nonmember employees, 30 days from the effective date of the clause. 87

Another group of cases involved preferential hiring agreements. In one such case, the Board held illegal an agreement which obligated the employer to refer to the union's list of available workmen before hiring employees.88 Here the parties had mutually interpreted the agreement as requiring the employer to hire through the union or subject to its clearance, and it was the union's practice to condition clearance upon membership. In the same case, a clause by which the contracting union agreed to furnish workmen in certain classifications upon request and the employer agreed to secure workmen from other sources only if the union failed to supply qualified workers within a reasonable time, was likewise held illegal because another clause of the contract provided that all work covered by the contract was to be performed by members of the union. In another

case,

the unionsecurity limitations of section 8 (a) (3) were held to have been exceeded by an agreement under which the employer could hire nonunion men only in specified numbers during emergencies and subject to ultimate replacement by union members.89 However, an agreement which merely provided for the utilization of the union's employment facilities and which did not, on its face, require that preference be given to union members, was held no violation of the act when it was not shown that the contracting union has in fact discriminated in supplying personnel.90

In one case, the Board held that a union could not lawfully insist on the adoption of union-security clauses which gave the union the right to terminate employees during their probationary period, as well as to require the discharge of employees for “violation of reasonable union shop rules.” 91

The Board also had occasion to point out that union-security provisions which clearly fail to conform to the requirements of section 8 (a) (3) cannot be validated by the addition of a clause recognizing the controlling effect of "applicable Federal and State laws,” or by a further clause purporting to modify the provisions “to conform to any State or Federal law” with which they may be in conflict. 92

(2) Discrimination

The Board continued to hold that an employer violates section 8 (a) (3) by entering into an illegal union-security agreement, because such an agreement creates discriminatory conditions of employment.93 However, a majority of the Board declined to apply this rule in a case in which the parties to an illegal closed-shop agreement had indicated their intention not to enforce it.94 Under these circumstances, the majority concluded, the mere retention of the illegal clause in the contract between the parties did not create discriminatory employment conditions and therefore could not be found to violate section 8 (a) (3).95

Section 8 (a) (3) is violated also if an employer cooperates with the contracting union in enforcing illegal union-security provisions against individual employees.96 Similarly, the act is violated by the refusal of an employer to hire employees who are not members of, or who have not been cleared by, the union with which the employer has an illegal preferential hiring agreement.97

(3) Illegal Application of Union-Security Agreement In some cases, discrimination has resulted from illegal application of union-security agreements, rather than from the inherent invalidity of the contract provision itself. Thus, the discharge of an employee was held to have violated section 8 (a) (3) under the following circumstances: The discriminatee had resigned from the union when the prior contract terminated. The union later entered into a new contract containing a valid maintenance-of-membership clause. The union then demanded the employee's discharge because he had failed to pay dues before and after the effective date of the union's new contract. The Board held that this application of the agreement was illegal (1) because, having previously resigned from the union, the employee had never been under obligation to rejoin the union, and

(2) because the agreement was retroactively applied to compel the payment of dues which accrued before the agreement became legally effective.98

In several cases, the validity of discharges under union-security agreements turned upon whether or not the employer had reasonable cause to believe that (1) union membership “was not available to the employees on the same terms and conditions generally applicable to other members,” or (2) that the discharge was requested "for reasons other than the failure of the employee to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership.” 9 In one such case, the discharge of an employee was found discriminatory because both of these provisions had been violated. Here, an employee had been required to pay certain fines and all back dues which accrued before the effective date of the union-security agreement and, furthermore, had been denied the privilege accorded other equally delinquent members to settle his dues arrears with a lump sum payment. Thus, the Board pointed out, proviso (A) of section 8 (a) (3) was violated because membership was not available to the employee on equal terms with other employees, and proviso (B) was likewise violated because the employee was denied membership for nonpayment of fines and back dues neither of which constituted "periodic dues” or “initiation fees uniformly required” within the meaning of the proviso. The Board further found that the employee's discharge was discriminatory even though he had not offered to pay at least the initiation fee and dues which could iegally be required under the applicable union-security agreement. In this respect, the Board restated the previously announced rule that an employee need not tender the fees and dues he could legally be charged, if union membership is, in fact, available to him only upon compliance with a separate discriminatory condition, or where, as here, the circumstances indicated that such a tender would have been a futile view of the union's insistence on his payment of sums not constituting fees or dues within the meaning of section 8 (a) (3). In another case, a union officer was discharged after he was expelled from the union because of his refusal to sign a non-Communist affidavit, apparently in an effort to favor a rival union, the discharge was held

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discriminatory in that it was based on his lack of union membership arising from reasons other than the failure to tender periodic dues and initiation fees. The Board pointed out that "however understandable and laudable” the reason for the employee's expulsion and discharge may have been, the Board had no choice under the statute but to hold that section 8 (a) (3) was violated.

On the other hand, a valid union-security agreement was held properly enforced against an employee whose membership had lapsed before the effective date of the agreement and who had refused to pay a $60 reinstatement fee on the ground that first-time applicants were charged an initiation fee of only $30. In the view of a majority of the Board, the union's imposition of a larger fee on former members was based on a reasonable classification and therefore was not discriminatory for union-security purposes. Noting the Board's previous holding that the union-security proviso of section 8 (a) (3) permits such graduation in membership charges, the majority held that the complaining employee's refusal to pay the reinstatement or initiation fee “uniformly required of all former members similarly situated” justified his discharge.

A union-security agreement also was held to have been validly enforced against union members who had failed to tender their dues within the time uniformly required. Under the union's constitution the employees' delinquency resulted in their automatic suspension and consequent termination of their membership.10 Under these circumstances, the Board observed, the employees were legally subjected to discharge regardless of the fact that the union's sudden insistence on their dismissal may have been harsh and inconsistent with the union's earlier leniency in invoking its union-shop contract. Nor, the Board concluded, was the application of the contract illegal because the union did not permit employees who were more than 3 months delinquent to restore their membership, although automatically suspended members with less than 3 months' delinquency could do so.

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For, by enforcing this rule, the union was giving effect to a reasonable classification and therefore did not violate the limitations on membership requirements of the union-security proviso of section 8 (a) (3).11

e. Encouraging Union Membership

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Discrimination which encourages membership in a union which has no valid union-security agreement also violates section 8 (a) (3). In this type of case, the Board has repeatedly pointed out that an employer may not discriminate against an employee on the basis of a labor organization's determination as to who shall be permitted to work when no lawful contractual obligation for such action exists. 12 Consequently, a shipping company was ordered to offer employment to a radio officer who had applied unsuccessfully for a job after his name was stricken from the assignment list of the union through which the company hired all its radio officers.13 The Board held that the unlawful discrimination in this case resulted not solely from the employer's failure to offer the radio officer employment when a job became available on one of its ships, but also from the very act of discriminatorily striking the employee's name from the union's national assignment list, to which the company assented. An employer was likewise held to have violated section 8 (a) (3) by suspending or discharging employees who, as nonmembers, had been refused clearance or work permits by the union to which they were referred by the employer.14 The same result was reached in the case of an enıployer who refused to permit a nonunion employee to trade work assignments.15 The Board found that the employer had acted on the basis of a union list of persons eligible to trade assignments, from which the employee's name was omitted because of his nonmembership.

In another case, an employer was held to have unlawfully refused to accept certain qualified applicants for available jobs on a construction project, except upon condition that they apply for membership in a particular union.16 However, a majority of the Board found there was no discrimination against other applicants who were likewise told “to get straightened up with the Union,” but at a time when there were no jobs available for which they were qualified. The ma

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