concurring:
If the controlling facts in this case were like those in Western Union Tel. Co. v. Labor Board, 113 F. 2d 992, I too would accept the reasoning of Judge Learned Hand’s opinion in that case and join my brother Roberts. But the vital difference between the Western Union and this case is that, in the former, “there was no evidence that all those [employees] who asked to have their wages stoppeid, did so in any part because they were coerced.” Id., at 997. Here the employees had no such choice; they could avoid the check-off of union dues only by giving up their jobs.
We start with the Board’s finding — a finding, not here for review — that through its domination of the I. O. E. the Company indulged in an unfair labor practice. But not only did it foster that company union, it foisted membership in the union upon all its employees. The Board had a right to find that membership in the union, which the employees had no power to reject, equally denied the employees the power to reject the costs of that membership. It was therefore justified in concluding that the employees should be made whole for that which was the consequence of the Company’s compulsion upon them. Therein this case differs not only from the Western Union case but also from the decisions in four other circuits upon which my brother Roberts relies: Labor Board v. West Kentucky Coal Co., 116 F. 2d 816, 823 (C. C. A. 6); Reliance Mfg. Co. v. Labor Board, 125 F. 2d 311 (C. C. A. 7); *546Labor Board v. Southwestern Greyhound Lines, 126 F. 2d 883, 887 (C. C. A. 8); Labor Board v. Continental Oil Co., 121 F. 2d 120, 125 (C. C. A. 10).
Needless to say, we have nothing to do with the wisdom of the Board's requirement that the coerced dues be restored to the employees. Our decision can go no further than that, within the framework of the general authority given to it by Congress, the Board is empowered to find that when men pay dues to a company-dominated union, upon pain of forfeiting their jobs, it is the company which has in fact commanded the payment of the dues and it is the company which must make restoration.
Mr. Justice Roberts:The single question presented is whether the National Labor Relations Board, in ordering disestablishment of an unaffiliated union, may, in the circumstances disclosed, order reimbursement of dues paid by the employes to the union pursuant to individual assignments by employes and a union agreement for a closed shop and a check-off of dues.
The court below (one judge dissenting) has sustained this feature of the order. I am of opinion that its judgment should be reversed.
The only provision of the Act on which the Board relies is that found in § 10 (c)1 which is that the Board may require the employer “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.” The critical phrase is “to take such affirmative action . . . as will effectuate the policies of this Act.” The policies of the Act are stated in § 12 as the encouragement of the *547practice and procedure of collective bargaining and the protection of the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.3 It is plain that a reimbursement order may be made by the Board only if it will effectuate these policies.
The court below has interpreted this grant of power to the Board as permitting what the court characterizes as a restoration of the status quo. The Act, however, contains no such expression and if it is given, as I think it has been in the present instance, the meaning of redress of private wrongs, it misrepresents the clear intent of the statute.4
The Act gives the Board no power to impose liability for any supposed injury arising out of the compulsion of employes to contribute dues to the union. Nor can the order of restitution be grounded upon any theory that, although the unfair labor practice constitutes a public rather than a private wrong, the power granted to effectuate the policies of the Act envisages imposition of a penalty for wrongful conduct on the part of the employer.5
There remains the question whether the order under review can be justified as appropriate to effectuate the policies of the Act. This question should be answered in the light of the facts disclosed by the record. The Board has found that the employer was guilty of unfair labor practices in influencing employes in favor of a company *548union. The order requires the company to cease and desist from the practices, to cease giving effect to the existing agreement with the union, and to withdraw recognition from and disestablish that organization as a bargaining unit. This order is supported by findings that, at a time when no union existed, the company threw its influence in favor of an unaffiliated or company union. All the facts found in this connection relate to a time anterior to the organization of the union. There is no finding, and no facts which would justify a finding, that subsequent to the organization of the union the employer interfered with it, dominated it, or supported it in any manner. The union then organized made demands upon the company which were the subject of negotiations and out of those negotiations grew an increase of wages totaling about $600,000 per annum and a collective bargaining agreement which contained provisions for a closed shop and for the check-off of union dues, both of which features were demanded and insisted upon by the union. There is no finding and no evidence that the employer in fact inspired, instigated, or coerced the employes to make these demands or had, even remotely, anything to do with them other than they followed its earlier encouragement of the organization of the union. From the day that contract was signed, no act of interference or domination, and no word even of suggestion from the company as to the union policy or practices is shown. The record demonstrates that the employer insisted that the checkoff of union dues should be authorized by each employe individually, subject to his untrammeled right of revocation, and that the closed-shop provision should not prevent any member of the company union from also joining any other union of his choice. The fixation of the union dues was a matter within the control of the union members and continuance of check-off as respects any employe was a matter for his voluntary determination so far as the *549employer was concerned. While it is not denied that the union procured substantial benefits for its members or that it represented them faithfully and fairly, nevertheless, because of the company’s interference at the time of the organization of the union, that organization has been disestablished and indeed has now been dissolved.
