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grievances. It was also found that the hyphenates were especially vulnerable to pressure from the union and that many of them were actually restrained and prevented from performing their normal duties, including the adjustment of grievances. These are sufficiently clear findings that union pressures kept many hyphenates from the job, and, on the record before us, it approaches the frivolous to argue that there is insufficient evidence to support them. It also follows, as the Administrative Law Judge and the Board concluded, that as to those hyphenates whom the union kept from work, the employer was restrained and coerced within the meaning of § 8 (b)(1)(B) by being totally deprived of the opportunity to choose these particular supervisors as his collectivebargaining or grievance-adjustment representatives during the strike.
Second, as to those hyphenates who reported for work, it is strenuously urged that there is no basis for concluding that the discipline imposed upon them would adversely affect the performance of their grievance-adjustment duties either during or after the strike. Again, however, we are unwilling to differ with the Board in these respects. The inquiry whether union conduct would or might adversely affect the performance of the hyphenates' grievance-adjustment duties is, as petitioners assert, 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 us to be peculiarly the kind of determination that Congress has assigned to the Board:
“An administrative agency with power after hearings to
32 The findings were also that:
"The record is convincing that Respondent, well aware of the primary supervisory, management, and executive functions of its hyphenatemembers, drafted its strike rules and enforced them with the intent of compelling those hyphenate-members from going to work during the strike, without regard to the capacity in which they performed or the work done." App. to Pet. for Cert. in No. 76–1162, p. 69a.
determine on the evidence in adversary proceedings whether violations of statutory commands have occurred may infer within the limits of the inquiry from the proven facts such conclusions as reasonably may be based upon the facts proven. One of the purposes which lead to the creation of such boards is to have decisions based upon evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration." Republic Aviation Corp. v. NLRB, 324 U. S. 793, 800 (1945); Radio Officers v. NLRB, 347 U. S.
17, 48 49 (1954). See also NLRB v. Erie Resistor Corp., 373 U. S. 221, 227 (1963); Teamsters v. NLRB, 365 U. S. 667, 675 (1961). The Board's findings are “entitled to the greatest deference in recognition of its special competence in dealing with labor problems." American Ship Building Co. v. NLRB, supra, at 316.
Furthermore, it does not strike us as groundless or lacking substantial evidence for the Board to conclude on this record that the discipline imposed would have the necessary adverse effect. Strike rules were distributed in February; the strikes against the Association began on March 4 and terminated June 24; the strikes against the networks began on March 29 and ended on July 12. Between April 6 and November & both during and after the strikes some 31 hyphenates who had worked during the strikes were charged with violating union rules, 33 15 hearings had been held prior to the closing of evidence in November 1973, and from June 25 to September 28, very substantial penalties were imposed in 10 cases although 9 have already been reduced on appeal. These penalties were widely publicized at the time of their imposi
83 Violations of Rules 1, 12, 13, and 28 were alleged. See, supra, at 415, 416, 417, and n. 3.
tion. Other charges were pending and remained to be tried when the record was closed in this case.
These penalties were meted out at least in part because the accused hyphenates had complied with the orders of their employers by reporting for work and performing only their normal supervisory functions, including the adjustment of grievances, during the strike. Hyphenates who worked were thus faced not only with threats but also with the actuality of charges, trial, and severe discipline simply because they were working at their normal jobs. And if this were not enough, they were threatened with a union blacklist that might drive them from the industry. How long such hyphenates would remain on the job under such pressure was a matter no one, particularly the employer, could predict.
Moreover, after the strike, with the writers back at work, the hyphenates who had worked during the strike still faced charges and trials or were appealing large fines and long suspensions. At the same time, they were expected to perform their regular supervisory duties and to adjust grievances whenever the occasion demanded, functions requiring them to deal with the same union which was considering the appeal of their personal sanctions. As to these supervisors, who had felt the union's wrath, not for doing rank-and-file work contrary to union rules, but for performing only their primary supervisory duties during the strike and who were in a continuing controversy with the union, it was not untenable for the Board to conclude that these disciplined hyphenates had a diminished capacity to carry out their grievance-adjustment duties effectively and that the employer was deprived of the full range of services from his supervisors. Such a hyphenate
34 In determining that the Board had exceeded the limitations of the statute in the FP&L and Illinois Bell cases, the Court of Appeals for the District of Columbia Circuit recognized that when a supervisor acts as a grievance adjustor, "he is a representative of management, and as such he should be immune from union discipline. The unions participating in the present cases conceded as much at oral argument when they agreed that
might be tempted to give the union side of a grievance a more favorable slant while the threat of discipline remained, or while his own appeal of a union sanction was pending. At the very least, the employer could not be certain that a fined hyphenate would willingly answer the employer's call to duty during a subsequent work stoppage, particularly if it occurred in the near future.85 For an employer in these circumstances to insure having satisfactory collective bargaining and grievance-adjustment services would require a change in his representative.
