American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc. – Oral Argument – December 05, 1977

Media for American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

Audio Transcription for Opinion Announcement – June 21, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.
Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Warren E. Burger:

We will hear arguments next in 76-1121 and the two consolidated cases, American Broadcasting against the Writers Guild and others.

Mr. Come, you may proceed whenever you are ready.

Norton J. Come:

Mr. Chief Justice and may it please the Court.

This case is here on certiorari to the Second Circuit which by a divided vote to night enforcement of the boards order against the respondent Union Writers Guild of America West.

Three petitions to review the Second Circuit’s judgment were filed.

One by the Board, one by the three major television broadcasting companies and one by the Association of Motion Picture and Television Producers.

This Court granted the three petitions and consolidated them for purposes of hearing and decision.

I am speaking for the Board and will be followed by counsel for the other two petitioners.

This case presents another facet of the problem which was before this Court in Florida Power decided in 1974.

There the Court held that the union does not violate Section 8 (b) (1) (B) of the National Labor Relations Act which makes it an unfair labor practice for a union to restrain or coerce an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances by disciplining supervisor members for crossing a picket line to perform rank-and-file struck work during an economic strike against the employer.

The question here is, whether a different conclusion is warranted where the supervisor members are disciplined or threatened with discipline for crossing the picket line to perform their normal supervisory duties, which includes grievance adjustment or collective bargaining.

Now, the relevant facts are these.

Respondent, Writers Guild represents for collective bargaining purposes, writers, who prepare scripts for a motion picture and television firms and who are employed by the major television Net broadcasting companies and by various member firms of the Association of Motion Picture of Producers.

I refer to both of them as the employers.

The employers also employ producers, directors and story editors to manage and carry out the production of the films.

The producers, directors and story editors when acting as such, are supervisors as defined in Section 211 in the Act and they also represent the employers in the adjustment of grievances and in certain situations producers also represent the employers in collective bargaining.

Some producers, directors and story editors, known as hyphenates and those are the people that we are going to be concerned with in this case, have writing capabilities and are at times employed as writers to prepare scripts or perform other creative writing functions.

These hyphenates are members of the Guild.

The Guild represents hyphenates only when they are employed as writers, not when they are employed as producers, directors or story editors.

Most hyphenates have personal service contracts with the employers covering their employment as producers, directors or story editors and indeed, under these contracts, they are often represented by other labor organizations.

Thus the collective bargaining agreements between the Guild and the employers provide that a person is not subject to those agreements when he is employed in a non-writing capacity, for example, as a producer, director or a story editor.

The agreements further provide that producers, directors and story editors can perform certain editorial writing services known as “”A through H”” functions without becoming a writer subject to the agreements.

Now, in March of 1973, the Guild began a strike against the employers in furtherance of their demands for new contracts covering writers.

The strike continued against some employers until July of 1973.

A month before the strike started, the Guild distributed strike rules to all union members, including the hyphenates.

In addition to prohibiting writing for struck employers, the rules prohibited all members, regardless of the capacity in which they were working from crossing union picket lines.

The strike rules also prohibited union members from working in the future with members who violated the strike rules.

The Guild through a series of special meeting with hyphenate members and phone calls to particular hyphenates, emphasized that the strike rules would apply to hyphenates working in any capacity and that they would be subject to discipline and black listing if they cross the union’s picket lines.

The Guild also refused to allow any members, including hyphenates to resign from membership before or during the strike.

The employers demanded that the hyphenates continue, notwithstanding the strike in the picket lines to perform their duties other than as a writer under their personal service contracts.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Norton J. Come:

Many hyphenates crossed the picket lines to perform their normal supervisory and managerial functions as producers, directors and story editors, including grievance adjustment and collective bargaining.

They performed no writing work, which would otherwise have been performed by the striking writers.

During and after the strike, the Guild filed the internal union charges against 31 hyphenates for crossing the picket lines, 10 hyphenates were subsequently convicted by union trial committees.

They were suspended or expelled from union membership and were fined amounts ranging from a $100.00 to $50,000.00.

Later, the union membership voted to reduce the penalties of 9 of the convicted hyphenates and proceedings against other hyphenates were held in abeyance, pending the disposition of unfair labor practice charges which mean, were filed by the employers with the Board.

The Board with member fanning dissenting concluded that the Guild violated Section 8 (b) (1) (B) of the Act by disciplining and threatening to discipline the hyphenates for crossing the picket line to perform their normal supervisory duties and the a divided Court of Appeals agreeing with member offending the night enforcement of the Board’s order.

Now, we start with Florida Power, which holds that a unions’ discipline of one of its members who is a supervisory employee can constitute a violation of Section 8 (b) (1) (B) only when that discipline may adversely affect the supervisors’ conduct in performing the duties of and acting in his capacity as grievance suggester or collective bargainer on behalf of the employer.

The discipline in Florida Power was found not to have this effect because the supervisors were disciplined for crossing the picket line to engage in rank-and-file struck work.

Indeed the union did not discipline those supervisors who merely performed their supervisory duties when they crossed the picket line.

The Board submits that when a supervisor member is threatened with discipline or discipline for crossing a picket line to perform his normal supervisory or management duties and they include grievance adjustment and collective bargaining, such discipline may adversely affect the supervisors’ conduct in performing the duties of grievance adjuster or collective bargainer on behalf of the employer, even though the union’s motive is not to influence a particular grievance or collective bargaining decision, but merely to secure adherence to its picket line.

There are two reasons for this conclusion.

One is referred to or can be called the deprivation theory and that is this, as the administrative law judge whose decision was adopted by the Board pointed out, if the hyphenates had succumbed to the Guilds’ threats of discipline as many of them did and had refused to cross the picket lines, the employers would have been deprived of their chosen representatives for the performance of management functions, including grievance adjustment or collective bargaining for the duration of the strike, no less and if the union had directly pressured the employers into removing those representatives from those duties.

In short, the effect of the threat of discipline would have been to have deprived the employers of their chosen representatives for grievance adjustment and collective bargaining.

John Paul Stevens:

Mr. Come, is it not reasonable to infer that the picket line itself may have had that effect?

Norton J. Come:

That is correct Your Honor.

Where the picket line alone is in the picture and the supervisor decides that he is not going to cross that picket line, the employer is deprived of a selected representative because of the free decision of the supervisor to honor or not to honor that picket line.

However, we submit that where the supervisor honors that picket line as a result of threats of union discipline, the element of restraint and coercion on the part of the union has been added and it is up to the union to disentangle that he would not have crossed, but for that restraint and coercion, and we submit that the union cannot do that.

Moreover, as the Board added by the citation of its earlier decisions in Hammond Publisher and Triangle Publications in so far as those hyphenates who defied the union and were disciplined or concerned there is a reasonable likelihood that the discipline would have a carryover effect and affect the future performance of grievance adjustment and collective bargaining functions because hereon like the performance of rank-and-file struck work, which was involved in Florida Power, the duties, which the supervisors were performing, were similar to the functions that they would be performing absent the strike.

I do not want to cut in any further to my colleague’s time.

They will develop these theories in further detail.

Warren E. Burger:

Mr. Keaton.

Harry J. Keaton:

Mr. Chief Justice and may it please the Court.

In the time allotted to me, I would like to cover primarily two contentions in this case.

