New York Typographical Union No.6

National Labor Relations Board - Board Decisions

Mar 6, 1975

216 N.L.R.B. 896 (N.L.R.B. 1975)

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York Typographical Union No. 6, International
Typographical Union , AFL-CIO and Daily Racing
Form, a subsidiary of Triangle Publications, Inc.
Case 22-CB-2345
March 6, 1975
SUPPLEMENTAL DECISION
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On October 5, 1973, the Board issued a decision'
in the above-entitled proceeding in which it affirmed
the rulings, findings, and conclusions of the Adminis-
trative Law Judge, as contained in his Decision of
June 27, 1973, and ordered that the Respondent take
the action set forth in the recommended Order of the
Administrative Law Judge.
Thereafter, on July 30, 1974, the Board advised the
parties of its decision, sua sponte, to reconsider the
decision in the above-entitled proceeding in light of
the Supreme Court's decision in Florida Power and
Light Co.2 Subsequently, the Board invited state-
ments of position from the parties. Only the General
Counsel responded and submitted such a statement.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has duly considered the matter and has
decided, for the reasons set forth below, to reaffirm
its prior conclusion that the Respondent violated
Section 8(b)(1)(B) of the Act by fining and expelling
from membership its member, Flood, who was also a
company supervisor, for working behind the Re-
spondent's picket line.
In our previous decision, we found that Flood, as
well as all employees at the plant, continued to work
throughout the Respondent's strike of the Compa-
ny's plant. The record established, and it was
undisputed, that "at all times" during the strike
Flood continued to perform his normal supervisory
duties. Flood's duties as production manager includ-
ed overall responsibility for, and supervision of, the
Company's pressroom and composing room, adjust-
ment of employee grievances and complaints and
participation on a three-man negotiating team which
was responsible for negotiating collective-bargaining
agreements with Typographers Local 71 and Lithog-
raphers and Platemakers Local No. 1, which repre-
sented the Company's composing3 and pressroom
i 206 NLRB 294 (1973)
2 Florida Power and Light Co V International Brotherhood of Electrical
Workers, 417 U.S 790 (1974).
3 Respondent , a sister local to Local 71, did not represent these
employees , although it claimed jurisdiction over the Company's composing
216 NLRB No. 147
employees, respectively. Flood was disciplined by the
Respondent for having violated its rules "by working
behind the Union's picket line."
In Florida Power and Light, supra, the Supreme
Court held that whether or not a union violates
Section 8(b)(1)(B) by disciplining a supervisor-mem-
ber depends on whether that discipline may adverse-
ly affect the supervisor's performance of his
8(b)(1)(B) duties. Thus, the Court said:
The conclusion is thus inescapable that a union's
discipline of one of its members who is a
supervisory employee can constitute a violation of
8(b)(1)(B) only when that discipline may adversely
affect that supervisor's conduct in performing the
duties of, and acting in the capacity as, grievance
adjuster or collective bargainer on behalf of the
employer. [Emphasis supplied.]
In Hammond Publishers, Inc.,4 a Board majority
interpreted the Supreme Court's holding in Florida
Power and Light to mean, inter alia, that in situations
where the disciplined supervisor has engaged "only in
the performance of supervisory activities (not limited
to grievance adjustment or collective bargaining)," a
union's disciplining of that supervisor violates Sec-
tion 8(b)(1)(B) of the Act because "it is reasonably
likely that an adverse effect will carry over to the
supervisor's performance of his 8(b)(1)(B)
duties...." In so holding in Hammond, the Board
focused on the type and amount of activities
performed by the supervisor-member during the
strike rather than, as urged by the dissent herein, on
the union's professed reason for imposing the
discipline.
We agree with the reasoning in Hammond and feel
that it controls in the instant case since the
disciplined supervisor-member herein performed
only his normal supervisory duties during the strike.
