FLORIDA POWER & LIGHT CO. v. INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 641, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
Argued April 24, 1974.
Decided June 24, 1974. *
[ Footnote * ] Together with No. 73-795, National Labor Relations Board v. International Brotherhood of Electrical Workers, AFL-CIO, et al., also on certiorari to the same court.
A union does not commit an unfair labor practice under 8 (b) (1) (B) of the National Labor Relations Act (NLRA) when it disciplines supervisor-members for crossing a picket line and performing rank-and-file struck work during a lawful economic strike against the employer. Pp. 798-813.
STEWART, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, and POWELL, JJ., joined. WHITE, J., filed a dissenting opinion, in which BURGER, C. J., and BLACKMUN and REHNQUIST, JJ., joined, post, p. 813.
Ray C. Muller argued the cause and filed a brief for petitioner in No. 73-556. Norton J. Come argued the cause for petitioner in No. 73-795 and for respondent National Labor Relations Board in No. 73-556. With him on the brief were Solicitor General Bork, Peter G. Nash, John S. Irving, and Patrick Hardin.
Laurence J. Cohen argued the cause for respondent unions in both cases. With him on the brief were Robert E. Fitzgerald and Seymour A. Gopman.
Laurence Gold argued the cause for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. With him on the brief were J. Albert Woll and Thomas E. Harris.Fn
Fn [417 U.S. 790, 791] Lawrence T. Zimmerman filed a brief for the Graphic Arts Union Employers of America, a Division of the Printing Industries of America, Inc., as amicus curiae urging reversal.
MR. JUSTICE STEWART delivered the opinion of the Court.
Section 8 (b) (1) (B) of the National Labor Relations Act, 61 Stat. 141, 29 U.S.C. 158 (b) (1) (B), makes it an unfair labor practice for a union "to restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." The respondent unions in these consolidated cases called economic strikes against the employer companies. During the strikes, supervisory employees of the companies, some of whom were members of bargaining units and some of whom were not, but all of whom were union members, crossed [417 U.S. 790, 792] the picket lines and performed rank-and-file struck work, i. e., work normally performed by the nonsupervisory employees then on strike. The unions later disciplined these supervisors for so doing. The question to be decided is whether the unions committed unfair labor practices under 8 (b) (1) (B) when they disciplined their supervisor-members for crossing the picket lines and performing rank-and-file struck work during lawful economic strikes against the companies.
Since 1909, Local 134, International Brotherhood of Electrical Workers, AFL-CIO, one of the respondents in No. 73-795, has been recognized by the Illinois Bell Telephone Co. (Illinois Bell) and its predecessors as the exclusive bargaining representative for both rank-and-file and certain supervisory personnel, including general foremen, P. B. X. installation foremen, and building cable foremen. Rather than exercise its right to refuse to hire union members as supervisors, the company agreed to the inclusion of a union security clause in the collective-bargaining agreement which required that these supervisors, like the rank-and-file employees, maintain membership in Local 134. In addition, the bargaining agreement in effect at the time of this dispute contained provisions for the conditions of employment and certain wages of these foremen.
Other higher ranking supervisors, however, were neither represented by the union for collective-bargaining purposes nor covered by the agreement, although they were permitted to maintain their union membership. 1 [417 U.S. 790, 793] By virtue of that membership, these supervisors, like those within the bargaining units, received substantial benefits, including participation in the International's pension and death-benefit plans and in group life insurance and old-age-benefit plans sponsored by Local 134.
Under the International's constitution, all union members could be penalized for committing any of 23 enumerated offenses, including "[w]orking in the interest of any organization or cause which is detrimental to, or opposed to, the I. B. E. W.," App. 76, and "[w]orking for any individual or company declared in difficulty with a [local union] or the I. B. E. W." Id., at 77.
