LARRY SHEPARD, PETITIONER V. NATIONAL LABOR RELATIONS BOARD, ET AL. No. 81-1627 In the Supreme Court of the United States October Term, 1982 On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Brief for the National Labor Relations Board TABLE OF CONTENTS Opinions below Jurisdiction Statutes involved Statement Summary of argument Argument: The Board reasonably exercised its remedial discretion by ordering the Union and the Contractors Associations to cease and desist from giving effect to the agreement found to violate Section 8(e) of the Act, but declining to order the Union and Associations to reimburse owner-operators for their benefit contributions and union fees and dues A. The Board has broad discretion in determining what remedy is appropriate and sufficient to effectuate the policies of the Act 1. This Court repeatedly has stressed that the Board has broad discretion to fashion an appropriate remedy for an unfair labor practice 2. Judicial deference to the Board's discretion is particularly required where the Board has declined to order certain affirmative action on the ground that it is not necessary or appropriate to effectuate the policies of the Act B. The Board did not abuse its discretion in this case by declining to order a reimbursement of fringe benefits contributions and union fees and dues to owner-operators who joined the Union 1. The record does not establish that owner-operators suffered substantial injury as a result of the provisions of the Master Labor Agreement found to violate Section 8(e) 2. The Board properly could take into account the provision for a damages remedy under Section 303 of the Act 3. It is reasonable for the Board to decline to order reimbursement in the absence of coercion Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-14a) is reported at 669 F.2d 759. The decision and order of the National Labor Relations Board (Pet. App. 15a-44a) are reported at 249 N.L.R.B. 386. JURISDICTION The judgment of the court of appeals (A. 116-117) was entered on December 4, 1981. The petition for a writ of certiorari was filed on March 3, 1982, and was granted on May 17, 1982 (A. 118). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 1. Sections 8(b)(4) and (e) of the National Labor Relations Act, as codified at 29 U.S.C. 158(b)(4) and (e), provide in relevant part: (b) 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 * * *; * * * * (e) It shall be unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refuses or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void * * *. * * * * 2. Sections 10(c) and (l) of the National Labor Relations Act, as codified at 29 U.S.C. 160(c) and (l), provide in relevant part: (c) * * * If upon the preponderance of the testimony taken 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 state its findings of fact and shall issue and cause to be served on such person 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 backpay, as will effectuate the policies of this subchapter * * *. * * * * (l) Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of (Section 8(b)) (4)(A), (B), or (C) * * * or section (8)(e) * * * or section (8)(b)(7) * * *, the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law * * *. 3. Section 303 of the Labor Management Relations Act of 1947, as amended and codified at 29 U.S.C. 187, provides in relevant 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) of this Act). (b) Whoever shall be injured in his business or property by reason or /1/ 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 having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit. QUESTION PRESENTED Whether the National Labor Relations Board abused its remedial discretion under Section 10(c) of the National Labor Relations Act, 29 U.S.C. 160(c), when, upon finding that the Union and Employer Associations had entered into an agreement in violation of Section 8(e) of the Act, 29 U.S.C. 158(e), it ordered them to cease and desist from continuing to give effect to the agreement, but, in the absence of a showing of coercion, declined to order them to reimburse independent contractors for benefit contributions and union fees and dues paid in accordance with the agreement. STATEMENT 1. It is a common practice in the building and construction industry in San Diego County, California, for contractors to hire owner-operators of dump trucks to transport materials to, from, or on the job site. The owner-operators typically are hired through brokers, who enter into subhaul agreements with the owner-operators and refer them to jobs for contractors in return for a 5% fee. The contractors pay the brokers for the services, and the brokers in turn pay the owner-operators, after deducting their commissions (Pet. App. 3a-4a, 30a-31a; A.21-22, 62, 93-95). The 1977-1980 Master Labor Agreement (MLA) between three Contractors Associations in San Diego County /2/ and a number of unions representing employees in construction-related work, including respondent Union, /3/ contained provisions that required the owner-operators to become employees of the signatory contractors. The MLA also required that the owner-operators be subject to all terms and conditions of the MLA, including the provisions requiring union membership and assuring the payment of wages and fringe benefits as provided in the MLA. /4/ In addition, the MLA provided that contractors could procure owner-operators through any person or entity -- e.g., a broker -- that was a signatory to the MLA and making fringe benefit payments, and that such person or entity would be considered a subcontractor for purposes of the MLA (Pet. App. 22a-25a; A.10-12). 2. a. On January 29, 1979, upon charges filed by respondent California Dump Truck Owners Association (CDTOA) and petitioner Larry Shepard, an owner-operator of a dump truck, the Board's General Counsel issued an unfair labor practice complaint alleging that the owner-operator provisions of the MLA violated Section 8(e) of the National Labor Relations Act, 29 U.S.C. 158(e), by providing that the Contractors Associations' members would cease or refrain from doing business with self-employed owner-operators of dump trucks who were not members of the Union (Pet. App. 19a-20a). The complaint did not allege, however, that the Union had violated Section 8(b)(4)(ii)(A) of the Act, 29 U.S.C. 158(b)(4)(ii)(A), by threatening or coercing the owner-operators to join the Union (Pet. App. 13a). Five days earlier, on January 24, 1979, the General Counsel had sought an injunction pursuant to Section 10(l) of the Act, 29 U.S.C. 160(l), prohibiting further enforcement of the challenged provisions of the MLA pending completion of the Board proceedings. The injunction was entered on March 15, 1979. Johansen v. Building Material and Dump Truck Owners, Local 36, No. CV-79-0086-E (S.D. Cal.). b. The evidence at the hearing conducted by the Board showed that in 1977, the Terra Trucking Company was operating as a broker for between 200 and 250 owner-operators in the area, dealing regularly with between 25 and 30 of them (Pet. App. 27a; A. 53). In 1974, Fred ReCupido, the owner of Terra, had signed a "short form" contract with the Union that bound Terra to the provisions of the MLA, including its provisions regarding benefits and union security (A. 55). The 1974 agreement was self-renewing, and Terra therefore also was bound by the 1977-1980 MLA (Pet. App. 27a-28a; A. 55-56, 59). Petitioner Shepard entered into a subhaul agreement with Terra on February 3, 1978 (A. 19-22). In the subhaul agreement, petitioner authorized Terra to make deductions from his earnings for a number of purposes, including for "payroll benefits as required by the Union Agreement applicable during the life of (the subhaul) agreement" (id. at 22). The amounts deducted for payroll benefits in turn were paid to the Union's pension, health and welfare, and other fringe benefit funds (id. at 14-17). Terra made similar deductions and payments for other owner-operators (id. at 26). Apparently Terra in general billed contractors on union jobs at higher rates to compensate for these fringe benefit payments (id. at 79-80). Subsequently, in August 1978, ReCupido received a letter from the Union stating that seven of Terra's "employees," including petitioner, were not members in good standing of the Union. The letter requested that these seven be removed from Terra's employ and not be rehired until they were properly cleared by the Union (Pet. App. 28a-29a; A. 27, 79). /5/ ReCupido told the seven owner-operators that they would have to join the Union if they wished to work through him, giving them a deadline of September 5, 1978. /6/ ReCupido did not stop doing business with these owner-operators. Although at the time he was "under the impression" that those named in the letter subsequently joined the Union, he later discovered that some of them did not (Pet. App. 28a; A. 56-58). Petitioner, however, did join the Union in September 1978. He paid an initiation fee at that time and paid dues until April 1979 (Pet. App. 29a-30a; A. 88-89). /7/ There was no evidence presented to the Board of threats or coercion by the Union directed toward these owner-operators. /8/ The remaining evidence with respect to the impact of the MLA provisions at issue involved another broker, the Kissinger Trucking Company, which had non-exclusive subhaul agreements with between 75 and 100 dump truck owner-operators (Pet. App. 26a; A. 94-95). In November 1977, Kissinger was informed by the Penhaul Company, a signatory to the MLA to which Kissinger had referred owner-operators, that the owner-operators could not perform on Penhaul's construction job because they were nonunion and because Kissinger was not a signatory to the MLA. Subsequently, in February 1978, Kissinger was informed that it could not haul material for another contractor for the same reason. Kissinger then signed the MLA (Pet. App. 5a, 27a; A. 96-98). No evidence was presented to indicate that any owner-operators working through Kissinger joined the Union as a result of Kissinger's new status as an MLA signatory, and there was no evidence of threats or coercion by the Union in connection with Kissinger's experience. 