The opinion
CLARK, Circuit Judge.
I dissent from the grant of enforcement on the grounds persuasively stated by *966 Board Member Murdock in dissenting below, 93 N. L. R. B. No. 249. (Board Member Reynolds also dissented as to the Board’s ruling on the February incident, limiting “his finding of discrimination to the Respondent’s failure to clear Fowler in April when his good standing has been restored.”) Mr. Murdock first says:
“The majority of my colleagues and the Trial Examiner found the facts in this case, briefly stated, to be as follows. On February 27, 1948, complainant Fowler was offered a position as radio officer by the Bull Steamship line on its ship, the S. S. Frances. Fowler was, at this time, a member in good standing of the Respondent. In order that a vacancy in the position of radio officer on the Frances might exist, however, it was necessary for the company to discharge another member of the Respondent who was currently employed in that job. 1 Upon complaint of the displaced member, Howe, the secretary-treasurer of the Respondent thereupon suspended Fowler for ‘bumping’ another member and a subsequent request by the Company for clearance of Fowler for the position was denied by the Respondent. The suspension of Fowler was later lifted, but, when on April 26, the Company again offered Fowler employment as a radio officer on its vessel, the S. S. Evelyn, clearance was once more refused by Respondent. As a consequence of the refusal to grant the clearances, the positions, in both instances were filled by other members of the Respondent. Admittedly, in both instances, negotiations for employment of Fowler were carried on by the latter and the Company without reference to the Respondent other than the requests for clearance. The Respondent therefore contends that its actions were in accord with, and protected by, the terms of its contract with the Company and the ‘hiring hall’ operated in conjunction with that agreement. I find the Respondent’s argument persuasive.”
He then continues (omitting some footnote references and explanations):
“There seems no question that, if the contract between the Respondent and the Company during the period concerned herein provided for employment of radio officers only through a union hiring hall, the denial of the clearances by the Respondent was both justified and protected under the terms of the amended Act. My disagreement with my colleagues, accordingly, centers upon the question of the existence of a hiring hall provision in that agreement. The record is clear, and indeed the Trial Examiner finds, that the various steamship companies, including the Bull line, who were parties to the contract, ‘generally requested the Respondent to furnish radio officers to fill vacancies.’ Further, ‘to meet these requests, the Respondent maintained a “shipping list” of its unemployed members in the order of the termination of their last employment’ and when a vacancy occurred, it was filled by offering the assignment and the requisite clearance to members of the Respondent on the shipping list in the order occurring there. Despite this clear showing of the existence and operation of a hiring hall, however, the Trial Examiner and the majority opinion contend such an arrangement is without provision in the contract between the parties and is thus unavailable to the Respondent as a defense. This conclusion, in direct contradiction of the established facts, is reached in view of a purported lack of a clear hiring hall provision in the agreement, the *967 eservation of the right of ‘free selection’ employees by the companies, and the inclusion of a clause providing for written notice by the Union where a selected member was not in good standing. I cannot agree.
“The pertinent portions of the contract, as set forth in the Trial Examiner’s Report, do not, by name refer to the establishment of a hiring hall for the employment of radio officers. To this extent the argument of the majority is well taken. In its previous decisions dealing with ‘hiring halls’ in the maritime industry, however, the Board has never made such a condition prerequisite to finding the existence of such systems, and has, indeed, recognized the existence of hiring halls where the contracts did not establish them in name. Nor does the reservation of a right of free selection by the companies necessarily controvert the existence of a hiring hall. While the inclusion of this clause, as argued by the Trial Examiner and the majority of the Board, conceivably negates the inference that a hiring hall was created by the contract, it is equally interpretable as merely protecting the right of the companies to reject unsuitable applicants for radio officer positions. As the Trial Examiner, at the hearing, excluded oral evidence as to the meaning of this term, among others, as interpreted by the parties, the precise effect of the language cannot be determined. On the other hand, the incontrovertible fact is that such ‘free selection’ considered granted in the contract by my colleagues, was never utilized by the companies to that effect, nor was there any attempt to do so. Its abstract existence is accordingly rebutted by the realities of the factual situation before us. Furthermore, the requirement of ‘clearance’ by the Respondent, a term the parties clearly indicated to be of special weight, before a free selection of applicants could be effected, is incompatible with the meaning attributed to the latter clause by the majority opinion. Finally, the reasoning of my colleagues that no occasion for written notice by the Respondent that any particular employee was not in good standing would arise unless the Company hired radio officers directly, misreads the clause in question. 2
“Upon the entire record, and in view of the foregoing, I am persuaded and would find that a lawful hiring hall was established by the contract in question. Accordingly, as the actions of the Respondent herein were in accord with that contract, I would dismiss the complaint in its entirety.”
His final statement is an argument that even if the contract were to be otherwise construed, the Respondent was not guilty of infringement of the Act with respect to the refusal to clear Fowler on February 27, because there was no clear showing beyond mere supposition that it had not complied with or had ignored its own rules of procedure. There was “a complete lack of protest by Fowler” at that time and reliance upon this ground forces the Board “into the new and untenable position of becoming the arbiter of proper observance of intraunion procedure.”
Quite generally in labor disputes we see some indications of a history and an impact of personalities, surroundings, and local conditions, which, however, are at best only imperfectly translatable to the formal record. Because of this I have wished to trust as much as possible to not only the Board’s greater “expertise” in the circumstances, but also its intuitive appreciation of the impelling force of the local background with which we are not acquainted. Here one senses that more background even than usual remains undisclosed, and our understand *968 ing of the case by that becomes the more unstable. The proceeding appears atypical; in what are apparently settled and peaceful union relations, the independent worker who attempts to go on his own to secure better individual treatment at the expense of union principles is given the green light by the Board 'for reasons I should think not merely legally inadequate, but also practically inimical to the advancement of peace on this labor front. Perhaps there is some good reason for this; I wish I knew. But on the present record I am constrained to conclude that enforcement should not be had of this Board order.
. So I think the opinion is in clear error in first indicating that Kozel was discharged for some Unspecified reason and then stating, “although in fact Fowler had nothing to do with Kozel’s discharge,” as a rebuttal of the union secretary’s belief “that Fowler had pushed Kozel out of his job.” There are no such findings in the record, and the Trial Examiner’s recital of those findings which were made “upon uncontradicted evidence” is to the contrary. Thus at the end of the “Frances’ ” voyage in February, Frey, the company’s radio supervisor, “told Kozel that although his services had been satisfactory, he was to be replaced by ‘a man with senior service in the company.’ ” So elsewhere the Examiner speaks of “Kozel, a member of the Respondent, whom Fowler was to replace.”
. Mr. Murdock’s footnote here reads as follows: “This clause does not refer to hiring alone, but also contemplates action taken in transferring or promoting employees. In these instances, it is clear, there would be ample reason for written notice by the Respondent if the recipient of the transfer or promotion was not in good standing. There is, therefore, no reason for assuming that the provision is inconsistent with a hiring hall. Moreover, as the majority opinion admits, the Trial Examiner’s conclusion that no occasion for a twenty-four hour notice to the Respondent before the companies hired non-members would arise until, and unless, the companies had first directly and unsuccessfully sought to hire members of the Respondent is clearly erroneous.”