection very grievance adjustment bargaining rep- or collective permits membership.” resentative it to retain union Typographical (Triangle New York Union No. 6 Publi- (1975) cations), (member 216 N. L. R. B. 896, Fan- ning, dissenting). ble that he be allowed function as a strikebreaker incurring without sanctions”). *19 co- was that the
In the Court determined ABC supervisor- despite order the that it could the fact erced further themselves from union and free to leave the members pointed discipline. when out, But, as Court threats of supervisor-members not free to were decided, ABC was example, any the union In ABC, time. the union at leave resign during permit policy a to not to member a “known had plainly' period thereafter,” so of six months and for a a strike replace only employer’s would have been recourse “the representatives.” supervisor-members] [the his as S., at 436-437. 437 U. changed. Recently this decided since Court
The law has (1985), that union NLRB, v. U. S. in Pattern Makers any right resign time from a union at and a members have employer may discipline. imposition The of union avoid immediately the union to leave order supervisor-member’s obedience to to a no barrier there is may very from Pat- be derived least that order. merely discipline that that union rules or tern Makers is willingness employer representative’s to serve diminish an longer in its selection of a or coerce no restrain 8(b)(1)(B)representative. §
(I— > 8(b)(1)(B) integrity protect enacted to was Section bargain- grievance adjustment processes and collective systems private dispute-resolution ing on which the —two Although high premium. place some laws labor national discipline might impermissibly the manner affect union supervisor-member tasks or carries out which repre- employer of a its selection coerce supervisor-members directed sentative, working duties, without nor seeks union neither has whom relationship, per-, adversely affect does not cannot and Consequently, such union duties. formance of action does not coerce the in its selection of representatives. The order the Court of Appeals for the Ninth Circuit is therefore
Affirmed. Scalia, Justice concurring the judgment. agree I
Because with the conclusion of Part III of the (as Court) opinion, unnecessary I find it Court’s should the question the “reservoir doctrine” reach discussed in II. Part *20 agree reasoning I And while with much of the of Part I III, join principally my it, in cannot because view it does not represent Royal matter whether the Union intended to inadequate if matter, it I Nutter; and did would find basis for overturning finding representational the Board’s factual of Appeals solely intent. I would affirm the Court of on the ground collective-bargaining agree- that the Union had no covering Royal ment either or Nutter.
Section of the National Labor Relations Act for a makes it unlawful labor union “to restrain or coerce . . . representatives in an selection his for the purposes bargaining adjustment griev- of collective or the 158(b)(1)(B). suggests, ances.” U. S. C. As the Court by plain governs only relationship the statute terms employers, relationship between unions and not between pertains only their Further, unions and members. to one aspect union-employer relationship: employer’s of the adjustment repre- selection of a Broadcasting sentative. Nonetheless, American Cos. v. (1978) (ABC), Guild, Inc., Writers S. 411 U. we affirmed application the Board’s of this to union statute picket perform griev- members who in order to cross lines adjustment ance work for with whom the union collective-bargaining The has contract. Board now asks us approve an to a still extension of the statute more remote upon form of such “restraint” a union “selec- against namely, restraint directed such tion”— with whom collective-bargaining agreement. the union has no given question the defer whether, were If before us agency construc determinations, the Board’s ence we owe opinion I one, in ABC is a reasonable tion this Court’s agree it is. defer to We Government would (and apply agencies, “reasonableness” thus a mere however review) statutes, construction of their their standard of question opinions. before us is not whether not of our reasonably support decision, the Board’s be read to ABC can reasonably support be read to can but whether prior and the Board’s decision to me that ABC it. It seems (North No. 18 Mailers’ Union Francisco-Oakland San (1968), Inc.), which Publications, 172 N. L. R. B. 2173 west by disciplining member- violate held that unions they interpret in which for the manner represent “outer at best the contracts, Light Workers, Electrical Co. v. Florida Power & limits,” (1974), any permissible construction 417 U. S. 8(b)(1)(B). certainly go and would further, I no would theory accordingly restraint the Board’s indirect limit is an actual contract between in which there circumstances *21 regard employer, without to whether affected union and the a contract. Of an intent to establish such has the union opinion points “Direct coercion out: as the Court’s course, 8(b)(1) employer’s coercion] [i. of a an selection real of e., (B) always representative violation, be a would or seeks a relation the union has or not whether ship employer.” Ante, at n. 13. with product phenome- approach of the a familiar is
The Board’s
judicial
having
benefit
succeeded,
of excessive
non. Once
scope
beyond
expanding
a
a statute
deference,
language,
interpretation of its
the emboldened
reasonable
expansion
presses
agency
of that
to the limits of
rationale
having already
point
logic.
