Florida Power & Light Company v. International Brotherhood of Electrical Workers, Local 641 – Oral Argument – April 24, 1974

Media for Florida Power & Light Company v. International Brotherhood of Electrical Workers, Local 641

Audio Transcription for Opinion Announcement – June 24, 1974 in Florida Power & Light Company v. International Brotherhood of Electrical Workers, Local 641

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William O. Douglas:

Number 73-556 Florida Power and Light Company versus International Brotherhood of Electrical Workers.

Norton J. Come:

Mr. Justice Douglas and may I please the Court.

These cases are hereon writs of certiorari to the District of Columbia Circuit, which in a 5:4 en banc decision, denied enforcement of the Board’s orders directed against respondent unions.

The basic question is whether a union violates Section 8 (b) (1) (B) of the National Labor Relations Board Act which bars a union from restraining an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.

By disciplining supervisors with such duties who are union members for crossing a picket line during an economic strike against the employer and performing work which would ordinarily have been done by the striking employees.

There are two cases here which were consolidated in the Court of Appeals, Florida Power and Illinois Bell.

The facts are essentially similar and I shall outline them briefly.

Both Illinois Bell and Florida Power are utility companies which have collective bargaining contracts with locals of the IBEW.

The bargaining unit covered by the contracts includes rank-and-file employees and some supervisory employees, both of whom are union members.

In Florida Power union membership was voluntary, in Illinois Bell, the contract contained a Union Security Clause which required unit employees to become and remain members of the Union to the extent of paying dues and fees.

Harry A. Blackmun:

Mr. Come, the case you’re actually arguing here is the Florida Power and Light, is it not?

That is not formally here.

Norton J. Come:

The Board is arguing both cases.

The Board’s petition sought review of both, the decision in Florida Power and Illinois Bell.

The company Florida Power filed a petition which covers just Florida Power, but both cases are up here on the Board’s petition.

Harry A. Blackmun:

In other words there was a grant in Illinois Bell Or in the —

Norton J. Come:

There was a grant of the Board’s petition which covered both Illinois Bell and Florida Power.

There was a grant of the company’s petition in Florida Power.

So both cases are up here on the Board’s petition.

Other supervisors of a higher level, for example, District Supervisor, Plant Supervisor, were not covered by the collective agreement.

The companies however permitted the supervisors to retain their Union membership and many of them did.

Some of these were not active union members but held honorary withdrawal cards from their respective locals which entitle them to rejoin the locals at any time without paying an initiation fee, and to apply for pension benefits.

In addition, they entitle them to union death benefits.

Members with withdrawal cards however remain obligated to abide by the Union’s rules and are subjected to discipline if they do not.

Both companies were struck of a new contract terms and picket lines were set up in front of the plants.

The company try to maintain operations with their supervisors.

The record does not show what directions Florida Power gave to its supervisors.

It does show that Illinois Bell informed its supervisors that it would like them to work but that the decision would be left to each supervisor.

The Union, in Illinois Bell, warned the supervisor members that they would be subject to discipline if they perform rank-and-file work during the strike.

Both supervisors, in the contract unit and those outside the unit, cross the picket line and performed work including work that would normally have been performed by the rank-and-file striking employees.

Norton J. Come:

After the strike, the Union disciplined those supervisor members who would perform a rank-and-file work.

In Florida Power, they were fined in amounts of ranging from $100 to $6,000 and many of them were also expelled from membership in their respective locals.

And in Illinois Bell, the discipline consisted in most cases of $500 fines which were enforceable by court’s suit.

Charges were filed with the Board alleging that the discipline of the supervisor members violated Section 8 (b) (1) (B) of the Act.

William J. Brennan, Jr.:

May I ask you a question?

Norton J. Come:

Yes?

William J. Brennan, Jr.:

(Inaudible)

Norton J. Come:

What’s that Your Honor?

William J. Brennan, Jr.:

The same Union in both cases?

Norton J. Come:

They were different locals of the IBEW.

William J. Brennan, Jr.:

The same international?

Norton J. Come:

The same international is involved in the — they belong to the same international.

The international is a Party in Illinois Bell.

I do not think it is a Party in Florida Power.

The Board found that all of the supervisors, whose discipline was at issue, were not only Supervisors within the meaning of Section 2 (11) of the National Labor Relations Act, but were management representatives within the meaning of Section 8 (b) (1) (B), i.e., they had grievance adjustment and/or collective bargaining functions.

The Board with one member dissenting held that the Unions violated Section 8 (b) (1) (B) by disciplining those supervisors for performing a rank-and-file work during the strike, and entered an appropriate remedial order.

The Court of Appeals, as I indicated at the outset, in a 5:4 decision, declined to enforce the Board’s orders.

Now, we start with Section 8 (b) (1) (B) of the Act which, as I indicated, mixed at 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.

Now there’s no question that this clearly prescribes direct Union pressure of an employer, for example is strike threat, to force it to change the identity of its chosen collective bargaining or grievance adjustment representative.

Now in Oakland Mailers, decided in 1968, the Board, for the first time, was confronted with the problem of whether or not Section 8 (b) (1) (B) would also cover the indirect pressure that results from union discipline of a supervisor member who has collective bargaining and grievance adjustment functions for the manner in which he performs those duties.

And the Board concluded that it did on the theory that such discipline would tend to make the supervisor responsive or subservient to the Union’s will and thereby deprive the employer of his full allegiants.

So that as a practical matter, the employer would either after replace that supervisor or the call to board face the fact to all non-representation by him.

Now the court below agrees, although the Union does not, that Section 8 (b) (1) (B) may properly be construed to interdict such indirect pressure on the employer.

As the Court of Appeals pointed out although Section 8 (b) (1) (B) speaks literally in terms of coercing the selection of employer or representatives, it is clear that management’s right to a free selection would be hollow indeed.

And I’m quoting for the Court “If the Union could dictate the matter in which the selected representative performed his collective bargaining and grievance adjustment functions.”

Now, the court below, however, that is the majority of the court, concluded that this reasoning does not all true whereas here a supervisor is disciplined for performing rank-and-file work during the strike.

And the Court’s argument is that when a supervisor forsakes his supervisory role to do rank-and-file work, he is no longer acting as a management representative.

And that there’s a clear-cut dividing line between supervisory and non-supervisory work, and accordingly, there is no reason to believe that by being forced to take sides with the union, a supervisor will suffer from a change of attitude when after the strike he returns to his normal supervisory duties.

Now, we submit, as the dissenting judges below correctly observed the position of the majority of the court below reflects on unrealistic view of the role of the strike in the collective bargaining process, because just as a union seeks to strengthen its hand at the bargaining table by bringing the company’s operations to a halt, so management in order to hold out for the terms it wants, seeks to counter this pressure by keeping operations going, and the performance of rank-and-file work during the strike by supervisors and other management representatives is a vital part of such a company effort.

So that insofar as the supervisor is called upon by the employer to assist him in keeping the plant running.