The first one being the contention of the Guild, the respondent herein, that in some ways of work done by the hyphenates, whatever you might call it and they do not call it struck work in their briefs, they call it rank-and-file work without using the word struck, that in some ways, that work, put the work on a pie is a work that this Court held in Florida Power to be of the nature, the Section 8 (b) (1) (B) should not apply.

The second point that I would like to address myself, is that, Mr. Come referred to as a deprivation theory in somewhat more detail.

As to the first point that the three-throng argument being made by the Guild at this point.

It comes down to this.

Number one, while there concededly is no evidence in the court, that any writing of scripts was done by any of the people who were disciplined, they might have done writing.

Number two, that the “”A through H”” functions are to be construed as bargaining unit type writing and number three, that even if the “”A through H”” functions are not bargaining unit writing, they are not managerial functions, and that therefore, the performance of such functions is not akin to grievance related type work, and therefore, the supervisors could be disciplined.

Now, taking the first point, namely yes to whether or not they might have done the right thing, the fact of the matter is that the Guild very well knew or at least very well could find out, whether they were writing.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Harry J. Keaton:

There were 15 strike rules in this case, which provide specifically prohibition against writing.

Not one of them was invoked by the Guild, not a single one.

One of those rules, rule 8 is very significant because it specified that any writer in order to perfect himself and that includes of course rank-and-file writers, to protect themselves against future charges, should file with Guild his scripts that he had completed at the time of the strike in order to make quite sure that he will be able prove that he had not written during the strike.

The respondent’s exhibit six which is not in the printed transcript which is a multi-colored script it is in the Court, will illustrate to the Court that it is very easy to tell from a script when the final script was written and when the changes were made, and therefore, it would have been quite easy for the Guild to tell whether or not that work was done.

Now, turning to “”A through H”,” the Guild analogizes in “”A through H”” to the Shelton Construction Company case, the Shelton Pipeline case, wherein the B representative was held not immune from discipline because he was offering equipment which he had also operated at times when there was a labor shortage, but that case is precisely the opposite from this case because in that collective bargaining agreement, operating equipment was covered by the contract, by so many words, and then the contract said, in the case of an emergency of the purposes of training, a supervisor may operate the equipment not so if you are “”A through H”.”

The contract specifically states in sections 1 (b) (1) (A) and in 1 (c) (1) (A), that the performance of “”A through H”” functions by producers, directors or story supervisors, shall not be covered by this agreement and shall not cause them to become writers hereunder.

So, what you really have is not collective bargaining unit work that may be done by supervisors, but work that is not covered by the contract which if you perform it, does not make you a bargaining unit employee, but which conceivably at times could be performed by bargaining unit employees.

But now comes the most important point, namely the argument that “”A through H”” supposedly is not managerial.

Let us examine what “”A through H”” is and if the Court please, I will give examples of it, some of them are in the record and some of them are just common sense.

The first A says, cutting for time.

Now, what does it mean?

It means deleting a portion of a movie or a television play in order to make it shorter, in order to accommodate the time for the screen, that is certainly a managerial decision.

B is bridging.

That means, tying up two pieces of the movie, if you will, due to the elimination of the intervening piece.

C is a change in technical or stage direction.

Need I say more, direction?

D is the assignment of lines to existing characters due to cast changes, directors do not make those assignments, managers do.

E are changes for legal clearances, done by executives at the request of the legal department according, in the transcript, the testimony of Mr. Middleman, pages 1307 to page 1311 at the association exhibit 9.

Now, the casual minor adjustments in dialog covered under F, again there is an example given.

Medical terminology used by a writer, which happens to be erroneous, so they call a doctor, the doctor says the diagnosis is all wrong and they change the name of the illness from one to another, again, done by management.

G are changes necessitated by unforeseen events.

An example is in the transcript at page 204 to 205.

What happened to us, that they had to change the names of streets from New York City to Los Angeles and H finally, by its own language, which is clearly managerial work.

It is instructions, directions or suggestions, oral or written to a writer.

All of this work is about as managerial as it can be and the interesting distinction is that if you take a look at the lowest level of bargaining unit work, namely the so called rewrite that is carefully defined in the agreement, and you can get motion picture credit for doing a rewrite.

You can do all the “”A through H”” in the world without getting any motion picture credit, there is no credit for that, but on a rewrite, that sure is a credit, pages 239 to 240 B and C.

The Writer’s Guild contends here as the last resort on this issue —

John Paul Stevens:

Mr. Keaton, can I ask my question about the “”A through H”?”

You say it is all clearly managerial?

Harry J. Keaton:

Yes sir.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

John Paul Stevens:

And you have described it?

Is it also not true that is all clearly managerial work that it has nothing to do with the selection of an agent to do any grievance or collective bargaining?

Harry J. Keaton:

That is not entirely correct Your Honor.

We are not relying on the “A through H” functions at the establishing the 8 (b) (1) (B) capacities of the supervisors, but anyone of the steps taken in “A through H” that I described to you might very well lead to a grievance and indeed a grievance of a writer, because most of them involve scripts to illustrate Your Honor if I may.

Writers have the privilege, in fact the contractual right to watch the screening of the final cut of a movie and if that time the writer finds that the picture did not come out the way he hoped it would, he may very well raise a grievance with the associate producer who made the cuts on the picture and may say to him, I do not like the way you did this ending, you deleted a hundred feet of footage that I had in there which was my beautiful idea and now, it is a sad ending instead of a happy one.

Potter Stewart:

Well, Mr. Keaton that is a very, very broad implication in your answer to my brother Stevens.

Any action of any foreman, any time and anywhere in any industry can lead to grievance on the part of the employee and is that the test?

Harry J. Keaton:

No Your Honor, that would not be the test, but if the person who is making the decision also has the authority to adjust that grievance, that would be the test.

John Paul Stevens:

So, he does not get that authority pursuant to “A through H”, does he?

Harry J. Keaton:

No sir, he does not.

He does it by virtue of his position.

John Paul Stevens:

And he adjusts the grievance which he creates by his own –?

Harry J. Keaton:

He might.

He might very well and I might also say that the physical change of a movie in cutting for instance might occur because the editor has made the cut who is a person who is not the hyphenate.

There are hyphenate editors in this case.

Now, to turn briefly to the deprivation theory if I may, I think that the Guild, first of all I think we should dispose of an item if it is of concern at all here, namely the contention of both the Guild and amicus, that there was in some way, nothing that could be brought before this Court own the deprivation theory because it was not part of the Board’s decision.

In the court below, in the District Court of Appeals, in its reply brief, the Guild argued exactly the opposite.

At page 4 of that brief, the Guild stated, just as it did the Board’s brief writer, the association seeks to justify the decision below in this case on the basis of the rationale of later decided both decisions.

There was only one basis, upon which a violation was found here, namely, that the Guild’s discipline kept the employers from utilizing the services of 8 (b) (1) (B) supervisors during the strike, not as a subsequent decision in other cases, rationalized that the discipline would carry over to the supervisors’ future 8 (b) (1) (B) functions.

The Guild is now arguing exactly the opposite in this Court, that this was not the basis of the Board decision and only the future function about the basis.

The answer of course is both are.

Now, in terms of the question of whether or not the statute was violated here, I do not think we have to get involved with such things as Oakland Mailers because what we really have is the other simple preposition.