Court,
sanctioned
And the
departure
genuinely
not
is
to be found within
lan-
guage of
statute,
finds itself cut off from that authorita-
up construing
law,
tive source of the
and ends
not the statute
Applied
point
but its own construction.
to an erroneous
departure,
logical reasoning
ordinarily
that is
the mecha-
judicial
perversely
nism of
adherence to the
rule
law
car-
meaning
ries the Court further and further from the
of the
path,
statute.
Some distance down that
however, there
point
step, again
comes
at which a later incremental
in itself,
rational
leads to a
far
result so
removed from the
fidelity
statute that
obedience
text must overcome
logic.
Burger’s
Chief Justice
remarks in United
v. 12
States
(1973),
Film,
Reels
of a is rule often not ‘logical’ ceived until third, fourth, or fifth extension step, appeared occurs. Each when taken, a reasonable step preceded although in relation to that which it, aggregate or end result is one that would never have seriously This been considered the first instance. gestative propensity drawing’ kind of calls for the ‘line judicial, legislative process: familiar in the inas ‘thus beyond.’” not far but Id., 127. Logic
That is the case here. on the side of the Board, but respondent. judgment the statute is with the I concur of the Court.
Justice The White, whom Chief Justice Justice join, O’Connor dissenting. majority again judgment has once substituted its for a interpretation by
fair and reasonable the National Labor Re *22 §8(b)(1)(B), again, respectfully lations Board of I, once Light dissent. See Florida Power & Co. v. Electrical Work (1974) dissenting). ers, 417 U. 813 790, S. (White, J.,
599
that a union violates
The Board concluded
as an
member,
it
who serves
when
disciplines
an
which does
working
representative,1
union.
agreement
a collective-bargaining
not have
to leave
is to force
member
of such
The purpose
and its effect is to deprive
his or her job
In
selected.
which
has
representative
services of
Local
Brotherhood
Electrical Workers
ternational
Co.),
(Royal
Electric
(1984). The
995,
271 N. L. R. B.
New
§of
is longstanding.
Board’s interpretation
Carpenters and
Amer
Joiners
Mexico District Council of
(A.
Inc.),
Horner,
ica
S.
(1969), enf’d,
177 N. L. R. B. 500
1972).
(CA10
As is often a difficult policy national labor to effectuate balance which the committed Congress pri- responsibility, and delicate lim- Board, Relations subject Labor to the National marily Broadcasting American Cos. v. Writers ited review.” judicial (ABC) Guild, West, Inc., (1978) (internal 437 U. S. omitted). author- as a oard “super-B We do not sit quotations con- between reasonable choice agency’s ized to overrule not impose We should controlling statute. structions of “repre and Choate were not II, majority holds that Schoux In Part 8(b)(1)(B). meaning This their within sentatives” of Board concluded that Schoux properly this Court. The is not before issue . repre grievance-adjustment or acted as and Choate and the Ninth Circuit employers under for their sentatives Ante, The Board 578-579. Board’s conclusion. agreed with the since it had petition for certiorari obviously raise this issue did not for our review was only question presented the issue. The prevailed on reasonably concluded that Labor Relations Board the National “[w]hether byAct Labor Relations of the National violated Section (who management represent supervisor-members disciplining working employer that does bargaining) for for an or collective adjustment Respondent that union.” bargaining agreement with a collective not have Appeals’ challenge the nor did it Court cross-petition for certiorari not did or in petition for writ of certiorari opposition to the in its brief conclusion comes to us. judge the case as it should therefore on the merits. We its brief *23 600
our views on as long stays Board as it within the outer boundaries with statute is charged administering.” Florida Power, at The supra, 816. Board has done so here. an By plain em language, protects to select ployer’s and collective- right grievance-adjustment bargaining representatives, and does not that ensure merely union does not affect the control manner which a selected thereafter representative performs his or her duties. And I see in the or nothing language legislative history NLRA which indicates intent congressional to foreclose the Board from applying to the type union interfer ence with an employer’s right to select its representatives which is here. The presented section was in primarily tended to from prevent unions employers into multi- forcing units employer bargaining and from dictating identity of employers’ representatives for collective bargaining and NLRB v. Amax Coal Co., adjusting. 453 U. S. Florida 322, 334-335 Power, supra, (1981); 803-804. There is no reason why the Board cannot fairly interpret against interdiction an dictating choice of employer’s repre sentative to an encompass both requiring select see Florida Power, supra, Y,Mr. preventing an em from ployer selecting anyone who is member of a union which does not have a collective-bargaining agreement the employer.2 we ABC.