3. The Board held that the owner-operators were "independent contractors" rather than "employees" for purposes of the Act (Pet. App. 15a-16a, 21a-22a, 30a-31a), /9/ and that the Union and the Contractors Associations therefore had violated Section 8(e) by "entering into and maintaining" the disputed provisions of the MLA requiring owner-operators to become members of the Union as a condition to their hauling materials for signatory contractors (Pet. App. 15a-16a, 44a). Accordingly, the Board ordered the Union and the Contractors Associations to cease and desist from "maintaining, giving effect to, or enforcing" the unlawful provisions of the MLA (id. at 17a, 18a). The Board also ordered, in what it termed "affirmative action designed to effectuate the policies of the Act" (id. at 18a), that the Union, the Associations, and the employer members of the Associations post appropriate notices at their places of business, and that the Union made available a notice for posting at Terra's place of business (id. at 18a-19a). The Board declined, however, to order the Union and the Contractors Associations to pay all owner-operators of dump trucks who joined the Union as a result of the enforcement of the MLA the amount of their initiation fees, dues and contributions to employee benefit funds, without regard to whether the Union or the Associations had engaged in coercive conduct to cause them to join the Union. The Board explained (Pet. App. 17a n.2; emphasis in original): The Board has on one occasion adopted without comment an Administrative Law Judge'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. /10/ 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 (sic) would not effectuate the remedial policies of the Act. See Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al. (Mechanical Handling Systems, Inc.) v. N.L.R.B., 365 U.S. 651 (1961). 4. On petitions for review, the court of appeals sustained the Board's findings that the owner-operators were independent contractors, not employees, and that the pertinent provisions of the MLA violated Section 8(e) of the Act (Pet. App. 7a-11a). The court also upheld the Board's remedial order, rejecting the contention by petitioner and respondent CDTOA that the cease and desist order was insufficient as a matter of law (id. at 11a-14a). The court observed that "(t)he Board's remedial power is a broad discretionary one, subject to limited judicial review' " (Pet. App. 12a, quoting Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216 (1964)). Accordingly, the court held that in order to prevail on a claim that the Board's remedial order did not go far enough, it must be shown that the remedies the Board did prescribe were " 'clearly inadequate in the light of the findings by the Board' " (Pet. App. 12a, quoting Electrical Workers Local 806 v. NLRB, 434 F.2d 473, 478 (D.C. Cir. 1970)). In this case, the court could not say that the cease and desist order was insufficient /11/ to deter further wrongdoing, because both the Union and the Contractors Associations would be subject to contempt sanctions for any future violations of the cease and desist order. Accordingly, the court concluded that it would not "disturb the Board's judgment that the order is sufficient to effectuate the policies of the Act" (Pet. App. 14a). In particular, the court rejected the contention that the Board abused its discretion in declining to order a reimbursement of fringe benefit contributions and union fees and dues paid by the owner-operators. The court held that although agreements violative of Section 8(e) are unlawful per se, the Board properly finds it inappropriate, in the absence of a showing of coercion, to order reimbursement of sums paid pursuant to such agreements. The court reasoned that "union members receive benefits as well as assume burdens" and that, "obviously, reimbursement to union members who were not coerced into joining would result in an unjust windfall to them" (Pet. App. 13a). It was for this reason, the court observed (ibid.), that this Court held in Carpenters Local 60 v. NLRB, 365 U.S. 651 (1961), that the Board was not authorized to require a union to refund dues and fees when there was no evidence that any of the employees had been coerced into joining the Union (id. at 655). The court observed in this regard that Section 8(b)(4)(ii)(A) of the Act makes it unlawful for a union to engage in threatening or coercive conduct if the object thereof is to force or require any employer or self-employed person to join a union or enter into an agreement prohibited by Section 8(e), and the court noted that the Board properly has ordered reimbursement where employers or self-employed persons have been subjected to violations of that Section. In this case, however, no violation of Section 8(b)(4)(ii)(A) was alleged by the General Counsel or found by the Board (Pet. App. 13a-14a). The court explained that this Court had held in Carpenters Local 60 that a reimbursement order " 'in those circumstances becomes punitive and beyond the power of the Board' " (id. at 13a, quoting 365 U.S. at 655). SUMMARY OF ARGUMENT A. 1. This Court has recognized that Section 10(c) of the National Labor Relations Act, 29 U.S.C. 160(c), charges the Board, not the courts, with the task of devising remedies to effectuate the policies of the Act. The Board's selection of a particular remedy, based on its accumulated experience and expertise, is to be given special respect by reviewing courts. 2. In this case, petitioner and respondent California Dump Truck Operators Association contend that an order requiring reimbursement of fringe benefit contributions and union fees and dues is necessary to redress owner-operators for injuries they allegedly sustained and to prevent similar violations by the Union and Contractors Associations in the future. This argument is mistaken for two reasons. First, Section 10(c) does not establish a general remedial scheme authorizing the Board to award full compensatory damages for all injuries caused by wrongful conduct. The power to order affirmative action under Section 10(c) is incidental to the primary purpose of Congress to stop and prevent unfair labor practices. A reimbursement order therefore vindicates public rights; it is not redress for a private wrong. As a result, the decision whether to order particular affirmative action is entrusted to the Board's discretion, and the Board orders such relief only if it first concludes that the relief will effectuate the policies of the Act. Second, the firmly established principle of judicial deference to the Board's selection of a remedy applies with particular force where, as here, a court is asked to impose a remedy that goes further than that which the Board believed to be necessary and appropriate to effectuate the policies of the Act. Under Section 10(c), the Board must in all cases order the offending party to cease and desist from the unfair labor practice, thereby restraining future violations of the Act. The further power to order affirmative action is intended to enable the Board to remove or avoid the lingering consequences of a past violation, where those consequences are of a kind that might thwart the purposes of the Act. The Board's accumulated experience may show that, for certain types of unfair labor practices, a cease and desist order alone ordinarily will accomplish the Act's objectives and that there will not exist after issuance of the cease and desist order lingering consequences that would thwart the Act's purposes. In addition, evidentiary uncertainties about the circumstances and equities of the parties, the severity of the unfair labor practice, and the extent of the injury sustained also may lead the Board not to order reimbursement or other affirmative action in a particular case. These and other factors that counsel reluctance by the courts to interfere with an agency's determination of the extent to which enforcement powers should be exercised through the ordering of certain relief are similar to those that bar or restrict a court from interfering with the exercise of an agency's discretion to decline to initiate enforcement proceedings in the first instance. Although the Board's decision not to order certain affirmative action is not wholly unreviewable, the person challenging the Board's order on the ground that it did not go far enough must show that the order will be so ineffective in enforcing the Act as to be insufficient as a matter of law. Even then, the appropriate course would be for the court of appeals to remand to the Board for further proceedings, not for the court itself to direct certain relief. B. Petitioner and respondent CDTOA have failed to show that the Board's order that the Union and Contractors Associations cease and desist from giving effect to the provisions of the Master Labor Agreement found to violate Section 8(e) and post appropriate notices is insufficient as a matter of law and that the Board therefore abused its discretion in declining to order reimbursement. 1. The record fails to disclose any substantial injury to owner-operators generally as a result of the MLA provisions. Although many owner-operators in San Diego County were potentially affected by the MLA, the record contains evidence only about petitioner and six others who received referrals through Terra Trucking Company. More than six months before the Union sent the August 10, 1978 letter requesting that Terra cease doing business with these seven owner-operators, petitioner had entered into a subhaul contract with Terra in which he agreed to have deductions made for payments to union benefit plans on his behalf. At least five of the six other owner-operators mentioned in the letter apparently also had agreed to such deductions before the Union sent the letter to Terra. There is no indication in the record that any of the seven had any objection to these contributions or that the Union or Associations took any action to cause them to agree to any deductions. Moreover, in return for these contributions, the owner-operators received the benefit of being covered by the fringe benefit plans. For these reasons, it is not clear that even the seven owner-operators mentioned in the Union's letter suffered any net loss as a result of their fringe benefit contributions. The record also is sparse with respect to the payment of Union initiation fees and dues by owner-operators. Only seven of the 200 to 250 owner-operators with whom Terra dealt were mentioned in the Union's August 10 letter. Many, perhaps most, of the remaining owner-operators who received referrals through Terra or other brokers already may have been members or voluntarily joined the Union. Although the record does show that petitioner and perhaps several other owner-operators working through Terra did join the Union and paid an initiation fee and dues for six months, they received in return the benefits of working under a collective bargaining agreement, including fringe benefit plans, negotiated by the Union. Because the extent of financial loss to owner-operators generally occasioned by the MLA was speculative, the Board reasonably could choose to rely on the force of its cease and desist order and posting requirements to effectuate the policies of the Act, without ordering reimbursement as well. 2. In determining whether to order reimbursement, the Board also reasonably took into account the fact that Congress adopted an alternative remedial scheme to compensate persons injured by a union's secondary activities by authorizing such persons to bring a suit for damages pursuant to Section 303 of the Labor Management Relations Act of 1947, 29 U.S.C. 187. The existence of Section 303 suggests a difference of remedial emphasis between the Board and the courts in the area of secondary activity, with the Board primarily responsible for prospective relief -- by means of seeking a preliminary injunction pursuant to Section 10(l) of the Act and issuing a cease and desist order pursuant to Section 10(c) -- while the courts would redress injuries already sustained. The enactment of Section 10(l) also indicates that Congress anticipated that ordinarily secondary activities would be enjoined before the affected parties incur serious injuries. 