Between May 8, 1968, and September 20, 1968, Local 134 engaged in an economic strike against the company. At the inception of the strike, Illinois Bell informed its supervisory personnel that it would like to have them come to work during the stoppage but that the decision whether or not to do so would be left to each individual, and that those who chose not to work would not be penalized. Local 134, on the other hand, warned its supervisor-members that they would be subject to disciplinary action if they performed rank-and-file work during the strike. Some of the supervisor-members crossed the union picket lines to perform rank-and-file struck work. Local 134 thereupon initiated disciplinary proceedings against these supervisors, and those found guilty were [417 U.S. 790, 794] fined $500 each. 2 Charges were then filed with the NLRB by the Bell Supervisors Protective Association, an association formed by five supervisors to obtain counsel for and otherwise protect the supervisors who worked during the strike. The Board, one member dissenting, held that in thus disciplining the supervisory personnel, the union had violated 8 (b) (1) (B) of the Act, 3 in accord with its decision of the same day in Local 2150, IBEW (Wisconsin Electric Power Co.), 192 N. L. R. B. 77 (1971), enforced, 486 F.2d 602 (CA7 1973), cert. pending No. 73-877, holding:
The Florida Power & Light Co. (Florida Power), the petitioner in No. 73-556, has maintained a collective-bargaining agreement with the International [417 U.S. 790, 795] Brotherhood of Electrical Workers, AFL-CIO and Locals 641, 622, 759, 820, and 1263, represented by the System Council U-4, 4 since 1953. That agreement does not require employees to become union members as a condition of employment, but many of its supervisory personnel have in fact joined the union. The company has elected to recognize the union as the exclusive bargaining representative of these supervisors, and certain aspects of their wages and conditions of employment are provided for in the agreement. 5 In addition, other higher supervisory personnel not covered by the agreement were allowed to maintain union membership, 6 and, although not represented by the union for collective-bargaining purposes, received substantial benefits as a result of their union membership, including pension, disability, and death benefits under the terms of the International's constitution. [417 U.S. 790, 796]
Since the same International union was involved in both No. 73-556 and No. 73-795, the union members of Florida Power bore the same obligations under the International's constitution as did the union members of Illinois Bell. See supra, at 793. With respect to union discipline of supervisor members, however, the Florida Power collective-bargaining agreement itself provided:
The Illinois Bell case was first heard by a panel of the Court of Appeals for the District of Columbia Circuit, 159 U.S. App. D.C. 242, 487 F.2d 1113 (1973), and then on rehearing was consolidated with Florida Power and considered en banc. In a 5-4 decision, the court held that "[s]ection 8 (b) (1) (B) cannot reasonably be read to prohibit discipline of union members - supervisors though they be - for performance of rank-and-file struck work," 159 U.S. App. D.C. 272, 300, 487 F.2d 1143, 1171 (1973), and accordingly refused to enforce the Board's orders. 8 Section 8 (b) (1) (B), the court held, was intended to proscribe only union efforts to discipline supervisors for their actions in representing management in collective bargaining and the adjustment of grievances. It was the court's view that when a supervisor forsakes his supervisory role to do work normally performed by nonsupervisory employees, he no longer acts as a managerial representative and hence "no longer merits any immunity from discipline." Id., at 286, 487 F.2d, at 1157. We granted [417 U.S. 790, 798] certiorari, 414 U.S. 1156 , to consider an important and novel question of federal labor law.