Moreover, traveled this road previously We stated there: “Union pressure on supervisors can affect their willingness to serve as either grievance adjustors collective bargainers, or the manner which fulfill they these functions; and either effect impermissibly coerces the Report The permit Senate stated “this subsection would not who represent to dictate shall in the settlement of employee grievances, compel personnel removal director or supervisor delegated who has been settling grievances.” function of Rep. (1947) Cong., Sess., S. No. 80th 1st pt. p. (emphasis added). representative.” in his choice of S.,U. at 436 added).
(emphasis majority mischaracterizes this state- “unnecessary disposition ment- as “dictum,” of ABC.” Ante, at 691-592, n. 15. The union threatened in supervisor-members kept was case found to have some *24 reporting during from to work strike and to have ad- versely reported perform- who affected those to work in the grievance-adjustment ance of their duties. 437 U. S., at group, agreed 431-436. As to the former we with the Board meaning that ABC was “restrained and coerced within the by being totally deprived opportunity of the particular supervisors [its] to choose these as collective- grievance-adjustment representatives during Id., 432. strike.” at The manner in which these supervisor-members performed obviously their duties was they performed during not affected since no duties the strike; willingness employer rep- as here, was their to serve as approvingly resentatives that atwas issue. citedWe disposition practice analogous Board’s of an unfair labor claim virtually to the claim asserted in ABC and identical to the one supra, asserted here. In A. Horner, Inc., S. the Board held imposed that union on a member who worked as a supervisor for an which had no contract with the required union violated because it would have supervisor job deprived to leave his and thus would have representative. of the services of its selected 437 S., 436, U. at n. 36. group employees
Also at issue ABC was a —direc- striking per- were tors—who members who but grievance-adjustment only respect formed duties with to members of other unions. That fact did not us lead to a dif- 8(b)(1)(B). analysis may ferent or result under “A union no employer’s grievance rep- more interfere with the choice of a respect employees represented by resentative with other respect employees unions than with to those whom it itself represents. Organization Masters, International Mates 602 Pilots, Division, International Marine 197 N. L. R. B. (1972), App. enf’d, 159 S. D. 11, 14, U. C. 486F. 2d 1271,
400
(1973),
(1974),
denied,
cert.
serve and em- Unions membership. their union to retain visors because however, obviously so, not do always do ployers from gained benefit to be that there is some each believes has interpreted The Board supervisor-members. accepting the bene- accept that choose to unions require immu- of their to bear the burden fits of supervisor-members of the fed- rules, furtherance certain disciplinary from nity representatives select their should eral policy disagrees The majority simply free of union coercion. on the burden the Board and would place this judgment if the bene- is, accept chooses employers; that it may it must bear the risk fits of supervisor-members, collective as of their services be deprived But this choice adjustment. and grievance has been of the statute reasonable constructions between I dissent. Hence, not to this Court. NLRB, to the entrusted §8(b)(1)(B) re the Board’s construction majority 4 The asserts that excluding prohibit a union from interpret the section to quires that it also similarly rule would membership, since such a union supervisors from Ante, supervisory positions. willing members less to serve make 8(b)(1)(B) broadly. not, however, interpreted § so The Board has 593-594. (1979), Carriers, B. 519 240 N. L. R. In Association Letter National adopt union to a rule for a no violation of Board held that was temporary supervisors accepted positions as who rendering letter carriers despite they capacity, in that membership long as worked ineligible for as pool of letter carriers available to the fact that the rule diminished *26 inconsistency no fatal in the supervisors. I see temporary serve as super rule all of a union which excludes positions. In the case Board’s employers, primary rela of their membership regardless visors from members, the union whereas and its tionship affected is the one between particu working members from prohibiting in the case of a union rule (those agreements without lar relationship affected is the one between the union union), primary Congress has easily infringes upon “policy A more employers. laws,” ante, 16, in latter situation. n. in the labor imbedded