American Broadcasting Companies v. Writers Guild of America West Supplemental Briefs on Reargument

    The Supreme Court 
of the United States

American Broadcasting
Companies, et al.
versus
Writers Guild of America,
West

Supplemental Briefs on Reargument

Law Reprints
Labor Series
Volume 11, no. 8a 
1977/1978 Term



In The

l§>upmm> ( ta r t  nf thr Mniteh f la ir s
October Term, 1977

Nos. 76-1121,76-1153 and 76-1162

A merican Broadcasting Company, Inc., et al.,
Petitioners,

v.

Writers Guild of America, West, I nc.,
Respondent.

RESPONDENT’S SUPPLEMENTAL MEMORANDUM 
ON REARGUMENT

Of Counsel:
P aul P. Selvin

J ulius Reich , a Member of 
Reich , Adell & Crost,
A Professional Law Corporation, 

501 Shatto Place, Suite 100, 
Los Angeles, Calif. 90020,

Attorneys for Respondent, 
Writers Guild of America, 
West, Inc.



In The

§ititmiw (Cmtrt of % §iatm
October Term, 1977

Nos. 76-1121, 76-1153 and 76-1162

American Broadcasting Company, Inc ., et al.,
Petitioners, v. ’

Writers Guild of America, West, Inc.,
Respondent.

RESPONDENT’S SUPPLEMENTAL MEMORANDUM 
ON REARGUMENT

1. In Florida Power & Light V. Electrical Workers, 
417 U.S. 790, 812-813 (footnote omitted) (hereafter 
“FP&L”) this Court reasoned:

“Congress’ solution [to the “eonflict-of-loyalties” 
problem] was essentially one of providing the em­
ployer with an option. On the one hand, he is at 
liberty to demand absolute loyalty from his super­
visory personnel by insisting on pain of discharge, 
that they neither participate in, nor retain member­
ship in, a labor union, see Beasley v. Food Fair of 
North Carolina, Inc., [416 U.S. 653, 661-662], Alter­
natively, an employer who wishes to do so can per­
mit his supervisors to join or retain their member­
ship in labor unions, resolving such conflicts as arise 
through the traditional procedures of collective bar­
gaining. But it is quite apparent, given the statutory 
language and the particular concerns that the legis­
lative 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 gener-

1



2

alized problem of supervisor-member conflict of loy­
alties.”

It has perhaps not been sufficiently emphasized, because 
the obvious is sometimes taken for granted, that in addi­
tion to their other flaws the theories which have been 
put forth to justify the Board’s decision that the Union 
violated § 8(b) (1) (B) by disciplining the hyphenates for 
crossing its picket line ignore the “option” which Congress 
gave the employer. -For what these theories of illegality 
have in common—aside from their result—is that they 
assume that the employer is powerless to negate the pos­
sible consequential effects of such discipline on the su­
pervisor-member’s performance of § 8(b)(1)(B) func­
tions: The “carryover” theory (Bd. Pet. 12a-13a) is that 
disciplining a supervisor-member who has collective bar­
gaining or grievance handling responsibilities for working 
during a strike may adversely affect his performance of 
§ 8(b)(1)(B) functions in the future because he will 
fear union discipline for performing those functions; the 
“deprivation” theory (Bd. Br. 16-17) is that disciplining 
a supervisor-member for working during a strike may 
deprive the employer of the performance of § 8(b)(1) 
(B) functions in any subsequent strike because he will 
fear union discipline if he does work; the “threat” theory 
(Bd. Br. 15-16) is that a union’s announced intention to 
discipline supervisor-members for crossing a picket line 
may cause a refusal to work that deprives the employer 
of the performance of § 8(b)(1)(B) functions during 
the then-pending strike. But if  the employer exercises 
his option to require the supervisor-member to leave the 
union the latter need not fear any discipline there­
after because he will no longer be subject to the union’s 
authority in any way. Thus, what the Board’s decisions 
do is to provide the employer with a further option, 
which Congress did not afford him—to allow (or require) 
the supervisor to be a member of the union, but on terms 
prescribed by the employer rather than by the union.

