Mansfield, Oakes and Timbers, Circuit Judges. Mansfield, Circuit Judge (concurring).
The petition to enforce an order of the National Labor Relations Board, 194 N.L.R.B. No. 144 (1972), in this somewhat off the beaten path labor case, presents essentially two issues:
(1) Whether there was substantial evidence to support the Board's conclusion that the Union*fn1 violated Section 8(b) (3) of the Act*fn2 by its adoption of an embargo against acceptance of temporary supervisory assignments in contravention of a practice agreed upon between the parties, although not incorporated in the existing collective bargaining agreement.
(2) Whether there was substantial evidence to support the Board's conclusion that the Union violated Section 8(b) (1) (A) of the Act by subjecting employees to disciplinary action for refusing to comply with the embargo.
For the reasons stated below, we hold that there was substantial evidence to support the Board's conclusions on both issues. We enforce the Board's order.
This case is concerned with the Company's*fn3 practice of assigning unit employees to temporary supervisory positions. Such practice has never been covered by a provision in a collective bargaining agreement between the Company and the Union, including the one in effect at the time of the Union's embargo and disciplinary action to enforce the embargo referred to below. The Company and the Union have entered into successive collective bargaining agreements since the early 1950's.
In 1960, the Company began the practice of assigning unit employees to act as temporary supervisors. This was to replace supervisors who were on vacation or sick leave. The Union frequently complained about this practice. Its complaints were directed chiefly at assignments that lasted more than 30 days and those where unit employees were assigned to supervise their own work groups.
It was not until the 1967 contract negotiations, however, that the Union proposed complete elimination of the temporary supervisory assignment practice. After considerable discussion of the proposal and much backing and filling by both parties, the upshot was that the Union withdrew its proposal altogether and the Company agreed to outline in a letter to the Union (not to be incorporated in the contract) its procedures with respect to temporary supervisory assignments. On the following day, the 1967 collective bargaining agreement was signed. It contained no mention of temporary supervisory assignments.
As agreed, the Company did inform the Union by letter in June 1967 of its temporary assignment procedures, including the promise that "whenever possible" employees would not be assigned to supervise their own work groups. In an exchange of letters with the Union in October 1967, the Company reaffirmed its earlier agreement to limit such assignments to no longer than 30 days.
In 1968, at the Union's request, the entire collective bargaining agreement was renegotiated. The subject of temporary supervisory assignments was not raised by either party. The new agreement contained no restrictions on the Company's right to make such assignments. It has continued to make them.
In July 1970, the Union for the first time filed a formal grievance complaining of one temporary supervisory assignment that lasted six weeks. In settling this grievance, the Company again confirmed in writing its policy that such assignments should not exceed 30 days.
Also in 1970, the Union and the Company entered into a written agreement with respect to the equalization of overtime among unit employees. This agreement contained a provision that an employee who was away from his regular job on a temporary supervisory ...