International Brotherhood of Electrical Workers v. National Labor Relations Board

487 F.2d 1113, 159 U.S. App. D.C. 242

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 22, 1972
• Docket: Nos. 71-1559, 71-1785
• Status: Published

Opinions

MacKINNON, Circuit Judge:

Illinois Bell Telephone Company (hereinafter referred to as the Company or the Employer) and its predecessors have maintained a contractual relationship with Local 134, International Brotherhood of Electrical Workers, AFL-CIO (hereinafter referred to as Local 134) since 1909. Local 134 represents the Company’s Chicago workers in the “Plant Department,” including not only journeymen and apprentices employed as P.B.X.¹ installers but also persons employed as “P.B.X. Installation Foremen,” “Building Cable Foremen,” and “General Foremen.” 2 Under Article III, Section 1 of the collective bargaining agreement between Local 134 and the Company, which was in effect at all times relevant to the instant ease, all members of the bargaining unit, including the above-mentioned foremen, were required to become and remain members of Local 134 within thirty days of the commencement of their employment.³

Between May 8, 1968, and September 20, 1968, Local 134 engaged in an economic strike against the Company. At the inception of this strike, the Company informed the foremen that it would like to have them come to work during the work stoppage, but it told them that the decision whether to work or to respect the strike was a matter left to the personal discretion of each individual foreman. The Employer indicated that those who chose not to work would not be penalized. On the other hand, a Local 134 representative warned the foremen, at a union meeting held immediately before the strike, that they would be subject to union discipline if they performed rank-and-file work⁴ during the strike. In response to this warning, several foremen formed the Bell Supervisors Protective Association (hereinafter referred to as the Association), and through it they retained counsel to protect the rights of those foremen who chose to work during the strike. The Association also planned to encourage other Company foremen to report to work during the work stoppage.

During the course of the strike, some of the foremen reported to work and performed rank-and-file work, while other foremen chose to honor the strike and stayed away from work. After the strike, the Company in no way discriminated against the latter group, and it indeed promoted some of them to higher positions. Local 134, however, carried out its pre-strike warning and conducted disciplinary proceedings against a number of foremen.⁵ Local 134 imposed fines of $500 on each foreman who performed rank-and-file work during the strike, and it imposed fines of $1,000 each on the five foremen who were instrumental in the formation of the Association. Most of the foremen who were fined exercised their right under the constitution of the International Brotherhood of Electrical Workers, AFL-CIO (hereinafter referred to as the International Union) to appeal from the disciplinary action of Local 134 — first to the International Union Vice President, and then to the International Union President. The appellants contended that Local 134’s imposition of fines upon them was illegal, and they asserted that the contractual union-security provision which required them to be members of Local 134 was similarly unlawful. Of those foremen who appealed, three had their appeals sustained on the ground that the charges against them had not been timely filed. Three others had their appeals disqualified based upon the procedural ground that their appeals were untimely. The other appellants had their disciplinary fines upheld. Local 134 has commenced suit in the Illinois courts to collect some of the fines. Insofar as any of the foremen have paid any part of the fines, the Company has reimbursed them.

In June of 1969, the Association filed an unfair labor practice charge with the National Labor Relations Board (Labor Board or N.L.R.B.), alleging that Local 134 and the International Union had violated section 8(b) (1) (B) of the National Labor Relations Act, as amended (N.L. R.A.),⁶ by fining the Company foremen because of their performance of rank- and-file work during the 1968 strike and by fining the five foremen who were instrumental in the formation of the Association. A complaint was issued pursuant to this charge, and a hearing relating thereto was held before Trial Examiner Frederick Reel. The first three days of hearings were devoted exclusively to the section 8(b)(1)(B) issue. However, on the afternoon of the fourth and final day of hearings, as the hearings were about to be closed, counsel for the Association offered a motion to amend the complaint “to Conform Pleading [i. e., the complaint] to Proof.” The Association indicated that the collective bargaining agreement which contained the union-security provision had been admitted into evidence as part of the section 8(b)(1)(B) case, and it argued that this provision was in clear violation of section 8(a) (3) (i) of the N.L.R.A., since it covered a bargaining unit which included both “employees” and “supervisors.” ⁷

The counsel for the General Counsel of the Labor Board did not join in or consent to the Association’s motion to amend the complaint.⁸ The Trial Examiner noted that the identical legal contention presented by the Association had previously been rejected by the General Counsel,⁹ and he decided that it would not be appropriate to permit such an amendment under the circumstances of the case before him. He noted that “the amendment offered by the [Association] would of necessity add factual allegations to the complaint as well as new [N.L.R.A.] subsections to the list of those violated.” ¹⁰ The Trial Examiner pointed out that the Association was seeking the invalidation of a contractual provision which had been in existence for many years, and he emphasized the fact that eases which had been recently before the Labor Board itself had involved such union-shop arrangements without evoking any intimation that the Board found anything irregular in them. In finally concluding that it would be “inadvisable” to permit the Association’s amendment, the Trial Examiner said that he doubted “the wisdom of deciding so far reaching a question which enters this litigation only by the back door, as it were.” ¹¹ The N.L.R.B. sustained this determination.

The Labor Board concluded, in agreement with the Trial Examiner, that the Company foremen in question were “supervisors” within the meaning of section 2(11) of the Act,¹² at all times relevant to the case. It also affirmed the determination that such foremen were “Employer representatives” within the meaning of section 8(b)(1)(B) of the Act.¹³ The Labor Board finally concurred in the Trial Examiner’s conclusion that both unions- — Local 134 and the International Union¹⁴ —had restrained and coerced the Company in the selection of its collective bargaining and grievance adjustment representatives, in violation of section 8(b)(1)(B), by disciplining foremen/members for performing rank-and-file work during the 1968 strike and by fining foremen/members because of their action in forming the Association. A cease and desist order was issued, and the two unions were affirmatively ordered -to rescind and expunge all records of the fines imposed upon the foremen in violation of section 8(b)(1)(B) of the N.L.R.A.; to reimburse the foremen for any portions of their fines already paid; to advise each such foreman in writing that the fines have been rescinded and that the records pertaining thereto have been expunged; and to post appropriate notices.

The two unions' and the Association petitioned this court for review of the Labor Board’s decision, and the N.L.R.B. filed a cross-application for enforcement of its order. We affirm the decision of the Labor Board insofar as it pertains to the section 8(b)(1)(B) determination and the denial of the Association’s request to amend the complaint. However, while enforcement of the Board’s remedial order against Local 134 is granted in full, we believe that the remedial order against the International Union must be modified to reflect its proper measure of unfair labor practice responsibility.

I

Section 8(b)(1)(B) of the N.L. R.A. prohibits union coercion or restraint of an employer “in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances”.¹⁵ This provision, of course, clearly proscribes direct union interference with an employer’s selection of his section 8(b)(1)(B) representatives.¹⁶ However, as the Labor Board and several courts, including this one, have recently recognized, it also has much broader application. It prohibits indirect union restraint or coercion of an employer, accomplished through the imposition of discipline upon the employer’s representatives for actions performed by them within the general scope of their supervisory or managerial responsibilities. Although the unions involved in the instant case have challenged this latter interpretation of section 8(b)(1)(B) as being an unwarranted extension of the express language of the statutory provision, we must reject this assertion as contrary to the legislative intent of Congress.