2



3

The foregoing would be the end of the matter except 
for the fact that here the Union forbade resignation dur­
ing the strike. In this circumstance, we acknowledge that 
the Employer does not have the option of saving the su­
pervisor-member harmless from union discipline.1 But the 
Board could find a violation under the theory that a threat 
to discipline supervisor-members who cannot resign from 
the union for crossing a picket line during the strike 
restrains and coerces the employer by depriving him of 
the performance of § 8(b)(1)(B) functions during the 
strike only if it finds that the supervisor-members in 
fact refused to cross the picket line because of that threat. 
The Board made no such finding. On the contrary, the 
Board’s conclusion that the threat to discipline the hy­
phenates was unlawful2 was based not on the supposed 
impact of that threat, but on the ipse dixit that the dis­
cipline against hyphenates who crossed the picket line 
wras unlawful and that the threat to discipline was there­
fore unlawful: “As we find that § 8(b) (1) (B) proscribes 
the disciplinary action here taken against some hyphen­
ates (but only threatened against others), it would seem 
to follow, and we further find, that the proscription also 
encompasses the threat to take the prohibited disciplinary 
action.” 13

1 Before the Administrative Law Judge the General Counsel 
contended that “Respondent’s rule restricting the right of 
hyphenate-members to resign from membership should also be found 
to violate the Act”. (Bd. Pet. 64a.) However, the ALJ refused 
to pass on that issue because the “Genera! Counsel did not allege 
this matter as a violation of the Act in his complaint, nor put it 
properly in issue during the hearing.” (Bd. Pet. 65a.) The validity 
of this rule is therefore not before this Court. We, of course, believe 
that the rule is lawful, and therefore do not contend that the 
employer could have protected the hyphenates from discipline and 
for working during this strike by requiring them to resign.

2 On this point the Board reversed the ALJ. (See Bd. Pet. 11a- 
13a.)

3 Bd. Pet. 12a-13a.

3



4

Thus, the soundness of the Board’s “threat” theory as 
stated in this ease depends on the soundness of its con­
clusion that the discipline against the hyphenates who 
worked was unlawful. That conclusions is wrong.4 The 
Employer was not deprived of the services of the hyphen­
ates who worked during the strike and therefore was not 
restrained or coerced in that respect. And, it is equally 
plain that after the strike the Employer did have the 
option of requiring the hyphenates to resign and thereby 
to protect against any “carryover” or future “depriva­
tion” effects of the discipline. See pp. 2-3, supra. The 
Board’s reply brief does not assert that the Board found 
that any hyphenate in fact failed to work because of the 
threats; instead it seeks to avoid the need for such a find­
ing by reasoning in a circle:

“Nor was it necessary to establish that supervisors 
who refused to cross the picket line ‘did so out of fear 
of discipline rather than because of appeals to their 
union consciousness” (Un. Br. 30). Having unlaw­
fully threatened the supervisors with discipline, the 
Union has the burden ‘to disentangle the conse­
quences for which it was chargeable from those from 
which it was immune’ (National Labor Relations 
Board V. Remington Rand, Inc., 94 F.2d 862, 872 
(C.A. 2)) .” (Bd. Reply Br. 7, n.5)

This simply assumes the point at issue, which is whether 
the threat of discipline was unlawful; if it was not un­
lawful, the Remington-Rand principle'—which deals with 
the burden of proof with respect to the consequences of 
conduct the illegality of which has already been estab­
lished—does not come into play.0

4 Moreover, the Board’s remedy, which invalidates the discipline to 
the supervisors who did work—and whose services the Employer 
enjoyed—was not and cannot be justified on the theory that the 
gravamen of the offense is a threat to a supervisor who was not per­
mitted to resign.

