concurring in part and dissenting in part:
The opinion of my brethren in the majority is so carefully written and closely reasoned that I hesitate to express any disagreement with it. Indeed, insofar as the majority absolves the International of monetary liability and upholds the trial examiner’s decision not to permit any amendment to the complaint, I concur in its judgment. But in this age of “strict constructionism” I simply cannot bring myself to believe that the words of Section 8(b) (1) (B) mean what the majority says they mean.
I am not suggesting that the TaftHartley Act need invariably be given a rigid or literal construction. Labor legislation does not always lend itself to the “plain meaning” school of jurisprudence. Cf. NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 179, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). But I am suggesting that it is improper for this court to condone a major shift in federal labor policy when the Labor Board can point to nothing in the words of the statute, nothing in its legislative history, and nothing in the ascertainable congressional purpose to support its action. “The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” American Ship Building Co. v. N. L. R. B., 380 U.S. 300, 318, 85 S. Ct. 955, 13 L.Ed.2d 855 (1965). In my view, the determination whether supervisory personnel who are members of a union need protection from union discipline is one “properly made by Congress.” For the moment, at least, Congress has decided not to grant supervisors this protection. Cf. 29 U.S.C. § 152(3) (1970); Carpenters District Council of Milwaukee County, etc. v. NLRB, 107 U.S.App.D.C. 55, 57, 274 F.2d 564, 566 (1959). Until Congress changes its mind, I do not believe it proper for the Board to graft such protection onto the Act by twisting the clear meaning of an unrelated provision so as to serve a purpose which Congress never intended. I must, therefore, dissent from that portion of the majority’s opinion and judgment which enforces the Board’s Section 8(b)(1)(B) order.
I
Section 8(b)(1)(B), 29 U.S.C. § 158(b)(1)(B), provides: “It shall be an unfair labor practice for a labor organization or its agents * * * to restrain or coerce * * * an employer in the selection of his representatives for *262the purposes of collective bargaining or the adjustment of grievances * * The purpose of this provision is clear on its face. It is designed to prevent unions from restricting management’s free choice of its agent to bargain with the union or adjust grievances. As Senator Taft explained on the Senate floor, “This unfair labor practice * * * is not perhaps of tremendous importance, but employees cannot say to their employer, ‘We do not like Mr. X, we will not meet Mr. X. You have to send us Mr. Y.’ That has been done. It would prevent their saying to the employer, ‘You have to fire Foreman Jones. We do not like Foreman Jones, and therefore you have to fire him, or we will not go to work.’ ” 2 Legislative History of the Labor Management Relations Act (hereinafter “Legis.Hist.”) 1012 (1948). See also Senate Report No. 105 on S. 1126, 80th Cong., 1st Sess., 21, in 1 Legis.Hist. 407, 427; speech of Senator Ellender, 2 Legis.Hist. 1077.1
That is the way Section 8(b)(1)(B) was interpreted for over 20 years after its initial enactment,2 and during this entire period no one so much as suggested that it had any broader application.3 Then, beginning in 1968, the Labor Board started to erode the original understanding as to the limits of Section 8(b)(1)(B). The process began with the Board’s decision in San Francisco-Oakland Mailers’ Union No. 18, 172 NLRB No. 252 (1968). In Oakland Mailers, management charged the' union with attempting to discipline a foreman for the manner in which he interpreted the collective bargaining contract. Although there was no allegation that the union was attempting to coerce the employer into hiring a new representative for collective bargaining and adjustment of grievances, the Board nonetheless found a Section 8(b)(1)(B) violation. The union’s actions, according to the Board, “were designed to change the [company’s] representatives from persons representing the viewpoint of management to persons responsive or subservient to [the union’s] will.” Slip opinion at 2. This was the sort of pressure which Section 8(b)(1)(B) was designed to prevent. “That [the union] might have sought the substitution of attitudes rather than persons, and may have exerted its pressure upon the [company] by indirect rather than direct means, cannot alter the ultimate fact that pressure was exerted here for the purpose of interfering with the [company’s] control over its representatives. Realistically, the [company] would have to replace its foremen or face de facto nonrepresentation by them.” Id. at 3.
