William O. Douglas

“ 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. ”

“ 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. ”

“ In that case a panel of three members of the five-member Board found a violation of the closed-shop provision of the Act. Two of the three agreed to an order of reimbursement to all employees for any assessments collected by the union within the period starting from six months prior to the date of the filing of the charge. One member, Ivar H. Peterson, dissented, saying that the reimbursement was inappropriate since there was an absence of 'specific evidence of coercion and evidence that payments were required as a condition of employment.' Id., 606. ”

“ 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. ”