5 Nor is illegality of the threat established by the artful formula­
tion in the preceding sentence of that brief that the “refusal [to

4



5

We, of course, acknowledge that the fact that a threat 
was made is evidence on which a finding could be made 
in an appropriate case that a supervisor-member’s deci­
sion was a response to the threat rather than a voluntary 
decision; but that fact does not compel such a finding, 
particularly on this record where many hyphenates went 
to work despite the threat. In any event, under this 
Court’s decisions, such a finding cannot be supplied on 
review.6

2. The result in this case depends, ultimately, on what 
precedential effect is given this Court’s decision in FP&L. 
The Board’s decision can stand—on any of the theories 
advanced in its support—only if the authority of FP&L 
is restricted to the proposition that a union may discipline 
a supervisor-member for performing rank and file struck 
work; that is, work which would be performed by rank 
and file employees but for the strike. For the Board here 
found a violation with respect to all hyphenates on the 
sole ground they were ‘‘‘representatives, or potential rep­
resentatives, of their employers in the adjustment of 
grievances” (Bd. Pet. 12a, n.5) who did not perform

work] was attributable to the union’s threat of discipline, which 
constitutes restraint and coercion within the meaning- of § 8(b) 
(1) (b).” (Bd. Reply Br. 7, n.5.) The refusal was “attributable” 
to the threat in fact or in law if, and only if, the threat caused 
the refusal, and this was neither found nor proven.

6 The Board also asserts on brief that the “Union’s blacklisting 
rule (and the actions following nominal rescission of that rule, 
* * *) therefore may have brought about a situation where the 
employer would be permanently deprived of the hyphenate’s super­
visory agencies following the strike, * * (Bd. Br. 18.) Of 
course, if the Union had in fact refused to allow Its members to 
work for or with a particular supervisor-member who was also 
a § 8(b) (1) (B) representative that conduct would clearly fall with­
in “the metes and bounds of the statutory language” (FP&L, 417 
U.S. at 798), and would have been illegal even absent the Board’s 
Oakland Mailers adventurism. (See Id. at 798-799.) But again 
there is no evidence, let alone a finding, that this “situation” 
eventuated; thus, while the blacklisting rale affords some coloration 
to the “threat” argument, ti cannot supply the critical missing 
finding that the threat kept supervisors from working.



6
struck work, and without regard to whether they actually 
performed § 8(b) (1) (B) functions during the strike (or 
would have performed such functions but for the Union’s 
strike rules). The Board’s decision, and the arguments on 
petitioners’ side, treat as alike the entire range of the 
supervisors’ activities whether those consisted of work 
defined in § 8(b)(1)(B),  work defined in §2(11), or 
even work defined in neither and which is the same as 
that performed by rank and file employees, but which 
supervisors were also permitted to perform before the 
strike. In short, petitioners do not acknowledge the anal­
ysis by which the Court reached its conclusion that the 
union’s conduct in FP&L was lawful to be in any way 
authoritative. In this they follow in the errant path of 
the Board which has steadfastly proceeded without re­
gard to this Court’s reasoning in FP&L. (See AFL-CIO 
Br., 6-15.)

Indeed, it is not sufficient for the petitioners to prevail 
that the entire discussion of the law in FP&L be ignored. 
It is also necessary that this Court draw a distinction 
between rank and file struck work and other rank and file 
work. While the FP&L opinion refers to the fact that the 
supervisors there had performed “rank-and-file struck 
work”, there is no indication that absent this fact the 
discipline would have been illegal. And, this distinc­
tion is entirely unprincipled. To forbid discipline of 
supervisors for performing non-struck rank and file work, 
wrests the law away, not only from the moorings of 
§ 8(b)(1)(B) but even those of §2(11).7

