dissenting.
I agree with the majority that the appointment-of-steward clause is facially valid. In view of the important role stewards play in the collective bargaining process, e. g., Aeronautical Industrial Lodge 727 v. Campbell, 337 U.S. 521, 528-29, 69 S.Ct. 1287, 1290-91, 93 L.Ed. 1513 (1949), I would be reluctant to conclude that a collective bargaining agreement provision which grants a limited preference to stewards and thereby furthers employee organizational rights is absolutely barred by the neutrality policy of § 8. An accommodation is permissible under § 8 when a proper justification for such a collective bargaining provision is shown. See D'Amico v. NLRB, 582 F.2d 820, 825 (3d Cir. 1978), citing NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34, 87 S.Ct. 1792, 1797-1798, 18 L.Ed.2d 1027 (1967); Dairylea Cooperative, Inc., 219 N.L.R.B. 656, 658 (1975), enforced sub nom. NLRB v. Milk Drivers & Dairy Employees Local 838 (Dairylea), 531 F.2d 1162 (2d Cir. 1976).
However, I do not agree with the majority that the Union failed to establish the requisite legitimate and substantial justification for its action. Therefore, I respectfully dissent.
Section 8 of the National Labor Relations Act was designed to allow employees to fully exercise their § 7 organizational rights without jeopardizing their employment status. Discriminatory conduct by either an employer or union which induces employees to join unions, to be good, bad or indifferent union members, or not to join unions is proscribed by the neutrality policy mandated by § 8. See Radio Officers’ Union v. NLRB, 347 U.S. 17, 40, 74 S.Ct. 323, 331, 98 L.Ed. 455 (1954). The finding of an unfair labor practice ordinarily depends upon whether the discriminatory conduct was motivated by an improper purpose. NLRB v. Great Dane Trailers, Inc., supra, 388 U.S. at 33, 87 S.Ct. at 1797. “Intention becomes the touchstone; in determining whether the section [8(b)(2)] has been violated, the ‘true purpose’ or ‘real motive’ behind the actions of the unions should be ascertained.” Lum-mus Company v. NLRB, 119 U.S.App.D.C. 229, 339 F.2d 728, 734 (1964) (footnote omitted); Fruin-Colnon Corp. v. NLRB, 571 F.2d 1017, 1023 (8th Cir. 1978). “Some conduct . . . is so ‘inherently destructive of employee interests’ that it may be deemed proscribed without need for proof of an underlying improper motive.” Id., citing NLRB v. Brown, 380 U.S. 278, 287, 85 S.Ct. 980, 985, 13 L.Ed.2d 839 (1965), and American Ship Building Co. v. NLRB, 380 U.S. 300, 311, 85 S.Ct. 955, 963, 13 L.Ed.2d 855 (1965). But, in the absence of proof of improper motivation, see NLRB v. Erie Resistor Corp., 373 U.S. 221, 227, 83 S.Ct. 1139, 1144, 10 L.Ed.2d 308 (1963), discriminatory conduct which has a “comparatively slight” adverse effect on employee rights may be justified by demonstrating a “legitimate and substantial business [or union] purpose.” NLRB v. Great Dane Trailers, Inc., supra, 388 U.S. at 33-34, 87 S.Ct. at 1797. Upon such a showing, the Union’s conduct is prima facie lawful and in order to find an unfair labor practice an affirmative showing of improper motivation on the part of the Union must be made by the Company. Id. at 34, 87 S.Ct. at 1798.
In the present case it is undisputed that the Union’s conduct was discriminatory and encouraged union membership. By demanding that the Company hire the steward appointed by the Union and thereby causing the Company to lay off another employee, the Union discriminated against those employees who, in the exercise of their § 7 organizational rights, chose not to be active union members. Further, the Union’s conduct in the present case clearly encouraged employees to be “active” union *1336members.1 It is unrealistic to think that the Union would appoint unenthusiastic union members to serve as stewards. See NLRB v. Milk Drivers & Dairy Employees Local 338 (Dairylea), 531 F.2d 1162, 1165-66 (2d Cir. 1976), enforcing Dairylea Cooperative, Inc., 219 N.L.R.B. 656 (1975). Thus, the Union’s demand that the Company hire its appointed steward caused the discharge of an employee and is presumptively unlawful. Unless justified by the Union, its conduct clearly constituted an unfair labor practice in violation of § 8(b)(2). E. g., International Union of Operating Engineers Local 18 (Ohio Contractors’ Ass’n), 204 N.L.R.B. 681 (1975). The issue before the Board was justification.
Unlike the majority, I would accept the Board’s determination that the Union’s asserted justification was sufficient.
The Union asserted that the appointment of a steward from outside the Company’s regular work force was an attempt to ensure that the collective bargaining agreement would be “policed” by a qualified steward, that is, a steward more independent of the employer and thus less likely to be intimidated by the prospect of losing his job if he enforced the collective bargaining agreement. The Union thus justified its conduct as in furtherance of the effective administration of the collective bargaining agreement, a legitimate union objective which benefited all the employees.