A. OAKLAND MAILERS AND ITS PROGENY

In San Francisco-Oakland Mailers’ Union No. 18, International Typographical. Union, 172 NLRB No. 252, 1968-2 CCH NLRB ¶20,195 (1968), the N.L. R.B. held illegal union actions which “were designed to change the [employer’s] representatives from persons representing the viewpoint of management to persons responsive or subservient to [the union’s] will.” ¹⁷ In reaching the conclusion that the union’s imposition of discipline on supervisors because of the manner in which they interpreted and applied the collective bargaining agreement violated section 8(b)(1)(B), the Labor Board noted:

In enacting Section 8(b)(1)(B) Congress sought to prevent the very evil involved herein — union interference with an employer’s control over its own representatives. That [the union] may have sought the substitution of attitudes rather than persons, and may have exerted its pressure upon the [employer] by indirect rather than direct means, cannot alter the ultimate fact that pressure was exerted here for the purpose of interfering with the [employer’s] control over its representatives. Realistically, the Employer would have to replace its foremen or face de facto nonrepresentation by them.18

More recent Labor Board and court decisions have further applied the doctrine enunciated in Oakland Mailers. In N.L.R.B. v. Toledo Locals Nos. 15-P and 272 of Lithographers and Photo-Engravers International Union, 437 F.2d 55 (6th Cir. 1971), wherein the court upheld the Labor Board’s finding of a section 8(b)(1)(B) violation, the Sixth Circuit stated:

This conduct of the union could very well be considered as an endeavor to apply pressure on the supervisory employees of the [employer], and to interfere with the performance of the duties which the employer required them to perform * * * and to influence them to take action which it, the employer, might deem detrimental to its best interests. This conduct of the union would further operate to make the [supervisory] employees reluctant in the future to take a position adverse to the union, and their usefulness to their employer would thereby be impaired.

437 F.2d at 57 (emphasis supplied). See New Mexico District Council of Carpenters and Joiners of America, 177 NLRB 500, 502 (1969), enfd., 67 L.C. ¶[ 12, 403 (10th Cir. 1972); N.L.R.B. v. Sheet Metal Workers Intern. Ass’n, Local 49, A.F.L.-C.I.O., 430 F.2d 1348, 1349-1350 (10th Cir. 1970); Local Union No. 2150, International Brotherhood of Electrical Workers, 192 NLRB No. 16, slip op. at 5-6 and cases cited n. 5, 1971 CCH NLRB P3,280 (1971).

This court has also recognized the fact that the imposition of fines upon supervisory employees may coerce or restrain their employer in the effective selection of his representatives within the meaning of section 8(b)(1)(B). See Dallas Mailers Union, Local 143 v. N.L.R.B., 144 U.S.App.D.C. 254, 259, 445 F.2d 730, 735 (1971). Although we did not expressly evaluate the propriety of the legal rationale underlying the Oakland Mailers’ line of cases in our Dallas Mailers opinion, we implicity recognized its correctness. However, in our subsequent Meat Cutters opinion,¹⁹ we gave our express approval to the decisions which had interpreted section 8(b) (1)(B) as prohibiting union discipline of supervisory personnel for acts performed by them in the course of their supervisory or managerial duties.²⁰ Our conclusion was based upon the intention of Congress as expressed in the legislative history surrounding the enactment of section 8(b)(1)(B) in 1947.

The Supreme Court has recognized the fact “that labor legislation is peculiarly the product of legislative compromise of strongly held views, Local 1976, United Broth, of Carpenters & Joiners of America [A.F.L.] Union v. National Labor Relations Board, 357 U.S. 93, 99-100, 78 S.Ct. 1011, 1016-1017, 2 L.Ed.2d 1186, and that legislative history may not be disregarded merely because it is arguable that a provision may unambiguously embrace [or not embrace] conduct called in question. National Woodworkers Mfrs. Assn. v. N.L.R.B., 386 U.S. 612, 619-620, 87 S.Ct. 1250, 1266, 18 L.Ed.2d 357.” ²¹ When Congress was considering amendments to the National Labor Relations Act in 1947, it was acutely aware of the fact that unions had previously “taken it upon themselves to say that management should not appoint any representative who [was] too strict with the membership of the union,” and through the enactment of section 8(b)(1)(B) it endeavored “to prescribe a remedy in order to prevent such interferences.”²² Although this fact is highly pertinent to our evaluation of the proper scope of section 8(b)(1)(B), other legislative history surrounding the 1947 amendments must also be considered.

Section 8(b)(1)(B) must not be examined in a vacuum. It must instead be interpreted in conjunction with the other 1947 amendments to the N.L.R.A. relating to supervisory personnel.²³ The fact that Congress decided to expressly exclude “supervisors” from the statutory definition of “employee” in section 2(3) ²⁴ is highly informative.

Congress was aware of the potential conflict between the obligations of foremen as representatives of their employers, on the one hand, and as union members, on the other. Section 2(3) evidences its intent to make the obligations to the employer paramount. That provision excepts foremen from the protection of the Act. Its purpose was to give the employer a free hand to discharge foremen as a means of ensuring their undivided loyalty, in spite of any union obligations. See H.Rep. No. 245, 80th Cong., 1st Sess. 14-17 (1947); S.Rep.No. 105, 80th Cong., 1st Sess. 3-5 (1947); L.A. Young Spring & Wire Corp. v. National Labor Relations Board, 1947, 82 U.S.App.D.C. 327, 163 F.2d 905, certiorari denied 1948, 333 U.S. 837, 68 S.Ct. 607, 92 L.Ed. 1121 * * * 25

In Meat Cutters, we considered this prior analysis of the 1947 legislative history and concluded that “[a] supervisor’s obligations to his union simply cannot detract from the absolute duty, evidenced by section 8(b)(1)(B), which he owes to his employer when exercising his managerial authority.” ²⁶

To ensure the accomplishment of the clear intention of Congress when it enacted section 8(b)(1)(B), that provision must not be interpreted in a hyper-technical manner. To construe that section as only applying to union discipline of a supervisor based upon his actions on behalf of management regarding a specific disagreement with the union over the proper interpretation of the collective bargaining agreement or the adjustment of a particular grievance, would defeat the reasons underlying Congress’ enactment of section 8(b)(1) (B). When a supervisor is disciplined by a union because of the manner in which he exercised his supervisory or managerial authority — whether or not he was applying a contract provision or adjusting a grievance — that disciplinary action necessarily impinges upon the supervisor’s loyalty to his employer, thereby effectively depriving the employer of the undivided loyalty which he has the right to expect under section 8(b)(1)(B). The fact that in such a situation the union “may [seek] the substitution of attitudes rather than persons, and may [exert] its pressure upon the [employer] by indirect rather than direct means, cannot alter the ultimate fact that pressure [is] exerted * * * for the purpose of interfering with the [employer’s] control over its representatives * * * [and it realistically will] have to replace its foremen or face de facto nonrepresentation by them.” ²⁷ It is therefore intuitively obvious that if the principles underlying the Congressional enactment of section 8(b)(1)(B) are to be given full effect, such conduct by a union cannot be permitted, as the National Labor Relations Board has properly recognized.²⁸