We have people who were told, unlike in Florida Power, if you come to work in any capacity, including of course 8 (b) (1) (B) capacities, we will fine you, we will discipline you, we will expel you and you cannot resign, all those things were said and to answer further the question that Mr. Justice Stevens asked of Mr. Come, I do not think that a union can fall back on what might well be a legal picket line, if at the same time that the picket line is up, it is threatening people and coercing people and telling them, if you do cross over a picket line, we will punish you.

Anymore, than this Court would hold illegal, that if a union has gone to an employer and said to him, we would like you cease dealing with another employer that this picket line that was subsequently established would in some way be immunized because the employer may have exited because of the unions’ voluntary request, rather than the illegal secondary boycott under the 8 (b) (4) (B).

I think the analogy is very much the same.

Now, what really have here is very simple.

The union in effect is saying, you must not use these supervisors.

It means we eliminate the supervisors.

They cannot be designated.

If they cannot be designated, you have a clear violation of the statute itself and you have the violation, just as surely as the union had put up a picket line to prevent the hiring of a supervisor or the use of a designated representative of the employer for purposes of collective bargaining.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Harry J. Keaton:

It is precisely the case of Congress was talking about in the legislative history.

Senator Taft, I believe said, do not send us Mr. Y and send us Mr. X, Mr. Y as being excluded in this case.

The union will argue, they could resign, in fact the AFL-CIO does, not so.

They were not allowed to resign.

In fact, they were deactivated, and the decisions of this Court aim on the 8 (b) (1) (A) and I recognize 8 (b) (1) (A) is not applicable because the supervisors are not protected, but the decisions of this Court under 8 (b) (1) (A) themselves indicate very clearly that even there discipline would not be lawful if there is not any right to resign at some point.

Since I want to reserve a little time for a rebuttal for Mr. Come, I would like to conclude on a couple of points.

By deactivating and keeping the supervisors as (Inaudible) members in effect the employers were being given two choices.

Either, do not use the supervisors during the strike, in other words, do not designate them as 8 (b) (1) (B) representatives and there was plenty of work going on, the record is full of it, scripts were being written and scripts were available, scripts have been finished, there are lots of them in the record and no other union must strike, either, do not use them during the strike or if you do, we are going to expel them, find them, and punish them and you will never be able to use them again because nobody will work with them and you cannot be a producer without the writers.

Those were the choices given in effect to management and the other point I wanted to make is that the only way that the decision of the Court of Appeals can be sustained is this Court were to ask to the statute the provision, this Section shall be inapplicable in the event of a strike.

Thank you.

Warren E. Burger:

Very well, Mr. Keaton.

Charles G. Bakaly, Jr.:

Mr. Chief Justice and may it please the Court.

I would like to say one thing about the “A through H.”

It is clear that “A through H” was not struck work.

Struck work, is work which would have been done by the bargaining unit employees, but for the strike.

The “A through H” work is never done by the employees.

It is done only by the producers, the associate producers and the story consultants and so forth.

So that, it is clear that “A through H” cannot be struck work.

I would like to talk a moment about it.

Potter Stewart:

But it is not equally clear that it is not itself either a collective bargaining or the processing of grievances?

Charles G. Bakaly, Jr.:

Well, I would agree.

Potter Stewart:

Not in and off itself?

Charles G. Bakaly, Jr.:

I would agree what Mr. Keaton said about that, but the authority for grievance handling and collective bargaining is in the record apart from “A through H.”

John Paul Stevens:

But “A through H” activity is a bridging or amending to meet the legal department’s objections or cutting or whatever, it is not collective bargaining or the processing of grievances, in and off itself?

Charles G. Bakaly, Jr.:

In and off itself, I would agree with that.

Now, let me talk about the adverse carryover theory of the Board for liability of the union in this case and that theory started with Florida Power.

In Florida Power, the Court said, a union discipline of one of its members who is a supervisor employee can constitute a violation of 8 (b) (1) (B) only when that discipline may adversely affect the supervisor’s conduct in the performance of the duties of and acting in his capacity as grievance suggester or collective bargainer on behalf of the employer.

Now, that is where we start and in this case, we have tremendous conduct on the part of the Guild which Judge Moore in the Second Circuit characterizes in terrorem conduct to adversely affect the supervisors in the future.

Not only, are we talking about the fines of up to $50,000.00 or the threats or the refusal to accept resignations, but more importantly, they blacklist them and to understand the effect of that on an associate producer or a producer whose whole livelihood is because he gets the right creative people to work with him, that if he wants a writer to work for him in the future in another production and he understands that because of what he does now, that writer is not going to work for him, that blacklisting threat has a tremendous effect on the producer in the future.It has an effect upon the director.

It has an effect upon all of these hyphenates and his conduct, to say that this kind of conduct does not engender fear in that supervisor, so that in the future when that union or any other union says to him to do something that the union wants, he is going to think that if he does not do what the union wants, he is going to have that same kind of punishment again.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Charles G. Bakaly, Jr.:

This adverse effect, certainly affects supervisors who in fact adjust writers grievances and we have evidence of some of the supervisors adjust writers grievances.

It would affect supervisors who adjust grievances of other employees like directors because people do not just think about one union and what it does.

What one union can do another union can do and if the Writers Guild can cause writers not to work with an associate producer then the Directors Guild can cause Directors not to work with an associate producer and the director is very much concerned with that.

There is one bit of testimony in the record that just cries out, and Mr. Crichton who was talking with Mr. Furia, the leader of the Writers Guild and the President of the Writers Guild and Crichton is saying “I told him finally that if push came to shove, I would be rather be thrown out of the Writers Guild than the Directors Guild since I felt my future was really more with the Directors Guild” and he explained it was not that simple.

If I were expelled from the Writers Guild I could not work as a Director in the future, work solely as a director because members of the Writers Guild could not work as Directors and me as a director if I have been thrown out of the Writers Guild.

That kind of threat has to have an adverse effect in the future and that adverse effect, that carryover effect does pertain to the selection of the representative for grievance handling and for a collective bargaining.

So, not just a question of identities the Guild would have.

What an employer wants, he wants the supervisor who will do what he says.

He wants a supervisor that will be tough with the union perhaps, if that is the way that particular employer wants, while the union buy this kind of discipline and threats can change that supervisor from a tough supervisor to a supervisor that agrees with the union and then they are in effect changing the identity.

Employers do not really care whether a supervisor has a black hair or red hair.

They do not care about that.

They care how he is going to perform with the union.

Byron R. White:

Did the Court reject this theory in the Florida Power or not?

Charles G. Bakaly, Jr.:

The Court of Appeals, the Court in Florida Power, no.

I do not believe they —

Byron R. White:

The carryover theory?

Charles G. Bakaly, Jr.:

No, in fact I believe that is where the theory was originated from the language that I said Mr. Justice White, you were in the dissent in that case, but the majority did definitely state that plan, the discipline may adversely effect.

They are talking about the future there and that is the carryover effect.

That was not rejected by the Court in Florida Power.

Finally, one of the arguments that is relied on a great deal by the Guild is the argument that after Florida Power the loyalty of the supervisor member to its employer is irrelevant and without merit.

And that language comes from the Court that says that it has a statement in Florida Power about loyalty not being a part of the remedy that Congress intended for the solution of the conflict over all these problems.

