Silver Bay Local Union No. 962

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Silver Bay Local Union No. 962, International Broth- erhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO (Alaska Lumber & Pulp Co., Inc,) and Earl J. Niesen. Case 19-CB-1700 December 9, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 7, 1972, the National Labor Relations Board issued its Decision and Order in the above-enti- tled proceeding,' finding that the Respondent violated Section 8(b)(1)(B) of the National Labor Relations Act, as amended, by demanding, upon threat of strike ac- tion, that Supervisor Niesen be removed from his supervisory position. The Board ordered that the Re- spondent cease and desist therefrom and take certain affirmative action, including payment of backpay to Niesen, to remedy the unfair labor practice. Thereafter, on May 22, 1974, the United States Court of Appeals for the Ninth Circuit issued its opinion enforcing the Board's Order in all parts except for the backpay remedy.' The court remanded the case to the Board for explication of the Board's rationale in support of requiring backpay for supervisors terminated as a re- sult of a violation of Section 8(b)(1)(B) of the Act and noted that such award appeared to be a departure from Board precedent.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Having accepted the court's remand herein, we must express our respectful disagreement with the court's statement that awarding backpay to a supervisor under the circumstances of this case is a "departure from a consistently followed Board policy of not making such awards." While we have not previously articulated the rationale for such backpay awards, ample Board prece- dent, supported by the rulings of the District of Co- lumbia and Seventh Circuit Courts of Appeals, exists for providing such a remedy.' Moreover, the Board's "broad discretionary" power in fashioning remedies has been acknowledged by the Supreme Court. In N.L.R.B. v. Seven- Up Bottling Company of Miami, Inc.,' the Court stated: "[Section 10(c)] charges the Board with the task of devising remedies to effectuate the policies of the Act. . . . In fashioning remedies to undo the effects of violations of the Act, the Board must draw on enlightenment gained from experience." Further, the Court, quoting from its opinion in Virginia Electric & Power Co. v. N..L.R. B.,6 said, "When the Board, `in the exercise of its informed discretion,' makes an order or restoration by way of back pay, the order `should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.' The requirements of backpay for a supervisor ter- minated as a result of a violation of Section 8(b)(1)(B) is designed to implement the policies of the Act. It is well established that Section 8(b)(1)(B) of the Act re- serves to an employer the right to have "an uncoerced group of supervisors whose loyalty to him has not been prejudiced and whose substantial supervisory authority and day-to-day contact with and supervision of the employees under them make them natural choices for selection as [the employer 's] representatives."' This right must remain unimpaired in order for those super- visors to effectively serve as the employer 's collective- bargaining and grievance representatives . In this case we have found that Niesen was a supervisor who pos- sessed the authority to adjust employee grievances. Clearly, a supervisor who has suffered a period of em- ployment loss and resulting financial loss because of the unlawful efforts of a hostile union will certainly be aware of the dangers of again displeasing the union. Similarly, supervisors who remained on the employer's payroll and observed their colleague suffer such a loss will undoubtedly be intimidated by the threat of such loss if they incur the displeasure of the union. Where, as here, a union's illegal conduct creates an atmosphere of intimidation and has a prejudicial im- pact upon the loyalty of a supervisor, only a make- whole order requiring reinstatement and backpay for the discharged supervisor will remedy the unfair labor practice by undoing or counteracting it to the max- imum possible extent and thus restore the situation, as ' 198 NLRB 751. 2 N.L.R.B. v. Silver Bay Local Union No. 962, international Brotherhood of Pulp, Sulphite & Paper Mills Workers, AFL-CIO, 498 F.2d 26. 1 On July 25, 1974, the Board notified the parties of its acceptance of the remand of the court of appeals . Thereafter, the General Counsel and the Respondent filed statements of position on remand. The Respondent's re- quest for oral argument is hereby denied as the record, including the briefs, adequately presents the issues and positions of the parties. 4 Local Union No. 841, International Union of Operating Engineers, AFL-CIO (M. L. Arnold Steel Company), 203 NLRB 429 (1973), enfd. 492 F.2d 1249 (C.A. 7, 1974); Laborers'International Union of North America, AFL-CIO, Local 478 (International Builders of Florida, Inc.), 204 NLRB 357 (1973), enfd. percuriam 503 F.2d 192 (C.A.D.C., 1974); Local No. 423, Laborers' International Union of North America, AFL-CIO (Mansfield Flooring Co., Inc.), 195 NLRB 241 (1972), enfd. percuriam478 (C.A.D.C., 1973); Local Union No. 101, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Fruehauf-Fischbach Automation), 191 NLRB 577 (1971). 5 344 U.S. 344, 346-347 (1953). 6 319 U.S. 533, 540 (1943). r International Association of Heat & Frost Insulators & Asbestos Work- ers, Local 127 (Cork Insulating Company of Wisconsin, Inc.), 189 NLRB 854 (1971). 215 NLRB No. 79 SILVER BAY LOCAL UNION NO. 962 nearly as possible, to that which would have existed but for such illegal conduct. If the effect of the Union's misconduct herein is to be meaningfully erased, and if the reinstatement of Supervisor Niesen is to restore to the Employer an effective representative who will be able to serve the Employer without fear that future loyalty to the Employer will again cause economic as well as employment loss, such an effective restoration 415 can be achieved only by requiring that Respondent Union make whole Supervisor Niesen for the loss of pay he suffered as a result of Respondent's illegal con- duct. Accordingly, we reaffirm our August 7, 1972, Order in the above-entitled proceeding.' 8 198 NLRB 751 (1972).