NATIONAL LABOR RELATIONS BOARD, PETITIONER V. INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 340

   No. 85-1924

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Reply Brief for the National Labor Relations Board

   Respondent expressly abandons (Resp. Br. 8 n.2) the court of
appeals' interpretation of Section 8(b)(1)(B) as prohibiting union
discipline of supervisor-members for serving as grievance adjusters or
collective bargainers for an employer disfavored by the union only
when the union represents or has "demonstrated an intent to represent"
(Pet. App. 6a) that employer.  /1/ Instead, respondent seeks to
support the court's judgment with another, equally flawed,
interpretation of Section 8(b)(1)(B).

   1.a. As we have explained, the Board interprets Section 8(b)(1)(B)
as proscribing union discipline of members for accepting supervisory
positions with particular employers whom the union disfavors.
Respondent contends (Br. 12) that the Board's interpretation would
give the section a broader reach than Congress intended and would
"transform that section into a vehicle requiring unions to remain open
to workers who opt to become supervisors." Respondent therefore
suggests that the Court interpret the section to proscribe "union
discipline aimed at controlling the manner in which union members
represent management," but not "union discipline aimed at preventing
union members from accepting management positions." (id. at 8 n.2).

   The distinction respondent proffers ignores the plain language of
Section 8(b)(1)(B).  That language cannot abide an interpretation that
would, as respondent proposes, "safeguard the employer's control over
his representatives, but would not preclude a union from seeking to
prevent its members from becoming management's representatives" (Resp.
Br. 16 (emphasis omitted)).  The statute proscribes union coercion of
the employer "in the selection of his representatives for the purposes
of collective bargaining or the adjustment of grievances" (29 U.S.C.
158(b)(1)(B) (emphasis added)).  If the word "selection" has any
meaning, it must accord the employer the right, free of union
coercion, to choose his management representatives -- and not merely
the right to insure that a selected representative is thereafter free
of union control.

   b. In a further attempt to limit the reach of Section 8(b)(1)(B),
respondent devotes much of its brief (Br. 18-31) to arguing that the
provision was aimed narrowly at "two precisely defined evils" (id. at
18).  But respondent's own submission (id. at 25-27) confirms that one
of those evils was a union's attempt to coerce the selection or
removal of an employer's grievance representatives.  The Report of the
Senate Labor Committee, quoted by respondent (id. at 25), explicitly
states that "this subsection would not permit a union to dictate who
shall represent an employer in the settlement of employee grievances,
or to compel the removal of a personnel director or supervisor who has
been delegated the function of settling grievances." S. Rep. 105, 80th
Cong., 1st Sess. Pt. 1, at 21 (1947);  see Gov't Br. 9-10.

   c. For more than 20 years, the Board has recognized that an
employer's freedom to select his grievance adjustment representatives
may be taken away just as effectively by union discipline against a
supervisor-member with grievance adjustment functions as by direct
union pressure on the employer to remove a particular grievance
adjuster.  See San Francisco-Oakland Mailers' Union No. 18, 172
N.L.R.B. 2173 (1968) (Oakland Mailers).  /2/ Respondent does not
directly challenge the rationale of Oakland Mailers.  /3/ It urges,
however, that while Section 8(b)(1)(B) may proscribe such indirect
union interference "with an employer's control over its
representatives" (Br. 35), the provision should not be construed to
proscribe union discipline aimed at preventing union members from
accepting supervisory positions in the first place.

   That contention is simply another version of respondent's argument
that, despite its plain language, Section 8(b)(1)(B) does not apply to
the selection of managemment representatives.  It is true that Oakland
Mailers arose in a situation where the union sought to control how the
supervisor-members exercised their collective bargaining or grievance
adjustment functions, not to affect their willingness to work as
supervisors for the disfavored employer (see n. 2, supra).  But
Section 8(b)(1)(B) in terms protects the employer's right to select
grievance adjustment and collective bargaining representatives free of
union coercion.  Oakland Mailers prohibited disciplining
supervisor-members for their performance because of the effect on
employer selection, and the present case -- in which the discipline
restrains the employer's selection altogether -- is in this respect a
fortiori to that one.