Norton J. Come:

He is acting as a management representative and to discipline him for such activity, we submit, the Board could reasonably conclude, could have a lingering effect that would affect the future performance of his supervisory duties.

Now, this reading of Section 8 (b) (1) (B), we submit, furthers Congress’s intention with respect to the status of the supervisory employees under the Act.

Only yesterday this Court in the Bell Aerospace decision noted the fact that in 1947, Congress sought to assure employers of the undivided loyalty of their supervisors which it believed had been jeopardized by this Court’s holding in Packard that foremen were employees under the Wagner Act and constituted an appropriate unit for collective bargaining.

Congress believe that the inclusion of Supervisors into organization’s composed of or subservient to the man that they supervised tended to blur the line between management and laborer, and to upset the balance of collective bargaining.

And Congress, the legislative history indicates, was concerned about this result during a strike no less than in other times, because there’s repeated reference in the legislative history to the fact that even when foremen organized in a union of their own, they were nonetheless in a strike situation subservient to the rank-and-file unions.

That the foremen’s association had indeed adopted a formal policy, forbidding its members when the rank-and-file union struck — to enter to struck plants and protect and maintain them without the concurrence of the rank-and-file.

Now, Congress, in effort to restore this balance, excluded through supervisors from the definition of the employee enhanced from the protection of the Act.

And this relieve the employer of the obligation recognized in Packard to bargain collectively with the union representing its supervisors, and also to insist that the supervisors, under pain of discharge, leave the union.

Now, this insistence however, namely that the supervisors leave the union, is not practicable in many industries, such as the construction industry, the printing industry and the utility industry here where rank-and-file employees are highly organized.

Supervisors are picked from the rank-and-file and they’re unwilling to give up their union membership, because this could result in the forfeiture of substantial pension and other benefits.

And moreover, they may return to rank-and-file status in the future.

On some jobs, they may be supervisor in other jobs or rank-and-file worker.

William J. Brennan, Jr.:

The Employer may nevertheless insist, he wants to —

Norton J. Come:

He may nevertheless —

William J. Brennan, Jr.:

And actively do wrong and may dismiss them indeed.

Norton J. Come:

He may.

William J. Brennan, Jr.:

Whoever union members?

Norton J. Come:

He may but the practicalities are that in these industries, if he is strong enough to do that, he may not get a contract or —

William J. Brennan, Jr.:

(Inaudible) so often certainly the telephone industry that’s true that the supervisor have drawn from the rank-and-file.

Norton J. Come:

That is correct or he might not be able to find other supervisors.

So where you have this situation and the supervisors remain union members subjecting them to union discipline for the performance of their supervisory functions tends to create the very conflict of loyally and dilution of managerial authority problems which Congress sought to avoid.

Thurgood Marshall:

Mr. Come, you said supervisory, they are not performing supervisory duties, am I right?

Norton J. Come:

We submit that during a strike, whatever the supervisor is called upon to perform his part of his normal supervisory or management functions, because during a strike, the supervisor is called upon to help out in any way that the — that is necessary to keep the plant going.

And he is —

Thurgood Marshall:

Well, if he is sweeping the floor, he is the supervisor?

Norton J. Come:

He will be acting in the interest of the employer —

Thurgood Marshall:

He would be acting in the supervisory capacity?

Norton J. Come:

That is correct.

Thurgood Marshall:

They are just using words now, aren’t they?

He is actually doing the workers’ job.

Norton J. Come:

That is —

Thurgood Marshall:

He is a member of the union to protect and by doing it, he deliberately interferes with the union.

Norton J. Come:

Well that is —

Thurgood Marshall:

Of his own religion.

Norton J. Come:

That is true but he is caught between the devil and the deep blue sea, because unlike a regular employee you cannot be discharged for striking a supervisor, he is a management representative and his first loyalty, at least this was Congress’s intention in amending the Act in 47, is supposed to be to the employer.

Thurgood Marshall:

And the secondary is to the union?

Norton J. Come:

That is correct.

Thurgood Marshall:

Which the union is trying to enforce?

Norton J. Come:

That is correct, and we submit that that upsets the balance that Congress drew in 1947.

Now in the situation where —

William H. Rehnquist:

Did the union — Mr. Come, could the union consistent with the Act have a rule that required one of its rank-and-file members who became a supervisor to leave the union?

Could they sense that we don’t want supervisors in this union if the Board’s policy is that they are — we consist upon them?

Norton J. Come:

Yes, yes they could; yes they could.

But I think that the unions have ordinarily not done that.

Now —

Potter Stewart:

Mr. Come, you couldn’t be serious in response to my brother Marshall’s question that he is performing supervisory duties during the strike.

He’s not, he’s not supervising anybody.

He is performing the work of the employees, but what he — what he is doing is performing management duties, management duties because by definition, the employees are on strike and no ones left in the plant are management.

Norton J. Come:

I think —

Potter Stewart:

And it’s into the interest of management to keep the business going, both for ordinary business reasons and also for strategic and tactical reasons in the strike.

Norton J. Come:

I think that —

Potter Stewart:

He cannot supervise it, there is management duty.

Norton J. Come:

I think that, that’s a more accurate way of putting it Mr. Justice Stewart.

Is the Seventh Circuit pointed out in the Wisconsin Electric case, which is pending hereon certiorari, but the Court sustained the Board that what is supervisory duties is blurred during the strike situation, because what a supervisor’s normal duties are when a total complement that employees is at work, is totally different from what its duties maybe during the strike, when there are few or no employees are at work, and it is, at that time, whatever he is doing he is doing as part of management.

Yes sir.

Now —

Byron R. White:

So you’re saying that finding them for doing management duties during the strike is to coerce them in their collective bargaining role later?

Norton J. Come:

That is correct that there is a like —

Byron R. White:

Is that the argument?

Norton J. Come:

Yes that there is a likely to be a lingering effect or a spill over effect.

Norton J. Come:

At least the employer could reasonably so fear that an employee, that the supervisor having been subjected to this discipline for doing management’s bidding during the strike, can at least feel under a sense of constraint and shade things in the union’s way.

The next time the confrontation arises —

William J. Brennan, Jr.:

Well that confrontation, well I gather in the place of the supervisor, is more likely to be in the next with adjustment of grievances.

Norton J. Come:

That is correct.

William J. Brennan, Jr.:

And in collective party?

Norton J. Come:

That is correct.

Collective bargaining includes the interpretation of the contract that occurs in the grievance adjustment.

William J. Brennan, Jr.:

Yes, but then subsection (b) speaks of coercion for the purposes of the collective bargaining or the adjustment of grievances.

Norton J. Come:

Yes, the adjustment of grievances would be at the more —

William J. Brennan, Jr.:

Well, likely one.

Norton J. Come:

The more likely.

That is correct.

Harry A. Blackmun:

Mr. Come, you have to take this position in order to bring your self within the meeting of the statute.

Norton J. Come:

That is correct Your Honor.

Harry A. Blackmun:

And am I correct that the Board took exactly the opposite position until 1968?