Section 8 (b) of the National Labor Relations Act provides in pertinent part:
In 1968, however, the Board significantly expanded the reach of 8 (b) (1) (B), with its decision in San Francisco-Oakland [417 U.S. 790, 800] Mailers' Union No. 18 (Northwest Publications, Inc.), 172 N. L. R. B. 2173. In that case, three union-member foremen were expelled from the union for allegedly assigning bargaining unit work in violation of the collective-bargaining agreement. Despite the absence of union pressure or coercion aimed at securing the replacement of the foremen, the Board held that the union had violated 8 (b) (1) (B) by seeking to influence the manner in which the foremen interpreted the contract:
These decisions reflected a further evolution of the Oakland Mailers doctrine. In Oakland Mailers, the union had disciplined its supervisor-members for an alleged misinterpretation or misapplication of the collective-bargaining agreement, and the Board had reasoned that the natural and foreseeable effect of such discipline was that in interpreting the agreement in the future, the supervisor would be reluctant to take a position adverse to that of the union. In the subsequent cases, [417 U.S. 790, 802] however, the Board held that the same coercive effect was likely to arise from the disciplining of a supervisor whenever he was engaged in management or supervisory activities, even though his collective-bargaining or grievance-adjustment duties were not involved. Through the course of these decisions, 8 (b) (1) (B) thus began to evolve in the view of the Board and the courts "as a general prohibition of a union's disciplining supervisor-members for their conduct in the course of representing the interests of their employers." Toledo Locals Nos. 15-P & 272, Lithographers & Photoengravers International, 175 N. L. R. B., at 1080, or for acts "performed in the course of [their] management duties," Meat Cutters Union Local 81 v. NLRB, 147 U.S. App. D.C., at 377, 458 F.2d, at 796. 12
In the present cases, the Board has extended that doctrine to hold that 8 (b) (1) (B) forbids union discipline of supervisors for performance of rank-and-file work on the theory that the performance of such work during a strike is an activity furthering management's interests. 13 [417 U.S. 790, 803] We agree with the Court of Appeals that 8 (b) (1) (B) cannot be so broadly read. Both the language and the legislative history of 8 (b) (1) (B) reflect a clearly focused congressional concern with the protection of employers in the selection of representatives to engage in two particular and explicitly stated activities, namely collective bargaining and the adjustment of grievances. By its terms, the statute proscribes only union restraint or coercion of an employer "in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances," and the legislative history makes clear that in enacting the provision Congress was exclusively concerned with union attempts to dictate to employers who would represent them in collective bargaining and grievance adjustment.
The specific concern of Congress was to prevent unions from trying to force employers into or out of multi-employer bargaining units. 14 As Senator Taft, cosponsor of the legislation, explained:
We may assume without deciding that the Board's Oakland Mailers decision fell within the outer limits of this test, but its decisions in the present cases clearly do not. For it is 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. 16
It is strenuously asserted, however, that to permit a union to discipline supervisor-members for performing [417 U.S. 790, 806] rank-and-file work during an economic strike will deprive the employer of the full loyalty of those supervisors. Indeed, it is precisely that concern that is reflected in these and other recent decisions of the Board holding that the statutory language "restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances" is not confined to situations in which the union's object is to force a change in the identity of the employer's representatives, but may properly be read to encompass any situation in which the union's actions are likely to deprive the employer of the undivided loyalty of his supervisory employees. As the Board stated in Wisconsin Electric:
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), 29 U.S.C. 152 (11), thereby excluding them from the coverage of the Act. 17 See [417 U.S. 790, 808] NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). Further, Congress enacted 14 (a), 29 U.S.C. 164 (a), explicitly providing:
The legislative history of 2 (3) and 14 (a) of the Act clearly indicates that those provisions were enacted in response to the decision in Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947), in which this Court upheld the Board's finding that the statutory definition of "employee" included foremen, and that they were therefore entitled to the coverage of the Act in the absence of a decision by Congress to exclude them. 19 In recommending passage of this legislation, the Senate Report noted:
Congress' solution was essentially one of providing the employer with an option. On the one hand, he is at liberty to demand absolute loyalty from his supervisory personnel by insisting, on pain of discharge, that they neither participate in, nor retain membership in, a labor union, see Beasley v. Food Fair of North Carolina, Inc., [417 U.S. 790, 813] supra. Alternatively, an employer who wishes to do so can permit his supervisors to join or retain their membership in labor unions, resolving such conflicts as arise through the traditional procedures of collective bargaining. 23 But it is quite apparent, given the statutory language and the particular concerns that the legislative history shows were what motivated Congress to enact 8 (b) (1) (B), that it did not intend to make that provision any part of the solution to the generalized problem of supervisor-member conflict of loyalties.
For these reasons, we hold that the respondent unions did not violate 8 (b) (1) (B) of the Act when they disciplined their supervisor-members for performing rank-and-file struck work. Accordingly, the judgment is
[ Footnote 2 ] Local 134 also imposed fines of $1,000 upon each of the five supervisors who had formed the Bell Supervisors Protective Association.
[ Footnote 3 ] International Brotherhood of Electrical Workers, AFL-CIO, and Local 134, 192 N. L. R. B. 85 (1971) (hereinafter Illinois Bell).
