NLRB v. IBEW, 481 US 573 (1987)

NLRB v. IBEW is the short caption for National Labor Relations Board v. International Brotherhood of Electrical Workers, 471 US 573 (1987), more often referred to as NLRB v. Electrical Workers (1987).

Background:

NLRB v. Electrical Workers (1987) is one of a series of cases challenging the interpretation of certain sections of the National Labor Relations Act of 1935. The NLRA was designed to regulate the relationship and interaction between labor unions, employers and employees to prevent exploitation and abuse of power by either employers or labor unions.

Further, the case addresses how much latitude the National Labor Relations Board (NLRB) has in constructing and enforcing rules related to this Act.

The disputed Section 8 of the NLRA (specifically Section 8(b)(1)(B)) reads as follows:

UNFAIR LABOR PRACTICES

Section 8...

(b) [Unfair labor practices by labor organization] It shall be an unfair labor practice for a labor organization or its agents--

(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 [section 157 of this title]: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances;

[emphasis added]

Many of the unfair labor practices cases invoking 8(b)(1)(A) and 8(b)(1)(B) involve union members contesting disciplinary action taken against them by unions for violation of the union's constitution and bylaws, including working for a non-union employer, crossing picket lines, and refraining from engaging in collective bargaining activity.

The US Supreme Court granted certiorari on a number of these cases, including the one discussed here, because federal appeals courts were drawing inconsistent conclusions from the terms of the NRLA, and handing down conflicting verdicts. The High Court often presides over cases of "circuit split," where the US Court of Appeals for one Circuit issues a different ruling than that of another Circuit in a manifestly similar case.

Case History:

Ted Choate and Albert Schoux were IBEW union members who had taken supervisory positions with employers represented by a union cooperative, National Association of Independent Unions (NAIU), of which the IBEW was not a part.

Because the IBEW didn't represent any workers of these employers (Schoux: Royal Electric Co.; Choate: Nutter Electric Co.) under a collective bargaining agreement, it disciplined the two men for violating the no-contract-no-work rule, and imposed fines of $8,200 against Schoux, and $6,000 against Choate.

Schoux and Choate, in turn, filed a grievance with the National Labor Relations Board (NLRB), claiming the union had violated Section 8(b)(1)(B) of the NLRA due to the men's status as supervisors, outlined in Sec. 2(11) of the same Act, under what was known as the "reservoir doctrine."

"Sec. 2, 11: (11) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

The "reservoir doctrine" was not part of the NLRA legislation, but a construct the NLRB established in 1968 to prevent unions from disciplining supervisors for the manner in which they carried out 8(b)(1)(B) (labor negotiation) duties. The NLRB reasoned that disciplinary action under those circumstances is coercive to the employer in that it can remove the employer-selected supervisor from the pool of preferred negotiators and force the business to accept a union-selected supervisor who might apply more pressure with regard to accepting union demands.

The NLRB later expanded disciplinary protection to include the entire class of supervisor-members, whether or not they were currently responsible for conducting union business, under the theory that any given supervisor might be selected to perform such acts in the future. According to the NLRB, the intended effect of disciplinary action, relative to the supervisor's employment, was to force the supervisor-member to cease working for the nonsignatory employer, "thereby depriving the employer of the grievance adjustment services of his chosen representative."

Neither Schoux nor Choate functioned as union representatives in their employment with Royal and Nutter, although both men carried out other supervisory duties, including personal grievance adjustment. They men believed the IBEW intended to pursue a contract with both Nutter and Royal in the future, creating justification for the 8(b)(1)(B) protection.

The NLRB agreed with Schoux and Choate and ordered the union to rescind the fines levied against the two men, to expunge the disciplinary action from their records, and to post notices (probably refers to public notices that the charges were in error). An Administrative Law Judge (ALJ) agreed with the order.

The NLRB then sought enforcement of its order in the 9th Circuit Court of Appeals. The Appeals Court, while acknowledging Schoux and Choate were supervisors under the NLRA definition, reversed the order on the grounds that the union had a right to disclipline members who violated their rules, citing the no-contract-no-work bylaw.

The NLRB responded by petitioning the US Supreme Court for a Writ of Certiorari, which was granted (479 US 811 (1986)).

The Supreme Court Ruling:

Affirmed the 9th Circuit Court of Appeals decision by a vote of 6-3

Majority Opinion written by Associate Justice Brennan and joined by Marshall, Blackmun, Powell and Stevens.

Concurring Opinion filed by Associate Justice Scalia

Dissenting Opinion filed by Associate Justice White, and joined by Chief Justice Rehnquist and Associate Justice O'Connor.

The High Court held that a union does not violate 8(b)(1)(B) when it disciplines a supervisor-member who does not participate as the employer's representative in collective bargaining or grievance adjustment, and whose employer had not entered into a collective bargaining agreement with the union. This nullified the NLRB's "reservoir doctrine," which had protected all union supervisor-members from disciplinary action.

Further, they held that the no-contract-no-work rule is not coercive of the employer because the IBEW members had the right to avoid the fine by resigning from the union, and because the employers had the right to require union members to resign as a condition of promotion or employment (except when actively undergoing collective bargaining).

Citing Florida Power & Light Co. v. Electrical Workers, 417 U. S. 790 (1974), and American Broadcasting Cos. v. Writers Guild, West, Inc., 437 U. S. 411 (1978), the Court held that the NLRB interpretation of the NLRA was beyond the bounds of Congress' objective, and that the NLRA was not intended to prevent enforcement of standard union rules, or to protect the employer from adverse-effects of union discipline of union member-employees. Such effects might include making the employee more subservient to the union, and creating conflicting loyalties, neither of which constituted coercion or created actual damages to the employer.

Unlike the cases of Florida Power & Light and ABC, the employer was not protected from the actions of a union with which it had no continuing relationship.

Associate Justice Scalia, in his concurring opinion, agreed that the NLRB's expansion of the "reservoir doctrine" was reasonable on its face because it was a natural extension of the earlier rule. However, each expansion results in moving the rules farther from the purpose of the original statute, an action Scalia opposed.

Scalia found a quote from former Chief Justice Warren Burger's remarks in United States v. 12 200-foot reels of film (1973) particularly applicable:

"The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth, or fifth 'logical' extension occurs. Each step, when taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance. This kind of gestative propensity calls for the 'line-drawing' familiar in the judicial, as in the legislative, process: 'thus far, but not beyond.'"

Dissenting Opinion

The Justices writing the minority opinion concluded the NLRB was correct in claiming a union violates 8(b)(1)(B) when it disciplines a member who serves as an employer's representative, even when the employer has no continuing contract with union, because the purpose of the discipline is to force the member-supervisor to leave his or her job and deprive the employer of the chosen employee's services.

They also asserted that the Supreme Court did not sit as a Super Board authorized to overrule the NLRB agency's choice of reasonable constructs of the controlling statutes, and that unions should not be given the right to prevent employers from selecting preferred employees, regardless of union membership.

They conclude that the union derives benefits from placement of supervisor-members, even in non-union shops, as it gives them more leverage in future negotiations, and therefore the union must bear the burden of providing immunity from discipline to all supervisors.

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