This case was first before us in 1960, N. L. R. B. v. Miranda Fuel Co., 284 F.2d 861. We granted enforcement but not on the theory advanced by the Board, as will be more fully explained below. After the Union applied to the Supreme Court for certiorari that Court decided Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N. L. R. B., 1961, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed. 2d 11. The Board thereupon requested that the proceedings theretofore had in Miranda be vacated and the case remanded to the Board. This was done, Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N. L. R. B., 1961, 366 U.S. 763, 81 S.Ct. 1670, 6 L.Ed.2d 853.
We repeat the statement of facts from our former opinion, with certain addi*174tions. Lopuch’s loss of seniority arose in the following manner. In April 1957, Lopuch had been employed as a truck driver by the Company, a seller of fuel oil, for approximately eight or nine years. He then enjoyed the eleventh position on a seniority list of approximately twenty-one. About the beginning of April 1957, Lopuch spoke to Jerry and Fred Miranda, chief officers of the Company, and told them he wished to spend the summer in Ohio and do some work for his sister-in-law, whose husband had just died. The period from April 15 to October 15 was a slack season in the fuel oil business, and was so designated in Section 8 of the collective bargaining agreement between the Union and the Company, quoted below. Lopuch obtained permission to leave at the close of business on Friday, April 12, 1957. He told his employers he would return by October 12. In mid-October, however, Lopuch became ill, and he did not return to work until October 30. The illness was evidenced by a doctor’s certificate, and the late return was excused by the Company.
Shortly after his return, the Union, at the urging of various of its members, demanded that the Company reduce Lopuch to the foot of the seniority list, on the ground that his late return violated Section 8 of the collective bargaining agreement. The relevant portion of that Section provides:
“During the slack season, April 15 to October 15, any employee who according to seniority would not have steady employment shall be entitled to a leave of absence and maintain his full seniority rights during that period. Any man so described must report to the Shop Steward not later than 8 A.M. on October 15 and sign the seniority roster in order to protect his seniority, and the Employer agrees to accept the certification of said Shop Steward as to availability of such men when called by the Employer. If October 15 falls on Saturday or Sunday, the reporting day shall be the next work day. Any man failing to report as above specified shall forfeit all seniority rights.”
When the Union discovered that Lopuch’s failure to return to work on time was because of an excused illness, it abandoned the claim that he be dropped from seniority because of a late return to work. Instead, it insisted that he be reduced in seniority because he had left work before April 15. Jerry Miranda, who did not think that Lopuch’s early departure would cause any loss of seniority when he gave permission to leave on April 12, was reluctant to agree to this request. However, he acquiesced in the Union’s demand that Lopuch be dropped to the botton of the seniority list.
Lopuch was a member of the Union, and there is nothing in the record that has been called to our attention to indicate that Lopuch had been disloyal to the Union, or had been guilty of any acts detrimental to the Union, or in any way transgressed the rules or policies of the Union. Nor is there anything to indicate he was regarded by the Union officials as a troublemaker.
While the strict legal construction of Section 8 of the collective bargaining agreement, as held by us on the prior appeal, 284 F.2d at page 863, required a forfeiture of seniority only for failure to return on time, the purpose of Section 8 was to eliminate fluctuations of seasonal employment.
Merely because the Union first relied upon Lopuch’s late return, and then, after it was established that the late return was due to illness, placed its request for demotion upon Lopuch’s early leaving, with the employer’s consent, we are told by the Board that the demotion was due to “whim or caprice,” that it constituted action by the Union, acquiesced in by the Company, that was “hostile” and for “irrelevant, unfair or invidious reasons,” and that it consequently was a breach of the duty of the Union to act fairly and impartially in its representative capacity under Section 9 of the Act. From this so-called “unlawful *175discrimination” it is supposed to follow that Lopuch’s rights under Section 7 were infringed. On the basis of this reasoning the Board concluded that the Union and the Company were respectively guilty of violations of Section 8(b) (1) (A) and (2) and Section 8(a) (1) and (3). The remedy applied was to restore Lopuch to his former position on the drivers’ seniority roster, with back pay.