The Board accepted the Union’s justification,2 concluding that because “[the Union] acted here for a legitimate aim, its actions, with their attendant results, did not violate the Act. . . . ” Slip op. at 4 (emphasis added), citing Ashley, Hickham-Uhr Co., 210 N.L.R.B. 32, 33 (1974) (hereinafter Ashley, Hickham). The Board, in effect, agreed that such discrimination was, as in Dairylea, an “incidental side effect of a more general benefit accorded all employees,” even though the Union’s conduct in demanding that the Company hire an appointed steward caused the layoff of another employee.3 Dairylea Cooperative, Inc., supra, 219 N.L.R.B. at 658.
*1337The Board balanced the Union’s conduct, which was discriminatory and encouraged union membership, against the important and legitimate union interest in the presence of qualified stewards on the job, which benefits all employees. This was the basic compromise established in Dairylea, in which the Board recognized that steward superseniority limited to layoff and recall is presumptively valid even though it ties special benefits to union status, but that steward superseniority clauses which go beyond layoff and recall are presumptively unlawful and must be justified by the party asserting their legality. Dairylea Cooperative, Inc., supra, 219 N.L.R.B. at 658; see, e. g., Teamsters Local 20 v. NLRB, 610 F.2d 991 (D.C.Cir.1979) (per curiam); NLRB v. Local 443, Teamsters, 600 F.2d 411 (2d Cir. 1979); D’Amico v. NLRB, supra, 582 F.2d 820; NLRB v. Auto Warehousers, Inc., 571 F.2d 860 (5th Cir. 1978); A.P.A. Transport Corp., 239 N.L.R.B. No. 165 (1979); Pattern Makers’ Ass’n (Michigan Pattern Manufacturers’ Ass’n), 233 N.L.R.B. 430 (1977); Union Carbide Corp., Chemical & Plastics Operations Div. (Local 8-891, Oil, Chemical & Atomic Workers), 228 N.L.R.B. 1152 (1977).
Here the Board decided that the challenged appointment-of-steward clause was sufficiently analogous to the limited steward superseniority clause approved in Dairy-lea and thus was presumptively valid. The Board evidently was persuaded that the appointment of a steward by the Union in the construction industry was the functional equivalent of steward superseniority limited to layoff and recall. This functional similarity was expressly recognized in the two companion cases, United Brotherhood of Carpenters Local 49, supra, 239 N.L.R.B. No. 191 (slip op. at 5), and Teamsters Local 959, supra, 239 N.L.R.B. No. 193 (slip op. at 7-8). As the Board observed in Teamsters Local 959, “[bjecause workers in hiring hall situations are usually employed only for the duration of particular jobs rather than on a permanent basis, the concept of ‘layoff and recall’ has little relevance.” Slip op. at 7-8. The present case does not involve an exclusive hiring hall; normal construction work, however, is periodic and employment is not continuous. The individuals employed on a particular job are constantly fluctuating even though an employer may employ a certain group of employees fairly steadily. Thus, limited steward superseniority is ineffective as a means to ensure the continued presence of a steward on the job as an employee representative. Further, the temporary nature of employment characteristic of the construction industry increases employee dependence upon the good will of the employer and makes steward independence, which is critical to effective administration of the collective bargaining agreement, more difficult to achieve.
The Board determined that, under these circumstances, the appointment of a steward by the Union, even from outside the employer’s work force, would accomplish in the construction industry what steward su-perseniority limited to layoff and recall did in Dairylea: the protection of employee organizational rights by ensuring the continued presence of a steward on the job. The Board has weighed the fact that some job-related benefits necessarily accrue to stewards by their appointment as stewards against the advantages thereby secured to all employees and upheld the appointment-of-stewards clause.
I would defer to the Board even though, as noted by the majority, its reversal of position on this issue is substantially unexplained. Maj. op. at 1333 & note 16. Here, the background is not as clouded by “ad hoc and inconsistent judgments” as was the case in Local 777, Democratic Union Organizing Committee, Seafarers International Union v. NLRB, 603 F.2d 862 (D.C.Cir. 1979). Moreover, here the Board has specifically, if somewhat cryptically, overruled its *1338prior decision in Local 798, Brotherhood of Painters & Allied Trades, 212 N.L.R.B. 615 (1974), enforced without published opinion, 538 F.2d 312 (2d Cir. 1976), 239 N.L.R.B. No. 192 (slip op. at 5 n.9).4
In Local 798 the Board found no legitimate justification for an appointment-of-steward clause, despite recognition that the union had “legitimate interests in appointing stewards and policing contracts.” 212 N.L.R.B. at 617. Here, the Board has evidently “reweighed” the balance between the Union’s “legitimate interests in appointing stewards and policing contracts” and the consequent invasion of employee rights. In doing so, the Board overruled its holding in Local 798 but reaffirmed its holding in Ashley, Hickham, with one significant change. Such a determination is clearly a matter within the special expertise of the Board. E. g., NLRB v. Miranda Fuel Co., 326 F.2d 172,184 (2d Cir. 1963) (Friendly, J., dissenting). “It is the primary responsibility of the Board and not the courts ‘to strike the proper balance between the asserted [union] justifications and the invasion of employee rights in light of the Act and its policy.’ ” NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 546, 19 L.Ed.2d 614 (1967), citing NLRB v. Great Dane Trailers, Inc., supra, 388 U.S. at 33-34, 87 S.Ct. 1792, 1797-1798, 18 L.Ed.2d 1027.
