Respondent union entered into a collective bargaining agreement
with respondent contractors' associations and their members
prohibiting dealings by the contractors with nonunion dump truck
operators. Petitioner, the owner and operator of a dump truck, who
previously had not been a member of a union, joined the union under
protest and paid an initiation fee, dues, and a contribution to a
fringe benefit plan. Petitioner and one of respondent contractors'
associations then filed charges with the National Labor Relations
Board, claiming that the agreement violated,
inter alia, §
8(e) of the National Labor Relations Act (Act), which prohibits
so-called "hot cargo" contracts. An Administrative Law Judge held
that the union and the contractors had violated § 8(e) by agreeing
not to do business with nonunion owner-operators of dump trucks,
and recommended that the Board issue a cease-and-desist order and
order the union and the contractors to reimburse the
owner-operators who were compelled to join the union for amounts
paid as dues, initiation fees, and fringe benefit contributions.
The Board affirmed and adopted the recommended order except for the
reimbursement provision, holding that a reimbursement order would
not effectuate the remedial policies of the Act. The Court of
Appeals enforced the Board's order in all respects.
Held: The Board acted within its authority in deciding
that a reimbursement order would not effectuate the policies of the
Act. Congress has delegated to the Board the power to determine
when those policies would be effectuated by a particular remedy,
and the Board could properly conclude that a remedy such as
reimbursement should be reserved for especially egregious
situations. There is nothing in the language or structure of the
Act that requires the Board to reflexively order "complete relief"
for every unfair labor practice. Pp.
459 U. S.
349-352.
215 U.S.App.D.C. 373, 669 F.2d 759, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and
STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting
opinion,
post, p.
459 U. S.
352.
Page 459 U. S. 345
JUSTICE REHNQUIST delivered the opinion of the Court.
This case grows out of a labor dispute in the construction
industry in San Diego County, Cal. The issue is whether the
National Labor Relations Board was required to provide a make-whole
remedy for a violation of § 8(e) of the National Labor Relations
Act (Act), 73 Stat. 543, 29 U.S.C. § 158(e), which prohibits
so-called "hot cargo" contracts. [
Footnote 1]
Petitioner Larry Shepard owns a dump truck, and operates it in
the San Diego area to haul materials to and from construction
sites. Contractors in this area generally hire dump truck operators
through so called "brokers" on a day-to-day basis. Brokers agree
with contractors to supply trucks and operators, then refer hauling
jobs to individual owner-operators
Page 459 U. S. 346
such as Shepard. Brokers handle the owner-operators' billing and
perform other coordinating services. They receive commissions based
on the amount billed.
Before August, 1978, Shepard was not a member of any union. In
1977, respondent Building Material and Dump Truck Drivers,
Teamsters Local 36 (Union), entered into a new master collective
bargaining agreement (Agreement) with respondent contractors'
associations and their member contractors (Contractors). This
Agreement accomplished a long-sought objective of the Union by
prohibiting dealings on the part of contractors with nonunion
operators. The effect of the Agreement was described by the Court
of Appeals in this language:
"[T]he Union enlisted the aid of the Contractors to insure that
only signatory brokers received subcontracts and only union truck
operators performed hauling services for building contractors in
the San Diego area."
215 U.S.App.D.C. 373, 376, 669 F.2d 759, 762 (1981).
In February, 1978, Shepard contracted with Terra Trucking Co., a
broker that had subscribed to the Agreement, for brokerage
services. Although Shepard was not a member of the Union, he
authorized Terra to make deductions from his earnings for several
purposes, including the fringe benefit plan created by the
Agreement. Terra deducted the appropriate sums when Shepard worked
on union jobs, and paid them to the Union's fringe benefit
funds.
In August, 1978, the Union wrote to Terra stating that, under
the Agreement, Terra must not deal with seven nonunion
owner-operators, including Shepard. Terra informed these
owner-operators that they would have to join the Union or find a
new broker. Shepard joined under protest and paid an initiation fee
and dues.
