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

Mr. Justice WHITTAKER, dissenting.

The contract involved here not only required persons seeking employment in the unit to be members of the union, but also required each of them to obtain from the 'Council' and present to the 'union steward' on the job a 'work permit' before going to work. That this closed-shop hiring arrangement 'coerce(d) employees in the exercise of the rights guaranteed in section 7,' and 'cuase(d) (the) employer to discriminate against * *  * employee(s) in violation of subsection (a)(3)' of the Act, contrary to the explicit provisions of §§ 8(b) (1)(A) and 8(b)(2) of the Act, 29 U.S.C. § 158, 29 U.S.C.A. § 158 is not here denied.

To assure protection and enforcement of the rights it had guaranteed to employees by the Act, Congress provided in § 10(c) that, upon the finding of an 'unfair labor practice,' 'the Board shall state its findings of fact and shall issue * *  * an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action *  *  * as will effectuate the policies' of the Act.

Finding that the closed-shop hiring arrangement involved here violated §§ 8(b) (1)(A) and 8(b)(2) of the Act and thus constituted an unfair labor practice, the Board, in fashioning a remedy which it deemed 'necessary to expunge the coercive effect' of the violations and to 'effectuate the policies of the Act,' ordered the unions not only to cease the violations but also 'to refund to the employees involved the dues * *  * and work permit fees, paid by the employees as a price for their employment.' The only question here is whether that remedy was within the Board's power. Like the Court of Appeals, I think it was.

Congress knew, of course, that it could not foresee the nature of all possible violations of the Act, and accordingly did not undertake to specify the precise remedy to be visited upon offenders for particular violations.

'(I)n the nature of things Congress could not catalogue all     the devices and stratagems for circumventing the policies of      the Act. Nor could it define the whole gamut of remedies to     effectuate these policies in an infinite variety of specific      situations. Congress met these difficulties by leaving the     adaptation of means to end to the empiric process of      administration. The exercise of the process was committed to     the Board, subject to limited judicial review. Because the relation of remedy to policy is peculiarly a matter     for administrative competence, courts must not enter the      allowable area of the Board's discretion *  *  *.

'The Act does not create rights for individuals which must be     vindicated according to a rigid scheme of remedies. It     entrusts to an expert agency the maintenance and promotion of      industrial peace.' Phelps Dodge Corp. v. National Labor      Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85     L.Ed. 1271.

To hold that the Board is without power to do more than order the unions not to violate the Act in the future would be to deny any remedy whatever for violations. It is certain that Congress did not intend by the Act 'to hold out to (employees) an illusory right for which it was denying them a remedy.' Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232, 240, 70 S.Ct. 14, 18, 94 L.Ed. 22. In directing the Board to order 'such affirmative action * *  * as will effectuate the policies of this Act,' Congress seems clearly to have directed the Board to fashion and enforce a remedy 'which it *  *  * deem(s) adequate to that end.' Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 12, 61 S.Ct. 77, 79, 85 L.Ed. 6. In 'fashioning remedies to undo the effects of violations of the Act, the Board must draw on enlightenment gained from experience.' National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 346, 73 S.Ct. 287, 289, 97 L.Ed. 377. And see Radio Officers' Union of Commercial Telegraphers Union, A.F.L. v. National Labor Relations Board, 347 U.S. 17, 49, 74 S.Ct. 323, 340, 98 L.Ed. 455. Based on its long experience up to 1956, that, despite the ban which the Taft-Hartley Amendments had imposed nine years earlier, closed-shop practices were still being followed in some industries, the Board concluded that a remedy more effective than a cease-and-desist order was required. And, following the teaching of this Court's opinion in Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568, the Board decided that an appropriate additional remedy would be to require that the monies paid to the union under the illegal arrangement be refunded to the employees, and it accordingly so held in 1956 in United Association of Journeymen, etc., and Brown-Olds Plumbing & Heating Corp., 115 N.L.R.B. 594.