Our dissenting colleague feels, however, that the
discipline in the instant case was not violative of
Section 8(b)(1)(B). In so concluding, the dissent
intimates that Section 8(b)(1)(B) is violated only
where the discipline is directed toward the manner in
which a supervisor performs his 8(b)(1)(B) duties,
since, it is asserted, only under such circumstances
may the discipline adversely affect the supervisor's
future performance of his 8(b)(1)(B) duties. Under
the dissent's analysis, therefore, a union may legally
discipline a supervisor-member for "crossing a picket
line" or for "working during a strike," etc., even
though the supervisor has performed only supervisory
room and that the Company was performing struck work . Flood was one of
the few , if not the only, individual employed at the struck plant who was a
member of Respondent at the time of the strike
4 Chicago Typographical Union No 16 (Hammond Publishers, Inc), 216
NLRB No. 149 (1975)
NEW YORK TYPOGRAPHICAL UNION NO. 6 897
functions. Thus, under the dissent, a union may in
effect tell a supervisor-member that he may not
perform any functions, even grievance adjusting or
collective bargaining, during a strike without running
the risk of being disciplined. The reasoning of the
dissent seems to be rooted in the conviction that a
supervisor -member is acting as a "strikebreaker" and
thus should be subject to union discipline if he
performs any function during a strike. The justifica-
tion for this analysis draws support from the dissent's
assertion that the employer must pay this "price" for
permitting supervisors to remain union members or
for having neglected to incorporate a provision in the
collective-bargaining agreement permitting supervi-
sor-members to perform supervisory duties during a
strike.
We do not believe that the Supreme Court's
decision in Florida Power warrants the 'severe
limitations which the dissent would impose on the
scope of Section 8(b)(1)(B). The Supreme Court was
not faced in Florida Power with the situation
presented herein. In Florida Power, the Supreme
Court dealt with union discipline of supervisor-
members who crossed picket lines to perform rank-
and-file struck work, not those who crossed picket
lines to perform supervisory duties. In fact the
majority noted5 that the supervisors who had
performed only their regular duties during the strike
had not been disciplined. As Mr. Justice White stated
in the dissent:6 "I do not read the Court to say that §
8(b)(1)(B) would allow a union to discipline supervi-
sor-members for performing supervisory or manage-
ment functions, as opposed to customary rank-and-
file work, during a labor dispute."
Therefore, nothing in the Supreme Court's Florida
Power decision dictates the conclusion, urged by the
dissent , that a union has a right to discipline a
supervisor-member who performs any function dur-
ing a strike.7 The most that can be said is that the
Court sanctioned the disciplining of supervisor-mem-
bers who performed rank-and-file struck work during
a strike. In this same vein, it is apparent to us that it
was the performance of rank-and-file struck work by
supervisor-members which the Supreme Court re-
ferred to as strikebreaking for which union sanctions
could be incurred.8 Therefore, under our view of
Florida Power and its definition of strikebreaking, the
only so-called "price" that an employer must pay for
permitting a supervisor to be a union member, is that
the supervisor-member cannot, with immunity, cross
union picket lines to perform rank-and-file work.9
We believe that the adverse future effect which the
Supreme Court referred to as violative in Florida
Power is as likely to occur, regardless of a union's
professed reasons or intent, if a supervisor-member is
disciplined after having performed only his normal
supervisory duties or if he is disciplined after having
engaged in contract interpretation.10 In the latter
case it is the supervisor's future manner of contract
interpretation which is likely to be influenced and in
the former case it is the supervisor's actual future
performance of supervisory duties, including griev-
ance adjustment or collective bargaining, which is
likely to be influenced. In either case the employer
has been restrained in the selection of his 8(b)(1)(B)
representative.
Accordingly, because Flood was performing only
his normal supervisory duties which included han-
dling grievances and participating in the collective-
bargaining process, we find, for the reasons stated
above, that the Respondent violated Section
8(b)(1)(B) of the Act by fining and expelling Flood
from membership for working behind its picket line.
We, therefore, reaffirm our previous Decision and
Order.
MEMBER FANNING, dissenting:
Section 8(b)(1)(B) of the Act makes it an unfair
labor practice for a labor organization "to restrain or
coerce . . . an employer in the selection of his
representatives for the purposes of collective bargaining
or the adjustment of grievances. " (Emphasis supplied.)
The Supreme Court's analysis of Section 8(b)(1)(B)
in Florida Power & Light Co. v. International
Brotherhood of Electrical Workers " now leads me to
conclude that the statutory language of Section
5 417 U.S. 790, 812 (1974), In. 22.
6 Id. at 815, fn. 2.
r As stated in the circuit court opinion in Illinois Bell, 487 F.2d 1143,
1157 (C.A.D.C., 1973), aft'irmed in Florida Power, supra: "When a supervisor
acts as such he is a representative of management, and as such he should be
immune from discipline . The unions participating in the present cases
conceded as much at oral argument when they agreed that when a
supervisor crosses a picket line to perform supervisory work he remains
immune from discipline."
s 417 U.S. 790 , 812, fn. 22.
