concurring.
I join the Court's opinion upon considerations which, though doubtless implicit in what my Brother Douglas has written, in my view deserve explicit articulation.
The Board’s condemnation of these union “hiring hall” procedures as violative of §§ 8 (a)(1), 8 (a) (3), 8 (b) (1), and 8 (b) (2) of the National Labor Relations Act, as amended by the Taft-Hartley Act,1 ultimately rests on a now well-established line of circuit court cases to the effect that a clause in a collective bargaining agreement may, without more, constitute forbidden discrimination. See, e. g., Red Star Express Lines v. Labor Board, 196 F. 2d 78. While seeming to recognize the validity of the proposition that contract terms which are equivocal on their face should ordinarily await an independent evaluation of their actual meaning and effect2 before being *678deemed to give rise to an unfair labor practice, such cases have justified short-circuiting that course upon these considerations: The mere existence of a clause that on its face appears to declare preferential rights for union members encourages union membership among employees or job applicants, persons not privy to the undisclosed intent of the parties, yet affected by the apparent meaning of the contract. Hence the mere possibility that such a clause may actually turn out not to have been administered by the parties so as to favor union members is not enough to save it from condemnation as an unlawful discrimination.
I think this rationale may have validity under certain circumstances, but that it does not carry the day for the Board in these cases. The Board recognizes, as it must, that something more than simply actual encouragement or discouragement of union members must be shown to make out an unfair labor practice, whether the action involved be that of agreeing to a contract term or discharging an employee or anything else. In this regard, it contends that the action of agreeing to the union “hiring” clause should be treated like any other employer or union action and that, on this premise, all that the Board must show in the light of Radio Officers’ Union v. Labor Board, 347 U. S. 17, is that the tendency to encourage or discourage union membership was foreseeable to the employer or union. Since one is presumed to intend the foreseeable consequences of his acts, and since acting in order to encourage or discourage union membership is forbidden, the Board's case is said to be made by a simple showing that such encouragement or discouragement is the foreseeable result of employer or union action. The Board then concludes with a showing that encouragement of union membership is a foreseeable consequence of the acts of agreeing to or operating a union-run hiring hall.
*679Though, as will appear (infra, p. 681), I believe the Board erroneously construed this Court’s decision in Radio Officers, I do not think we can reverse its finding of “encouragement.” While I agree with the opinion of the Court that the Board could not infer from the mere existence of the “hiring hall” clause an intent on the part of employer or union to discriminate in favor of union status, I think it was within the realm of Board expertness to say that the natural and foreseeable effect of this clause is to make employees and job applicants think that union status will be favored. For it is surely scarcely less than a fact of life that a certain number of job applicants will believe that joining the union would increase their chances of hire when the union is exercising the hiring function.
What in my view is wrong with the Board’s position in these cases is that a mere showing of foreseeable encouragement of union status is not a sufficient basis for a finding of violation of the statute. It has long been recognized that an employer can make reasonable business decisions, unmotivated by an intent to discourage union membership or protected concerted activities, although the foreseeable effect of these decisions may be to discourage what the act protects. For example, an employer may discharge an employee because he is not performing his work adequately, whether or not the employee happens to be a union organizer. See Labor Board v. Universal Camera Corp., 190 F. 2d 429. Yet a court could hardly reverse a Board finding that such firing would foreseeably tend to discourage union activity. Again, an employer can properly make the existence or amount of a year-end bonus depend upon the productivity of a unit of the plant, although this will foreseeably tend to discourage the protected activity of striking. Pittsburgh-Des Moines Steel Co. v. Labor Board, 284 F. 2d 74. A *680union, too, is privileged to make decisions which are reasonably calculated to further the welfare of all the employees it represents, nonunion as well as union, even though a foreseeable result of the decision may be to encourage union membership.
