Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges.
KAUFMAN, C. J.: We are called upon here to decide whether the certain union action caused an employer to make a "discriminatory" decision, the ultimate effect of which was to "encourage" or "discourage" union membership. The problem is before us on the National Labor Relations Board's petition for enforcement of its order, based upon a trial examiner's findings and conclusions that Local 50, American Bakery & Confectionery Workers Union, AFL-CIO (the Union), violated Section 8(b)(2) and (1)(A) of the National Labor Relations Act, 29 U.S.C. §§ 158(b)(2), 158(b)(1)(A), by causing Ward Baking Company to refuse to reinstate Charles Fisher on the ground that he had procured a withdrawal card from the Union.
Section 8(b)(2) makes it an unfair labor practice for a union "to cause or attempt to cause an employer" to violate Section 8(a)(3) "by discrimination in regard to hire or tenure of employment . . . which encourages or discourages membership in any labor organization." Section 8(b)(1)(A) bars unions from restraining or coercing workers in the exercise of Section 7 rights, including the right to refrain from union activities. The Board's order, which we enforce, contains the usual cease and desist and notice provisions, as well as a requirement for back pay.
The sequence of events leading to the present proceeding commenced September 1, 1963, when the Union called a strike at Ward's Bronx plant to protest the management's decision to transfer bread and doughnut production to a New Jersey unit. Fisher, who had been employed at the Bronx plant for almost thirty years, was a Union member, and, as such, joined the strike and picketed for some time. On September 22, however, while the Bronx strike was still in progress, he successfully sought work at Ward's Newark plant - a separate bargaining unit represented by the Union's sister local, Number 84. At that time, he was told by Ward's Newark personnel manager that his Newark job was "temporary" and that he could return to his position in the Bronx when the strike ended.
Despite his "temporary" status, however, Fisher was soon requested to join and pay dues to Local 84. Accordingly, on October 29 Fisher sought and obtained a withdrawal card from the Union, ostensibly so that he might transfer his membership to the Newark local and avoid paying a new initiation fee.
On November 7, the Bronx strike ended, and Ward's Bronx personnel manager, John F. McGuire, met with Union representatives on the following day to arrange the order of recall of workers.Since the bread and doughnut departments had been permanently terminated, the Union and employer conferees faced a complex problem; senior employees in those departments would have to be assigned other jobs. In light of this fact, and since only about 60 of the approximately 450 employees in the Bronx plant were to be recalled immediately, the parties at the November 8 conference decided to consult a consolidated plant-wide seniority list in determining the order of recall.
With this modus operandi agreed upon, Fisher's name was reached in due course at number thirty-five on the seniority list. At this point, Louis Genuth, the Union's secretary-treasurer, advised McGuire that Fisher "had taken a transfer card and . . . was not entitled to recall." As a result of this advice, McGuire scratched Fisher's name from the list, and he was accordingly not rehired.
News of this action did not immediately reach Fisher, and when he was discharged from his Newark job, sometime during the following week, he went to the Bronx plant, seeking reinstatement. It was at this juncture that McGuire advised him that Ward was ready and willing to rehire him, but that the Union objected.*fn1 Although Fisher subsequently sought to persuade Union officials to withdraw their objections to his recall, he was finally told that he was no longer a member of the Union and hence out of a job.
The Union does not seriously challenge the foregoing summary of relevant facts, as found by the trial examiner. Rather, in an attempt to justify its conduct, the Union points to a provision of the collective bargaining agreement specifying that seniority rights would terminate if an employee "voluntarily quit." Relying on this provision, the Union contends that Fisher in fact had terminated his employment at the Bronx plant when he received a withdrawal card on October 29.
At the outset, we are able to dismiss several of the Union's contentions without extensive discussion. Thus, we cannot attach the requested significance to a provision in the Union's international constitution and bylaws that "a withdrawal card shall signify that the member has voluntarily withdrawn from his local's rolls of active members and has withdrawn from holding or seeking employment within the work or geographic jurisdiction of this International or his local union." As the trial examiner correctly found, this provision had not become a part of the contract between Ward and the Union, either by direct incorporation or by custom and practice.
Neither can we accept the Union's suggestion that its opposition to Fisher's reinstatement was motivated by his alleged statement, in securing the withdrawal card, that he had "quit" the Bronx plant. The trial examiner, having observed the witnesses, did not credit the testimony supporting this theory, and we find his conclusion on this score supported by substantial evidence on the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).*fn2
The difficult issue for our determination is whether Fisher's loss of seniority involved the sort of "discrimination" which "encourages" membership in a labor organization within the meaning of Sections 8(b)(2) and 8(a)(3). Our guidelines for resolving these questions are taken from NLRB v. Local 294, I.B.T ., 317 F.2d 746 (2nd Cir. 1963), where Judge Hays wrote that a union does not violate 8(b)(2) unless the "discrimination" which it seeks would constitute a violation of 8(a)(3) if the employer acted without suggestion or compulsion. See also NLRB v. Local 776, IATSE (Film Editors ), 303 F.2d 513, 516 (9th Cir. 1962).
We must first determine, therefore, whether Ward "discriminated" against Fisher by refusing to reinstate him. Central to such an inquiry is a proper definition of the sort of "discrimination" which the Act prohibits. Stated concisely, we believe that an employee is unlawfully "discriminated" against when a distinction is made arbitrarily or without sound basis and to his detriment. See NLRB v. Miranda Fuel Co ., 326 F.2d 172, 181 (2d Cir. 1963) (Friendly, J., dissenting). It is clear to us, moreover, that the provisions of the Labor Act under consideration are meaningful only if they are read to forbid such "discrimination" not only between union members and non-members or between good members and bad members but in all decisions which depend primarily upon union membership consideration. Cf. Local 357, I.B.T. v. NLRB, 365 U.S. 667, 682 (Harlan, J., concurring).
When viewed in this context, we believe that the Board was well within the province of its expertise in drawing the inference that an unlawful form of "discrimination" was practiced. See NLRB v. Erie Resistor Corp ., 373 U.S. 221, 227 (1963). It is readily apparent to us that Fisher lost his job because the Union caused Ward to enforce a Union rule that was not incorporated in the collective bargaining agreement; his employment would not have terminated without the Union's pressure and cajoling. These ...