concurring in part and dissenting in part:
I agree with the court’s Chevron step one conclusion that Congress has not spoken to “the precise question at issue,” Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984): How does section 8(d) of the National Labor Relations Act apply to hiring halls? But because the National Labor Relations Board’s resolution of that question represents a reasonable interpretation of section 8(d), and because in rejecting that interpretation the court has substituted its views of labor policy for those of the Board, I dissent.
Section 8(d) states that “[a]ny employee who engages in a strike within any notice period specified in this section ... shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of [the NLRA], ... but such loss of status for such employee shall terminate if and when he is reemployed by such employer.” 29 U.S.C. § 158(d). NLRA section 2(3) defines “employee” as “any employee,” providing that the term “shall not be limited to the employees of a particular *200employer, unless the Act explicitly states otherwise.” 29 U.S.C. § 152(3).
Reading section 8(d) as “explicitly statfing] otherwise,” the Board interprets the section as applying only to “employ-eels] of the employer engaged in the particular labor dispute,” in this case hiring hall registrants actually on referral to an employer at the time of the strike, rather than to all “employees,” a category the Supreme Court has held to include hiring hall registrants, Local 357, Int’l Bhd. of Teamsters v. NLRB, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961). Freeman Decorating Co., 336 N.L.R.B. No. 1, 2001 WL 1194948, at *9, 2001 NLRB LEXIS 798, at *32-*33 (Sept. 28, 2001). The court rejects this interpretation as unreasonable on two grounds: first, section 8(d)’s plain language, “[w]hen read in light of [its] structure and purpose, ... is not an ‘explicit’ limitation of the term ‘employee,’ ” Maj. Op. at 33, and second, the Board’s interpretation produces results inconsistent with the basic purposes of section 8(d) and the NLRA, Maj. Op. at 34-35.
With respect to the first rationale, if the court believes that section 8(d)’s plain language, structure, and purpose require that the section apply to all statutory “employees,” then it seems to me the court should have rejected the Board’s interpretation at Chevron step one. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (considering the Food, Drug, and Cosmetic Act’s plain language, structure, and purpose in rejecting, at Chevron step one, the Food and Drug Administration’s assertion of jurisdiction over tobacco products). But the court did not do so, and for good reason: Section 8(d) is far from unambiguous. Although the provision begins with the phrase “any employee,” its later reference to loss of status as an “employee of the employer engaged in the particular labor dispute” suggests that it applies only to those who can lose such status, namely current “employees of the employer engaged in the particular labor dispute.” In the ordinary case — for example, factory workers involved in an illegal strike — the question whether section 8(d) applies to “any employee” or only to “employees of the employer engaged in the particular labor dispute” makes no difference, since all illegal strikers are covered by both phrases. See, e.g., Marathon Elec. Mfg. Corp., 106 N.L.R.B. 1171, 1953 WL 11513 (1953), enforced sub nom. United Elec., Radio & Mach. Workers of Am., Local 1113 v. NLRB, 223 F.2d 338 (D.C.Cir.1955) (applying section 8(d) to factory workers engaged in an illegal strike). In the hiring hall situation, in contrast, registrants can be “employees” but not “employees of the employer engaged in the particular labor dispute.” Under these circumstances, it should come as no surprise that precisely how section 8(d) applies to hiring halls is far from clear, particularly since, as the parties agreed at oral argument, section 8(d)’s language and legislative history give no sign that Congress considered hiring halls when it enacted that section through the 1947 Taft-Hartley Amendments to the NLRA, Pub. L. No. 80-101, 61 Stat. 136. In fact, as late as 1957, the Board had held that hiring halls are illegal per se under the NLRA, Mountain Pac. Chapter of the Associated Gen. Contractors, Inc., 119 N.L.R.B. 883, 1958 WL 13490 (1957), a conclusion not overruled by the Supreme Court until 1961 — fourteen years after section 8(d)’s enactment, Local 357, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11.
Had Congress considered hiring halls when it enacted section 8(d), it could have used language that unambiguously resolved the precise issue we face here. For instance, if Congress had wished for section 8(d) to apply to all hiring hall registrants, it would have provided that “[a]ny *201employee who engages in a strike ... shall not enjoy lose-Ms status as an employee of the — employer engaged — in—the—particular labor-dispute, for the purposes of sections 8, 9, and 10 of [the NLRA].” Or if, in addition to specifying that section 8(d) applies to all hiring hall registrants, Congress had wished to adopt this court’s view — that illegal strikers do not “lose the Act’s protection for all time or for all employers,” Maj. Op. at 34 — it would have provided that “[a]ny employee who engages in a strike ... shall not enjoy lose Ms status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of [the NLRA].” Or if Congress had wished to adopt the Board’s interpretation — that section 8(d) applies only to “employee[s] of the employer engaged in the particular labor dispute” — it would have provided that “[a]ny employee of the employer engaged in the particular labor dispute who engages in a strike ... shall lose his status as an employee of the employer engaged in the particular’ labor dispute, for the purposes of sections 8, 9, and 10 of [the NLRA].”