   2.a. Respondent argues that Section 8(b)(1)(B) should be
interpreted to prohibit only direct union pressure on the employer to
block the selection, or compel the removal, of grievance adjustment
and collective bargaining representatives, and not indirect union
pressure that has or may have the same effect.  Respondent's
contention is contrary to the decisions of this Court, which specify
that the focus of analysis under Section 8(b)(1)(B) is the potential
impact of union conduct on employers.  Florida Power & Light Co. v.
IBEW, Local 641, 417 U.S. 790, 804-805 (1974);  American Broadcasting
Cos. v. Writers Guild, 437 U.S. 411, 424 (1978).

   In Florida Power, the Court said that "(b)oth the language and the
legislative history of Section 8(b)(1)(B) reflect a clearly focused
congressional concern with the protection of employers in the
selection of representatives to engage in two particular and
explicitly stated activities, namely collective bargaining and the
adjustment of grievances." 417 U.S. at 803 (emphasis added).  And the
Court assumed the validity of the Board's position in Oakland Mailers
that Section 8(b)(1)(B) interdicts not only a union's direct economic
pressure on an employer to replace its chosen collective bargaining or
grievance adjustment representative, but also "a union's discipline of
one of its members who is a supervisory employer * * * when that
discipline may adversely affect the supervisor's conduct in performing
the duties of, and acting in his capacity as, grievance adjuster or
collective bargainer on behalf of the employer." 417 U.S. at 804-805.
Despite respondent's suggestion to the contrary, all that the Florida
Power Court found to be beyond the "metes and bounds" (id. at 798) of
Section 8(b)(1)(B) was the Board's attempt in that case to prohibit
union discipline of supervisor-members who had been fined for crossing
picket lines not to engage in collective bargaining and grievance
handling but to perform the rank-and-file work of striking employees.
/4/

   The reason why the Court rejected the Board's position in Florida
Power has no bearing on the issue in this case.  The Board's position
in Florida Power was predicated on its concern that discipline of
supervisor-members even for performing rank-and-file work would
"deprive the employer of the full loyalty of those supervisors" (417
U.S. at 806).  But the Court held that the problem of divided loyalty
"is one that Congress addressed, not through Section 8(b)(1)(B), but
through a completely different legislative route," i.e., by excluding
supervisors "from the coverage of the Act" and thereby giving the
employer "the right to refuse to hire union members as supervisors."
417 U.S. at 807-808 (footnote and citations omitted).  In the present
case, the Board is not attempting to insure the employer the undivided
loyalty of his supervisors, but the right freely to select his
representatives for grievance adjustment purposes -- a right that
Florida Power recognizes is clearly within the purview of Section
8(b)(1)(B).

   In ABC, the Court again "declined the invitation to overrule
Oakland Mailers" and reaffirmed that "Union pressure on supervisors
can affect either their willingness to serve as grievance adjustors or
collective bargainers, or the manner in which they fulfill these
functions;  and either effect impermissibly coerces the employer in
his choice of representative." 437 U.S. at 436 (footnote omitted).
The Court upheld the Board's finding that the union's discipline of
supervisor-members performing their normal supervisory duties
(including grievance adjustment) during a strike had both of these
impermissible effects.

   b. Respondent concedes (Br. 15) that the reference in ABC to a
supervisor's "willingness to serve" can be read to support the Board's
position that union discipline of supervisor-members for serving as
supervisors of a disfavored employer can violate Section 8(b)(1)(B).
Respondent seeks to distinguish ABC, however, by asserting (Br. 15)
that in that case the union had permitted its members to serve as
management representatives and was seeking to use its continuing power
over those members to regulate their conduct as management
representatives.  Respondent contends that union discipline affecting
"willingness to serve" is unlawful only "where a union 'interfere(s)
with the employer's control over his representatives' by disciplining
individuals for their conduct qua management representatives" and
thereby affects the union members' willingness to serve as grievance
adjustors or collective bargainers (id. at 16).

