(dissenting) :
With deference, I cannot agree with my brothers. I accept the Trial Examiner’s finding that “from September 1963 through March 1965, a period of a year and a half, no one, white or Negro, was allowed to register for employment through Local 1351’s hiring hall, and that only persons whose applications had already been accepted by September 1963, were thereafter referred for work.” The Trial Examiner also found that “ * * * other [than racial] factors legitimate enough by themselves, also motivated the Union to call a halt to registrations.” (Emphasis added.) What my brothers overlook is that, in addition to “valid non-racial reasons for adopting the temporary policy of refusing all applications for registration,”1 the Trial Examiner specifically found “that the Union was motivated in September, 1963, to adopt its policy of rejecting all applicants because it wished to continue rejecting Negroes.” (App. 20.) He also referred to “the well-founded suspicion that the freeze was continued so long merely to keep Negroes out for as long as possible.” (Emphasis added.) (App. 17.)
The Board agreed with the Trial Examiner’s finding that the “freeze” policy “was motivated by the Union’s wish to continue rejecting Negroes’ applications.” (App. 35.) Only a short time before adopting the freeze, “the Executive Board and the Local’s membership voted to continue to bar Negroes from membership and from obtaining work through the Local’s hiring hall.” (App. 34, 35.) That fact, together with the answers given to Negroes when they at*590tempted to register, and the fact that the freeze continued for a year and a half clearly constitute substantial evidence to establish a reasonable inference that the freeze was racially motivated.2 That being true, the Board’s conclusion that racial discrimination motivated the Union’s refusals to allow the charging parties to register during the six-month period seems inescapable.
I agree with the well-reasoned decision of the Board.3 Indeed, I am so thoroughly convinced that the Board’s decision is sound that I take the liberty of quoting at length the following pertinent part of that decision:
“The Trial Examiner found the existence of a Union policy of rejecting Negro applicants at the Union’s hiring hall prior to September 1963. He also found, and we agree, that the adoption by the Union in September 1963 of a ‘freeze’ policy, whereby all applicants, white or Negro, were to be denied registration, was motivated by the Union’s wish to continue rejecting Negroes’ applications. Nevertheless, the Trial Examiner concluded that since under the Union’s ‘freeze’ policy, the practice of refusing registrations was not directed against some applicants because of their race but was directed against all applicants, because of an excess of registrants entitled to referral through the hiring hall, the practice of rejecting all applicants not being illegal on its face could only be converted into an illegal action by relying solely on a time-barred event, 1. e., the pre-September 1963 rejection of Negroes’ registration for job referrals.6
“8. The uncontradicted testimony of the Charging Parties is that at no time when they made application to the Union were they told that the reason for refusal was because of the ‘freeze policy.’ To the contrary, they they were informed, in substance, that the Local was not accepting applications from Negroes.
“It is true that a mere surface statement of the Union’s ‘freeze’ policy, i. e., that no further applicants will be registered regardless of race, would not itself indicate whether a racially discriminatory factor is intrinisically [sic] built into its implementation, except to the white members and nonmembers who made use of the hiring hall and also to Negro applicants who had knowledge of the Union’s racially discriminatory practices.7
“7. Local Union No. 269, International Brotherhood of Electrical Workers, AFL-CIO (Mercer County Division, etc.), 149 NLRB 768, enfd. 357 F.2d 51 (C.A. 3).
But the racial impact of the ‘freeze’ policy does become plainly revealed upon consideration of the background of elucidating union conduct preceding the adoption of such policy. Consideration of such relevant background is clearly proper in ascertaining the ingredients of the freeze policy and in determining what is really involved in the present maintenance of such practice. In thus appraising the policy, needless to say, we are not passing upon the validity of the Union’s conduct during the pre-10(b) period before the freeze;8 rather we de-
“8. "We make reference here to these events as evidence to be considered only for background. Local Lodge No. 1424, International Association of Machinists v. N. L. R. B., 362 U.S. 411, 424 [80 S.Ct. 822, 4 L.Ed.2d 832].
cide only whether the maintenance and continuation of the practice presently entails a preference in employment referrals on the basis of race alone, that would be violative of Section 8(b) (1) (A) and (2) of the Act.