As stated by the circuit court in Illinois Bell, supra, 1169-70.
If the employer, however, chooses not to exercise his rights under that
section [14(1)], permits his supervisors to join unions . . . the employer
cannot still insist on the supervisors ' undivided loyalty in every union-
employer dispute , no matter how unrelated the subject of that dispute is
to the supervisory function. .
This is not to say, of course, that by permitting his supervisors to
join unions the employer completely waives his right to their loyalty.
Even if he permits them to join unions , Section 8(b)(IXB), as
interpreted by Oakland Mailers and Meat Cutters, immunizes them
from union discipline imposed for the manner in which they perform
their supervisory functions . [Emphasis supplied.]
to The Supreme Court assumed that this latter situation , which arose in
San Francisco-Oakland Mailers' Union No. 18, International Typographical
Union (Northwest Publications, Inc.), 172 NLRB 2173 (1968), fell within the
purview of its Florida Power ruling.
11 417 U.S. 790 (1974).
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b)(1)(B) means only what it says and no more.
Because there is absolutely no evidence tending to
establish that the Company herein was restrained or
coerced in its selection of representatives for the
purposes of collective bargaining or the adjustment
of grievances, I dissent.
The basic defect in the majority's analysis is that it
attempts to interpret Florida Power & Light at the
expense of the history of Section 8(b)(1)(B). I do not
believe a meaningful analysis of Florida Power is
possible under such circumstances and therefore
provide that history.
Section 8(b)(1)(B) was enacted, via the Taft-Hart-
ley amendments, in 1947. Its legislative history
irrefutably indicates, as the Supreme Court in Florida
Power recognized, that Congress intended, solely and
exclusively, to prevent labor organizations from
forcing employers to join or withdraw from multiem-
ployer bargaining groups and to end the practice of
some labor organizations at that time of dictating
whom employers should select as bargaining or
grievance adjustment representatives. As the Su-
preme Court pointed out, Senator Taft's remarks
were illustrative:
This unfair labor practice referred to is not
perhaps of tremendous importance, but employ-
ees cannot say to their employer, "We do not like
Mr. X, we will not meet Mr . X. You have to send
us Mr. Y." That has been done. It would prevent
their saying to the employer, "You have to fire
Foreman Jones. We do not like Foreman Jones,
and therefore you have to fire him, or we will not
go to work." This is the only section in the bill
which has any relation to Nation-wide bargain-
ing. Under this provision it would be impossible
for a union to say to a company, "We will not
bargain with you unless you appoint your
national employers ' association as your agent so
that we can bargain nationally." Under the bill
the employer has a right to say, "No, I will not
join in national bargaining . Here is my represent-
ative, and this is the man you have to deal with." I
believe the provision is a necessary one, and one
which will accomplish substantially wise purpos-
es.12
For some 20 years after its enactment, the Board's
view of the parameters of Section 8(b)(1)(B) substan-
tially coincided with both the legislative history and
12 93 Cong . Rec 3950, 3953-54 (1947).
13 See , e.g., 417 U.S. at 799, fn. 10, and accompanying text . In fact, up
until 1960 only I I cases had arisen under Sec. 8 (b)(l)(B). See brief of the
Board at p. 16 , N.L.R.B. v. Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers ofAmenca, 284 F.2d 893
(C.A. 2, 1960).
14 San Francisco-Oakland Mailers ' Union No 18, International Typo-
the statutory language.13 It is true, as the Supreme
Court has pointed out, that the Board's decision in
Oakland Mailers,14 decided in 1968, represented a
quantum leap from the Board's initial view of the
breadth of Section 8(b)(1)(B). That leap, however,
was never intended, in my view, to propel the Board
into the area of regulating the economic weaponry
available to a labor organization during a strike.