   There is, however, no indication that the Court intended its
language in ABC to have the restricted meaning respondent suggests.
To the contrary, as our opening brief explained (at 13), the Court
cited with approval the Board's decision in New Mexico District
Council of Carpenters (A.S. Horner, Inc.), 177 N.L.R.B. 500 (1969),
enforced, 454 F.2d 1116 (10th Cir. 1972), a case in which the union
fined a supervisor-member with grievance handling functions because he
worked for an employer that did not have a contract with the union.
It is therefore clear that the Court viewed Section 8(b)(1)(B) as
proscribing union discipline that deprives a disfavored employer of
its chosen representatives even where that discipline is not part of
an attempt to control the performance of the representatives.  Indeed,
the Court indicated that union discipline for the express purpose of
causing the employer's chosen representatives for grievance adjustment
or collective bargaining to be unwilling to serve in that capacity at
all -- the situation in Horner and here -- "'falls close to the
original rationale of Section 8(b)(1)(B) which was to permit the
employer to keep the bargaining representative of his own choosing.'"
ABC, 437, U.S. at 436 n. 36 (quoting IBEW, Local 134 v. NLRB, 487 F.2d
1143, 1155 n.19 (D.C. Cir. 1973)).  /5/

   3. Just as there is no merit to respondent's effort to engraft
novel limitations onto the statute, respondent is also incorrect in
contending that the Board espouses an unbounded interpretation of
Section 8(b)(1)(B).  The Board's interpretation, would not, as
respondent asserts (Br. 8), "prohibit all union conduct which affects
the size of the pool from which an employer chooses his supervisors"
nor does the Board propose to "make it unlawful for a union to limit
its membership to rank-and-file workers and to exclude all supervisors
from union membership (regardless of where the supervisor works)" (id.
at 11).  To the contrary, in National Association of Letter Carriers,
240 N.L.R.B. 519 (1979), the Board held that the union did not violate
Section 8(b)(1)(B) by amending its constitution to render employees
who accepted positions as temporary supervisors ineligible for
membership so long as they worked in that capacity, even though the
union's action caused "the pool of letter carriers available to serve
as temporary supervisors (to be) diminished" (240 N.L.R.B. at 525).
The Board explained that "(t)he fact that the Postal Service may have
fewer letter carriers who are willing to serve as temporary
supervisors as a result of the (union constitutional) amendment in no
way affects the Postal Service's selection of which letter carrier
will serve as a temporary supervisor (ibid. (emphasis in original)).

   In Letter Carriers, the Board expressly distinguished the cases
that respondent claims (Br. 17) are in conflict with that case.  In
those cases, /6/ the Board found violative of Section 8(b)(1)(B) union
fines imposed on members who accepted or retained temporary
supervisory positions when the union was disputing the employer's
right to utilize temporary supervisors.  In those cases, as here, the
unions had no general rule against members serving as supervisors, but
instead used their disciplinary power over members to further a
dispute with a particular employer.  As the Board explained in Letter
Carriers, 240 N.L.R.B. at 525 & n.28, in those cases the unions
attempted to "influence (the employers' supervisory) section
procedure" by prohibiting their members from accepting such positions,
whereas in Letter Carriers the "decision to appoint an employee as a
temporary supervisor, and the final decision to accept such an
appointment, remains solely within the power of the Postal Service and
the employee, respectively."

   The Board's position that a union may violate Section 8(b)(1)(B)
when it uses its disciplinary power over its members to affect an
employer's selection of its representatives for grievance adjustment
or collective bargaining does not mean that a union that believes it
detrimental to its interests to have supervisors as members cannot
promulgate a rule barring all supervisors from union membership.  As
the Board explained in a different context, in the latter situation.
"(t)he primary relationship * * * affected (is) the one between the
union and its members * * * and the union's particular objective * * *
(is) deemed * * * a legitimate area for union concern * * *." Oakland
Mailers, 172 N.L.R.B. at 2174.  On the other hand, where, as here, the
union seeks to prevent a member from working as a grievance adjustor
or collective bargainer for a particular employer, "the relationship
primarily affected is the one between the Union and the Employer * * *
" and "(t)he relationship between the Union and its members (is) only
of secondary importance, used as a convenient and * * * powerful tool
to affect the employer-union relationship." Ibid.