3. It also was reasonable for the Board, in the exercise of its discretion, to decline to order reimbursement in the absence of coercive conduct by the Union or Contractors Associations. This position finds significant support in Carpenters Local 60 v. NLRB, 365 U.S. 651 (1961), where this Court held that the Board did not even have the power to order reimbursement of union fees and dues paid to union that had maintained illegal closed shop preferential hiring conditions, in the absence of evidence of coercion of any employee by the unions to join or remain members of the union. The Board's position attaching significance to the absence of threats or coercion by the Union that would violate Section 8(b)(4) also finds support in the 1959 amendments to the Act, when Section 8(e) was added. At that time, Congress amended Section 10(l) to authorize the Board to seek a preliminary injunction where there is reasonable cause to believe that there was a violation of Section 8(e). Congress also amended Section 303 to permit civil suits for injuries sustained as a result of conduct newly covered by Section 8(b)(4), but, significantly, it did not amend Section 303 to permit damage actions for violations of Section 8(e) standing alone. Congress' provision for injunctive relief and withholding of a damage remedy when it enacted Section 8(e) indicates that Congress did not believe that it is necessary, in order to effectuate the policies of the Act, that compensation be available as a matter of course whenever a person sustained some financial loss as a result of the implementation of an agreement found to violate Section 8(e). Indeed, the decisions upon which petitioner and CDTOA principally rely underscore the importance of the element of coercion in the Board's decisions. Here, such coercion is not established by the Union's mere request that Terra abide by the MLA, in the absence of a threat of a strike or other economic pressure that would violate Section 8(b)(4). NLRB v. Servette, Inc., 377 U.S. 46 (1964). ARGUMENT THE BOARD REASONABLY EXERCISED ITS REMEDIAL DISCRETION BY ORDERING THE UNION AND THE CONTRACTORS ASSOCIATIONS TO CEASE AND DESIST FROM GIVING EFFECT TO THE AGREEMENT FOUND TO VIOLATE SECTION 8(e) OF THE ACT, BUT DECLINING TO ORDER THE UNION AND ASSOCIATIONS TO REIMBURSE OWNER-OPERATORS FOR THEIR BENEFIT CONTRIBUTIONS AND UNION FEES AND DUES The issue in this case is not whether the National Labor Relations Board has the power to order the type of relief petitioner and respondent California Dump Truck Operators Association seek to have this Court direct. The Board did not disclaim the power to order the reimbursement of fringe benefit contributions or union fees and dues in all cases involving a violation of Section 8(e) of the National Labor Relations Act on the ground that the Act forecloses such an order. That question therefore is not presented here, and we may assume for present purposes that the Board does have such power in appropriate circumstances. This case presents the quite different question of whether the Act compelled the Board to exercise that power here, notwithstanding the Board's considered judgment that a reimbursement order was neither necessary nor appropriate to implement the statutory scheme in the context of this case. A. The Board Has Broad Discretion In Determining What Remedy Is Appropriate And Sufficient To Effectuate The Policies Of The Act 1. This Court Repeatedly Has Stressed That The Board Has Broad Discretion To Fashion An Appropriate Remedy For An Unfair Labor Practice Section 10(c) of the National Labor Relations Act, 29 U.S.C. 160(c), empowers the Board, when it finds that a person has committed an unfair labor practice, to issue an order requiring that person to "cease and desist from such unfair labor practice" and to take such affirmative action "as will effectuate the policies of the (Act)." The authority conferred by this Section necessarily is stated in general terms. As this Court has recognized, "in the nature of things Congress could not catalogue all the devices and strategems for circumventing the policies of the Act. Nor could it define the whole gamut of remedies to effectuate these policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adaptation of means to end to the empiric process of administration." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). Section 10(c) therefore "charges the Board with the task of devising remedies to effectuate the policies of the Act." NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 (1953). That power "is a broad discretionary one, subject to limited judicial review" (Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216 (1964)), for in fashioning an appropriate remedy in a particular case, "the Board draws on a fund of knowledge and expertise all its own." NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n.32 (1969). "(I)ts choice of remedy must therefore be given special respect by reviewing courts." Ibid. Compare Consolo v. FMC, 383 U.S. 607, 620-621 (1966); SEC v. Chenery Corp., 332 U.S. 194, 207-209 (1947). Congress' vesting of this broad discretion in the Board enables it to balance the sometimes conflicting policy interests reflected in the statutory scheme and the circumstances of the case. NLRB v. Food Store Employees Local 347, 417 U.S. 1, 8-9 (1974); Golden State Bottling Co. v. NLRB, 414 U.S. 168, 187 (1973); NLRB v. Seven-Up Bottling Co., supra, 344 U.S. at 346-349. This discretion also enables the Board to accommodate competing equities and prevent windfalls (Golden State Bottling Co. v. NLRB, supra, 414 U.S. at 184-185; NLRB v. J. H. Rutter-Rex Manufacturing Co., 396 U.S. 258, 264-265 (1969); Phelps Dodge Corp., v. NLRB, supra, 313 U.S. at 195, 198; Carpenters Local 60 v. NLRB, 365 U.S. 651, 655 (1961)), and to tailor its remedies to "unfair labor practices of varying intensity." NLRB v. Gissel Packing Co., supra, 395 U.S. at 612 n.32; cf. Carpenters Local 60 v. NLRB, supra, 365 U.S. at 655. For these reasons, "the relation of remedy to policy is peculiarly a matter of administrative competence" (Phelps Dodge Corp. v. NLRB, supra, 313 U.S. at 194), and this Court accordingly has admonished that courts "must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy" (ibid.). To this end, the Court repeatedly has stressed that on petitions for review or enforcement, the Board's selection of a particular remedy to fit the circumstances of the case "should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540 (1943); see also Fibreboard Paper Products Corp. v. NLRB, supra, 379 U.S. at 216; NLRB v. Seven-Up Bottling Co., supra, 344 U.S. at 346-347. 2. Judicial Deference To The Board's Discretion Is Particularly Required Where The Board Has Declined To Order Certain Affirmative Action On The Ground That It Is Not Necessary Or Appropriate To Effectuate The Policies Of The Act In the instant case, petitioner and respondent CDTOA do not stand in the position of the typical litigant who challenges a remedial order of the Board in this Court or a court of appeals. Ordinarily such a litigant is the party against whom the order runs, and he contends that the order goes too far because it is inequitable or beyond the power of the Board to direct. In those circumstances, the aid of the court is sought to restrain the Board's exercise of its power by preventing the Board from taking action that will have impermissibility injurious consequences for the party challenging the order. This case is different. Petitioner and CDTOA are not the parties against whom the Board's order runs. They therefore do not contend that the Board has ordered relief that itself will cause them legal injury or request this Court to restrain the Board in the exercise of its remedial powers. To the contrary, they argue that the Board's order directing the Union and the Contractors Associations to cease and desist from giving effect to the provisions of the MLA found to violate Section 8(e) and to take affirmative action by posting appropriate notices on their premises did not go far enough. In their view, a reimbursement order is required to redress owner-operators for injuries they allegedly sustained at the hands of private parties, the Union and the Associations, and to prevent similar violations in the future. Thus, notwithstanding this Court's repeated recognition of the board discretion vested in the Board under Section 10(c), petitioner and CDTOA argue, in substance, that upon finding a violation of Section 8(e), and even in the absence of a finding of threats and coercion by the Union in violation of Section 8(b)(4)(ii)(A), a refund of benefit contributions and union fees and dues paid by owner-operators in accordance with the MLA must follow as a matter of course, irrespective of any other factors that might bear upon the appropriateness of such relief in this case. They therefore seek to have the courts exercise power to order affirmative action that the Board declined to order in the first instance, and, as a necessary consequence of a ruling in their favor, effectively to compel the Board to grant remedies in the future that it heretofore has withheld in the exercise of its enforcement discretion. The position of petitioner and CDTOA is seriously flawed for several reasons. First, it rests on a misconception of the nature and purposes of the Board's remedial power. Congress did not establish in Section 10(c) "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, 643 (1958). The power to order affirmative relief under that Section is merely incidental to the primary purpose of Congress to stop and prevent unfair labor practices. Id. at 642-643. Thus, as this Court has made clear, a reimbursement order issued by the Board "is not a redress of a private wrong." Virginia Electric & Power Co. v. NLRB, supra, 319 U.S. at 543. Such orders "somewhat resemble compensation for private injury, but it must be constantly remembered that (they) are remedies created by statute * * * which are designed to aid in achieving the elimination of industrial conflict. They vindicate public, not private, rights." Ibid. This view of the statutory scheme is reflected as well in this Court's recognition that the General Counsel of the Board has unreviewable