RESPONDENT: National Labor Relations Board
LOCATION: Braunfeld's furniture store
DOCKET NO.: 68
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Seventh Circuit
CITATION: 365 US 651 (1961)
ARGUED: Feb 28, 1961 / Mar 01, 1961
DECIDED: Apr 17, 1961
Facts of the case
Media for Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO v. National Labor Relations BoardAudio Transcription for Oral Argument - February 28, 1961 in Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO v. National Labor Relations Board
Audio Transcription for Oral Argument - March 01, 1961 in Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO v. National Labor Relations Board
-- United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al., Petitioners, versus National Labor Relations Board.
Mr. Come, you may continue your argument.
Norton J. Come:
May it please the Court.
As I concluded yesterday, I was -- I had finished outlying -- outlining the practical problem that the -- that the Board had before it, which prompted it to device the Brown-Olds refund remedy.
The practical problem being that despite the fact that Congress had 10 years ago outlawed the closed-shop, those practices were continuing to persist in industry's short-term employment for the union controlled the hiring process, such as in industries like the building construction industry and the trucking industry.
The Board believes that such a remedy is authorized by Section 10 (c) of the Act and by the holding, although concededly the facts here are different, by the holding of this Court in the Virginia Electric Power case, sustaining a Board refund remedy, the Board's power to order refund of dues and fees.
The majority of the Court there, in sustaining that remedy, enunciated this test, namely, that such a remedy 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.
Now, I'm going to try to show if I can that this refund remedy in situation such as we have in -- in these cases falls within that test.
Now, one of the declared policies of the Act is to protect the exercise by workers of full freedom of association, self-organization and this policy is reflected in the guarantee of this right in Section 7 of the Act, which specifically guarantees these rights to employees and adds that they include the right to refrain from any or all such activities.
And this Court made clear in the Radio Officers case that one of the corner stones of the Section 7 right to refrain from assisting the union was the right to get a job without having to be a union member or in full conformity with union policies.
Now, there can be no more flagrant impairment of this freedom and the type of practice which is conceded in Number 68, the closed-shop practice.
The Board found and the court below agreed that mechanical handlers, the employer and Local 60 entered into an agreement whereby the Company would obtain all their millwrights from Local 60 and abide by its rules and under the rules of the union, only members of Local 60 and those who are obtaining work permits from it, could get a job.
And as a result, two employees were referred -- were denied the jobs because Local 60 did not give them work permits.
Similarly, the hiring arrangement in the preceding case, under the Board's view of it, likewise, unlawfully encourages union membership, albeit and not as traumatic or fashion as a closed-shop.
Now, a refund of dues and fees paid to the union by employees as a price for getting jobs under these illegal hiring arrangements, in the Board's view, vindicates the policies of the Act which have been negated by -- by that arrangement for this reason.
The question is why has the union been willing to persist in maintaining a hiring arrangement such as we have in Local 68, a blatant form of closed-shop practice that is clearly outlawed by the Act.
The reason, it is fair to say, is because it assures that a regular flow of dues and fees will come to the union.
It maybe that these employees would have paid anyhow, but the union certainly has not been willing to risk that chance because they have continued to maintain the closed-shop practices for years after Congress outlawed them in the Taft-Hartley Amendments.
Now, a refund of dues and fees, in the Board's view, removes the incentive for continuing these illegal closed-shop practices.
And it differs from a jail sentence or a fine in that it is commensurate what the incentive for maintaining the illegal arrangement.
It is not some figure picked at -- picked at random, it is measured by what the union is benefiting as a result of continuing these closed-shop practices.
This Court said in the Virginia Electric Power that an order such as this, of course, they were talking about a different set of facts, which deprives an employer of the advantages accruing from a particular method of subverting the Act, is a permissible method of effectuating the statutory policy.
We think that a refund of dues and fees in the circumstances that we have here does no more than that.
And the Board has been careful to restrict the refund remedy to just situations where it would have the effect of removing the incentive for violating the Act because it has not applied this remedy in situations where a union security provision has been illegal for only technical reasons such as a failure to comply with Sections 9 (f), (g) and (h) or where employees were not required to be a union a member in order to get a job, but instead of giving them 30 days, as the statute requires, they were given only 29 days, let's say.
Moreover, the Board has not applied the remedy in cases where the parties have cleaned up their agreements during the moratorium period provided by the General Counsel, which was in March 1st to November 1st, 1958, as a recent case.
It makes that clear, which I do not think is cited in our brief, namely, Booth & Flinn Company, 129 NLRB, Number 89.
Now, we believe that if we have shown that the refund order meets the test in Virginia Electric Power, the fact that it was devised as a more effective means of deterring illegal hiring arrangements, does not impair its validity.
We think that purpose of a -- of a refund -- of a -- of a Board remedy, if otherwise, appropriate, is a measure of -- of deterrence under the -- for the Board to look around to modify its -- its remedies in order to -- to make them more effective, is not in its itself -- does not in itself, make the remedy invalid.
We think that the Seven-Up case before this Court indicates that.
This Court will recall, that was a situation where the Board found that as a result of computing back pay over the entire period between discharge and offer of reinstatement, it found that the employers were tending to delay offers of reinstatement and the hope that the employee would get a better paying job and thus, reduce its back pay liability.