7 Moreover, in those industries where supervisors are permitted 
to perform some rank and file work, that distinction would ordinarily 
create the most complex questions of fact as to whether the super­
visor performed struck work or only the customary amount of rank 
and file work. To determine the normal amount of rank and file 
work performed by supervisors would require that a sophisticated 
time and motion study have been conducted before the strike; more­
over, because of the nature of a strike, the union would not usually 
know how much rank and file work the supervisor performed during 
the strike, particularly if some employees, or replacements, crossed

6



7
Nor does the decision herein reveal the full extent of 

the Board’s nullification of FP&L. In Chicago Typo­
graphical Union No. 16 (Hammond Publishers), 216 
NLRB 903, 905 (enforced 539 F.2d 272 (C.A. 7) pet. for 
cert, pending, No. 76-688), the Board held that the union 
had illegally disciplined two supervisors who had oper­
ated machines that striking rank and file employees nor­
mally operated, saying that “under our view of Florida 
Power it makes no difference whether a supervisor per­
forms a minimal amount of struck work * * It is 
now the Board’s position that a union violates the Act 
if it disciplines a supervisor who has performed struck 
work and has also “spent more than a ‘minimal amount’ 
of time in performing supervisory duties”. (Laborers 
International Union (Kingsley Drilling), 229 NLRB 
No. 139, 95 LRRM 1155, 1156, cited at Bd. Reply Br. 6, 
n.4.) It is no longer even necessary for the Board as a 
predicate for a violation to find, as it did in Hammond, 
that the amount of struck work performed was only “min­
imal”. Thus, the union’s right to discipline its supervisor 
members for performing rank and file struck work vali­
dated by this Court in FP&L has been whittled down 
almost to the vanishing point; that is to the situation— 
which the employer can avoid in any strike—w'here the 
supervisor-members do nothing other than struck work, 
or perhaps almost nothing else.

We, on the other hand, submit that this case is not 
to be dealt with as if it were a matter of first impression. 
In FP&L this Court determined that “the language and 
the legislative history of § 8(b) (1) (B) reflect a clearly 
focused congressional concern with the protection of em­
ployers in the selection of representatives to engage in 
two particular and explicitly stated activities.” ; carefully 
differentiated the scope of § 8(b) (1) (B) and § 2(11), and 
rejected the Board’s “conflict-of-loyalties” theory. (See

the picket line. The consequence would be to circumvent FP&L by 
the back door.

7



8

417 U.S. at 803, 811, n.21, and 811-813.) If due heed 
is taken of that analysis—as the Board was duty-bound 
to do—union discipline of a supervisor-member or a threat 
of discipline is unlawful only if the union’s purpose is to 
prevent the performance of § 8(b) (1) (B) functions, to 
punish the supervisor-member for performing such func­
tions (or for the manner in which he performed them), 
or to affect his performance thereof in the future,

3. Finally the Board’s application of § 8(b) (1) (B) to 
union discipline of supervisor-members suffers from a fail­
ure to appreciate that the regime established by that pro­
vision is not unique under this Act. It is common ground 
that wherever the line may be drawn a union may for 
some reasons take disciplinary action against supervisors 
but that it may not (assuming the validity of Oakland 
Mailers itself) take such action for others. So viewed, 
the problem is identical to one which Is a commonplace 
under the NLRA; namely, whether an employer’s action 
against an employee is or is not forbidden by § 8(a) (3) :

“Section 8(a) (3) prohibits discrimination in re­
gard to tenure or other conditions of employment to 
discourage union membership, Under the words of 
the statute there must be both discrimination and a 
resulting discouragement of union membership. It 
has long been established that a finding of violation 
under this section will normally turn on the employ­
er’s motivation. * * * Thus when the employer dis­
charges a union leader who has broken shop rules, 
the problem posed is to determine whether the em­
ployer has acted purely in disinterested defense of 
shop discipline or has sought to damage employee 
organization. It is likely that the discharge will nat­
urally tend to discourage union membership in both 
cases, because of the loss of union leadership and the 
employees’ suspicion of the employer’s true Intention. 
But we have consistently construed the section to 
leave unscathed a wide range of employer actions 
taken to serve legitimate business interests in some

8



9

significant fashion, even though the act committed 
may tend to discourage union membership. * * * Such 
a construction of § 8(a) (3) is essential if due protec­
tion is to be accorded the employer’s right to manage 
his enterprise.” (American Ship Bldg. v. Labor
Board, 380 U.S. 300, 311.)