Now, assuring loyalty is really one of the only purposes for 8 (b) (1) (B), why else would the Court put in 8 (b) (1) (B), why would the legislature put in 8 (b) (1) (B)?

It is perfectly logical to have grievance handlers as the most senior person.

Why not let the bargaining decide that?

Well, the reason has to be because as I said earlier, that one of things that an employer wants other than competence and an articulate supervisor perhaps, but he wants the one who is loyal to him.

He wants the one that will do what he wants done in the handling of grievances in the collective bargaining, so the loyalty is still a part of 8 (b) (1) (B).

Now, the respondent says that the only solution is to keep supervisor that has the union.

That solution really proves too much as the Court, as the Court again said there are instances where a supervisor does or a union does violate 8 (b) (1) (B) by adversely affecting the supervisor’s conduct.

Now, the Court in Florida Power recognizes that there can be a situation where a supervisor member is threatened, is disciplined and that adversely affects his conduct.

We submit that this is that case.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Charles G. Bakaly, Jr.:

With this kind of in terrorem conduct that Judge Moore said certainly these supervisors would be adversely affected and these employers would be deprived of their grievance handlers and collective bargainers and I would reserve the rest of time for Mr. Come’s rebuttal.

Thank you.

Warren E. Burger:

Very well. Mr. Reich.

Julius Reich:

Mr. Chief Justice and may it please the Court.

From this Court’s statement in Florida Power that the conduct in a case called Oakland Mailers was without the outer periphery of what the Labor Board could proscribe or maybe at the outer periphery what Labor Board could prohibit.

Potter Stewart:

We just assume that.

Julius Reich:

That is right.

Potter Stewart:

We may assume without deciding?

Julius Reich:

It may have been out of the periphery.

Byron R. White:

Or within the outer periphery?

Julius Reich:

It may have been within, but from the fact that this Court said that it may be within the outer periphery, the Labor Board has drawn a conclusion that it was approved by this Court.

I thought it was questionable.

Potter Stewart:

It was permissible for the Board to conclude within that language that it was within it?

Julius Reich:

But what it is done from that Mr. Bakaly said that we have to start with Florida Power.

What the Board has done is end it with Florida Power.

What they have done is they taken Florida Power and limited it to its exact facts and that is all.

They have taken a statement which says that supervisors may be disciplined for performing struck work and ended it there without any regard to this Court’s rationale for the decision, without any regard for the legislative history, without any regard for the statutory language and all of that went to show that 8 (b) (1) (B) had a specific purpose.

It was directed at curbing union interference with the selection by an employer of his representative for purposes of collective bargaining or adjusting of grievances.

Now, this Court made an extensive survey of the legislative history in Florida Power and the Board neither in this case nor in any of the cases that fall in Florida Power has gone to the legislative history to see where Florida Power should lead.

In fact, what this Court said and what the legislative history showed, is that while employers may have certain expectations from their supervisors, unions too have certain expectations from their members despite the fact those members may also be supervisors and in order to give the employers some relief from this conflict of loyalties, to help the employers to resolve this clash of expectations, Congress in 1947 simply took supervisors out from the under provisions of the Act by Section 23 and also absolved employers from the necessity to deal with supervisors or their representatives bargaining for them.

Potter Stewart:

And conferred upon employers the absolute right to have supervisors who are not union members and not to hire any supervisors who are union members, is that not correct?

Julius Reich:

That is right.

The employers thus have at this point the ability to make their own decision to have their Supervisors not be members of the union, does not subject to that discipline.

Now, the Board has come up with two theories in support of decision in this case.

One of them is the deprivation theory in which the Board says that if a supervisor has an 8 (b) (1) (B) functions, that is he has the right to bargain collectively or the right to adjust grievances then it is sufficient if the union deprives the employer of the services of that supervisor regardless of the fact the supervisor is not performing 8 (b) (1) (B) functions while he is at work.

Now, with respect to those who were actually disciplined in this case, those were exactly the people who worked.

The employers were not deprived of the services of those persons, so they clearly were not restrained and coerced in the designation of those people who worked.

The Board to overcome that in its replied brief says yes, but they maybe afraid in the next strike to work and the employers will be restrained and coerced in the designation of their supervisors in the next strike, and therefore, it is a violation of the act, but the clear answer is that they can ask those supervisors to resign before the next strike comes up.

William H. Rehnquist:

Mr. Reich, is it fair to say that the argument you are now making really — you are not helped much more in it by a Florida Power and like than your opponents.

You are saying that Florida Power went off on a fairly narrow ground and you want to get back to a broader ground?

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Julius Reich:

I think that is correct Your Honor.

I think that the language in Florida Power is helpful to our position and the position is that we have done nothing to interfere with the selection of the representatives for purposes of collective bargaining and there is nothing in either of the two Board theories which establishes that their would be a violation in this case.

Thurgood Marshall:

But what about Mr. Bakaly’s point that this man wants to progress up the ladder, he is in trouble in the future?

Julius Reich:

Well, that man which Mr. Bakaly mentioned, Mr. Crichton is one of people who is working.

So evidently the threats did not affect him and in the appendix at the 8296, Crichton is one of the persons who was charged with a violation of the Act which indicates that he in fact did work.

I assume that that is the point that you are getting at, that is that —

Thurgood Marshall:

No, the point is that if he does not participate here to the full extent that the Guild wants him to then if he is promoted to another job, he still can hold that job because the members of the Guild below him will not work with him, I though that was his problem?

Julius Reich:

Okay, you are talking about the blacklist.

Well, that is inherent in any situation where an employee becomes a scape and fellow employees may not wish to work with him.

Thurgood Marshall:

Why is that disconnect with him on the right to employ him in a better job?

Julius Reich:

Well, it has no connection.

First of all the rule was rescinded during the strike.

So that there was no such mandatory rule.

An announcement was made that people can deal with him as they wish just to as in any strike situation, if a person crosses the picket line they suffer perhaps the enmity of their fellow workers, but if that is discipline then this Court has held in cases dealing with the reasonableness of the discipline by unions that, that is a matter for state court concern.

They certainly could have gone to a state court and get a declaration that, that discipline should not be erased from the record.

So we are not really concerned at this point with the reasonableness of the discipline and if it is not a violation of the Act to begin with we do not have to get in to the question of whether or not the discipline was reasonable or unreasonable.

John Paul Stevens:

Mr. Reich, could I go back to a point you made just a moment ago.

You, if I understood your argument correctly, you said that the discipline may have been ineffective because some of the people went to work anyway and may have been presumed they have gone ahead and done, performed their collective bargaining function (Inaudible) there could be no violation.

I find that argument, unless I missed something, I find it totally unpersuasive.

Supposing they blatantly said we will find you a $50,000.00 if you go into the plant and adjust the grievance or engage in collective bargaining and the fellow went ahead and did it anyway.

He was not deterred.

That could be a plain violation, would it not?

Julius Reich:

Well —

John Paul Stevens:

And how can you test it by whether the man is in fact deterred by the coercion or not.

The test has to be whether there is coercion, does it not?

Julius Reich:

That goes to the second theory of the Board, the carryover theory.

John Paul Stevens:

Well, I thought we are talking about the deprivation theory?

Julius Reich:

That is right.

John Paul Stevens:

For which you agree the argument has no merit with respect to the deprivation theory?

