AMERICAN BROADCASTING COS. v. WRITERS GUILD(1978)

No. 76-1121

Argued: December 5, 1977Decided: June 21, 1978

Respondent union, which represents persons hired to perform writing functions for motion picture and television films (hereinafter respondent), had collective-bargaining contracts with a producers association (petitioner in No. 76-1153) and three television networks (petitioners in No. 76-1121). Among respondent’s members are a large number of persons (so-called “hyphenates”) who are engaged by petitioners primarily to perform executive and supervisory functions. Though the hyphenates, who include various categories of producers, directors, and story editors, have minor writing tasks, these are not covered in the collective-bargaining contracts; only if the hyphenates are employed to perform additional writing services are the rates therefore governed by those contracts. In connection with their regular, primary duties many of the hyphenates are represented by unions other than respondent. In anticipation of an economic strike upon expiration of its contracts with petitioners, respondent distributed strike rules to its members, including the hyphenates (to whom the rules were made expressly applicable). The rules included a prohibition against crossing a picket line established by respondent at any entrance of a struck premise. After the strike began, petitioners informed the hyphenates that they were expected to continue their regular supervisory functions, though they would not be asked to perform writing duties covered by the union contract. Thereafter respondent notified a large number of the hyphenates who had returned to work that they had violated one or more of the strike rules, including in many instances the ban on crossing a picket line. After ensuing disciplinary proceedings (at which there was no proof that hyphenates had performed any work covered by the recently expired [437 U.S. 411, 412] contracts) respondent imposed various penalties on the hyphenates. Meanwhile the association and network petitioners filed charges against respondent for allegedly violating 8 (b) (1) (B) of the National Labor Relations Act, which 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. After extensive hearings, the Administrative Law Judge made findings that the hyphenates’ regular supervisory duties included the performance of grievance adjustment; that the employer insisted that hyphenates return to work, but only to perform supervisory, not rank-and-file, duties; and that the hyphenates who reported did only supervisory work and had the authority to adjust grievances, which they did when the occasion arose. He found that 8 (b) (1) (B) had been violated because, by keeping hyphenates from work, the union had deprived the employer of fully effective 8 (b) (1) (B) representatives. The National Labor Relations Board (NLRB) adopted these findings and conclusions, found that the union’s disciplinary action was an unfair labor practice under that provision, and issued a remedial order against respondent. The Court of Appeals denied enforcement. Held: Respondent’s actions against the hyphenates violated 8 (b) (1) (B). Pp. 429-438.

(a) In ruling upon a 8 (b) (1) (B) charge growing out of union discipline of a supervisory member who elects to work during a strike, the NLRB must inquire whether the sanction may adversely affect the supervisor’s performance of his collective-bargaining or grievance-adjustment tasks and thereby coerce or restrain the employer contrary to that provision. See Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790 . Pp. 429-431.

(b) The NLRB’s findings were based on substantial evidence that the hyphenates were coerced or restrained from reporting to work; that the employer was thereby deprived of the opportunity to choose particular supervisors as his collective-bargaining or his grievance-adjustment representatives during the strike; and that as to the hyphenates who reported to work there was adequate basis for concluding that the discipline would adversely affect the performance of their grievance-adjustment duties either during or after the strike. Moreover, since as the evidence showed, the union’s policy was not to permit a member to resign during a strike and for six months thereafter, the employer could not free a supervisor from further threats of union discipline by requiring him to leave the union. Pp. 431-437.

547 F.2d 159, reversed. [437 U.S. 411, 413]

WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 438.

Norton J. Come reargued the cause for petitioner in No. 76-1162. With him on the briefs were Solicitor General McCree, John S. Irving, Carl L. Taylor, and John G. Elligers. Harry J. Keaton reargued the cause and filed a brief for petitioner in No. 76-1153. Charles G. Bakaly reargued the cause for petitioners in No. 76-1121. With him on the briefs was Gordon E. Krischer.

Julius Reich reargued the cause for respondent Writers Guild of America, West, Inc., in all cases. With him on the briefs was Paul P. Selvin.

Laurence Gold reargued the cause for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. With him on the brief was J. Albert Woll.

MR. JUSTICE WHITE delivered the opinion of the Court.

The issue in this litigation is whether a labor union commits an unfair labor practice when it disciplines a member who is a supervisory employee for crossing the union’s picket line during a strike and performing his regular supervisory duties, which include the adjustment of grievances.

