(dissenting).
Although there are several ways to approach this case, all of them, in my view, require us to sustain the Labor Board’s finding against the union under § 8(b) (2) and against the employer un*181-der § 8(a) (3).1 Since we-had unanimously granted enforcement of this very ■order, 284 F.2d 861 (1960), and the precise issue here presented has not reached the Supreme Court, it would be reasonable to demand a pinpointing of what in that Court’s decisions is now thought to demand a different result. Under a second approach we might ask whether, if a member aggrieved by arbitrary union action must first exhaust administrative remedies because trial of an action might turn up evidence that the discrimination against him was for infraction of a union “rule” and thus would be “arguably subject” to the Board’s jurisdiction even on my brothers’ reading of the statute, Local 100 of United Ass’n of Journeymen and Apprentices v. Borden, 373 U.S. 690, 695, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963); Local No. 207, International Ass’n of Bridge, Structural, and Ornamental Iron Workers Union v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646 (1963),2 it is really necessary that we prolong the exhaustion by sending the impecunious plaintiff back to the courts when the Board finds the union’s action to have been wholly arbitrary. But I think it best in the first instance to heed the advice that “[t]o ascertain what Congress meant * * * we would do well to begin by carefuly attending to what Congress said.” Shapiro v. United States, 335 U.S. 1, 39, 68 S.Ct. 1375, 1395, 92 L.Ed. 1787 (1948) (Mr. Justice Frankfurter dissenting).
What the National Labor Relations Act makes an unfair labor practice is for an employer “by discrimination in regard to hire or tenure of employment * * * to encourage or discourage membership in any labor organization,” § 8(a) (3), and for a union “to cause or attempt to cause an employer” to do so, § 8(b) (2). Congress did not say “to discriminate in regard to hire or tenure of employment because of membership in any labor organization,” — language which, indeed, would not support the result here reached by the Board. Neither did it define the unfair labor practice as being discrimination “in order to encourage or discourage membership in any labor organization.” What Congress forbade was “to encourage or discourage membership in any labor organization” by “discrimination in regard to hire or tenure of employment.”3 Our task is to determine whether the Board’s findings that the union’s and Miranda’s actions had done that were within the Board’s power to make.
Although “In common parlance, the word [to discriminate] means to distinguish or differentiate,” 365 U.S. at 689, 81 S.Ct. at 847, 6 L.Ed.2d 11 (dissenting opinion), it more often means, both in common and particularly in legal parlance, to distinguish or differentiate without sufficient reason. Compare United States v. Illinois Central R., 263 U.S. 515, 521, 44 S.Ct. 189, 68 L.Ed. 417 (1924). A teacher thus does not “discriminate” simply by failing a student in an examination, although he would by doing so against his own judgment at outside dictation. This is a sufficient reason why, as said by Mr. Justice Harlan concurring in Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N. L. R. B., 365 U.S. 667, 679, 81 S.Ct. 835, 842, 6 L.Ed.2d 11 (1961), “an employer may discharge an employee because he is not performing his work *182adequately, whether or not the employee happens to be a union organizer”; the statement also rests soundly on the basis, evidently favored by Mr. Justice Harlan, that Congress did not mean “discourage” to include the kind of discouragement there mentioned — it had no interest in making labor organizations havens for the inefficient. See S.Rep. No.573, 74th Cong. 1st Sess. 11. For similar reasons, once the hiring hall agreement in the Local 357 case was pronounced valid, Slater’s discharge for violating it was neither a “discrimination” nor a forbidden “encouragement.”
Our case is different. The union caused Miranda to “discriminate” against Lopuch in regard to hire or tenure of employment, not simply in the broad sense of “distinguishing” between Lopuch and his fellows but in the invidious sense of doing this without a proper basis. What the union did cannot be defended as enforcing a valid contract, as in the Local 357 case; its action, as we said three years ago, was “against and not under the agreement.” 284 F.2d at 863. The Board was further warranted in finding that the union’s act in compelling an unwilling employer to drop a valued employee of eight or nine years’ standing to the lowest position on the seniority list because, with the employer’s advance permission, he had gone off for the summer after finishing his work on a Friday night instead of waiting over for the following Monday, was not in good faith but rather was an arbitrary exercise of power.4 We thus reach the issue whether the Board could law*183fully conclude that demotion thus unjustifiably procured would “encourage or discourage membership in any labor organization.”