discretion whether to file an unfair labor practice complaint (Vaca v. Sipes, 386 U.S. 171, 182 (1967)), even though the consequence of the General Counsel's decision not to file a complaint in a particular case may be to deny a remedy to the charging party or other victim of the assertedly illegal conduct. Consistent with these principles, this Court has held that even the remedy of back pay, the only "affirmative action" to which Section 10(c) expressly refers, "is entrusted to the Board's discretion; it is not mechanically compelled by the Act." Phelps Dodge Corp. v. NLRB, supra, 313 U.S. at 198. To make an award, "the Board must first be convinced that the award would 'effectuate the policies' of the Act." Automobile Workers v. Russell, supra, 356 U.S. at 642-643. Thus, petitioner and CDTOA plainly err in contending that a particular form of affirmative action must be ordered as a matter of course upon the finding of an unfair labor practice. Instead, as we have explained above (see pages 17-18, supra), the shape of the Board's remedy properly may depend upon an entire range of factors in the case. Second, the argument advanced by petitioner and CDTOA ignores that the reasons for deferring to the Board's judgment in "the relation of remedy to policy" /12/ apply with particular force where, as here, a party requests a court to impose additional affirmative relief that the Board, in the exercise of its discretion, has withheld. There are a number of significant considerations that may counsel caution by the Board before embarking upon a more far-reaching remedial course in its enforcement of the Act, and a court should not lightly require the Board to dispense with that caution. It must be recalled that Section 10(c) in all events provides for the Board to order offending parties to cease and desist from the unfair labor practice, thereby restraining future violations. In many cases, and depending upon the nature of the unfair labor practice, the Board's experience may show that the cease and desist order alone will be effective in accomplishing the Act's objectives. In addition, the Board's exercise of its discretion to order affirmative action over and beyond a cease and desist order must be guided by the principle that such an order is not to be punitive in nature. Rather, such action is intended to be an aid in the Board's mission to restrain violations -- a " 'means of removing or avoiding the consequences of violation where those consequences are of a kind to thwart the purposes of the Act.' " Carpenters Local 60 v. NLRB, 365 U.S. at 655, quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 236 (1938); see also Republic Steel Corp. v. NLRB, 311 U.S. 7, 11-12 (1940). Thus, where it does not sufficiently appear to the Board, either in the circumstances of the particular case or by virtue of its accumulated experience in like cases, that there will exist after issuance of a cease and desist order such lingering consequences as may prevent the accomplishment of the purposes of the Act, the Board may, on balance, conclude it is wiser to decline to order further relief. Cf. Carpenters Local 60 v. NLRB, supra, 365 U.S. at 655. This Court has recognized as much, observing as we have noted, that before offering affirmative relief, "the Board must first be convinced that the award would 'effectuate the policies' of the Act." Automobile Workers v. Russell, supra, 356 U.S. at 642-643. Where there is reason to doubt that an order requiring certain affirmative action would contribute to accomplishing that end, the potential for a punitive impact must give the Board pause as well. Moreover, the Board may be unable confidently to ascertain that further relief is needed or the precise contours it should have if ordered because of evidentiary uncertainties concerning the circumstances and equities of the parties, the severity of the unfair labor practice, and the extent to which injury actually has been sustained by those who were potentially affected. For the foregoing reasons, reviewing courts must be particularly reluctant to compel the Board to go beyond the remedy it found sufficient, in the face of the Board's express concern that the policies of the Act would not be significantly served by doing so. The reasons counseling reluctance by the courts to intrude upon an agency's determination regarding the extent to which its enforcement powers should be exercised in a particular case are similar to those which bar or restrict the courts in interfering with the decision of the agency to decline to initiate enforcement proceedings in the first instance. See Vaca v. Sipes, supra, 386 U.S. at 182; Dunlop v. Bachowski, 421 U.S. 560, 568-575 (1975); Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980); cf. Moog Industries, Inc. v. FTC, 355 U.S. 411, 413 (1958). /13/ We do not suggest, of course, that the Board's withholding of an order directing a certain form of affirmative action in a particular case is wholly beyond the power of the courts to review. This Court stated in NLRB v. Food Store Employees Local 347, supra, that there may be situations "when a reviewing court concludes that an agency invested with broad discretion to fashion remedies has apparently abused that discretion by omitting a remedy justified in the court's view by the factual circumstances" (417 U.S. at 10). Such situations must be rare, however, and indeed petitioner and CDTOA have cited no decision of this Court, and we are aware of none, holding that the Board was required to direct additional affirmative action that the Board had concluded was not necessary or appropriate to effectuate the policies of the Act in the circumstances of the particular case. Moreover, in Food Store Employees, the Court made clear that where it appears that the Board may have abused its discretion in omitting a particular remedy, "remand to the agency for reconsideration, and not enlargement of the agency order, is ordinarily the reviewing court's proper course." Remand is necessary, the Court stressed, in order to "respect() the congressional scheme investing the Board and not the courts with broad powers to fashion remedies that will effectuate national labor policy" (ibid.). The Court's approach therefore reinforces the conclusion that courts must be especially reluctant to compel the Board to go further in enforcing the Act than the Board believed was warranted. See also Liquor Salesmen's Union Local 2 v. NLRB, 664 F.2d 1200, 1208 (D.C. Cir. 1981). Furthermore, in Food Store Employees itself, the only decision of this Court we have found that even addresses the situation in which it is contended that the Board's order should have gone further, the Court's focus was not on whether the particular relief sought -- a reimbursement of litigation and organizing expenses -- was compelled by the policies of the Act standing alone (see 417 U.S. at 7 n.8); the Court was concerned instead with the contention that there were "facial inconsistencies" between the decision of the Board under review and a prior Board decision in which such relief had been ordered (417 U.S. at 9). A remand was ordered to permit the Board an opportunity to clarify the apparent inconsistency "since a plausible reconciliation by the Board of the seeming inconsistency was reasonably possible" (ibid.). The remand therefore served to ensure that the Board did not exercise its discretion in an arbitrary or capricious manner by granting relief in one case but denying it in another that was, from the Board's perspective, in all material respects indistinguishable. Cf. Dunlop v. Bachowski, supra, 421 U.S. at 572-573. The type of limited judicial review exercised in Food Store Employees is something quite different from a court's substituting its judgment for the Board's determination that a particular form of affirmative action is neither necessary nor appropriate to effectuate the policies of the Act in the particular case, as petitioner and CDTOA urge here (Pet. Br. 14-28; CDTOA Br. 15-30). /14/ See, e.g., Amalgamated Local 355 v. NLRB, 481 F.2d 996, 1007 (2d Cir. 1973); United Steelworkers v. NLRB, 646 F.2d 616, 631 n.33 (D.C. Cir. 1981); cf. NLRB v. Martin A. Gleason, Inc., 534 F.2d 466, 482 (2d Cir. 1976). In such a case, as the court of appeals correctly held, the party challenging the Board's action must show that " 'the remedies prescribed by the Board are clearly inadequate in the light of the findings of the Board' " (Pet. App. 12a, quoting Electrical Workers Local 806 v. NLRB, 434 F.2d 473, 478 (D.C. Cir. 1970)), or, put another way, that those remedies " 'will be so ineffective to enforce the policies of the Act as to be insufficient as a matter of law.' " United Steelworkers Local 5571 v. NLRB, 401 F.2d 434, 438 (D.C. Cir. 1968), cert. denied, 395 U.S. 946 (1969), quoting Amalgamated Clothing Workers v. NLRB, 371 F.2d 740, 746 (D.C. Cir. 1966). /15/ As we explain below, petitioner and CDTOA have wholly failed to make such a showing here. B. The Board Did Not Abuse Its Discretion In This Case By Declining To Order A Reimbursement Of Fringe Benefits Contributions And Union Fees and Dues To Owner-Operators Who Joined The Union Upon finding that the Union and the Contractors Associations violated Section 8(e) of the Act, the Board ordered the Union and Contractors Associations to cease and desist from "maintaining, giving effect to, or enforcing" the provisions of the MLA found to violate Section 8(e) and ordered affirmative action in the form of the posting of appropriate notices on the premises of the Union, the Contractors Associations, the members of the Associations, and (if willing) Terra, the broker through whom petitioner obtained referrals (Pet. App. 18a-19a). The Board declined to order a reimbursement of fringe benefit contributions and union fees and dues paid by owner-operators as required by the MLA, because there was insufficient evidence in the record with respect to alleged losses directly attributable to coercion by the Union and Associations and because the Board finds a reimbursement order typically to be overbroad and inappropriate in the context of Section 8(e) violations. The Board noted as well that independent contractors, such as petitioner and the members of CDTOA, who are injured by the secondary activities of a union may pursue a damage claim in court pursuant to Section 303 of the Labor Management Relations Act, 29 U.S.C. 187 (Pet. App. 17a n.2). The Board's decision in these circumstances that its cease and desist order and requirement for the posting of notices were sufficient to effectuate the policies of the Act and that it was not necessary or appropriate to go further was well within the Board's discretion. 