Standing alone, the Oakland Mailers doctrine places a permissible gloss on the statute.4 Although Section 8(b) *263(1)(B) speaks literally in terms of coercing the “selection” of employer representatives, it is clear that management’s right to a free selection would be hollow indeed if the union could dictate the manner in which the selected representative performed his collective bargaining and grievance settlement duties. But Oakland Mailers was not permitted to stand alone. After pausing briefly to consolidate its gains,5 the Board again moved to expand the contours of the statute. In Meat Cutters Union Local 81, 185 NLRB No. 130 (1970), the Board found a Section 8(b)(1)(B) violation when a union attempted to discipline a supervisory employee for obeying a company order to institute a new meat procurement policy. Meat Cutters differed from Oakland Mailers in that no one claimed that the new procurement policy had anything to do with the supervisors’ grievance settlement or collective bargaining functions.6 It was thus unclear how management could claim that even a “substitution of attitudes” as to these functions had occurred. To be sure, a supervisor might be indirectly influenced in his bargaining and grievance settlement duties by union discipline exacted for his conduct in an unrelated area.7 But this danger exists whenever a union disciplines a supervisor, and the Board had explicitly rejected a per se ban on all union discipline of supervisory employees. See Local Union 453, Brhd of Painters, Decorators & Paperhangers, 183 NLRB No. 24 (1970). Nonetheless, the Board read into the Act a congressional intent to require the undivided loyalty of supervisors to management in the performance of all their management functions and, on the basis of this reading, found a Section 8(b) (1) (B) violation.
When Meat Cutters was appealed to this court, we were clearly concerned that the Board’s Section 8(b)(1)(B) decisions might be deteriorating into a flat prohibition against any union discipline of supervisors, thus giving supervisory personnel all the benefits of union membership without having to bear any of the responsibilities. In its Meat Cutters brief the Board sought to meet these fears and dispel them. “[I]t is only when the representative’s obligations to the union conflict with his management *264responsibilities that his union obligations are compelled to yield,” the Board argued. “Thus, in each ease, including the instant case, where the Board has found a Section 8(b)(1)(B) violation based on union discipline of a management representative, the conduct which prompted disciplinary action consisted of the representative’s efforts to discharge his management responsibilities. * * •» jn fact; the Board has recently dismissed a Section 8(b)(1)(B) complaint on the ground that the infraction of union rules for which the employer representative was disciplined did not involve the exercise of supervisory or managerial authority.” NLRB brief in Meat Cutters Union Local 81, etc. v. NLRB, 147 U.S.App.D.C. 375, 458 F.2d 794 (1972), at 15.
Partially on the basis of these representations we enforced the Board’s decision, but with the explicit caveat that “[t]he rule here applied by the Board only affects union discipline which is imposed upon a member, who has responsibilities as a representative of his employer in administering the collective bargaining agreement or the adjustment of employee grievances, because he has performed duties as a management representative. * * * The N.L.R.B. has made it clear that a union may legally discipline a supervisor-member for acts which are not performed by the individual in furtherance of his obligations as the employer’s representative.” Meat Cutters Union Local 81 v. NLRB, supra, 147 U.S.App.D.C. at 379-380 n.12, 458 F.2d at 798-799 n.12. (Emphasis in original.)
After this warning, I would have supposed it would be obvious to the Board that Section 8(b)(1)(B) had already been expanded to its limits. Yet the Board now seeks to expand it once again, this time by reading it in a way which, in the words of the learned trial examiner, “stretch [es] the statute beyond what I would otherwise consider the breaking point.” Int. Brhd of Electrical Workers, 192 NLRB No. 17 (1971) (trial examiner’s decision at 11). Despite the Board’s explicit assurance that it would find Section 8(b)(1)(B) violations only when supervisors were fined for “the exercise of supervisory or managerial authority,” the Board has here applied the statute to fines levied against supervisors for performance of ordinary rank-and-file work — work which could not possibly be considered to fall within their ordinary managerial responsibilities. This reading of the statute goes beyond Oakland Mailers, beyond Meat Cutters, and beyond anything which the Board has ever suggested in the past.8 As the trial examiner pointed out, the previous cases are all
“readily distinguishable here where the action for which the supervisors were fined bore no direct relation to their work as supervisors or to any interpretation of the contract. As an original proposition I would be inclined to construe Section 8(b)(1)(B) as interdicting union fines of supervisors only when the conduct for which the supervisor was fined bore some relation to his role as a representative of management in ‘collective bargaining or the adjustment of grievances,’ to quote Section 8(b)(1)(B). In the instant case the question confronting the supervisors whether to work or to respect the strike call of their Union was in no way related to those subjects. Moreover, the Company itself has made it clear that it was not demanding that its supervisors work during the strike. *265On the contrary, the Company expressly left the decision up to each individual supervisor, with specific assurances that no reprisal would be visited on those who chose not to work. After the strike the Company promoted some of the supervisors who had not worked during the strike. I therefore find some difficulty in concluding that the Company was restrained or coerced by the Union’s action in fining the supervisors who worked, or even in finding that the Union’s action had any natural or inherent tendency to restrain or coerce the Company. * * * ”
192 NLRB No. 17 (trial examiner’s decision at 9).9
Like the trial examiner, I also find “some difficulty” in so concluding. In fact, as I hope to show in Part II of this opinion, the Board’s present interpretation of Section 8(b)(1)(B), in spite of its explicit language, makes it an essentially limitless prohibition against any union discipline of supervisory personnel. Moreover, as Part III will show, this expansion of the statute is in the teeth of explicit Supreme Court decisions which give it a narrower scope. Finally, as I will argue in Part IV, the Board’s reading of the statute finds no support in the policy of the Taft-Hartley Act and cannot be justified by reference to the Board’s discretion in administering federal labor legislation.