Let us vary the instant case to the extent only of assuming that the contract had no union security clause and the victim was not a union member. If English words are to receive their ordinary meaning, I cannot see how it could fairly be denied in such a case that the employer’s yielding to unwarranted demands by a union delegate or shop steward at the instance of union members would “encourage * * * membership in any labor organization”; the nonmembers would think they had better get at least that much closer to the source of power. “ * * * [I] t is common experience that the desire of employees to unionize is raised or lowered by the advantages thought to be attained by such action.” Radio Officers’ Union of Commercial Telegraphers Union, AFL v. N. L. R. B., 347 U.S. 17, 51, 74 S.Ct. 323, 341, 98 L.Ed. 455 (1954). If this be so, the argument against the Board’s position must be that arbitrary union action causing an employer to discriminate against an employee is an unfair labor practice onfy when the victim is a nonmember rather than a member or a “bad” member rather than a “good” member. ■Congress, it is said, imposed no liability on unions for applying power on employers to discriminate against members for no reason, although making unions liable when they did this, as in the Radio •Officers case, 347 U.S. at 29-30, 74 S.Ct. at 329-330, 98 L.Ed. 455, for what they considered a good reason but proved to be a mistaken one.
Although that would seem curious legislation, we would have to apply it if it was what Congress enacted. But it is not — my brothers’ view is too myopic. The Board is entitled to look beyond the particular case, cf. Brooks v. N. L. R. B., 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954); it may consider the effect which union power plays against members will have not only in union shops but in nonunion shops. It could properly conclude that any such demonstration of union power to cause an employer to discriminate will lead non-members to become members in non-union shops, in the belief that by so doing they will eliminate at least one basis for a union delegate or shop steward causing the employer to take arbitrary action against them. As was said in the Radio Officers case, 347 U.S. at 51, 74 S.Ct. at 341, 98 L.Ed. 455, “the Act does not require that the employees discriminated against be the ones encouraged for purposes of violations of § 8(a) (3). Nor does the Act require that this change in employees’ ‘quantum of desire’ to join a union have immediate manifestations.”
Even if the Board had been required to limit its consideration to “encouragement” within the Miranda Fuel Company, it could fairly conclude that action like that of the union here might tend to cause union members to be “good” members rather than “bad, or indifferent members.” 347 U.S. at 40, 74 S.Ct. at 335, 98 L.Ed. 455. There is said to be no reason for members to decide they had better be “good” members when they don’t know that the reason why the victim was victimized was his being a bad one. But they also don’t know that *184it wasn’t. History teaches that it is precisely this kind of fear and uncertainty that encourages people to be servile to those who can wield arbitrary power. See Mr. Justice Douglas dissenting in United States v. Wunderlich, 342 U.S. 98, 101, 72 S.Ct. 154, 96 L.Ed. 113 (1951).
It must also be emphasized that the question is not whether we would think that to countenance the exercise of unrestrained union power to cause discrimination against a member would “encourage” union membership but whether the Board might reasonably think so. As the Supreme Court said in the Radio Officers case, 347 U.S. at 51, 74 S.Ct. at 341, 98 L.Ed. 455, “Encouragement and discouragement are ‘subtle things’ requiring ‘a high degree of introspective perception.’ Cf. N. L. R. B. v. Donnelly Garment Co., 330 U.S. 219, 231 [67 S.Ct. 756, 91 L.Ed. 854].” One of the main purposes for creating an agency like the Board “is to have decisions based upon evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration.” Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 800, 65 S.Ct. 982, 986, 89 L.Ed. 1372 (1945). See also Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). The Board knows the facts of life in the labor world better than we ever can; we ought not upset its conclusion as to “encouragement” unless we can say this is without rational basis. Compare United States v. Detroit and Cleveland Navigation Co., 326 U.S. 236, 241, 66 S.Ct. 75, 90 L.Ed. 38 (1945). If the Board had determined that the “encouragement” to union membership afforded by arbitrary union action unrelated to infraction of union rules did not rise to the level required by the statute, we could not properly interfere. Neither may we do so when it has made the opposite determination.
