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, 1985 Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit The Solicitor General, on behalf of the National Labor Relations Board, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. TABLE OF CONTENTS Opinions below Jurisdiction Statutory provision involved Question Presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-8a) is reported at 780 F.2d 1489. The decision and order of the National Labor Relations Board (App., infra, 9a-37a) are reported at 271 N.L.R.B. 995. JURISDICTION The judgment of the court of appeals (App., infra, 38a) was entered on January 22, 1986. On April 16, 1986, Justice Rehnquist extended the time for filing a petition for a writ of certiorari to and including May 22, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISION INVOLVED Section 8(b) of the National Labor Relations Act, 29 U.S.C. 158(b), 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(.) QUESTION PRESENTED Whether the National Labor Relations Board reasonably concluded that a union violated Section 8(b)(1)(B) of the National Labor Relations Act by disciplining supervisor-members (who represent management in grievance adjustment or collective bargaining) for working for an employer that does not have a collective bargaining agreement with that union. STATEMENT 1. Harold E. Nutter Inc. (Nutter) and Royal Electric Company (Royal) are electrical contractors in Sacramento, California. At all relevant times Nutter and Royal were members of the Sacramento Valley Chapter of the National Electrical Contractors Association, Inc. (NECA), a multiemployer bargaining group. Prior to 1981, NECA negotiated a series of collective agreements covering the multiemployer bargaining unit with respondent International Brotherhood of Electrical Workers, Local 340 (Local 340 or the Union). The last of those agreements expired on May 31, 1981, and, when negotiations for a new contract were unsuccessful, the Union struck all NECA members, including Nutter and Royal. App., infra, 2a, 11a, 12a. The strike lasted for several months. On September 15, 1981, the Union sent NECA a disclaimer of interest in representing the employees of NECA members in "the multi-(employer) bargaining unit previously established" (App., infra, 2a, 12a). Instead, the Union filed 17 separate representation petitions seeking to represent (in single-employer units) persons employed by 17 NECA members. The Union did not file petitions for representation of the employees of either Nutter or Royal. On October 1, 1981, NECA signed a bargaining agreement with a different union, the National Association of Independent Unions. Both Nutter and Royal adopted that new agreement. Id. at 2a, 13a. Ted Choate, a Local 340 member, was a vice-president and estimator for Nutter. Choate's duties included hiring employees from the Union's hiring hall, transferring employees from jobsite to jobsite, visiting jobsites, and supervising foremen. One supervisor with specific responsibility to adjust employee grievances reported directly to Choate in the company's management hierarchy. App., infra, 21a. Albert Schoux, another Local 340 member, was Royal's superintendent at one of its jobsites. His duties included planning and ordering materials for the job, and hiring, assigning, transferring and firing employees. Schoux handled and resolved employees' job-related requests and personal problems, such as requests for time off and complaints about particular work assignments. Id. at 14a-16a. In the late fall of 1982, internal union charges were filed against both Choate and Schoux by Local 340, alleging that they had violated the Union's constitution by working for employers who did not have a collective bargaining agreement with the Union. Each was found guilty by a separate Union trial board. Choate was fined $6,000 and Schoux $8,200. App., infra, 3a. 2. The Board, adopting the findings and conclusions of the administrative law judge, concluded that the Union violated Section 8(b)(1)(B) of the Act, 29 U.S.C. 158(b)(1)(B), by fining Choate and Schoux. The Board found that both men were supervisors who acted as grievance adjustment or collective bargaining representatives for their employers and that, by fining them because they worked for non-signatory employers, the Union had restrained and coerced Nutter and Royal in the selection and retention of their representatives for those purposes. App., infra, 28a, 34a. The Board rejected the Union's contention, based on the Ninth Circuit's decision in NLRB v. IBEW, Local Union No. 73 (Chewelah), 714 F.2d 870 (9th Cir. 1980), that the Union could not have violated