Because, as written, section 8(d) falls somewhere in between the second and third ojriions, this court has no basis for concluding that the Board acted unreasonably in interpreting the statute’s direct reference to “employeefs] of the employer engaged in the particular labor dispute” as constituting section 2(3)’s “explicit” limitation on the scope of “employee.” This is especially true given that section 8(d)’s reference to “employee[s] of the employer engaged in the particular labor dispute” is one of only two instances in the entire NLRA where the term “employee” is restricted to employees of a “particular” anything. The other, section 8(b)(4)(i)(D), is hardly more “explicit.” It states that “forcing or requiring any employer to assign particular work to employees in a particular labor orgamzation or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class” is an unfair labor practice. 29 U.S.C. § 158 (b)(4) (i) (D).
The Board’s interpretation of section 8(d) seems especially reasonable in light of the phrase following the section’s loss-of-status provision: “such loss of status for such employee shall terminate if and when he is reemployed by such employer.” 29 U.S.C. § 158(d) (emphasis added). The reference to reemployment, like the earlier reference to loss of status, suggests that Congress did not intend section 8(d) to apply to employees having no past or current relationship with particular employers. Moreover, the return-of-status provision makes sense only under the Board’s interpretation of section 8(d). Under that interpretation, just the three hiring hall registrants employed at the time of the strike lose their NLRA protection, and, pursuant to the return-of-status provision, those three would regain their protection if the Employers reemploy them at some future date. In contrast, under the court’s interpretation, all hiring hall registrants lose their NLRA protection, but only those who once worked for a particular employer can regain it; those who never worked for a particular employer can never regain NLRA protection since they cannot be “reemployed by such employer.” It makes little sense to suppose Congress intended remediable loss-of-status for previous employees of the Employers but perpetual loss-of-status for all other hiring hall registrants. Why would Congress grant illegal strikers who once worked for a particular employer greater protection than illegal strikers who never did?
The court’s second ground for rejecting the Board’s interpretation as unreasonable is that applying section 8(d) only to hiring *202hall registrants on referral at the time of the strike undermines the section’s purpose and “renders the [NLRA] internally inconsistent.” Maj. Op. at 34. Specifically, the court points out that the Board’s interpretation means “many unlawfully striking hiring hall workers will suffer no consequences from their unlawful behavior,” and that “unions could easily exploit the statutory gap caused by the Board’s interpretation by initiating an unlawful strike during a slow referral period and continuing to withhold labor throughout a busy season.” Id. at 34-35. Thus, the court concludes, “[t]he Board’s reading upsets the statutory balance struck by Congress.” Id. at 35.
While it is trae that under the Board’s interpretation “many unlawfully striking hiring hall workers will suffer no consequences from their unlawful behavior,” the court ignores the fact that under its interpretation many workers with highly attenuated relationships with the hiring hall at the time of the strike — or even no relationship at all — will suffer serious consequences. Indeed, reading the court’s opinion, one would never know that at the time of the strike approximately 300 of the workers terminated by the Employers were not even registered with Local 39 for work referrals. Freeman Decorating Co., 2001 WL 1194948, at *3, 2001 NLRB LEXIS 798, at *9. Nor would one know that of the 2,331 workers who were registered, only an unknown subset had ever worked for any of the Employers in the past. Id. at *9, 2001 NLRB LEXIS 798, at *31. Nor, finally, would one know that of the roughly 2,600 terminated workers, the record contains evidence that only 357 (a figure later revised downward to 330) “had engaged in picketing activity or otherwise supported the strike,” id. at *15, 2001 NLRB LEXIS 798, at *50, and only 126 union members attended the meeting at which the union voted to strike, id. at *68 n. 11, 2001 NLRB LEXIS 798, at *92 n. 8. In fact, the record contains no evidence that the vast majority of the 2,600 terminated workers even knew that the union was on strike until they received the Employers’ letter informing them of their termination.
