Cascade General, Petitioner-Cross-Respondent v. National Labor Relations Board, Respondent-Cross-Petitioner

9 F.3d 731 CASCADE GENERAL, * Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. Nos. 91-70547, 91-70605. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 3, 1993. Decided June 24, 1993. As Amended Nov. 5, 1993. Wayne D. Landsverk, Newcomb, Sabin, Schwartz & Landsverk, Portland, OR, for petitioner-respondent. Fred L. Cornell, Jr., N.L.R.B., Washington, DC, for respondent-petitioner. Petition for Review & Cross Application for Enforcement of an Order of the National Labor Relations Board. Before TANG, POOLE, and RYMER, Circuit Judges. TANG, Circuit Judge: 1 Cascade General ("Cascade") petitions for review of a decision and order issued by the National Labor Relations Board ("Board"), and the Board cross-petitions for enforcement of its July 5, 1991 order. In its decision and order, the Board held that Cascade violated Sec. 8(a)(1) and (2) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 158 (a)(1) and (2), by recognizing OCAW 1 as the collective bargaining representative at a time when Cascade did not employ a substantial and representative complement of the work force. The Board also ordered…

Cascade General (“Cascade”) petitions for review of a decision and order issued by the National Labor Relations Board (“Board”), and the Board cross-petitions for enforcement of its July 5, 1991 order. In its decision and order, the Board held that Cascade violated § 8(a)(1) and (2) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158 (a)(1) and (2), by recognizing OCAW 1 as the collective bargaining representative at a time when Cascade did not employ a substantial and representative complement of the work force. The Board also ordered Cascade, among other things, to reimburse employees for all initiation fees, dues, and other moneys withheld and paid to OCAW. Cascade petitions for review arguing that it properly recognized OCAW as the collective bargaining representative. Cascade also argues that any initiation fees, dues, or other moneys withheld from its employees should be reimbursed by OCAW. We have jurisdiction under 29 U.S.C. § 160 (e) and (f). We deny the petition for review and enforce the Board’s order.

BACKGROUND

Cascade General, a company engaged in the ship repair business, was formed in September of 1985 and is located in Vancouver, Washington. Cascade…

concurring in part and dissenting in part:

I agree with my colleagues that there is substantial evidence in the record to support the National Labor Relations Board’s conclusion that Cascade General’s recognition of Local 1-369 of the Oil, Chemical & Atomic Workers (OCAW) violated the National Labor Relations Act. Therefore, I join Parts I and II of the majority opinion. However, because I believe that the dues reimbursement remedy imposed by the NLRB is a punitive measure that is beyond the Board’s remedial powers, I dissent.

I

The petitioner, Cascade General, is in the business of ship repair. Because this business depends on relatively short-term contracts for work on individual ships, employment levels in the industry fluctuate frequently. During the year prior to September 1, 1987, Cascade’s payroll ranged from a low of three employees in September 1986 to a high of 118 employees in May 1987.

Before September 1, 1987, Cascade was a division of a Washington clothing store and was located in Vancouver, Washington, across the Columbia river from Portland, Oregon. Cascade did a substantial amount of work at the Port of Portland facility on *738 Swan Island. In mid-1987, a…