Thus the law question, lying at the heart of the case, is whether any sort of discrimination against an employee, affecting the terms and conditions of his employment, can constitute an unfair labor practice under Section 8, even if wholly unrelated to any union considerations.
We are assisted in our deliberations upon this ease by very helpful and well-documented briefs by the American Civil Liberties Union, the American Federation of Labor and Congress of Industrial Organizations, the National Association for the Advancement of Colored People, and the United Automobile, Aerospace & Agricultural Implement Workers of America (AFL-CIO), as amici curiae.
On the subject of fair and impartial representation the Board insists upon the per se approach. Like all clichés and short cuts in the law, designed to make life easy for the judicial officer who has to make the decisions, this merely eliminates the thinking process necessary to get at the root of the matter. Did both the Union and the Company believe in good faith that Section 8 of the collective bargaining agreement, fairly interpreted, meant that an employee, who was entitled to a leave of absence between April 15 and October 15 to “maintain his full seniority rights during that period,” forfeited such rights by taking a longer leave of absence? If so, it is difficult to perceive any “discrimination” against Lopuch, as this interpretation, which seems to us far from unreasonable, particularly if made by laymen and not by lawyers, taking into consideration the purpose of said Section 8, applies equally to all employees, union and non-union alike. And yet there are no findings whatever on this subject in the record, either with respect to the Union or the Company, by the Trial Examiner or by the Board.
Thus, even if we were disposed to agree with the Board on the principal law question in the case, we would disagree with its conclusion that the Union, on the meager facts in the record, had taken against Lopuch “hostile action, for irrelevant, unfair or invidious reasons,” and we would feel constrained to remand the case to the Board for the taking of further evidence and the making of additional findings of fact. In other words, having requested the Supreme Court to vacate the proceedings already had, and then having adopted an entirely new approach to the case on the basis of issues not previously litigated, the Board insisted upon pursuing its per se theory and took no further proofs but made a new decision on the basis of the old record. We cannot approve of this.
Further proceedings, however, will be wholly unnecessary if we adopt, as we shall, the view of the dissenting members of,the Board to the effect that discrimination for reasons wholly unrelated to “union membership, loyalty, the acknowledgment of union authority, or the performance of union obligations,” is not sufficient to support findings of violations of Sections 8(a) (3), 8(a) (1), 8(b) (2) and 8(b) (1) (A) of the Act, 29 U.S.C. § 151 et seq., as amended. Accordingly, we turn to the discussion of the considerations affecting our decision of that controlling question of interpretation of the Act, and especially of Sections 7, 8 and 9, including the various subsections and subdivisions thereof.
The issue is indeed a narrow one. Section 7 describes the rights of employees “to form, join, or assist labor organizations,” to bargain collectively, and to refrain from such activities, except when required to join a union by the terms of a lawful agreement. It is an unfair labor practice for an employer *176under Section 8(a) (1), and for a union under Section 8(b) (1), to interfere with the exercise by an employee of his Section 7 rights. It is also an unfair labor practice for an employer under Section 8(a) (3), and for a union under Section 8(b) (2), to discriminate “in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization” or to cause such discrimination. Furthermore, subject to the provisions of Section 9(a), it is an unfair labor practice for an employer under Section 8(a) (5) and for a union under Section 8(b) (3) to refuse to bargain collectively.
As the various ways to discriminate against a person, or to be unfair or unjust to him, are legion, it would seem at first blush that the bearing of Sections 7 and 8 above described is intended to affect only union considerations. Another way of stating the same thing is to say that, to constitute an unfair labor practice under Section 8, the union or the employer must have committed some act the natural and foreseeable consequence of which is to be beneficial or detrimental to the union. The classic way of describing such effect in the typical case is to say that the act in question “encouraged union membership as such.”
