The opinion
FRIENDLY, Circuit Judge
(dissenting) :
The trial examiner’s report, which the Board adopted, holds that a labor organization having a valid union security contract violates the first clause of § 8(b) (2), forbidding it to cause an employer by discrimination to encourage union membership, if it causes the employer to withdraw seniority from an employee who has taken advantage of a bylaw permitting him to avoid the payment of dues if he is willing to sacrifice his position as an active union member and as an employee. No administrative expertise or appropriate judicial deference to it can square such a result with a reasonable construction of the statute. .
The supposedly offending provisions are those in Article XIV of the Local’s and Article XIX of the International’s By-Laws, both relating to withdrawal cards. Having the right to insist that a member continue the payment of his dues under any and all conditions or forfeit his membership, the union settled for something less. A member might withdraw “from his local’s rolls of active members” and thereby have his obligation to pay dues suspended while ceasing to participate in any union affairs. However, he could join any sister local or resume active membership in his own without paying an initiation fee. Assumption of this status naturally carried a penalty — the member would be deemed to have withdrawn from holding or seeking employment within the local’s jurisdiction.
It is undeniable that this condition “encourages” a member not to avail himself of the option but rather to continue *330 as a dues-paying member of the local under whose jurisdiction he has been working. But § 8(a) (3) clearly contemplates that this “encouragement,” although no other, is permissible where there is a valid union security contract. 1
2 Congress’ determination “to insulate employees’ jobs” from union efforts to reward “good” members or to punish “bad, or indifferent” ones, Radio Officers’ Union v. NLRB, 347 U.S. 17, 40 , 74 S.Ct. 323 , 98 L.Ed. 455 (1954), was paralleled by its recognition of “the validity of unions’ concern about ‘free riders,’ i. e., employees who receive the benefits of union representation but are unwilling to contribute their share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason,” 347 U.S. at 41 , 74 S.Ct. at 336 . Here the first proviso of § 8(a) (3) was met and the second was inapplicable.
I’ When the first proviso allows an employer and a labor organization to require “membership therein” as a condition of employment, it surely permits a requirement of dues-paying membership, and the collective bargaining agreement between Ward and the union demanded exactly that.® Fisher, by acquiring a withdrawal card, voluntarily ceased to be a dues-paying, participating member of the union; the union bylaws already mentioned unequivocally provided this route for severing these basic ties with the union, 3 and Fisher took it as surely as if he had submitted a letter of resignation. By so doing, he laid himself open to job and consequent seniority loss under the security clause. I cannot believe anything should turn on the inept language specifying withdrawal from the “rolls of active members” when the remainder of the section made it clear that membership itself was being abandoned, saving only the initiation fee protected by another section.
The second proviso says, “That no employer shall justify any discrimination against an employee for nonmembership in a labor organization * * * (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.” The language, supported by the legislative history (H.R. 3020, 80th Cong., 1st Sess. § 8(d) (4) (1947) (passed by the House); S.Rep. No. 105, 80th Cong., 1st Sess. 20 (1947)), makes it clear that “terminated” refers to actions initiated by the union, such as expulsion, not by the employee. 4 I would deny enforcement.
. Boston’s case, dealt with in Radio Officers’ Union v. NLRB, 347 U.S. 17, 42 , 74 S.Ct. 323 , 98 L.Ed. 455 (1954), is distinguished by the absence of a valid union security contract, as well as by the fact that the union did not terminate Boston’s status as a member.
. “All present employees shall, as a condition of continued employment, maintain their membership in the Union [Local No. 50] during the life of this agreement through regular payment of dues to the Union.”
. “A withdrawal card shall signify that the member has voluntarily withdrawn from his local’s rolls of active members and has withdrawn from holding or seeking employment within the work or geographic jurisdiction of this International or his local union. The holder of a withdrawal card shall be exempt from the payment of union dues and shall not be permitted to participate in local union meetings.”
. This answers the point made in the footnote to the majority opinion which relies on a partial quotation of similar language in the second clause of § S(b) (2).