Section 8(b)(1)(B) because it did not have or intend to establish a collective bargaining relationship with Nutter or Royal at the time it fined Choate and Schoux. The Board held that Chewelah was inconsistent with this Court's decision in American Broadcasting Cos. v. Writers Guild (ABC), 437 U.S. 411 (1978). The Board explained that in ABC this Court found that discipline imposed on grievance-handling supervisors who crossed union picket lines violated Section 8(b)(1)(B) even though the supervisors did not supervise or adjust grievances of the striking employees, but only employees the striking union did not represent or desire to represent. The Board noted further that, although the union in ABC represented certain of the complaining employer's employees, the Court made clear that its rationale applied equally to situations in which the union did not represent any employees of the complaining employer. App., infra, 30a-31a (citing Plumbers Local 364, 254 N.L.R.B. 1123, 1126-1127 (1981)). /1/ 3. The Ninth Circuit denied enforcement of the Board's order. At the outset, the court upheld the Board's findings that Choate and Schoux were supervisors and representatives of their employers for the purpose of grievance adjustment or collective bargaining, /2/ and the court recognized that "(f)ines imposed on representatives may constitute prohibited coercion because the effect of the discipline may be to deprive an employer of the services of his representative" (App., infra, 4a, 5a). The court, however, found that its prior decision in "Chewelah controls and is dispositive of the issue in this case" (App., infra, 6a). In Chewelah, the court ruled that a union had not violated Section 8(b)(1)(B) of the Act by fining a member-supervisor with grievance-handling responsibility for working for a nonunion employer (Chewelah) because the union neither represented nor sought to represent Chewelah's employees and therefore "had no incentive to either influence Chewelah's choice of bargaining representative or affect (the disciplined supervisor's) loyalty to Chewelah." 714 F.2d at 871. Applying these principles to this case, the court held that "when a union does not represent or intend to represent the complaining company's employees there can be no Section 8(b)(1)(B) violation when a union disciplines members even if they are designated bargaining representatives" (App., infra, 5a). /3/ REASONS FOR GRANTING THE PETITION The court of appeals' ruling that a union may not be found to violate Section 8(b)(1)(B) by fining supervisor-members if the union does not represent or have an intent to represent the employees of the complaining employer is inconsistent with the statutory language and with this Court's decision in ABC. In addition, the decision below is in direct conflict with the decision of the Eleventh Circuit in NLRB v. IBEW, Local Union No. 323, 703 F.2d 501, cert. denied, 464 U.S. 950 (1983), and conflicts in principle with decisions of the Fifth, Tenth and District of Columbia Circuits. /4/ Union discipline of supervisor-members is a substantial and recurring issue in the administration of the National Labor Relations Act, particularly among craft unions whose members may serve as supervisor on one jobsite and journeyman on another. It is therefore important that the proper limits of such discipline be defined. Accordingly, review by this Court is warranted. 1. By its terms Section 8(b)(1)(B) was designed to prevent "restrain(t) or coerc(ion)" of employers in selecting collective bargaining or grievance adjustment representatives. /5/ Consistent with that purpose, this Court in applying the statute has focused on the potential impact of union conduct on employers (ABC, 437 U.S. at 424, quoting Florida Power & Light Co. v. IBEW Local 641, 417 U.S. 790, 804-805 (1974)): "a union's discipline of one of its members who is a supervisory employee can constitute a violation of Section 8(b)(1)(B) only when that discipline can 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." As the Court made clear in ABC, Section 8(b)(1)(B) prohibits union discipline of supervisor-members that "may adversely affect" a supervisor's willingness or ability to perform collective-bargaining or grievance-adjustment tasks (437 U.S. at 430), for such discipline coerces an employer in the exercise of his right to choose that supervisor as his collective-bargaining or grievance-handling representative (id. at 432, 436). To illustrate the unlawful effect, the Court cited with approval (id. at 436 n.36) 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), in which the union fined a supervisor-member because he worked for a nonunion employer. The Court stated that "(a) fine imposed in these circumstances violated the section because compliance by the supervisor with the union's demands would have required his leaving his job and thus have 'the effect of depriving the Company of the services of its selected representative for the purposes of collective-bargaining or the adjustment of grievances.'" 