Norton J. Come:

No Your Honor.

That is not the way I read the Board’s history.

The Board — to my — the best of my research was not presented with any cases involving this type of indirect pressure on the employer that flows from union discipline until 1968.

I think that what happened is that after this Court decided Allis-Chalmers in 1967, the Board began to get a flurry of cases involving union discipline of various types and — so that the reason that this doctrine is late in evolving, is not for the reason that has been present in many of the cases that I have recently argued before this Court that the Board has changed its mind three or four times over the course of history.

I think that in this situation, the problem just did not arise.

Byron R. White:

But it is moot.

Norton J. Come:

It is moot.

Yes Your Honor, it is moot.

William J. Brennan, Jr.:

Can I get back to this section again, Mr. Come?

Norton J. Come:

Yes.

William J. Brennan, Jr.:

I gather do you parse this restrain or course; one, and employer in the selection of his representatives for the purposes of collective bargaining or; two, an employer in the selection of his representatives for the purposes of the adjustment of grievances as two separate —

Norton J. Come:

Yes Your Honor.

They’re in the disjunctive; they are in the disjunctive.

Now, in a situation where the employer is not able to insist that he is — successfully that he has employed a supervisor leaving the union.

You have a very big gap in effectuating Congress’s objective with respect to supervisors, unless you read and interpret 8 (b) (1) (B) as the Board has done.

Norton J. Come:

Now to be sure, the legislative history of 8 (b) (1) (B) contains no indication that the provision was going to be so interpreted.

We submit that this is because Congress focused on the most obvious forms of union impairment of the employer selection of his representative, namely the direct form of pressure.

And in these circumstances, we have the familiar problem of asking which choice is at more likely that Congress would have made.

Had it been presented with this precise problem, and we submit that the Board was reasonable in view of Congresses clear-cut intention to assure employers of the undivided loyalty of its supervisors, it would have sanctioned the interpretation of Section 8 (b) (1) (B) that the Board has employed in these cases.

I’d like to save the balance of my time.

William O. Douglas:

Mr. Muller.

Ray C. Muller:

Mr. Justice Douglas, may it please the Court.

I’m Ray Muller for petitioner Florida Power & Light in this manner.

Mr. Come has reviewed the facts and reviewed the law. I’ll try to not recover the ground he has covered.

There is, however, an area of this problem that I would like to underline.

Specifically, as a management representative, it’s difficult for me to accept a distinction made by the Court of Appeals and by the union and to some extent by the Board that there is a difference between so called rank-and-file work and management work.

And that that distinction can be a predicate for finding unlawful fines or lawful fines.

As a little background, this case came before the Labor Board following a complaint by its Regional Director on a written stipulation of the parties as to issues and facts.

The stipulated issue before the Board was whether or not the union’s lawfully fined supervisors with cross picket lines and continued to work for the company.

No distinction in the original stipulation.

Thereafter the Board in this decision obliquely inserted the rank-and-file versus management work issue by finding that the supervisory fines had been imposed for working, performing work behind the picket line and “including bargaining unit work” and that the fines were illegal.

So the Board initially inserted that distinction.

Thereafter the Court of Appeals picked up that distinction.

Court of Appeals refined it further and said that if the individual supervisor was engaged in management work, he was immune from union discipline.

If rank-and-file, he could be disciplined.

The unions apparently agree with that position.

Our petition to this Court for certiorari also framed, the petitioner Florida Power & Light, also framed the issue and confined it to work for the company behind the picket line.

We made no distinction between management work and so-called rank-and-file work.

The union’s in their brief agree the Congressional policy — pardon me — agree the Congressional policy reflects an intent that employers be assured the undivided loyalty of their supervisors.

If that is true, what does undivided loyalty mean?

It must mean doing what is in the best interest of management, the employer.

In a strike situation, as the course apparent that undivided loyalty requires a supervisor to do whatever work is necessary.

He is management.

Realistically, from the strike situation, no distinction is made between rank-and-file work, supervisory work, and management work.

There is work there and it must be done.

Ray C. Muller:

To include that lawfulness or unlawfulness of a supervisory fine shall be controlled by the type of work the supervisor may be performing behind the picket line would create an entirely unrealistic situation, an unworkable situation.

Consider, this Florida Power — well I’m sorry, the current — the Florida Power & Light strike that we were talking about lasted in excess of 30 days.

Currently, we went through another strike that lasted in excess of 60 days. Consider, the supervisor, if we’re to use the distinction management work versus rank-and-file work, we have the question.

During a 60 days strike, did he spend one day doing management work?

Five days doing rank-and-file work?

Was it an hour?

Does this particular supervisor have as his usual duties, the working with a crew doing manual labor?

Thurgood Marshall:

But one thing, he wasn’t doing and he wasn’t supervising, because he did not have anybody to supervise.

Am I right?

Ray C. Muller:

He had no one to supervise but he was —

Thurgood Marshall:

So he couldn’t be doing supervisory work.

Ray C. Muller:

He was performing a management function.

He was performing a —

Thurgood Marshall:

Other than?

Ray C. Muller:

— management function.

Thurgood Marshall:

Other than supervising.

Ray C. Muller:

Other than supervising, that’s right.

We submit that the distinction between management work which the Court of Appeals says, is immune from discipline, and rank-and-file work which the Court of Appeals said is not immune from discipline, is a distinction without a substance.

Byron R. White:

What did Florida Light & Power tell the supervisors when the strike began?

Ray C. Muller:

Mr. Justice White, it was left to their discretion whether they would come in or not.

That does not appear in the record but as a matter of fact, it was left to their discretion.

Byron R. White:

It is in the record about in the Bell case I think.

Ray C. Muller:

Yes it is.

Byron R. White:

Well now, you said to your supervisors, you may come in or stay away.

Ray C. Muller:

That’s right.

Byron R. White:

If you want to honor the picket line or obey a union rule, go ahead.

Ray C. Muller:

They were encouraged to come in but there was no compulsion put on the supervisors to come in.

Come in or you’ll be fired.

That type of thing.

They were encouraged to come in.

Byron R. White:

So you left it up to them?

Ray C. Muller:

Yes.

Byron R. White:

If you want to obey the union rule, go ahead and obey it.

Ray C. Muller:

Not particularly in the union rule sense, more in the sense if you feel a loyalty sense, but for any reason, you don’t want to come in with sense.

Byron R. White:

But if the union has got membership rules, you don’t cross picket line during a strike, you left it up to the supervisors to whether to obey that rule.

Ray C. Muller:

Your Honor, it is a difficult situation this Court has currently before.

That case —

Byron R. White:

But you did leave it up to them?

Ray C. Muller:

Yes.

Byron R. White:

So that you are not being deprived at anything that you insisted on by the union action against the supervisor.

If the supervisor — if the union said no, the supervisor — we’re going to fine you if you keep this up and he stayed away, you wouldn’t have said anything.

Ray C. Muller:

Mr. Justice White —

Byron R. White:

You didn’t file him to a labor practice judgment?