Julius Reich:

As far as the deprivation theory, the supervisor is there.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Julius Reich:

Now, if —

John Paul Stevens:

Well, what is your answer to my question?

Julius Reich:

If the threat of a fine against — well, first of all my answer is that I would concede that the person who is going in, who crosses a picket line for the purpose of adjusting grievances, the representative who goes in to perform those functions that are listed in 8 (b) (1) (B) may not be disciplined by the union.

It is restrain and coercion on the employer to deprive —

John Paul Stevens:

It is restraint even though the in fact goes in and performs those tasks?

Byron R. White:

You know it is unsuccessful, in other words?

Julius Reich:

Even though the threat is unsuccessful?

Byron R. White:

Yes.

Julius Reich:

Yes.

I would say —

John Paul Stevens:

So, we cannot measure the violation by the success or lack of success of the coercion?

Julius Reich:

Well, I am only repeating what the Board’s theory is.

The Board takes the position in its reply brief that while the threat of discipline did not deter these people who actually went in and performed their services, and therefore, the deterrence theory does not apply in this strike as to them.

The Board takes the position that in the next strike, they will be deterred from going across the picket line and that is how the deterrent —

Byron R. White:

Well, not only the next strike, but just in the future in the ordinary course of conducting their collective bargaining and adjustment of grievance functions duty?

Julius Reich:

Well, now that goes to the carryover theory.

John Paul Stevens:

Well, I still do not understand what your response is to the Board’s argument.

You have identified the Board’s argument and you said well they really want to work, but then you have admitted that is not a response.

What is your response to their deprivation theory?

Julius Reich:

I am sorry.

If they are at work regardless of the threat or fine it would be my position that the employer has not been restrained and coerced under the deprivation theory.

The Board may have a good argument, if a supervisor is told that he will be disciplined for performing 8 (b) (1) (B) functions, the Board may have a good argument to show that he will be restrained and coerced or the employer will be restrained and coerced with respect to this supervisor.

John Paul Stevens:

Would this be another way of stating your theory that under deprivation theory, the Board should have made a finding that somebody was in fact deprived from going to work, that there is an absence of a critical finding?

Is that really what you really are arguing?

Julius Reich:

There was sufficient evidence that people did go to work despite the threat and they have adjusted grievances while they were there.

We have examples of stunt people and actors whose grievances were adjusted.

John Paul Stevens:

Well conversely there is no finding there that but for the discipline, somebody additionally would have gone to work and adjusted some grievances he never adjusted?

Julius Reich:

There is no such finding.

John Paul Stevens:

Is that not your real argument, it improved the deprivation, prove actual deprivation?

Julius Reich:

But one point that I want to make is that if a particular individual would have crossed the picket line for the purpose either wholly or primarily of adjusting grievances and collective bargaining then it would be a violation in our view if the threats kept him from going across the line, but we do not have any such case here.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Julius Reich:

There is no finding and there is no evidence to that effect.

Potter Stewart:

In short, your short answer to the deprivation argument is there was no deprivation?

Julius Reich:

That is right.

Thank you, Your Honor.

The Board says though that the threat may have kept people out and that is a violation.

There was no evidence in this case of anybody who was being asked to go across for the purpose, either in whole or primarily of performing 8 (b) (1) (B) functions and the Board’s position, the Board’s answer to that is that so long as the employer invests his representative with 8 (b) (1) (B) functions, any work that the representative does, any supervisory work, any work short of doing rank-and-file struck work, any work that the employee would have done would be work which according to the Board, if as a result of the threat, the supervisor refrains from crossing picket line to perform his normal supervisory functions, the employer without more is deprived of the representative he has selected for collective bargaining or grievance adjustment purposes.

Now, what this does is to simply make a shambles of what this Court carefully told the Board it should distinguish.

The distinction between Section 211 functions which has supervisory functions and Section 8 (b) (1) (B) functions which are representative functions.

There is a difference between a representative as that word is used in Section 8 (b) (1) (B) and a supervisor and the Board simply meshes them.

Now, Congress could have simply said in 8 (b) (1) (B) that the union shall not restrain and coerce an employer in the selection of his supervisor and then the Board’s theory would make sense, but it did not do that.

It specifically said a representative, a representative for only two purposes and this Court recognized that in footnote 21 of the decision in Florida Power, may declare that there is a distinction between the two and there is only one function that of adjusting grievances which overlaps between Section 211 and 8 (b) (1) (B) and the Board’s argument proves too much.

There would be no basis upon which, if the Court accepted the Board’s argument, that somebody with 8 (b) (1) (B) functions went to work and part of his work was that of doing rank-and-file struck work, the Board would have to say in those circumstances that the union cannot discipline him and cannot keep him from going to work because a person with authority to adjust grievances is being kept out of the plant and that would apply in the Florida Power situation just as it would apply in our situation.

We have a case of the tail wagging the dog here.

The result is, what the Board says is that all the employer has to do is designate a person as its representative and that person can freely go through the picket line and disavow his obligations to his union despite the fact that he never adjusted a grievance.

We have an example at page 132 of the appendix for example of a person who has asked of one of his supervisors, who was asked, do you adjust grievances and he said I have the authority.

Well, can you give me an example and he said I cannot think of one.

In the last few years we have had not any disagreements, but that person would be entitled to a protection under the Board’s theory just as well as somebody who is there for this specific purpose of adjusting grievances.

Potter Stewart:

You do not claim that the work performed by these supervisors who did cross the picket line during the strike was struck work?

You claim that it was a rank-and-file work, is that it?

It was not limited to struck work as was the work in Florida Power, is that fair to say?

Julius Reich:

Well, if by struck work you mean work which would have been performed by —

Potter Stewart:

By other people not by these people?

Julius Reich:

There was work of the type that might have been performed.

We do not know.

For example, well, I have given examples in the brief of the types of work, polishing a script for example, that is considered to be “A through H” and which is done equally by writers as well as these hyphenates.

Potter Stewart:

Well, maybe some of struck work, some of them was not, but it was not confined to struck work?

Some of it was done that would not even have been done except by these people?

Julius Reich:

They were doing normal producer work, normal director work.

Warren E. Burger:

How do you categorize the changing of the script which either omits a substantial part or changes the thrust of a substantial part, you regard that as managerial or partly writing function?

Julius Reich:

It is writing but —

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Warren E. Burger:

Well, of course it is writing, but that does not exclude a management decision, does it?

Julius Reich:

No, but a writer can do that also.

A writer can —

Warren E. Burger:

Well, we can pursue that at 1 o’clock.[Recess]

I should say that Mr. Justice Brennan is unavoidably detained.

He will be absent for part of these arguments, but he will participate on the basis of arguments, briefs, and tape recording of the oral argument.

You may precede counsel.

Julius Reich:

Thank you Your Honor.

Your Honor asked as we departed whether the “A through H” work was managerial work or rank-and-file work and in our view it is immaterial, it is not relevant which it was.

The fact is that it was not 8 (b) (1) (B) work and the unions are prohibited by Section 8 (b) (1) (B) only from disciplining persons because of their performance of 8 (b) (1) (B) work.

Now, we concede that a supervisor may not be disciplined for the performance of 8 (b) (1) (B) work and the question is whether the threat of disciplining this —

Warren E. Burger:

By that you mean, we included hyphenated supervisors?