The parallel is exact. In each instance a range of 
activity by an individual is privileged from discipline by 
another party which has some authority over him; and in 
both the Act leaves the party with authority free to 
discipline the individual for engaging in other conduct.8 
Thus where a union disciplines a supervisor-member for 
crossing a picket line (or threatens to do so) “the prob­
lem posed is to determine whether the [union] has acted 
purely in disinterested defense of [its lawful rules] or 
has sought to [prevent the performance of § 8(b) (1) (B) 
functions].” And this is so even granting for the moment 
that such discipline “will naturally tend to discourage” 
the supervisor from performing § 8(b) (1) (B) functions 
“in both cases because of the [supervisor’s] suspicion of 
the [union’s] true intention.” That being so, if what the 
supervisor may suspect were the test of legality, the 
Congressional decision “to leave unseathed a wide range 
of [union disciplinary] action” would be overridden.9 We 
submit that this construction of § 8 (b) (1) (B) is essen-

8 Even as federal law imposed no restriction on employer disci­
pline of employees prior to 1935, so federal law imposed no restric­
tion on union discipline of members prior to 1947.

9 The soundness of the American Ship analogy does not depend 
upon our view that only the supervisor’s performance of § 8 (b) 
(1) (B) functions is within the protection of the provision. If, for 
example, all supervisory functions were likewise beyond the scope 
of permissible union discipline, this would merely change the place 
where the line was drawn but would not change the manner of 
drawing the line, any more than the necessity to prove motive in 
a § 8(a) (3) case depends on the meaning of “union membership’’ 
in that provision. Whatever supervisor conduct is protected (for 
the employers’ benefit), the union’s correlative right to discipline 
its members on any other grounds can be preserved only by applying 
a motive test.

9



10

tial if “due protection is to be accorded the [union’s] 
right to [enforce its lawful rules],” just as it is essential 
in the § 8(a) (3) context to protect the parallel em­
ployer right.10

CONCLUSION

For the reasons stated herein, as well as in our brief 
on the original argument, the judgment of the Court of 
Appeals should be affirmed.

Respectfully submitted,

J ulius Reich, a Member of 
Reich, Adell & Crost,
A Professional Law Corporation, 

501 Shatto Place, Suite 100, 
Los Angeles, Calif. 90020,

Attorneys for Respondent, 
Writers Guild of America, 
West, Inc.

10 We note that this case is not analogous to “that category of 
cases arising under § 8(a) (3) in which the Board may truncate 
its inquiry into employer motivation.” (380 U.S. at 312.) For, 
unlike Labor Board v. Radio Officers, 347 U.S. 17, there is no evi­
dence that the Union acted only against supervisor-members who 
adjusted grievances (or adjusted them in a particular manner). 
Nor is this case comparable to NLRB V. Erie Resistor, 373 U.S. 221, 
where the employer concededly acted against a class of employees 
on the basis of their engaging in protected concerted activity, and 
the question was whether his action was nonetheless permissible 
because of an overriding countervailing employer right. For here 
the supervisor-members were not engaging only in protected ac­
tivity, but also in activity for which the Union was privileged to 
discipline them, and there is nothing in the record to show that the 
Union’s discipline was predicated in any way on the performance of 
protected activity as opposed to unprotected activity. This presents 
the classic situation requiring proof of an improper motive to 
establish a violation. And, of course, the Board made no such finding, 
nor did it purport to balance the employer interest against that of 
the union.