Shepard and respondent California Dump Truck Owners Association
(Association) filed charges with the National Labor Relations
Board, claiming that the Agreement violated
Page 459 U. S. 347
both § 8(e) and § 8(b)(4) of the Act, [
Footnote 2] 29 U.S.C. § 158(b)(4), the latter of which
prohibits secondary boycotts. At the request of the Regional
Director of the Board, Shepard filed a new charge alleging only a
violation of § 8(e). In 1979, the Regional Director consolidated
the two charges and issued a complaint against the Union and the
Contractors alleging only a violation of § 8(e). After a hearing,
an Administrative Law Judge found that these owner-operators are
independent contractors, rather than employees, and that the Union
and the Contractors had therefore violated § 8(e) by agreeing not
to do business with nonunion owner-operators. The ALJ recommended
that the Board issue a cease-and-desist order and order the Union
and the Contractors to reimburse owner-operators who were compelled
to join the Union for amounts paid as dues, initiation fees, and
fringe benefit contributions.
The Board affirmed the ALJ's findings and adopted his
recommended order except for the reimbursement provision. The Board
stated:
Page 459 U. S. 348
"The Board has on one occasion adopted without comment an
[ALJ's] recommended order containing such a remedy.
Local 814,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Santini Brothers, Inc.), 208 NLRB 184,
201 (1974). In the present case, however, there is insufficient
evidence in the record with respect to alleged losses directly
attributable to actual coercion by Respondents. Furthermore, we
find a reimbursement order, typically used to 'make whole'
employees for violations of the Act, to be generally
overbroad and inappropriate in the context of 8(e) violations. We
note that aggrieved owner-operators engaged in business as
independent contractors may pursue a damage claim under Sec. 303 of
the Act. For the foregoing reasons, we find that the reimbursement
of owner-operators ordered by the [ALJ] would not effectuate the
remedial policies of the Act.
See [Carpenters] v.
N.L.R.B., 365 U. S. 651 (1961)."
249 N.L.R.B. 386, n. 2 (1980) (emphasis in original).
On petitions for review, the Court of Appeals enforced the
Board's order in all respects. It held that
"the Board's explanation is adequate, and that, given our
limited authority to disturb the Board's exercise of discretion in
such matters, we may not interfere."
215 U.S.App.D.C. at 380, 669 F.2d at 766. In a similar case
involving dump truck owner-operators and a similar collective
bargaining agreement, the Court of Appeals for the Ninth Circuit
remanded the case to the Board to order reimbursement, or to
explain why reimbursement would not effectuate the purposes of the
Act.
Joint Council of Teamsters No. 42 v. NLRB, 671 F.2d
305, 310-313 (1981). We granted certiorari in this case, 456 U.S.
970 (1982), and now affirm the judgment of the Court of Appeals for
the District of Columbia Circuit.
Page 459 U. S. 349
The Board's authority to issue an order in this case is granted
by § 10(c) of the Act, 49 Stat. 454, as amended, 29 U.S.C. §
160(c):
"If . . . the Board shall be of the opinion that any person
named in the complaint has engaged in or is engaging in any such
unfair labor practice, then the Board . . . shall issue . . . an
order requiring such person to cease and desist from such unfair
labor practice, and to take such affirmative action including
reinstatement of employees with or without back pay, as will
effectuate the policies of this Act."
Shepard and the Association argue that the Board is
required to order a make-whole remedy in this case. They
rely on the reasoning of the Ninth Circuit in
Joint Council of
Teamsters No. 42, supra, that, "where money has been collected
illegally, the Board should order a refund, absent some rational
ground for not doing so." 671 F.2d at 310. We think the Court of
Appeals for the Ninth Circuit took too restricted a view of the
Board's discretion in designing a remedy. We conclude that the
Board need not order reimbursement, because its conclusion that the
policies of the Act would not be effectuated by such an order is
reasonable.
Congress has delegated to the Board the power to determine when
the policies of the Act would be effectuated by a particular
remedy.
"In fashioning its remedies . . . , the Board draws on a fund of
knowledge and expertise all its own, and its choice of remedy must
therefore be given special respect by reviewing courts."
NLRB v. Gissel Packing Co., 395 U.
S. 575,
395 U. S. 612,
n. 32 (1969).
See Fibreboard Paper Products Corp. v. NLRB,
379 U. S. 203,
379 U. S. 216
(1964). In this case, the Board issued a cease-and-desist order and
an order requiring the Union and the Contractors to post notices
stating that the illegal portions of the Agreement will not be
enforced. Shepard insists that the Board should have gone the last
mile and ordered reimbursement as well.