I

Respondent Writers Guild of America, West, Inc. (hereafter respondent), represents persons hired to perform writing functions for employers engaged in the production of motion pictures and television films, and in 1973 had contracts with certain petitioners that were about to expire. Petitioner in No. 76-1153 is the Association of Motion Picture and Television Producers, Inc., whose members are engaged in the production of motion pictures and television films. Petitioner [437 U.S. 411, 414] represents its members in the negotiation and administration of collective-bargaining contracts. The three television networks, NBC, CBS, and ABC, petitioners in No. 76-1121, are also engaged in the production of television films and negotiate and administer collective-bargaining contracts. In March 1973, respondent engaged in a strike against both of these groups of petitioners, picketed the various premises, and issued strike rules that it enforced against its own members. It is this action which gave rise to this case.

Among respondent’s members are a substantial number of persons who were engaged by petitioners primarily to perform executive and supervisory functions including the selection and direction of writers and including certain limited writing duties. These persons are referred to as “hyphenates” and include various categories of producers, directors, and story editors. 1 Although the primary function of hyphenates is not to write, they do perform minor writing tasks (referred to in the contract as “A to H” functions) that are an integral part of their primary duties and that expressly are not covered by the contracts between petitioners and respondent. 2 [437 U.S. 411, 415] Only in the event hyphenates are assigned or employed by petitioners to perform additional writing services are the rates for such services governed by the collective-bargaining contracts with respondent. In connection with the performance of their regular, primary duties, which, with the limited exception noted, do not include writing services, many, but not all, hyphenates are represented by labor organizations other than respondent. Some of the contracts between these other organizations and petitioners contained no-strike clauses when the events involved herein occurred. Certain hyphenates were pressured by these other labor organizations to honor these no-strike pledges by reporting to work.

Respondent, meanwhile, was preparing its own kinds of pressure to keep the hyphenates from working. In preparation for the strike, respondent issued and distributed to its members, including the hyphenates, some 31 strike rules. The rules, among other things, forbade any act prejudicial to the welfare of respondent such as conduct tending to defeat a strike or to weaken its effectiveness (Rule 1); prohibited all members “from crossing a picket line which is established by the Guild at any entrance” of a struck premises (Rule 12); forbade the entry of any struck premises for certain purposes and required notice to respondent when entry was made for other purposes (Rule 13); 3 and obliged members to accept picket duty when assigned by respondent (Rule 28). Another [437 U.S. 411, 416] rule (Rule 30), rescinded midway in the strike, provided that no member could work with any individual, including the writer-executive, who had violated union strike rules. 4 The strike rules’ applicability to hyphenates was made clear in Rule 24: “All members, regardless of the capacity in which they are working, are bound by all strike rules and regulations in the same manner and to the same extent as members who confine their efforts to writing.” The rules were widely publicized, and respondent repeatedly emphasized, orally and in writing, that it would enforce the rules against hyphenates. Nor could a hyphenate escape those strictures by resigning, for it was respondent’s policy, once the strike was under way, [437 U.S. 411, 417] not to permit withdrawal from the union, then or for six months following the completion of negotiations.

Petitioners, however, informed the hyphenates that petitioners’ operations were continuing and that the hyphenates were expected to report for work and perform their regular supervisory functions. Petitioners were careful to assure that hyphenates would not be requested to perform writing duties covered by the union contract.

Some hyphenates went to work, informing their employers, as respondent knew, that they would perform only their primary duties as producer, director, or story editor. Others refrained from reporting for work. Between April 6 and November 8, 1973, respondent notified more than 30 hyphenates who returned to work that they had been charged with violating one or more of the strike rules. Most often, the charges related to Rules 1, 12, and 13. 5 Various disciplinary trials ensued. In these proceedings, the evidence was that the hyphenates who returned to duty performed only the normal functions of the supervisory positions for which they were employed. There was no proof that hyphenates performed any work covered by the recently terminated contracts between petitioners and respondent. As the Administrative Law Judge observed, respondent “for the most part professed little or no interest in what kind of work was done during the strike” [437 U.S. 411, 418] by the hyphenates who chose to work. 6 Between June 25 and September 28, 1973, various penalties were imposed by respondent as the result of these disciplinary proceedings. The penalties included expulsions, suspensions, and quite substantial fines. 7

Meanwhile, the Association and network petitioners had filed unfair labor practice charges, and the General Counsel of the National Labor Relations Board had issued complaints against respondent charging violations of 8 (b) (1) (B) of the National Labor Relations Act, 61 Stat. 141, 29 U.S.C. 158 (b) (1) (B), which provides that “[i]t shall be 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.” Extensive hearings followed, the Administrative [437 U.S. 411, 419] Law Judge ultimately recommending that the charges be sustained and making findings and conclusions that were adopted by the National Labor Relations Board.