[ Footnote 4 ] System Council U-4 was named as a respondent in the complaint, but the Board dismissed all charges against it and entered an order only against the local unions.
[ Footnote 5 ] Supervisory employees thus included are district supervisors, assistant district supervisors, assistant supervisors, plant superintendents, plant supervisors, assistant plant superintendents, distribution assistants, results assistants, assistant plant engineers, and subsection supervisors.
[ Footnote 6 ] In both Illinois Bell and this case, some of the supervisors involved, though union members, did not actively participate in union affairs and paid no dues. This was because they held "honorary" withdrawal cards, permitting them to return to active membership without paying normal initiation fees in the event they returned to rank-and-file work. These cards also permitted their holders to continue participation in the International's death-benefit fund. Other supervisors held "participating" withdrawal cards under which they continued to pay a fee equal to the monthly dues and remained eligible for pension, death, and disability benefits. The holders of these cards were also not permitted to participate in other union affairs.
[ Footnote 7 ] International Brotherhood of Electrical Workers System Council U-4, 193 N. L. R. B. 30, 31 (1971) (hereinafter Florida Power).
[ Footnote 8 ] 159 U.S. App. D.C. 272, 487 F.2d 1143 (1973).
[ Footnote 9 ] S. Rep. No. 105, 80th Cong., 1st Sess. (hereinafter Senate Report), pt. 1, p. 21 (1947).
[ Footnote 10 ] The Haverhill Gazette case was typical. There the union had demanded the inclusion of a "foreman clause" providing that the composing room foreman, who had the power to hire, fire, and process grievances, must be a member of the union, although he would be exempted from union discipline in certain circumstances for activities on behalf of management. As the Court of Appeals pointed out: "Not only would the clause . . . limit the employers' choice of foremen to union members, but it would also give the unions power to force the discharge or demotion of a foreman by expelling him from the union." 278 F.2d, at 12.
[ Footnote 11 ] In Toledo Blade, two supervisors were disciplined by the union for working in a crew smaller than the contractually prescribed minimum and for doing production work in excess of the contractually permitted maximum. These activities occurred during an economic strike. The Trial Examiner, in a holding which foreshadowed the cases now before us, noted that such discipline is an unwarranted interference with the employer's control over its own representatives and
[ Footnote 12 ] Indeed, in its original panel decision in the instant Illinois Bell case, the Court of Appeals spoke of 8 (b) (1) (B) as prohibiting union discipline of supervisory employees "for actions performed by them within the general scope of their supervisory or managerial responsibilities." 159 U.S. App. D.C. 242, 248, 487 F.2d 1113, 1119.
[ Footnote 13 ] As the Court of Appeals for the Seventh Circuit reasoned in enforcing the Board's order in Wisconsin Electric:
[ Footnote 14 ] Section 8 (b) (1) (B) was in fact a more restrained solution to the problem of multi-employer bargaining than originally proposed. Proposed 9 (f) (i) of the House bill, H. R. 3020, would have prohibited multi-employer bargaining altogether, see H. R. Rep. No. 245, 80th Cong., 1st Sess. (hereinafter House Report), 8-9, 56 (1947).
[ Footnote 15 ] In a similar vein, Senator Ellender observed:
[ Footnote 16 ] To hold that union discipline of supervisor-members for performing rank-and-file struck work is not proscribed by 8 (b) (1) (B) of the Act is not to hold that such discipline is expressly permitted by 8 (b) (1) (A) of the Act, as construed in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967). The decision in that case is inapposite where the union seeks to fine not employee-members but supervisor-members, who are explicitly excluded from the definition of "employee" by 2 (3), 29 U.S.C. 152 (3), and hence from the coverage of 8 (b) (1) (A). See Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653 (1974). The Act, therefore, neither protects nor prohibits union discipline of supervisor-members for engaging in rank-and-file struck work. In light of the fact that "Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions," NLRB v. Drivers Local Union No. 639, 362 U.S. 274, 282 -283 (1960), the admonition against regulation of the choice of economic weapons that may be used as part of collective bargaining absent a particularized statutory mandate is particularly apt in this context. NLRB v. Insurance Agents, 361 U.S. 477, 490 (1960). See Summers, Disciplinary Powers of Unions, 3 Ind. & Lab. Rel. Rev. 483 (1950); Summers, Legal Limitations on Union Discipline, 64 Harv. L. Rev. 1049 (1951); Wellington, Union Democracy and Fair Representation: Federal Responsibility in a Federal System, 67 Yale L. J. 1327 (1958); Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819 (1960).
