Before BIGGS, Chief Judge, GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE and FORMAN, Circuit Judges.
GOODRICH, C. J.: The National Labor Relations Board in this case petitions for enforcement of an order made by it against both the employer United States Steel Corporation (American Bridge Division) and Local Union 542, International Union of Operating Engineers, AFL-CIO. There is no doubt about jurisdiction of the Board and the Court. The Board has found that the employer violated Sections 8(a)(1) and (3) of the National Labor Relations Act*fn1 and that the union violated Sections 8(b)(1)(A) and (2) of the Act.*fn2 The complaint here was started by an employee named Russell who claimed to have been discriminated against in hiring procedures.
The facts are fully stated in the opinion of the Board, 122 N.L.R.B. No. 155. We will summarize them very briefly here. There is no formal contract between American Bridge Division of the United States Steel Corporation and Local 542. But it was shown that the provisions of the area-wide contract between Local 542 and various contractor associations in the area have been followed with regard to American Bridge's operations at U.S. Steel's Morrisville, Pennsylvania, plant.
One of the provisions of the area-wide contract requires the employer to employ a Master Mechanic whenever seven or more engineers are utilized on any one project. Hiring of operating engineers at the Morrisville plant was performed by the Master Mechanic (a union man) who is a "supervisor" within the meaning of Section 2(11) of the Act.*fn3 There is sufficient evidence in the record to support the Board's findings that (1) the Master Mechanic (except for two instances) exercised complete control over the selection of operating engineers to be employed, (2) the Master Mechanic secured employees exclusively from the hiring hall maintained by Local 542, and (3) the Master Mechanic was required by the constitution of the International Union and by the by-laws approved by the members of Local 542*fn4 to hire only those in good standing with the union. Added to these findings is the fact that neither the employer nor the union suggested before the Board that any non-union men were employed by American Bridge at the Morrisville plant.
We think the Board was justified in concluding that, as a result of the Master Mechanic's dual capacity as agent for both American Bridge and Local 542, both employer and union were responsible for the hiring procedures employed. It was also justified in concluding that there existed a hiring arrangement which limited employment to union members in good standing with the union. Such a hiring arrangement has often been held to be a violation of the Act.*fn5
As for Russell himself, the evidence shows that, on three occasions, he was denied employment for which he was qualified. Russell was a member of Local 542 who had been involved in disputes with officials of the Local over the manner in which they conducted union affairs. He contended, and the Board so found, that the union opposed his employment because of these disputes and that he was denied employment on the specific occasions as a result of the operation of the unlawful hiring arrangement.
The trial examiner who heard the testimony recommended dismissal of the entire complaint for lack of evidence. But the majority of the Board, one member dissenting, reversed the trial examiner and held the testimony sufficient to uphold the charges made by Russell.*fn6 Although the evidence to support the Board's findings is not very strong, we think the case is not so weak that we can deny enforcement of the Board's order for lack of evidence.
The order for the most part was in the usual form. It directed reimbursement to Russell for any loss of pay he may have suffered during the short period in which it was found that he was discriminated against, and directed the union to withdraw its objections to his employment. It required the posting of the usual notices. While the cease and desist provisions forbidding discrimination went beyond the Morrisville plant of the respondent company, we do not think that there is adequate ground for complaint on this item.
This brings us to the controversy presented by the final section of the Board's order. The Board applied what is known as the Brown-Olds formula for relief.*fn7 It said that the hiring arrangement had the result of "inevitably coercing employees not only to become members in good standing in the Respondent Union, but also to pay the Respondent Union initiation fees, dues and other sums. The payment of such moneys," continued the Board, "thus constituted the price employees had to pay for their jobs in disregard of their statutory rights."
Following this line of thought, the order provided that the respondent employer and the respondent union:
"shall jointly and severally reimburse all present and former employees, of Respondent Company, who have unlawfully been required to pay initiation fees, dues, or other money, to the Respondent Union in order to secure or retain employment with the Respondent Company under the illegal hiring arrangement between the Respondents during the period beginning 6 months before the filing and service upon the Respondents of the charges in this proceeding, in the manner set forth in the section of this Decision entitled 'The Remedy.'"
One of the subsidiary attacks which the union makes on this order is that the Board refused to reopen the case and permit the union to offer testimony from employees that they were not coerced. Counsel for the Board, in argument here, says the reason for that refusal was that the evidence would be irrelevant. The union says that this shows that the Board's premise is that "no working man would join a labor union and pay dues to it unless he was compelled to do so by a closed shop agreement or practice." Counsel for the Board conceded that the presumption of coercion is a conclusive one once the unfair labor practice is shown.
We think it is helpful in the discussion of the question here to set aside one situation where it has been held that a broad dues-reimbursement order is proper. Where the unfair labor practice consists of employer-domination in the creation of a union, the imposition of such reimbursement has been approved by the Supreme Court. Virginia Electric & Power Co. v. NLRB, 319 U.S. 533 (1943). In such a situation reimbursement is proper because the union is an illegitimate union from the beginning. Its existence is illegal. The dues themselves are the fruits of the unfair labor practice for, in the absence of the unlawful practice, there would have been no union; a fortiori, there would have been no dues paid to it. Reimbursement is simply a way of pulling the unlawful organization up by the roots. An analogous situation is the annulment of a marriage.
In a recent case,*fn8 the Court of Appeals for the Ninth Circuit drew a clear distinction between the situation of five young athletes who were forced to join a union and pay dues as a condition of employment and the remainder of the employees concerning whom there was no evidence of coercion. The Court permitted reimbursement of dues to the five who had been coerced; it denied it to the others.*fn9 In this case the court also enforced the reimbursement provision against the employer. We ...