But here the placing of Lopuch at the bottom of the seniority list, even if done through sheer whim or caprice, and even if arbitrary, unjust and “invidious,” whatever that may mean in the context of the facts of this case, could not conceivably have been thought to encourage union membership, because his demotion affected union and nonunion men alike. Indeed, the foreseeable effect, in the context of this case and the terms of Section 8 of the collective bargaining agreement, could only be “to encourage timely return and continuous work until the annual layoff, the identical objective which prompted the contract provision,” as pointed out by the dissenting members of the Board. Thus the Board on reconsideration of the case pursuant to the mandate of the Supreme Court conceived the ingenious, but as we think wholly erroneous theory that any sort of discrimination, unfairness or injustice to an employee, by the Union and acquiesced in by the employer, constituted a breach by the Union of the fiduciary duty implicit in Section 9 to represent the employee fairly, and an unfair labor practice by both the Union and the employer under Sections 8(a) (3), 8(a) (1), 8(b) (2), and 8(b) (1) (A). Accordingly, the single narrow question of law in the case boils down to whether it was the intent of the Congress to read into Section 7 and Section 8 the duty of fair representation implicit in Section 9.
We pause to observe that, against the background of the present nationwide interest in discrimination for reasons of race, nationality, color or religion, and the natural tendency of human beings to attribute their lack of success to discrimination of one kind or another against them, it seems inevitable that the Board would be inundated with charges of this character, were we to sustain the ruling of the Board in this ease. The briefs of the NAACP and the Civil Liberties Union, as amici curiae, appear to assume that it is in the public interest to have such controversies channeled into the Board, where the remedy of reinstatement with back pay may be afforded, rather than leave them for decision by the courts. We are not so sure of this. See Cunningham v. Erie Railroad Company, 2 Cir., 1959, 266 F.2d 411. In any event, such matters of policy must be settled and determined by the Congress. In this case our task is not to fix policy but to interpret the statute and say what we think the Congress intended it to mean.
The decision of the Board in this case is the first and only one holding that discrimination, by way of unfair representation arising out of Section 9, constitutes a series of unfair labor practices under Section 8. We think a word *177or two on the subject of how the Board came to make such a ruling is appropriate by way of introduction to a discussion of the miscellaneous teachings of textwriters and the excerpts from numerous opinions of the courts that are relied upon by the parties and the amici curiae in their briefs.
When the case was last before us the Board took the view that Section 8 of the collective bargaining agreement vested in the Union exclusive control over the seniority status of the Company’s drivers, and that this was a perse violation. We did not agree with this contention, N. L. R. B. v. Miranda Fuel Co., supra, 2 Cir., 1960, 284 F.2d 861, but held instead that the Union and the Company had violated the statute by reducing Lopuch’s seniority without warrant for such action in the terms of Section 8 of the collective bargaining agreement, and that such reduction in seniority “constituted a delegation of power over seniority rights which improperly encouraged union membership and discriminated against the employee Lopuch,” 284 F.2d at page 863. After the Union filed a petition for certiorari, the Supreme Court handed down its decision in Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N. L. R. B., 1961, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11, discussed below. It is clear to us that this decision eliminated any probability that the Board’s original per se theory would find favor with the Supreme Court. And so the Board requested the Supreme Court to vacate the proceedings already had and to remand the case to the Board. The Board, however, as we have said, was not interested in getting at the real reasons and motives of the parties in connection with Lopuch’s demotion and the interpretation given by the parties to Section 8 of the collective bargaining contract. It was interested in establishing some soft of per se violations in this type of case. That is how the Board came up with the novel, if not quite revolutionary, theory that any “hostile” action by a union against one of its members “for irrelevant, unfair or invidious reasons,” in which action the employer acquiesces, and which “adversely affects (the) terms and conditions of employment,” constitutes a breach of the statutory duty of the union to be a fair and impartial representative, also “restrains and coerces the affected employees in the exercise of their guaranteed Section 7 right to bargain collectively through their chosen agent” and thus violates Section 8(b) (1) (A) and Section 8(a) (1). Further ramifications of the theory need not be described. This is the gist of it. Were we to support the doctrine thus propounded the power and jurisdiction of the Board would be vastly extended and increased; and it would seem that such jurisdiction would be primary and the courts would be entirely excluded from the adjudication of such cases. That is what makes the case so interesting and important.
