concurring and dissenting:
I concur in the majority opinion except that portion of the Board’s order which requires Company and Union to jointly:
“reimburse said Company’s employees for any initiation fees, dues, or other moneys paid or checked off pursuant to the agreement applied to Respondent Company’s employees or to any extension, renewal, modification, or supplement thereof, or to any agreement superseding it, plus interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716.”
In the circumstances of this case it is my view that such part of the order is oppressive and punitive.
I am unable to distinguish in principle this case from Intalco Aluminum Corporation v. NLRB, 417 F.2d 36 (9th Cir. 1969), in which this Court refused to enforce the provision of the order of the Board in that case requiring reimbursement of dues and other moneys paid to the Union by the employees of the Company.
The Trial Examiner in this case refused to recommend to the Board that reimbursement be required. He stated:
“I shall not recommend reimbursement of Kauai employees by the Respondents of dues and other fees paid under the Statewide agreement for the several reasons that by the date of the issuance of this decision Kauai employees will have been receiving the benefits and protection of the legitimately negotiated Statewide agreement for almost a year; because I am convinced that the repondents, in bringing Kauai employees within the coverage of the Statewide agreement acted in good faith, a single Statewide unit also being appropriate for purposes of collective bargaining; and because at the time the Employer recognized the Respondent Union for its Kauai employees, no other labor organization had asserted a claim to represent these employees.5
The reasons given by the Board for rejecting the recommendation of the Trial Examiner are not persuasive to me.
For the reasons stated by the Trial Examiner, and because I believe that the remaining portions of the remedial order of the Board adequately effectuate the purposes of the Act, I would decline to enforce the Board’s order requiring reimbursement.
. Obviously, the ILWU letter to Respondent of intent to organize did not constitute a claim of representation.”