II
It seems to be conceded by all parties that, at least in theory, Section 8(b)(1)(B) does not absolutely proscribe all union discipline of supervisors who are union members. See majority opinion at note 28. Indeed, the Board so held in Local Union 453, Brhd of Painters, Decorators & Paperhangers, supra, and Judge MacKinnon’s opinion in Meat Cutters expressly approved the Local Union 453 decision. See 147 U.S. App.D.C. at 379-380 n.12, 458 F.2d at 798-799 n.12. The Taft-Hartley Act does not compel supervisors to become union members, and an employer is within his rights if he insists that supervisory personnel remain nonunion. But if supervisors are permitted to join a union, they receive certain benefits from their union membership and incur certain concomitant obligations. Surely it cannot be doubted, for example, that a union could discipline a supervisor for refusing to pay his dues, for deliberately disrupting union meetings, or, to cite an example used by the trial examiner, for refusing to join a union bowling league.
To be sure, as Oakland Mailers makes clear, there are also some supervisory activities which Section 8(b)(1)(B) makes immune from union discipline. A supervisor-union member is in the difficult position of simultaneously serving two masters. Any sensible interpretation of the statute must, therefore, involve a determination of what obligations a supervisor owes to his union and what obligations he owes to his employer.
In its opinion today, the majority purports to adhere to these principles. It suggests that a supervisor is immune from union discipline only when he is performing “management functions” and that when he is engaged in “non-management” activity the union is free *266to impose reasonable fines. Unfortunately, however, the majority nowhere defines precisely what it means by “management functions” and it is clear from the way in which the test is applied that it in fact imposes no limits at all on the reach of Section 8(b) (1) (B).
At the outset, it should be clear that the “management function” test does not mean what this court has taken it to mean in the past. In Meat Cutters we upheld the Board’s unfair labor practice finding because the supervisors were fined for engaging in usual and traditional management activity. But no one contends that the supervisors in this case were performing functions which supervisors usually or traditionally perform. The record shows that these supervisors were engaged in rank-and-file struck work which, under normal circumstances, was the responsibility of the ordinary employees. Saying that rank-and-file labor is an ordinary management function is like saying that black is white.10 The two are usually perceived as diametrical opposites, so that if the one is taken to include the other, the concepts lose all meaning. Cf. General Tire & Rubber Co. v. NLRB, 1 Cir., 451 F.2d 257, 258-259 (1971) 11
Perhaps the majority means to suggest that the supervisors are engaged in a “management function” whenever they take action pursuant to a management order. It should be noted, however, that this reading of the statute is at war with the notion that a supervisor undertakes certain duties when he joins a union and that these duties are enforceable by appropriate union sanctions. Suppose, for example, that management orders its supervisors to disrupt a lawful union meeting. Could it seriously be argued that the union must tolerate this disturbance without taking disciplinary action because the supervisors were merely “following orders” ? If, as argued above, Section 8(b)(1)(B) leaves intact some duties which supervisor-members owe to their unions, then it cannot be that these duties can be abrogated merely because management orders their abrogation. Moreover, even if the management order test were a defensible limiting principle, it would not support the Board’s decision in this case. As the majority itself points out, there was no management order here requiring supervisors to perform rank-and-file work. On the contrary, management explicitly informed the supervisors that they would not be required to cross the picket line during the strike, and several supervisors who declined to do so were subsequently promoted.
