dissenting.
I think the District Court properly applied the applicable standard of judicial review in § 301(a) suits for the enforcement of arbitration awards. The majority opinion approaches this appeal as if it were a question of whether we should withhold enforcement of the award. I believe that *709the true issue is whether the District Court abused its discretion when it denied enforcement.
I would affirm the denial of an injunction which would compel the employer to comply with an award obviously in conflict with an existing National Labor Relations Board certification. There is no way of getting around the fact that the National Labor Relations Board certified IAM, not the Teamsters, as the exclusive bargaining agent for the Denison employees, who, incidentally, were not parties to the execution of the Teamsters agreement for an entirely different plant at Dallas!
An NLRB unit clarification takes precedence over an arbiter’s award, Local 7-210, Oil, Chemical & Atomic Workers v. Union Tank Car Company, 7 Cir., 1973, 475 F,2d 194; Smith Steel Workers v. A. O. Smith Corporation, 7 Cir., 1969, 420 F.2d 1; New Orleans Typographical Union No. 17 v. NLRB, 5 Cir., 1966, 368 F.2d 755. The majority opinion acknowledges as much but the prescribed result is not in harmony with that acknowledgement.
If the award in this case is enforced, the Teamsters, not the certified IAM, will have negotiated the terms and conditions of employment in Denison. Moreover Standard Brands will be compelled to violate the NLRB directive that it negotiate exclusively with IAM, § 159 of the Act, and as to which the Board is the exclusive authority, West Point-Pepperell, Inc. v. Textile Workers Union of America, AFL-CIO, CLC, 5 Cir., 1977, 559 F.2d 304.
Sperry Systems Management Division, Sperry Rand Corporation v. NLRB, 2 Cir., 1974, 492 F.2d 63, was a case in which an employer opened a new plant. The collective bargaining agreement at an older plant provided that the contract there should apply to the company’s technical employees wherever located. The arbiter concluded that the agreement’s wage and working conditions provision should apply to employees at the new plant. The Second Circuit characterized the union’s effort to enforce the award as an attempt to gain de facto recognition as the bargaining agent of the employees at the new plant which it had failed to gain in the certification election. The Court determined that the union’s actions were merely attempts to subvert the NLRB order regarding the proper bargaining unit.
That is what is happening here, but in this instance the effort gains the assistance of the Court rather than its repudiation.
Additionally, the arbitration award violates an express provision of the agreement. Part I, § 13(f) provided:
“In case of transfer to a new plant, if permitted under the National Labor Management Relations Act, that Part of this -Agreement relating to the plant affected shall cover such new plant” (emphasis added).
The arbiter ordered application of that portion of the Dallas contract governing compensation and other benefits to the Dallas transferees at the new Denison plant. Effectuation of this portion of the award would result in an unfair labor practice in violation of '§ 158(a)(l, 3) of the National Labor Management Relations Act.
The cases are legion holding that an arbitration decision which violates any statute or which is inconsistent with public policy will not be enforced.1
If Standard Brands had complied with the arbiter’s award, it, in effect, would have negotiated conditions of employment with Teamsters, instead of IAM, although IAM had been chosen and certified as the exclusive bargaining representative of the Deni-son employees. The conclusion seems inescapable that the Denison employees’ right to choose their bargaining representative would thus clearly be infringed, violating § 158(a)(1), Sperry Systems Management *710Division, Sperry Rand Corporation v. NLRB, 2 Cir., 1974, 492 F.2d 63, 70.
According to § 158(a)(1), an employer’s attempt “to interfere with, restrain, or coerce employees in the exercise of the [organizational] rights guaranteed in section 157” constitutes an unfair labor practice.
Standard Brands’ compliance with the arbiter’s decision would also violate § 158(a)(3) and would constitute an unfair labor practice, Sperry Systems Management Division, Sperry Rand Corporation v. NLRB, 2 Cir., 1974, 492 F.2d 63. It is “an unfair labor practice for an employer . 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”, 29 U.S.C., § 158(a)(3). Disparate wage treatment is clearly discriminatory, Radio Officers’ Union of the Commercial Telegraphers Union v. NLRB, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1954). Paying the Dallas transferees, and the Denison employees performing work of the same nature as the Dallas operation, compensation higher than that paid the remainder of the Denison employees inescapably tends to encourage membership in Teamsters and to discourage membership in IAM.
For all the above reasons, very cogent ones I believe, I must respectfully dissent.
. Banyard v. NLRB, 1974, 164 U.S.App.D.C. 235, 505 F.2d 342; United Steelworkers v. United States Gypsum Company, 5 Cir., 1974, 492 F.2d 713, cert. denied, 419 U.S. 998, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974); Ludwig Honold Manufacturing Company v. Fletcher, 3 Cir., 1969, 405 F.2d 1123; United States Gypsum Company v. United Steelworkers, 5 Cir., 1967, 384 F.2d 38, cert. denied, 389 U.S. 1042, 88 S.Ct. 783, 19 L.Ed.2d 832 (1963); Glendale Manufacturing Company v. Local No. 520, International Ladies’ Garment Workers’ Union, 4 Cir., 1960, 283 F.2d 936, cert. denied, 366 U.S. 950, 81 S.Ct. 1902, 6 L.Ed.2d 1243 (1961).