These findings included an analysis of the primary functions for which the hyphenates were employed. It was concluded that all of the producers, directors, and story editors involved were employed to perform supervisory functions and were supervisors within the meaning of 2 (11) of the Act, 29 U.S.C. 152 (11). It was also found that the hyphenates in each of these categories regularly had the authority and the task of adjusting grievances. 8 “It is clear, as has [437 U.S. 411, 420] been found, that the normal performance of the hyphenates’ primary functions involves the adjustment of employee grievances, and, in the case of producers on distant location, to engage in collective bargaining with labor organizations.” 9 Furthermore, the record indicated that “during the strike, where the situation arose, the hyphenates dealt with grievances of employees who worked during the strike, or, in any event, were available to deal with such matters in their normal capacities when and if such grievances arose.” 10 It was also found that the hyphenates who reported for duty during the strike performed only their primary functions and did not engage in writing or do any work that had been covered by respondent’s collective-bargaining contract. Significantly, none of the hyphenates was charged with violating the strike rule forbidding the performance of writing functions for a struck employer. During the disciplinary hearings, respondent was “not concerned with what work the hyphenates did when working during the strike,” 11 although it would have been quite easy to determine these facts from testimony of union writers about that work was found completed upon their return. [437 U.S. 411, 421]

The ultimate factual conclusions of the Administrative Law Judge were that the hyphenates were supervisors “selected by their employers to adjust grievances”; 12 that in issuing strike rules and engaging in other conduct designed to compel the hyphenates to refrain from working respondent had “restrained and coerced the hyphenates from performing managerial and supervisory services for their employers during the strike, including the adjustment of employee grievances and participation in collective bargaining,” and had thus “coerced and restrained those employers in the selection of representatives for collective bargaining and the adjustment of grievances within the meaning of Section 8 (b) (1) (B)”; 13 and that by charging, trying, and disciplining the hyphenates who chose to work and who, the Administrative Law Judge found, “performed managerial and supervisory functions including the adjustment of grievances on collective bargaining as required, and did not perform rank and file work,” respondent “further coerced and restrained the employers” within the meaning of 8 (b) (1) (B). 14

In arriving at these conclusions, the Administrative Law Judge rejected the claim that Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790 (1974) (FP&L), required a contrary result, saying that respondent’s conduct “violated the plain meaning of the statute without the necessity of resort to statutory exegesis.” 15

On exceptions and supporting briefs, a majority of a three-member panel of the Board, except in one respect, 16 adopted as its own the rulings, findings, and conclusions of the Administrative [437 U.S. 411, 422] Law Judge. The Board also reasoned that FP&L, which involved supervisors who performed bargaining-unit work, did not extend to cases where union discipline was imposed upon supervisors who performed only their ordinary supervisorial functions (including the adjustment of grievances). The Board relied upon two of its cases decided subsequent to FP&L: Chicago Typographical Union No. 16 (Hammond Publishers, Inc.), 216 N. L. R. B. 903 (1975); New York Typographical Union No. 6, International Typographical Union, AFL-CIO (Daily Racing Form, a subsidiary of Triangle Publishers, Inc.), 216 N. L. R. B. 896 (1975).

On application to review by the networks and the Board’s application to enforce, a divided panel of the Court of Appeals for the Second Circuit denied enforcement in a brief per curiam opinion indicating that, like the dissenting member of the Board, it considered FP&L, supra, to bar the results reached by the Board in this case. 547 F.2d 159 (1976). We granted the petitions for certiorari of the Board as well as of the Association and the networks because of an apparent conflict between the decision below and decisions in other Courts of Appeals and because of the recurring nature of the issue. 17 430 U.S. 982 (1977).

