ON PETITIONS TO REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
Forman, Van Dusen and Gibbons, Circuit Judges.
This case represents a consolidation of two petitions to review a determination by the National Labor Relations Board (the "Board") and a cross-application by the Board for enforcement of the challenged order.*fn1 At our No. 72-1521, the Newspaper Guild (the "Union") seeks a reversal of the Board's determination that the Union committed an unfair labor practice under § 8(b)(1)(B) of the National Labor Relations Act*fn2 (the "Act") by disciplining four supervisors who crossed a picket line and performed allegedly struck work. At our No. 72-1633, the Times Publishing Company (the "Employer") requests this Court to compel the Board to reverse its denial of the company's motion to reinstate a § 8(b)(1)(A) complaint*fn3 and thus open up an inquiry into the reasonableness of the fines levied against the supervisors. By way of cross-petition, the Board seeks enforcement of its order.
The Employer publishes three newspapers in Erie, Pennsylvania.*fn4 The Union is the collective bargaining agent for the employees of all three. On August 31, 1968, the collective bargaining agreement between the Employer and the Union expired. On March 6, 1969, after unsuccessful negotiations, the Union went on strike. A new contract was executed on July 16, 1969. This contract was retroactive to September 1, 1968, and included in its union security provisions all employees except those in top management.*fn5
At least ten employees worked during the strike.*fn6 None of these employees was exempt from the union security provisions. Several had roles of an apparently supervisory nature.*fn7 Other members filed charges against all ten with the Union in October 1969.*fn8 After Union trial board proceedings, fines were levied in February 1970. These fines represented the Union's approximation of the employees' earnings during the period of the strike.*fn9
On July 28, 1970, the Employer filed unfair labor practice charges with the National Labor Relations Board. The charges alleged a § 8(b)(1)(A)*fn10 violation of the Act: "the [Union] . . . has, by trial proceedings, threats of excessive fines and the imposition of excessive fines and by other acts and conduct, restrained and coerced employees of Times Publishing Co. in the exercise of the rights guaranteed in Section 7 of the Act."*fn11 The Employer also alleged a § 8(b)(1)(B) violation of the Act,*fn12 claiming that the Union had restrained and coerced the Employer "in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances." The § 8(b)(1)(A) charge was deleted on April 21, 1971 at the suggestion of the Regional Director of the Board. On April 30, 1971, a complaint signed by the Director of Region Six on behalf of the General Counsel was issued against the Union based on § 8(b)(1)(B).
The Trial Examiner conducted hearings in June and July 1971. On October 28, 1971, the Examiner decided that fines against four Union members*fn13 were § 8(b)(1)(B) violations. A fine against a fifth member*fn14 was upheld because he was not a supervisor.
The Employer subsequently filed a motion for leave to file a second amended charge and to stay proceedings to permit the General Counsel to amend the Complaint. The amendment would have been a reinstatement of the § 8(b)(1)(A) charge. The Board denied this motion in its May 18, 1972 decision upholding the findings of the Trial Examiner. The Employer's motion for reconsideration of its ruling was denied by the Board on June 22, 1972. This petition to review followed.
The Union opposes the decision of the Trial Examiner and the Board that there was an unfair labor practice under § 8(b)(1)(B). The Union also opposes on both procedural and substantive grounds the introduction of the § 8(b)(1)(A) complaint.
The Board requests that the petitions to review the Board's order should be denied, and a judgment should be issued enforcing the Board's order.
There are two principal questions in this case.
The first (No. 72-1521) is: Has the Union committed an unfair labor practice under § 8(b)(1)(B) of the Act by disciplining supervisor-members for crossing a picket line during an economic strike? The Board's affirmative answer is based upon the rationale that under the Act a § 2(11)*fn15 supervisor is also a § 8(b)(1)(B) representative for the purposes of collective bargaining or the adjustment of grievances whether or not formally designated as such.
The second question (No. 72-1633) is: Did the Board err in refusing to determine the reasonableness of fines assessed by the Union against its members? The Board has answered negatively.
The elements of a § 8(b)(1)(B) violation are: (1) that the disciplined employee have § 2(11) supervisory status and (2) § 8(b)(1)(B) status as a representative for the purposes of collective bargaining or the adjustment of grievances; and (3) a showing of restraint or coercion in the selection of such a representative. In the instant case, most of the Examiner's opinion is directed toward establishing the first element, supervisory status. The Examiner decided and the Board affirmed that four of the disciplined employees were supervisors and one was not. The Union disputes the findings with respect to the four.
The first employee, City Editor Janice Hauserman, has seven employees under her direction, and assigns them to specific "beats." A second employee, Society Page Editor Betty Peebles, has one assistant whose work she oversees. A third employee, Telegraph Editor Richard Kubeja, has hierarchical if not experiential superiority over at least one employee with whom he works and who follows Kubeja's instructions. Kubeja also exercises independent judgment by substituting for the Managing Editor. A fourth employee, Assistant Circulation Manager Gerald Szoszorek, had the day-to-day supervision of some 30 to 35 employees until November 1968. Subsequently, his job function was somewhat changed to the supervision of 15 district managers. From evidence such as the foregoing, the Examiner concluded ...