Of Counsel:
Paul P. Selvin

10



31 tt it]p Supreme Court of tlrje Putted ^tatee
O ctober T erm , 1977

No. 76-1121
A merican  Broadcasting  C ompanies, In c ., et al.,

PETITIONERS
V.

W riters G u ild  of A merica , W est. In c ., et al .

No. 76-1153
A ssociation of M otion  P icture and T elevision 

P roducers, In c ., petitioner
v.

W riters G u ild  of A merica , W est, In c ., et al.

No. 76-1162
N ational Labor R elations Board , petitioner

v.
W riters G u ild  of A merica , W est, In c ., et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONSE OF THE NATIONAL LABOR RELATIONS 
BOARD TO RESPONDENT'S SUPPLEMENTAL 

MEMORANDUM ON REARGUMENT

In our opening brief (pp. 16-18), we showed that the 
Board properly concluded that both the Union’s threats of 
discipline, and the discipline itself, were likely to 
“adversely affect” the hyphenates’ “conduct in performing 
the duties of, and acting in [their] capacity as, grievance 
adjuster or collective bargainer on behalf of the

( 1) 11



2

employer[s].” Florida Power & Light Co. v. International 
Brotherhood o f Electrical Workers, Local 641, 417 U.S. 
790, 804-805. For, had the hyphenates succumbed to the 
threats of discipline and refused to cross the Union’s 
picket lines, the Employers would have been deprived of 
their chosen representatives for the performance of 
supervisory duties, which included grievance adjustment 
and collective bargaining, for the duration of the strike. 
Moreover, as for those hyphenates who defied the Union, 
crossed the picket lines, and were disciplined, the likely 
effect of such discipline would be to deprive the 
Employers of the hyphenates’ collective bargaining or 
grievance adjustment services in the future. The 
arguments advanced in respondent’s supplemental 
memorandum do not undermine the Board’s position.

1. Respondent acknowledges that, since the Union 
forbade resignation during the strike, the employer, in this 
case, “does not have the option of saving the supervisor- 
member harmless from union discipline” by requiring “the 
supervisor-member to leave the union” (Supp. Memo. 2- 
3).1 It nonetheless contends that the Board’s finding of a 
violation of Section 8(b)(1)(B) of the Act based on the 
Union’s threat to discipline supervisor-members who 
crossed the picket line is deficient because the Board 
found neither that “the supervisor-members in fact 
refused to cross the picket line because of that threat” 
(Supp. Memo. 3), nor that the Union’s motive was to 
prevent the supervisor’s performance of 8(b)(1)(B) 
functions (Supp. Memo. 9). Such findings were not 
required here.

'As respondent notes (Supp. Memo. 1-2), the Court, in Florida 
Power, supra, emphasized that the employer there had that option.

12



3

Thus, the Union does not dispute that it threatened the 
hyphenates that they would be disciplined if they crossed 
the Union picket lines to work in any capacity, nor does 
the Union dispute that many hyphenates thereafter 
refused to cross the picket lines. Having threatened the 
hyphenates, the burden was clearly upon the Union to 
prove that the hyphenates’ failure to cross was not the 
result of the Union’s threats. National Labor Relations 
Board v. Remington Rand, Inc., 94 F. 2d 862, 872 (C.A. 
2). Moreover, since the Employers had requested the 
hyphenates to report for work to perform their normal 
functions as producer, director, or story editor, and these 
functions included grievance adjustment and collective 
bargaining (Pet. App. 40a-42a, 27a, 28a, 30a), the Union’s 
threat, if successful, would necessarily have resulted in 
depriving the Employers of any of the hyphenates’ normal 
supervisory functions, including their 8(b)(1)(B) func­
tions. In these circumstances, the Union is properly 
chargeable with “the foreseeable consequences of [its] 
conduct.’’ Radio Officers’ Union v. National Labor Rela­
tions Board, 347 U.S. 17, 45.2

