The opinion
FRIENDLY, Circuit Judge
(concurring and dissenting).
Although I am in general accord with Chief Judge LUMBARD’S treatment of this complicated case, I disagree on one point of fact, and I think the question of law relating to the allegedly excessive level of the permit fees to be important enough to warrant an additional word.
I thoroughly agree with my brothers’ conclusion that the Board’s wholesale findings of discrimination against permit men in the operation of the hiring hall were not founded on substantial evidence. 1 But I see no sufficient support for their conclusion that a would-be permit man who for the first time filed an out-of-work card and paid his permit fees apparently would not be referred for employment until all union members had been — if “all” includes members joining the union thereafter, as I assume it does. The Board conceded in its opinion (fn. 5) that Sofield “at one point testified that as between Union men and permit men, he chose the one oldest in seniority, i. e., in accordance with the date the individual was initiated in the Union or began payments as a permit man,” but it chose to “credit, as the Trial Examiner obviously did, Sofield’s earlier testimony that he referred Union members before nonmembers.” There was no such “earlier testimony.” The earlier interrogation had related only to “hundreds of young fellows that come in and leave their name and address”; Sofield never said that a man who had begun to pay permit fees would be deferred in favor of a later joining member; and, if there had been any ambiguity, this was cleared up by the later testimony when the Examiner owned that he had “probably misunderstood your testimony earlier.” Hence I find no basis for concluding that permit men who conformed to the hiring-hall’s practices were treated worse than union men; the order can be supported only because of the reasonable conclusions as to the effect of the 90-day delinquency provision, the impermissibility of basing referrals solely on seniority of union membership or permit payments (which, however, bore equally on union members and on permit *139 men), and the practice of charging the same fees to nonmembers as to members.
On this last point, I should have difficulty with a view that, in the absence of evidence that union membership entailed financial benefits (such as payments in the event of death or illness, strike benefits, etc.) not available to the permit men, equivalence of fees would constitute a violation of § 8(a) (3) by the employer or of § 8(b) (2) by the union. It is quite true that “discrimination” can be effected as well by giving more value for the same price as by charging a higher price for the same value. Cf. New York Central Railroad Co. v. United States, 207 F.Supp. 483, 490 (S.D.N.Y.1962). But what the National Labor Relations Act bans is not discrimination simpliciter but “discrimination in regard to hire or tenure of employment * * * to encourage or discourage” union membership, and I do not see how union membership is encouraged by charging the same price to nonmembers if all that they fore-go are privileges such as attending union meetings which they do not want. However, requiring nonmembers to pay an unreasonably high amount for the use of facilities operated by a union — as the identity of amount here strongly suggests and the 20% remittance to the International reinforces — infringes the right of employees, guaranteed by § 7, to refrain from assisting labor organizations — “except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).” A union imposing such a requirement thus violates § 8(b) (1) and a cooperating employer offends against § 8(a) (1) unless the “except” clause is applicable.
Clearly the clause is not applicable as to Nassau-Suffolk, with which Local 138 had no agreement for anything other than referral during the period here at issue. And I reach the same conclusion with respect to B.T.E.A. The agreements between it and Local 138 provided that “The Union shall select and refer applicants for employment without discrimination against such applicants by reason of membership or nonmember-ship in the Union and such selection shall not be affected in any way by” union rules “except, however, applicant shall have required membership in the Union” thirty or, in the case of the 1960 agreement, seven days from the date of hiring. I do not pretend to know what this means — perhaps “required” is a misprint for “acquired” — but the evidence makes it clear that there was in fact no insistence on union membership. It is true that N.L.R.B. v. General Motors Corporation, 373 U.S. 734 , 83 S.Ct. 1453 , 10 L.Ed.2d 670 (1963), declared broadly that “There is much to be said for the Board’s view that, if Congress desired in the Wagner Act to permit a closed or union shop and in the Taft-Hartley Act the union shop, then it also intended to preserve the status of less vigorous, less compulsory contracts which demanded less adherence to the union”; and it could be argued that the arrangement between B.T.E.A. and Local 138 here in question, whereby the union referred for employment persons who had become members or persons who had not if they paid the same fees, was one of these “less vigorous, less compulsory contracts.” But, apart from any question whether Local 138 required nonmembers to pay permit fees without awaiting the end of the 30 day period of § 8(a) (3) or, after 1959, the 7 day period of § 8(f), I doubt whether the permit men here had “the practical equivalent of union ‘membership’ ” referred to in the General Motors opinion. The precise boundaries of the expansion of the letter of the “except” clauses of § 7 and § 8(a) (3) recognized in General Motors will have to be worked out by the Board and the courts; I am satisfied that the clause was not expanded so far as to include Local 138’s agreement with B.T.E.A. as that was here applied.
. I am disturbed by what seems a rather frequent practice of some of the Board’s examiners, instanced here, of endeavoring to support findings by applying a “credible” rubber-stamp to one witness and a “not credible” one to another, with no explanation that will assist the Board or a reviewing court in ascertaining what led to the use of the particular stamp. The respect which § 10(e) and (f) of the National Labor Relations Act commands the courts to give to the Board’s findings of fact carries a correlative duty of explication for the Board and its examiners. See 4 Davis, Administrative Law Treatise (1958), § 29.06.