* @ Copyright, West Publishing Co., 1987, all rights reserved.
* Some footnotes are omitted; those included are not renumbered. — Ed.
1 The Constitution of the IBEW forbids members to '[w[or[k[ for, or on behalf of, any employer ... whose position is adverse or detrimental to the LB.E.W.' ... 2- '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 responsibility 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.' 29 U.S.C. § 152(l 1).
3 We uphold the rejection of the NLRB's conclusion that the Union had demonstrated an intent to represent the employees of Royal and Nutter. The Court of Appeals stated: We hold that where a Union has filed a disclaimer of interest, and has made no subsequent organizing efforts, its discipline of members fully a year after the termination of the bargaining relationship between the Union and the employers cannot reasonably be construed as an effort to restrain or coerce the employer. We require some evidence of specific overt acts such as picketing, handbilling, making statements of interest to the employers, or passing out opposition cards to find a desire to represent these particular employees. Here there was no evidence of such an intent ....
4 The Court of Appeals for the Eleventh Circuit has held that even if a union does not represent or intend to represent a company's employees, discipline that pressures a supervisor-member to cease working for a non-union company violates § 8(b)(1)(B). NLRB v. (International Brotherhood of Electrical Workers, 703 F.2d 501 (1983). In the present case, and in NLRB v. International Brotherhood of Electric! Workers, 714 F.2d 870 (1980), the Court of Appeals for the Ninth Circuit reached the opposite conclusion.
6 The Court stated: '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. Specifically, Congress in 1947 amended the definition of 'employee' in § 2(3), 29 U. S.C. § 152(3), to exclude those denominated supervisors under § 2(11), ... thereby excluding them from coverage of the Act.' Florida Power.... 7- Section 2(3), 29 U. S.C. § 152(3), provides in pertinent part: 'The term 'employee' shall include any employee, ... but shall not include ... any individual employed as a supervisor....' Section 2(11), 29 U.S.C. § 152(11), which defines the term 'supervisor,' is set forth in n. 2, supra. Section 14(a), 29 U. S.C. § 164(a), reveals another part of the Congressional resolution of the conflict-of -loyalty question: 'Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.'
8 ... Insofar as dictum in ABC suggests that a union may not discipline supervisor- members for acts or omissions that occur while the supervisor-member is engaged in supervisory activities other than § 8(b)(l)(B) activities, the dictum is inconsistent with Florida Power, and we disavow it.
9 See NLRB v. Rochester Musicians Assn., 514 F.2d 988, 992-993 (CA2 1975)('The rationale of (the reservoir) doctrine is that supervisors are viewed as a reservoir of man- power available and likely to be chosen as collective bargainers or grievance adjusters at some later date. Since union discipline could affect the supervisor's loyalty to the employer, the employer would be restricted in his choice of future representatives'); Erie Newspaper Guild v. NLRB, 489 F.2d 416, 420 (CA3 1973) (`The Board contends that once these supervisors were disciplined by the union, they could no longer be fully loyal to the employer who would be coerced in his future selection of representatives'); International Assn. of Heat and Frost Insulators &Asbestos Workers (Cork Insulating Co.), 189 N.L.R.B. 854 (1971) ('the employer [has a] right ... to select [collective-bargaining and grievance) representatives from an uncoerced group of supervisors whose loyalty to him has not been prejudiced').... 12. The NLRB held in the alternative that because Schoux did adjust personal
grievances - as opposed to contract grievances - he qualified as a § 8(b)(1)(B) supervisor, even without application of the reservoir doctrine. As a consequence of our conclusion in Part III, infra, we need not decide whether the Board's broad definition of grievance - and hence of 'grievance adjustment' - is consistent with the narrow purpose and scope of §8(b)(l)(B).... 13. Direct coercion of an employer's selection of a § 8(b)(1)(B) representative would always be a § 8(b)(1)(B) violation, whether or not the union has or seeks a bargaining
relationship with an employer. This case does not present the question whether indirect coercion of an employer in its selection of a representative through a union's selective enforcement of a facially uniform rule would constitute a violation of § 8(b)(l)(B) without regard to whether the union has a bargaining relationship with the employer. The Court of Appeals has suggested that it might. See NLRB v. International Brotherhood of Electrical Workers, 714 F.2d, at 872 ('The case may be different if there is evidence that the union's actual purpose in enforcing its bylaw was to interfere with the employer's selection'). 14. In American Broadcasting Cos. v. Writers Guild, 437 U. S.411 ... (1978) (ABC), the 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 .... 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)(l)(B) duties. In ABC, for example, the union needed the support of all employees to make the strike seeking benefits for its members effective.
17 It is highly unlikely that Congress intended § 8(b)(I)(B) to ban a union rule forbidding its members to be supervisors without saying so. It is undisputed that at the time § 8(b)(1)(B) was enacted, many unions allowed only rank-and-file workers to retain membership.... In 1947 the NLRA was amended so that employers could prohibit supervisors from obtaining or maintaining union membership, see 29 U.S.C. §§ 152(3), 164(a), because Congress believed that granting supervisors a protected right to join a union is 'inconsistent with the policy of Congress to assure workers freedom from domination or control by their supervisors' and 'inconsistent with our policy to protect the rights of employers.' ... Yet the NLRB's interpretation of § 8(b)(1)(B) would have the anomalous result of reguiring unions to remain open to workers who decide to become supervisors.
* See 5 ILLR 65 - Ed.
1 In Part II, the majority holds that Schoux and Choate were not 'representatives' of their employers within the meaning of § 8(b)(1)(B). This issue is not properly before this Court. The Board concluded that Schoux and Choate acted as grievance-adjustment or collective-bargaining representatives for their employers under § 8(b)(1)(B) and the Ninth Circuit agreed with the Board's conclusion .... The Board obviously did not raise this issue in its petition for certiorari since it had prevailed on the issue. The only question presented for our review was '[w[hether the National Labor Relations Board resonably concluded that a union violated Section 8(b)(I)(B) of the National Labor Relations Act by discipling supervisor-members (who represent management in grievance adjustment or collective bargaining) for working for an employer that does not have a collective bargaining agree- ment with that union.' Respondent did not cross-petition for certiorari nor did it challenge the Court of Appeals' conclusion in its brief in opposition to the petition for writ of certiorari or in its brief on the merits. We should therefore judge the case as it comes to us.
4 The majority asserts that the Board's construction of § 8(b)(l)(B) requires that it also interpret the section to prohibit a union from excluding supervisors from membership, since such a union rule would similarly make members less willing to serve in supervisory positions .... The Board has not, however, interpreted § 8(b)(1)(B) so broadly. In National Association of Letter Carriers, 240 N.L.R.B. 519 (1979), the Board held that it was no violation of § 8(b)(l)(B) for a union to adopt a rule rendering letter carriers who accepted positions as temporary supervisors ineligible for membership as long as they worked in that capacity, despite the fact that the rule diminished the pool of letter carriers available to serve as temporary supervisors. 1 see no fatal inconsistency in the Board's positions. In the case of a union rule which excludes all supervisors from membership regardless of their employers, the primary relationship affected is the one between the union and its members, whereas in the case of a union rule prohibiting members from working for particular employers (those without collective-bargaining agreements with the union), the primary relationship affected is the one between the union and the employers. A union more easily infringes upon a 'policy Congress has imbedded in the labor laws,' ... in the latter situation.