Silver Bay Local Union No. 962

National Labor Relations Board - Board Decisions

Dec 9, 1974

215 N.L.R.B. 414 (N.L.R.B. 1974)

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Silver Bay Local Union No. 962 , International Broth-
erhood of Pulp, Sulphite and Paper Mill Workers,
AFL-CIO (Alaska Lumber & Pulp Co., Inc,) and
Earl J. Niesen . Case 19-CB-1700
December 9, 1974
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On August 7, 1972, the National Labor Relations
Board issued its Decision and Order in the above-enti-
tled proceeding,' finding that the Respondent violated
Section 8(b)(1)(B) of the National Labor Relations Act,
as amended, by demanding, upon threat of strike ac-
tion, that Supervisor Niesen be removed from his
supervisory position. The Board ordered that the Re-
spondent cease and desist therefrom and take certain
affirmative action, including payment of backpay to
Niesen, to remedy the unfair labor practice. Thereafter,
on May 22, 1974, the United States Court of Appeals
for the Ninth Circuit issued its opinion enforcing the
Board's Order in all parts except for the backpay
remedy.' The court remanded the case to the Board
for explication of the Board 's rationale in support of
requiring backpay for supervisors terminated as a re-
sult of a violation of Section 8(b)(1)(B) of the Act and
noted that such award appeared to be a departure from
Board precedent.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Having accepted the court's remand herein, we must
express our respectful disagreement with the court's
statement that awarding backpay to a supervisor under
the circumstances of this case is a "departure from a
consistently followed Board policy of not making such
awards." While we have not previously articulated the
rationale for such backpay awards, ample Board prece-
dent, supported by the rulings of the District of Co-
lumbia and Seventh Circuit Courts of Appeals, exists
for providing such a remedy.' Moreover, the Board's
"broad discretionary" power in fashioning remedies
has been acknowledged by the Supreme Court. In
N.L.R.B. v. Seven - Up Bottling Company of Miami,
Inc.,' the Court stated : "[Section 10(c)] charges the
Board with the task of devising remedies to effectuate
the policies of the Act. . . . In fashioning remedies to
undo the effects of violations of the Act, the Board
must draw on enlightenment gained from experience."
Further, the Court, quoting from its opinion in Virginia
Electric & Power Co. v. N..L.R. B.,6 said , "When the
Board, `in the exercise of its informed discretion,'
makes an order or restoration by way of back pay, the
order `should stand unless it can be shown that the
order is a patent attempt to achieve ends other than
those which can fairly be said to effectuate the policies
of the Act.'
The requirements of backpay for a supervisor ter-
minated as a result of a violation of Section 8(b)(1)(B)
is designed to implement the policies of the Act. It is
well established that Section 8 (b)(1)(B) of the Act re-
serves to an employer the right to have "an uncoerced
group of supervisors whose loyalty to him has not been
prejudiced and whose substantial supervisory authority
and day-to -day contact with and supervision of the
employees under them make them natural choices for
selection as [the employer 's] representatives ."' This
right must remain unimpaired in order for those super-
visors to effectively serve as the employer 's collective-
bargaining and grievance representatives . In this case
we have found that Niesen was a supervisor who pos-
sessed the authority to adjust employee grievances.
Clearly, a supervisor who has suffered a period of em-
ployment loss and resulting financial loss because of the
unlawful efforts of a hostile union will certainly be
aware of the dangers of again displeasing the union.
Similarly , supervisors who remained on the employer's
payroll and observed their colleague suffer such a loss
will undoubtedly be intimidated by the threat of such
loss if they incur the displeasure of the union.
Where, as here, a union's illegal conduct creates an
atmosphere of intimidation and has a prejudicial im-
pact upon the loyalty of a supervisor , only a make-
whole order requiring reinstatement and backpay for
the discharged supervisor will remedy the unfair labor
practice by undoing or counteracting it to the max-
imum possible extent and thus restore the situation, as
' 198 NLRB 751.
2 N.L.R.B. v. Silver Bay Local Union No. 962, international Brotherhood
of Pulp, Sulphite & Paper Mills Workers, AFL-CIO, 498 F.2d 26.
1 On July 25, 1974, the Board notified the parties of its acceptance of the
remand of the court of appeals . Thereafter , the General Counsel and the
Respondent filed statements of position on remand . The Respondent's re-
quest for oral argument is hereby denied as the record , including the briefs,
adequately presents the issues and positions of the parties.
4 Local Union No. 841, International Union of Operating Engineers,
AFL-CIO (M. L. Arnold Steel Company), 203 NLRB 429 (1973), enfd. 492
F.2d 1249 (C.A. 7, 1974); Laborers'International Union of North America,
AFL-CIO, Local 478 (International Builders of Florida, Inc.), 204 NLRB
357 (1973), enfd . percuriam 503 F .2d 192 (C.A.D.C., 1974); Local No. 423,
Laborers' International Union of North America, AFL-CIO (Mansfield
Flooring Co., Inc.), 195 NLRB 241 (1972), enfd . percuriam478 (C.A.D.C.,
1973); Local Union No. 101, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO (Fruehauf-Fischbach Automation), 191 NLRB 577
(1971).
5 344 U.S. 344, 346-347 (1953).
6 319 U.S. 533, 540 (1943).
r International Association of Heat & Frost Insulators & Asbestos Work-
ers, Local 127 (Cork Insulating Company of Wisconsin, Inc.), 189 NLRB
854 (1971).
215 NLRB No. 79
SILVER BAY LOCAL UNION NO. 962
nearly as possible, to that which would have existed but
for such illegal conduct. If the effect of the Union's
misconduct herein is to be meaningfully erased, and if
the reinstatement of Supervisor Niesen is to restore to
the Employer an effective representative who will be
able to serve the Employer without fear that future
loyalty to the Employer will again cause economic as
well as employment loss, such an effective restoration
415
can be achieved only by requiring that Respondent
Union make whole Supervisor Niesen for the loss of
pay he suffered as a result of Respondent's illegal con-
duct.
Accordingly, we reaffirm our August 7, 1972, Order
in the above-entitled proceeding.'
8 198 NLRB 751 (1972).