   For these reasons, as well as those set forth in the Board's
opening brief, the judgment of the court of appeals should be
reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   Rosemary M. Collyer

      General Counsel National Labor Relations Board

   FEBRUARY 1987

   /1/ It is not surprising that the respondent abandons the court of
appeals' interpretation.  While the court of appeals asserted that the
Union had not demonstrated an intent to represent the employees of the
nonsignatory employers because it had not engaged in such conduct as
"picketing, handbilling, making statements of interest to the
employers, or passing out opposition cards" (Pet. App. 7a), the
history of the ongoing controversy between the Union and electrical
contractors in its geographic area, including Nutter and Royal, makes
it clear that the Union's coercive action directed at Nutter and Royal
was part of a campaign to represent all the employees of electrical
contractors in its area.  See Pet. App. 22a-26a, 33a, 34a;  see also
Brief of Amici Curiae National Electrical Contractors Association, et
al. at 4-13.  As noted in our opening brief (at 20 n.13), the court of
appeals erred in not accepting the Board's findings in that regard.
The Union does not deny that it had a dispute with Nutter and Royal
(indeed, the Union proceeded against the employees under a provision
of the Union constitution that prohibits members from working for an
employer "whose position is adverse or detrimental to the (Union)"
(J.A. 152)).  The Union merely differs with the characterization of
that dispute as recognitional, choosing to describe it as involving
the employers' failure to adhere to area standards (Resp. Br. 3-4).
There is no support for an interpretation of Section 8(b)(1)(B) that
would make its application turn on the nature or level of intensity of
the dispute between the union and the disfavored employer.

   /2/ In Oakland Mailers, the union had fined supervisor-members for
the manner in which they assigned work under an existing collective
bargaining agreemment between the union and the employer.  The Board
found that, although the union "sought the substitution of attitudes
rather than persons, and may have exerted its pressures upon the
(employer) by indirect rather than direct means," realistically, the
pressure required the employer either "to replace its foremen or face
de facto nonrepresentation by them." 172 N.L.R.B. at 2173.

   /3/ Unlike amicus curiae AFL-CIO, which calls for a reexamination
of the validity of Oakland Mailers (AFL-CIO Br. 4, 21-24), respondent
does not "urge the Court to revisit that decision here" (Resp. Br.
34).  Instead, respondent contends that "the theory the Board
propounds in the instant case represents yet a further extension of
Oakland Mailers, one not compelled by the decisions to this point"
(ibid.).

   /4/ Amicus curiae AFL-CIO asserts (AFL-CIO Br. 9 & n. 2) that in
Florida Power this Court rejected the reasoning of Oakland Mailers.
But, as we have shown, in Florida Power the Court did not disapprove
the proscription of indirect pressure, it disapproved only the Board's
conclusion that Section 8(b)(1)(B) extends beyond protecting the
collective bargaining and grievance adjusting functions specified in
the section.  Significantly, when this Court had occasion to describe
Florida Power in ABC, the Court stated (437 U.S. at 425):

         Assuming without deciding that the Board's decision in
      Oakland Mailers fell within the outer reaches of Section
      8(b)(1)(B), the Court concluded that (the Board decision in
      Florida Power) did not, because it was 'certain that these
      supervisors were not engaged in collective bargaining or
      grievance adjustment, or in any activities related thereto, when
      they crossed union picket lines during an economic strike to
      engage in rank-and-file struck work.'

   The Court added (437 U.S. at 429) that in Florida Power it had
"expressly refrained from questioning * * * the proposition that an
employer could be coerced or restrained within the meaning of Section
8(b)(1)(B) not only by picketing or other direct actions aimed at him
but also by debilitating discipline imposed on his
collective-bargaining or grievance adjustment representative."

   /5/ There is no merit to respondent's suggestion (Br. 15 n.9) that
the Court's opinion in ABC should not be read as approving Horner.
Respondent's view rests on the mistaken belief that in ABC the Court
regarded Section 8(b)(1)(B) as restricted to proscribing union
interference with employer control over management representatives.

   /6/ Teamsters Local 663, 193 N.L.R.B. 581 (1971);  Communications
Workers, Local 1122, 226 N.L.R.B. 97 (1976), enforced, 562 F.2d 37 (2d
Cir. 1977) (Table);  Systems Council T-6, 236 N.L.R.B. 1209 (1978),
enforced, 599 F.2d 5 (1st Cir. 1979).