My brethren seek to avoid this embarrassment by suggesting that the proper test is not whether the supervisors acted pursuant to a management order, but rather whether their actions were undertaken in the interests of management. *267It should be apparent, however, that this test fares no better as a limiting principle than the management order test. In fact, to the extent that management and union are viewed as adversaries, it is always in management’s interests for the supervisors to take actions which weaken the union. For example, it might well be in management’s interest for the supervisors to stop paying their union dues, thereby depleting the union’s financial resources and limiting its strike capability. Yet all concede that it would be intolerable for supervisors to retain all the benefits of union membership without any enforceable duty to bear some of the financial burdens.
The “management interest” test also fails to justify the actions of the Board concerning the Bell Supervisors Association issue. The Board found that the union committed a Section 8(b)(1)(B) violation when it fined the supervisors for forming the so-called “Bell Supervisors Protective Association.” The Protective Association was formed in part for the purpose of prosecuting an unfair labor practice charge against the company.12 Thus if one wishes to explain this case in terms of a “management interest” standard, it must be contended that the company had an interest in prosecuting an unfair labor practice against itself!
I submit that there is something inherently wrong with a mode of statutory analysis that yields a product as nonessential as this. This court purports to limit Section 8(b)(1)(B) to union discipline for performance of management activities ordered by management or taken in the interests of management. Yet it then proceeds to apply the provision to a nonmanagement activity not ordered by management and directly contrary to management’s interests. I am forced to conclude that the unfair labor practices found in this case are ultimately explicable only if one assumes that all union fines of supervisor-members are unlawful on their face. But that is the one theory which my brethren explicitly disavow and which the statute will not permit.
Ill
The Board’s rough sailing through the complexities of Section 8(b)(1)(B) might, perhaps, be more understandable if the seas were entirely uncharted. But in fact union discipline of strikebreakers and other dissidents has been the subject of a series of important Supreme Court decisions which the Board inexplicably chose to ignore. These decisions, unlike the Board’s approach, set out a rational, workable interpretation of Section 8(b)(1) which balances the union’s right to enforce reasonable discipline against the rights of employers and union members to be free from union overreaching. They should, I think, control the outcome of this case.
The first and most important of these decisions is NLRB v. Allis-Chalmers Manufacturing Co., supra. In all relevant respects, Allis-Chalmers is indistinguishable from this case. There, as here, the union sought to impose reasonable fines on union members who had crossed a picket line during a lawful strike. In Allis-Chalmers, however, none of the fined members were supervisors, so the relevant provision governing the union’s conduct was subsection (A) of Section 8(b)(1) rather than *268subsection (B).13 However, when the Supreme Court fund the union innocent of any unfair labor practice, it did so not because of anything in subsection (A), but rather because of its interpretation of the words “restrain or coerce” which are common to subsections (A) and (B). See Christensen, Union Discipline Under Federal Law: Institutional Dilemmas in an Industrial Democracy, 43 N.Y.U.L.Rev. 227, 268 (1968). Thus the Court stated: “It is highly unrealistic to regard § 8(b)(1), and particularly its words ‘restrain or coerce,’ as precisely and unambiguously covering the union conduct involved in this case.” 388 U.S. at 179, 87 S.Ct. at 2006. (Emphasis added.) On the contrary, such a reading of Section 8(b)(1) would “attribute to Congress an intent at war with the understanding of the union-membership relation which has been at the heart of its effort ‘to fashion a coherent labor policy’ and which has been a predicate underlying action by this Court and the state courts. More importantly, it is to say that Congress limited unions in the powers necessary to the discharge of their role as exclusive statutory bargaining agents by impairing the usefulness of labor’s cherished strike weapon.” Id. at 183, 87 S.Ct. at 2008.
Of course, Allis-Chalmers did not mean that unions were free to impose discipline for any purpose at all. Section 8(b)(1) must be read so as to conform with the other provisions of federal labor law. See, e. g., NLRB v. Int. Ladies’ Garment Workers Union, 3 Cir., 274 F.2d 376 (1960); Silard, Labor Board Regulation of Union Discipline After Allis-Chalmers, Marine Workers and Scofield, 38 Geo.Wash.L.Rev. 187, 193-196 (1969). Thus if a union rule “invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating § 8(b)(1).” Scofield v. NLRB, 394 U.S. 423, 429, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969). See NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U. S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968). But if one thing is clear after Allis-Chalmers, it is that there is no “overriding policy of the labor laws” which prohibits reasonable union fines levied against members who cross a lawful picket line to perform rank-and-file struck work. In fact, quite the contrary is true.
“Integral to [the] federal labor policy has been the power in the chosen union to protect against erosion its status under that policy through reasonable discipline of members who violate rules and regulations governing membership. That power is particularly vital when the members engage in strikes. The economic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms, and ‘[t]he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent > * -X- #»
NLRB v. Allis-Chalmers Manufacturing Co., supra, 388 U.S. at 181, 87 S.Ct. at 2006. (Footnotes omitted.)