Rather it represented what is to my mind the
reasonable recognition that labor organizations
should not be permitted to accomplish indirectly that
which they were proscribed from accomplishing
directly. In the concrete terms of the decision in
Oakland Mailers, it represented no more than the
view that the respondent therein, by disciplining
various supervisor-members for the manner in which
they interpreted the contract, and by threatening to
discipline supervisor-members because of disagree-
ments involving contract interpretation and griev-
ance adjustment, had violated Section 8(b)(1)(B)
even though no direct pressure designed to seek the
supervisors' removal had been placed on the employ-
er. Significantly, especially in terms of the instant
case, we stated in distinguishing N.L.R.B. v. Allis-
Chalmers Manufacturing Co.: 15
[That] case involved a union's fining of its
members for crossing picket lines. The primary
relationship there affected was the one between the
union and its members, and the union's particular
objective-solidarity in strike action-was
deemed by the Supreme Court a legitimate area
for union concern in the circumstances involved.
In contrast, in the present case, the relationship
primarily affected is the one between the Union
and the Employer, since the underlying question
was the interpretation of the collective-bargaining
agreement between the parties.16
Oakland Mailers gave rise to a line of cases which
further expanded the reach of Section 8(b)(1)(B).17
Union discipline of supervisor-members became
proscribed not merely when the nature of the dispute
between union and supervisor involved the latter's
performance of particular collective-bargaining or
grievance adjustment functions but in all settings in
which the supervisor was engaged in any supervisory
or management function.
As the Supreme Court notes in Florida Power these
cases in large part foreshadowed the cases to come
graphical Union (Northwest Publications, Inc.), 172 NLRB 2173 (1%8).
15 388 U .S. 175 (1967).
16 172 NLRB at 2174 (emphasis supplied ). Why the perception that the
union's fining of a member for crossing picket lines primarily affected the
union-member relationship and not the union-employer relationship is cast
aside by the majority in this case will, apparently , remain a mystery.
17 See , e.g., 417 U.S. at 801, fn. 11, and cases cited in accompanying text.
NEW YORK TYPOGRAPHICAL UNION NO. 6 899
before the Court in Florida Power. They introduced,
primarily as justification for the expansion they
evinced, the concept of "loyalty" and the role it
played in the resolution of 8(b)( 1)(B) issues . Supervi-
sor-members could not, it was said, be disciplined for
the manner in which they performed supervisory
functions because such discipline "reasonably tends
to derogate from the supervisor-member's complete
loyalty to management when called on to serve as a
management representative." 18
I participated in several of the cases in the line
from Oakland Mailer to the cases discussed in Florida
Power. 19 It is not necessary, at this juncture, to
explore fully the effect Florida Power's treatment of
them has had. They are, in any event, distinguishable
from the instant case. In each and every such case
from Toledo Blade to Detroit Newspapers,20 the key to
the legality of the union's discipline was the nature of
the activity for which the supervisor was disciplined
or threatened with discipline, and in each and every
case the union's interest was not related in any way
whatsoever to its substantial right to demand
solidarity during a strike. In all such cases the
supervisor-members were disciplined for the particu-
lar manner in which they performed a management
function, not because they had failed to honor a
picket line, and , while the justification for the
Board's finding of violation in those cases can no
longer be buttressed by so-called "loyalty" consider-
ations, it is at least arguable that when a union's
discipline is clearly directed at the manner in which a
supervisor performs a function colorably related to
grievance adjustment (e.g., suspension of an employ-
ee) or collective bargaining (e.g., contract interpreta-
tion), such discipline may have an adverse effect on
the supervisor's future performance of those func-
tions. In all of those cases it could reasonably be
inferred that the union 's discipline was imposed
because of the manner in which a supervisor had
performed a collective-bargaining or grievance ad-
justment function, and was therefore properly pros-
cribed . However , in a strike situation, what the
supervisor does behind the picket line is, in the
ordinary case, and most assuredly in this one,
completely irrelevant. The union's interest is quite
simply to preserve strike solidarity. It is specious to
is Detroit Newspaper Printing Pressmen 's Union 13, International Printing
Pressmen and Assistants ' Union of North America, AFL-CIO (The Detroit
Free Press), 192 NLRB 106, 110 (1971).
Is See , e.g., id; Toledo Locals Nos. 15-P and 272 of the Lithographers and
Photoengravers International Union , AFL-CIO (The Toledo Blade Company,
Inc), 175 NLRB 1072 (1%9).
