June 17, 1960
NATIONAL LABOR RELATIONS BOARD, PETITIONER,
LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, RESPONDENT.
Before MOORE, Circuit Judge, SMITH and HERLANDS, District Judges.
Per Curiam: The Board moves for rehearing of that portion of the court's order which deleted reimbursement provisions from the Board's order. Its attack on that portion of the court's order is well taken. In each case the validity of reimbursement orders must be determined on the particular circumstances shown. N.L.R.B. v. Adhesive Products Corp ., 2 Cir., 258 F.2d 403, 409. We held in the instant case that the reimbursement order was punitive in application, unduly harsh and penal in nature, since the union was not company dominated, there was no evidence of enforcement of the union shop provision of the contract, and a substantial proportion of those who would be reimbursed were bona fide members before the illegal contract. On reconsideration, we now hold that these facts are outweighed by the coercion of the majority by the illegal agreement and are not sufficient grounds to refuse enforcement of the reimbursement order in this case.
It has been established that the union represented a minority of the employees. Although there was a substantial representation of the employees, nevertheless the actions of the union were not supported by the express approval of the majority of the employees at the time the contract was entered into. The employees signed the check-off authorization cards largely on the solicitation of the employer. They did so in face of a contract requiring membership in the union within thirty days and we think that sufficient coercion existed here to warrant the imposition of a reimbursement order against the union which was the ultimate beneficiary of the collections. We think that the illegal activity of the union was the substantial factor causing the previously uncommitted employees to authorize the check-off. Pressure by the minority union caused the employer to request the workers to show their loyalty to the company by consenting to the check-off. The means of coercion is somewhat different and less direct than that displayed in N.L.R.B. v. Revere Metal Art Co ., 2 Cir., decided May 6, 1960. However, it is present here and is traceable to the union. Indeed, the existence of the thirty day membership provision in a contract with a minority union has in itself been held sufficient to justify a reimbursement order. Dixie Bedding Mfg. Co. v. N.L.R.B ., 5 Cir., 268 F.2d 901, 905. Since the reimbursement order vindicates public rights as well as private rights, Virginia Electric and Power Co. v. N.L.R.B ., 319 U.S. 533, 543 (1943), the inclusion of this minority group should not preclude enforcement of the order. The majority was coerced by the illegal contract into paying the dues.The lack of enforcement may indicate only that the coercion was successful. Company domination of the union as in the Virginia Electric case, may be an additional factor to support a reimbursement order. It is not, however, a necessary element. Compare Lodge 1424 v. N.L.R.B ., D.C. Cir., 264 F.2d 575, 582, rev. on other grounds, 362 U.S. 411, April 25, 1960. N.L.R.B. v. Local 404, 1 Cir., 205 F.2d 99, 104. N.L.R.B. v. Spiewak, 3 Cir., 179 F.2d 695, 698.
The motion for rehearing is granted. Enforcement of the Board's order in full is granted.
© 1998 VersusLaw Inc.