Given these facts — that not all of the terminated workers were even registered with the hiring hall at the time of the strike, and that many. of the remaining 2,331 terminated registrants had never worked for the Employers, were not working for them at the time of the strike, and, even without the strike, might never have worked for them in the future — the Board chose to interpret section 8(d)’s scope narrowly. The Board explained its policy choice as follows:
[T]he issue is which individual workers will lose the protection of the [NLRA], by virtue of their employment relationship and their conduct. In concluding that the [NLRA’s] loss-of-status provision applies only where individual workers can fairly be regarded as complicit in an unlawful strike,.... we believe that Congress could not have intended the draconian result that our [dissenting] colleague would permit in this case.
Freeman Decorating, 2001 WL 1194948, at *9, 2001 NLRB LEXIS 798, at *33.
Although the court thinks the Board acted unreasonably by failing to interpret section 8(d) as punishing every illegally striking worker, nothing in section 8(d)’s plain language suggests that the provision’s purpose is meting out individualized punishments. Rather, as the court acknowledges, section 8(d)’s contract modification and termination provisions seem designed to establish a “system of notification and mediation,” Maj. Op. at 35, including requiring unions to give thirty days’ notice before striking. Restricting *203section 8(d)’s loss-of-status penalty to workers actually on referral at the time of a strike may indeed dull unions’ incentive to give proper notice and invite strategic behavior, but it does not eliminate the incentive altogether. Even though the court may believe that weakening employers’ protection against illegal strikes in order to protect innocent employees constitutes unwise labor policy, the purpose of the NLRA is not solely “to promote the full flow of commerce,” but also “to prescribe the legitimate rights of both employees and employers.” 29 U.S.C. § 141(b) (emphasis added). The Board can hardly be accused of unreasonably subverting the statute’s overall purpose where, as here, it seeks to balance the competing interests of employers and employees.
The fundamental point is this: Only the Board, not this court, has authority to choose on policy grounds between two alternative interpretations of the NLRA, so long as neither interpretation departs from the statute’s text or overall purpose. As the Supreme Court has observed, “[t]he ultimate problem” in federal labor law is “the balancing of [employees’ and employers’] conflicting legitimate interests.” NLRB v. Truck Drivers Local Union No. 449, 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676 (1957). “The function of striking that balance to effectuate national labor policy,” the Court continued, “is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.” Id. Because “ ‘[c]ourts must not enter the allowable area of the Board’s discretion and must guard against the danger of sliding unconsciously from the narrow confínes of law into the more spacious domain of policy,’ ” id. at 96 n. 28, 77 S.Ct. at 648 n. 28 (quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941)) — precisely what this court has done — I would sustain the Board’s statutorily permissible, reasonable, policy-conscious interpretation of section 8(d).
Two final points. First, after raising the possibility that unions might “exploit the gap caused by the Board’s interpretation” by timing illegal strikes to coincide with a “slow referral period,” the court states that “[i]ndeed, that hypothetical is close to the facts of this case.” Maj. Op. at 35. Nothing in the record supports this statement. In fact, Local 39’s failure to file the proper notice with the Federal Mediation and Conciliation Service seems to have stemmed from a good faith mistake. As soon as Local 39 learned of its error, it “attempted to accept any contract offer that was still on the table.” Maj. Op. at 30.
Second, although my view of section 8(d) makes it unnecessary to consider which of the alleged discriminatees “engage[d] in a strike,” I question the court’s conclusion that all the alleged discriminatees “engage[d] in a strike.” See Maj. Op. at 35-37. Even if, as the court holds, the Board erred by refusing to accept the Employers’ proffered evidence about the discriminatees’ strike activities and by deciding as a legal matter that none of the alleged discriminatees engaged in a strike, the court should have remanded to the Board with instructions to consider the relevant evidence and to articulate criteria for determining whether hiring hall registrants engaged in a strike. See Plumbers & Steamfitters Local 342 v. NLRB, 598 F.2d 216, 222 (D.C.Cir.1979) (remanding to Board because “[w]e think it inconsistent with Congress’ general scheme for judicial review under the Act to address such complex and important questions of statutory interpretation without the benefit of the agency’s expertise in the first instance”). Instead, the court announces *204a per se rule that “all hiring hall registrants” should be deemed participants in any illegal strike declared by their hiring hall. Maj. Op at 15. Not only does this rule unnecessarily constrain the Board’s ability to interpret section 8(d) in future hiring hall cases, but the court’s application of the rule to this case ignores the fact that at the time of the strike roughly 300 discriminatees were not even “hiring hall registrants.”
I concur with the court’s conclusion that Local 39’s arguments on appeal were not properly raised. Maj. Op. at 37.