II

As the Court has set out in greater detail in its comprehensive review of 8 (b) (1) (B) in FP&L, the prohibition against restraining or coercing an employer in the selection of his bargaining representative was, until 1968, applied primarily to pressures exerted by the union directly upon the employer [437 U.S. 411, 423] to force him into a multiemployer bargaining unit or otherwise to dictate or control the choice of his representative for the purpose of collective bargaining or adjusting grievances in the course of administering an existing contract. In San Francisco-Oakland Mailers’ Union No. 18, International Typographical Union (Northwest Publications, Inc.), 172 N. L. R. B. 2173 (1968), however, the Board applied the section to prohibit union discipline of one of its member-supervisors for the manner in which he had performed his supervisory task of grievance adjustment. Although the union “sought the substitution of attitudes rather than persons, and may have exerted its pressures upon the [employer] by indirect rather than direct means,” the ultimate fact was that the pressure interfered with the employer’s control over his representative. “Realistically, the Employer would have to replace its foremen or face de facto nonrepresentation by them.” Oakland Mailers, supra, at 2173.

The application of the section to indirect coercion of employers through pressure applied to supervisory personnel continued to evolve until the FP&L and Illinois Bell 18 cases reached the Court of Appeals for the District of Columbia Circuit and then this Court. In each of those cases, the union disciplined supervisor-members who had performed rank-and-file work behind a union picket line during a strike. In a companion case to Illinois Bell, 19 upon which Illinois Bell explicitly relied, 20 the Board found an infraction of 8 (b) [437 U.S. 411, 424] (1) (B), broadly construing its purpose “to assure to the employer that its selected collective-bargaining representatives will be completely faithful to its desires” and holding that this could not be achieved “if the union has an effective method, union disciplinary action, by which it can pressure such representatives to deviate from the interests of the employer.” 21 In like fashion, in FP&L, the Board held that fining supervisors for doing rank-and-file work during a work stoppage “struck at the loyalty an employer should be able to expect from its representatives for the adjustment of grievances and therefore restrained and coerced employers in their selection of such representatives.” 22

The Court of Appeals overturned both decisions of the Board, holding that although the section could be properly applied to union efforts to discipline supervisors for their performance as collective-bargaining or grievance-adjustment representatives, it could not reasonably be applied to prohibit union discipline of supervisors crossing picket lines to perform bargaining-unit work: “When a supervisor forsakes his supervisory role to do rank-and-file work ordinarily the domain of nonsupervisory employees, he is no longer acting as a management representative and no longer merits any immunity from discipline.” 159 U.S. App. D.C., at 286, 487 F.2d, at 1157.

This Court affirmed the judgment of the Court of Appeals:

[437 U.S. 411, 425]

The Court thus rejected the claim that “even if the effect of [union] discipline did not carry over to the performance of the supervisor’s grievance adjustment or collective bargaining functions,” it was enough to show that the result would be “to deprive the employer of the full allegiance of, and control over, a representative he has selected for grievance adjustment or collective bargaining purposes.” Id., at 807. Assuming without deciding that the Board’s decision in Oakland Mailers fell within the outer reaches of 8 (b) (1) (B), the Court concluded that the Illinois Bell and FP&L decisions did not, because it was “certain that these supervisors were not engaged in collective bargaining or grievance adjustment, or in any activities related thereto, when they crossed union picket lines during an economic strike to engage in rank-and-file struck work.” 417 U.S., at 805 .

Subsequent to FP&L, in applying 8 (b) (1) (B) to cases involving union discipline of supervisor-members, the Board directed its attention, as it understood FP&L to require, to the question whether the discipline may adversely affect the supervisor’s conduct in performing his grievance-adjustment or collective-bargaining duties on behalf of the employer. In Hammond Publishers, supra, and Triangle Publishers, supra, the Board held that it was an unfair practice under 8 (b) (1) (B) for a union to discipline a supervisor-member whose regular duties included the adjustment of grievances for crossing a picket line to perform his regular functions during a strike. See also Wisconsin River Valley Dist. Council (Skippy Enterprises, Inc.), 218 N. L. R. B. 1063 (1975). These cases rested on the Board’s conclusion that such discipline imposed on the supervisor would have a “carryover” effect and would influence the supervisor in the performance of his adjustment functions after the strike and hence interfere with and coerce the employer in the choice of his grievance representative. See Triangle, 216 N. L. R. B., at 897; Hammond, 216 N. L. R. B., at 904. The Triangle decision [437 U.S. 411, 426] was not challenged in the courts, but Hammond was enforced, 176 U.S. App. D.C. 240, 539 F.2d 242 (1976), as was Skippy Enterprises, 532 F.2d 47 (CA7 1976). 23