No decision of the Supreme Court requires a contrary conclusion. It is true that in the cases of Boston and Fowler, dealt with in the Radio Officers opinion, “The purposes of the unions in causing * * * discrimination clearly were to encourage members to perform obligations or supposed obligations of membership,” 347 U.S. at 52, 74 S.Ct. at 342, 98 L.Ed. 455 — the payment of dues in the absence of a valid union security agreement in Boston’s case, adherence to what the union erroneously thought to be a hiring hall agreement in Fowler’s. But there is no warrant for a view that by sustaining the Board’s conclusion that enforcement of the union “rules” there at issue would encourage union membership, the Court meant to preclude the Board from finding that arbitrary action by a union against a member might also do this. In addition to the passages of the opinion already quoted, there are the emphatic statements “that specific evidence of intent to encourage or discourage is not an indispensable element of proof of violation of § 8(a) (3)”; that “an employer’s protestation that he did not intend to encourage or discourage must be unavailing where a natural consequence of his action was such encouragement or discouragement” — as in the case of enforcement of an invalid no-solicitation rule by an employer having no anti-union animus, Republic Aviation Corp. v. N. L. R. B„ 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); that “subjective evidence of employee response * * * is not required where encouragement or discouragement can be reasonably inferred from the nature of the discrimination”; that the Board can draw reasonable inferences; and, most .significantly, that “encouragement of union membership is obviously a natural and foreseeable consequence of any employer discrimination at the request of a union * * * ” 347 U.S. at 44, 45, 48-51, 52, 74 S.Ct. at 338, 341, 342, 98 L.Ed. 455 — remembering also that “the Act does not require that the employees discriminated against be the ones encouraged * * * ” 347 U.S. at 51, 74 S.Ct. at 341, 98 L.Ed. 455. These were the *185principles which led us to grant enforcement of this very order three years ago.
The claim that all this was shattered by Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N. L. R. B., 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961), rests upon what I consider a misreading of that case. The Board had there applied its ruling, laid down with retroactive effect in Mountain Pacific Chapter, 119 N.L.R.B. 883 (1958), that all union hiring hall agreements were per se discriminatory unless they contained certain prescribed provisions.5 The sole issue was whether the very making of a hiring hall agreement that had not contained these provisions was a violation of the Act — despite the inclusion of a nondiscriminatory clause, the absence of evidence of actual discrimination against non-members, and the impossibility of having foreseen the requirements which the Board was to lay down. See Mr. Justice Harlan’s concurring opinion, 365 U.S. at 677-678, 81 S.Ct. at 840-841, 6 L.Ed.2d 11. The plurality opinion, by Mr. Justice Douglas, concluded that since the legislative history demonstrated that Congress did not intend to outlaw the union hiring hall,6 “discrimination cannot be inferred from the face of ^the instrument when the instrument specifically provides that there will be no discrimination * * 365 U.S. at 675, 81 S.Ct. at 839, 6 L.Ed.2d 11. The concurring opinion, by Mr. Justice Harlan, went on the ground “that the Act was not intended to interfere significantly with those activities of employer and union which are justified by nondiseriminatory business purposes, or by nondiscriminatory attempts to benefit all the represented employees,” and that the Board had not found that the hiring hall “clause was without substantial justification in terms of legitimate employer or union purposes.” 365 U.S. at 682, 684, 81 S.Ct. at 843, 6 L.Ed.2d 11. I see nothing in either opinion to support the view that the only “discrimination” forbidden is between members and non-members, or between good members and bad members. Although discrimination of that sort would almost certainly encourage or discourage union membership, the opinions do not say these are the only kinds of discrimination which the Board may find will have that effect. The Local 357 decision did indeed validate our previous refusal in this case, 284 F.2d at 863, following Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N. L. R. B., 266 F.2d 552 (2 Cir. 1959), to uphold the Board’s ruling that union participation in the administration of seniority was per se unfair. But nothing in Local 357 indicates that the result there would have been the same if the union had caused Slater’s discharge arbitrarily and without the protection of a valid hiring hall agreement.