20 Id
21 There may be rare cases where , in point of fact , the union's real
interest is not the preservation of strike support but the discipline is couched
in such terms . Those cases will of course ultimately depend on the
substantiality of the facts tending to establish that the union was indeed
posturing and, in fact , directing the discipline toward the performance of an
think that the union cares an iota whether its
member (who seeks to retain the substantial benefit
his union membership creates) is adjusting a griev-
ance, operating a press, or engaged in any other
activity while his fellow members man a picket line.
It cares only that he is working during a strike.21 It is
even more specious to argue, as has the majority in
this case and others,22 that whatever the union's
interest, it is reasonable to conclude that the
supervisor will be affected in the future performance
of his grievance adjustment or collective-bargaining
duties. Can it seriously be argued that a supervisor
who is disciplined for working during a lawful strike
will relate that discipline to the manner in which he
performed the particular function he was engaged in
at the time the discipline was levied? Is not the only
reasonable conclusion the supervisor can draw the
conclusion that he has been disciplined simply for
working at all? In the future, when the supervisor
represents the employer at the bargaining table, is it
reasonable for the supervisor to fear subsequent
discipline if he faithfully represents management's
viewpoint because of his prior discipline for working
during a strike?
The reasonable answers to these questions high-
light the defects in the Board's position when it wrote
the latest chapter in the history of Section 8(b)(1)(B),
the cases involved in Florida Power. The Board's
decisions in Florida Power, 23 Illinois Bell, 24 and
Wisconsin Electric 25 represented the most profound
departure from the limited scope accorded Section
8(b)(1)(B) in its early years, for they extended Section
8(b)(1)(B) to proscribe not only union discipline
arising out of disputes arguably related to a griev-
ance adjustment or collective-bargaining function,
but also union discipline of supervisor-members who
acted as strikebreakers; i.e., union members who
crossed a lawful picket line to in part replace their
fellow union members honoring the line. The
discipline was violative, it was found, because the
supervisors were working at the behest or in the
interest of the employer and any other result would
mean the
... Employer could no longer count on the
complete and undivided loyalty of those it had
selected to act as its collective-bargaining agents
8(bx1)(B) function (e.g. selecting only those supervisors who have adjusted
grievances adverse to the union for disciplinary procedures).
22 See, e .g., Hammond Publishers, Inc, 216 NLRB No. 149 (1975).
23 193 NLRB 30 (1971).
24 192 NLRB 85 (1971)
25 192 NLRB 77 (1971 ). The petition for certiorari in Wisconsin Electric,
the companion case of Illinois Bell, was granted by the Supreme Court on
June 24, 1974, the date of the Court's decision in Florida Power.
Simultaneously , the judgment of the Seventh Circuit Court enforcing the
Board's order was vacated and remanded with instruction to consider the
case in light of the Supreme Court's decision in Florida Power. See 418 U.S.
at 902.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or to act for it in adjusting grievances.26
That refrain is echoed in the Administrative Law
Judge's Decision adopted by the majority here:
[T]he pressure extended by Respondent' s actions
on the Company's supervisor would tend to
inhibit him and impair his effectiveness as a loyal
supervisor in maintaining the Company's inter-
ests.
My reading of Florida Power, on the other hand,
compels the conclusion that the "loyalty" an employ-
er may demand from any supervisor is, during a
strike, no greater than the loyalty that may be
demanded by his union, at least for 8(b)(1)(B)
purposes. As the Court stated:
It is strenuously asserted , however, that to
permit a union to discipline supervisor -members
for performing rank-and-file work during an
economic strike will deprive the employer of the
full loyalty of those supervisors . Indeed, it is
precisely that concern that is reflected in these
and other recent decisions of the Board holding
that the statutory language "restrain or coerce
... an employer in the selection of his represent-
atives for the purposes of collective bargaining or
the adjustment of grievances" is not confined to
situations which the union's object is to force a
change in the identity of the employer 's represent-
atives, but may properly be read to encompass
any situation in which the union 's actions are
likely to deprive the employer of the undivided
loyalty of his supervisory employees... .
The concern expressed in this argument is a very
real one, but the problem is one that Congress
addressed, not through § 8(b)(1)(B), but through a
completely different legislative route.27
Similarly, when Florida Power is read against the
backdrop of the history of Section 8(b)(1)(B), one
would think my colleagues would at least consider
the following statement:
Nowhere in the legislative history is there to be
found any implication that Congress sought to
extend protection to the employer from union
restraint or coercion when engaged in any activity
other than the selection of its representatives for
the purposes of collective bargaining and griev-
ance adjustment . [Emphasis in original.]28
as 192 NLRB at 78.