The majority utilizes two arguments in attempting to distinguish Allis-Chalmers. First my brethren contend that the Allis-Chalmers Court relied on the proviso in Section 8(b)(1)(A) — a proviso which is not attached to subjection (B) of Section 8(b)(1).14 I must admit I find it difficult to understand how the majority can maintain this position in light of the Allis-Chalmers Court’s explicit disclaimer of any reliance on the proviso.15 As Mr. Justice Black pointed *269out in dissent: “Since the union resorted to the courts to enforce its fines instead of relying on its own internal sanctions such as expulsion from membership, the Court correctly assumes that the proviso to § 8(b) (1) (A) cannot be read to authorize its holding.” 388 U.S. at 200, 87 S.Ct. at 2017. (Emphasis added.) Only a few months ago Judge MacKinnon, speaking for a unanimous panel, characterized the holding in Allis-Chalmers as follows: “Instead of relying upon the express language of the proviso, * * the Supreme Court carefully analyzed the entire legislative history of Section 8(b)(1)(A), and it concluded that Congress did not intend to prohibit such internal union discipline by the prohibition against ‘restraint’ or ‘coercion.’ ” Booster Lodge No. 405, Int. Assn of Machinists v. NLRB, 148 U.S. App.D.C. 119, 125, 459 F.2d 1143, 1149, (1972). In light of this statement, I am frankly amazed to see the proviso argument resurrected at this late date.16
Perhaps sensing that substantial reliance on the proviso does little to advance its position, the majority resorts to a second argument. Allis-Chalmers, it is argued, dealt only with internal union rules affecting the relationship between a member and the labor organization to which he belongs. Here, however, the union rule had an “effect on parties external to [the union-member] relationship” and therefore falls outside the Allis-Chalmers rationale. Majority opinion at 252 of 159 - U.S.App.D.C., at 1123 of 487 F.2d.
This distinction is so subtle that someone in an uncharitable frame of mind might be tempted to characterize it as altogether chimerical. It seems clear, for example, that the union rule in Allis-Chalmers had, and was intended to have, an external effect on the employer. By deterring strikebreakers, the rule assured union solidarity and thereby allowed the union to bring greater economic pressure on the company. I simply cannot understand why the anti-strikebreaking rule in Allis-Chalmers should be characterized as “internal” while precisely the same sort of anti-strikebreaking rule in this case suddenly becomes “external.”
Perhaps there is nonetheless some substance to the internal-external dichotomy, but the distinction, if one exists, was apparently too subtle for the Supreme Court to grasp. In Scofield v. NLRB, supra, the Court unambiguously rejected the internal-external test as a basis for resolving Section 8(b)(1) cases. “It is doubtless true,” the Court conceded, “that the union rule in question here affects the interests of all three participants in the labor-management relation: employer, employee, and union. Although the enforcement of the rule is handled as an internal union matter, the rule has and was intended to *270have an impact beyond the confines of the union organization. But as Allis-Chalmers and Marine Workers made clear, it does not follow from this that the enforcement of the rule violates § 8(b)(1)(A) unless some impairment of a statutory labor policy can be shown.” 394 U.S. at 431-432, 89 S.Ct. at 1159. (Footnote omitted.) Similarly, I do not see why the external impact of this union rule should affect its validity. The majority ignores the fact that the very purpose of having a union is to affect external relations between employees and their employer. All union rules are therefore “external” since they are all designed to insure a strong and united front among union members when the union confronts its employer adversary. Allis-Chalmers, Scofield and Marine Workers stand for the proposition that such rules may nonetheless be enforced “unless some impairment of a statutory labor policy can be shown.” And Allis-Chalmers makes clear that there is no impairment of “statutory labor policy” when, as here, a union takes reasonable action to insure strike solidarity among its members.
IV
Of course, it is true that Allis-Chalmers dealt with fines imposed on ordinary members while here the fines were imposed on supervisors. As argued above, this fact is without relevance to the problem of statutory construction, since the Allis-Chalmers Court relied on the general language of Section 8(b)(1) which is applicable to both subsections (A) and (B). Nonetheless, the difference between the two cases might be relevant to the existence of a countervailing “statutory labor policy” which would justify finding a Section 8(b)(1) violation. Specifically, the majority argues that, even if there is no “statutory labor policy” favoring the freedom of union members to- perform struck work, there is such a policy which favors insulating supervisory personnel from union discipline.