My brothers rely heavily on N. L. R, B. V. Local 294, International Brotherhood of Teamsters, 317 F.2d 746 (2 Cir. 1963). The facts in that case were quite different. Monty, the employee there disfavored by the union’s action, had no contractual right to priority over the two other extra drivers, and neither the intermediate report of the examiner nor *186the decision of the Board, 137 N.L.R.B. 1023 (1962), shows any reason save employer preference why he had been given first call. It may well be that union insistence on equitable work rotation when the contract is silent neither works a discrimination nor can be rationally found to encourage union membership; in any event that is a quite different issue from the one here. Compare N. L. R. B. v. Local 542, International Union of Operating Engineers, 255 F.2d 703, 705 (3 Cir. 1958). Moreover, the trial examiner in the Local 294 case had not considered the union’s belief that Monty was “no good” and “a troublemaker” to be unreasonable, or its desire “to keep this job open where a man out of work can pick up a few days’ work now and then” to be specious, and this court found there was no evidence to support the Board’s conclusion that the reason assigned by the union was a “pretext.” 317 F.2d at 749 fn. 5. Thus the actual holding was simply that when a union induces an employer to make a non-discriminatory decision against an employee, it has not engaged in an unfair labor practice, 317 F.2d at 750. If the opinion was intended to go beyond that and to read the Local 357 decision as holding that arbitrary union action to force an employer to deal with a member as he could not properly do under the governing contract was necessarily outside the Act, I would be constrained rather to follow our previous decision in this case, which, as I see it, properly applied the statute as construed in Radio Officers and remains untouched by Local 357.7
. Because of this I have no occasion to consider the Board’s alternative ground of decision based on § 8(a) (1) and (b) U).
. In the Perko case there was nothing to suggest infraction of any union “rule” in the ordinary sense of that term; the union caused Perko to lose his job because he had taught members of another craft how to perform contested work. See also Barunica v. United Hatters, Cap and Millinery Workers, Local No. 55, 321 F.2d 764 (8 Cir. 1963), where the complaint alleged only a discriminatory non-referral.
. The House Report on the Wagner Act said that § 8(a) (3) outlawed discrimination “which tends to ‘encourage or discourage membership in any labor organization.’ ” H.R.Rep.No.1147, 74th Cong., 1st Sess. 21.
. I am unable to follow the criticisms of the Board’s failure to take further evidence and make additional findings and of its allegedly not being interested in the real reasons and motives of the parties but rather in establishing a theory of pet' se violation. We held some years ago that the Board was warranted in finding this union’s action to be “in conflict with the agreement” and “against and not under the agreement,” 284 F.2d at 863, and we referred to Lopuch as a “victim.” Memorandum of Judges Swan and Olark, denying rehearing, dated December 27, 1960. The Board could scarcely have been expected to guess that factual findings which had previously proved so satisfactory to us would now cease to be; the remand requested from the Supreme Court was to enable the Board to consider whether the Local 357 case had established principles requiring a different result as a matter of law. If additional findings were needed, I am at a loss to understand why the Supplemental Decision’s references to the Union as “acceding to the unjustified pressures of some employees within the unit” and as having exercised “an arbitrary power” do not fill the bill.
