17 Opinion of the Court. the natural and probable effect not only of encouraging nonunion employees to join the Union, but also of encouraging union employees to retain their union membership." We assume this concedes that the employer acted from self-interest and not to encourage unionism. An order was entered requiring the company to cease and desist from the unfair labor practices found and from related conduct; to make whole Loner and all other nonunion employees similarly situated for any loss of pay they have suffered by reason of the company's discrimination against them; and to post appropriate notices of compliance. The Court of Appeals for the Second Circuit, upon the Board's petition, granted enforcement of all parts of the order pertinent here.35 On the issue of the legality of the discrimination, the court distinguished Labor Board v. Reliable Newspaper Delivery, Inc., 187 F. 2d 547, involving actions closely paralleling the company's here by another company dealing with the same union, stating, "there discrimination resulted from what the court considered the entirely legal action of the minority union in asking special benefits for its members only. The union made no pretense of representing the majority of employees or of being the exclusive bargaining agent in the plant. The other non-union employees, reasoned the Court, were quite able to elect their own representative and ask for similar benefits. Not so here. The union here represented the majority of employees and was the exclusive bargaining agent for the plant. Accordingly, it could 35 197 F. 2d 719. The court modified parts of the order concerning the illegality of the 1948 contract. Judge Chase dissented as to such modification. In its brief the company seeks to raise the issue of the illegality of that contract. This question was not presented in the petition for certiorari and is, therefore, not properly before the Court. General Talking Pictures Corp. v. Western Elec. Co., 304 U. S. 175. Opinion of the Court. 347 U.S. not betray the trust of non-union members, by bargaining for special benefits to union-members only, thus leaving the non-union members with no means of equalizing the situation." 197 F. 2d, at 722. The court continued, in answer to the company's contention that its action "had neither the purpose nor the effect required by § 8 (a)(3)": "discriminatory conduct, such as that practiced here, is inherently conducive to increased union membership. In this respect, there can be little doubt that it 'encourages' union membership, by increasing the number of workers who would like to join and/or their quantum of desire. It may well be that the union, for reasons of its own, does not want new members at the time of the employer's violations and will reject all applicants. But the fact remains that these rejected applicants have been, and will continue to be, 'encouraged,' by the discriminatory benefits, in their desire for membership. This backlog of desire may well, as the Board argues, result in action by non-members to 'seek to break down membership barriers by any one of a number of steps, ranging from bribery to legal action.' A union's internal politics are by no means static; changes in union entrance rules may come at any time. If and when the barriers are let down, among the new and now successful applicants will almost surely be large groups of workers previously 'encouraged' by the employer's illegal discrimination. We do not believe that, if the union-encouraging effect of discriminatory treatment is not felt immediately, the employer must be allowed to escape altogether. If there is a reasonable likelihood that the effects may be felt years later, then a reasonable interpretation of the Act demands that the employer be deemed a violator." 197 F. 2d, at 722-723. We granted the company's petition for certiorari.36 36 345 U. S. 902. 17 Opinion of the Court. I. MEANING OF "MEMBERSHIP." The language employed by Congress in enacting the heart of § 8 (a) (3) is identical with that of the predecessor section in the Wagner Act, § 8 (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 49 Stat. 452. These are the first cases to reach us involving application of this section or its predecessor to the problem of encouragement of union membership by employers. We have on many occasions considered aspects of the application of these sections to actions by employers aimed at discouragement of union membership." The principles invoked in those cases are, of course, equally applicable to both aspects of employer discrimination, but most of the issues of statutory construction raised here have not previously been considered by this Court. In past cases we have been called upon to clarify the terms "discrimination" and "membership in any labor organization." Discrimination is not contested in these cases: involuntary reduction of seniority, refusal to hire for an available job, and disparate wage treatment are clearly discriminatory. But the scope of the phrase "membership in any labor organization" is in issue here. Subject to limitations, we have held that phrase to in 38 37 See, e. g., Labor Board v. Gullett Gin Co., Inc., 340 U. S. 361; Universal Camera Corp. v. Labor Board, 340 U. S. 474; Phelps Dodge Corp. v. Labor Board, 313 U. S. 177; Republic Steel Corp. v. Labor Board, 311 U. S. 7; Labor Board v. Sands Mfg. Co., 306 U. S. 332; Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240; Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333; Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1. 38 Labor Board v. Fansteel Metallurgical Corp., supra; Labor Board v. Sands Mfg. Co., supra; Southern Steamship Co. v. Labor Board, 316 U. S. 31. Cf. Labor Board v. Electrical Workers, 346 U. S. 464. 288037 0-54-8 Opinion of the Court. 347 U.S. clude discrimination to discourage participation in union activities as well as to discourage adhesion to union membership.3 Similar principles govern the interpretation of union membership where encouragement is alleged. The policy of the Act is to insulate employees' jobs from their organizational rights.10 Thus §§ 8 (a)(3) and 8 (b) (2) were designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood. The only limitation Congress has chosen to impose on this right is specified in the proviso to § 8 (a) (3) which authorizes employers to enter into certain union security contracts, but prohibits discharge under such contracts if membership "was not available to the employee on the same terms and conditions generally applicable to other members" or if "membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." Lengthy legislative debate preceded the 1947 amendment to the Act which thus limited 9 41 39 Associated Press v. Labor Board, 301 U. S. 103. Cf. Labor Board v. Kennametal, Inc., 182 F. 2d 817; Labor Board v. Peter Cailler Kohler Swiss Chocolates Co., 130 F. 2d 503. 40 See § 7, 29 U. S. C. (Supp. V) § 157, note 13, supra. The full text of the proviso to § 8 (a) (3) is set out in note 1, supra. That Congress intended § 8 (a) (3) to proscribe all discrimination to encourage union membership not excepted by the proviso, see H. Conf. Rep. No. 510, 80th Cong., 1st Sess. 44, where it is stated that §8 (a) (3) "prohibits an employer from discriminating against an employee by reason of his membership or nonmembership in a labor organization, except to the extent that he obligates himself to do so under the terms of a permitted union shop or maintenance of membership contract." 17 Opinion of the Court. 42 permissible employer discrimination. This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of unions' concern about "free riders," i. e., employees who receive the benefits of union representation but are unwilling to contribute their share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason." Thus an employer can discharge an employee for nonmembership in a union if the employer has entered a union security contract valid under the Act with such union, and if the other requirements of the proviso are met. No other 42 Under the Wagner Act the proviso read: "Provided, That nothing in sections 151-166 of this title or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in said sections as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 159 (a) of this title, in the appropriate collective bargaining unit covered by such agreement when made." 29 U. S. C. (1946 ed.) § 158 (3). See Colgate-Palmolive-Peet Co. v. Labor Board, 338 U. S. 355. 43 For example, Senator Taft said: "It is contended that the employer should be obliged to discharge the man because the union does not like him. That is what we are trying to prevent. I do not see why a union should have such power over a man in that situation." 93 Cong. Rec. 4191. In H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 33, it was stated that "The bill prohibits what is commonly known as the closed shop, or any form of compulsory unionism that requires a person to be a member of a union in good standing when the employer hires him." See also 93 Cong. Rec. 4135, 4193, 4272, 4275, 4432; S. Rep. No. 105, 80th Cong., 1st Sess. 6 et seq.; H. R. 3020, 80th Cong., 1st Sess. 27-28; H. Conf. Rep. No. 510, 80th Cong., 1st Sess. 41. |