If this argument is kept within proper bounds, I think it has some validity. Indeed, I think Section 8(b)(1)(B) itself expresses a statutory labor policy which favors allowing supervisory personnel to perform their collective bargaining and grievance settling functions free from union coercion. That, as I understand it, was the holding of Oakland Mailers, and I have no quarrel with that decision. But the Board has not kept this argument within proper bounds. Instead, the Board purports to find a broader “statutory labor policy” requiring that the supervisor’s absolute duty to his employer always take precedence over any conflicting duty to his union.
With all respect, I think this policy has been manufactured out of whole cloth. While the majority finds it “intuitively obvious” that such a policy exists, majority opinion at 251 of 159 U. S.App.D.C., at 1122 of 487 F.2d, it is unable to cite a single court decision, a single provision in the statute, or a single element of the legislative history to support its conclusion.17 To be sure, Section 2(3) of the Act allows an employer to keep his supervisors out of the union,18 and a union may even commit *271an unfair labor practice if it bargains to an impasse over unionization of supervisors. See International Typographical Union v. NLRB, 1 Cir., 278 F.2d 6 (1960). But here the employer chose not to exercise his option to have nonunion supervisors. The company agreed that supervisory personnel would be union members, and Section 14(a) of the Act makes that agreement legal.19
We can be safe in assuming that neither the union nor management agreed to the unionization of supervisors because of an abstract belief in the virtues of trade unionism. The union presumably insisted on this clause in the contract so that it would have some control over the actions of supervisors, and management presumably accepted it because the union gave up something else in return. By enacting Section 14(a), which permits supervisors to join unions, Congress expressly permitted management and labor to reach just such an agreement. See also 29 U.S.C. § 158(a)(3)(i) (1970). Yet now management seeks to abrogate its part of the bargain by insisting that supervisors obey management alone. Like the Supreme Court, I can “discern no basis in the statutory labor policy encouraging collective bargaining for giving the employer a better bargain than he has been able to strike at the bargaining table.” Scofield v. NLRB, supra, 394 U.S. at 433, 89 S.Ct. at 1159.
Nor can I see a basis in federal labor policy for permitting supervisors to retain all the benefits of union membership while incurring none of the costs. As Professor Gould has pointed out:
“ * * [Supervisors who remain union members are most often obtaining additional benefits. Frequently, they have remained members in order to retain possession of withdrawal cards which will make it less expensive for them to re-enter the trade or another plant under union jurisdiction. Under the Allis-Chalmers rationale, this would seem to indicate a pledge of allegiance by the supervisor and therefore should be deemed consent by such an individual to render himself liable to financial obligations where the union’s interest is di-. rect and where the conduct engaged in is somewhat distant from basic supervisory functions. If the employer is unduly harmed by such a rule, it seems to me that its obligation is to make the supervisory position financially attractive enough for the supervisor to forego the benefits of union membership and to resign.”
Gould, Some Limitations Upon Union Discipline Under the National Labor Relations Act: The Radiations of Allis-Chalmers, 1970 Duke L.J, 1067, 1129 (1970).
To be sure, the Labor Board is entitled to great deference when it interprets the act it , administers. See, e. g., Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). But this deference has its limits. In the final analysis, “administrative experience is of weight in judicial review only to this point — it is a persuasive reason for deference to the [Board] in the exercise of its discretionary powers under and within the law. It cannot be invoked to support action outside of the law. And what action is, and what is not, within the law must be determined by courts, when authorized to review, no matter how much deference is due to the agency’s fact finding. Surely an administrative agency is not a law unto itself * * *.” SEC v. Chenery Corp., 332 U.S. 194, 215, 67 S.Ct. 1760, 1762, 91 L. Ed. 1995 (1947) (Mr. Justice Jackson, dissenting).
*272In my view, the Labor Board’s action in this case was outside the law. I submit that the Section 8(b)(1)(B) requirement that unions not “restrain or coerce * * * an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances” cannot reasonably be read to prohibit discipline of union members — supervisors though they be — for performance of rank-and-file struck work. I would therefore decline to enforce the Board’s order.
. The majority’s assertion to the contrary notwithstanding, there is not so much as a word in the legislative history of this or any other section of the Taft-Hartley Act which indicates that § 8(b) (1) (B) was intended to go further and protect supervisors from union discipline. In fact, Congress made quite clear that it had no intention to interfere with the disciplinary activity of unions against members. See, e. g., S.Rep. No. 105- on S. 1126, 80th Cong., 1st Sess., 20, in 1 Legis. Hist, at 426.