III

This case was tried to the Administrative Law Judge prior to the issuance of this Court’s decision in FP&L, but hearings continued and the record was not closed until after the Court of Appeals’ final decision in that case; and the FP&L opinion here was handed down on June 24, 1974, some three months before the Administrative Law Judge issued his recommended decision. As we have already indicated, the findings of the Administrative Law Judge, accepted by the Board, were that the hyphenates’ regular supervisory duties included the performance of grievance adjustment; that the employer insisted that hyphenates return to work but only to perform supervisory, not rank-and-file, duties; 24 and that the hyphenates who reported did only supervisory work and had the [437 U.S. 411, 427] authority to adjust grievances which they did when the occasion arose. 25 After analyzing this Court’s pronouncements in FP&L, the Administrative Law Judge rejected the claim that union discipline of a supervisor-member for working during a strike can never be a 8 (b) (1) (B) violation and went on to hold that under the test prescribed by FP&L, there was a violation here. His conclusions were that through its strike rules and other pressures “designed to compel such hyphenates from going to work during the strike,” regardless of the tasks that they might perform, the union had “restrained and coerced the hyphenates from performing managerial and supervisory services for their employers during the strike, including the adjustment of employee grievances and participation in collective bargaining . . . .” 26 By “coercing or restraining” hyphenates from going in to do their normal work, which included grievance adjustment, or in the case of producers, on distant location, the task of collective bargaining, the union had “actually coerced and restrained their employers from selecting those persons as the employers’ representatives for the adjustment of grievances and for collective bargaining during the strike.” 27 He also concluded that by charging, trying, and disciplining those hyphenates who did report for work and by “threatening to blacklist in perpetuity . . . [and] to drive [them] out of the industry,” 28 the union had coerced and restrained these hyphenates from performing their regular [437 U.S. 411, 428] duties in the normal manner, including the adjustment of grievances and collective bargaining. The employer, in turn, had been further coerced and restrained in the free selection of those hyphenates as his collective-bargaining and grievance-adjustment representatives.

The Administrative Law Judge thus found the section violated according to the test as elaborated in FP&L because, by keeping hyphenates from work, the union had deprived the employer of any opportunity to select those particular supervisors as his grievance-adjusting or collective-bargaining representatives 29 and because disciplining and threatening those supervisors who had reported for duty deprived the employer of fully effective 8 (b) (1) (B) representatives. Although [437 U.S. 411, 429] the Board embraced these findings and conclusions of the Administrative Law Judge, 30 it also found that the disciplinary action taken by the union against those hyphenates who crossed the picket line was an unfair practice under 8 (b) (1) (B) as that section had been construed in Hammond and Triangle and that threats of such illegal discipline against others also violated the section.

IV

We cannot agree with what appears to be the fundamental position of the Court of Appeals and the union that under 8 (b) (1) (B), as the section was construed in FP&L, it is never an unfair practice for a union to discipline a supervisor-member for working during a strike, regardless of the work that he may perform behind the picket line. The opinion in FP&L expressly refrained from questioning Oakland Mailers or the proposition that an employer could be coerced or restrained within the meaning of 8 (b) (1) (B) not only by picketing or other direct actions aimed at him but also by debilitating discipline imposed on his collective-bargaining or grievance-adjustment representative. Indeed, after focusing on the purposes of the section, the Court in FP&L delineated the boundaries of when that “carryover” effect would violate 8 (b) (1) (B): whenever such discipline may adversely affect the supervisor’s conduct in his capacity as a grievance adjustor or collective bargainer. In these situations – that is, when such impact might be felt – the employer would be deprived of the full services of his representatives and hence would be restrained and coerced in his selection of those representatives.

Furthermore, because this was the test prescribed and employed by the Court to adjudicate the very situation where [437 U.S. 411, 430] union discipline was imposed for crossing a picket line, it is unlikely that the Court anticipated that the test could never be satisfied in such disciplinary cases, that it could never be true that the sanction could or would affect the supervisor’s collective-bargaining or grievance-adjustment functions, or that the employer in such circumstances could never be restrained or coerced in the selection of his representatives.