The fact that section 14(a) of the N.L.R.A.²⁹ permits supervisors to be union members does not detract from the undivided loyalty they owe to their employer under section 8(b)(1)(B) when they are engaged in supervisory or managerial endeavors. See Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N.L.R.B., 147 U.S. App.D.C. 375, 380-381, 458 F.2d 794, 799-800 (1972). Similarly, the fact that an employer may have consented to the compulsory union membership of his supervisors under an appropriate union-security provision does not negate his right to the full protection of section

8(b)(1)(B). See Toledo Locals Nos. 15-P and 272 of the Lithographers and Photo-Engravers International Union, 175 NLRB 1072, 1080 (1969), enfd., 437 F.2d 55 (6th Cir. 1971); Local Union No. 2150, International Brotherhood of Electrical Workers, 192 NLRB No. 16, slip op. at 5, 1971 CCH NLRB ¶23,280 (1971).

B. EFFECT OF ALLIS-CHAL-MERS AND SCOFIELD

In our previous Meat Cutters decision, we briefly explained why the rationale underlying the Supreme Court’s decisions in Allis-Chalmers³⁰ and Scofield ³¹ does not relieve a union from responsibility under section 8(b)(1)(B) where it imposes disciplinary fines upon supervisor/members because of supervisory or managerial acts performed by them.³² However, due to the close factual similarity between the instant ease and the Allis-Chalmers situation, we believe that an expanded analysis here would be beneficial.

In Allis-Chalmers and Scofield, the Supreme Court sanctioned the imposition of fines by unions on employees— not supervisors — who had violated valid union rules. However, those cases, unlike the present one, concerned the scope of section 8(b)(1)(A) of the Act,³³ not section 8(b)(1)(B), with which we are herein concerned. In upholding the union fines in Allis-Chalmers and Scofield, while the Supreme Court did not rely upon the express language of the proviso to section 8(b)(1)(A), as the Labor Board had originally done in Minneapolis Star and Tribune Co., 109 NLRB 727 (1954), it did draw “cogent support” for its decision from it.³⁴ See N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 191-192, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967); Scofield v. N.L.R.B., 394 U.S. 423, 428, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969). See also Gould, Some Limitations Upon Union Discipline Under the National Labor Relations Act: The Radiations of Allis-Chalmers, 1970 Duke L.J. 1067, 1128 (1970). The applicability of that proviso is, however, clearly limited to section 8(b)(1)(A), which regulates the union-employee relationship. It is not a part of section 8(b)(1)(B), which directly regulates only the union-employer relationship.³⁵ Although reliance upon the proviso may not have been critical to the Supreme Court’s decisions in Allis-Chalmers and Scofield, the fact that it does not have any application in section 8(b)(1)(B) cases indicates that the rationale underlying those two Supreme Court decisions is not apposite with respect to cases, such as the instant one, which involve the disciplining, by unions, of “supervisors” instead of “employees.” Furthermore, a closer evaluation of the Allis-Chalmers and Scofield decisions clearly demonstrates that the reasoning of those opinions is not applicable with respect to section 8(b)(1)(B) cases.

Under the reasoning of Allis-Chalmers and Scofield, only legitimate internal union affairs are protected. See N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 185-187, 195, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967); Scofield v. N.L.R.B., 394 U.S. 423, 428, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969).³⁶ Those eases primarily concerned the relationship between the unions and their employee/members, and the Court concluded that the union discipline had no improper effect on parties external to that relationship. However, when a union imposes discipline upon a supervisor/memb er for acts performed by him in furtherance of his supervisory or managerial duties, external relationships which are not protected by the rationale underlying Allis-Chalmers and Scofield are affected.³⁷ The supervisor-employer relationship is impermissibly affected in an adverse manner, through the union’s subversion of the undivided loyalty owed by the supervisor to his employer when he is properly acting to further the interests of his employer. The union also improperly affects the union-employer relationship in a meaningful way. Instead of directly dealing with the employer over the managerial “position” which is displeasing to it, the union attempts to force the acceptance of its view upon the employer indirectly, through the imposition of union discipline upon the employer’s chosen representative. Such external ramifications of the union’s actions clearly transcend anything protected by the Supreme Court in either Allis-Chalmers or Scofield.38

Supreme Court decisions issued subsequent to Allis-Chalmers have made it expressly clear that the Allis-Chalmers rationale only permits “a union * * * to enforce a properly adopted rule which reflects a legitimate union interest [and] impairs no policy Congress has imbedded in the labor laws * * * ” Scofield v. N.L.R.B., 394 U.S. 423, 430, 89 S.Ct. 1154, 1158, 22 L.Ed.2d 385 (1969) (emphasis supplied), and see 394 U.S. at 429, 432, 89 S.Ct. 1154. See N.L.R.B. v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968); Booster Lodge No. 405, International Association of Machinists and Aerospace Workers v. N.L.R.B., 148 U.S.App.D.C. 119, 126, 459 F.2d 1143, 1150.³⁹ Section 8(b)(1)(B) of the Act expresses a clear Congressional policy aimed at affording employers protection against union interference with their chosen representatives. Whenever union action has the effect of impermissibly inhibiting an employer with respect to his choice of loyal representatives, it is apparent that an express federal labor policy is being violated, and it necessarily follows that the rationale underlying Allis-Chalmers and Scofield cannot be availed upon to nullify the clear section 8(b)(1)(B) violation.⁴⁰

II

Having discussed the general principles which apply to section 8(b)(1)(B) cases such as the instant one, and the applicability of the Allis-Chalmers and Scofield reasoning to section 8(b)(1) (B) situations, we turn to an evaluation of the Labor Board’s analysis of the particular facts of this case. We first consider the union fines which were imposed upon the supervisor/members who performed rank-and-file work during the economic strike, and secondly consider the disciplinary action which was taken against those supervisor/members who were instrumental in the formation of the Association.

A. SUPERVISORS WHO PERFORMED RANK-AND-FILE WORK DURING STRIKE

Although the Employer did not require his supervisors to report to work during the 1968 strike, the Company made it very clear that it wanted them to perform rank-and-file work in place of the striking employees. However, despite the fact that the Company took action to allow its supervisory personnel to exercise their own personal discretion in this matter, Local 134 sought to prevent this by threatening the imposition of discipline on any supervisor/member who decided to further the interests of his Employer by acceding to the request of the Company and performing rank- and-file work during the work stoppage. When Local 134’s threats were not sufficient to deter some of the supervisors from honoring the request of their Employer, the union imposed fines of $500 on each.