Julius Reich:

Any supervisor who is called upon to do 8 (b) (1) (B) work, hyphenate or a story editor or anyone.

The supervisors were threatened with discipline for crossing the picket line and the question arises as to whether or not that threat kept the employer from having present persons with 8 (b) (1) (B) functions.

Our reading of the threat to discipline persons if they cross the picket line in light of the minimal amount of 8 (b) (1) (B) work that they had to perform, the example that I gave of somebody who said that it had been years since he could think of an 8 (b) (1) (B) function that he performed, the impact on a person who receives a threat is not that he is going to be disciplined for performing 8 (b) (1) (B) duties, but they are going to be disciplined for crossing the picket line for performing non-8 (b) (1) (B) duties and there is no finding here in this record that anyone was threatened for the performance of or because he did perform 8 (b) (1) (B) duties.

To conclude, the networks in this case, both in their opening brief and their reply brief had made no secret of what the case is about.

What they are trying to do is to get this Court to give to them an advantage that they were unable to secure through Congress and the Court should not do.

Thank you.

Warren E. Burger:

Mr. Gold.

Laurence Stephen Gold:

Mr. Chief Justice and may it please the Court.

In Florida Power & Light Mr. Justice Stewart noted that the Board’s view of Section 8 (b) (1) (B) had evolved to the point that it served as a “general prohibition of the unions, disciplining supervisor members for their conduct in the course of representing the interest of their employer.”

I suggest that as Mr. Come made quite clear, the Board has continued to hue to that view with one exception.

They now say that in a situation in which the supervisor member performs a substantial amount of rank-and-file work, some of which is struck work that the union can discipline the supervisor.

We suggest that that analysis is no more responsive to the statute and its legislative history than the broad position taken before this Court the last time this question was here because as Mr. Reich indicated, at the end of his argument, it is our position that assuming that Oakland Mailers is correct, namely assuming that the Section does not simply protect employers against strikes against them, but protects supervisors against discipline for performing certain functions for the employer.

Section 8 (b) (1) (B) is given the full scope that it can possibly be given so long as it is a violation for the Union to discipline the supervisor for performing 8 (b) (1) (B) functions or because of the way he performs those 8 (b) (1) (B) functions, but that the union has a privilege which Congress did not choose to take away of disciplining supervisor members for performing any non-8 (b) (1) (B) functions.

We think that line is that so long as the cause is the way the supervisor performs his 8 (b) (1) (B) function, assuming as I said that the Oakland Mailers is correctly decided, the Union commits a violation, but that if the union’s discipline is based on the way the supervisor performs other supervisory duties or rank-and-file duties or the fact that it crosses the picket line and thereby tends to undermine the strike, that is outside the prohibition of this unfair labor practice.

At that point, the employer’s option, again to quote from Florida Power & Light is to force the supervisor to resign from the union, thereby protecting his interest and we think that the source of this understanding is basically on three different facets of the Act and its legislative history.

First of all, Section 8 (b) (1) (B) is far narrower than Section 211.

Section 8 (b) (1) (B) protects employers in their selections of grievance handlers and negotiators whereas Section 211 defines supervisors far more broadly.

Both Sections came into the law at the same.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Laurence Stephen Gold:

If congress wanted to prohibit unions from disciplining supervisors, it would have written 8 (b) (1) (B) to say that is unlawful for union either to discipline supervisors or unlawful for union to restrain or coerce an employer in the choice of his supervisors, simply said neither of those things.

Secondly, the legislative history indicates that this provision created no stir in what was otherwise as this Court again has noted time and again, one of the most though for legislative conflicts of the post war period because of the assurance of its sponsors that it had a narrow scope and that scope basically was to prefect the collective bargaining process by assuring that the union was not on both sides of the table in both selecting its own representatives and selecting or having a voice in the selection of the employer representatives.

The more difficult and controversial issue of whether to restrict the right of supervisors to be union members was solved through Section 14 and 211 and 23 in favor of giving the employer a privilege to keep supervisors out of unions, to fire supervisors who joined unions and to refuse to bargain with unions about supervisory units, even where the union had majority support in the union, thereby reversing the decision in the Packard Motor Company case.

It is not surprising I would contend that the sponsors of 23, 211 and 14 did not choose to give supervisor members protection in law against discipline as supervisors because they were at the same time stripping those supervisor members of all legal protection vis-a-vis the employer.

I think that we of course have deferred with many aspects of Taft-Hartley, but Senator Taft was not the type of man who would carry water on both shoulders at least that blatantly.

Byron R. White:

What if a supervisor, a member the union and as a supervisor crosses the picket line does a non-rank-and-file work and the employer asks him or designates him to do grievance adjustment, and he says no I would not do it, I would be fined and the employer says well I guess I must get somebody else and he said yes, you must get somebody else.

Now, with your argument still go?

Laurence Stephen Gold:

Yes.

In other words we — may I ask a question about that because under our position, we could not discipline him for handling the grievance.

If it would have occurred the other way, we could discipline.

In other words, he goes to work and the employer says —

Byron R. White:

No, but he says I will not do it because I just would not do it because I am —

Laurence Stephen Gold:

I would be subject to discipline.

I will not do supervisory functions or I will do rank-and-file work.

Potter Stewart:

I will not do collective bargaining or grievance proceeding?

Byron R. White:

I will not handle any grievances because —

Laurence Stephen Gold:

Because I will be disciplined?

Byron R. White:

Yes.

Laurence Stephen Gold:

If the union disciplined him for handling the grievance that would be a violation of 8 (b) (1) (B)?

Potter Stewart:

That is not quite my Brother White’s question?

Laurence Stephen Gold:

Well, that is why I asked because I am not sure, I understood it.

Our position is that a supervisor member crosses a picket line, he does work what we are calling Section 211 work, but it is not handling a grievance, our position is the union can discipline.

Byron R. White:

Well, he crosses the picket line and he does supervisory work, but when the employer — and then he tells the employer “by the way I have been doing grievance work for you, but I am not going to do any” and I will get fined?

Laurence Stephen Gold:

Well, the union cannot fine him in our view for handling the grievance.

It could fine him but doing the supervisory work other than handling grievances.

Potter Stewart:

Now, Mr. Gold, I do not remember and I do not have before me your briefs.

In Florida Power & Light, that is the respondent’s brief, but it is asserted in one or more of these briefs, if you took the position in that case that supervisors who cross picket lines to perform 211 work could not legally be fined by the union?

Laurence Stephen Gold:

We did not take that position.

I have gone back over the AFL-CIO brief and we simply did not even address it.

In the union’s brief, the IBW’s brief, they argued first at Oakland Mailers itself was wrong, but even assuming that it was right, the union could fine those individuals who crossed the picket line and did rank-and-file work.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Laurence Stephen Gold:

They limited their argument that way because under their internal union rules they did not choose to discipline supervisors who did not do struck work.

So that was the only issue they posed.

Byron R. White:

Well, those are facts of that case?

Laurence Stephen Gold:

Yes, the facts of that case where that the union fined people for doing struck work.

Byron R. White:

Right.

Laurence Stephen Gold:

But —

Byron R. White:

But it is asserted in the present case, in the briefs that the position was taken by at least one of the respondents in that case that the unions could not permissively discipline those who cross picket lines in order to perform what you called 211 work i.e. just general supervisory work, performance work?