“The Union, a white local, by its act of ‘freezing’ its registrations effectively created a pool of white employees which constituted a preferred class in employment with the attendant benefits of seniority and possible attainment of union membership.9 As a consequence, up un-
“9. This pool, in fact, continued as a source of the Union’s job referrals up to the summer of 1965 at which latter time the Union adopted an alleged nondiscrimina*591tory policy and opened its registrations. It is to be noted that the Union’s new policy followed the filing of the charges . herein and the enactment of the Civil Rights Act of 1964 which became effective July 2, 1965.
til the summer of 1965, when Local 1351 adopted for the first time an alleged nonracial policy,10 a preferential hiring
“10. This, as fully described by the Trial Examiner in his Decision, is not an issue here, and we make no findings with respect to such new policy,
arrangement continued in effect which barred Negroes. In our opinion, the fact that this ‘freeze’ policy was adopted by the Union more than 6 months prior to the filing of the charges herein, does not detract from the further fact that the Union’s racially discriminatory policy was, as a result of such ‘freeze,’ continued and maintained from the time of its inception, through the time the charges were filed and subsequent thereto. We find, contrary to the Trial Examiner, that by adopting a practice which in operative effect created a preferred class in employment, the result was that the Union’s previous policy of discrimination against Negroes as to job opportunities solely on the basis of race was continued and maintained. Accordingly, the Union, by rejecting the Charging Parties’ applications for registration for referral, breached its duty of fair representation and as a result engaged in unfair labor practices in violation of Section 8(b) (1) (A) and (2) of the Act.11
“11. See Vaca v. Sipes [386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842],
“The Trial Examiner in his Decision cited Bryan Manufacturing Co.,12 as
“12. Local Lodge No. 1424, International Association of Machinists v. N. L. R. B. (Bryan Manufacturing Co.), 362 U.S. 411 [80 S.Ct. 822, 4 L.Ed.2d 832],
controlling with respect to the Section 10(b) issues in this case. Here, we are not dealing with a situation where a violation of the Act depended wholly on proof of a prior state of events outside the Section 10(b) period as in Bryan. To the contrary, here the maintenance of an illegally preferred group and the consequent unlawful rejection of the Charging Parties because of their race continued through the 10(b) period. Thus, the record shows that Leon A. Phelps, a Negro and one of the Charging Parties herein, a number of times during 1964, including a visit a few days prior to Thanksgiving 1964, inquired at the hiring hall if there had been any change in the Local’s policy with regard to the hiring of Negroes. At all times Phelps was denied the right to register and was informed in substance by the Local’s agents that the matter of registering ‘colored’ was being worked on but no final decision had been made. Phelps again, on March 11, 1965, visited the hiring hall and asked Casey, who had become president of the Local in January 1965, if there had been any change in the Local’s position about putting ‘colored’ people to work. Casey informed Phelps the Local was working on it, patience was needed, and that eventually some ‘colored’ people would get work. Nothing more specific was offered by Casey. As a result of this conversation, Phelps on the same day filed his charge herein. On the morning of March 12, 1965, Phelps and the other Charging Parties again called at the hiring hall and again inquired of Casey if there wasn’t a chance of getting some work through the hiring hall. Casey replied, ‘Yes, I think you are going to work here.’ However, when Phelps inquired if the Charging Parties could register then and there, Casey gave, the Charging Parties for the first time a new reason why the Charging Parties could not register. This was to the effect that the Union had a lot of misfits on its rolls that had to be gotten rid of, that the Local was not accepting applications even from whites, and that the Local had a backlog of applications. The Charging Parties were not informed when, if ever, they could register, or whether the Local was contemplating the adoption of a new, nondiscriminatory procedure. The result was that that afternoon the rest of the Charging Parties filed their indi*592vidual charges herein. Since the preferred group continued to exist beyond the time of the filing of the charges herein, the refusals of employment to the Charging Parties solely on the basis of race, as evidenced in the record, within the 10(b) period, establish the violations independently of the time of the initial establishment of the ‘freeze’ policy. Accordingly, we find contrary to the Trial Examiner, that the Union by such conduct engaged in unfair labor practices which were not barred by Section 10(b) of the Act.13
“13. Local Union No. 269, IBEW, AFL-CIO (Mercer County Division, NECA, ETC.), 149 NLRB 768, enfd. 357 F.2d 51 (C.A. 3).”
I therefore respectfully dissent.
. Majority opinion, p. 586.
. See Pratt & Whitney Aircraft Division, etc. v. N. L. R. B., 5 Cir. 1962, 310 F.2d 676, 679; N. L. R. B. v. Clement Brothers Company, 5 Cir. 1969, 407 F.2d 1027, 1030.
. Reported at 168 N.L.R.B. No. 83.