437 U.S. at 436 n.36 (quoting A.S. Horner, 177 N.L.R.B. at 502). The situation here is virtually identical to that in A.S. Horner, and it "'thus 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)). In the present case, the court of appeals stated (App., infra, 5a) that the effect of the Union's discipline "may be to deprive an employer of the services of his representative." Under this Court's decisions that conclusion should have ended the case. Instead, as it had in Chewelah, the Ninth Circuit focused on the union's asserted motive for disciplining the union member, rather than on the effect of the discipline on the union member's employer, and deemed the union's motivation to be dispositive. Thus, in Chewelah, the court held that the union's discipline of a member-supervisor who worked for a nonunion employer did not violate Section 8(b)(1)(B) because the union had "no incentive to either influence (the employer's) choice of bargaining representatives or affect (the employee's) loyalty to his employer." 714 F.2d at 871. The emphasis on the union's intent was underscored when, on the Board's petition for rehearing, the court in Chewelah amended its opinion to add that "(t)he case may be different if there is evidence that the union's actual purpose in enforcing its bylaw was to interfere with the employer's selection." Id. at 871-872. /6/ In the present case, the court continued further along the same path (App., infra, 7a), stating that before a violation may be found the union must be shown to have "a desire to represent * * * particular employees." ABC, however, rejected such a requirement. There, the union (which represented writers in the film industry) disciplined directors, as well as other supervisor-members, for working during a writers' strike. The directors neither supervised writers nor adjusted their grievances, and the union argued that the absence of such a nexus exempted its disciplinary action from Section 8(b)(1)(B). This Court, noting that the directors adjusted other employees' grievances, held that a "union may no more interfere with the employer's choice of grievance representative with respect to employees represented by other unions than with respect to those employees whom it itself represents." ABC, 437 U.S. at 437-438 n.37. In sum, ABC makes plain that the scope of Section 8(b)(1)(B) does not hinge on the union's representational interest or its motivation, but rather on whether union pressure "may adversely affect" the supervisor's performance of protected duties. 437 U.S. at 429. /7/ 2. The Ninth Circuit's "union motivation" standard also has been expressly rejected by the Eleventh Circuit. In Local 323, the Eleventh Circuit found a violation of Section 8(b)(1)(B) where the union disciplined a supervisor-member with grievance-handling responsibilities because he worked for a nonunion employer, even though the union did not represent or demonstrate an intent to represent the employer's employees. The court, quoting from this Court's decision in ABC, stated that "(u)nion discipline of a supervisor contravenes Section 8(b)(1)(B) if that coercion 'may adversely affect' his performance of grievance adjustment or collective bargaining responsibilities," and that "'(u)nion pressure on supervisors can affect either their willingness to serve as grievance adjusters or collective bargainers, or the manner in which they fulfull these functions.'" 703 F.2d at 504 (quoting ABC, 437 U.S. at 429, 436). The court concluded that because the supervisor "was fined for his affiliation with a nonunion company, 'compliance . . . with the union's demands would have the effect of depriving the Company of the services of its selected representative'" in violation of the Act. Id. at 505 (quoting ABC, 437 U.S. at 437 n.36). The Eleventh Circuit also rejected the contention, based on Chewelah, that the discipline was lawful because the union neither represented the employer's employees nor showed any intent to do so. It held that such a restrictive interpretation of the statute is unwarranted and "inconsistent with the central aim of Section 8(b)(1)(B)." 