Laurence Stephen Gold:

All I can say is that first of all in support of that statement they quote a portion of the transcript in oral argument of the counsel for the union and he said that even assuming that Oakland Mailers is correct, unions can fine individuals for performing struck work.

I do not regard that as a concession.

Secondly, I have gone over our brief and what they do is tax us for saying that by arguing the issue presented by that case, namely whether unions can discipline supervisors for doing struck work, we were taking the opposite position on 211.

Byron R. White:

Well, lawyers to lawyers and that was the different case.

You were not trying to win the case. Now, you are trying to win this one?

Laurence Stephen Gold:

Right and we believe that the theory of your opinion in Florida Power & Light supports our attempt to win this case, but we do not argue that we have already won this case by reason of that opinion.

We are arguing that the rationale particularly a point made in your opinion that 8 (b) (1) (B) is narrower than 211 and that the overall problem of assuring that supervisors are loyal in performing non-8 (b) (1) (B) functions supports our view here.

If I may, since it being through our interest, I am going to quote you extensively.

I would like to point out that —

Byron R. White:

That was a Court opinion?

Laurence Stephen Gold:

Yes.

Byron R. White:

It was a Court opinion, it was not a separate opinion?

Laurence Stephen Gold:

Right, I want to quote another Court opinion that you are also the author of it, that is all I want to say.

We think that the 8 (b) (1) (B) situation here is very much like the 883 case presented in American Ship Building.

There, as here, you had a situation where Congress left something to employers, namely the right to discipline even union members so long as the basis for the discipline was not their union activity and on the other hand, Congress in 883 made it unlawful to discipline a union member for union activity.

And the Board, of course read 883 to create a prophylactic rule that an employer could never lock out, and the theory of that court opinion was that where Congress leaves the privilege on the one hand and creates a prohibition on the other, the Board can prohibit activity motivated, wrongfully motivated, but cannot prohibit all of activity which has adverse effect on the ground that that is necessary.

And I would suggest that here too, if Oakland Mailers is correct, the Board has moved to protect the supervisor in performing 8 (b) (1) (B) functions to assure that a union cannot discipline the supervisor for the way he performs that function or for the fact that he is performing to go the next step and say it is necessary or else, employers will believe, I mean that supervisors will believe that they can be disciplined for 8 (b) (1) (B) functions to assure that they are not disciplined for anything.

We believe it is impermissible because we think that it cuts into the privilege that Congress left which was to fine or otherwise discipline supervisor members for activities other than 8 (b) (1) (B) functions and that is why we believe that both they so called carryover theory and the deprivation theories are unsound.

The Board has a direct method of protecting supervisor members who are disciplined for performing 8 (b) (1) (B) activities, that is to make it an unfair labor practice to so discipline it to say that in order to protect them you must go one step further and assure that they can be disciplined for anything.

It seems to us to disregard the limitations that Congress observed when they wrote the section and to go back to the general view that the Board has espoused all along, making only the narrowest adjustment for Florida Power & Light.

Byron R. White:

Well, assume as supervisor has been performing the bargaining functions along with his supervisory duties and the strike comes along and he is a member of the union and the union says do not cross the picket line, he says well, I really ought to do, I have lot of work to do, they say, well, we will fine you, so he stays away.

The employer calls him up and says I got a lot of bargaining for you to do over here and he says, I am awfully sorry, but I will be fined, you better get somebody else and you would still say that, there is no unfair labor practice?

Laurence Stephen Gold:

No, I would not.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Byron R. White:

That?

Laurence Stephen Gold:

I would not.

Byron R. White:

Oh! You would not, so you can — so —

Laurence Stephen Gold:

I apologize.

Byron R. White:

Well, if he has been performing the bargaining duties and the union wants to fine him from going to work, there is an unfair labor practice?

Laurence Stephen Gold:

That is right, if he comes to the union or the employer comes to union and says this man is going to perform —

Byron R. White:

He said he is going to do his usual job.

He is going to do supervisory duties and he is going to do his bargaining?

Laurence Stephen Gold:

The union can fine him for doing the supervisory —

Byron R. White:

Well, he just says, I will come to work, but I will only do my bargaining?

Laurence Stephen Gold:

That is right.

That is where the —

Byron R. White:

Well, the employer says, well I cannot pay you for that.

You come to work or not, so he is going to get somebody else one way or another?

Laurence Stephen Gold:

Well, he may have to get some somebody else, but that will be his choice because of the fact that the union cannot exert discipline on the supervisor for doing non-8 (b) (1) (B) work.

It will not be because the union is transgressed the limitation.

In terms of the hypothetical you posed, if there is a situation in which the employer says to a supervisor, I got struck work that has to be done during this strike and if you would not come here and do it in addition to doing the adjustment of grievances or bargaining, I am going to fire you and the supervisor says I will not do that because I will be fined by the union.

We think the minimum that Florida Power & Light means is that the union has not committed a violation and we do not think that 211 work is any different from struck work.

Byron R. White:

But in either of them if the employer said, well, just come and do your bargaining?

Laurence Stephen Gold:

It would be a violation for the union to fine the man.

Are we in a rather unreal situation in this?

Who is going to do with any bargaining or grievance procedure when the employees are in strike out there?

Laurence Stephen Gold:

I think that in a real world the employer arguments and the Board arguments are most unlikely, but all I am saying is that —

Because we are hypothesizing a strike when the ordinary employees are not there, there is nobody to file a grievance, is it not?

Laurence Stephen Gold:

I would —

Byron R. White:

There is only one union on strike?

Laurence Stephen Gold:

I would think it is very rare.

I can think of some situation.

One suppose the employer get strike breakers.

Now, it is unlikely that he will handle their grievances, but he may.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Laurence Stephen Gold:

In that situation if he wants to have his trusted supervisor handle those grievances, we think we would violate the law —

Thurgood Marshall:

Well, there has been a grievance with another union?

Laurence Stephen Gold:

Or in this case there were grievances with other union.

Those are possibilities, remote possibilities, we are not arguing that our theory —

Byron R. White:

Which happens to be in this case?

Laurence Stephen Gold:

Well, they did not fine, so far as anything the Board has said, people were not fined for performing those functions, indeed the Board said it was illegal.

Byron R. White:

But if any supervisor has stayed away because of the fine, he would no longer be available to do any bargaining for the employer?

Laurence Stephen Gold:

The poses the question of fact that Mr. Reich was arguing and responding to the Chief Justice’s question.

It may be that the union’s threat here can be read as going beyond what it could properly do.

We do not think that is a fair reading under the circumstance, but that maybe, but that does not justify the Board’s theory because the Board finds that it is an unfair labor practice to discipline somebody who does not touch a grievance and that we say is beyond the pale.

That is what the Board was not given the right to do.

We do not believe that supervisors got caught blash from union discipline when their union members, we think that they got protection for these collective bargaining related functions and nothing else.

William H. Rehnquist:

What is your position Mr. Gold as to burden of proof?

Supposing that a supervisor simply goes across the picket line, the union disciplines him, does he have to show that after he went across the picket line he was doing contract adjustment or grievance work?

Laurence Stephen Gold:

I think that the union would have to have a basis for believing that he was doing a work other that grievance adjustment, but I think that under the normal rule that the party in possession of the facts although have the burden of going forward, I would think that they ought to be some burden on him to show that he did not do anything other than handle grievances and bargain.