Page 459 U. S. 350
The Board justified its action in declining to grant this
additional remedy by the portion of its order quoted above. This
explanatory paragraph strikes us as something less than a model of
precise expository prose. Shortly after the enactment of the
National Labor Relations Act, this Court had occasion to remind the
Board:
"The administrative process will best be vindicated by clarity
in its exercise. Since Congress has defined the authority of the
Board and the procedure by which it must be asserted, and has
charged the federal courts with the duty of reviewing the Board's
orders (§ 10(e) and (f)), it will avoid needless litigation and
make for effective and expeditious enforcement of the Board's order
to require the Board to disclose the basis of its order. We do not
intend to enter the province that belongs to the Board, nor do we
do so. All we ask of the Board is to give clear indication that it
has exercised the discretion with which Congress has empowered
it."
Phelps Dodge Corp. v. NLRB, 313 U.
S. 177,
313 U. S. 197
(1941).
In this case, we think that the sense of the Board's explanation
is that it has decided to treat cases in which there is no finding
of "actual" coercion differently from cases in which there is such
a finding. By actual coercion, the Board apparently means threats,
picketing, a strike, or some other form of coercion that would
amount to a violation of § 8(b)(4).
See Teamsters v.
Morton, 377 U. S. 252,
377 U. S. 259
(1964). It can scarcely be doubted that the Board could properly
conclude that a remedy such as reimbursement should be reserved for
especially egregious situations.
In choosing to accord the limited relief that it did, the Board
relied on
Carpenters v. NLRB, 365 U.
S. 651 (1961), in which this Court held that a showing
of coercion was required before the Board could order a union to
reimburse dues paid to it by workers who were required by an
unlawful "closed shop" contract to join the union. The Board
presumably concluded that the reasoning of this case supported, at
least
Page 459 U. S. 351
by analogy, its decision not to award reimbursement. We think
this conclusion was justifiable.
Congress has provided a judicial damages remedy for illegal
secondary activity in § 303 of the Labor Management Relations Act
of 1947, [
Footnote 3] 29 U.S.C.
§ 187. Shepard and the Board agree that § 303 provides a remedy
only for violations of § 8(b)(4) of the Act, which, in turn,
requires proof of coercion. Brief for Petitioner 28-37; Brief for
Respondent National Labor Relations Board 32, n.19, 38-42. Of
course, Congress is free to provide a damages remedy for some
violations of federal law, and not for others. It is reasonable for
the Board to follow the pattern of the Act and order reimbursement
only where Congress chose to permit damages.
The crux of the argument against the Board's position made by
Shepard and the Association is that actual coercion is not an
element of a § 8(e) violation, and therefore should not be required
as a prerequisite to what they call "complete relief." Brief for
Petitioner 17. But the very way in which this argument is framed
suggests that its proponents misconceive the role of the Board. The
Board is not a court; it is not even a labor court; it is an
administrative agency charged by Congress with the enforcement and
administration of the federal labor laws. While a prayer for
"complete relief" might find a receptive ear in a court of general
jurisdiction, it is well settled that there are wide differences
between administrative agencies and courts.
See, e.g., FCC v.
Pottsville Broadcasting Co., 309 U. S. 134,
309 U. S.
141-144 (1940). This
Page 459 U. S. 352
Court has said that the Board's
"power to order affirmative relief under § 10(c) is merely
incidental to the primary purpose of Congress to stop and to
prevent unfair labor practices. Congress did not establish a
general scheme authorizing the Board to award full compensatory
damages for injuries caused by wrongful conduct."
Automobile Workers v. Russell, 356 U.
S. 634,
356 U. S.
642-643 (1958).
We find nothing in the language or structure of the Act that
requires the Board to reflexively order that which a complaining
party may regard as "complete relief" for every unfair labor
practice. We are satisfied for the reasons heretofore stated that
the Board acted within its authority in deciding that a
reimbursement order in this case would not effectuate the policies
of the Act. The judgment of the Court of Appeals is therefore
Affirmed.