Ray C. Muller:

We did, yes.

Byron R. White:

You did?

Why?

Ray C. Muller:

As to free our supervisors and the company really from this coercion if you like.

We, the section we are talking about, it is not —

Byron R. White:

Well, it’s not as coercion if you said stay if you want.

Ray C. Muller:

Well I’m simplifying it just as you are simplifying it to me.

This section does not protect the rights of supervisors.

The section we are dealing with, of course, is protection of the management.

Byron R. White:

Protection of the management.

Ray C. Muller:

Right.

Byron R. White:

That’s right.

Ray C. Muller:

May I digress a minute for your question?

Byron R. White:

You go ahead I have got all I need.

Ray C. Muller:

I may say this that we are in a right to work state in Florida.

This Court presently has before the case I believe is called Beasley v. Food Fair, where a Court in Carolina held that a violations state right to working law, to discharge supervisors.

It is not an easy decision to tell an employer “discharge your supervisor, they won’t come to work.”

Ray C. Muller:

We submit to you that management is entitled for the undivided loyalty of its supervisors.

If the supervisor cannot or will not do all in the best interest of management, because of the union sanctions or the threat of union sanctions, the employer is restrained in the use in the selection of that representative.

And we submit the imposition of those union sanctions, violates Section 8 (b) (1) (B) of the Act.

Thank you.

William O. Douglas:

Mr. Cohen.

Laurence J. Cohen:

Mr. Justice Douglas and may it please the Court.

Mr. Come has spoken of the practicalities.

He has said the effects of these cases as a practical matter.

We submit that what these cases involve is not a practical matter but a statutory matter.

We view the controlling question here as one of Congressional intentions specifically.

Is there anything in either the language of Section 8 (b) (1) (B) or its legislative history that shows that Congress ever contemplated that it would be a violation of that section, for a union to fine its members who are supervisors with the consent of the employer, for engaging in strike bridging.

The language of the section as Mr. Justice Brennan has pointed out is quite clear, it’s unambiguous, it’s narrow.

The Senate report which we have sited at Page 15 of our brief, the blue brief, also shows that Congress intended no greater reach for that section in its words canoe.

It speaks of forcing employers in or out of employer associations and it says also, this section would not permit a union to dictate who shall represent an employer in the settlement of employee grievances or to compel an employer — to compel the removal of a personnel director or supervisor who has been delegated the function of settling grievances.

The remarks of Senators Taft and Ellender which we’ve sited in the Page 16 of our brief, again show that that is all the Congress had in mind in Section 8 (b) (1) (B) and in fact, in professing his description of 8 (b) (1) (B), Senator Taft said that the section was not “perhaps of tremendous importance.”

There is simply nothing that the Board can point to, to show that Congress was thinking of the discipline of supervisors who are permitted to remain union members when it enacted 8 (b) (1) (B).

Nor is there anything in the legislative history of that section which deals with this divided loyalty’s question.

It was obviously very much in the mind of the Congress at that time and Congress spoke through Sections 2 (3), 2 (11), and 14 (a).

But we think the significant point is what they did. Congress did not create an unfair labor practice.

Rather there were two what we might call extreme positions advanced at the time.

One group said, the foreman supervisor should have a chance to remain in their own unions, perhaps not in employee unions but in their own unions.

Another group said it should be outlawed completely.

And they compromise that was struck said, it’s up to the employer to decide what he wants to let them do?

They were removed form the definition of employee in section 2 (3).

They were stripped of their rights under the Act and they were allowed to remain union members only of the sufferings of their employer.

But there is absolutely nothing to which the other side can point which shows that Congress intended to make it an unfair labor practice if the supervisors were to remain in the union, or once they were allowed to remain and were subject to the same union rules as other members, that it would be a violation of Section 8 (b) (1) (B).

William O. Douglas:

Well I gather Mr. Cohen really what you are saying is that (b) the emphasis sought to be in the word selection.

Laurence J. Cohen:

That is what we think Congress intended.

Yes.

William O. Douglas:

We have no further than to say that a union could not dictate to the employer whom it should have as the head of the personnel department, or the foreman, or vice president, president, or anything else?

Laurence J. Cohen:

We think that is precisely what Congress had in mind and all that it had in mind.

Now, we are confronted with that argument when we are here.

Well what about the effect of this so-called evolution of cases since Oakland Mailers in 1968.

Of course, we know as this Court observed yesterday in its Bell Aerospace decision once again that it’s always significant to look at what the Board has done for 20 or 25 years in assessing the meaning of the statute.

However, we also recognize that no Court of Appeals has accepted the argument today, that even the Oakland Mailers doctrine steps beyond 8 (b) (1) (B), because it affects more than the selection, the identity question.

But as the court below held, even if 8 (b) (1) (B) is read more broadly as the Board has read it in Oakland Mailers, it still has to have some relationship to the performance of an 8 (b) (1) (B) function, which is either collective bargaining or grievance adjustment.

Or at the very least, what the Board has second step stretched it to, to include the performance of some supervisory duty as they are defined in Section 2 (11).

You see there, the Board has preceded gradually —

Byron R. White:

You would say that take the same argument about a fine composed by the union for a supervisor in the process of handling a grievance construing the contract in a certain way?

Laurence J. Cohen:

Our principal position here does not, Mr. Justice White.

We do believe that the Oakland Mailers doctrine actually step beyond the intention of Congress and if that is so and if the Court should so decide, then yes even that would be outside of the reach of 8 (b) (1) (B), but we take a narrower position here as did the court below that even if Oakland Mailers is correct in saying that anytime the employer is engaged in 8 (b) (1) (B) function, collective bargaining or grievance adjustment, or a supervisory duty then the union may not touch him.

We are willing to go that far even though we think that’s beyond the intent of Congress.

William H. Rehnquist:

Could Congress leave no latitude for the Board to construe that language in your opinion?

Laurence J. Cohen:

We believe Mr. Justice Rehnquist that Congress intended to read the Board completely out of the picture.

Now, let me explain that.

Congress deprived the supervisor both of his status as an employee and of any rights under the Act.

In the words of Senator Taft, they were “generally restored to the basis which they enjoyed before the passage of the Wagner Act.”

It was clear from the debates that Congress was concerned that the Board was lending its processes to the organization of supervisors.

And it not only read that the supervisor out of the protection of the Act, but it read the Board out of the picture.

It said we are going to leave this to the employer, he can strike an agreement with the union at the bargaining table if he wants to permit them to retain union membership but he doesn’t have to.

And in that sense, the only thing that Congress did was to give the employer the leeway to decide.

And we believe it intended to keep the Board out of the business of regulating supervisory activities or the relationship of the union to its supervisors.

William H. Rehnquist:

Except that the union could not pressure the employer to replace one’s supervisor with another.

Laurence J. Cohen:

Of that there is absolutely no question.

That’s correct.

Potter Stewart:

And that puts the Board right into it, because 8 (b) (1) (B) creates an unfair labor practice which is for the Board is acceptable.

