concurring in part and dissenting in part:
I would agree with the majority that the acts in question of representatives of Ruba-tex Corporation amount to a violation of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act. While I would also agree that the injunctive relief ordered by the Board was appropriate under the circumstances here, I would not grant enforcement of that part of the Board’s order requiring Rubatex to pay the substantial sum of $82,000 to 821 union employees because of the payment of merely $1,000 to thirteen union members who worked during the strike. ■.
Undoubtedly, the Board has broad discretionary authority to fashion an appropriate remedy to purge unfair labor practices. However, the Supreme Court has recognized that the Board’s power is not limitless, that the particular remedy must be appropriate under the situation which calls for redress, and that the remedy may not be oppressive or punitive as applied to the particular circumstances of a case. NLRB v. District 50, UMW, 355 U.S. 453, 458, 78 S.Ct. 386, 2 L.Ed.2d 401 (1958); Carpenters’ Local 60 v. NLRB, 365 U.S. 651, 655, 81 S.Ct. 875, 6 L.Ed.2d 1 (1961). The majority has cited decisions of the Supreme Court indicating that an order of the Board will be set aside only where its effect is patently an attempt to accomplish an end other than that within the policy of the Act. E.g., Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). This standard of review was first articulated in Virginia Electric Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943). Nevertheless, since Virginia Electric Co., the Supreme Court has not hesitated to set aside an order of the Board which it found to be punitive rather than remedial. NLRB v. District 50, UMW, supra; Carpenters’ Local 60 v. NLRB, supra.
The strike in this case began on September 1, 1976 and ended on October 25, 1976, when a new collective bargaining agreement was executed. Rubatex was able to continue to operate during the strike, and thirteen members of the union chose to work along with certain non-union employees and supervisory personnel. When the company a month later decided to pay a bonus to employees who had worked during the strike, it determined that the thirteen union members who chose to work should also receive the bonus along with non-union employees.
The illegality here arose as a result of the bonus payments to the union members, nine of whom received $100 each and four of whom received $25 each. Because of the payment of merely $1,000 to thirteen members of the union, the Board, besides entering a cease and desist order, has required that the company pay $100 to each of the 817 union employees who engaged in the strike and $75 to each of the four union members who had received only $25 for their work during the strike, plus interest. The company has therefore been ordered to pay the substantial sum of $82,000, plus interest. In my opinion, this part of the remedy is oppressive under the circumstances of this case and amounts to the imposition of a punitive fine.
I would agree with the majority that rescission of the bonus is not a practical remedy at this late date, but I do not agree that the payment of an equivalent bonus is a proper alternative. In my opinion, the appropriate remedy here woifld have been the entry of the injunctive relief alone. That portion of the Board’s order requires the company to cease and desist from the unfair labor practices in question, to post a notice to that effect at its plant in Bedford, Virginia, and to notify the Regional Director of the steps it had taken to comply with the Board’s order. Such a remedy would have adequately inhibited any future unfair labor practice of the type involved here. It would have been quite apparent to employees from the notice posted that if Rubatex at any time in the future paid members of the union a bonus for working during a future strike, the company could be cited for contempt and then a punitive fine could be imposed.
*153As the majority opinion notes, a similar remedy was imposed by the Board in Aero-Motive Manufacturing Co., 195 NLRB 790 (1972), enforced, 475 F.2d 27 (6th Cir. 1973). However, different circumstances were involved there, and the impact of the monetary portion of the Board’s order was much less onerous. In Aero-Motive, the employer had paid $4,000 to non-strikers and was required by the Board to pay $7,200 to the strikers. Even so, two members of the Sixth Circuit panel in that case voted to enforce the monetary portion of the order “reluctantly” (475 F.2d at 28), while Chief Judge Phillips dissented in part and voted to deny enforcement of that portion of the Board’s order which would require payments to the strikers.
I do not find it significant that Rubatex did not produce evidence before the Board indicating that the payment of $82,000 would have a substantial adverse effect on company earnings. $82,000 is concededly a substantial sum, particularly when considered in relation to the $1,000 paid here as bonuses to the non-striking members of the union. Whether Rubatex is a large or a small company and whether or not it operates profitably, the Board’s order requiring the payment of this large sum is in my opinion punitive under the circumstances of this case.
At some point, an order of the Board requiring a violator of the' Act to pay substantial sums becomes oppressive and punitive in nature. The Board is simply not free to set up any system of penalties which it deems adequate to deter prospective violators of the Act. Republic Steel Corp. v. NLRB, 311 U.S. 7, 12, 61 S.Ct. 77, 85 L.Ed. 6 (1940). In balancing all the factors, I believe that the line has been crossed here and that the entry of the cease and desist order alone would be sufficient to correct the illegality under the particular circumstances of ,this case.
For these reasons, I would deny enforcement of that portion of the Board’s order which requires the company to pay $82,000, plus interest, to members of the union.