Neither do I understand how we can now say, contrary to our prior unanimous ruling, that these findings were not warranted by the evidence. As the Board held, 125 NLRB 454, 455-57 (1959), without disapproval by us, 284 F.2d at 862-863, § 8 of the collective bargaining agreement did not apply to Lopuch at all. It concerned only an “employee who according to seniority would not have steady employment” in the slack season; the undisputed testimony was that Lopuch would have had this. What the clause said in readily understandable English was that a driver whose position would give him only occasional work during the slack season did not have to hang around all summer in order to preserve his seniority, provided only that he got back in time; its purpose was to help junior workers, not to harm senior ones. Nothing gave the slightest warrant for supposing that it prevented the employer from treating an older employee like Lopuch as decent human relations dictated. Moreover, as we pointed out before, 284 F.2d at 863, the Draconian penalty of total forfeiture of seniority accrued over many years (as distinguished from possibly dropping a place or two in the list as a result of summer work by others) was hinged only to failure to report back promptly on October 15, a failure which the union admit-ed was excused by Lopuch’s illness. With this background the testimony amply supported the inference that the action of the union delegate and shop steward represented, not an honest though mistaken conviction as to the meaning of the contract, hut rather a yielding to the demands of the other drivers that the union should use any pretext to advance them at Lopuch’s expense. Such inference drawing is the Board’s business — not ours. Radio Officers’ Union of Commercial Telegraphers Union, AFL v. N. L.R.B., 347 U.S. 17, 48-52, 74 S.Ct. 323, 98 L.Ed. 455 (1954). As I read the dissenting opinion of Chairman McCulloch *183anti Member Fanning, 140 NLRB No. 7 (1962), they did not challenge the majority’s finding of arbitrariness but disagreed on the ground that there was no “legally tenable distinction,” fn. 28, between a case where a union demands a loss of seniority pursuant to a contract provision and another where arbitrary union action produces the same result.
On the other hand, if the union was not acting arbitrarily against Lopuch but was creating a general rule that no member could leave before April 15 without forfeiting seniority, this would seem, as the majority of the Board suggested, to be a union “rule” — quite as much as the practice evidently considered to be one in Local No. 207, International Ass’n of Bridge, Structural and Ornamental Iron Workers Union v. Perko, supra, 373 U.S. at 707, 83 S.Ct. at 1432, 10 L.Ed.2d 646. See also Brunswick Corp., 135 NLRB 574 (1962).
. The Ninth, and Sixth Circuits had declined to recognize the Mountain Pacific rule, N.L.R.B. v. Mountain Pacific Chapter, 270 F.2d 425 (9 Cir. 1959); Morrison-Knudsen Co. v. N.L.R.B., 276 F.2d 63 (9 Cir. 1960), cert, denied, N.L.R.B. v. Hod Carriers, Bldg, and Common Laborers Union of America, 366 U.S. 910, 81 S.Ct. 1082, 6 L.Ed.2d 233 (1961); N.L.R.B. v. E. & B. Brewing Co., 276 E.2d 594 (6 Cir. 1960), cert, denied, 366 U.S. 908, 81 S.Ct. 1083, 6 L.Ed.2d 234 (1961). The First Circuit had upheld it, N.L.R.B. v. Local 176, United Brother bood of Carpenters, 276 F.2d 583 (1960), as had the District of Columbia Circuit, 107 U.S.App.D.C. 188, 275 F.2d 646, in the decision under review.
. The opinion, 365 U.S. at 673, 81 S.Ct. at 838, 6 L.Ed.2d 11, quoted Senator Taft’s explanation, “In order to make clear the real intention of Congress, it should be clearly stated that the hiring hall is not necessarily illegal.” S.Rep. No. 1827, 81st Cong., 2d Sess., pp. 13, 14.
. I cannot share my brother Medina’s qualms that sustaining the Board’s ruling as to § 8(a) (8) and (b) (2) will steer grievances of union members as to arbitrary union action away from the courts and toward the expert agency which Congress created to deal with labor matters. That would seem a rather good place for them to be. This is particularly so since the aggrieved employee’s ability to proceed in court against the employer is seriously limited by the usual arbitration provisions which only the union can enforce, see Black-Clawson Co., Paper Mach. Division v. International Ass’n of Machinists, 313 F.2d 179 (2 Cir. 1962), and Belk v. Allied Aviation Service Co., 315 F.2d 513 (2 Cir. 1963), and particularly Judge Clark’s concurring opinion, 315 F.2d at 517-518, and an action by him against either the employer or the union is likely to encounter the primary jurisdiction and “argupJJy subject” doctrines so that he must make an excursion to the Board in any event. See note 2, supra, and the text to which it relates.