Laurence J. Cohen:

Which is, as we submit, a very narrowly defined unfair labor practice, but we are taking the principal position here, and I am certainly willing to argue it on that basis that the Board may prohibit under 8 (b) (1) (B).

The imposition of union rules on supervisors when they are functioning as supervisors or as a management agent.

But as the court below held to say that the performance of rank-and-file work, in the course of a strike is somehow an 8 (b) (1) (B) duty or a 2 (11) function.

It is like saying black is white.

Potter Stewart:

8 (b) (1) (B) doesn’t use the word supervisors at all?

Laurence J. Cohen:

It does not.

Potter Stewart:

It’s representatives in that.

Laurence J. Cohen:

Representative for two purposes, collective bargaining and grievance adjustment.

Potter Stewart:

And it’s in the strike part of collective bargaining?

Laurence J. Cohen:

Under insurance agents, it is true that a strike he is part of the collective bargaining process.

But that is not enough, we submit, to read this activity into 8 (b) (1) (B).

A strike is part of the collective bargaining process obviously a supervisor who returns to work aides the employer.

But so as the rank-and-file employee who decides “I need the money, I’m going back to work”.

William H. Rehnquist:

Supposing you have a — supposing in the Florida strike, you had a group of rank-and-file employees who cross the picket line.

And then the supervisors cross the picket line to supervise them.

Would you feel that made this at different case?

Laurence J. Cohen:

It is a completely different case.

And as a matter of fact, that situation was presented in Illinois Bell.

At Page 286 of the Appendix, union representative Cunningham was asked what about supervisors who were charged with violating union’s constitution, but who it turns out only performs supervisory duties.

And the answer was the charges were dropped against those members.

If they are — you see, the situation is not quite a simple as the Seventh Circuit would have it here.

Often during a strike, there are employees working.

Some of the regular employees may decide to continue working or return to work.

Replacements maybe higher.

In a case such as Illinois Bell where the employer is part of the largest system, employees are brought in from other locations in that system.

So that often, there are employees to supervise.

At least in Illinois Bell, some of those employees were supervised and a supervisor member who did only that was simply not disciplined.

So we definitely draw that distinction.

Byron R. White:

On what basis needed to draw that?

Laurence J. Cohen:

Because when a supervisor is in fact directing the work force, doing what he normally does, he is performing at the very least, a supervisory duty as that is defined in 2 (11).

Byron R. White:

Well then you do, then you do accept —

Laurence J. Cohen:

Oakland Mailers?

Byron R. White:

Yes.

Laurence J. Cohen:

Very reluctant.

Laurence J. Cohen:

I think it is wrong Mr. Justice White, but no union has succeeded in convincing any court of that.

So I am load to try to convince this Court when we can succeed on a narrower ground.

Byron R. White:

But the only way you accepted is by saying that the union would be influencing rather than replacing them if they find this board.

Laurence J. Cohen:

To use the Board’s word would be interfering with the right of the employer to have this loyalty which we do not believe fits within 8 (b) (1) (B) at all, but if it does, it certainly fits no further than that.

Basically what the Board and Florida Power argue here, we submit, is a policy question.

And we submit in return that what is involved here is not whether the policy which underlies these decisions is a good one or a bad one or what the law should be, but whether it was in fact what Congress intended.

We submit that both the language of 8 (b) (1) (B), its legislative history, and even the legislative history of 2 (3), 2 (11), and 14 (a) show no support for the Board’s position that Congress made this specific Act an unfair labor practice under 8 (b) (1) (B).

And we think on that basis alone the court below should be affirmed.

But there is an additional reason.

The effect of the Board’s expansive reading of 8 (b) (1) (B) here is to intrude directly into the area of regulation of economic weapons.

That flies in the phase of Section 13 of the Act, it is contrary to what this Court has told the Board on past occasions, particularly in Insurance Agents and in the Curtis Brothers case, Drivers Local Union, 639, where the Board similarly tried to expand 8 (b) (1) (A).

And the Court, in an opinion by Mr. Justice Brennan, said “You may not do that, we have to stick with what Congress enacted even if the Board thinks it’s a better system.”

It relied on Section 13, it relied on Mr. Justice Frankfurter’s admonition which is certainly pertinent here that the Act was very much the result of conflicting pressures and of compromise, and that expansive readings are not to be given to sections even if their language is ambiguous.

We submit, 8 (b) (1) (B) does not have ambiguous language to begin with.

Now, the economic weapon, of course, that would be diminished here is the same weapon that was involved in Allis-Chalmers.

As this Court said in Allis-Chalmers, at Pages 181, 182, “The economic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms.

And the power to fine or expel strike breakers is essential if the union is to be an effective bargaining agent.”

And of course those principles were re-affirmed last term in the Boeing decision.

And as the Court below concluded in all relevant respects, the Allis-Chalmers decision is indistinguishable from the facts of this case.

The union’s interest is just as valid, it is just as great.

The employer has the economic weapon of trying to use his supervisors as strike breakers.

The union has its right if they are members to discipline them for doing so.

Finally, I would like to say this that the employer in this case says — first of all, you know we are caught in the middle, and we say to that, you are not at all caught in the middle; you have an absolute right under the Act to say to your supervisors, get out of the union; you may not stay in the union.

And to say to the union, these supervisors are now beyond your control.

And it’s interesting to note, although it is not in the record and occurred since the record in this case that during the last Florida Power & Light strike, this past winter, the company directed all of its supervisors to resign from the union and in fact, they did so.

So the employer has so to speak the ultimate weapon in that respect simply by exercising the option open to it which was the precise remedy which Congress gave it in 14 (a).

And I think it is also instructed to note what happened in the Illinois Bell case following the strike.

At Footnote 31 of our brief which is at Page 61, we point out that in 1971, the strike was in 1968, the parties again sat down at the bargaining table, and the employer specifically waived its right to make any effort whatever to force the supervisors out of the union.

And it did so for a very practical reason.

It got a very substantive and substantial concession from the union concerning the jurisdictional claims of the union.

Laurence J. Cohen:

That, we submit, was the process which Congress intended that the Parties would work out with the employer having the ultimate say “what the status of his supervisors would be.”

In these cases for varying reasons, the employers decided to let their supervisors remain in the union.

In the Illinois Bell case, I know we can point to something specific.

They’ve got benefit in exchange for.

They bargained it out.

But it is an impermissible jump to go from there to say that when the employer and nevertheless says they can stay in the union.

And of course, as members are subject to union control that it suddenly becomes a violation of this narrowly drawn section.

If the union follows its traditional practice which this Court noted in Allis-Chalmers existed along before Taft of disciplining them for the basic violation of strike breaking.

If the Court has no question, Mr. Gold will precede with the argument.

William O. Douglas:

Mr. Gold.

Laurence Stephen Gold:

Thank you Mr. Justice Douglas and may it please the Court.

Obviously, this case has a substantial importance of its own in light of the added strength that will either give to the employer or will not, but our interest — my interest on behalf of the AFL-CIO is both that and another.