1. The Record Does Not Establish That Owner-Operators Suffered Substantial Injury As A Result Of The Provisions Of The Master Labor Agreement Found To Violate Section 8(e) a. As an initial matter, it is important to keep in perspective the limited nature and extent of the consequences that actually were shown to have resulted from the provisions of the MLA at issue here. Although a number of owner-operators apparently made contributions to various health, welfare, and other benefit plans established by the MLA, those owner-operators presumably received in return the protection afforded by being covered by such plans. In addition, the Terra Trucking Company apparently in general charged a higher rate on union jobs to compensate for the added cost of the fringe benefit payments (A. 79-80). It therefore is by no means clear to what extent petitioner and other owner-operators incurred a net loss by virtue of their fringe benefits contributions. Moreover, petitioner agreed in his subhaul contract with Terra that deductions would be made from his income for "payroll benefits as required by the Union Agreement applicable during the life of (the subhaul) agreement" (A. 22). Petitioner entered into the subhaul contract on February 3, 1978 (id. at 19), well before the Union sent Terra the August 10, 1978 letter advising it that petitioner and six other dump truck operators were not members of the Union (id. at 27) -- the letter that led to petitioner's joining the Union. There is no indication that petitioner either harbored or voiced any objection to signing the subhaul agreement in February 1978 and consenting thereby to the deductions for contributions to the Union benefit plans. Nor is there any indication that the Union or the Associations engaged in any affirmative conduct to cause him to sign the subhaul agreement. Terra also made contributions to the Union plans on behalf of at least five of the remaining six owner-operators mentioned in the Union's August 10 letter well before that letter was received (A. 26-27). These payments presumably also were made pursuant to the provisions of subhaul agreements such as that entered into by petitioner (see id. at 53, 55). And again, the record does not suggest that these owner-operators -- the only other ones about whom there is evidence in the record -- objected to these deductions. Thus, it was not shown in this case that the contributions by petitioner and from other owner-operators to the benefit plans resulted from any actions whatever by the Union or Contractors Association to seek compliance with or to "enforce" the MLA, much less from threats or coercion by either to accomplish that end. b. The record also is sparse with respect to the payment of Union initiation fees and dues by owner-operators. The record contains evidence about only two brokers, Terra and the Kissinger Trucking Company. There was no showing that any owner-operator joined the Union as a result of the decision by Kissinger to sign the MLA in February 1978. In addition, the record indicates that although Terrs alone operated as a broker for between 200 and 250 owner-operators and dealt regularly with 25 or 30 of these (Pet. App. 27a; A. 53), the letter sent by the Union or Terra on August 10 identified only seven of the owner-operators with whom Terra dealt as not being members in good standing of the Union. The reasonable inference is that most if not all of the others already were members of the Union. /16/ These other owner-operators might have been members of the Union even before they began to receive referrals through Terra or subsequently joined the Union voluntarily in order to receive the benefits of representation or because they supported the Union's goals. Compare Carpenters Local 60 v. NLRB, supra, 365 U.S. at 654-655. Moreover, of the seven persons mentioned in the Union's August 10 letter to Terra, it appears that not all even subsequently joined the Union (Pet. App. 28a; A. 56-58), and, with one exception, the record does not disclose which ones did, the circumstances of their decision, or the extent of their payments. Thus, of all the independent owner-operators of dump trucks in San Diego County who were potentially affected by the MLA, the direct evidence regarding the payment of initiation fees and dues to the Union reduces to that pertaining to only one owner-operator; petitioner Shepard. After Terra received the August 10 letter from the Union, and ReCupido discussed the letter with the non-Union owner-operators, petitioner joined the Union and paid an initiation fee in September 1978 and apparently paid union dues periodically thereafter until April 1979 (id. at 89), shortly after the Section 10(l) injunction was issued. Although petitioner therefore did contribute to the Union to this extent, it is necessary to recall, as the court of appeals observed, that "union members receive benefits as well as assume burdens" (Pet. App. 13a). In this case, petitioner worked under a collective bargaining agreement negotiated by the Union that established fringe benefit plans for all within its scope, including petitioner. And indeed petitioner agreed that Terra would make deductions from his income for contributions to those plans and thereby presumably benefited by whatever protection they afforded beginning in February 1978, more than seven months before he paid his initiation fee and began paying dues to support the Union that negotiated the collective bargaining bargaining agreement establishing the plans. c. In sum, the extent of the financial loss to owner-operators generally that was occasioned by the provisions of the MLA found to violate Section 8(e) is speculative. The evidence actually shows only that a handful of owner-operators joined the Union because of the existence of the MLA or actions of the Union (compare Amalgamated Local 355 v. NLRB, 481 F.2d 996, 1007 (2d Cir. 1973)), and it indicates that petitioner and perhaps the other six owner-operators about whom there is evidence in the record consented to have deductions made for Union benefit plans. Because even these owner-operators may have received benefits as well as assumed burdens as a result of the MLA provisions at issue here, this case may be viewed as presenting an instance of "ambiguous injury" that does not warrant imposition of a reimbursement order, even if the Board were to focus on financial loss alone. See Seafarers International Local 777 v. NLRB, 603 F.2d 862, 890 (D.C. Cir. 1978)). The Board therefore reasonably could conclude that it was appropriate in this case only to order the Union and the Associations to cease and desist from giving effect to the MLA provisions in the future and to post appropriate notices, because a reimbursement order would be "overbroad" (Pet. App. 17a n.2) to the extent that it would result in a windfall for certain owner-operators and perhaps have a punitive impact on the Union. /17/ In addition, the question of what " 'consequences of violation' " /18/ are of a kind that might impede the accomplishment of the Act's purposes is a matter committed to the expert judgment of the Board, based on its accumulated experience. It follows that whether affirmative action should be required to dissipate lingering effects of a violation to make the Board's cease and desist order effective in preventing unfair labor practices in the future, therefore likewise must be committed to the broad discretion of the Board. In this case, in view of the absence of proof that the provisions of the MLA at issue had a substantial adverse impact on owner-operators generally, the Board reasonably could conclude that it was not sufficiently shown that there would be the type or degree of consequences of an unfair labor practice that might render the Board's cease and desist order and posting of notices insufficient to effectuate the policies of the Act. In these circumstances, the Board properly could decline to issue a reimbursement order, and choose instead to rely on the binding effect of a cease and desist order to prevent unfair labor practices in the future, enforced if necessary through contempt proceedings. See Pet. App. 14a; Amalgamated Local 355 v. NLRB, supra, 481 F.2d at 1007. At the very least, it cannot be said that the cease and desist order and posting of notices "will be so ineffective to enforce the policies of the Act as to be insufficient as a matter of law." United Steelworkers Local 5571 v. NLRB, supra, 401 F.2d at 438. CDTOA contends (Br. 11-12, 20-23), however, that the Board should have ordered reimbursement of benefit contributions and initiation fees because such an order would furnish a disincentive for the Union and Associations to enter into a similar agreement in violation of Section 8(e) in the future, especially in view of the Union's efforts in the past to have the owner-operators join the Union. It may well be that, in a situation involving repeated violations of Section 8(e), the Board could conclude that imposition of a reimbursement order would be appropriate as a means of effectuating the purposes of the Act, because it might curtail what experience would have shown to be an incentive for the Union and Associations to continue to enter into successive agreements that violate Section 8(e). That is something quite different, however, from saying that reimbursement is required in every case of a Section 8(e) violation, as CDTOA apparently urges -- a result that would strip the Board of its traditional discretion to determine how best to fashion a remedy for a violation by a party who has committed similar violations in the past. See, e.g., United Steelworkers v. NLRB, 646 F.2d 616, 631 n.33 (D.C. Cir. 1981); Amalgamated Local 355 v. NLRB, supra, 481 F.2d at 1007. Here, it plainly was not an abuse of discretion for the Board to decline to order such relief. The Union's efforts to have owner-operators join the Union occurred largely during a period when the Board, upheld by the District of Columbia Circuit, had concluded that the owner-operators were employees, not independent contractors, for purposes of the Act and therefore were an appropriate subject of the Union's organizing efforts. The District of Columbia Circuit did not finally reverse its position and reject the Union's argument on that issue until its decision in this very case (Pet. App. 8a-11a). If the Union and Associations persist in seeking to require owner-operators to join the Union by adopting contract provisions in violation of Section 8(e), now that this threshold issue has been finally resolved against the Union, the Board will have ample opportunity to consider whether affirmative action beyond a cease and desist order and a requirement for the posting of notices is appropriate. 2. The Board Property Could Take Into Account The Provision For A Damages Remedy Under Section 303 Of The Act The Board, in declining to order reimbursement, also observed (Pet. App. 17a n.2) that persons who claim to have been injured by the secondary activities of a union may bring a suit for damages pursuant to Section 303 of the Labor Management Relations Act. Section 303 provides that any person who has been injured in his business or property by reason of conduct by a union in violation of Section 8(b)(4) of the Act may sue in United States District Court or in state court "and shall recover the damages by him sustained and the cost of the suit". 