The opinion
DIMOCK, District Judge
(concurring).
To support the Board’s order the employer’s act must have constituted discrimination and there must have been intention that it encourage union membership. The majority hold that neither element was present. I agree with the holding that there was no discrimination within the intent of the Act but disagree with the holding that there was no intention that the employer’s act should encourage union membership. Since I agree that proof of both elements is necessary if the Board’s order is to be enforced, I concur in the result of the majority decision that enforcement should be denied.
Taking up discrimination, we find that Mr. Justice Clark’s dissent in Local 357, etc. v. N. L. R. B., 365 U.S. 667, at p. 689 , 81 S.Ct. 835, at p. 846 , 6 L.Ed.2d 11 , makes it clear that the case holds “that there can be no ‘discrimination’ within the section unless it is based on union membership, i. e., members treated one way, nonmembers another, with further distinctions, among members, based on good standing.” To this I would add the gloss that there may be discrimination within the meaning of Section 8 if it is based on alleged lack of good standing, as in Radio Officers Union, etc. v. N. L. R. B., 347 U.S. 17 , 74 S.Ct. 323 , 98 L.Ed. 455 . It is clear here, however, that the “discrimination” was not based on union membership and was therefore not within the Section.
On the question of intent to encourage union membership, Section 8(a) (3) of the Act provides that it shall be an unfair labor practice for an employer “by discrimination * * * to encourage * * * membership in any labor organization” and Section 8(b) (2) makes it an unfair labor practice for a labor organization “to cause * * * an employer to discriminate * * * in violation of subsection (a) (3) of this section”. The Supreme Court said in the Radio Officers case, 347 U.S. at page 52 , 74 S.Ct. at page 342 , 98 L.Ed. 455 , “Both Boston and Fowler were denied jobs by *752 employers solely because of the unions’ actions. Since encouragement of union membership is obviously a natural and foreseeable consequence of any employer discrimination at the request of a union, those employers must be presumed to have intended such encouragement.” I interpret this as meaning that, if the act of the employer is in response to a request of the union, no further proof of his intention to encourage is needed.
The majority opinion states that it is an established “principle that a union does not violate Section 8(b) (2) unless the discrimination which the union seeks would constitute a violation of Section 8 (a) (3) if the employer acted without union suggestion or compulsion”. This denies the correctness of my interpretation of the Radio Officers case as holding that the fact that the employer’s act is in compliance with the union’s suggestion supplies the proof of the employer’s intention to encourage union membership which might otherwise be absent.
I cannot agree with the statement of the majority that my interpretation of Radio Officers was rejected in Local 357, etc. v. N. L. R. B., 365 U.S. 667 , 81 S.Ct. 835 , 6 L.Ed.2d 11 , supra, and N. L. R. B. v. News Syndicate Co., 365 U.S. 695 , 81 S.Ct. 849 , 6 L.Ed.2d 29 .
As I read the Teamsters Local 357 case the court not only did not reject the theory that a union’s success in getting an employee to accede to its requests encouraged union membership but expressly assumed that it encouraged union membership. What the case held was that, assuming that there was encouragement of union membership, there was no discrimination. This clearly appears if one reads on from the point where the quotation from that case in the majority opinion stops. The majority’s quotation, with the discussion of discrimination added, appears below.
“It may be that the very existence of the hiring hall encourages union membership. We may assume that it does. The very existence of the union has the same influence. When a union engages in collective bargaining and obtains increased wages and improved working conditions, its prestige doubtless rises and, one may assume, more workers are drawn to it. When a union negotiates collective bargaining agreements that include arbitration clauses and supervises the functioning of those provisions so as to get equitable adjustments of grievances, union membership may also be encouraged. The truth is that the union is a service agency that probably encourages membership whenever it does its job well. But, as we said in Radio Officers [etc.] v. [N. L. R. B.] Labor Board, supra, the only encouragement or discouragement of union membership banned by the Act is that which is ‘accomplished by discrimination.’ P. 43.
* * * * * *
“The present agreement for a union hiring hall has a protective clause in it, as. we have said; and there is no evidence that it was in fact used unlawfully. We cannot assume that a union conducts its operations in violation of law or that the parties to this contract did not intend to adhere to its express language. Yet we would have to make those assumptions to agree with the Board that it is reasonable to infer the union will act discriminatorily.” 365 U.S. pp. 675-676, 81 S. Ct. pp. 839-840, 6 L.Ed.2d 11 .
The basis of the Teamsters Local 357 decision thus was that the employer’s acceptance of the union hiring hall system was not necessarily, as the court expressed it elsewhere, 365 U.S. on page 675, 81 S.Ct. on page 839, 6 L.Ed.2d 11 , “the kind of discrimination to which the Act is addressed.”
The opinion in the other ease which the majority cite as repudiating my interpretation of the Radio Officers holding, N. L. R. B. v. News Syndicate Co., 365 U.S. 695 , 81 S.Ct. 849 , 6 L.Ed.2d 29 , dealt solely with discrimination. It made no attempt to attack the propositions that union success in getting its *753 requests granted by an employer encourages union membership and that the employer, in acceding to the requests, must be presumed to have intended the natural consequences of his acts.
Since, however, I agree with the majority that the “discrimination” here was not based on union membership or union standing and thus not “the kind of discrimination to which the Act is addressed,” I reach their result in spite of the fact that I disagree with their conclusion that the mere fact that the employer’s discrimination is in response to a union’s request is insufficient evidence that the discrimination is “to encourage * * * membership in any labor or-
ganization.”