dissenting in part.1
I cannot agree with the casual treatment the Court gives to the “casual employee” who is either unable to get employment or is fired therefrom because he has not been cleared by a union hiring hall. Inasmuch as the record, and the image of a hiring hall which it presents, are neglected by the Court, a short résumé of the facts is appropriate.
Lester Slater, the complainant, became a “casual employee” in the truck freight business in 1953 or early *6861954. He approached an employer but was referred to the union hiring hall. There the dispatcher told him to see Barney Volkoff, an official of the union, whose office in the union headquarters building was some three miles away. Describing his visit to Volkoff, Slater stated that “[I] just give him [Volkoff] the money to send back East to pay up my dues back there for the withdrawal card, . . . and I went right to the [hiring] hall and went to work.” However, this was but the beginning of .Slater’s trouble with the hall. After some difficulty with one of his temporary employers (Pacific Intermountain Express), the hall refused to refer Slater to other employers. In order to keep employed despite the union hall’s failure to dispatch him, Slater relied on a letter from John Annand, an international Representative of the union, stating that “you may seek work wherever you can find it in the freight industry without working through, the hiring hall.” It was this letter that obtained Slater his employment with Los Angeles-Seattle Motor Express, where he was characterized by its dock foreman as being “a good worker.” After a few months employment, the Business Agent of the union (Victor Karaty) called on the Los Angeles-Seattle Motor Express, advising that it could not hire Slater “any longer here without a referral card”; that the company would “have to get rid of Slater, and if [it] ... didn’t, that he was going to tie the place up in a knot, [that he] would pull the men off.” Los Angeles-Seattle Motor Express fired Slater, telling him that “[We] . . . can’t use you now until you get this straightened out with the union. Then come back; we will put you to work.” He then went to the union, and was again referred to Volkoff .who advised, “I can’t do anything for you because you are out. You ■are not qualified for this job.” Upon being shown the Annand letter, Volkoff declared “I am the union.” On later occasions when Slater attempted to get clearance *687from Volkoff he was asked “How come you weren’t out on that — didn’t go out on the picket line?” (Apparently the union had been on a strike.) Slater testified, “I told him that nobody asked me to. I was out a week. I thought the strike was on. The hall was closed. The guys told me there weren’t no work.” The landlady of Slater also approached Volkoff in an effort to get him cleared and she testified that “I asked Mr. Barney Volkoff what he had against Lester Slater and why he was doing this to him.” And she quoted him as saying: “For a few reasons, one is about the P. I. E. [Pacific Intermountain Express] '. . . [a]nother thing, he is an illiterate.” She further testified that “he [Volkoff] didn’t like the way he dressed. And he [Volkoff] fussed around and fussed around.” He therefore refused to “route,” as the Court calls it, Slater through the union hiring hall.
The Court finds that the National Labor Relations Act does not ban hiring halls per se and that therefore they are illegal only if they discriminate on the basis of unión membership. It holds that no such actual discrimination was shown and that none is inferable from the face of the contract since it has a protective clause. Collaterally it holds, quoting Senator Taft, that hiring halls are “useful”; that they save time and eliminate waste and, finally, that the Court “cannot assume that a union conducts its operations in violation of law.” 2
1 do not doubt for a moment that men hired through such arrangements are saved the expense and delay of making the rounds of prospective employers on their own. Nor do I doubt their utility to employers with varying *688employee demands. And I accept the fact that Congress has outlawed only closed shops and allowed hiring halls tQ remain in operation. But just as those observations are not, in the final analysis, relied upon by the Court today in reaching its decision, my acquiescence in them is only a prologue to my dissent from the remaining considerations upon which its decision actually rests. These considerations are dependent upon the construction given § 8 (a) (3) and I therefore first turn to that section.
Section 8 (a) (3) provides, in part, that it shall be an unfair labor practice for an employer
“by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . (Emphasis added.)
As I view this prohibition, which by § 8 (b)(2) is also applied to unions when causing or attempting to cause any employer to violate this section, two factors must be present before there is an unfair labor practice: (1) discrimination in the hiring or tenure of employees which is intended to, or inherently tends to, result in (2) encouragement' or discouragement of membership in a union.