[
Footnote 1]
Section 8(e) provides in pertinent part:
"It shall be an unfair labor practice for any labor organization
and any employer to enter into any contract or agreement . . .
whereby such employer ceases or refrains or agrees to cease or
refrain from handling, using, selling, transporting or otherwise
dealing in any of the products of any employer, or to cease doing
business with any other person, and any contract or agreement
entered into . . . containing such an agreement shall be to such
extent unenforcible [
sic] and void. . . ."
73 Stat. 543.
[
Footnote 2]
Section 8(b)(4), as set forth in 29 U.S.C. § 158(b)(4), provides
in pertinent part:
"It shall be an unfair labor practice for a labor organization
or its agents -- "
* * * *
"(4)(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or
commodities or to perform any services; or (ii) to threaten,
coerce, or restrain any person engaged in commerce or in an
industry affecting commerce, where in either case an object thereof
is -- "
"(A) forcing or requiring any employer or self-employed person
to join any labor or employer organization or to enter into any
agreement which is prohibited by subsection (e) of this
section;"
"(B) forcing or requiring any person to cease using, selling,
handling, transporting, or otherwise dealing in the products of any
other producer, processor, or manufacturer, or to cease doing
business with any other person. . . ."
[
Footnote 3]
Section 303 provides in pertinent part:
"(a) It shall be unlawful, for the purpose of this section only,
in an industry or activity affecting commerce, for any labor
organization to engage in any activity or conduct defined as an
unfair labor practice in section 8(b)(4). . . . "
"(b) Whoever shall be injured in his business or property by
reason [of] any violation of subsection (a) of this section may sue
therefor in any district court of the United States . . . without
respect to the amount in controversy, or in any other court, and
shall recover the damages by him sustained and the cost of the
suit."
61 Stat. 158, as amended, 73 Stat. 545.
JUSTICE O'CONNOR, dissenting.
I agree with the Court that the National Labor Relations Board
(NLRB) could reasonably determine in this case that reimbursing the
petitioner is not necessary to effectuate the objectives of the
National Labor Relations Act (Act). My disagreement is with the
Court's conclusion that the Board provided an adequate explanation
for its decision. The Board offered three reasons for its
conclusion that reimbursing the petitioner would not effectuate the
purposes of the Act. Each of its stated reasons was in error or
inadequate to justify its conclusion. I would therefore remand the
case to the Board in order to give it an opportunity to determine
the appropriateness of reimbursement in light of the Court's
Opinion.
I
A brief review of the facts is useful in understanding the
inadequacy of the Board's explanation for its decision.
For over a decade, there has been a dispute between respondent
Building Material and Dump Truck Drivers, Teamsters Local 36
(Union), and respondent California Dump
Page 459 U. S. 353
Truck Owners Association (Association) over the availability of
hauling jobs for nonunion truck operators. In June, 1977, three
contractors' associations, which are respondents in this case
(Contractors), entered into a new master labor agreement
(Agreement) with the Union which required signatory contractors to
transport "all materials . . . to or from or on the site of the
work by workmen furnished by the appropriate craft [union]. . . ."
App. 10. The Agreement also required contractors to obtain the
services of dump truck operators only through brokers who had
signed an agreement with the Union and provided for penalties for
contractors who failed to comply. Thus, through the Agreement, the
Union required the Contractors to ensure that only signatory
brokers received subcontracts for hauling, and that only union
operators performed hauling services.
Petitioner Larry Shepard is a self-employed dump truck operator.
He accepted referrals from the Terra Trucking Co., a broker. In
February, 1978, Shepard entered into a subhaul agreement with
Terra, under which the broker was authorized to make deductions
from his earnings for a number of purposes, including "payroll
benefits as required by the Union Agreement."
Id. at 22.
When Shepard worked on union jobs, Terra deducted the appropriate
amounts for payment to the Union's benefit funds.
Terra signed the Agreement, and was therefore required to refer
only union operators to contractors. In August, 1978, Terra's
president, Fred ReCupido, received a letter from the Union stating
that seven of Terra's "employees," including Shepard, were not
members in good standing of the Union. The letter requested that
the seven be "removed from [Terra's] employ and not be rehired
until properly cleared by [the Union]."
Id. at 27.
ReCupido told the seven they would have to join the Union by
September 5, 1978, if they wished to work through Terra. Shepard
joined the Union in September, 1978, and paid initiation fees and
union dues
Page 459 U. S. 354
"under protest," on advice of counsel. Some of the other
operators named in the Union's letter also joined at that time.
