(dissenting).
The Board rightly says “The basic issue in this case is the propriety of the Board’s finding that the Union’s exclusive hiring hall agreement violated the Act on its face.” I think this finding is wrong and the order should be set aside.
The court appears to hold that an exclusive hiring-hall agreement is necessarily unlawful. My impression is that “The hiring hall is legal and has always' been held so.” N. L. R. B. v. Mountain Pacific Chapter of Associated General Contractors, Inc., 9 Cir., 1959, 270 F.2d 425, 429. An “agreement that hiring of employees be done only through a particular union’s offices does not violate the *648Act ‘absent evidence that the union unlawfully discriminated in supplying the company with personnel.’ 95 N.L.R.B. at 435.” N. L. R. B. v. Swinerton, 9 Cir., 202 F.2d 511, 514, certiorari denied 346 U.S. 814, 74 S.Ct. 24, 98 L.Ed. 341. “ ‘The factor in a hiring-hall arrangement which makes the device an unfair labor practice is the agreement to hire only union members referred to the employer.’ Del E. Webb Construction Co. v. N. L. R. B., 8 Cir., 1952, 196 F.2d 841, 845.” Eichleay Corp. v. N. L. R. B„ 3 Cir., 1953, 206 F.2d 799, 803. The present hiring-hall arrangement expressly negatives any such agreement, by requiring employment to be “only on a seniority basis” irrespective of whether the “employee is or is not a member of the Union.” Without violating this agreement, the employer cannot discriminate “in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership” in the union, in violation of § 8(a) (3) of the Labor Management Relations Act,1and the union cannot “cause - or attempt to cause an employer to discriminate against an employee in violation of” that section.2
The agreement does not contain the language the Board required in the Mountain Pacific case, 119 N.L.R.B. 883, 897, but this does not make it unlawful. N. L. R. B. v. Mountain Pacific Chapter of Associated General Contractors, Inc., 9 Cir., 270 F.2d 425, 431. “Within the area in which collective bargaining was required, Congress was not concerned with the substantive terms upon which the parties agreed.” Local 24 of Intern. Brotherhood of Teamsters, etc. v. Oliver, 358 U.S. 283, 295, 79 S.Ct. 297, 3 L.Ed. 2d 312. The possibility that the arrangement may at some future time lead to unlawful discrimination does not invalidate it. Shuttlesworth v. Birmingham Board of Education, 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145, affirming D.C., 162 F.Supp. 372, 384.
The court upholds the Board’s finding that the discharge of employee Slater resulted from the hiring provisions of the contract and was discriminatory. Slater had not obtained or sought employment through the hiring hall. I think his discharge for this reason did not discriminate against him or violate the Act. To interpret the Act as “furnishing statutory protection to employees who choose to violate valid provisions of labor-management contracts” would not be “consistent with the underlying purpose of the Act to promote * * * collective bargaining agreements * * N.L.R.B. v. Furriers Joint Council, 2 Cir., 224 F.2d 78, 80. Slater was a member of the Union in good standing. I cannot see that his discharge for failing to comply with an agreement between the Union and the employer encourages union membership.
. 61 Stat. 140 (1947), as amended, 29 U.S. C.A. § 158(a) (3) (1958).
. §158(b) (2).