[ Footnote 17 ] Title 29 U.S.C. 152 (3) provides in pertinent part:
[ Footnote 18 ] It has been held that this right is limited to the extent that an employer cannot discharge supervisory personnel for participation in the union where the discharge is found to interfere with, restrain, or coerce employees in the exercise of their protected rights, see NLRB v. Talladega Cotton Factory, Inc., 213 F.2d 209 (CA5 1954), or where it is prompted by the supervisors' refusal to engage in unlawful activity, see NLRB v. Lowe, 406 F.2d 1033 (CA6 1969).
[ Footnote 19 ] Prior to the passage of the National Labor Relations Act in 1935, foremen and rank-and-file workers were often members of the same bargaining unit, and such conflict-of-interest problems as arose were dealt with through the collective-bargaining process. After first holding that supervisors could organize in independent or affiliated unions in Union Collieries Coal Co., 41 N. L. R. B. 961 (1942) and Godchaux Sugars, Inc., 44 N. L. R. B. 874 (1942), the Board, concerned by the conflict of interests created thereby, reversed its position in Maryland Drydock Co., 49 N. L. R. B. 733 (1943), and held that except where foremen had been organized in 1935 when the Act was passed, supervisory units were not appropriate collective-bargaining units under the Wagner Act. The Board then reversed its position again in Packard Motor Car Co., 61 N. L. R. B. 4, enforced, 157 F.2d 80 (CA6), aff'd, 330 U.S. 485 (1947), holding that supervisory employees as a class were entitled to the rights of self-organization and collective bargaining. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 277 (1974); Beasley v. Food Fair of North Carolina, Inc., 416 U.S., at 658 n. 4. See also House Report 13-14. In discussing the proposed legislation dealing with supervisory personnel, the Senate Report stated:
[ Footnote 20 ] Instructive as well is the fact that 2 (3) and 14 (a) were both slightly modified versions of 9 (a) and (c) of the Case bill, H. R. 4908, 79th Cong., 2d Sess. (1946), which was passed by Congress in 1946 but vetoed by President Truman. See Senate Report 5. That earlier bill, however, contained no provision bearing any resemblance to 8 (b) (1) (B), which first appeared in S. 1126, 80th Cong., 1st Sess. (1947).
[ Footnote 21 ] Further support for the proposition that 8 (b) (1) (B) was addressed to a separate and far more limited problem than that of conflict of loyalties dealt with in 2 (3), 2 (11), and 14 (a) is found in the differing scope of the provisions themselves. Section 8 (b) (1) (B) purports to cover only those selected as the employer's representative "for the purposes of collective bargaining or the adjustment of grievances," whereas the class of supervisors excluded from the definition of employees in 2 (3) is defined by 2 (11) to include individuals engaged in a substantially broader range of activities. See supra, n. 17; NLRB v. Bell Aerospace Co., supra. The two groups coincide only with respect to the function of grievance adjustment.
[ Footnote 22 ] There can be no denying that the supervisors involved in the present cases found themselves in something of a dilemma, and were pulled by conflicting loyalties. But inherent in the option afforded the employer by Congress, must be the recognition that supervisors permitted by their employers to maintain union membership will necessarily incur obligations to the union. See Nassau & Suffolk Contractors' Assn., Inc., 118 N. L. R. B. 174, 182 (1957). See Summers, Legal Limitations on Union Discipline, 64 Harv. L. Rev. 1049 (1951). And, while both the employer and the union may have conflicting but nonetheless legitimate expectations of loyalty from supervisor-members during a strike, the fact that the supervisor will in some measure be the beneficiary of any advantages secured by the union through the strike makes it inherently inequitable that he be allowed to function as a strikebreaker without incurring union sanctions.