And that is that in this case, the Board is operating on the premise, that where there is a policy which has been embodied in the Act in some respect, the Board can create an unfair labor practice.

Here, the policy that the Board finds in the Act in which we don’t dispute and of course which this Court discourse that on length in yesterday’s opinion on Bell Aerospace is the policy in favor of undivided loyalty of supervisors.

And from — in order to effectuate that policy, the Board would read 8 (b) (1) (B) in an extremely expansive way.

Now, this is not the first time that the Board has made this type of leap from policy to the expansion of an unfair labor practice section.

I think its worth noting that at the time the 1947 Amendments were being debated, the House came in with what was in essence a laundry list of union unfair labor practices.

The Senate are, in the words of the Senate Report, reduced those to five defined unfair labor practices.

And the reason that the evolution was as it was, was the fact that the case bill, which was a predecessor of the 47 Amendments had been vetoed and Senator Taft was very conscious to the fact that he face to another veto and had to get out a bill which would have a broad enough constituency to get 2/3 plus 1.

All these points have been made and most forcefully in our judgment in insurance agents and again in the Drivers Local case in 362 U.S.

In Insurance Agents, the union tactic there at issue was the slow down strike and there can be no doubt after this Court’s reaction to tactics like the sit down strike or other such tactics, that the policy of the Act does not favor that type of union economic.

The Board responded by reading into 8 (b) (3), which requires that there be a bargaining in good faith an unfair labor practice reaching of that tactic.

And this Court has responded by reversing the Board.

I think its very much in point to note one facet of that opinion which is quoted on pages 15 and 16 of our brief which is the rest colored brief.

Mr. Justice Brennan thereby was responding to the argument that since the activity was unprotected, it was proper to make it an unfair labor practice.

And he said, “There was a little logic in assuming that because Congress was willing to allow employers to use self help against union tactics if they were willing to face the economic consequences of its use; it also impliedly declared these tactics unlawful as a matter of federal law.”

Our problem remains that of construing Section 8 (b) (3)’s terms and we do not see how the availability of self help to the employer has anything to do with the matter.

And I think when we turn to the policy of undivided loyalty of supervisors, we find that once again, Congress met the issue.

The issue posed by the Packard case by giving the employer a right of self-help.

Sections 2 (3) to 2 (11) and 14 (a), where this matter was discussed and debated, do not create any employer rights.

Laurence Stephen Gold:

As Mr. Cohen has indicated what they do is create a privilege in the employer that he doesn’t have to deal with unions as to a supervisors and that he does not have to bargain collectively with supervisors as to their terms and conditions of employment, and that the Board cannot make his refusal to treat supervisors as employees as an unfair labor practice and all of these to restore the situation before the Wagner Act.

And we agree that the employer thereby was given a privilege to require supervisors not to join Unions, to require them to resign their membership without being subject to any unfair labor practice charges himself.

But it also, in the first portion of Section 14 recognized that employers had a right — I don’t want to use that word here — a privilege to allow their supervisors to remain in the Union or to deal with a Union about supervisory employees and that was the solution to the conflict of interest problem that Congress envisioned, envisaged.

Then let’s turn to 8 (b) (1) (B).

In one respect, Congress was willing to go further than giving employers self-help, said that in selecting his representatives for collective bargaining and grievance handling functions, he could not be subjected to strikes.

First of all, the main function of that provision was to deal with multi-employer bargaining and even there it was a compromise because the House had barred multi-employer bargaining, and again, the Senate’s solution was to accord both the — in this case, both the employers and the Unions of privilege of continuing, but to say that neither could force the other into that context.

And the secondary purpose of this was to prevent Unions from exerting pressure on employers to select their representative.

Mr. Cohen has talked about the importance of the word “select”.

I’d like to talk about the added importance of the word “representative.”

If Congress had really been focusing on the conflict of interest problem that it focused on in 2 (3), 2 (11) and 14 (a), one would have thought that it would have used the same term in Section 8 (b) (1) (B) rather than pick out two specific subject matter areas, because as the Court of Appeals pointed out, the Board’s interpretation means that some supervisors that the employers assured through the Board’s processes, the loyalty of some supervisors but not as to others.

It seems to us in light of that, it’s more logical to assume that what Congress was intending was to assure that the employer would be able to speak through someone who is really his own choice just as the Union in Section 7 and 9 is assured that it will speak through a representative of its own — of its own choice.

But to move that over into a completely different are, namely, whether the employer can act through certain agents in getting work done, rank-and-file work, as opposed to supervisory work or having grievances settled or collective bargaining done through his own people, is quite a leap, a leap which is extremely difficult, we think, to secure from the language.

When I perform a service in fixing a machine for an employer, it’s very difficult to say that I’m acting as its representative.

I am maybe part of management or whatever but I’m not acting as its representative for collective bargaining or the settlement of grievances; I’m acting as its agent in performing that type of work.

If that isn’t true, it would mean that any employee who comes back and does the rank-and-file work during the strike, thereby, ipso facto becomes a management representative under the Board’s theory.

William H. Rehnquist:

With this position that you just state now will lead you to disagree with Oakland Mailers?

Laurence Stephen Gold:

The position that I’m stating now does not require a disagreement with Oakland Mailers.

Insofar as we are talking about the meaning of the word “representative,” representative for collective bargaining in grievance settling, it leaves open the question of whether the Board could say that it was empowered to prevent unions from disciplining individuals because they had interpreted the agreement in a way which was inconsistent with the members’ interest or had bargained in a particularly hard way or it pressed a grievance in a particularly hard way.

We are not here asking that Oakland Mailers be reversed.

It may be that — it should be reversed but that isn’t the issue here as we see it.

In the opening of our brief, we quoted the Chief Justice’s remarks in one of the obscenity cases last year that the fact that there has been an evolution doesn’t mean that the final step is right if it is one that never would have been contemplated in the first place.

We are at the far end of the spectrum here and we are simply asking this Court at this time to hold that the Board has made a mistake at this point.

Now, obviously the reasoning that’s employed will have an effect on the earlier steps in the evolution but the reasoning that I’m arguing for now would not require an overruling of Oakland Mailers.

William H. Rehnquist:

Of course, it strikes me that that one possible difficulty with your position is if you read the language very narrowly and say that the Board has virtually no power to expand on it.

That leaves you way back before Oakland Mailers.

That may be a perfectly tenable position, but if you say the Board has some power to expand on it and can go as far as Oakland Mailers, it seems to me, if it’s rather hard to say why they shouldn’t go the last step.

Laurence Stephen Gold:

Well, I think the reason they can’t go the last step is the argument that I started off with and that is that whatever power the Board may have to interpret and expand a provision, it can’t interpret or expand provisions into an interdiction or prohibition of the use of a lawful economic weapon during the strike unless there is a specific warrant in the legislative history, because this was the most sensitive area of the whole statute and the very point of Insurance Agents and Curtis Brothers is the point I’m just making, the point that’s embodied in Section 13.