29 U.S.C. 187(b). See, e.g., Summit Valley Industries, Inc. v. Carpenters Local 112, No. 81-497 (June 1, 1982). The existence of this alternative means to recover compensation as of right for injuries caused by secondary activities may counsel some hesitation on the Board's part in undertaking to order the payment of compensation to accomplish the same end. As we have noted, in Section 10(c), unlike in Section 303, 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, supra, 356 U.S. at 643. /19/ Section 303 was enacted by the Labor Management Relations Act of 1947, ch. 120, 61 Stat. 158, by which Congress also amended the Act to include for the first time prohibitions against secondary boycott activities by unions. /20/ The Labor Management Relations Act of 1947 also added Section 10(l) of the Act, 29 U.S.C. 160(l), which directs the General Counsel to seek a preliminary injunction against secondary activity if he has reasonable cause to believe that a charge of a violation of Section 8(b)(4) of the Act is true. Section 10(l) was amended in 1959 to provide for a preliminary injunction to prevent other secondary boycott activities by unions made unlawful by Section 8(b)(4) in 1959, as well as to enjoin the maintaining or enforcement of an agreement between a union and employer if there is reasonable cause to believe that it violates Section 8(e) of the Act. Thus, the Act was structures in 1947 so that secondary boycott activity -- including, now, the maintaining and enforcement of an agreement in violation of Section 8(e) -- ordinarily will be enjoined before the affected parties have incurred serious damage. /21/ Indeed, a Section 10(l) injunction was entered in this very case (see page 5, supra), and petitioner ceased paying union dues after it was entered (A. 79). /22/ Section 303 is the other aspect of the remedial scheme enacted by Congress to address the specific problem of secondary activity by Unions. In explaining the need for the addition of Section 303 to the pending bill in 1947, Senator Taft noted that, without such a provision, "there is a kind of injunctive remedy through the National Labor Relations Board, but there is no possibility of a suit for damages." 93 Cong. Rec. 5060. The amendment was necessary "to restore the people, who lose something, because of boycotts and jurisdictional strikes, the money which they have lost." Ibid. Senator Taft added that, while consideration had been given to lodging the power to award monetary damages in such situations with the Board, "it is not felt * * * that the Labor Board is an effective tribunal for the purpose of trying to assess damages in such a case. I do not think anyone felt that that particular function should be in the Board. So, if such a remedy is to be provided at all, if there is to be any recourse for financial losses caused by unions, it must be by direct suit, as proposed by the amendment." Ibid. Shortly after enactment of the 1947 amendments, the Board, in In re National Maritime Union, 78 N.L.R.B. 971 (1948), enforced, 175 F.2d 689 (2d Cir. 1949), cert. denied, 338 U.S. 954 (1950), declined to assess money damages against a union for losses suffered by employers as a result of a strike violative of Section 8(b)(2) of the Act, 29 U.S.C. 158(b)(2). The Board, relying on the legislative history of Section 303, explaned (78 N.L.R.B. at 989; footnote omitted): (T)o (award damages) would involve our assuming a power which is appropriately a function of the courts, rather than of administrative tribunals. We would take such a step only if we believed that it was clearly the intention of the Congress that we do so. We find no such mandate in the amended Act; to the contrary we find, in the structure of the Act, and in its legislative history, a clear prohibition against our granting the (requested) remedy. The text and legislative history of Sections 10(l) and 303 of the Act therefore reinforce the conclusion that the Board is not required as a matter of course to award compensation to persons injured as a result of secondary activity by a union, irrespective of the entire matrix of considerations that may bear upon the Board's determination whether particular affirmative action would be necessary or appropriate to effectuate the policies of the Act in the particular case. Rather, Sections 10 and 303 suggest a certain division of responsibility in the area of secondary activity, with the Board being responsible for prospective relief -- by means of seeking a preliminary injunction pursuant to Section 10(l) and ordering permanent relief pursuant to Section 10(c) in the form of a cease and desist order at the conclusion of the unfair labor practice proceedings -- while the courts would entertain suits under Section 303 brought by those seeking compensation for injuries sustained. /23/ For these reasons, the existence of Section 303 properly may inform the Board's judgment whether the exercise of its discretion under Section 10(c) to order a particular form of affirmative action is required to accomplish the objectives of the Act in the circumstances of the case. In other words, in determining what action is necessary to effectuate the congressional purpose, it is appropriate for the Board to consider not only the substantive policies embodied in the Act, but also the policies reflected in the remedial scheme by which Congress has sought to accomplish its substantive ends. /24/ 3. It Is Reasonable For The Board To Decline To Order Reimbursement In The Absence Of Coercion a. It also was entirely reasonable for the Board to decline to order the reimbursement of fringe benefit contributions and fees and dues on the ground that there was insufficient evidence in the record of losses attributable to coercion by the Union and Associations. This Court has recognized that the Board properly may tailor its remedies to "unfair labor practices of varying intensity." NLRB v. Gissel Packing Co., supra, 395 U.S. at 612 n.32; see, e.g., Carpenters Local 60 v. NLRB, supra, 365 U.S. at 654. Indeed, that the Board at the very least did not abuse its discretion in deeming the absence of threats or coercion by the Union and Associations a relevant factor follows from this Court's decision in Carpenters Local 60 v. NLRB, supra. In Carpenters Local 60, the Board held that the unions had violated Sections 8(b)(1)(A) and (2) of the Act by maintaining and enforcing an agreement that established closed shop preferential hiring conditions and by causing the company to refuse to hire two applicants because they had not been referred by the local. The Board ordered a reimbursement of dues, fees, and assessments collected under the illegal contract. This Court reversed the reimbursement order on the ground that there was no evidence of coercion of any employee by the unions to join the union ranks or remain as members. 365 U.S. at 654. Where the membership in the union was not shown to have been influenced or compelled by the union's unfair labor practice, the Court held, no "consequences of violation" are removed by the order compelling the union to return all dues and fees collected from the members, and a reimbursement order becomes punitive and beyond even the power of the Board to issue. Id. at 655; see also Teamsters Local 357 v. NLRB, 365 U.S. 667, 669-672 (1961). Although there are distinctions between Carpenters Local 60 and the instant case in the nature of the unfair labor practice involved, surely that case fully supports the conclusion that the Board did not abuse its broad discretion in likewise relying on the absence of threats or coercion as a relevant factor here. b. The reasonableness of the Board's regarding the absence of union coercion of the kind that would violate Section 8(b)(4) of the Act as a relevant factor in fashioning an appropriate remedy is further underscored by Congress' amendments to the secondary boycott provisions of the Act in the Landrum-Griffin Act of 1959. Those amendments including Section 8(e), were enacted to close certain loopholes that had been identified in the operation of the prior Section 8(b)(4)(A), 29 U.S.C. (1958 ed.) 158(b)(4)(A). See NLRB v. Servette, Inc., supra, 377 U.S. at 51-54; Woelke & Romero Framing, Inc. v. NLRB, No. 80-1798 (May 24, 1982), slip op. 9; Kaiser Steel Corp. v. Mullins, No. 80-1345 (Jan. 13, 1982), slip op. 11-12; Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616, 628 (1975); National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 634-635 (1967). In Carpenters Local 1976 v. NLRB, 357 U.S. 93 (1958) (Sand Door), the Court held that it was not a defense to an unfair labor practice charge under the old Section 8(b)(4)(A) (now Section 8(b)(4)(B)) that the struck employer had agreed in a contract with the union not to handle non-union material -- i.e., that a union could not engage in a strike or other concerted activity to enforce a "hot cargo" agreement requiring the employer to boycott goods or services of another party with whom the union had a dispute. However, the Court emphasized that mere execution of the contract or its voluntary observance by an employer was lawful. 