On August 25, 1978, Shepard's counsel filed unfair labor
practice charges on behalf of Terra's nonunion operators, alleging
violations of both § 8(b)(4) of the Act, 29 U.S.C. § 158(b)(4) --
the prohibition against secondary boycotts -- and § 8(e), 29 U.S.C.
§ 158(e), the hot cargo provision. At the request of the Regional
Director of the Board, those charges were withdrawn and replaced in
October, 1978, by charges alleging only a § 8(e) violation. The
Regional Director joined Shepard's unfair labor practice charge
with charges previously filed by the Association, and issued a
consolidated complaint against the Union and the Contractors
alleging that the Agreement violated § 8(e).
After trial, an Administrative Law Judge found that the Union
and the Contractors violated § 8(e) by agreeing not to do business
with nonunion operators and their brokers. He found that, since
1965, the Union had brought economic pressure against the
Contractors in order "to achieve its goal of unionization of
owner-operators," and that the Agreement was "part of the Union's
continuing efforts to achieve its goal. . . ." 249 N.L.R.B. 386,
393 (1980).
The ALJ found that "Shepard joined the Union because of the
letter Local 36 sent ReCupido."
Id. at 391. In addition to
this specific finding, the ALJ made findings concerning another
incident [
Footnote 2/1] and stated
that "union membership of owner-operators resulted from illegal
provisions of the [Agreement]."
Id. at 394.
Page 459 U. S. 355
The ALJ recommended that the Board issue a cease-and-desist
order and require that notices of its ruling be posted
conspicuously. In addition, the ALJ recommended that the Union and
the Contractors be required to reimburse operators for payments to
the Union.
Id. at 395. [
Footnote 2/2]
The Board upheld the ALJ's findings and conclusions, but deleted
his "make-whole" reimbursement order. The Board stated its reasons
for doing so in a footnote which reads in relevant part:
"[T]here is insufficient evidence in the record with respect to
alleged losses directly attributable to actual coercion by [the
Union and the Contractors]. Furthermore, we find a reimbursement
order, typically used to 'make whole'
employees for
violations of the Act, to be generally overbroad and inappropriate
in the context of 8(e) violations. We note that aggrieved
owner-operators engaged in business as independent contractors may
pursue a damage claim under Sec. 303 of the Act. For the foregoing
reasons, we find that the reimbursement of owner-operators ordered
by the Administrative Law Judge would not effectuate the remedial
policies of the Act.
See [Carpenters] v. N.L.R.B.,
365 U. S.
651 (1961)."
Id. at 386, n. 2 (emphasis in original).
The United States Court of Appeals for the District of Columbia
Circuit upheld the Board's refusal to order reimbursement,
rejecting the contentions that the Board had failed to explain its
decision adequately and that the relief ordered
Page 459 U. S. 356
was insufficient as a matter of law. 215 U.S.App.D.C. 373, 380,
669 F.2d 759, 766 (1981).
II
The broad language of § 10(c) of the Act, 29 U.S.C. § 160(c),
compels the conclusion that the Board has the authority to order
restitution of money unlawfully collected by a union, regardless of
whether the money was collected from employees or other persons.
[
Footnote 2/3]
See Virginia
Electric & Power Co. v. NLRB, 319 U.
S. 533 (1943). Indeed, in a proceeding very similar to
the instant case, the Board ordered reimbursement of independent
owner-operators who joined a union as a result of the union's
successful efforts to coerce an employer to enter into and enforce
a hot cargo agreement.
Local 814, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (Santini
Brothers, Inc.), 208 N.L.R.B. 184 (1974),
enf'd, 178
U.S.App.D.C. 223, 546 F.2d 989 (1976),
cert. denied, 434
U.S. 818 (1977).
The Board's first reason for denying reimbursement was that it
found that there was "insufficient evidence in the record with
respect to alleged losses directly attributable to coercion by [the
Union and the Contractors]." There is however, ample evidence, as
found by the ALJ, that Shepard and other Terra owner-operators
joined the Union and paid initiation fees and dues, [
Footnote 2/4] against their
Page 459 U. S. 357
will, as a result of the Union's effort to enforce an agreement
which violated § 8(e).