The word “discrimination” in the section, as the Board points out and I agree, includes not only distinctions contingent upon “the presence or absence of union membership,” ante, p. 675, but all differences in treatment regardless of their basis. This is the “cause” portion of the section. But § 8 (a) (3) also includes an “effect” clause which provides that the intended or inherent effect of the discrimination must be “to encourage or discourage [union] membership.” The section has, therefore, a divided structure. Not all discriminations violate the section, but only those the effect of which is encouragement or discouragement of union membership. Cf. Radio *689Officers v. Labor Board, 347 U. S. 17, at 43: “Nor does this section outlaw discrimination in employment as such ; only such discrimination as encourages or discourages membership in a labor organization is proscribed.” Each being a requirement of the section, both must be present before an unfair labor practice exists. On the other hand, the union here contends, and the Court agrees, that there can be no “discrimination” within the section unless it is based on union membership, i. e., members treated one way, nonmembers another, with further distinctions, among members, based on good standing. Through this too superficial interpretation, the Court abuses the language of the Congress and unduly restricts the scope of the proscription so that it forbids only the most obvious “hard-sell” techniques of influencing employee exercise of § 7 rights.
Even if we could draw no support from prior cases, the plain and accepted meaning of the word “discrimination” supports my interpretation. In common parlance, the word means to distinguish or differentiate. Without good reason, we should not limit the word to mean to distinguish in a particular manner (i. e., on the basis of union membership or activity) so that a finding that the hall dispatched employees without regard to union membership or activity bars a finding of violation. The mere fact that the section might be read in the manner suggested by the union does not license such a distortion of the clear intent of the Congress, i. e., to prohibit all auxiliaries to the closed shop, and all pressures on employee free choice, however subtly they are established or applied. Moreover, our interpretation in Radio Officers v. Labor Board, supra, supports this position. There we said:
“The unfair labor practice is for an employer [1 ] to encourage or discourage membership. [2] by means *690of discrimination. Thus this section does not outlaw all encouragement or discouragement of membership in labor organizations; only such as is accomplished by discrimination is prohibited. Nor does this section outlaw discrimination in employment as such; only [1] such discrimination [g] as encourages or discourages membership in a labor organization is proscribed.” At pp. 42-43. (Emphasis added.)
The Court’s conclusion is in patent conflict with that reasoning.
Given that interpretation of the word “discrimination,” it becomes necessary to determine the class of employee involved, and then whether any differences in treatment within that class are present. The Board found the class affected by the union hiring hall to be that group which was qualified, in the sense of ability, to do the work required by the employer and who had applied for work through the hiring hall. Obviously, not all of those who apply receive like treatment. Not all applicants receive referral cards. Clearly, then, the class applying to the hiring hall is itself divided into two groups treated differently — those cleared by the union and those who were not. The next question is whether the contract requiring and endorsing that discrimination or differentiation is designed to, or inherently tends to, encourage union membership. If it does, then § 8 (a) (3) has been violated.
I begin with the premise that the Congress has outlawed the closed shop and that, as the Court pointed out, “[t]he policy of the Act is to insulate employees’ jobs from their organizational rights,” Radio Officers, supra, at 40. To test the contract here, I look to probable and anticipated “employee response” to it, id., at 46, recognizing that “ [ e ] ncouragement and discouragement are ‘subtle things’ requiring ‘a high degree of introspective *691perception.’ ” Id., at p. 51. Just as in cases of his interference with protected activities, the escape value of the employer’s “true purpose” and “real motive” is to be tested by the “natural consequences” and “foreseeable result” of his resort, however justifiably taken, to an institution so closely allied to the closed shop. I believe, as this Court has recognized, that “the desire of employees to unionize is directly proportional to the advantages thought to be obtained . . . .” Radio Officers, supra, at 46. (Emphasis added.) I therefore ask, “Does the ordinary applicant for casual employment, who walks into the union hall at the direction of his prospective employer, consider his chances of getting dispatched for work diminished because of his non-union status or his default in dues payment?” Lester Slater testified— and it is uncontradicted — that “He [the applicant] had to be a union member; otherwise he wouldn’t be working there . . . you got to have your dues paid up to date and so forth.” When asked how he knew this, Slater replied, “I have always knew that.” Such was the sum of his impressions gained from contact with the hall from 1953 or 1954 when he started to 1958 when he ended. The misunderstanding — if it is that — of this common worker, who had the courage to complain, is, I am sure, representative of many more who were afraid to protest or, worse, were unaware of their right to do so.