I
Petitioner, in support of its order, relies upon numerous decisions stating in general terms the proposition that a union, as representative of a certain class or craft of workers owes those whom it represents a duty of fair representation. Most of these cases arose under the Railway Labor Act, 45 U.S.C. § 151 et seq., as amended, and, consequently, could not and did not hold that a mere failure on the part of a union fairly to represent the workers constituted an unfair labor practice within the meaning of the National Labor Relations Act, in the absence of discrimination that encourages or discourages membership in a labor organization. Moreover, in the cases thus relied upon by the Board, the violation of the duty of fair representation was held to give rise to a remedy enforceable by the courts, specifically stated to be by way of injunctive relief or an award of damages. See, e. g., Steele v. Louisville & Nashville Railroad, 1944, 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen, 1944, 323 *178U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Brotherhood of Railroad Trainmen v. Howard, 1952, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283; Ferro v. Railway-Express Agency, 2 Cir., 1961, 296 F.2d 847; Thompson v. Brotherhood of Sleeping Car Porters, 4 Cir., 1963, 316 F.2d 191.
Turning to the NLRB cases relied upon by petitioner we find each of them distinguishable. For example, in Wallace Corporation v. N. L. R. B., 1944, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216, decided before the 1947 Amendments to the NLRA and, therefore, raising different issues, the discrimination was plainly an unfair labor practice because based on prior affiliation with a particular union.
In International Union of Electrical Radio and Mach. Workers, AFL-CIO, Frigidaire, Local 801 v. N. L. R. B., 1962, 113 U.S.App.D.C. 342, 307 F.2d 679, cert, denied, 371 U.S. 936, 83 S.Ct. 307, 9 L.Ed.2d 270, an employee was discharged for failure to join a union as required by the collective bargaining agreement. The Act declares such discrimination to be an unfair labor practice, except in specified circumstances. The issue before the court was whether the exceptional circumstances were present, and resolution of this issue depended upon the narrow question of whether the union had fulfilled the obligations of fair dealing owed to an employee who had made a reasonable effort “to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership” as provided in Sections 8(a) (3) and 8(b) (2).
Two textwriters give some support to petitioner’s view. Professor Archibald Cox, now Solicitor General, expressed views in 1957, The Duty of Fair Representation, 2 Villanova L.Rev. 151, that seem to do little more than bring the pros and cons of the question to the attention of those interested in the subject, so the issue might not “go by default unless pressed more vigorously upon an early occasion.” Professor Michael I. Sovern, in The National Labor Relations Act and Racial Discrimination, 1962, 62 Colum.L.Rev. 563, reasons to the effect that where the union causes the discharge of a non-union employee because he is a Negro “the Negro workers are likely to assume that if they could only join the union, they would be allowed to work,” at page 570. See also pp. 587-9, 590-4, 608-13. Moreover, even if the principles supported in these Law Review articles were articulated in the same form as those expressed by petitioner in its decision in this case, they are contrary to the holdings of the adjudicated cases discussed below.
The Legislative History of the NLRA is not particularly illuminating on the issue before us. If anything the various expressions of Congressional intent would seem to indicate that the duty of the union to bargain as set forth in Section 8(b) (3) is merely the counterpart of the employer’s duty to bargain, expressed in Section 8(a) (5), and does not in this context impose an additional duty of fair representation. Cf. 93 Cong.Rec. 4021 (1947), 2 NLRB, Leg. Hist.L.M.R.A., 1947 at 1025. Moreover, we think the remark of Congressman Hartley, 93 Cong.Rec. 3425 (1947), 1 NLRB, Leg.Hist.L.M.R.A., 1947 at 616, to the effect that Section 8(b) (3) requires the union to represent the workingman “without discriminating against him for any reason, even if he is not a member of the union,” refers rather plainly to discrimination between members and non-members of the union.
We conclude that the authorities relied on by petitioner give little support for the novel principle sought to be established. The case against petitioner, however, is, we think, impressive and all but compelling.