The Labor Board correctly recognized that the disciplinary actions taken by Local 134 were a direct result of the fact that those supervisors who reported to work during the strike placed the interests of their Employer above those of their union. It further emphasized the fact that actions of Local 134 “were designed to change the [Company’s] representatives from persons representing the viewpoint of management to persons responsive or subservient to [Local 134’s] will.”⁴¹ The Board concluded that under the reasoning of Oakland Mailers and its progeny, such conduct contravened the principles enunciated in section 8(b)(1)(B) of the Act. We agree.

The underlying dispute giving rise to the imposition of the penalties in question was directly between the union and the Company—not between the union and the supervisor/members. Local 134 called the strike to encourage a collective bargaining settlement favorable to it. Although the union had the right to insist upon the loyalty of those employee/members who were in the bargaining unit covered by the strike,⁴² the Company also had the legitimate right under the N.L.R.A. to call upon the undivided loyalty of its representatives.⁴³ This latter statutory right of the Employer was particularly apropos in the instant case, due to the strike situation.

It is well recognized that “the use of economic pressure by the parties to a labor dispute is not a grudging exception to some policy of completely academic discussion enjoined by the Act; it is part and parcel of the process of collective bargaining.” N.L.R.B. v. Insurance Agents International Union, 361 U.S. 477, 495, 80 S.Ct. 419, 430, 4 L.Ed.2d 454 (1960) (emphasis supplied). It is readily apparent, therefore, that when supervisors’ actions during an economic strike further the interests of their employer, they are performing in a manner which could reasonably be expected from such persons. See Local Union No. 2150, International Brotherhood of Electrical Workers, 192 NLRB No. 16, 1971 CCH NLRB ¶23,280 (1971). See also Texas Co. v. N.L.R.B., 198 F.2d 540 (9th Cir. 1952). As management representátives, 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. Yet this is the precise activity for which the supervisors in question were disciplined by Local 134.⁴⁴ Under these circumstances, since they were clearly punished for actions undertaken by them as representatives of their Employer within the meaning of section 8(b)(1)(B),⁴⁵ and in accordance with the Employer’s express wishes, it logically follows that the disciplining union thereby violated section 8(b)(1)(B) of the Act.

The Union’s fining of the supervisors who were acting in the Employer’s interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors. Thus, the fines, if found to be lawful, would now permit the Union to drive a wedge between a supervisor and the Employer, thus interfering with the performance of the duties the Employer had a right to expect the supervisor to perform. The Employer could no longer count on the complete and undivided loyalty of those it had selected to act as its collective bargaining agents or to act for it in adjusting grievances.⁴⁶

The two unions argue that the Labor Board erroneously concluded that the Employer was “restrained or coerced,” within the meaning of section 8(b)(1)(B), by Local 134’s imposition of disciplinary fines, on the theory that the Company did not require its supervisors to perform rank-and-file work during the strike. However, this contention overlooks the fact that the Employer clearly expressed his desire by requesting (without ordering) the supervisors to perform such work in furtherance of the Company’s bargaining interest. It also ignores the possible detrimental effects which such disciplinary action might have upon the future relationship between the Employer and its supervisors. It is also contrary to the well settled judicial decisions interpreting the meaning of “restraint or coercion.”

“[I]n determining whether a § 8(a)(1) or § 8(b)(1) violation has been committed, the answer does not ‘turn on * * * whether the coercion succeeded or failed *' * * the test is whether the employer [Union] engaged in conduct which, it may be reasonably said, tend[ed] to interfere with the free exercise of [the rights protected] under the Act.’ N.L.R.B. v. Illinois Tool Works, [7 Cir.,] 153 F.2d 811, 814 * * *” Local Union No. 167, Progressive Mine Workers of America v. N.L.R.B., 422 F. 2d 538, 542 (7th Cir.), cert. denied, 399 U.S. 905, 90 S.Ct. 2198, 26 L.Ed.2d 560 (1970). See Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N.L.R.B., 147 U.S.App.D.C. 375, 382, 458 F.2d 794, 801 n.20. The fact that the Labor Board did not examine the subjective effect upon the Employer of the union discipline with respect to each supervisor does not detract from its conclusion that the disciplinary action was illegal, since the Board reasonably determined that such action meaningfully detracted from the undivided loyalty owed by the supervisors to their Employer. See N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 608, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Radio Officers’ Union, etc. v. N.L.R.B., 347 U.S. 17, 51, 74 S.Ct. 323, 98 L.Ed. 455 (1954); N.L.R.B. v. Donnelly Garment Co., 330 U.S. 219, 231, 67 S.Ct. 756, 91 L.Ed. 854 (1947). We find substantial evidence in the record considered as a whole to support this Labor conclusion.⁴⁷

B. SUPERVISORS WHO FORMED THE ASSOCIATION

We believe that the Labor Board properly determined that the fining of those supervisors who participated in the formation of the Association constituted a separate section 8(b) (1) (B) violation. The Board resolved this issue in the following manner:

[T]he Bell Supervisors Protective Association arose out of relations among the supervisors, the Company, and the Union, and not * * * out of relations solely between the supervisors and the Union. The Association was formed because the Union threatened to fine supervisors for working during the strike, and to protect or aid those who desired to work. As the Association had its inception as a response to what is here found to be illegal union conduct, it is not unreasonable to extend the finding of illegality to cover the Union’s fines relating to the Association. Although the Company was not a party to the creation of the Association, the relationship of the supervisors to the Company underl[ay] the creation of the Association just as it underl[ay] the action of the supervisors in working during the strike. To separate the two sets of fines would be highly legalistic and unrealistic, a practice on which the Board has properly frowned on past occasions, prefering [sic] to treat situations “as a whole.” ⁴⁸

“[W]here the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court’s function is limited. * * * [T]he Board’s determination * * * is to be accepted if it has ‘warrant in the record’ and a reasonable basis in law.” N. L. R. B. v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944). We believe that the Labor Board’s treatment of this issue not only comports with the general principles underlying section 8(b)(1)(B),⁴⁹ but that it represents the only reasonable manner of resolving the problem. Were the Board to have permitted the union to discipline those supervisors who formed the Association, it would have subverted much of the protective effect provided the Employer by its determination that section 8(b)(1)(B) was violated by the imposition of fines upon those foremen who performed rank-and-file work during the strike. The formation of the Association was part and parcel of the supervisors’ efforts to further the bargaining interests of their Employer during the work stoppage. It had its primary genesis in the illegal position of Local 134 regarding the performance of struck work by the Employer’s representatives,⁵⁰ and, as the Labor Board properly recognized, it would have been wholly irrational for it to ignore this important causative connection. We therefore affirm this aspect of the N.L. R.B.’s decision.