27 417 U.S. at 805-807 (emphasis supplied).
28 Id at 804.
My reading of Florida Power compels the further
conclusion that the operative test in establishing a
violation of Section 8(b)(1)(B) is whether it is
reasonable to conclude that the union's discipline
may adversely affect the disciplined supervisors'
future performance of two distinct functions, griev-
ance adjustment and collective-bargaining represent-
ation. The majority says it will because (a) the Board
said so in Hammond Publishers and (b) the Board
says so now.
In Hammond Publishers, the purported underpin-
ning of the majority's analysis herein, a Board
majority concluded that because the Supreme Court
had "assum[ed] without deciding that Oakland-Mail-
ers' fell within the outer limits of its test, the
Supreme Court has implicitly recognized that an
adverse carryover effect may result where the
disciplined supervisor had been engaged in the
activity of contract interpretation." This "r-
ecognition," the Hammond majority reasoned, led to
the conclusion that when the supervisor engaged
only in supervisory duties there was "clearly a
violation" in the discipline because "it is reasonably
likely that an adverse effect will carry over to the
supervisor's performance of his 8(b)(1)(B) duties
where he is disciplined after having engaged only in
the performance of supervisory duties." The Ham-
mond "rationale" reappears here:
We believe that the adverse future effect which
the Supreme Court referred to as violative in
Florida Power is as likely to occur, regardless of a
union's professed reasons or intent, if a supervi-
sor-member is disciplined after having performed
only his normal supervisory duties or if he is
disciplined after having engaged in contract
interpretation [citing Oakland Mailers]. In the
latter case it is the supervisor's future manner of
contract interpretation which is likely to be
influenced and in the former case it is the
supervisor's actual future performance of supervi-
sory duties , including grievance adjustment or
collective bargaining, which is likely to be
influenced.
Several flaws come immediately to mind. First, the
majority has engaged in a semantic gambit. The
supervisors in Oakland Mailers were not disciplined,
as the majority suggests , "after having engaged in
contract interpretation" but rather `for allegedly
assigning bargaining unit work in violation of the
collective bargaining agreement." 29 But note the
majority must use the word "after" to draw its
sa Id at 800. See also the Board 's decision : "Specifically, Foreman Cox
and Assistant Foreman Thompson and Fraser were cited to appear before
Respondent's executive committee which had the power to discipline union
NEW YORK TYPOGRAPHICAL UNION NO. 6 901
alleged parallel with the instant case because Super-
visor Flood was clearly not disciplined `for having
engaged in supervisory duties ." Secondly, the super-
visors in Florida Power were also disciplined "after
having engaged in supervisory duties." But what
made the discipline in Florida Power not violative
was the fact that the supervisors therein were not
disciplined for that reason but rather because they had
also performed bargaining unit work; they knew that
to be the reason and with that knowledge there could
be no argument that their performance of the specific
8(b)(1)(B) functions could reasonably be expected to
be influenced . Third, an effect on one's performance
of supervisory duties does not constitute a violation of
Section 8(b)(1)(B), as I read Florida Power, if the
effect is not also on one's performance of the specific
functions of grievance adjustment or collective-bar-
gaining representation.30
And so, having posed the critical issue , namely,
whether an adverse effect is "reasonably likely" to
result from the imposition of the discipline, the
majority again responds affirmatively but without
supporting reasons.
In Oakland Mailers it was "reasonably likely"
because in the future the supervisor would again be
engaged in the very same activity for which he was
disciplined previously - that the supervisor might
feel he could, so to speak , be burned twice comports
with a general understanding of human nature. But
when the supervisor fined for crossing a picket line is
adjusting a grievance several weeks later he is not
performing the same function for which he was
previously fined because he was not fined for
adjusting agrievance or anything related thereto. He
was fined for crossing the picket line. The reasonable
conclusion for the supervisor to draw is that if, once
again in the future, he crosses a lawful picket line, he
will, once again , be disciplined . The majority cannot
be heard to argue that it will be difficult for the
supervisor-member to ascribe the discipline to his
crossing the line as opposed to his potential to adjust
grievances • or to represent the employer at the
bargaining table . It is indeed "unlikely" and assured-
ly "unreasonable" for a supervisor , who is, as
Supervisor Flood was herein , disciplined for "conti-
nu[ing ] to work at The Daily Racing Form . . . even
though a picket line of New York Typographical
Union No. 6 has been posted at that site," to
members . The citations involved certain alleged violations by the individu-
als of the collective-bargaining agreement .... There was, in addition,
evidence of a number of threats made by Respondent 's agents to Foreman
Cox and Assistant Foreman Thompson and Bowfin . These threats also
arose over disagreements involving contract interpretations or grievance
adjustment .... ' 172 NLRB 2173 (1968).