II
To begin with, this case seems to be controlled by our recent decision in N. L. R. B. v. Local 294, International *179Brotherhood of Teamsters, 2 Cir., 1968, 817 F.2d 746, in which after examining the authorities, we concluded that:
“The union does not commit an unfair labor practice merely because it causes or attempts to cause an employer to promote or demote an employee or to discriminate for or against him. In Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), discrimination in seniority which was adopted at the behest of the union was found unexceptionable. In Aeronautical Industrial District Lodge 727 v. Campbell, 337 U.S. 521, 69 S.Ct. 1287, 93 L.Ed. 1513 (1949), the Court gave its approval to super-seniority for union officials which was, of course, a practice proposed by the union. Local 357, International Brotherhood of Teamsters, etc. v. N. L. R. B., 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961), held that it was not an unfair labor practice for a union to cause the discharge of an employee because he was hired ahead of other men to whom the union had assigned preference. See also Alvado v. General Motors Corp., 303 F.2d 718(2d Cir.), cert, denied, 371 U.S. 925, 83 S.Ct. 293, 9 L.Ed.2d 233 (1962).
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“These authorities establish the 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. Section 8(b) (2) is violated only by causing or attempting to cause ‘an employer to discriminate against an employee in violation of [Section 8(a) (3)]’. An employer who discriminates among employees does not violate Section 8(a) (3) unless the discrimination is based upon union membership or other union-connected activities. It is obvious, for example, that the employer’s promotion or the demotion of an employee who is a union official is not a violation of the Act unless the discrimination for or against him is based on his union activity. It seems to us to be equally obvious that the union’s seeking such a promotion or demotion would not constitute an unfair labor practice if the union’s action was based upon the employee’s merit or demerit and was unconnected with his union membership or activity.
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“The conclusion of the Board that an employer commits an unfair labor practice if he changes an employee’s conditions of employment at the instance of the union, is not only contrary to the letter and spirit of the Act and to the precedents, but is based on a view of labor-management policy which is certain to have untoward consequences. There are countless situations in which the very concept of collective action demands that unions have the power to influence the employer to make changes in the job status of individual employees. To hold that unions cannot properly press upon an employer their demands for an employee’s advancement or demotion would be to weaken greatly the union’s effectiveness in representing all the employees in a unit. The policy of the Board is all the more mistaken if it is based upon disapproval of the union’s motives in the instant case. Not only is the Board without authority to pass upon the wisdom or the desirability of a union’s actions as long as those actions are not forbidden by the Act, but the principle applied by the Board would be equally applicable to actions which are clearly beneficial to the majority of employees. See Ford Motor Co. v. Huffman, and Aeronautical Industrial District Lodge 727 v. Campbell, supra.” [At 748, 749 and 751, of 317 F.2d, footnotes omitted.]
*180We agree with the reasoning of the opinion just quoted.
Indeed, we do not see how any other view is compatible with the reasoning of the Supreme Court in Local 357, International. Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America v. N. L. R. B., supra, 1961, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11, the ease that led to the remand of Miranda to the Board for further proceedings. In effect the court there held that practically everything a union does encourages union membership, and that it is necessary in a particular case to show that the acts complained of were done with the unlawful intent and purpose of encouraging employees to join the union. It is not enough merely to show that the employer discriminated among employees at the behest of the union. An unfair labor practice has been committed only if the discrimination was deliberately designed to encourage membership in the union.
The result we thus reach is, we think, the only one consistent with the fundamental scheme of the Unfair Labor Practices portion of the National Labor Relations Act. This basic purpose, as we see it, relates to the interrelationship between employers and labor organizations on the one hand, and the interrelationship between labor organizations and union and non-union employees, on the other, all in a perfectly plain context of the effect of such interrelationships, and activities of one kind and another arising out of such interrelationships, on unions and on union membership. The machinery of the Board and the remedies applied in the enforcement of findings of unfair labor practices, as defined in the Act, are not suited to the task of deciding general questions of private wrongs, unrelated to union activities, suffered by employees as a result of tortious conduct by either employers or labor unions.
Enforcement denied.