Ill

The Labor Board wholly adopted the Trial Examiner’s determination that the International Union violated section 8(b)(1)(B) of the N.L.R.A., due to its affirmance, on appeal, of Local 134’s disciplinary actions.⁵¹ Since the International Union furthered the coercion and restraint concomitant with Local 134’s unlawful conduct (1) by affirming the imposition of the fines despite claims of illegality specifically raised by the appealing supervisor/members and (2) by retaining records of these adverse measures which might, in the future, inhibit the performance of supervisory and managerial functions by foremen in accordance with the undivided loyalty owed by them to their Employer,⁵² we affirm this Board conclusion.

To rectify the effects of the unfair labor practice, the Labor Board issued the usual cease and desist order, and it affirmatively required both unions (1) to rescind the illegally imposed fines and expunge all records pertaining thereto; (2) to provide separate written notices for each disciplined supervisor; and (3) to reimburse the foremen for any fines already paid by them. However, with respect to the individual written notice requirement and the provision concerning the reimbursement of already collected fines, the-Board only imposed secondary responsibility upon the International Union, with Local 134 being held primarily responsible.

It is clear that the Board’s entire remedial order concerning Local 134 is within the broad remedial discretion which it is granted under section 10(c) of the Act.⁵³ We also believe that the Labor Board’s order is wholly appropriate to the extent that it requires the International Union to cease and desist from its unlawful conduct, to rescind all of the illegal fines and expunge all records pertaining thereto, and to ensure that individual written notices are provided each disciplined foreman.⁵⁴ However, we are unable to agree with the Board’s imposition of monetary liability upon the International Union for the fines which have already been collected by Local 134.

All of the union disciplinary charges concerning the improperly fined supervisors were brought at the Local 134 level. The disciplinary fines were similarly imposed at the Local 134 level, and only Local 134 has sought to collect them. The International Union’s sole action with respect to the fines imposed by Local 134 consisted of its affirmance of them on appeal.⁵⁵ Since there is no evidence indicating that the International Union did not exercise good faith when it reviewed Local 134’s conduct on appeal, we find that the portion of the Labor Board’s remedial order imposing monetary liability on the International Union with respect to the fines already collected by Local 134, was improperly adjudged and cannot be enforced.

The International Union should only be held liable for the illegal fines collected by Local 134, if the local union acted as its agent. “In determining whether any person [was] acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.” ⁵⁶

This section [§ 2(13)] was enacted to eliminate the strict requirement for proof of authorization and ratification which the Supreme Court read into a somewhat comparable section of the Norris-LaGuardia Act in United Brotherhood of Carpenters and Joiners of America v. United States, 1947, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973 * * * But the legislative history of § 2(13) makes plain that Congress intended to do no more than to restore the applicability of common law agency principles of responsibility * * *

International Ladies Garment Workers Union v. N. L. R. B., 99 U.S.App.D.C. 64, 70, 237 F.2d 545, 551 (1956) (emphasis supplied). See Sheet Metal Workers’ International Association, A. F. L.-C. I. O., v. N. L. R. B., 110 U.S. App.D.C. 302, 309, 293 F.2d 141, 148, cert. denied, 368 U.S. 896, 82 S.Ct. 172, 7 L.Ed.2d 92 (1961).⁵⁷

Where the only action taken by a national or international union is in the nature of an appellate review of the action of a local union, and the national or international union. exercises its appellate function in good faith and in the absence of fraud, the national or international union should not be held answerable in damages to a member who was wrongfully disciplined by the local union. See Annotation, 74 A.L.R.2d 783, 800 (1960); Schouten v. Alpine, 215 N.Y. 225, 109 N.E. 244, 246 (1915). See also Madden v. Atkins, 4 N.Y.2d 283, 174 N.Y.S.2d 633, 151 N.E.2d 73 (1958). Since there is no claim that the International Union in the instant ease did not exercise its review function in good faith and in the absence of fraud,⁵⁸ we believe that the Labor Board improperly imposed monetary liability upon it.⁵⁹ We therefore deny enforcement to that portion of the Labor Board’s remedial order which imposes monetary liability upon the International Union with respect to the illegal disciplinary fines already collected by Local 134, believing that under the particular facts of this case, the imposition of such liability would not meaningfully effectuate the policies of the N.L.R.A.⁶⁰ However, in all other respects, the remedial order of the Labor Board is enforced in full.

IV

The Association has challenged that portion of the Labor Board’s decision which upheld the Trial Examiner’s refusal to permit the Association to amend the complaint on the last day of the unfair labor practice hearings, to include the allegation that the Company-Local 134 union-security agreement was in violation of section 8(a) (3) (i) of the Act.⁶¹ We must reject this contention.

In May of 1968, the Association filed an unfair labor practice charge with the appropriate regional office of the N.L. R.B., contending that the union-security provision in the collective bargaining, agreement between Local 134 and the Company was illegal under section 8(a) (3) (i) of the Act, since it covered a unit which included both supervisors and rank-and-file employees. The Regional Director refused to issue a complaint relating to the Association’s charge, and the General Counsel of the Labor Board upheld that decision on appeal.⁶² On June 10, 1969, the instant section 8(b)(1)(B) case was instituted by the Association. However, neither its charge nor the complaint which was issued pursuant thereto, referred in any manner to the legality of the union-security provision. It was not until the afternoon of the fourth and final day of the hearings before Trial Examiner Reel, that the Association raised this issue with respect to the section 8(b)(1)(B) proceedings. It noted that the collective bargaining agreement containing the challenged provision had already been admitted into evidence, and it argued that the Trial Examiner should resolve the question concerning the provision’s legality. The counsel for the General Counsel did not join in, or even consent to, the Association’s motion to amend the complaint. The Trial Examiner noted the fact that the General Counsel had previously refused to issue a complaint concerning the legal issue raised by the proposed amendment,⁶³ and he concluded that it would not be appropriate or advisable to permit such a “far reaching question” to enter the present litigation through the “back door.” ⁶⁴ The Labor Board fully adopted this determination.

In refusing to permit the Association’s requested amendment, the Trial Examiner assumed that he possessed the authority under section 10(b) of the Act⁶⁵ to permit such an amendment. Without intimating any view concerning the correctness of this assumptive interpretation,⁶⁶ we affirm the decision of the Labor Board, because we do not believe that its determination concerning the proposed amendment can reasonably be considered to be an abuse of discretion.⁶⁷

[The Association’s proposed amendment] encompasse[d] charges identical to those [it had previously] filed with the General Counsel; the General Counsel [had] refused to issue a complaint. We would not entertain a frontal attempt to review the General Counsel’s decision, Retail Store Employees Union, Local 954, [Retail Clerks Intern. Ass’n, A. F. L. — C. I. O.] v. Rothman, 112 U.S.App.D.C. 2, 4, 298 F.2d 330, 332 (1962), and have not been convinced to review [it] here, through the back door.

Retail Clerks Union 1059, R. C. I. A., A. F. L.-C. I. O. v. N. L. R. B., 121 U.S. App.D.C. 140, 141 n.1, 348 F.2d 369, 370 n.l (1965). See International Union of Electrical, Radio and Machine Workers, A. F. L.-C. I. O. v. N. L. R. B., 110 U. S.App.D.C. 91, 94-96, 289 F.2d 757, 760-762 (1960).