The Board's second reason, that a reimbursement order is
"generally overbroad and inappropriate in the context of 8(e)
violations," cannot withstand scrutiny. Although it would be
inappropriate to order reimbursement of persons who would have made
payments to a union regardless of whether it had attempted to
enforce an illegal provision, an order requiring that Shepard be
reimbursed for the initiation fees and dues he paid to the Union
would not be "overbroad and inappropriate" in light of the ALJ's
finding that Shepard joined the Union as a result of the Union's
effort to enforce the hot cargo provision.
Cf. Carpenters v.
NLRB, 365 U. S. 651
(1961).
As its third reason for refusing to order reimbursement, the
Board stated that the owner-operators "may pursue a damage claim
under Sec. 303 of the Act." But as the Board conceded, § 303, by
its terms, only creates a damages remedy for persons harmed by a §
8(b)(4) violation, not a § 8(e) violation.
Ante at
459 U. S. 351.
See Connell Construction Co. v. Plumbers &
Steamfitters, 421 U. S. 616,
421 U. S. 649,
n. 9 (1975) (Stewart, J., dissenting). Thus in the absence of a
finding of a § 8(b)(4) violation, petitioner could not successfully
pursue a § 303 action.
It is true that the Court "will uphold a decision of less than
ideal clarity if the agency's [reasons] may reasonably be
discerned."
Bowman Transportation, Inc. v. Arkansas-Best
Freight System, Inc., 419 U. S. 281,
419 U. S. 286
(1974) (citation omitted). But as the Court ruled in
SEC v.
Chenery Corp., 318 U. S. 80,
318 U. S. 95
(1943),
"[a]n administrative order cannot be upheld unless the grounds
upon which the agency acted in exercising its powers were those
upon which its action can be sustained."
See FPC v. Texaco Inc., 417 U.
S. 380,
417 U. S. 397
(1974). The Board's order in this case simply does not support
Page 459 U. S. 358
its denial of reimbursement. [
Footnote 2/5] I would therefore reverse the judgment of
the Court of Appeals and remand this case to allow the Board to
consider whether reimbursement of any or all of the funds paid to
the Union by the petitioner is necessary to effectuate the Act's
prohibition against hot cargo agreements.
See NLRB v. Food
Store Employees, 417 U. S. 1
(1974).
[
Footnote 2/1]
The ALJ found that, in November, 1977, the Kissinger Trucking
Co., a broker, entered into an agreement with a contractor, the
Penhall Co., to supply hauling services. Shortly thereafter,
Kissinger's manager was informed by Penhall's superintendent that
the Union had said that Kissinger should be replaced because it was
referring nonunion operators. Kissinger lost the contract with
Penhall, and subsequently signed the 1977 Agreement. 249 N.L.R.B.
at 390.
[
Footnote 2/2]
The recommended order, which was omitted from publication, would
have required the Union and the Contractors
"[j]ointly and severally [to] make whole all owner-operators . .
. for all dues, initiation fees, assessments, and contributions to
trust funds which . . . said owner-operators paid to [the] Union or
its trust fund as a result of enforcement of the [illegal]
provisions of the . . . Agreement."
Building Material and Dump Truck Drivers, Teamsters Local
Union No. 6, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, No. 21-CE-197, slip op.
at 18 (NLRB, Oct. 30, 1979).
[
Footnote 2/3]
I express no opinion as to whether the Board could, as the ALJ
recommended here, require an employer to reimburse employees or
independent contractors for funds unlawfully collected by a union
with the acquiescence of the employer.
[
Footnote 2/4]
Because Shepard signed the subhaul agreement, which authorized
Terra to make deductions from his earnings for payments to the
Union's benefit funds, prior to the Union's efforts to enforce the
illegal provisions of the Agreement, it is not clear whether his
payments to the benefit funds should be attributed to the Union's
attempts to enforce the hot cargo provision.
[
Footnote 2/5]
Unlike the majority, I do not believe that it can reasonably be
discerned from the terse footnote quoted above that the Board has
barred reimbursement in cases in which there is no finding of a §
8(b)(4) violation because "reimbursement should be reserved for
especially egregious situations."
Ante at
459 U. S.
350.