William H. Rehnquist:

So the union can impose a flat rule of discipline for crossing the picket line and he is got to at least come up with something or the Board has to, before they can show an error on unfair labor?

Laurence Stephen Gold:

That would seem to me to be the most logical burden of proof.

In other words, in a situation and it would seem to me that it would be something like Green v. McDonald Douglas whether under Title VII circumstance, you go back and forth.

If the supervisor came up to the picket line and said I am crossing solely to do bargaining unit, I mean, grievance handling, the union, it might be fair to say that the union has to show something that he did not keep his word or be in the soup.

On the other hand, he just goes in and comes up against the background where he has never solely the handling of grievances and says goodbye fellows, I am going to this line, then it would seem to me proper for the union to discipline him and for him to have to show in defense that he restricted his work to grievance handling and bargaining.

Warren E. Burger:

What if he came to the picket line with an affidavit reciting in detail that employer had called him and had a serious grievance and bargaining problems to deal with, that he was going to the end of the plant, crossing the line for that purpose and only that purpose, where is the burden of proof now?

Laurence Stephen Gold:

On the union.

Warren E. Burger:

Thank you Mr. Gold.

Mr. Come, you have some time left.

Norton J. Come:

First of all with respect to the Florida Power, at pages 30 and 31 of the transcript of the oral argument, this question was put the union counsel.

Suppose in an employee strike, you had a group of rank-and-file employees across the picket line and then the supervisor crossed the picket line to supervise them, would you feel that this made this a different case?

Answer; it is a completely different case.

On what basis do you draw that distinction?

Answer; because when a supervisor is in fact directing the work for us, doing what he normally does, he is performing at the very least, his supervisory duty as that is defined in Section 211.

Byron R. White:

Who was answering?

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Norton J. Come:

Mr. Come, the counsel for the union.

William H. Rehnquist:

We have said that agencies may be penalized and the weight we give their interpretation for taking inconsistent position, I have never heard that rule applied to private entities?

Byron R. White:

Or when they are different entities?

Norton J. Come:

Well —

Potter Stewart:

And particularly when his answer is only consistent with the position here, that was a different case from the facts of Florida Power & Light?

Norton J. Come:

I am not intending to get a waiver or any collateral or estoppel.

I just wanted to make it perfectly clear that in so far as the decision in Florida Power was concerned the Court did not have before it the question —

Potter Stewart:

The facts of this case?

Norton J. Come:

The facts of this case and indeed it was specifically left out of the case on the submission.

I think in terms of the policy that went behind Florida Power, it also made a big difference that only rank-and-file work was involved because that to deprive the union of the right to discipline people for performing that truly cut at the heart of the union strike weapon and in view of the Insurance Agents and Curtis in Section 13, this Court has made it clear that absent clear indication from Congress that it intends to so limit, it is not going to do that.

I think that when you get to the performance of supervisory work as you had here, the balance is a different one and I think that there is that policy difference, but getting to the last argument that my brother made that the burden is on the supervisor or the Board to show that the supervisor was not in fact performing grievance adjustment or collective bargaining work.

It is not only an unreal situation, but it is not required by the statute because the statute prescribes restraining and coercing the employer in the selection of his representative for a grievance adjustment and collective bargaining.

We submit that when the employer selects a supervisor with those posts and directs him to come to work in a situation where there is a potential for exercising those powers, it is as much an interference with the employer selection, if you deprive him of that representative’s authority, whether he in fact was called upon on a particular day to adjust grievances or not.

Because in the real world there is no way of knowing exactly when a grievance is going to arise or a collective bargaining situation is going to arise and certainly a supervisor does not cease to be become any less the management selected representative for that purpose due to the fortuity that on a particular hour or a particular day he did not have a grievance to adjust.

Thurgood Marshall:

And during that whole time, he could be doing struck work?

Norton J. Come:

But the fact is that he was not doing struck work in this case.

There is no indication, no evidence whatsoever.

As a matter of fact —

Thurgood Marshall:

Well, I did not understand if you limit this up to this case, in that broad statement you made of the right of “a employer.”

Are you talking about this employer?

Norton J. Come:

Well, I am talking about this employer and other employers similarly situated.

Thurgood Marshall:

Well then, could this employer require them to do struck work or not?

Norton J. Come:

If we require them to do struck work then you get into a situation as to whether the struck work that was being required was minimal or substantial under the Board and if it was no more than he would normally do absent the strike.

In some of these situations, you have supervisors that do a minimal amount of rank-and-file work as well as their supervisory duties.

If it is no more than that under the Board’s view, you would have the same result as you had here.

If there were asking him to do more than they would normally do but for the strike then you would have a Florida Power situation.

I think this case is an easy case because there was no history of the supervisor is doing any bargaining unit, struck work and there was no requirement that they perform any and as a matter of fact the employers made it perfectly clear that they would not require them to do any writing that was covered by the bargaining agreement.

They were only required to perform their normal functions as producers, directors, and storytellers.

That was “A through H” work?

Norton J. Come:

It included some “A through H” work, but the finding of the administrative law judge which was affirmed by the Board is that “A through H” work was not bargaining unit work.

Audio Transcription for Oral Reargument – March 20, 1978 in American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc.

del

Norton J. Come:

It was not struck work.

Whatever you may call it, it was not struck bargaining unit work.

John Paul Stevens:

Do you think Mr. Come that just the performance with the supervisory duty day-to-day means that the supervisor is representing the employer in the administration of the contract?

I mean, holding aside from whether at any phase of agreement procedure he is the employer’s representative?

Norton J. Come:

I think that argument has validity.

I do not think we need to go that far in this case because on the findings of the administrative law judge and the Board, it was perfectly clear that each one of these hyphenates had grievance adjustment functions and they were exercised during the strike because this is not a situation where the strike shutdown the plant.

You had operations.

They were filming these films to be sure there was no new writing of scripts, but they were proceeding to direct and photograph and edit work that was in process and you had other employees at work whose grievances were being adjusted.

Warren E. Burger:

Are you saying this distinguishes it from Florida Power?

Norton J. Come:

I think it does Your Honor.

It distinguishes it from Florida Power because in Florida Power at least on the submission, the supervisors there were disciplined because they went across the picket line to perform rank-and-file struck work that they would not have been performing but for the strike.

And in Florida Power those who have crossed the line to do supervisory work were not fined?

Norton J. Come:

They were not disciplined.

Yes, Your Honor.

Warren E. Burger:

Mr. Gold seem to concede that if the employee represented at the picket line through the pickets that he is going to perform only these managerial functions, then you can not be disciplined, is that correct?

Norton J. Come:

Well, I would say that, I heard him and I think as I read his brief, that is inconsistent with the position that they have taken up to now because their basic position has been the one that member finding talk in dissent on the Board namely that in order to establish a violation of 8 (b) (1) (B) under Florida Power, you would have to show that the discipline was meted up for the manner in which they perform the grievance adjustment or collective bargaining function.

And the position of the Board majority and the position that I am urging here is that under Florida Power, you can affect the employer selection of his representative for these purposes, merely by threatening to discipline employee or supervisors if they cross the picket line to perform their supervisory duties where they include these functions and it does not have to be for the manner in which they performed any particular grievance adjustment or collective bargaining matter.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.