This is certainly not a case where the Labor Board has refused to decide a material issue which was fairly tried by the parties. See American Boiler Manufacturers Association v. N. L. R. B., 366 F.2d 815, 821 (8th Cir. 1966). See also Frito Co., Western Division v. N. L. R. B., 330 F.2d 458, 465 (9th Cir. 1964) ; American Boiler Manufacturers Association v. N. L. R. B., 404 F.2d 547, 556 (8th Cir. 1968), cert. denied, 398 U.S. 960, 90 S.Ct. 2162, 26 L.Ed.2d 546 (1970). The union-security provision in question was only admitted into evidence as part of the applicable collective bargaining agreement. There was no indication, until the end of the proceedings, that its legality was sought to be in issue. The entire unfair labor practice hearings concerned solely the section 8(b)(1)(B) case. Furthermore, we do not believe that the resolution of the question raised by the Association’s proposed amendment to the section 8(b)(1)(B) complaint would have been as straightforward as it now asserts. Cf. Nassau and Suffolk Contractors Association, Inc., 118 NLRB 174, 181 n.23 (1957). Under these circumstances, we are unable to conclude that the Trial Examiner abused any discretion which he might have possessed,⁶⁸ and we therefore affirm the refusal of the Labor Board to permit the Association’s proffered amendment to the complaint.⁶⁹

The decision of the Labor Board is affirmed in its entirety, and enforcement of its remedial order, as modified by this opinion with respect to the monetary responsibility of the International Union concerning the illegal fines already collected by Local 134, is hereby granted.

Judgment accordingly.

1 . “P.B.X.” is the abbreviation for “private branch exchange,” the telephone apparatus installed and maintained by the Company on the private premises of a customer.

2 . This arrangement whereby foremen and rank-and-file employees have been included in the same bargaining unit was voluntarily consented to by the Employer.

3 . Although collective bargaining agreements between the parties had at one time prescribed the monthly wage rates applicable to foremen, recent contracts have not contained such wage provisions. However, the agreement relevant here included a section entitled “Working Conditions for General Foremen and Foremen,” which concerned payment for overtime work and for certain absences. Furthermore, when the Company recently revised the overtime schedule pertaining to foremen, it requested the concurrence of Local 134.

4 . “Rank-and-file work” concerns that work which is ordinarily performed by regular, non-supervisory employees in the bargaining unit.

5 . Pursuant to the union-shop provision in the applicable collective bargaining agreement, these foremen were all full members of Local 134.

6 . 29 U.S.C. § 158(b)(1)(B) (1970) provides: “It shall be an unfair labor practice for a labor organization or its agents — (1) to restrain or coerce * * * (B) an employer in the selection of his representatives ■ for the purposes of collective bargaining or the adjustment of grievances”.

7 . 29 U.S.C. § 158(a)(3) (1970) provides in relevant part:

(a) It shall be an unfair labor practice for an employer — .

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, * * *

Since the bargaining unit included supervisors [see note 12 and accompanying text and note 24, infra] with regular rank-and-file employees, the Association contended that the unit covered by the Company-Local 134 union-shop provision was not “appropriate” within the meaning of section 8(a) (3) (i). However, due to the fact that Local 134 was the only one of the two contracting parties before the Trial Examiner, the Association did not allege a violation of section 8(a)(3) (i), which only applies to employers, but it instead asserted the presence of a section 8(b)(2) violation. 29 U.S.C. § 158(b)(2) (1970) provides, inter alia: “It shall be an unfair labor practice for a labor organization or its agents— * * * (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section [i. e., section 8 (a)(3)] * * *”

8 . It is important to note that the precise issue concerning the legality of the union-security provision under section 8(a)(3)

(i) of the N.L.R.A. had been previously raised by the Association, in 1968, at which time the General Counsel of the Labor Board refused to issue a complaint relating to the Association’s unfair labor practice charge. Case 13-CA-8451. At that time, the General Counsel concluded ;

The inclusion of alleged supervisors in the unit by voluntary agreement of the contracting parties did not, standing alone, constitute an unfair labor practice, nor did it render such unit inappropriate for coverage by an otherwise valid union security clause. See Nassau & Suffolk Contractors Ass’n., 118 NLRB 174, 177-184; * * *

9 . See note 8 supra.

10 . International Brotherhood of Electrical Workers, AFL-CIO, and Local 134, I.B. E.W., 192 NLRB No. 17, T.X.D. slip op. at 13, 1971 CCH NLRB ¶ 23,282 (1971).

11 . Id.

12 . 29 U.S.C. § 152(11) (1970). See N. L. R. B. v. Henry Colder Co., 416 F.2d 750, 754 n. 3 (7th Cir. 1969), and cases cited therein.

13 . See note 6 supra. Local 134 and the International Union have not challenged, on appeal, the Labor Board’s findings that the foremen were “supervisors” and “Employer representatives,” within the meaning of the N.L.R.A.

14 . The Labor Board found the International Union in violation of section 8(b) (1) (B), due to its affirmance, on appeal, of Local 134’s imposition of disciplinary fines against the foremen. However, the Board’s remedial order only provided for secondary liability on the part of the International Union with respect to the reimbursement of already collected fines and the providing of individual written notices for the disciplined foremen.

15 . See note 6 supra.

16 . See Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 379, 458 F.2d 794, 798 (1972); N. L. R. B. v. Local 294, International Brotherhood of Teamsters, etc., 284 F.2d 893 (2nd Cir. 1960); Los Angeles Cloak Joint Board, 127 NLRB 1543, 1550-1551 (1960); International Union of Operating Engineers, Local 825, 145 NLRB 952, 962 (1964).

17 . 172 NLRB No. 252, slip op. at 2, 1968-2 CCH NLRB ¶ 20,195.

18 . 172 NLRB No. 252, slip op. at 2-3, 1968-2 CCI-I NLRB ¶ 20,195 (emphasis supplied). See New Mexico District Council of Carpenters and Joiners of America, 176 NLRB No. 105, slip op. at 4-5, 1969 CCH NLRB ¶ 20,951 (1969), enfd., 67 L.C. ¶ 12,403 (10th Cir. 1972).

19 . Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 458 F.2d 794 (1972).

20 . Id., 147 U.S.App.D.C. at 379-380, 458 F.2d at 798-799.

21 . N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 179, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967).

22 . II Legislative History of the Labor Management Relations Act, 1947 (N.L. R.B.1948) [hereafter “Legislative History”] at 1077 (comments of Senator Ellender). See S.Rep.No.105, 80th Cong., 1st Sess. 21 (1947), in I Legislative History at 427; II Legislative History at 1524 (comments of Senator Ball).

23 . See sections 2(3), 2(11), and 14(a), 29 U.S.C. §§ 152(3), 152(11), and 164(a) (1970).