. See, e. g., Iron Workers Union v. Perko, 373 U.S. 701, 708 (1963) ; Cheney California Lumber Co. v. NLRB, 9 Cir., 319 F.2d 375, 381 (1963) ; NLRB v. Puerto Rico Rayon Mills, Inc., 1 Cir., 293 F.2d 941, 947 (1961) ; NLRB v. Local 294, Int. Brhd of Teamsters, 2 Cir., 284 F.2d 893 (1960) ; NLRB v. Int. Ladies’ Garment Workers Union, 3 Cir., 274 F.2d 376 (1960) ; Brhd of Teamsters & Auto Truck Drivers Local No. 70, 183 NLRB No. 137 (1970).
. Thus until recently it seems to have been assumed that, while management was entitled to insist on nonunion supervisory personnel, a union was free to discipline supervisors who were union members. See, e. g., Int. Typographical Union Local 38 v. NLRB, 1 Cir., 278 F.2d 6, 12 (1960), affirmed by equally divided Court, 365 U.S. 705, 81 S.Ct. 855, 6 L.Ed.2d 36 (1961).
. Indeed, when a union disciplines a supervisor with the specific intent of forcing management to replace him, the union’s conduct falls within the core prohibition of § 8(b)(1)(B). See, e. g., *263Dallas Mailers Union, Local 143 v. NLRB, 144 U.S.App.D.C. 254, 445 F.2d 730 (1971).
. The Board won judicial approval of the Oakland Mailers doctrine in Dallas Mailers Union, Local No. 143 v. NLRB, supra note 4; NLRB v. Sheet Metal Workers Int. Assn., Local 49, 10 Cir., 430 F.2d 1348 (1970) ; and NLRB v. Toledo Locals Nos. 15-P & 272 of Lithographers, etc., Union, 6 Cir., 437 F.2d 55 (1971). The doctrine was applied without essential change in New Mexico District Council of Carpenters & Joiners and Galen R. Wilson, 176 NLRB 797 (1969) ; New Mexico District Council of Carpenters & Joiners and Marvin Freese, 177 NLRB 500 (1969) ; Houston Typographical Union No. 87, 182 NLRB 592; and Freight, Construction, General Drivers, etc. Union, Local 287, 183 NLRB No. 49 (1970).
. Superficially, Meat Cutters migh appear similar to NLRB v. Sheet Metal Workers Int. Assn, Local 49, supra note 5. In Sheet Metal Workers the Board found a § 8(b)(1)(B) violation when the union fined a supervisor for performing rank- and-file work ostensibly unrelated to his collective bargaining and grievance adjustment functions, and the 10th Circuit enforced the Board’s order. However, a close examination of that case makes clear that the fine was imposed because the supervisor intrepreted the union contract in a manner which permitted him to perform the rank-and-file work. See also NLRB v. Toledo Locals Nos. 15-P & 272 of Lithographers, etc., Union, supra note 5. Contract interpretation is, of course, part of a supervisor’s grievance settlement duties. In Meat Cutters no claim was made that the supervisors were engaged in their grievance settlement functions when they elected to obey the management order to institute a new meat procurement policy.
.The case would have been considerably easier if the Board had found that the supervisors were disciplined with the intent to influence their collective bargaining and grievance settlement decisions. Cf. Local Union No. 453, Brhd of Painters, Decorators & Paperhangers, 183 NL RB No. 24 (1970). But no such finding was made.
. Once before, the Board applied § 8(b) (1) (B) to union fines of supervisors doing rank-and-file struck work. See Toledo Locals Nos. 15-P & 272 of Lithographers etc. Union, 175, NLRB 1072 (1969), enforced, 6 Cir., 437 F.2d 55 (1971). However, in the Toledo case the supervisors were fined for interpreting the contract in a manner which permitted them to perform the work. See 437 F.2d at 57. Since contract interpretation is clearly a part of a supervisor’s normal grievance settling duties, the Toledo case is easily distinguishable. See note 6 supra.
. Although plainly reluctant to find a § 8(b) (1) (B) violation, the trial examiner nevertheless felt compelled to do so because of the Board’s prior decision in New Mexico District Council of Carpenters & Joiners and Galen K. Wilson, supra note 5. A close look at New Mexico District Council, however, makes clear, that that case is inapposite. The Carpenters & Joiners Union was held to have violated § 8(b)(1)(B) when it disciplined a supervisor who co-signed a letter urging employees to vote with management in a union election. Obviously, it is part of a supervisor’s collective bargaining duties to urge management’s viewpoint on union members. The Board’s holding in New Mexico District Council is therefore squarely within the Oakland Mailers rule. It is far from obvious, however, that a supervisor’s ordinary duties include performance of rank-and-file work. See text at notes 10-11 infra.