This Court’s interpretation of the relevant statutory provisions has recognized that Congress did not mean to limit the range of either employer or union decision ,to those possible actions which had no foreseeable tendency to encourage or discourage union membership or concerted activities. In general, this Court has assumed that a finding of a violation of § 8 (a) (3) or § 8 (b) (2) requires an affirmative showing of a motivation of encouraging or discouraging union status or activity. See, e. g., Labor Board v. Jones & Laughlin Co., 301 U. S. 1, 45-46; Universal Camera Corp. v. Labor Board, 340 U. S. 474. There have, to be sure, been exceptions to this requirement, but they have been narrow ones, usually analogous to the exceptions made to the requirements for a showing of discrimination in other contexts. For example, in Republic Aviation Corp. v. Labor Board, 324 U. S. 793, the Court affirmed a Board decision that a company “no solicitation” rule was overbroadly applied to prevent solicitation of union membership on company property during periods when employees were otherwise free to do as they pleased. A finding of a motivation to discourage union membership was there held unnecessary because there was no employer showing of a nondiscriminatory purpose for applying the rule to union solicitation during the employees’ free time. A similar absence of a significant business justification for the employer’s acts which tended to discourage union activity explains the dis-pensability of proof of discriminatory motivation in Allis-Chalmers Mfg. Co. v. Labor Board, 162 F. 2d 435, Cusano v. Labor Board, 190 F. 2d 898, and Labor Board v. Industrial Cotton Mills, 208 F. 2d 87.
*681Another field of exceptions to the requirement of a showing of a purpose to encourage or discourage union activity is found in the Court’s affirmance of the Second Circuit in Gaynor News Co., Inc., v. Labor Board, 347 U. S. 17, a companion case to Radio Officers: If a union or employer is to be permitted to take action which substantially — though unintentionally — encourages or discourages union activity, the union or employer ends served by the action must not only be of some significance, but they must also be legitimate, or at least not otherwise forbidden by the National Labor Relations Act. In Gaynor an employer who, pursuant to a nondiscriminatory business end of paying the least wages possible, agreed with the union which was the statutory representative of the employees to give certain benefits only to union members, was prevented from asserting the justifying business reasons for thus encouraging union membership because of his complicity in the union’s breach of its duties as agent for all the employees. Indeed, the fact that a nondiscriminatory business purpose forbidden by the Act cannot be used by an employer to justify an action which incidentally encourages union membership, seems to me to be the true basis of the Court’s holding in Radio Officers that an employer violates § 8 (a) (3) when a union forces him to take actions in order to encourage union membership. The employer’s nondiscriminatory reason for encouraging union membership — to avoid the economic pressure the union could impose upon him — was surely no longer intended to be a justification for such employer action after the passage of § 8 (b) (2), a statutory provision the very wording of which presupposed that union coercion can cause a violation of § 8 (a)(3).
There is no reason to decide now whether there are other contexts in which a showing of an actual motivation of encouraging or'discouraging union activity might be unnecessary to a finding of a union or employer unfair *682labor practice. For present purposes, it is sufficient to note that what is involved in the general requirement of finding of forbidden motivation, as well as in the limited scope of the heretofore recognized exceptions to this general requirement, is a realization that the Act was not intended to interfere significantly with those activities of employer and union which are justified by nondiscriminatory business purposes, or by nondiscriminatory attempts to benefit all the represented employees. It is against this policy that we should measure the Board’s action in finding forbidden the incorporation in collective bargaining contracts of the “hiring hall” clause. We must determine whether the Board’s action is consistent with the balance struck by the Wagner and Taft-Hartley Acts between protection of employee freedom with respect to union activity and the privilege of employer and union to make such nondiscriminatory decisions as seem to them to satisfy best the needs of the business and the employees.
The legislative background to §8 (a)(3) of the Act is quite clear in its indications of where this balance was to be struck. The Senate Report on this section of the original Wagner Act states:
“The fourth unfair labor practice [then §8 (3)] is a corollary of the first unfair labor practice. An employer, of course, need not hire an incompetent man and is free to discharge an employee who lacks skill or ability. But if the right to join or not to join a labor organization is to have any real meaning for an employee, the employer ought not to be free to discharge an employee merely because he joins an organization or to refuse to hire him merely because of his membership in an organization. Nor should an employer be free to pay a man a higher *683or lower wage solely because of his membership or nonmembership in a labor organization. The language of the bill creates safeguards against these possible dangers.” S. Rep. No. 1184 on S. 2926, 73d Cong., 2d Sess. 6. (Emphasis added.)
