On Petition for a Rehearing
PER CURIAM.The National Labor Relations Board petitions for rehearing of so much of our decision of May 6, 1960 as set aside a portion of its order relating to the union security agreement. It alleges, first, that, under § 10(e) of the Act, 29 U.S. C.A. § 160(e), the point was not properly before us and, second, that our decision was wrong.
(1) Throughout the proceeding before the Board, the union resisted the General Counsel’s contention that the union security agreement was unlawful because of its alleged incorporation by reference of the provisions of the union’s constitution creating obligations other than the payment of initiation fees and dues, and it excepted to the remedy recommended by the Examiner, which included the clauses we have ordered stricken. Although the exceptions may have fallen “short of desirable specificity,” they were sufficient to preserve all grounds of objection, and certainly objections as to the legal power of the Board, as those in May Department Stores Co. v. N. L. R. B., 1945, 326 U.S. 376, 387, 66 S.Ct. 203, 90 L.Ed. 145, were held to be.
(2) On the merits the N. L. R. B. cites certain additional Board decisions. Keystone Coat, Apron & Towel Supply Co., 121 NLRB 880, 884-85 (1958), is simply cumulative of the Board holdings cited in our opinion, namely, that a provision in a union security agreement specifically requiring the payment of assessments as well as initiation fees and dues renders *106the agreement illegal per se. On the other hand, in Spartan Aircraft Co., 98 NLRB 73, 75 (1952), where there was no reference to assessments in the agreement itself the Board upheld a discharge clause substantially identical with that here, construing it as meaning “that the obligation to discharge extends only to situations recognized as valid by the statute.” Zangerle Peterson Co., 123 NLRB No. 129 (1959), reveals a difference of opinion within the Board as to the relative scope of these two principles. The only decision cited which we think requires comment is H. Muehlstein & Co., 118 NLRB 268, 276 (1957). This suggested that an agreement which affirmatively provided that employees should pay union assessments as well as dues violated § 8(a) (1), although since there was no evidence of enforcement of the assessment provision, there was no violation of § 8(a) (3). The rationale of this view is explained in Convair, 111 NLRB 1055, 1057 (1955), modified sub nom. N. L. R. B. v. International Ass’n of Machinists, 9 Cir., 1957, 241 F.2d 695, as being that an agreement threatening loss of employment to an employee who fails to pay union assessments will “interfere with, restrain or coerce employees in the exercise of the rights guaranteed” in § 7, specifically “the right to refrain from any or all such [union] activities.” Insofar as Muehlstein and Convair deal with § 8(a) (3), they support our decision, and we are unable to see how the argument is advanced by the reference to §§ 8(a) (1) and 7. For § 7 qualifies the words quoted above by adding “except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment” as authorized in § 8(a)(3), which provides that nothing in the Act shall preclude an agreement conforming to its terms. We are thus brought back to the question whether § 8(a)(3) outlaws the making of an agreement that does not expressly negate a right to discharge for noncompliance with union constitution provisions other than the payment of initiation fees and dues or, as we have held, merely prohibits action by the union or employer to carry it out. We have no doubt that when such action is taken, both § 8(a)(3) and § 8(a)(1) are violated, but, in our view, this happens then and not before.
We recognize the question to be debatable as our opinion plainly intimated. We have thought our construction to be required to give effect to the sharp difference in the treatment in § 8(a) (3) of the 30-day clause, on the one hand, and union requirements other than initiation fees and dues, on the other, particularly in the light of the legislative history and the different wording of the Railway Labor Act, 45 U.S.C.A. § 152, Paragraph Eleventh. Having carefully considered the Board’s petition, we adhere to that view.