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

Mr. Justice Harlan, whom Mr. Justice Stewart joins,

concurring.

While I agree with the Court that Virginia Electric & Power Co. v. Labor Board, 319 U. S. 533, 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 *657all 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. <ff this Act” by assessing punishments upon those-who commit unfair labor practices. Republic Steel Corp. v. Labor Board, 311 U. S. 7, 11, 12. The primary purpose of the provision for other affirmative relief has been held to be to enable the Board to take measures designed to recreate the conditions and relationships that would have been had there been no unfair labor practice. Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 236. Thus in Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, this Court reversed the Board for refusing to allow an employer to show in mitigation of a back-pay order that the employee unjustifiably refused to take desirable new employment during the period. In Republic Steel, supra, the Court refused to enforce an order requiring the employer to pay the full amount of back pay to an employee who had been paid to work for the Work Projects Administration in the meantime. In Labor *658Board v. Seven-Up Co., 344 U. S. 344, the Court indicated that even an otherwise sensible procedure for computing back pay of an employee discriminatorily discharged must provide exceptions where the scheme would more than compensate the employee because of the seasonal nature of the employer’s business.

The Board now emphasizes that its Brown-Olds remedy has a substantial tendency to deter employer-union encouragement of union membership in violation of §§ 8 (a)(3) and 8 (b)(2). But it also correctly recognizes that in light of the Republic Steel case, supra, it must show more than that the remedy will tend to deter unfair labor practices. The Board must establish that the remedy is a reasonable attempt to put aright matters the unfair labor practice set awry. As I understand its contentions, the Board attempts to make this showing by arguing that wherever there has been a not insignificant unlawful encouragement to union membership all members should be taken to have been under the influence of coercion, whether or not they were aware of this influence or would have acted differently without it. The employees are said to have been coerced in much the same sense that a man contentedly sitting in the living room of his house may be said to be imprisoned by the barring of the doors whether or not he wants to leave.1 Accordingly, the Board has considered unnecessary an *659actual showing of employee unwillingness to belong to the union.

What we must decide, then, is whether it is within the power of the Board to provide dues-reimbursement relief for this type of imputed coercion, or, as the Board alternatively states its case, for the employee’s loss of his statutory right to decide freely whether or not he shall be a union member. This issue is not satisfactorily resolved by simply pointing out that there has been no showing of forced payment of dues an employee was unwilling to pay, for, unless I misunderstand the Board, it is arguing that even a willing union member loses something when there is a violation of § 8 (b) (2), namely the freedom of choice which the statute assures him. Nor, once we have recognized that a tendency to deter unfair labor practices is not alone sufficient justification for a Board order of affirmative relief, does the concept of punitiveness really advance a solution. Deterrence is certainly a desirable even though not in itself a sufficiently justifying effect of a Board order.

I think the Board should be denied the use of its Brown-Olds remedy in situations where, as here, it is not unlikely that a substantial number of employees were willing to pay dues for union membership because, as I see it, the amount of dues or other exactions paid is not a tenable way of estimating the value a willing union member would place'on his right to choose freely whether or not he would be or remain a union member — as it were, on his right to change his mind. The amount of dues paid does perhaps provide a means of estimating the value of benefits received from the union. Or the amount of dues paid does perhaps measure the cost coercion imposes upon an employee who, if free to choose, would be unwilling to join the union (although even in this case a proper adjustment might have to take some account of the union *660benefits the employee would not have received had he been merely a nonunion employee in a unionized bargaining unit). But I can find no rational relationship at all between the amount of dues paid and the value an employee who is willing to join a union would place on his freedom to change his mind.2 In the absence of a showing of such a relationship, the Board’s Brown-Olds order can no more be sustained than could its orders in the Phelps Dodge or Republic Steel cases. .

A different result might follow in this case if Virginia Electric had held that such a relationship exists. But I think that case held only that, as a matter of statutory policy, an employee could not ever be deemed a Willing member of a company-dominated union, cf. Matter of The Carpenter Steel Co., 76 N. L. R. B. 670, and that, on considerations of practicality, the employer who had violated the Act should bear the unapportionable costs of sustaining a union that served the employer’s forbidden purposes at least as much as it served the employee’s legitimate ones.

It is but another formulation of the same argument when the Board, in its brief, states that actual coercion is not required so. long as the dues are collected pursuant to an illegal system: “[T]he validity of a reimbursement order is not contingent upon a showing that the employees paid monies to the union unwillingly. If the money were paid pursuant to an arrangement which violated the statute, it can be ordered refunded provided this would best effectuate the statutory policies. . . . That the money may have been collected anyhow by a legal means does not privilege the use of an illegal procedure to obtain it.”

For example, an employee may be more willing to join- a union which charges high dues and provides substantial benefits than a union which charges little and gives little. But the Board formula declares that in the case where the dues are higher the value of the loss of freedom of choice is greater.