703 F.2d at 507. The court explained that (id. at 507 (citation omitted)): An attempt to force a member-supervisor to cease working for a nonunion company demonstrably infringes on the employer's right to choose that person as its representative. In view of that inevitable result, even a union endeavoring only to enforce an internal regulation, and not primarily motivated to influence an employer's selection, can deprive the employer of the protection afforded by the statute. /8/ This clear conflict between the Circuits, which continues to persist and is broadened by the decision below, warrants resolution by this Court. /9/ 3. Interpretation of Section 8(b)(1)(B) implicates the "'difficult and delicate responsibility'""'of striking (the) balance to effectuate national labor policy * * * which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.'" ABC, 437 U.S. at 431 (quoting NLRB v. Iron Workers, 434 U.S. 335, 350 (1978)). The Board reasonably concluded that union discipline of supervisor-members with grievance adjustment or collective bargaining responsibilities because they work for a nonunion employer restrains that employer in its choice of representatives for those purposes, and thus violates Section 8(b)(1)(B) of the Act, regardless of the union's motive. By substituting its judgment for that of the Board, the court of appeals impermissibly intruded on the Board's primary responsibility and exceeded the scope of its reviewing authority. In view of the conflict of decisions on this recurring issue, /10/ it is important to the administration of the Act that the matter be resolved by this Court. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General JERROLD J. GANZFRIED Assistant to the Solicitor General ROSEMARY M. COLLYER General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel ROBERT C. BELL, JR. Attorney National Labor Relations Board MAY 1986 /1/ In addition, the Board concluded that, even under the Ninth Circuit's Chewelah decision, the Union violated Section 8(b)(1)(B) because one of the purposes of the fines was to pressure Nutter and Royal ultimately to sign a collective agreement with the Union. Thus, the Board found that the fines were intended to "force the employers out of the NECA multiemployer bargaining and into bargaining on a single employer * * * or new association basis" (App., infra, 33a). /2/ In upholding the Board's findings as to the representative status of the two supervisors, the court did not rely on the Board's so-called "reservoir doctrine." Under that doctrine, all statutory supervisors are considered collective bargaining or grievance handling representatives for the purposes of Section 8(b)(1)(B) because they are part of the "logical reservoir" from which an employer is likely to select representatives to perform such responsibilities (App., infra, 4a-5a). The court agreed with the Board that the record established that the two supervisors here in fact performed grievance adjustment tasks (id. at 5a). /3/ The Board contended that Chewelah was distinguishable because the Union in this case had in fact demonstrated an interest in representing Nutter's and Royal's employees. The court rejected that contention, holding instead that "where a Union has filed a disclaimer of interest, and has made no subsequent organizing efforts, its discipline of members fully a year after the termination of the bargaining relationship between the Union and the employers cannot reasonably be construed as an effort to restrain or coerce the employer" (App., infra, 7a). The court added that in order to establish a violation of Section 8(b)(1)(B), it would "require some evidence of specific overt acts such as picketing, handbilling, making statements of interest to the employers, or passing out * * * cards to find a desire to represent * * * particular employees" (App., infra, 7a). /4/ See International Organization of Masters v. NLRB, 539 F.2d 554 (5th Cir. 1976), cert. denied, 434 U.S. 828 (1977); 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); International Organization of Masters, 197 N.L.R.B. 400 (1972), enforced, 486 F.2d 1271 (D.C. Cir. 1973), cert. denied, 416 U.S. 956 (1974). /5/ Section 8(b)(1)(B), enacted in 1947, was intended to prohibit unions from dictating "'who shall represent an employer in the settlement of employee grievances'" or compelling "'the removal of a . . . supervisor who has been delegated the function of settling grievances.'" Florida Power & Light Co. v. IBEW Local 641, 417 U.S. 790, 798 (1974)(quoting S.Rep. 105, 80th Cong., 1st Sess. Pt. 1, at 21 (1947). See ABC, 437 U.S. at 436 n.36 ("'the original rationale of Section 8(b)(1)(B) * * * was to permit the employer to keep the bargaining representative of his own choosing'")(quoting IBEW Local 134 v. NLRB, 487 F.2d 