The supervisor-member is, of course, not bound to retain his union membership absent a union security clause, and if, for whatever reason, he chooses to resign from the union, thereby relinquishing his union benefits, he could no longer be disciplined by the union for working during a strike. NLRB v. Textile Workers, 409 U.S. 213 (1972); Booster Lodge 405 v. NLRB, 412 U.S. 84 (1973).
In these cases, the supervisors' dilemma has been somewhat exaggerated by the petitioners. In Illinois Bell, the company did not command its supervisors to work during the strike and expressly left the decision to each individual. Those who chose not to work were not penalized, and some were in fact promoted by their employer after the strike had ended. Those who did work during the strike but performed only their regular duties were not disciplined by the union. In Florida Power, the record does not disclose whether the supervisors crossed the picket lines at the company's request or not, but in any event, the union did not discipline those who did so only to perform their normal supervisory functions.
[ Footnote 23 ] Thus, while a union violates 8 (b) (1) (B) by striking to force an employer to agree to hire only union members as foremen, International Typographical Union Local 38 v. NLRB, 278 F.2d 6 (CA1 1960), aff'd by an equally divided Court, 365 U.S. 705 (1961), see n. 7, supra, it can propose that supervisors be covered by the collective-bargaining agreement, Sakrete of Northern California, Inc. v. NLRB, 332 F.2d 902 (CA9 1964), cert. denied, 379 U.S. 961 (1965). Similarly, it is clear that an employer may request that supervisors be excluded from the bargaining unit, Federal Compress & Warehouse Co. v. NLRB, 398 F.2d 631 (CA6 1968); NLRB v. Corral Sportswear Co., 383 F.2d 961 (CA10 1967).
The parties in Florida Power in fact agreed to the inclusion in the collective-bargaining agreement of provisions governing the disciplining by the union of supervisory personnel, basically providing that such matters were to be dealt with through the grievance adjustment and arbitration provisions of the agreement. See supra, at 796.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, dissenting.
Believing that the majority has improperly substituted its judgment for a fair and reasonable interpretation by [417 U.S. 790, 814] the Board of 8 (b) (1) (B) in light of the statutory language and legislative history of that provision and other provisions dealing with supervisors, I must dissent substantially for the reasons expressed by the dissent below.
While it might be unreasonable for the Board to interpret 8 (b) (1) (B) to permit an employer to require absolute loyalty from a supervisor-member in all circumstances, it is certainly apparent that during an economic strike, the supervisor's performance of rank-and-file struck work, which represents a classic "use of economic pressure by the parties to a labor dispute . . . [,] is part and parcel of the process of collective bargaining." NLRB v. Insurance Agents' International Union, 361 U.S. 477, 495 (1960). 1 "As management representatives, supervisory personnel may be requested by management to enhance the bargaining position of their employer during a dispute between it and the particular union involved." 159 U.S. App. D.C. 272, 304, 487 F.2d 1143, 1175 (1973) (en banc) (dissenting opinion) (footnote omitted). Moreover, these union sanctions would unavoidably decrease a supervisor's loyalty to his employer and thereby materially interfere with the performance of those responsibilities which the employer quite properly demands of him. Local Union No. 2150, IBEW (Wisconsin Electric Power Co.), 192 N. L. R. B. 77, 78 (1971), enforced, 486 F.2d 602 (CA7 1973). Nothing in [417 U.S. 790, 815] the language or legislative history of the statute contradicts the conclusion that
[ Footnote 1 ] The court below acknowledged the practical realities of the use of supervisors during a strike: "in the highly automated public utility industries involved in these cases a small work force composed of strikebreakers and non-union management personnel can evidently provide sufficient manpower to continue vital services in a strike, thereby cutting into the strike's effectiveness." 159 U.S. App. D.C. 272, 290 n. 21, 487 F.2d 1143, 1161 n. 21 (1973) (en banc).
[ Footnote 2 ] I do not read the Court to say that 8 (b) (1) (B) would allow a union to discipline supervisor-members for performing supervisory or management functions, as opposed to customary rank-and-file work, during a labor dispute. [417 U.S. 790, 817]