This is not to say that every effort by a union to discipline a supervisor for crossing a picket line to do supervisory rather than rank-and-file work would satisfy the standards specified by FP&L, or that on facts present here there is necessarily a violation of 8 (b) (1) (B). But we are of the view that the Board correctly understood FP&L to mean that in ruling upon a 8 (b) (1) (B) charge growing out of union discipline of a supervisory member who elects to work during a strike, it may – indeed, it must – inquire whether the sanction may adversely affect the supervisor’s performance of his collective-bargaining or grievance-adjustment tasks and thereby coerce or restrain the employer contrary to 8 (b) (1) (B). The Board addressed those issues here, and if its ultimate factual conclusions in this regard are capable of withstanding judicial review, it seems to us that its construction of the section fairly recognizes and respects the outer boundaries established by FP&L, and represents an “acceptable reading of the statutory language and a reasonable implementation of the purposes of the relevant statutory sections.” NLRB v. Iron Workers, 434 U.S. 335, 341 (1978).

Respondent objects that this construction of the Act impermissibly intrudes on the union’s right to resort to economic sanctions during a strike. However, an employer also has economic rights during a strike, and the statute declares that, in the unrestrained freedom to select a grievance-adjustment and collective-bargaining representative, the employer’s rights dominate. Ample leeway is already accorded to a union in permitting it to discipline any member, even a supervisor, for [437 U.S. 411, 431] performing struck work – to carry that power over to the case of purely supervisory work is an inappropriate extension and interference with the employer’s prerogative. The Board has so ruled, and as the Court has often observed, “`[t]he function of striking [the] balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.'” NLRB v. Iron Workers, supra, at 350, quoting NLRB v. Truck Drivers, 353 U.S. 87 . 96 (1957); NLRB v. Insurance Agents, 361 U.S. 477, 499 (1960). Here, in adjudicating as it did the intertwining interests of union, employer, and supervisor-member during an economic strike, we cannot say that the Board has moved into a new area of regulation not committed to it by Congress, ibid., or conclude that the role assumed by the Board is “fundamentally inconsistent with the structure of the Act and the function of the sections relied upon.” American Ship Building Co. v. NLRB, 380 U.S. 300, 318 (1965); NLRB v. Iron Workers, supra. 31

V

We are also unpersuaded that the Board’s findings and conclusions are infirm on any of the grounds submitted. First, it is urged that there was an insufficient showing and insufficient findings that any hyphenates were coerced or restrained from reporting for work. But the Administrative Law Judge carefully detailed the strike rules that he expressly found were designed and enforced with the intent of restraining hyphenates from going to work and from performing the normal duties of their positions, which included the adjustment of [437 U.S. 411, 432] grievances. 32 It was also found that the hyphenates were especially vulnerable to pressure from the union and that many of them were actually restrained and prevented from performing their normal duties, including the adjustment of grievances. These are sufficiently clear findings that union pressures kept many hyphenates from the job, and, on the record before us, it approaches the frivolous to argue that there is insufficient evidence to support them. It also follows, as the Administrative Law Judge and the Board concluded, that as to those hyphenates whom the union kept from work, the employer was restrained and coerced within the meaning of 8 (b) (1) (B) by being totally deprived of the opportunity to choose these particular supervisors as his collective-bargaining or grievance-adjustment representatives during the strike.

Second, as to those hyphenates who reported for work, it is strenuously urged that there is no basis for concluding that the discipline imposed upon them would adversely affect the performance of their grievance-adjustment duties either during or after the strike. Again, however, we are unwilling to differ with the Board in these respects. The inquiry whether union conduct would or might adversely affect the performance of the hyphenates’ grievance-adjustment duties is, as petitioners assert, necessarily a matter of probabilities, and its resolution depends much on what experience would suggest are the justifiable inferences from the known facts. This seems to us to be peculiarly the kind of determination that Congress has assigned to the Board:

[437 U.S. 411, 433]

determine on the evidence in adversary proceedings whether violations of statutory commands have occurred may infer within the limits of the inquiry from the proven facts such conclusions as reasonably may be based upon the facts proven. One of the purposes which lead to the creation of such boards is to have decisions based upon evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration.” Republic Aviation Corp. v. NLRB, 324 U.S. 793, 800 (1945); Radio Officers v. NLRB, 347 U.S. 17, 48 -49 (1954).

See also NLRB v. Erie Resistor Corp., 373 U.S. 221, 227 (1963); Teamsters v. NLRB, 365 U.S. 667, 675 (1961). The Board’s findings are “entitled to the greatest deference in recognition of its special competence in dealing with labor problems.” American Ship Building Co. v. NLRB, supra, at 316.