1143, 1155 n.19 (1973)). /6/ The court's initial opinion in Chewelah is reported at 621 F.2d 1035 (1980); its amended opinion is at 714 F.2d 870 (1980). /7/ This Court's opinion in ABC also effectively disposed of the Ninth Circuit's comment in Chewelah, 714 F.2d at 871, that, because a supervisor-member may avoid discipline by resigning from the union, such discipline does not constitute restraint or coercion under Section 8(b)(1)(B). As this Court explained (ABC, 437 U.S. at 437), "this submission is simply another argument that union sanctions applied to supervisor-members * * * can never violate Section 8(b)(1)(B)," a position the Court rejected, holding that the statute bars discipline that would "adversely affect the supervisor's performance of his collective-bargaining or grievance-adjustment tasks" (437 U.S. at 430). /8/ As we have shown, in addition to conflicting directly with the Eleventh Circuit, the decision below conflicts in principle with the Tenth Circuit's decision in A.S. Horner. Although in Horner the union had lost a Board-conducted election several months earlier, the court's rationale makes clear that a union violates Section 8(b)(1)(B) by conduct that has the effect of depriving an employer of the services of its chosen representative, without regard to the reasons or motives for the union's conduct. A.S. Horner, 454 F.2d at 1118; see ABC, 437 U.S. at 436 n.36. Similarly, decisions of the Fifth and District of Columbia Circuits demonstrate that the gravamen of a Section 8(b)(1)(B) violation is the deprivation of an employer's representative, whether or not the union has a specific representational interest. See International Organization of Masters v. NLRB, 539 F.2d at 559-560; International Organization of Masters v. NLRB, 486 F.2d at 1274. /9/ In opposing the union's petition for a writ of certiorari in Local 323, we stated that the conflict with Chewelah was not clear because the Ninth Circuit in Chewelah had not precisely delineated its requirement of a representational interest, and because the record in Local 323 suggested that the union had demonstrated an interest in representing the affected employer's employees that arguably was sufficient to satisfy the Chewelah standard (83-63 Gov't Br. in Opp. at 6-7 n.4). In dissenting from the denial of certiorari in Local 323, however, Justice White, joined by Justices Brennan and Blackmun, stated (464 U.S. at 951): The conflict between the Ninth Circuit and the Eleventh Circuit is clear. Identical action by a union will constitute an unfair labor practice in the Eleventh Circuit but not in the Ninth. Implementation of the national labor policy is hampered by such conflicting rules. Any uncertainty about the Ninth Circuit's standard has been dispelled by its opinion in this case and thus it is now clear that the Ninth and Eleventh Circuits have adopted irreconcilable standards for applying Section 8(b)(1)(B). The decision below shows that the Ninth Circuit will stringently apply its requirement of a representational interest and that it would not find a violation in circumstances where the Eleventh Circuit would. /10/ In another case arising out of this labor dispute -- IBEW Local 340 (Hulse Electric), 273 N.L.R.B. No. 67 (Dec. 14, 1984) -- the Board found that the Union had violated Section 8(b)(1)(B) by fining ten supervisors because they worked for non-signatory employers under circumstances identical to those presented here. The Board has not yet sought enforcement in Hulse Electric, pending final resolution of this case. In addition, there is one other decided Board case, and at least three cases in which the General Counsel has issued a complaint, that arose in the Ninth Circuit and that would be controlled by the rule applied by the court in this case. IBEW Local 46 (PAC, Inc.), 273 N.L.R.B. No. 167 (Jan. 10, 1985), application for enforcement pending, No. 85-7146 (9th Cir.); IBEW Local 497, No. 19-CB-5348 (NLRB)(PENDING before the Board on a stipulated record); Plumbers Local 597, No. 19-CB-5696 (NLRB)(complaint issued Dec. 20, 1985); Plumbers Local 32, No. 19-CB-5728 (NLRB)(complaint issued Feb. 28, 1986). The Board has also rejected the Chewelah standard in the following cases: Plumbers Local No. 364 (West Coast Contractors), 254 N.L.R.B. 1123, 1126-1127 (1981); Painters District Council No. 36 (Brown & Co. Painting Contractor), 259 N.L.R.B. 808, 810-811 (1981); American Federation of Musicians, 275 N.L.R.B. No. 97 June 13, 1985), slip op. 12. See also Orange Belt District Council of Painters No. 48 (Ghianni Drywall Construction, Inc.), 275 N.L.R.B. No. 164 (July 25, 1985), slip op. 11, 21-25. APPENDIX