American Broadcasting Companies, Inc. v. Writers Guild
In American Broadcasting Cos. v. Writers Guild, 437 U.S. 411, 98 S.Ct. 2423, 57 L.Ed.2d 313 (1978), the supervisor-members crossed picket lines to perform their regular supervisory duties, which included the adjustment of grievances. Id. at 431-32, 98 S.Ct. at 2434-35.
The Court held union discipline of member-supervisors for performing their Sec. 8(b)(1)(B) functions during a strike affected the manner they fulfilled those functions, impermissibly coercing the employer's choice of representatives in violation of Sec. 8(b)(1)(B). Id. at 432-36, 98 S.Ct. at 2435-37.
In American Broadcasting Companies, Inc. v. Writers Guild, 437 U.S. 411, 98 S.Ct. 2423, 57 L.Ed.2d 313 (1978) ("ABC ") the Court considered an argument that the adverse effects of union sanctions could be avoided by resignation from the union. 437 U.S. at 436-37, 98 S.Ct. at 2437-38.
It noted that the logical end of this argument would mean that "sanctioning supervisor-members for the manner in which they perform their grievance-adjusting function ... would never be a violation because the supervisor could, at the employer's request, escape from union threats and sanctions." Id. at 437, 98 S.Ct. at 2438.
The Supreme Court was unwilling to accept a view so contrary to the Board's construction of the National Labor Relations Act.
In American Broadcasting Companies v. Writers Guild, 437 U.S. 411, 436, 98 S.Ct. 2423, 2437, 57 L.Ed.2d 313 (1978), note 3, the court recognized that union discipline may have a "carryover" effect which would adversely affect the supervisor's conduct, depriving the employer of the full services of his representative and thereby restraining and coercing the employer in his selection of representatives. Id. at 429, 98 S.Ct. at 2434.
The inquiry into whether union conduct would or might adversely affect the duties of an employer's representative is "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 be peculiarly the kind of determination that Congress has assigned to the Board...." Id. at 432, 98 S.Ct. at 2435.
In American Broadcasting Cos. v. Writers Guild, West, Inc., 437 U.S. 411 (1978) (ABC), the Supreme Court held that union discipline of employer representatives who performed 8(b)(1)(B) duties, specifically grievance adjustment, during a strike violated the employer's rights under 8(b)(1)(B):
"The Court in Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790, 805 (1974) 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." 437 U.S., at 429.
The Court also held that, before a 8(b)(1)(B) violation can be sustained, the NLRB must make a factual finding that a union's sanction will adversely affect the employer representative's performance of collective-bargaining or grievance-adjusting duties. Id., at 430.
In ABC, the Board found, and the Court agreed, that the union fines of employer representatives engaged in grievance adjustment would have an adverse effect on the supervisor-member's future performance of that same 8(b)(1)(B) duty.
In ABC the Court determined that the employer was coerced despite the fact that it could order the supervisor-members to leave the union and free themselves from further threats of discipline.
But, as the Court pointed out, when ABC was decided, supervisor-members were not free to leave the union at any time.
In ABC, for example, the union had a "known policy not to permit a member to resign during a strike and for a period of six months thereafter," so plainly "the employer's only recourse would have been to replace the supervisor-members as his grievance representatives." 437 U.S., at 436-437.
The Supreme Court found that discipline imposed on grievance-handling supervisors who crossed union picket lines violated 8(b)(1)(B), even though the supervisor-members did not adjust grievances for the striking employees, but only for employees whom the striking union did not represent or desire to represent. Id., at 437-438, n. 37.
In that case, however, the union did represent some of the employer's employees and therefore had a bargaining relationship with the coerced employer.
The union had a continuing relationship with the employer and an incentive (possibly recurrent) to affect the employer representative's performance of 8(b)(1)(B) duties.
In American Broadcasting Cos. v. Writer's Guild of America, West, Inc., 437 U.S. 411, 429, 98 S.Ct. 2423, 57 L.Ed.2d 313, 328 (1978) the Court had occasion to consider the implications of its holding in Florida Power & Light.
The union involved in that case ordered its supervisory members not to cross picket lines, even to perform their supervisory duties. Some of the members obeyed the directive, and the ones who did not were subsequently penalized by the union.
In its evaluation of the legality of the union's actions, the Court reiterated the inquiry originally formulated in Florida Power & Light.
Union discipline of a supervisor contravenes Sec. 8(b)(1)(B) of the National Labor Relations Act if that coercion "may adversely affect" his performance of grievance adjustment or collective bargaining responsibilities. American Broadcasting Cos., 437 U.S. at 429, 98 S.Ct. at 2434, 57 L.Ed.2d at 328.
Applying that test to the facts before it, the Court concluded that the requisite "adverse" effect was present. As for the supervisors kept from work by union pressure, the opinion stated that the "employer was restrained and coerced within the meaning of Sec. 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." American Broadcasting Cos., 437 U.S. at 432, 98 S.Ct. at 2435, 57 L.Ed.2d at 329.
In American Broadcasting Cos., Justice Stewart in dissent underscored this implication of the majority's holding. As he observed,
in the present cases it is entirely clear that the union had no interest in restraining or coercing the employers in the selection of their bargaining or grievance adjustment representatives, or in affecting the manner in which supervisory employees performed those functions. As the Court notes, ...
the union expressed no interest at the disciplinary trials in the kind of work that was done behind its picket lines. Its sole purpose was to enforce the traditional kinds of rules that every union relies on to maintain its organization and solidarity in the face of the potential hardship of a strike. 437 U.S. at 440, 98 S.Ct. at 2439, 57 L.Ed.2d at 334