And therefore, we need not take the position that there is no room for expansion.

We simply take the position here that there is no room for an expansion whereby the Board would interfere with the use of this economic weapon when there is no indication that Congress intended to create a right in the employer to use anyone whether they’re labeled supervisory employees or representatives or anyone else to break a strike.

Now, that doesn’t mean that the Board can’t go from the word “select” to a broader term in order to safeguard the employer’s interest in being able to speak through a representative of his own choosing.

Laurence Stephen Gold:

That simply leaves that open.

What we’re — what I’m concentrating on here is the use of the word “representative” and the use or the misuse in our judgment of the word “representative” and the misuse in a way which strikes from the union’s hands and otherwise permissible economic weapon in support of a lawful economic strike.

Because 8 (b) (1) (B) at its broadest, no matter how you read “select”, would only seem to interdict union economic weapons that are improper.

And the impropriety of the use of economic weapons is judged by the object.

If the object is to prevent the employer from choosing his own collective bargaining or grievance-handling representative, then that is the area that the Section —

Harry A. Blackmun:

Putting it the other way, Mr. Gold, what you’re saying is, I gather that Mailers has nothing whatever to do with the effect on the right to strike.

Laurence Stephen Gold:

That’s right.

Harry A. Blackmun:

And that in this instance, there’s very much to do with it.

That’s where it runs to follow with the insurance agency.

Laurence Stephen Gold:

That’s right.

In Section —

Harry A. Blackmun:

Therefore you ought not give an expansive reading that 8 (b) (1) (B) are not account.

Laurence Stephen Gold:

That’s right, or to expand it to that degree, now whether they are — it can be expanded in other areas where the admonitions contained.

Harry A. Blackmun:

Whether it might be expanded in any area where it doesn’t adverse the effect the right to strike —

Laurence Stephen Gold:

Is another question.

Harry A. Blackmun:

Another question.

Laurence Stephen Gold:

Right and because the determinants are different and the determinants of Congressional action were different.

And again, concentrating on the meaning of this word “representative” —

Harry A. Blackmun:

May I have — well, I have interrupted you, and now, in what respect do you say that this kind of discipline — now giving it the more expansive reading in this situation does adversely affect the right to strike?

Laurence Stephen Gold:

Well, the right to strike —

Harry A. Blackmun:

For instance, it all comes out of the guarantee of Section 13.

Laurence Stephen Gold:

Right.

The adverse effect here is that as the Court recognized in Allis-Chalmers, the use of Union discipline over members is an important ingredients in terms of the effectiveness of the union strike that use of discipline is an economic weapon supportive of the strike.

William J. Brennan, Jr.:

Even though it’s post strike, usually.

Laurence Stephen Gold:

Right.

William J. Brennan, Jr.:

In fact, I gather here these fines are levied at the strikes were all over —

Laurence Stephen Gold:

Well, but as just normally, the case — the use of a power of that kind is intended to influence conduct and the very fact that it’s there is an ingredient in the strike if it was known that that could not be done, the trike would not have that support of weapon.

And as I understand it, that was your reasoning in Allis-Chalmers and the reasoning of the Court in the Boeing case.

So, certainly, both sides view the role that the supervisor will play in doing rank-and-file work as an economic weapon.

The employer wants to use the supervisor just as he wants to use those rank-and-file people willing to come back to work to break the strike.

Laurence Stephen Gold:

Insofar as it’s done by using rank-and-file work, the union in this case is claiming that it has a countervailing weapon just as it would for employees, namely threatening them with discipline as members.

Byron R. White:

Is — has the Board indicated that the union could or could not expel the supervisor for crossing the line.

Laurence Stephen Gold:

My understanding is that we cannot even expel them.

Both are involved in this case, yes.

And to us, that’s —

Byron R. White:

Does that both — are both expressly involved in the case?

Laurence Stephen Gold:

Well, Florida Power — in Florida Power & Light, there were expulsions.

So, —

Byron R. White:

As well as fine.

Laurence Stephen Gold:

So, we have — not only has the Board arrived in a situation which this weapon to support the union’s strike is struck from its hands but it’s also caused the Union to keep this people in.

William H. Rehnquist:

Mr. Cohen says —

Byron R. White:

Yeah, I thought Mr. — excuse me.

William H. Rehnquist:

Go ahead.

Byron R. White:

I thought Mr. Cohen had indicated that that is a general policy at least the union could insist that supervisors get out of the union when they become supervisors.

Laurence Stephen Gold:

Well, I take it that the distinction he would make would be that whether it’s a general policy they can’t do it as a disciplinary act.

Byron R. White:

And that if they were going really — if they’re really serious about it, they would have to expel everybody.

All the supervisors —

Laurence Stephen Gold:

That’s right.

Byron R. White:

— and not just the ones who crossed the picket line.

Laurence Stephen Gold:

Yes, and the same that can or cannot have a disciplinary connotation depending on the time it’s employed, the circumstances would set and so on and I certainly concede that distinction.

I started to get back to the point, the meaning of the word “representative” to make the point that Section 8 (b) (1) (B) reaches people that would never be thought to have been a problem or covered by 2 (3), 2 (11) and 14 (a).

Many of the early cases involve union attempts to have the employer replace the attorney he’s using to bargain his collective agreement.

And I don’t think that Congress really — when he was treating the undivided loyalty problem in 2 (3), 2 (11) and 14 had any idea that it was getting into that.

I don’t — I think that there is every indication that it looked at the two different sections or the two different complexes of Sections 2 (3), 2 (11) and 14 (a) on the one hand, and 8 (b) (1) (B) is very different and addressed to different problems and we’ve tried to indicate the line, the clearest line that we see.

I’d like to just take off certain indicia that we think support our view that 8 (b) (1) (B) cannot be stretched over to the area of Union discipline of supervisors who do rank-and-file work.

First of all, we have Senator Taft getting up on the floor saying that this Section is not perhaps of great importance.

Given the fight over the status of supervisors and given the meticulous care with which the use of economic weapons was treated in Section 8 (b) (4) and elsewhere, we do not think that it’s appropriate if we‘re going to try to recreate gemmative values which were present at the time to answer the question that Congress perhaps didn’t focus on explicitly to use Mr. Come’s words to attribute to Senator Taft and the other proponents of the bill, a diversionary action whereby they appear to only create a privilege in the employer in 2 (3), 2 (11) and 14 (a), and then bring the Board back into the whole area and not just for one very limited proposition through Section 8 (b) (1) (B).

Secondly, I think it was perfectly plain that everyone who was active in the formation of the 1947 Amendments knew that union’s discipline members including supervisory members when they break strikes.

William J. Brennan, Jr.:

For instance, Mr. Gold, did the 8 (b) (1) (B) comes chronologically after 2 (3), 2 (11) and 14 (a).

Laurence Stephen Gold:

Yes, the evolution was that the Case Bill treated the Packard problem in terms of status.