It is to be noted that had it not been for the defect which tainted its capacity to represent the employes, its other activities would have been wholly in accordance with the objects and purposes of the National Labor Relations Act. Nothing in that Act invalidates a collective bargaining agreement providing for a closed shop or for a check-off of dues. If in fact those features of the agreement were the voluntary act of the employes, as on this record they must be found to have been, it is difficult to see how the policies of the Act are to be effectuated by repayment to the employes of the dues heretofore paid when such repayment can in no wise benefit the association which has been disestablished.
The company union having been disestablished, the employes are free to form or join any union and make it their bargaining agent. Any possible effect of company influence has been dissipated. The only possible effect of restitution of dues to employes who have not asked for repayment, who have received substantial benefits from their contribution of dues, is to punish the employer and perchance operate as a warning to other employers that they will similarly be punished for unfair labor practices.
The Board seeks to sustain the order on the ground that the Act authorizes, as one form of affirmative action to effectuate the policies of the Act, the reinstatement of employes with or without back pay. The award of back pay, however, stands on a different basis. If employes are to be faced with discriminatory discharge for advocating union representation by an organization of their choice, the threat will render doubtful, if not impossible, free and *550uncontrolled action on the part of the employes. The Act, therefore, is an announcement to employes that if they are discharged for such activity they may have reinstatement and, in proper cases, back pay. Such a promise to employes was essential to assure them immunity for conduct made lawful by the Act. But the payment of union dues is quite another matter, particularly where, as here, no employe was obliged to join the union, and no discrimination between employes resulted from joining or paying dues to the recognized union. It is inconceivable that the hope of reimbursement of dues paid to the union in question would have any effect on the conduct of the members to join or refrain from joining this union or joining another as they were free to do. Moreover, the employes were free under the Act to adhere to another organization and to bring about an election for the choice of another bargaining representative. The Board made no inquiry and no finding respecting coercion of individual employes.
As I have already indicated, the only effect of the order is to redress a supposed private wrong to employes which the evidence and findings indicate never was inflicted, and to inflict drastic punishment of the employer for its earlier violation of the statute by encouraging its employes to organize. Neither is within the competence of the Board, as this court has repeatedly held.6
Like orders have been before the courts in eleven other cases, as shown by the opinion of the Court. All have reached the conclusion that the Act does not authorize such an order.7 I think that should be the decision of the Court in this case.
The Chief Justice and Mr. Justice Jackson join in this dissent.2911. S. C. §160 (c).
29 U. S. C. §151.
See Republic Steel Corp. v. Labor Board, 311 U. S. 7, 10; Labor Board v. Fansteel Corp., 306 U. S. 240, 257.
H. R. 972, 74th Cong., 1st Sess., p. 21; H. R. 1147, 74th Cong., 1st Sess., p. 24. National Licorice Co. v. Labor Board, 309 U. S. 350, 362, 363.
Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 236; Republic Steel Corp. v. Labor Board, 311 U. S. 7, 11, 12.
See Notes 4 and 5, supra.
I might well have contented myself, in lieu of writing, with a reference to the opinion in Western Union Tel. Co. v. Labor Board, 113 F. 2d 992, which exhaustively and convincingly deals with the subject.