357 U.S. at 108. The Sand Door decision was believed by Congress "to create a situation in which * * * (hot cargo) clauses might be employed to exert subtle pressures upon employers to engage in 'voluntary' boycotts." National Woodwork Manufacturers Association v. NLRB, supra, 386 U.S. at 634. The theory of Section 8(e) is that "(t)he only way of dealing with such pressures is to nip them in the bud by prohibiting the agreements." Cox, The Landrum-Griffin Amendments to the National Labor Relations Act, 44 Minn. L. Rev. 257, 272 (1959). Section 8(e) accomplishes this by making it an unlawful labor practice for a union and employer even to enter into an agreement whereby the employer refrains from dealing in the products of another employer or ceases doing business with any other person, and declaring all such agreements "unenforcible and void." /25/ When it amended the Act in 1959, Congress also provided in Section 8(b)(4)(A) that it is an unfair labor practice to engage in concerted or coercive activities for the purpose of causing an employer to enter into an agreement prohibited by Section 8(e). In addition, Congress expanded the coverage of Section 10(l) to provide for mandatory injunctions in cases of violations of Section 8(e) and the amended Section 8(b)(4). Finally, Congress also amended Section 303 to permit a damage action to be brought for injuries sustained as the result of any conduct barred by Section 8(b)(4) -- as expanded to cover activities designed to force an employer to sign an agreement barred by Section 8(e). But significantly, as petitioner concedes (Br. 28-39), Congress did not amend Section 303 to permit a person injured in his business or property merely as a result of a violation of Section 8(e) to sue for damages, and such suits are therefore not authorized under the Act, even though the agreement unlawful under Section 8(e) may have been "enforced" in the sense that the signatory employer ceased doing business with another person in accordance with its terms, thereby causing that person to suffer some financial loss. See Connell Construction Co. v. Plumbers Local 100, supra, 421 U.S. at 634-635 n.16; id. at 649-650 n.9 (Stewart, J., dissenting). /26/ Only where the union coerces the employer into enforcing the agreement would a cause of action for damages lie under Section 303(b), for such coercion would violate Section 8(b)(4) (see Woelke & Romero Framing, Inc. v. NLRB, supra, slip op. 20) and therefore Section 303(a). Congress' failure to provide a damage remedy against a union under Section 303 for Section 8(e) violations standing alone therefore reinforces the reasonableness of the Board's decision in this case not to order monetary payments for a violations of Section 8(e) standing alone, unaccompanied by coercive activity of the kind that would violate Section 8(b)(4). /27/ Congress evidently believed that the secondary activities addressed by Sections 8(b)(4) and 8(e) were "unfair labor practices of varying intensity" (NLRB v. Gissel Packing Co., supra, 395 U.S. at 612 n.32) and concluded that, in order to effectuate the policies of the Act, it was not essential that a monetary remedy be made available as a matter of course for all injuries that might be traced to implementation of an agreement found to violate Section 8(e). Congress concluded, in other words, that declaring such an agreement "unforcible and void" in judicial proceedings (Kaiser Steel Corp. v. Mullins, supra) and authorizing the Board to seek an injunction under Section 10(l) and order the union and employer to cease and desist from giving effect to the agreement in the future under Section 10(c) ordinarily would be sufficient to accomplish the objectives of the Act. The Board's action declining to award monetary relief on the facts of this case therefore finds powerful support in the statutory scheme. Although the Board's position means that a third party, like petitioner, who makes payments under an agreement unlawful under Section 8(e) in order to obtain a contract might not be reimbursed for those payments unless it can show that they were coerced by union conduct violative of Section 8(b)(4), that party is in no worse position than one who refuses to make the payments and thereby loses a contract. If Congress could conclude, as it plainly did, that the latter cannot recover damages for the lost contract in a suit under Section 303 because there was no coercion in violation of Section 8(b)(4), certainly it was open to the Board, in the exercise of its broad remedial authority under Section 10(c), to decide not to award restitution in similar circumstances. Moreover, the Board did enter a cease and desist order that precludes the Union and the Contractors Associations from continuing to enforce the unlawful portion of their agreement, and, as the court of appeals properly noted, they "will be subject to contempt proceedings for any future violations" (Pet. App. 14a). c. The decisions upon which petitioner and CDTOA principally rely (Pet. Br. 24-26; CDTOA Br. 39-46) in fact underscore the importance of the element of coercion in the Board's decisions. In Teamsters Local 814 (Santini Brothers, Inc.), 208 N.L.R.B. 184, 201 (1974), enforced, 546 F.2d 989 (D.C. Cir. 1976), cert. denied, 434 U.S. 818 (1977), the Board adopted the Administrative Law Judge's recommendation that independent contractor owner-operators be made whole for dues and initiation fee payments exacted by a union by conduct in violation of Section 8(b)(4)(A) and (B) to enforce an agreement violative of Section 8(e). Similarly, in Sheet Metal Workers Local 233, 196 N.L.R.B. 55, 57 (1972), remanded, 498 F.2d 687 (D.C. Cir.), modified, 214 N.L.R.B. 786 (1974), the Board ordered reimbursement to the employer of payments and penalties exacted by the union in violation of Section 8(b)(4)(B). See also Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352, 1357 (9th Cir. 1970) ("(r)eimbrusement is not ordered unless coercion is established either directly or by interence."). /28/ Surely, the Board, "in performing its appointed function of balancing conflicting interests," could "reasonably decide" that the absence in this case of comparable proof of coercion to enforce an agreement violative of Section 8(e) or to compel a self-employed person to join the Union sufficiently distinguished it from prior decisions. Cf. NLRB v. Food Store Employees Local 347, supra, 417 U.S. at 9. Petitioner contends (Br. 21 n.13) that coercion is established because of the August 10 letter sent by the Union to Terra. However, a mere request by the Union that Terra enforce the agreement, unaccompanied by a threat of a strike or other economic pressure, does not constitute a threat or coercion that Congress has prescribed by Section 8(b)(4) of the Act. NLRB v. Servette, 377 U.S. 46 (1964); Teamsters Local 20 v. Morton, 377 U.S. 252, 259 (1964). /29/ There is, moreover, no indication of any actions by the Contractors Associations -- the other respondents before the Board -- or any of their members in connection with the August 10 letter. Terra did require petitioner to join the Union as a condition to his receipt of referrals through it in the future. However, although the Act proscribes union coercion of employers or other business entities, it does not prohibit one employer from coercing another employer or self-employed person. Cf. Plumbers Local 447 (Malbaff Landscape Construction), 172 N.L.R.B. 128, 129 (1968). /30/ To order reimbursement of losses resulting solely from coercion of an independent business operator by an employer would redress a wrong that the Act does not reach. /31/ CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. REX E. LEE Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General WILLIAM A. LUBBERS General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel DAVID S. FISHBACK Attorney National Labor Relations Board SEPTEMBER 1982 /1/ So in original. Probably should read "of". /2/ Associated General Contractors of America, San Diego Chapter, Inc.; San Diego Building Contractors Association; Engineering and General Contractors Association. /3/ Building Material and Dump Truck Drivers, Teamsters Local No. 36, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. /4/ The minimum rate for the owner-operators' services is set by the California Public Utilities Commission (A. 20). /5/ There also had been a number of conversations between ReCupido and Union representatives on the subject before Terra received the letter (A. 58-59, 74-79). /6/ ReCupido also testified that he told the same thing to an unspecified number of other owner-operators who were not mentioned in the letter but who he knew were not members of the Union (A. 57). The record does not disclose anything further about these other owner-operators. /7/ The payment of the dues presumably terminated following the injunction issued by the district court on March 15, 1979, pursuant to Section 10(l) of the Act. See page 5, supra. /8/ ReCupido did state that several owner-operators had been "run off" a construction site by the Union business agent on another occasion (A. 76). These owner-operators were not identified, and evidence about the incident was not developed. /9/ See 29 U.S.C. 152(3). On this issue, the Board followed its decision in Associated General Contractors of California, Inc. 239 N.L.R.B. 686 (1978), where it had held that owner-operators of dump trucks in Southern California (excluding San Diego County) were independent contractors for purposes of the Act (Pet. App. 21a-22a, 31a). In the latter case, after the decision of the Ninth Circuit in Associated General Contractors v. NLRB, 564 F.2d 271 (1977), the Board had reversed its previous position that the owner-operator of dump trucks were employees (see Pet. App. 21a-22a). See Contractor Members of the Associated General Contractors of California, Inc., 201 N.L.R.B. 311 (1973); Associated General Contractors of California, Inc., 220 N.L.R.B. 540 (1975). The Board's prior position had been sustained by the District of Columbia Circuit in Joint Council of Teamsters No. 42 v. NLRB, 450 F.2d 1322 (1971), but the District of Columbia Circuit sustained the Board's new position in the instant case (Pet. App. 8a-11a). /10/ Neither Terra nor Kissinger, nor any other broker, was a respondent or charging party in the proceedings. /11/ The word "sufficient" is erroneously used in the reprinting of the opinion in the appendix to the petition for a writ of certiorari (Pet. App. 14a) in place of the word "insufficient" that appears in the published opinion (669 F.2d at 767). /12/ Phelps Dodge Corp. v. NLRB, supra, 313 U.S. at 194. /13/ The principle of prosecutorial discretion is firmly established in criminal cases. See United States v. Batchelder, 442 U.S. 114, 124 (1979); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); United States v. Nixon, 418 U.S. 683, 693 (1974); Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (Burger, J.); United States v. Cox, 342 F.2d 167 (5th Cir.) (en banc), cert. denied, 381 U.S. 935 (1965). /14/ CDTOA also argues (Br. 30-46) that the Board has arbitrarily and capriciously departed from prior precedents in which it has ordered a reimbursement remedy. As we explain below (see pages 29-30 n.17, 42-43, infra), this argument is without merit, for the Board has given a reasoned explanation for not ordering reimbursement here. /15/ In contrast, the Ninth Circuit improperly reversed the respective roles of the Board and the reviewing court in holding, in the case parallel to the instant one concerning the MLA in Southern California (exclusive of San Diego County), that a reimbursement order must issue on remand unless the Board can show to the satisfaction of the court of appeals that such an order would not effectuate the policies of the Act. See Joint Council of Teamsters No. 42 v. NLRB, 671 F.2d 305, 312-313 (9th Cir. 1981), petition for cert. pending, No. 82-3 (filed July 1, 1982). See also Acco Construction Equipment, Inc. v. NLRB, 511 F.2d 848, 852 (9th Cir. 1975). In Textile Workers v. NLRB, 475 F.2d 973 (D.C. Cir. 1973), cited by CDTOA (Br. 16, 17, 48), the court simply remanded because the Board did not give an adequate explanation for denying a particular remedy. See also Electrical Workers v. NLRB, 426 F.2d 1243 (D.C. Cir.), cert. denied, 400 U.S. 950 (1970). /16/ See note 6, supra. /17/ Petitioner (Br. 20, 24) and respondent