LOCAL 60, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, et al. v. NATIONAL LABOR RELATIONS BOARD.
No. 68.
Argued February 28, March 1, 1961.
Decided April 17, 1961.
Bernard Dunau argued the cause for petitioners. With him on the brief was Francis X. Ward.
Norton J. Gome argued the cause for respondent. With him on the brief were Stuart Rothman, Dominick L. Manoli and Duane B. Beeson.
J. Albert Woll, Theodore J. St. Antoine and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging reversal.
Mr. Justice Douglas
delivered the opinion of the Court.
Petitioner, United Brotherhood, entered into a contract with Mechanical Handling Systems, Inc. (which we will call the Company), whereby the Company agreed to work the hours, pay the wages, abide by the rules and regulations of the union applicable to the locality where the work is done, and employ members of the union.
The Company, undertaking work at Indianapolis, agreed to hire workers on referral from a local union, one of the petitioners in this case. Two applicants from another local union were denied employment by the Company because they could not get referral from petitioner local union.
The Board found that petitioners had violated §8 (b)(1)(A) and §8 (b)(2) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 136, 141, as amended, 29 U. S. C. § 158, in maintaining and enforcing an agreement which established closed-shop preferential hiring conditions and in causing the Company to refuse to hire the two applicants. 122 N. L. R. B. 396.
After granting other relief the Board said:
“[A]s we find that dues, nonmembership dues, assessments, and work permit fees, were collected under the illegal contract as the price employees paid in order to obtain or retain their jobs, we do not believe it would effectuate the policies of the Act to permit the retention of the payments which have been unlawfully exacted from the employees.”
It added that the remedial provisions “are appropriate and necessary to expunge the coercive effect” of petitioners’ unfair labor practices.
On application of the Board, the Court of Appeals enforced the order. 273 F. 2d 699. The case is here on a writ of certiorari, 363 U. S. 837, in which petitioners challenge no part of the Board’s order except the refund provision.
The provision for refund in this case is the product of a rule announced by the Board in the Brown-Olds case, 115 N. L. R. B. 594, which involved the use of a closed-shop agreement despite the ban in the Taft-Hartley Act. In that case a panel of three members of the five-member Board found a violation of the closed-shop provision of the Act. Two of the three agreed to an order of reimbursement to all employees for any assessments collected by the union within the period starting from six months prior to the date of the filing of the charge. One member, Ivar H. Peterson, dissented, saying that the reimbursement was inappropriate since there was an absence of “specific evidence of coercion and evidence that payments were required as a condition of employment.” Id., 606. Later that remedy was extended to hiring arrangements, which though not operating in connection with a closed shop, were felt by the Board to have a coercive influence on applicants for work to join the union. Los Angeles-Seattle Motor Express, Inc., 121 N. L. R. B. 1629.
In neither of those cases nor in the present case was there any evidence that the union membership, fees, or dues were coerced. The Board as well as the Court of Appeals held that fact to be immaterial. Both said that the case was governed by Virginia Electric Co. v. Labor Board, 319 U. S. 533; and the Court of Appeals added that coercion was to be inferred as “there was present an implicit threat of loss of job if those fees were not paid.” 273 F. 2d, at 703. The Board argues, in support of that position, that reimbursement of dues where hiring arrangements have been abused is protective of rights vindicated by the Act and authorized by § 10 (c).
We do not think this case is governed by Virginia Electric Co. v. Labor Board, supra. That case involved a company union whose very existence was unlawful. There were, indeed, findings that the union “was not the result of the employees’ free choice” (319 U. S., at 537), and that the employees had to remain members of the union to retain their jobs. Id., 540. Return of dues was one of the means for disestablishing an unlawful union. Id., 541. Cf. Labor Board v. Mine Workers, 355 U. S. 453, 458-459.
The unions in the present case were not unlawfully created. On the record before us they have engaged in prohibited activity. But there is no evidence that any of them coerced a single employee to join the union ranks or to remain as members. All of the employees affected by the present order were union members when employed on the job in question. So far as we know, they may have been members for years on end. No evidence was offered to show that even a single person joined the union with the view of obtaining work on this project. Nor was there any evidence that any who had voluntarily joined the union was kept from resigning for fear of retaliatory measures against him. This case is therefore quite different from Radio Officers v. Labor Board, 347 U. S. 17, 48, where, discrimination having been shown, the inferences to be drawn were left largely to the Board.
The Board has broad discretion to adapt its remedies to the needs of particular situations so that “the victims of discrimination” may be treated fairly. See Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 194. But the power of the Board “to command affirmative action is remedial, not punitive, and is to be exercised in aid of the Board's authority to restrain violations and as a means of removing or avoiding the consequences of violation where those consequences are of a kind to thwart the purposes of the Act.” Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 236. Where no membership in the union was shown to be influenced or compelled by reason of any unfair practice, no “consequences of violation” are removed by the order compelling the union to return all dues and fees collected from the members; and no “dissipation” of the effects of the prohibited action is achieved. Labor Board v. Mine Workers, supra, 463. The order in those circumstances becomes punitive and beyond the power of the Board. Cf. Republic Steel Corp. v. Labor Board, 311 U. S. 7, 10. As Judge Pope said in Morrison-Knudsen Co. v. Labor Board, 276 F. 2d 63, 76, “reimbursing a lot of old-time union men” by refunding their dues is not a remedial measure in the competence of the Board to impose, unless there is support in the evidence that their membership was induced, obtained, or retained in violation of the Act. It would be difficult, even with hostile eyes, to read the history of trade unionism except in terms of voluntary associations formed to meet pressing needs in a complex society.
Reversed.
Mr. Justice Frankfurter took no part in the consideration or decision of this case.
The monthly dues payable to the local union were $3.50 and the initiation fee $125. Dues and fees in lesser amounts were payable by apprentices. A member who is working within the jurisdiction of a district council who has not transferred his membership to a local union of the council pays for a working permit that is not less than 75 cents a month nor more than the local monthly dues.
Section 10 (c) provides in relevant part:
“. ■ - If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act: . . .”
Accord: Morrison-Knudsen Co. v. Labor Board, 275 F. 2d 914 (C. A. 2d Cir.); Labor Board v. United States Steel Corp., 278 F. 2d 896 (C. A. 3d Cir.); Labor Board v. Local Union No. 85, 274 F. 2d 344 (C. A. 5th Cir.); Labor Board v. International Union, 279 F. 2d 951 (C. A. 8th Cir.); Morrison-Knudsen Co. v. Labor Board, 276 F. 2d 63 (C. A. 9th Cir.); Local 357 v. Labor Board, 107 U. S. App. D. C. 188, 275 F. 2d 646. Cf. Labor Board v. Carpenters Local, 276 F. 2d 583 (C. A. 1st Cir.); Perry Coal Co. v. Labor Board, 284 F. 2d 910 (C. A. 7th Cir.).
See Millis and Montgomery, Organized Labor, Vol. Ill (1945), c. VIII.
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