30 Unless my colleagues are still of the view that Florida Power can
further be dismissed as it affects our prior rule that all supervisors are
necessarily within the ambit of Sec. 8(bXIXB). See, e.g., Operating
Engineers, Local No. 501(Anhenrer Busch, Inc.), 199 NLRB 551 (1972).
speculate that the manner in which he performed
8(b)(1)(B) functions lay at the root of his difficulty or
that the manner in which he performs such functions
in the future need be altered. Finally, for a variety of
reasons, I do not believe a violation of Section
8(b)(l)(B) can be posited on the theory that to coerce
the supervisor into siding with the union (or paying
the penalty of loss of union benefits) constitutes an
impermissible effect on the supervisor's future
performance of grievance adjustment or collective-
bargaining functions because it deprives the employ-
er of all the supervisor's services. First, while the
dilemma faced by the supervisor is one to which I am
sympathetic, it is a plain fact of life that the
supervisor cannot reasonably expect to serve two
masters without incurring obligations to both. In any
event, as noted earlier, the supervisor's dilemma is
not the focus of our inquiry because of the absence of
statutory protections accorded him. Secondly, the
employer's dilemma, namely, the possibility that the
supervisor-member may opt to resolve the conflict of
loyalty on the side of his union and thereby deprive
the employer of his services, is, in the context of
alternatives afforded the employer, a self-inflicted
dilemma. Like the supervisor, the employer cannot
reasonably expect that the benefits gained at the
bargaining table resulting from its concession to
allow supervisors to remain union members are
benefits without a price.31 Having been afforded the
opportunity to refuse to hire union members as
supervisors, the opportunity to discharge supervisors
for involvement in union affairs, the opportunity to
incorporate into a collective-bargaining agreement
the permissible extent of a supervisor-member's
functioning during a strike and, indeed, the opportu-
nity to provide additional incentives making it
worthwhile for all union members to forfeit union
benefits upon taking supervisory positions, the
employer, having forsaken such opportunities, can-
not now be heard to argue that the union is affecting
its selection of the very grievance adjustment or
collective-bargaining representative it permits to
retain union membership.
Because the Board majority continues to ignore the
fundamental questions posed by its "relatively
straightforward" approach,32 because the Board
majority is, in my view, still wedded to preserving the
remnants of its pre-Florida Power intrusion into the
31 For example, in Illinois Bell the company agreed to drop its objections
to the inclusion of certain foremen in the collective -bargaining agreement in
return for a jurisdictional concession by the union . See Vol. II, p. 61,
Appendix to the briefs before the Supreme Court in Florida Power.
Furthermore , employers will often be the initiator of attempts to include
supervisors in the contract 's coverage and thereby not face the need to
recompense would be supervisors for the substantial loss of benefits forced
resignation from the union would otherwise necessitate.
32 The language comes from the majority opinion in Hammond
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area of legitimate and substantial intraunion inter-
ests, and because I believe union discipline of all
members for conduct related to and during a strike
remains unregulated by Congress33 and is both
outside the line of cases commencing with Oakland
Mailers and within the line of cases beginning with
the Supreme Court's decision in Allis-Chalmers,34 I
reject the majority's purported analysis.
ss But see fn. 11, supra.
s{ I know of no case not since overruled, and the majority cites none,
wherein a violation of Sec . 8(b)(lXB) has been found in a union's discipline
of a supervisor for crossing a picket line.
If, as the Court said in Allis-Chalmers, the union
has a substantial interest in disciplining strike-
breakers , that analysis ought not to be altered
simply because they happen to be in supervisory
positions . The thrust against the union as an
institution and against its strike function is just as
direct and effective.35
ss Gould, Some Limitations Upon Union Discipline Under the National
Labor Relations Act: The Radiations of Allis-Chalmers, 1970 Duke L.J. 1067,
1128-29.