Of the gravity of such a situation the Board is the best arbiter and best equipped to find a solution. It is, after all, “permissible [for the Board] to draw on experience in factual inquiries.” Radio Officers, supra, at 49. It has resolved the issue clearly, not only here, but also in its 1958 Report which, as I have said, repeated its Mountain Pacific position “that a union to which an employer has so delegated hiring powers will exercise its power with a view to securing compliance with member*692ship obligations and union rules.” At p. 68. In view of Slater’s experience, for one, the idea is certainly not farfetched. Despite the contract provision as to equal treatment between union and nonunion men after a minimum amount of seniority is obtained, we find here that Slater had to “pay up” his dues in 1953. Despite the seniority rule,3 dispatch was often made, the record shows, due to favoritism by the employer. Despite the contract’s solemn words, the uncontradicted evidence is that lack of intellect, taste in dress and failure to appear on a union picket line prevented an employee from getting a job, although he was a “good worker.” Likewise, approaching a union official (who indignantly asserts “I am the union”) with a letter from a union “higher-up” may result in loss of work. Such factors are infinitely more persuasive than the self-serving declaration of a union hiring-hall agreement.
However, I need not go so far as to presume that the union has set itself upon an illegal course, conditioning referral on the unlawful criterion of union membership in good standing (which inference the majority today says cannot be drawn), to reach the same result. I need only assume that, by thousands of common workers like Slater, the contract and its conditioning of casual employment upon union referral will work a misunderstanding as to the significance of union affiliation unless the employer’s abdication of his role be made less than total and some note of the true function of the hiring hall be posted where all may see and read. The tide of encouragement may not be turned, but it will in part at least be stemmed. As an added dividend, the inherent probability of the free-wheeling operation of the union hiring *693hall resulting in arbitrary dispatching of job seekers would to some significant extent be diminished.
I would hold that there is not only a reasonable likelihood, but that it must inescapably be concluded under this record, that, without the safeguards at issue, a contract conditioning employment solely upon union referral encourages membership in the union by that very distinction itself. As the Board expressed it in Mountain Pacific Chapter, supra, at 896:
“[T]he very grant of work at all depends solely upon union sponsorship, and it is reasonable to infer that the arrangement displays and enhances the Union’s power and control over the employment status.”
A reasonable interpretation of the Act also demands that both the employer and the union be deemed violators. In determining that issue, I say that the Board is the best judge. I say that it has made an “allowable judgment.” It is not for the courts to differently assess the hiring hall’s “cumulative effect on employees” or job applicants, Labor Board v. Stowe Spinning Co., 336 U. S. 226, 231. Its findings here should, therefore, “carry the authority of an expertness which courts do not possess and therefore must respect.” Universal Camera Corp. v. Labor Board, 340 U. S. 474, 488.
Finally, let me say that the Board should not be hamstrung in its effort to enforce the mandate of the Congress that there shall be no closed shop. As Senator Taft stated on the floor of the Senate: 4
“Perhaps [the closed shop] is best exemplified by the so-called hiring halls on the west coast, where shipowners cannot employ anyone unless the union sends him to them. . . . Such an arrangement gives the *694union tremendous power over the employees; furthermore, it abolishes a free labor market. A man cannot get a job where he wants to get it. He has to go to the union first; and if the union says that he cannot get in, then he is out of that particular labor field.”
That is where Lester Slater finds himself today. I therefore dissent.
Mr. Justice Whittaker joins in all except note 1 of this dissent, but would also add the reasons, respecting the Board’s powers to make the order in question, that are stated in his dissent in No. 68, Carpenters Local 60 v. Labor Board, decided this day, ante, p. 660.I agree with the Court’s disposition of that part of the Board’s petition seeking direct enforcement of the order of reimbursement.
Interestingly enough, the Board in its Twenty-Third Annual Report (1958) characterized its holding in Mountain Pacific Chapter, 119 N. L. R. B. 883, in the following language: “It may reasonably be inferred, the Board held, that a union to which an employer has so delegated hiring powers will exercise its power with a view to securing compliance with membership obligations and union rules.” At p. 6S.
The employers did not receive any seniority lists from the union and were unaware of whether this provision of the agreement was being properly administered.
93 Cong. Rec. 3836; II Leg. Hist, of the Labor Management Relations Act, 1947, 1010.