CDTOA (Br. 23-29, 35-38) point out that the Board, with court approval, has ordered reimbursement of union dues and fees exacted from employees under an agreement with a company-dominated union or an agreement containing unlawful union-security provisions. See, e.g., Virginia Electric & Power Co. v. NLRB, supra; Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352, 1357-1358 (9th Cir. 1970). However, in those situations, the Board could well conclude that reimbursement of such dues and fees would be necessary to remove a lingering taint that the unfair labor practices otherwise might impose on the employees' right freely to select a representative of their own choosing in the future. See Virginia Electric & Power Co. v. NLRB, supra, 319 U.S. at 541. Here, by contrast, there is not the same danger of a lingering taint. The owner-operators, being independent contractors, are not guaranteed organizational rights by Section 7 of the Act, 29 U.S.C. 157. Although they are entitled to conduct their business operations free of the restraint of unlawful Section 8(e) agreements, the Board reasonably could conclude that an order prohibiting the utilization of such agreements in the future would adequately safeguard their interests. /18/ See Carpenters Local 60 V. NLRB, supra, 365 U.S. at 655, quoting Consolidated Edison Co. v. NLRB, supra, 305 U.S. at 236. /19/ This is not to say, of course, that petitioner or members of CDTOA necessarily would recover in a suit brought pursuant to Section 303. As we explain below (see pages 38-42, infra), a plaintiff may recover under Section 303 only for injuries sustained as a result of threatening or coercive union conduct that would independently violate Section 8(b)(4); damages cannot be recovered for financial losses resulting merely from implementation of an agreement found to violate Section 8(e). The essential point for present purposes, however, is not whether any particular plaintiff might recover in a Section 303 suit, but rather that Congress has provided in Section 303 an alternative remedial scheme focusing on private damages in cases involving secondary activity generally. /20/ As originally enacted in 1935, the Act established protections for employees engaged in union and other concerted activities and prohibited certain conduct by employers that interfered with employees' rights, but did not declare any union conduct to be an unfair labor practice. /21/ Data generated by the Board indicate that in fiscal 1978, the latest year for which statistics were compiled, the median time from the filing of a charge with the Board to the filing of a petition for a Section 10(l) injunction in district court was 15.7 days, and the median time from the filing of the petition to the district court's ruling was 15.4 days. The total median time from filing the charge to the grant of the injunction was thus 31.1 days. /22/ Petitioner complains (Br. 10) that eight months elapsed between the time he filed his unfair labor practice charge and the date on which the Section 10(l) injunction was entered. Actually the time was less: petitioner filed his first charge on August 25, 1978 (Br. 9) and an amended charge on October 20, 1978 (A. 28); the injunction was requested on January 24, 1979, and granted on March 15, 1979 -- less than seven months after petitioner filed his first charge. CDTOA, however, has filed an unfair labor practice charge on December 19, 1977. As explained above (see note 21, supra), the experience in this case was not typical, for the median time in 1978 between the filing of a charge and the grant of an injunction was 31 days. The delay in this case apparently was attributable to the litigation in court and before the Board on the question whether owner-operators were independent contractors rather than employees; if they were employees, there would have been no violation of Section 8(e) and therefore no basis for seeking a Section 10(l) injunction. This issue was not finally resolved by the Board until December 7, 1978, when the Board reversed its previous position and held that owner-operators in Southern California (excluding San Diego County) were independent contractors. See note 9, supra. The General Counsel then sought a Section 10(l) injunction in this case a month and a half later. /23/ The mere provision in Section 303 for the recovery of monetary damages in some cases does not, of course, bar the Board from ordering affirmative action in the form of monetary payments under Section 10(c). To the contrary, in In re National Maritime Union, supra, rendered soon after Section 303 was enacted, the Board acknowledged that it had the power to order "the payment of monies" where such relief is of the make-whole kind authorized by Section 10(c). 78 N.L.R.B. at 989. Section 10(c) was amended in 1947 to make clear that backpay liability could be imposed on labor organizations, as well as employers, where they were "responsible for (employment) discrimination suffered by the employees." H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 54 (1947). Nor does the fact that damages may be recovered under Section 303 for the specific conduct in issue -- secondary activities -- bar the Board from ordering reimbursement in similar circumstances. Section 10(a) itself provides that the Board's authority to prevent unfair labor practices is not affected "by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise." 29 U.S.C. 160(a); see NLRB v. Strong, 393 U.S. 357, 360 (1969). As we have explained, however, the question here is not whether the Board was prohibited from ordering reimbursement in this case, but whether it was required to do so. The existence of Section 303 and the exclusion therefrom of cases involving a violation of Section 8(e) standing alone (see pages 38-42, infra), strongly support the conclusion that the Board as not required to order reimbursement here. /24/ Petitioner contends (Br. 31) that the courts are the preferred forums under Section 303 only with respect to awarding "consequential damages," apparently in the form of lost profits, etc., but not for reimbursement of monies paid in the form of benefit contributions and union dues and fees. Nothing on the face of Section 303 suggests that the Board must make such a distinction, for in either case the monetary loss would appear to constitute injury to "business or property" within the meaning of Section 303(b). Moreover, even assuming that Section 303 was enacted because of a perception that a court is a more suitable forum for assessing consequential damages, as petitioner argues, it does not follow that the division of responsibility Congress contemplated must be so limited, since Section 303 in terms is not. We note as well that in many cases in which a self-employed person actually has been coerced into joining a union, he might have both a claim for damages for the period when he initially resisted union pressure and thereby lost work, and a claim to recover monies paid after acceding to that pressure. It is reasonable that both monetary claims be presented in a single forum. /25/ The provision that such agreements are unenforceable and void also removes another concern created by the Sand Door decision: that a breach of a "hot cargo" agreement by the employer could give rise to a suit for damages by the union. Section 8(e) likewise bars a suit for specific performance of such an agreement, permitting its illegality to be raised as a defense. Kaiser Steel Corp. v. Mullins, supra, slip op. 11-12. /26/ See also Mishara Construction Co. v. Electrical Workers Local 284, 554 F.2d 488, 491 (1st Cir. 1977); National Maritime Union v. Commerce Tankers Corp., 411 F. Supp. 1224, 1229, 1238-1239 (S.D.N.Y. 1976) modified on other grounds, 553 F.2d 793, 803 (2d Cir.), cert. denied, 434 U.S. 923 (1977); Texas Millinery Co. v. United Hatters Union, 229 F. Supp. 341, 346-347 (N.D. Tex. 1964), aff'd, 362 F.2d 322 (5th Cir. 1966); Atchison, T.&S.F. Ry. v. Teamsters Locals 70, 85 & 315, 511 F.2d 1193, 1195 (9th Cir. 1975). /27/ Compare Teamsters Local 814 (Santini Brothers, Inc.), 208 N.L.R.B. 184 (1974), enforced, 546 F.2d 989 (D.C. Cir. 1976), cert. denied, 434 U.S. 818 (1977), discussed at page 42, infra, which did involve coercive activity. /28/ See also International Union of Operating Engineers Local 12 (Griffith Co.), 243 N.L.R.B. 1121, 1125 n.19 (1979), enforced sub nom. Griffith Co. v. NLRB, 660 F.2d 406 (9th Cir. 1981), cert. denied, No. 81-1485 (June 7, 1982); General Longshore Workers Local 1418, 235 N.L.R.B. 161, 170 n.23 (1978), petition for certiorari filed on June 28, 1982 with respect to the ancillary Section 10(l) proceeding, No. 81-2384. /29/ The absence of evidence of threats or coercion by the Union explains why the Regional Director informed petitioner that his charge of a violation of Section 8(b)(4) would be dismissed if it were not withdrawn by petitioner. See Pet. 6. /30/ In Malbaff, the Board held that it was not a violation of the Act for one employer to refuse to deal with another employer because its employees were not unionized. The Board explained (172 NLRB at 129): Section 8(a)(3) outlaws employer discrimination against employees. But an employer does not discriminate against employees within the meaning of Section 8(a)(3) by ceasing to do business with another employer because of the union or nonunion activity of the latter's employees. While, in such situations and in this very case, there may be employer discrimination against employer, we find no justification in the Act itself or in its legislative history for concluding that it was the purpose of Congress under Section 8(a)(3) to protect employers as well as employees from employer discrimination. And if an employer does not violate Section 8(a)(3) by terminating a business relationship with another employer, union pressure merely designed to achieve such an end would not violate Section 8(b)(2). Of course, the Act is not wholly unconcerned about the interruptions of business relationships caused by labor disputes. Where a union strikes, or induces employees to strike, in order to cause a cessation of business between a neutral employer and the employer with which it is in dispute, there is secondary activity for which Section 8(b)(4) was designed and which is made unlawful by that Section * * *. /31/ CDTOA correctly observes (Br. 32-39, 56) that there are many situations in which the Board has ordered unions to reimburse employers or employees for losses caused by unfair labor practices. However, it cites no case where reimbursement has been ordered on behalf of one business entity for losses caused by conduct of another. Moreover, since Terra was not even a respondent in the Board proceeding and was not found to have violated Section 8(e), it is doubtful that the Board in any event could have ordered Terra to reimburse petitioner for the monies that he paid to the Union.