Local 60, United Brotherhood of Carpenters and Joiners of America v. National Labor Relations Board

• Decision Date: 17 April 1961
• Docket Number: AFL-CIO,No. 68,68
• Citation: 6 L.Ed.2d 1,365 U.S. 651,81 S.Ct. 875
• Parties: LOCAL 60, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD
• Court: U.S. Supreme Court

365 U.S. 651

81 S.Ct. 875

6 L.Ed.2d 1

LOCAL 60, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, et al., Petitioners,

v NATIONAL LABOR RELATIONS BOARD.

No. 68.

Argued Feb. 28 and March 1, 1961.

Decided April 17, 1961.

Mr. Bernard Dunau, Washington, D.C., for petitioners.

Mr. Norton J. Come, Washington, D.C., for respondent.

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, 29 U.S.C.A. § 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,¹ 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, 80 S.Ct. 1610, 4 L.Ed.2d 1723, 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 & Power Co. v. National Labor Relations Board, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568; 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 page 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).²

We do not think this case is governed by Virginia Electric & Power Co. v. National Labor Relations 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 page 537, 63 S.Ct. at page 1217), and that the employees had to remain members of the union to retain their jobs. Id., 319 U.S. 540, 63 S.Ct. 1218. Return of dues was one of the means for disestablishing an unlawful union. Id., 319 U.S. 541, 63 S.Ct. 1219. Cf. National Labor Relations Board v. District 50, United Mine Workers, 355 U.S. 453, 458—459, 78 S.Ct. 386, 389—360, 2 L.Ed.2d 401.

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, Union of Commercial Telegraphers Union, A.F.L. v. National Labor Relations Board, 347 U.S 17, 48, 74 S.Ct. 323, 339, 98 L.Ed. 455, 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. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 86 L.Ed. 1271. 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. of New York v. National Labor Relations Board, 305 U.S. 197, 236, 59 S.Ct. 206, 220, 83 L.Ed. 126. 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. National Labor Relations Board v. District 50, United Mine Workers, supra, 355 U.S. 463, 78 S.Ct. 392. The order in those circumstances becomes punitive and beyond the power of the Board.³ Cf. Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 10, 61 S.Ct. 77, 78, 85 L.Ed. 6. As judge Pope said in Morrison-Knudsen Co. v. National Labor Relations Board, 9 Cir., 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 of impose, unless there is sup- port 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.⁴

Reversed.

Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.

Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring.

While I agree with the Court that Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568, does not justify the Board's 'Brown-Olds' remedy as it has been applied in this and other cases, I think the Board is entitled to be informed more fully why that should be so, since it may fairly be said that Virginia Electric could be taken as having invited the course the Board has been following. In joining the Court's opinion I shall therefore add some further views.

The Brown-Olds remedy is an order made under § 10(c) of the National Labor Relations Act which authorizes the Board, after finding an unfair labor practice, not only to issue a cease and desist order but also 'to take such affirmative action * * * as will effectuate the policies of this Act * * *.' The remedy, which seems only to be applied if the unfair labor practice amounts either to employer domination of a union (§ 8(a)(2)) or discrimination in favor of union membership by an agreement between employer and union (§ 8(a) (3); § 8(b)(2)), typically requires that either the union or the employer reimburse all employees in the amount of all moneys paid in dues, assessments, etc., since six months before the unfair labor practice charge was filed. The Board does not admit defensive evidence that some employees voluntarily made such payments. An illegal closed shop or discriminatory hiring practices create an irrebuttable presumption of coercion. See, e.g., Brown-Olds Plumbing & Heating Corp., 115 N.L.R.B. 594; Saltsman Construction Co., 123 N.L.R.B. 1176; Nassau & Suffolk Contractors' Assn., 123 N.L.R.B. 1393; Lummus Corp., 125 N.L.R.B. 1161.

The provision that the Board was to be allowed 'to take such affirmative action * * * as will effectuate the policies of this Act * * * ' did not pass the Wagner Act Congress without objection to the uncontrolled breadth of this power. See Hearings before Senate Committee on Education and Labor on S. 1958, 74th Cong., 1st Sess. 448—449. This Court's construction of the scope of the power has reflected a similar concern. The Board has been told that it is without power to 'effectuate the policies of this Act' by assessing punishments upon those who commit unfair labor practices. Republic Steel Corp. v. National Labor Relations Board, 311 US. 7, 11, 12, 61 S.Ct. 77, 79, 85...