24 . 29 U.S.C. § 152(3) (1970) provides, inter alia: “The term ‘employee’ shall include any employee * * * but shall not include * * * any individual employed as a supervisor * * * ” See section 2(11) of the Act, 29 U.S.C. § 152 (11) (1970), for the statutory definition of “supervisor.”

25 . Carpenters District Council of Milwaukee County, etc., v. N. L. R. B., 107 U.S.App.D.C. 55, 57, 274 F.2d 564, 566 (1959) (emphasis supplied). See II Legislative History at 1524 (comments of Senator Ball).

26 . Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 381, 458 F.2d 794, 800 (1972). See Texas Co. v. N. L. R. B., 198 F.2d 540, 542 (9th Cir. 1952), wherein the court stated that “it is clear from the history of the TaftHartley legislation that Congress intended to restore to employers the right and power to insist upon the undivided loyalty of their supervisory personnel.”

27 . San Francisco-Oakland Mailers’ Union No. 18, International Typographical Union, 172 NLRB No. 252, slip op. at 3, 1968-2 OCH NLRB ¶ 20, 195 (1968).

28 . This interpretation of section 8(b) (1) (B) does not mean that a union may never discipline a supervisor/member for breaching a valid union rule. See, e. g., Local 453, Brotherhood of Painters, Decorators and Paperhangers of America, 183 NLRB No. 24, 1970 OCH NLRB ¶ 21,981 (1970). It only proscribes union interference for acts performed by a supervisor relating to his supervisory or managerial duties. See Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S. App.D.C. 375, 458 F.2d 794 (1972).

29 . 29 U.S.C. § 164(a) (1970) provides: (a) 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.

30 . N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967).

31 . Scofield v. N. L. R. B., 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969).

32 . See Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 381-382, 458 F.2d 794, 800-801 (1972).

33 . 29 U.S.C. § 158(b)(1)(A) (1970) provides :

(b) It shall be an unfair labor practice for a labor organization or its agents—

(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein;

See 29 U.S.C. § 157 (1970).

34 . Compare Booster Lodge No. 405, International Association of Machinists and Aerospace Workers v. N. L. R. B., 148 U.S.App.D.C. 119, 125, 459 F.2d 1143, 1149, with Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 381, 458 F.2d 794, 800 (1972).

35 . See San Francisco-Oakland Mailers’ Union No. 18, International Typographical Union, 172 NLRB No. 252, slip op. at 4, 1968-2 CCH NLRB ¶ 20, 195 (1968); Price v. N. L. R. B., 373 F.2d 443, 446 (9th Cir. 1967), cert. denied, 392 U.S. 904, 88 S.Ct. 2051, 20 L.Ed.2d 1363 (1968); Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 381-382, 458 F.2d 794, 800-891 (1972). See also II Legislative History at 1139, 1141, and 1200.

36 . See also N. L. R. B. v. Sheet Metal Workers Intern. Ass’n, Local 49, A.F.L.C.I.O., 430 F.2d 1348, 1350 (10th Cir. 1970); N. L. R. B. v. Toledo Locals Nos. 15-P and 272 of Lithographers and Photo-Engravers International Union, 437 F.2d 55, 57 (6th Cir. 1971).

37 . See Silard, Labor Board Regulation of Union Discipline After Allis-Chalmers, Marine Workers and Scofield, 38 Geo. Wash.L.Rev. 187, 196 (1969):

[I]n safeguarding the regulation of union membership from Labor Board review Congress did not authorize unions to violate with impunity the protected rights of other parties — particularly of employers, neutrals, and the public.

38 . It is vitally, important to remember that sections 8(b)(1)(A) and 8(b)(1) (B) protect different interests. Section 8(b)(1)(A) was only intended to impose some slight controls upon the union-employee relationship, and the legislative history makes it clear that Congress did not intend extensive regulation of the internal union-erapZoyee/member relationship. See N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 183-195, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). See also National Maritime Union, 78 NLRB 971, 982-987 (1948), enfd., 175 F.2d 686 (2nd Cir. 1949), cert. denied, 338 U.S. 954, 70 S.Ct. 492, 94 L.Ed. 589 (1950). Section 8(b) (1) (B), on the other hand, was clearly intended to regulate the external union-employer relationship. It is therefore apparent that considerations concerning the right of a labor organization to regulate its internal union affairs are not really relevant when the union action in question has meaningful external effects upon an employer, in an area wherein the employer is expressly protected under the Act.

39 . See also District 50, Local 12419, 176 NLRB No. 25, 71 LRRM 1311 (1969); N. L. R. B. v. International Molders and Allied Workers Union, Local 125, 442 F.2d 92, 94 (7th Cir. 1971).

40 . Although there may be some persons unfamiliar with the Congressional attitudes which prevailed in 1947 who might believe that it is not appropriate to treat the fining of supervisor/members for working during a strike differently from the disciplining of employee/members for the same acts, the superficial surface similarity between the two events underlying the union discipline cannot obfuscate the extremely important difference between “supervisors” and “employees” which is recognized by their different treatment under the N.L.R.A. Had the 1947 Congress intended for such persons to be treated alike, it surely would not have enacted section 8(b) (1) (B) and the exclusionary portion of section 2(3) relating to supervisory personnel.

41 . International Brotherhood of Electrical Workers and Local 134, I.B.E.W., 192 NLRB No. 17, T.X.D., slip op. at 7, as adopted by N.L.R.B., slip op. at 2, 1971 CCH NLRB ¶ 23,282 (1971).

42 . See N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180-181, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). See also Booster Lodge No. 405, International Association of Machinists and Aerospace Workers v. N. L. R. B., 148 U.S.App. D.C. 119, 125-126, 459 F.2d 1143, 1149-1150 (1972).

43 .See Part 1(A) of this opinion, supra.

44 . There is no question that supervisors enhance the bargaining position of their employer when they perform rank-and-file work during a strike, since their actions reduce the severity of the economic pressure borne by their employer as a result of the work stoppage.

45 . The unions have not challenged the finding of the Labor Board regarding the representative status of the supervisors.

46 . Local Union No. 2150, International Brotherhood of Electrical Workers, 192 NLRB No. 16, slip op. at 6-7, 1971 CCH NLRB ¶ 23,280 (1971). See New Mexico District Council of Carpenters and Joiners of America, 177 NLRB 500, 502 (1969), enfd., 454 F.2d 1116 (10th Cir. 1972); Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 379-380, 458 F.2d 794, 798-799 (1972) ; N. L. R. B. v. Sheet Metal Workers Intern. Ass’n., Local 49, A.F.L.-C.I.O., 430 F.2d 1348, 1349 (10th Cir. 1970). See also Part I (A) of this opinion, supra, and cases cited therein.

47 . See 29 U.S.C. §§ 160(e) and 160(f) (1970). See also Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

48 . International Brotherhood of Electrical Workers and Local 134, I.B.E.W., 192 NLRB No. 17, T.X.D. slip op. at 10, as adopted by N.L.R.B., slip op. at 2, 1971 CCH NLRB ¶ 23,282 (1971) (emphasis in original).