As the Board has construed the Act from Oakland Mailers to Triangle, Hammond, and the cases now before us, such a likely impact on the employer constitutes sufficient restraint and coercion in connection with the selection of collectivebargaining and grievance-adjustment representatives to vio
when a supervisor crosses & picket line to perform supervisory work he remains immune from discipline. ... The dividing line between supervisory and nonsupervisory work in the present context is sharply defined and easily understood.” 159 U. S. App. D. C., at 286, 487 F. 2d, at 1157.
As the Court of Appeals for the Seventh Circuit said: "[W]here supervisors cross picket lines to perform rank-and-file struck work, union discipline does not violate Section 8 (b)(1)(B) since it merely deprives the employer of services normally rendered by strikebreaking replacement employees.” Skippy Enterprises, 532 F. 2d 47, 53 (1976). On the other hand, "Where supervisors cross picket lines to perform regular supervisory duties, union discipline violates Section 8 (b)(1)(B) since it tends to deprive the employer of its supervisors' services including their 88 (b)(1)(B) services and because the supervisors would reasonably anticipate that union discipline would also be imposed if future performance of their $ 8 (b)(1)(B) functions did not meet with union approval." Ibid.
35 Union discipline might even result in depriving the employer of the supervisors' services forever, if the blacklist involved in this case had been successful. The employer would have had no choice but to let the hyphenate go, since the positions of director, producer, and script editor unavoidably require working with rank-and-file writers.
late & 8 (b)(1)(B). In FP&L the Court declined the invitation to overrule Oakland Mailers, and we do so again. Union pressure on supervisors can affect either their willingness to serve as grievance adjustors or collective bargainers, or the manner in which they fulfill these functions; and either effect impermissibly coerces the employer in his choice of representative.36
Third, it is further urged that union discipline could not adversely affect a supervisor's later performance of his § 8 (b)(1)(B) duties because the employer could require him to leave the union and thus free himself from further threats of union discipline. This submission has little force in this case, since, as the Administrative Law Judge found, the union's known policy was not to permit a member to resign during a strike and for a period of six months thereafter. For the entire period to which the Board's findings were addressed, hyphenates could not terminate their membership, and the
86 In the FP&L and Illinois Bell cases, the Court of Appeals for the District of Columbia Circuit noted that its consistent view has been that the "basic rationale [of Oakland Mailers] is consistent with the purposes of Section 8 (b)(1)(B) ... [for) management's right to a free selection would be hollow indeed if the union could dictate the manner in which the selected representative performed his collective bargaining and grievance adjustment duties." 159 U. S. App. D. C., at 282, 283, 487 F. 2d, at 1153, 1154. The court also noted its agreement with New Mexico District Council of Carpenters and Joiners of America ( A. S. Horner, Inc.), 177 N. L. R. B. 500 (1969), enf'd, 454 F. 2d 1116 (CA10 1972), where a union member worked as a supervisor for a company which had no contract with the union. 159 U. S. App. D. C., at 284 n. 19, 487 F. 2d, at 1155 n. 19. A fine imposed in these circumstances violated the section because compliance by the supervisor with the union's demands would have required his leaving his job and thus have "the effect of depriving the Company of the services of its selected representative for the purposes of collective bargaining or the adjustment of grievances.” 177 N. L. R. B., at 502. The Court of Appe said that A. S. Horner "thus falls close to the original rationale of $ 8 (b)(1)(B) which was to permit the employer to keep the bargaining representative of his own choosing." 159 U. S. App. D. C., at 284 n. 19, 487 F. 2d., at 1155 n. 19.