(dissenting in part).
This court is enforcing against the defendant labor union so much of an order of the National Labor Relations Board as gives effect to the board’s conclusion “that by removing Holderby’s name from the ‘Member’s’ list because of his expulsion from the Union, thereby denying him equal access to jobs, the Respondent * * * violated Section 8 (b) (2) and (1) (A) of the Act.” While this language places formal reliance upon two clauses of Section 8(b), namely clauses (2) and (1) (A),1 the opinions of the board and this court make it clear that both tribunals have analyzed the Holderby matter as essentially a violation of clause (2) without reference to the different considerations upon which an invocation of clause (1) (A) must depend.
To make my view of the matter clear, I shall consider those clauses separately. Cf. National Labor Relations Board v. Philadelphia Iron Works, 3 Cir., 1954, 211 F.2d 937, 943-944.
I think the union’s action with reference to Holderby did not constitute a violation of clause (2) of Section 8(b). The issue under that clause is whether the union caused or attempted to cause any employer to discriminate against Holderby in violation of the Act. In resolving that issue it must be determined whether the union caused or attempted to cause an “employer to engage in conduct which, if committed, would violate Section 8(a) (3).” 2 Radio Officers’ Union v. National Labor Relations Board, 1954, 347 U.S. 17, 53, 74 S.Ct. 323, 342, 98 L.Ed. 455.
In this case no employer was told or even given reason to believe that Holderby or anyone else was being treated improperly in the matter of job referral. No one brought to any employer’s attention any charge that the union was abusing the lawful referral arrangement to which various employers had subscribed. At most the union was accomplishing an effective discrimination against Holder-by without causing or attempting to cause any employer to act improperly in any way.
In this all-important respect the present case differs from the numerous adjudicated cases in which the board and the courts have found violations of Section 8(b) (2). Those cases characteristically reveal either aggressive wrongdoing by the employer himself or his acquiescence and cooperation in making misconduct on the part of the union injurious to some employee.3
*676National Labor Relations Board v. International Longshoremen’s Union, 9 Cir., 1954, 210 F.2d 581, deserves special mention because it is a very recent decision of this court. But there too the employer was chargeable with knowledge of and responsibility for the misconduct of certain wrongdoing dispatchers, because those dispatchers were employees of the employer as well as the union and were subject to removal by an employer-union committee.
In the present case the board has made a passing, but in my view unsuccessful, effort to charge employer with complicity in or responsibility for the union’s alleged wrongdoing. In a footnote the board refers to the employer’s duty “to insist that the Union fulfill its contractual obligation of maintaining nondiscriminatory hiring lists.” I think it would be unfair and irrational to impose such a duty unless and until the employer is at least put on notice that the union is improperly discriminating against someone in the making of referrals. And, I know of nothing in the Act or its history that suggests legislative intention to burden the employer with ferreting out union misconduct on penalty of being charged with complicity in that which he has not discovered.
The foregoing analysis leads me to agree with the member of the board who dissented in this case that the record does not establish a violation of Section 8(b) (2).
The problem presented under Section 8(b) (1) (A) is different. That clause makes it an unfair labor practice for a union to restrain or coerce employees in the exercise of freedom of choice in matters of organization, bargaining and concerted activities. The opinion of the board does not address itself to this aspect of the union’s dealings with Holderby. We are not told upon what facts the board relies or how it has arrived at the conclusion that a violation of this clause is established on the present record. This deficiency is a matter of concern because the record does not make it dear why Holderby was dropped from the union or why his subsequent request for reinstatement was denied. It does appear that his controversy with the union has reached the stage of litigation in the state courts. It is not clear whether a violation of clause (1) (A) should have been, or would have been, found had the board directed its attention with particularity to that clause rather than clause (2).
In these circumstances, I would send the case back to the board for the specific purpose of reconsidering the Holder-by matter solely as a possible violation of clause (1) (A). I would withhold judicial review of this issue until the considered judgment of the board is revealed by findings and conclusions which place the matter and the board’s view of it in clear focus. In all other particulars I would deny the petition for enforcement.
. Section 8(b) of the National Labor Relations Act, as amended, 61 Stat. 140, as amended, 65 Stat. 601, 29 U.S.C.A. § 158 (b) (1) (A) and (2), reads in pertinent part as follows:
“(b) It shall be an unfair labor practice for a labor organization or its agents—
“(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 of this Act * * *
“(2) to cause or attempt to eausp an employer to discriminate against an employee in violation of subsection (a) (3) of this section * *
. That subsection makes it an unfair labor practice for an employer “(3) 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 * * 29 U.S.O.A. § 158(a) (3).
. See, e. g., National Labor Relations Board v. Local 803, International Brotherhood of Boilermakers, AFL, 3 Cir., 1955, 218 F.2d 299 (On union demand the employer fired and refused to hire men not in good standing in the union) ; National Labor Relations Board v. International Union of Operating Engineers, AFL, 8 Cir., 1954, 216 F.2d 161 (Employees discharged in accordance with union seniority rules though employer’s rules provided otherwise); National Labor Relations Board v. Philadelphia Iron Works, 3 Cir., 1954, 211 F.2d 937 (Union caused employer to withdraw job offer) ; National Labor Relations Board v. George D. Auchter Co., 5 Cir., 1954, 209 F.2d 273 (Employer refused to employ applicant because of union’s refusal to issue referral) ; National Labor Relations Board v. Bell Aircraft Corp., 2 Cir., 1953, 206 F.2d 235 (Employee denied promotion because union charges pending against him).