2. Respondent is on no firmer footing in attacking the 
Board’s finding that the discipline against the hyphenates 
who worked was unlawful. Thus, respondent argues 
(Supp. Memo. 4) that the “Employer was not deprived of 
the services of the hyphenates who worked during the 
strike and therefore was not restrained or coerced in that

2See also International Ladies’ Garment Workers v. National 
Labor Relations Board, 366 U.S. 731, 738-739; National Labor 
Relations Board v. Service Employees International Union, Local 
254, 535 F. 2d 1335, 1337-1338 (C.A. 1); National Labor Relations 
Board v. Sheet Meta! Workers, Local Union No. 361, 477 F'. 2d 675, 
667 (C.A. 5). Cl. National Labor Relations Board v. Burnup & 
Sims, Inc., 379 U.S. 21, 23-24; National Labor Relations Board v. 
Illinois Tool Works, 153 F. 2d 811, 814 (C.A. 7).

13



4

respect. And, it is equally plain that after the strike the 
Employer did have the option of requiring the hyphenates 
to resign and thereby to protect against any ‘carryover’ or 
future ‘deprivation’ effects of the discipline.”

But the fact that some of the hyphenates defied the 
Union and went to work does not establish that the 
Union’s threat of discipline did not coerce the Employers. 
From the time when the Employers first learned of the 
Union’s threats until they determined which hyphenates 
would cross the picket lines, the Employers were forced to 
risk indefinite production delays as the price of retaining 
their selected 8(b)(1)(B) representatives. The fact that the 
possible loss did not materialize where the hyphenates 
ultimately crossed the picket lines could not retroactively 
remove the restraint visited on the Employers by the 
Union’s threats. The lawfulness of a threat is not 
dependent on its effectiveness.3 Moreover, even if the 
Employers, after the strike, were able to require the 
hyphenates to resign from the Union, it is unlikely that 
this would afford protection from any “carryover” or 
future “deprivation” effects of the discipline. For, under 
the Union’s blacklisting rule, an employer who retained a 
disciplined hyphenate risked a post-strike walkout by his 
entire work force (Pet. App. 38a-39a).4

3See Local 542, International Union o f Operating Engineers v. 
National Labor Relations Board, 328 F. 2d 850, 852-853 (C.A. 3), 
certiorari denied, 379 U.S. 826; Local Union No. 167, Progressive 
Mine Workers v. National Labor Relations Board, 422 F. 2d 538, 542 
(C.A. 7), certiorari denied, 399 U.S. 905.

4Although the Union sought to rescind this rule after the Board’s 
complaint issued, the Board found that the rescission was merely 
nominal (Pet. App. 69a-70a).

Respondent concedes that, “if the Union had in fact refused to 
allow its members to work for or with a particular supervisor- 
member who was also a §8(b)(l)(B) representative that conduct

14



5

CONCLUSION

For these reasons, as well as those set forth in our 
opening and reply briefs, the judgment of the court of 
appeals should be reversed, and the case should be 
remanded to that court with instructions to enforce the 
Board’s order.

Respectfully submitted.

W ade H. M c Cree, J r .,
Solicitor General.

J ohn  S. Ir v in g ,
General Counsel,

J ohn E. H ig g in s , J r .,
Deputy General Counsel,

C arl L. T aylor,
Associate General Counsel,

N orton J. C ome,
Deputy Associate General Counsel,

J ohn G. E lligers,
Attorney,
National Labor Relations Board.

M arch  1978.

would clearly fall within ‘the metes and bounds of the statutory 
language’ ” but adds that “there is no evidence, let alone a finding 
that this ‘situation’ eventuated” (Supp. Memo. 5, n. 5). This 
overlooks the fact that the threat that writers and others will not 
work with a disciplined hyphenate would tend to restrain the 
Employers’ “selection” of that hyphenate no less than would the 
actual invocation of the blacklisting rule.
DOJ-1978 03

15



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