Furthermore, it does not strike us as groundless or lacking substantial evidence for the Board to conclude on this record that the discipline imposed would have the necessary adverse effect. Strike rules were distributed in February; the strikes against the Association began on March 4 and terminated June 24; the strikes against the networks began on March 29 and ended on July 12. Between April 6 and November 8 – both during and after the strikes – some 31 hyphenates who had worked during the strikes were charged with violating union rules, 33 15 hearings had been held prior to the closing of evidence in November 1973, and from June 25 to September 28, very substantial penalties were imposed in 10 cases although 9 have already been reduced on appeal. These penalties were widely publicized at the time of their imposition. [437 U.S. 411, 434] Other charges were pending and remained to be tried when the record was closed in this case.

These penalties were meted out at least in part because the accused hyphenates had complied with the orders of their employers by reporting for work and performing only their normal supervisory functions, including the adjustment of grievances, during the strike. Hyphenates who worked were thus faced not only with threats but also with the actuality of charges, trial, and severe discipline simply because they were working at their normal jobs. And if this were not enough, they were threatened with a union blacklist that might drive them from the industry. How long such hyphenates would remain on the job under such pressure was a matter no one, particularly the employer, could predict.

Moreover, after the strike, with the writers back at work, the hyphenates who had worked during the strike still faced charges and trials or were appealing large fines and long suspensions. At the same time, they were expected to perform their regular supervisory duties and to adjust grievances whenever the occasion demanded, functions requiring them to deal with the same union which was considering the appeal of their personal sanctions. As to these supervisors, who had felt the union’s wrath, not for doing rank-and-file work contrary to union rules, but for performing only their primary supervisory duties during the strike and who were in a continuing controversy with the union, it was not untenable for the Board to conclude that these disciplined hyphenates had a diminished capacity to carry out their grievance-adjustment duties effectively and that the employer was deprived of the full range of services from his supervisors. 34 Such a hyphenate [437 U.S. 411, 435] might be tempted to give the union side of a grievance a more favorable slant while the threat of discipline remained, or while his own appeal of a union sanction was pending. At the very least, the employer could not be certain that a fined hyphenate would willingly answer the employer’s call to duty during a subsequent work stoppage, particularly if it occurred in the near future. 35 For an employer in these circumstances to insure having satisfactory collective-bargaining and grievance-adjustment services would require a change in his representative.

As the Board has construed the Act from Oakland Mailers to Triangle, Hammond, and the cases now before us, such a likely impact on the employer constitutes sufficient restraint and coercion in connection with the selection of collective-bargaining and grievance-adjustment representatives to violate [437 U.S. 411, 436] 8 (b) (1) (B). In FP&L the Court declined the invitation to overrule Oakland Mailers, and we do so again. Union pressure on supervisors can affect either their willingness to serve as grievance adjusters or collective bargainers, or the manner in which they fulfill these functions; and either effect impermissibly coerces the employer in his choice of representative. 36

Third, it is further urged that union discipline could not adversely affect a supervisor’s later performance of his 8 (b) (1) (B) duties because the employer could require him to leave the union and thus free himself from further threats of union discipline. This submission has little force in this case, since, as the Administrative Law Judge found, the union’s known policy was not to permit a member to resign during a strike and for a period of six months thereafter. For the entire period to which the Board’s findings were addressed, hyphenates could not terminate their membership, and the [437 U.S. 411, 437] employer’s only recourse would have been to replace them as his grievance representatives.

Carried to its logical end, this submission is simply another argument that union sanctions applied to supervisor-members who work during a strike can never violate 8 (b) (1) (B), because the employer could always insist that his supervisors either terminate union affiliation or face discharge. Yet, as we have noted, the test posited by this Court in FP&L plainly recognizes the possibility of a 8 (b) (1) (B) violation arising from union fines imposed during a strike. Moreover, if the argument were to be accepted, indirect pressures on the employer by sanctioning supervisor-members for the manner in which they perform their grievance-adjusting function (as in Oakland Mailers) would never be a violation because the supervisor could, at the employer’s request, escape from union threats and sanctions. The Board’s construction of the Act is to the contrary, however, and, as we have said, we are not prepared at this juncture to override it. 37 [437 U.S. 411, 438]

Because we have concluded that the Board’s construction of 8 (b) (1) (B) is not an unreasonable reading of its language or inconsistent with its purposes, and because we cannot say that the Board’s findings lacked substantial evidence, we must reverse the judgment of the Court of Appeals.

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