Laurence Stephen Gold:

The House Bill treated the supervisory issue in terms of status and there was no 8 (b) (1) (B) most probably, because they barred multi-employer bargaining completely.

And as the Senate Report indicates, really the major function of 8 (b) (1) (B) was to deal with the multi-employer bargaining problem and that all in this area which has grown and overshadowed the other completely since 1968.

As I started to say, it was understood in Congress that unions exercise this type of disciplinary power.

Both all the members and supervisors, Mr. Justice Brennan, has noted the congressional understanding as to members and the legislative history of 14 (a) where they talk about — in a House Report where they talk about the fact that unions use their influence to have organize supervisors not work during strikes, indicates that they understood that this wasn’t something that was only done against members but it was rank-and-file members but done against supervisory members as well.

The Union treats — by in large it has treated the supervisory member as being just as much subject to —

William J. Brennan, Jr.:

As I recall on history, some Jones & Laughlin Mines example —

Laurence Stephen Gold:

That’s right.

William J. Brennan, Jr.:

— where supervisors refused to leave the mine, or something like that.

Laurence Stephen Gold:

Right and they quoted — we’ve quoted it in our brief if I can find it.

I’m sorry I can’t find it right — right now.

I apologize, I don’t want to waste any time but we have quote a passage from the House Report where they comment on the fact that the rank-and-file union, I mean the supervisory union at Ford entered into an agreement whereby its people would not work during a rank-and-file strike.

They understood that unions were going to use their force what force they had to keep supervisors from doing this work.

And nevertheless, as we say, the only explicit indication that they wish to deal with the conflict of interest problem was to give the employer a privilege.

Starting from the Packard case, they viewed it as a matter of status and deprived the supervisors of the protections of the Act, gave the employer a privilege but did not indicate that supervisory members would have any special status as members of the union immune from discipline or that the Board was to be brought back into this whole area rather than to protect the right of the employer to speak through his own people in Section 8 (b) (1) (B).

Potter Stewart:

Well, the union of course, explicitly under Section 13 has the right to strike but surely the employer has the right to use self-help and to do whatever he can to keep the business running during a strike, isn’t he?

Laurence Stephen Gold:

Yes.

I think that —

Potter Stewart:

And indeed has the right of certain circumstances to lock up.

Laurence Stephen Gold:

That’s correct as you stated in American Ship and Brown Food.

Potter Stewart:

And it seems to me that really this part of your argument is almost a question begging.

That’s the issue here, isn’t it?

Laurence Stephen Gold:

Well, no.

We don’t think it’s question begging because there’s nothing that we are arguing for that deprives the employer of any power.

He has the power to order the supervisors to work, to order them to quit the union in order to — so that, he will be sure that they are not subject to any countervailing pressure.

The union has the attractiveness of keeping union membership in whatever discipline, and there is a tug-of-war and it’s no different than the tug-of-war that goes on as to the employee during the strike.

In many ways, this is a harsh process, but this is what Congress decreed.

An employee can be disciplined if he crosses a picket line.

He can be permanently replaced if he does it.

Both sides have economic weapons but what the Board is trying to do is enhance the employer’s economic weapon by depriving the union of this, rather than according with what Congress would have seem to have done, which is to give both sides certain powers and privileges but not to create any federal rights or any federal prohibitions in this area when we are dealing with supervisors working during the strike.

And I — with all deference, I don’t think it’s question begging.

Laurence Stephen Gold:

I think that what we have in this area is the whole sensitive subject of the extent to which these five carefully limited at that time, five carefully limited union unfair labor practices, can be expanded, so that an economic weapon which Congress seems to have understood is there, namely, the right to discipline supervisor members is taken from the union in favor of a policy which was effectuated in other way.

Not effectuated by creating a federal right not created, not effectuated so far as we believe from anything in the language or legislative history by creating a federal prohibition in 8 (b) (1) (B).

We do not argue with the fact that the employer has privileges here and that he can do what he can given the practical situation to keep his business running.

That is one of the things that’s allowed under the Act.

But the union can do what it can except insofar as Congress specifically said no to make its strike effective.

Potter Stewart:

And what this case is about is what can the union do!

Laurence Stephen Gold:

That’s right.

And we’re saying that there is nothing specific here that you have to take the word “select” and take the word “representative” and take all that — the silence which we think here is — would mean and take it into and turn all that into a section which says that a union cannot discipline a supervisor member who acts as an employer’s agent, and not as its representative and goes in and does track work.

And we think that that is stretching the language in ignoring the legislative history to a point which cannot be done given the background of this Act and given the admonitions — what the admonition contained in Section 13 which has been given flesh and force in cases such as Insurance Agents, the Drivers case and in American Ship and in H.K. Porter.

This is not a principle which cuts just one way.

William O. Douglas:

Time about to expire, do you have few things to say, Mr. Cohen?

Laurence J. Cohen:

I just have one or two brief comments.

William J. Brennan, Jr.:

You’re going to cover the Insurance Agents in effect with the —

Laurence J. Cohen:

Yes, that’s what I intended to address myself to.

We believe that there is no impairment of the right to strike in the impermissible sense or to use Mr. Justice Stewart’s point, that is the issue here.

In Allis-Chalmers, what you had was the right of the union to discipline the employee members for breaking the strike.

There is an old question that the right to maintain the solidarity of employee members is very vital to the right to strike.

However, what you have here is the discipline of supervisor members and supervisory personnel have not traditionally been picket line allies of the rank-and-file, rather as the dissent in Packard noted, in industrial conflicts they’re allied with management.

So, therefore, in reading 8 (b) (1) (B) to the way the Board has in this case, you are not impairing the union’s interest to the same extent as you would, had you read Allis to 8 (b) (1) (a) to prohibit them from finding or disciplining employee strike breakers.

On the other hand, to fail to read 8 (b) (1) (B) as the Board has done here, would substantially impair the employer’s interest, which Congress clearly intended to protect, namely, of ensuring the undivided loyalty of its supervisors during a strike no less than at any other time.

Now, I think that the union’s concession that 8 (b) (1) (B) can be read to encompass the Oakland Mailers situation. Carry this a long way, along the road to sustaining the Board’s position, because it shows that Congress did not, as the Union argues in much of its brief and as the court below, the majority argued in much of its opinion, intend to leave the employer only with the option of insisting that his supervisors get out of the union.

If they didn’t get out of the union, he then have to accept divided loyalty because the — if Oakland Mailers is correct, the employer is protected against union discipline which interferes with the performance of that supervisor’s management functions.

And the question that we then come down to is whether or not the Board is reasonable in concluding that the performance of rank-and-file work during a strike is a proper function that management can require of its supervisors and whether to discipline them for that — performance of that function is likely to have a spillover effect that is going to impair of that supervisor’s performance of grievance adjustment and other duties.

We submit that the Board was reasonable in so concluding, even though, another conclusion might have been equally reasonable, and therefore, the Board should be sustained in these cases.

William O. Douglas:

Thank you gentlemen.

The case is submitted.