dissenting.
Adjudication of labor disputes often requires the National Labor Relations Board (“the Board”) to balance the conflicting interests protected by the National Labor Relations Act, codified as amended at 29 U.S.C. §§ 151-69 (1982) (“the Act”). Given the Board’s expertise in labor relations, we owe considerable deference to its judgment. But there is an important distinction between deferring to a particular balance of contending interests struck by the Board and deferring to a “balance” that is reached by studiously ignoring fundamental interests that Congress meant to protect. In short, the Board may not “balance” with its thumb on the scales.
It is a common practice for unions to negotiate for inclusion in collective bargaining agreements superseniority provisions that confer benefits on union officials that their seniority would not otherwise entitle them. See generally Note, Superseniority: Latitudes and Limitations, 49 U.Cin. L.Rev. 832, 832-33 & n. 8 (1980). These benefits are not “gravy”; rather, they are legitimate insofar as they are necessary to allow union officials to better serve all employees of the bargaining unit. See Dairylea Cooperative, Inc., 219 N.L.R.B. 656, 658 (1975), enforced sub nom. NLRB v. Milk Drivers Local 338, 531 F.2d 1162 (2d Cir.1976). Thus, it may be necessary to give stewards special rights with respect to layoff and recall so that the employees are assured that the collective bargaining agreement will be administered and their grievances processed by the continued presence of experienced stewards. See id. But the Board has reasoned that superseniority rights may infringe on a countervailing interest protected by section 7 of the Act: the right to be a “good, bad, or indifferent” union member. See Radio Officers’ Union v. NLRB, 347 U.S. 17, 40, 74 S.Ct. 323, 335, 98 L.Ed. 455 (1954). That is, by rewarding employees who choose to become union activists and work their way up the union hierarchy, superseniority provisions coerce employees to become “good,” rather than “bad” or “indifferent” union members. See Dairylea, 219 N.L.R.B. at 657-58.
If this were the only countervailing interest at stake, one might wonder why the Board is even concerned about superseniority rights. As Member Fanning has pointed out, any superseniority benefits associated with union service are so remote and so contingent that they probably have no significant impact on an employee’s choice to support the union or to pursue union office. Dairylea, 219 N.L.R.B. at 662 (Member Fanning, dissenting). The problem would be more fruitfully approached by focusing on the very real danger of a conflict of interests: union officials may *496negotiate for special benefits for themselves or their colleagues without due regard for the well-being of all the employees they represent. Such self-interested negotiation would be a breach of the union’s duty of fair representation as well as the kind of discrimination prohibited by section 8(b)(2) of the Act.
In any event, it is incumbent on the Board to strike a balance between the conflicting interests at stake however they are defined. In Gulton Electro-Voice, Inc., 266 N.L.R.B. 406 (1983), enforced sub nom. Local 900, IUE v. NLRB, 727 F.2d 1184 (D.C.Cir.1984), the Board decided that the appropriate rule was to uphold only those superseniority provisions that allowed stewards or steward-type officials to remain on the job for the purposes of grievance processing and on-the-job contract administration. Id., 266 N.L.R.B. at 409. The Board rejected the argument that broader interests in union efficiency might justify other types of superseniority provisions. Indeed, it concluded such a purported interest should receive no weight: “The Board should not be in the business of assuring that a union has an efficient and effective organization to conduct collective bargaining where this results in the linkage of job rights and benefits to union activities.” Id. (quoting United Electrical, Radio and Machine Workers of America, Local 623 [Limpco Manufacturing, Inc.], 230 N.L.R.B. 406, 409 (1977) (Members Jenkins & Penello, dissenting)).
The refusal even to consider the interest in union efficiency — to accord it no weight in the balancing analysis — is fundamentally inconsistent with section 7 of the Act. In essence, the Board adopts a false dichotomy between the union’s institutional interests in efficiency and the section 7 rights of employees: on one side of the scales are section 7 rights — the rights of employees to determine what kind of union member they choose to be without pressure in the form of special superseniority benefits for those who choose to climb the union hierarchy; on the other side of the scales is the reified “union” — an alien institution with interests completely distinct from the section 7 interests of the employees. Given this dichotomy, the Board concludes that the institutional interests deserve no weight and may never outweigh the slightest infringement of section 7 rights».
A more tenable and traditional conception of the “union,” however, is as a collection of employees who have chosen to exercise their section 7 rights to organize and to pursue their common interests. And, as the exclusive bargaining agent of all the employees, it has the duty to secure the economic interests and section 7 rights of all. Therefore, an efficient union is both a manifestation of section 7 rights and a means of securing those rights. It is very much the “business” of the Board, then, to “assur[e] that a union has an efficient and effective organization to conduct collective bargaining.” Were this not the case, the union shop would be illegal: for such an institution “coerces” section 7 rights by forcing employees to support the union financially simply for the purpose of allowing the union to realize the efficiencies of eliminating free riders. See NLRB v. General Motors Corp., 373 U.S. 734, 740-41, 83 S.Ct. 1453, 1458-59, 10 L.Ed.2d 670 (1963). Both union efficiency and the rights of employees to be free from pressure to become union activists implicate section 7 rights. The Board’s duty is to balance the two. Here it did not fulfill that duty by refusing to accord any weight in any circumstances to the former concern.
The unions in the two cases at bar presented colorable efficiency claims that merited the Board’s attention, not an offhand dismissal as not within the “business” of the Board.* It is undisputed that the *497intent of the superseniority clause in Ex-Cell-0 was to ensure that the union president and recording secretary both worked the day shift. The Administrative Law Judge found that “when the two officers are on different shifts, communication breakdowns can and have occurred with adverse results to the functioning of the Union.” Decision and Order at 8. The efficiencies gained by the superseniority redounded to the benefit of all and implicated section 7 rights by facilitating “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. §' 157. Accordingly, the Board should have factored efficiency concerns into its balancing analysis.
The efficiency claims in Otis Elevator are less compelling, though not as weak as the majority would portray. See ante at 493. It is true that the superseniority clause in that case offered the union official broad protections not only against layoff, but also against transfer to a lower paying job. The union argues, however, that such transfers may force officers to give up their posts by virtue of being transferred into another “jurisdiction” and may inhibit the performance of their union duties as they spend more time adapting to new jobs and new surroundings. IUE’s Brief at 28. These claims may not deserve overriding weight, but they should not be ignored by the Board.
In sum, we should refuse to enforce a decision of the Board where “the role assumed by the Board ... is fundamentally inconsistent with the structure of the Act and the function of the section relied upon.” Giddings & Lewis, Inc. v. NLRB, 675 F.2d 926, 929 (7th Cir.1982) (quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965)). Here the Board has announced that it is “not in the business of” giving any weight to union efficiency concerns. This is a perverse reading of section 7 of the Act because efficient unions are themselves the expression of the section 7 rights of union members and operate to secure the section 7 rights of all employees in the bargaining unit. The Board's assertion evinces an unseemly hostility against trade unionism.
I would deny enforcement of the Board’s orders in both consolidated cases.
In both cases, the Board cited Guitón as disposi-tive and refused to engage in any balancing of efficiency concerns and section 7 rights. In Ex-Cell-O, the Board reiterated its comment about the appropriate "business" of the Board: “While it is clear that affording the recording secretary superseniority for shift preference would make Respondent Union’s operations more efficient and effective, the Board is not in the business of promoting such concerns at the expense of Section 7 rights.” Decision and Order at 5.