. Thus, as the majority itself concedes, “ ‘Rank-and-file work’ concerns that work which is ordinarily performed by regular, non-supervisory employees in the bargaining unit.” Majority op. at note 4. Inasmuch as the majority also concedes that supervisors can be fined for their non-supervisory activities, majority op. at note 28, it is difficult to understand the theory under which fines for performance of rank-and-file work are proscribed.
. It is interesting that none of the conduct for which these supervisors were punished fell within the description of supervisory functions contained in the Act. Section 2(11) of the Act, 29 U.S.C. § 152(11) provides: “The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” Since these “supervisors” were performing none of these functions at the time when discipline was imposed, but rather were assigned to ordinary rank- and-file work, it could be argued that they were not then supervisors within the meaning of the Act and, hence, were not within the ambit of § 8(b)(1)(B).
. On May 21, 1968, the Protective Association filed an unfair labor practice charge, No. 13-CA-8451, alleging that the company’s collective bargaining contract was illegal because the union security clause required that supervisory and non-supervisory personnel be placed in the same collective bargaining unit. The General Counsel refused to prosecute the complaint, citing Nassau & Suffolk Contractors Assn, Inc., 118 NLRB 174, 177-184 (1957). See Joint Appendix at 201-202. Subsequently, the Protective Association attempted to amend its § 8(b) (1) (B) complaint so as to include a similar charge against the union. See JA at 184-185. The trial examiner refused to permit the amendment, and we uphold that decision .today. See majority op. at 259-261 of 159 U.S.App.D.C., 1130-1132 of 487 F.2d.
.Section 8(b)(1)(A), 29 U.S.C. § 158 (b)(1)(A), provides, in relevant part: “It shall be an unfair labor practice for a labor organization or its agents * * * to restrain or coerce * * * employees in the exercise of the rights guaranteed in section 157 of this title * * sjc ft
. The proviso states: “Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein *
. Thus the Allis-Chalmers plurality held: “It is no answer that the proviso to § *2698(b) (1) (A) preserves to the union the power to expel the offending member”, 388 U.S. at 183, 87 S.Ct. at 2008 (emphasis added), and upheld union fines, not within the scope of the proviso, because “literal application of the imprecise words ‘restrain or coerce’ * * * [would produce] * ® * extraordinary results * * Id. at 184, 87 S.Ct. at 2008.
. To support its argument that the proviso makes the Supreme Court’s Allis-Chalmers decision irrelevant to § 8(b) (1) (B) cases, the majority cites Gould, Some Limitations Upon Union Discipline Under the National Labor Relations Act: The Radiations of Allis-Chalmers, 1970 Duke L.J. 1067, 1128. This is what Professor Gould says to the page cited: “Of course, the existence of the proviso was not critical to the Court’s conclusion in Allis-Chalmers although it did provide ‘cogent support.’ In Allis-Chalmers the Court was primarily concerned with an assessment of the language ‘restrain or coerce’ — language which is applicable to section 8(b) (1) (B) as well as section 8 (b) (1) (A). Therefore, the mere failure of Congress to attach the proviso to section 8(b) (1) (B) does not establish the conclusion that a union’s internal affairs are to be excluded from consideration.” Interestingly, Professor Gould ultimately concludes that under Allis-Chalmers § 8(b) (1) (B) does permit unions to fine supervisor-members for performance of struck work. See 1970 Duke L.J. at 1128-1129.
. The majority quotes dicta from Carpenters District Council of Milwaukee County, etc. v. NLRB, 107 U.S.App. D.C. 55, 57, 274 F.2d 564, 566 (1959), to the effect that an employer is free to discharge supervisors to prevent them from joining unions. But no one is claiming that employers have a statutory obligation to allow their supervisors to become union members. Rather, the issue in this case is whether anything in the Act prohibits a union from enforcing reasonable obligations of union membership against supervisors once the employer has decided to allow his supervisory personnel to assume union membership.
. Section 2(3), 29 U.S.C. § 152(3) (1970), provides: “The term ‘employee’ shall include any employee * * but shall not include any individual employed ns * * * a supervisor * * *.” Section 7, 29 U.S.C. § 157 (1970), in turn, guarantees to “employees” only the right to form or join labor unions.
. Section 14(a), 29 U.S.C. § 164(a) (1970), provides: “Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter sliall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.”