The opinion
CLARK, Circuit Judge
(dissenting).
Rejecting the able report of its trial examiner, the Board has construed the cherished union security provision of this collective bargaining agreement in such a way as to nullify it in the present context. Such a construction is clearly not a required one; in my judgment it is not even a permissible one. It is in fact unjustifiably harsh and technical, at variance with the parties’ settled intent which is re-emphasized by their continuance of the provision when they came to make their new contract. The only possible justification for such an interpretation, I submit, would be a settled policy to discourage this type of “maintenance of membership” agreement. The Board actually does take this position in stressing that the authorizing provision of the Taft-Hartley amendments to the N. L. R. A. § 8(a) (3), 29 U.S.C. § 158 (a) (3), is “to create an exception to the blanket proscription spelled out in Section 8(b) (2)” which “outlaws” this type of conduct. See the Board’s decision, 106 NLRB No. 245 . But this is to make an extremely extensive and dubious deduction from a merely natural form of statutory language by way of a proviso, which is actually framed in broad and inclusive terms: “Provided, That nothing in this subehapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization” of the kind here in issue. In truth the legislative history is to the contrary, showing that even the Taft-Hartley proponents, including Senator Taft himself, wished to aid the unions in their struggles against “free-riders.” See Sen.Rep. No. 105 on S. 1124, 80th Cong., 1st Sess., 1 Legislative History of the Labor Management Relations Act, 1947, 413 (1948), and remarks of Senator Taft, 2 Legislative History 1010, also 1124, 93 Cong. Rec. 3837, also 4193. This new interpretation, contrary to that advanced by the Union and accepted by the employer here, will, I fear, be disturbing of the apparently good labor relations of the parties hereto. Further, it is very definite notice that milder forms of union security agreements are likely to prove illusory; and it carries a quite unconcealed admonition that a union must be hard-boiled and intransigent at “the bargaining table” and — obviously—thereafter if it is to obtain the benefit of a union maintenance provision.
It is clear that if a union is to survive in a plant it must meet in some manner the threat of the “free-rider,” the employee who wants to take all the benefits of union activity and share none of the burdens. A natural course is a union security provision in the controlling collective bargaining agreement; and if a comparatively mild provision, of the kind here involved, will meet the parties’ needs, it should be encouraged. That Mrs. Steib was determined to be a free-rider is of course not disputed; she said as much in her letter of so-called “resignation” when she relied upon her “over ten years service” to show that she did “not have to remain a member.” Of course this length of service did not excuse her from the responsibilities she had assumed; and hence, except for the chance that the time for negotiating a new contract had arrived, she would surely have had to receive the penalty here given her by the employer at the Union’s request. In the setting of the labor relations at this plant, the factor of the technically new contract, even with the few days’ intervening interval, was not of realistic significance, since the parties intended to and did go on just as before, so far as this aspect of their re *841 lationship is concerned. Nevertheless legally it has been worked out so as to give this lady an opportunity for the free ride she sought.
If Mrs. Steib did plan all these things to happen just as they did, she must be considered as something of a wizard in legal and labor tactics; but everything has happened in almost too pat a way to be believable as planned occurrences or other than fortuitous events. For not only was her choice of time most favorable to her program, but also her choice of language of “resignation.” Much has been made by the Board of her right to “resign,” of her not being “bound to involuntary membership a single day,” with apparent overtones against supposed involuntary or penal servitude of work. In fact resignation as from a club has no significance in this setting; it is not noted or mentioned in the collective bargaining agreement or in the statute- — beyond the provision of the latter (which is deserving of more force than it has here received) against impairment of the right of a labor organization to prescribe its own rules with respect to the retention of union membership. Sec. 8(b) (1) (A), 29 U.S.C. § 158 (b) (1) (A). What is here important is the payment or nonpayment of union dues. Had Mrs. Steib framed her statement as a refusal to pay dues any longer, because of lier asserted long service— the actual meaning of what she did say —there would then have been no basis for her reinstatement; indeed, perhaps this entire proceeding would have been avoided.
The timing of her safari has, however, enabled the raising of an issue as to which of the two bargaining agreements governed. The Board has accused the Union of inconsistency in claiming under both contracts and has found this an added basis for rejecting both claims. But there seems nothing wrong in these claims; there is no factual inconsistency or dispute, and it is a truism of modern pleading that a claimant can present his various theories of law without regard to formal or surface consistency, it being up to the tribunal to determine the correct application of the law. So here Mrs. Steib was in default during the term of the first contract, and I see nothing improper or prejudicial in the Union’s so claiming or in the trial examiner’s so finding as a basis for his recommendation of dismissal of the complaint. But I do think the Board holding, reiterated here, that termination of the contract wipes out previous defaults is definitely erroneous and quite unfortunate as a future precedent. I see no basis in the law or the cases to give such a healing effect for deliberate breaches of obligation to either the passing of time or the termination and re-execution of the contract.
On another ground, however, I agree with the Union’s present position before us, namely, that the default, and the resulting discharge, occurred under the second contract. That appears to me to follow by reason of the period of grace accorded under the Union’s constitution before a default in paying dues becomes final. That provision, so obviously for the benefit of the employee — so much so that I venture to believe we would not have considered the Union’s case for a moment had it not observed the requirement — has here been given little weight except to hold that it creates a “dilemma” for the Union, from which we will not extricate it, as to how it can observe this agreement and yet practically enforce its union security agreement. But the dilemma, I submit with all deference, is not for the Union, but for those who interpret these simple and natural provisions to be at variance with one another. Actually they seem clearly to require that the default cannot be recognized until after the period of grace expires. This is what the Union did; hence its ultimate action was proper and timely under the second contract, as earlier action would not have been under either contract.
Of course I am rejecting the view that Mrs. Steib had earlier “resigned.” Perhaps I have sufficiently shown my own conviction that this supposed difficulty is *842 entirely semantic. Unless the maintenance-of-membership provision is to be rendered entirely nugatory, her refusal to pay dues cannot be beautified or concealed or propped up by any attempted “resignation.” The Union was quite cor-reet and discriminating in its refusal to “honor” this attempt; and its subsequent actions were in accordance with agreement and law. ■ The proceeding ought therefore to be returned to the Board for such a holding.