49 . See Parts 1(A) and 11(A) of this opinion, supra.

50 . Although one of the Association’s obvious interests concerned the legality of the union-security provision in the Company-Local 134 collective bargaining agreement, it is important to recognize that it was the strike which precipitated the supervisors’ concern regarding this issue. It was not until they realized that Local 134 intended to utilize their forced union membership to subvert their loyalty to the Employer that the supervisors undertook to form the Association to protect their position, as well as the interests of their Employer.

51 . International Brotherhood of Electrical Workers and Local 134, I.B.E.W., 192 NLRB No. 17, slip op. at 6-7, 1971 CCH NLRB ¶ 23,282 (1971).

52 . See Meat Cutters Union Local 81 of Amalgamated Meat Cutters and Butcher Workmen of North America v. N. L. R. B., 147 U.S.App.D.C. 375, 380-381, 458 F.2d 794, 799-800 (1972) ; N. L. R. B. v. Toledo Locals Nos. 15-P and 272 of Lithographers and Photo-Engravers International Union, 437 F.2d 55, 57 (6th Cir. 1971) ; San Francisco-Oakland Mailers’ Union No. 18, International Typographical Union, 172 NLRB No. 252, slip op. at 2-3, 1968-2 CCH NLRB ¶ 20,195 (1968).

53 . 29 U.S.C. § 160(c) (1970). See Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941) ; Virginia Electric & Power Co. v. N. L. R. B., 319 U.S. 533, 540, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943) ; Amalgamated Clothing Workers of America v. N. L. R. B., 125 U.S.App.D.C. 275, 281, 371 F.2d 740, 746 (1966) ; Office and Professional Employees International Union, Local 425 A.F.L.-C.I.O. v. N. L. R. B., 136 U.S.App.D.C. 12, 19-20, 419 F.2d 314, 321-322 (1969).

⁵⁴

55 . No approval or specific authorization regarding Local 134’s illegal disciplinary action was reguested from, or given by, the International Union before or during the course of the local union proceedings. Nor did the International Union Constitu- . tion or By-laws mandate such unlawful action by local unions.

56 . Section 2(13) of the N.L.R.A., 29 U.S.C. § 152(13) (1970).

57 . Regarding the relevant legislative history pertaining to section 2(13), see H.Rep. No. 245, 80th Cong., 1st Sess. 11 (1947), in I Legislative History at 302; H.Conf. Rep. No. 510, 80th Cong., 1st Sess. 36 (1947), in I Legislative History at 540; 93 Cong.Rec. 6442, 6534, and 6859 (1947).

58 . Although the N.L.R.B. argues that the International Union should be held monetarily responsible due to the Board’s assertion that the fines imposed by Local 134 were “illegal on their face,’’ we reject this contention. Labor Board and court decisions had not previously defined this extremely difficult area with such exactness that the International Union could reasonably be considered to have affirmed obviously unlawful action by Local 134.

We intimate no view concerning the proper liability of a national or international union in a case where it does affirm a local union’s disciplinary action on appeal, where it is clear that the local union’s action is unlawful on its face, preferring to leave the resolution of this issue to a more appropriate occasion.

59 .[The International Union’s] only action in the case was the exercise of its function to hear the appeal [s] and review the action [s] of the local body. * * * [The International Union] could not be held liable in damages to the [disciplined supervisor/members] because it affirmed [Local 134’s actions,] in the absence of fraud or bad faith.

People ex rel. Solomon v. Brotherhood of Painters, Decorators and Paperhangers of America, 218 N.Y. 115, 112 N.E. 752, 754 (1916).

60 . See section 10(c), 29 U.S.C. § 160(c) (1970). The decisions cited by the N.L. R.B. in support of the imposition of monetary responsibility upon the International Union here are not apposite, since they entailed a greater degree of participation by the international unions involved. See, e. g., N. L. R. B. v. Millwrights, Local 2232, District Council of Houston, etc., 277 F.2d 217, 221 (5th Cir. 1960), cert. denied, 366 U.S. 908, 81 S.Ct. 1083, 6 L.Ed.2d 234 (1961) ; Local Union, 984, International Brotherhood of Teamsters, etc. v. Humko Co., Inc., 287 F.2d 231, 242 (6th Cir.), cert. denied, 366 U.S. 962, 81 S.Ct. 1922, 6 L.Ed.2d 1254 (1961).

61 . See note 7 supra.

⁶²

63 . Although the prior charge filed by the Association had alleged a section 8(a)(3) violation, while the proposed amendment suggested a section 8(b) (2) violation, the two charges were based upon the identical allegation that the Company-Local 134 union-security agreement was in violation of the requirements of section 8(a) (3) (i).

See note 7 supra.

64 . See International Brotherhood of Electrical Workers and Local 134, I.B.E.W., 192 NLRB No. 17, T.X.D. slip op. at 13, 1971 CCH NLRB ¶ 23,282 (1971). The Trial Examiner also indicated that such union-shop provisions had been present in similar cases recently before the Labor Board, without any indication by it that such agreements might be violative of the N.L.R.A. Id.

65 . 29 U.S.C. § 160(b) (1970) provides inter alia: “Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon.” The scope of this language, which was part of the original 1935 Wagner Act, may have been limited, however, by the enactment in 1947 of an amendment to the N.L.R.A., which provides that the General Counsel “shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, * * * ” Section 3(d), 29 U.S.C. § 153(d) (1970) (emphasis supplied). See International Union of Electrical, Radio and Machine Workers, A.F.L.-C.I.O. v. N. L. R. B., 110 U.S.App.D.C. 91, 94-95, 289 F.2d 757, 760-761 (1960). See also cases cited note 65, infra.

66 . Compare International Union of Electrical, Radio and Machine Workers, A.F.L.-C.I.O. v. N.L.R.B., 110 U.S.App. (1980) and N.L.R.B. v. Raytheon Co., D.C. 91, 94-95, 289 F.2d 757, 760-761 445 F.2d 272, 274 (9th Cir. 1971), with Frito Co., Western Division v. N.L.R.B., 330 F.2d 458, 465 (9th Cir. 1964) and United Packinghouse, Food and Allied Workers International Union, A.F.L.C.I.O. v. N.L.R.B., 135 U.S.App.D.C. 111, 119 n 12, 416 F.2d 1126, 1134 n. 12, cert. denied, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969).

For the purposes of this case, we accept the Labor Board’s assumption, due to the fact that we “must judge the propriety of [its] action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” S.E.C. v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962).

67 .Even the Association concedes that at most, the Board and Trial Examiner were only “under a duty to exercise sound discretion * * * ” Brief for the Association at 16.

68 . See notes 65 and 66, and accompanying text, supra.

69 . \Ye, of course, intend to intimate no opinion concerning the legality of a voluntary union-security provision covering a unit which includes both supervisors and rank-and-file employees. Nor do we foreclose the filing of a new charge by the Association challenging the propriety of any presently existing Company-Local 134 union-security agreement.