And similarly:
“Of course nothing in the bill prevents an employer from discharging a man for incompetence; from advancing him for special aptitude; or from demoting him for failure to perform. But if the right to be free from employer interference in self organization or to join or. refrain from joining a labor organization is to have any practical meaning, it must be accompanied by assurance that its exercise will not result in discriminatory treatment or loss of the opportunity for work.” S. Rep. No. 673 on S. 1958, 74th Cong., 1st Sess. 11.
To the same effect was the view of Senator Walsh:
“. . . The employer has the economic power; he can discharge any employee or any group of employees when their only offense may be to seek to form a legitimate organization among the workers for the purpose of collective bargaining.. This bill declares that is wrong. It declares that the employee has the right to engage in collective bargaining, and it says, ‘Mr. Employer, you must keep your hands off; you shall not use that effective power of dismissal from employment which you have and destroy the organization of the employees by the dismissal of one or more of your employees when they are objectionable on no other ground than that they belong to or have organized a labor union.’ ” Statement of Senator Walsh, 79 Cong. Rec. 7658. (Emphasis added.)
*684And further, the House Report on the bill stated:
“Nothing in this subsection prohibits interference with the normal exercise of the right of employers to select their employees or to discharge them. All that is intended is that the employer shall not by discriminatory treatment in hire or tenure of employment or terms or conditions • of employment, interfere with the exercise by employees of their right to organize and choose representatives. It is for this reason that the employer is prohibited from encouraging or discouraging membership in any labor organization by such discrimination.” H. R. Rep. No. 1147 on S. 1958, 74th Cong., 1st Sess. 19.
Considered in this light, I do not think we can sustain the Board's holding that the “hiring hall” clause is forbidden by the Taft-Hartley Act. The Board has not found that this clause was without substantial justification in terms of legitimate employer or union purposes. Cf. Republic Aviation v. Labor Board, supra; Gaynor News Co. Inc., v. Labor Board, supra. Whether or not such a finding would have been supported by the record is not for us now to decide. The Board has not, in my view, made the type of showing of an actual motive of encouraging union membership that is required by Universal Camera v. Labor Board, supra. All it has shown is that the clause will tend to encourage union membership, and that without substantial difficulty the parties to the agreement could have taken additional steps to isolate the valid employer or union purposes from the discriminatory effects of the clause.3 I do not think *685that these two elements alone can justify a Board holding of an unfair labor practice unless we are to approve a broad expansion of the power of the Board to supervise nondiscriminatory decisions made by employer or union. Whether or not such an expansion would be desirable, it does not seem to me consistent with the balance the labor acts have' struck between freedom of choice of management and union ends by the parties to a collective bargaining agreement and the freedom of employees from restraint or coercion in their exercise of rights granted by § 7 of the Act.4
I therefore agree with the Court that the Board’s holding that the clause in question is invalid cannot be sustained.
Set forth in note 1 of the Court’s opinion, ante, pp. 669-670.
As determined, for example, from the parties’ actions under them, through grievance procedures, or by arbitration, if so provided in the collective bargaining agreement.
In connection with such clauses, the Board would have “The parties to the agreement post in places where notices to employees and applicants for employment are customarily posted, all provisions relating to the functioning of the hiring arrangement, including the safeguards that we deem essential to the legality of an exclusive hiring *685agreement.” These safeguards, which are also to be made contract terms, provide that:
“(1) Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, union membership, bylaws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies, or requirements.
“(2) The employer retains the right to reject any job applicant referred by the union.”
Set forth in note 1 of the Court’s opinion, ante, pp. 669-670.