In Virginia Electric & Power Co. v. National Labor Relations Board, supra, this Court had upheld an identical remedy as within the Board's power. There an employer had committed an unfair labor practice by dominating a plant union in violation of § 8(1), (2) and (3) of the Act. In fashioning a remedy that it deemed necessary to effectuate the policies of the Act, the Board ordered the employer not only to cease the practice but also to reimburseits employees for the dues withheld from their wages, pursuant to their signed authorizations, and paid to the union. Rejecting the employer's contention that this remedy was in excess of the Board's power, this Court said:

'(T)he Board has wide discretion in ordering affirmative     action; its power is not limited to the illustrative example      of one type of permissible affirmative order, namely,      reinstatement with or without back pay. Phelps Dodge Corp. v.     National Labor Relations Board, 313 U.S. 177, 187-189, 61      S.Ct. 845, 849, 850, 85 L.Ed. 1271, 133 A.L.R. 1217. The     particular means by which the effects of unfair labor      pratices are to be expunged are matters 'for the Board not      the courts to determine.' (International) A. of M. (etc.) v.      National Labor Relations Board, supra, 311 U.S. (72) at page      82, 61 S.Ct. (83) at page 89, 85 L.Ed. 50; National Labor     Relations Board v. Link-Belt Co., supra, 311 U.S. (584) at      page 600, 61 S.Ct. (358) at page 366, 85 L.Ed. 368. Here the     Board, in the exercise of its informed discretion, has      expressly determined that reimbursement in full of the      checked-off dues is necessary to effectuate the policies of      the Act. We give considerable weight to that administrative     determination. It 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. There is no such showing here.' 319 U.S. at pages     539-540, 63 S.Ct. at page 1218.

Such an order, said the Court, 'returns to the employees what has been taken from them' and restores to them 'that truly unfettered freedom of choice which the Act demands.' 319 U.S. at page 541, 63 S.Ct. at page 1219. Surely, it is as correct to say here, as it was there, that 'An order such as this, which deprives (a union) of advantages accruing from a particular method of subverting the Act, is a permissible method of effectuating the statutory policy,' ibid., and that is all the order here purports to do.

It is argued that the Virginia case is distinguishable on the ground that it dealt with an employer-dominated union. But the question is one of power. The fact that the unfair labor practice there was by the employer rather than by the union, as here, is not a distinguishing difference. Nor does the fact that employees' rights were there infringed by a violation of § 8(a)(1), (2) and (3) of the Act, whereas they are here infringed by a violation of §§ 8(b)(1)(A) and 8(b)(2) of the Act, make any difference. In each instance the violation constituted an unfair labor practice, and the question is whether, in fashioning a remedy to effectuate the policies of the Act, the Board has power, in its informed discretion, to order reimbursement of the dues paid under the illegal arrangement. It would seem that if the Board had power so to order in the Virginia case, as this Court held, it similarly has power so to order in this case. Nothing in the Virginia case appears to limit the Board's power of restitution to cases involving employer-dominated unions or to any other particular type of violation, but the power seems clearly enough to be invocable in any appropriate case, in the informed discretion of the Board, and such has been the understanding of the courts.

The contentions that such an order of restitution is beyond the Board's power because the employees received some benefits from the union, despite the illegal hiring arrangement, and that to allow restitution of the dues collected by the union under the illegal arrangement would be to enforce a 'penalty' which the Board has no power to assess, were fully answered to the contrary in the Virginia case, 319 U.S. at pages 542-543, 63 S.Ct. at pages 1219, 1220.

To require specific proof of individual injury to all employees 'would impose impossible administrative burdens,' National Labor Relations Board v. Revere Metal Art Co., supra, 280 F.2d at page 101, and prevent effective enforcement of the Act. Hence that character and fullness of proof is not required. See Radio Officers' Union of Commercial Telegraphers Union, A.F.L. v. Labor Board, 347 U.S. 17, 48-52, 74 S.Ct. 323, 339-342, 98 L.Ed. 455. And inasmuch as the General Counsel of the Board may issue complaints only upon charges filed with him, id., 347 U.S. at page 53, 74 S.Ct. at page 342, and the Board's experience seems to have proved that only a few employees will be sufficiently daring and determined overtly to complain regardless of the nature of the violation, it would seem that the Board, in the exercise of its informed discretion, may reasonably conclude, even in the absence of specific proof of injury to all the employees, that full restitution of the dues collected by the union under an illegal arrangement is necessary to effectuate the policies of the Act.

For these reasons, I think the Board acted within its power in ordering restitution of the dues collected under the admittedly illegal arrangement here, that the Court of Appeals correctly enforced the order, and that its judgment should be affirmed.