In Ashley, Hickham, the union sought to place an experienced steward from the union hall on a jobsite of the employer, a company engaged in the design, construction and repair of heavy equipment, even though it was aware that the appointment of a steward would cause the employer to lay off another employee. The parties stipulated that the union’s asserted reason for appointing the particular steward was the individual’s experience as a steward on a jobsite where the union had jurisdictional disputes with other unions, that the union expected similar jurisdictional disputes at this jobsite, and that the individual appointed would effectively enforce the union’s jurisdictional claims and its collective bargaining agreement. 210 N.L.R.B. at 32. The Board recognized that the union had “a legitimate and valid concern for placing an experienced steward on a potentially troublesome jobsite.” Id. at 33. Because the parties had in effect stipulated that the union’s action was in furtherance of this legitimate union objective and thus prima facie lawful, the Board identified the key issue as whether the union’s action was arbitrary, invidious or irrelevant to legitimate union interests and thus a mask for discriminatory motivation. Id., citing Chicago Federation of Musicians Local 10 (Shield Radio & T.V. Productions, Inc.), 153 N.L.R.B. 68, 83-84 (1965). The Board found the General Counsel had failed to establish that the union’s action was im*1339properly motivated and concluded that the “union’s conduct in demanding [the appointed individual’s] hire as its steward has not been shown to constitute an unfair labor practice, notwithstanding that it may have foreseen that his hire would result in the displacement of another of its members. . . .” 210 N.L.R.B. at 33.
The difference I see between the Board’s analysis in the present case and in Ashley, Hickham is a deemphasis upon the existence of special circumstances requiring the placement of a particularly knowledgeable or experienced steward on a troublesome jobsite or with a troublesome employer. Local 798 proposed that the existence of these special circumstances was crucial to the validity of the union’s appointment of a steward. 212 N.L.R.B. at 617 n.3. As stated in the dissenting opinion in Local 798, “the degree or extent of the union’s problem [should have no] bearing on the lawfulness or unlawfulness of its conduct. Conduct which is engaged in solely for the purpose of promoting legitimate union objectives under the collective bargaining relationship cannot be classified as an arbitrary encouragement of union membership. . ” 212 N.L.R.B. at 618 (emphasis in original).
The absence of special circumstances is not particularly critical in the present case, where the Union sought to appoint a steward in reaction to violations of union trade rules and the failure of those employees already on the job to either correct or report the violations. However, I note that in one of the companion cases, United Brotherhood of Carpenters Local 49, slip op. at 4-5, nothing prompted the union’s appointment of a steward other than the union’s legitimate desire to retain the same steward on the jobsite. In the other companion case, Teamsters Local 959, slip op. at 5 n.4, some of the testimony before the ALJ referred to minor jurisdictional problems with the employer.
In sum, the Board’s acceptance of the Union’s asserted justification has validated the Union’s conduct. The issue is now, as in Ashley, Hickham, whether the Union was improperly motivated. The affirmative burden of producing evidence of improper motivation is upon the Company (or the General Counsel). See NLRB v. Great Dane Trailers, Inc., supra, 388 U.S. at 34, 87 S.Ct. at 1798, citing NLRB v. Brown, supra, 380 U.S. at 289, 85 S.Ct. at 987 and American Ship Building Co. v. NLRB, supra, 380 U.S. at 311-13, 85 S.Ct. at 963-964. Here, the Board made no finding of improper motivation, even though there was some evidence of improper motivation.5 However, “[t]he law is clear that when the record contains substantial evidence in support of each of two different conclusions, the choice of decisions is in the province of the Board.” Teamsters Local 20 v. NLRB, supra, 610 F.2d at 995. I would accept the finding of the Board.
Furthermore, in my opinion, whether or not the Union’s action is “necessary to the effective administration of the collective bargaining agreement,” as discussed in Member Penello’s dissent, would necessarily be part of the Board’s inquiry into whether the Union’s action is “arbitrary, invidious or irrelevant” to legitimate union objectives. For example, in Building Material, Truck Drivers Local 282 (Explo, Inc.), 229 N.L. R.B. 347, 351 (1977), the Board held that the union’s appointment of an outside steward for the purposes of granting the appointer’s son-in-law a good job and retaliating *1340against the other employees was “arbitrary, invidious and discriminatory.” Similarly, if the Board had found here that business agent Raftery appointed an outside steward only to give his brother a job, I would readily agree that the Union had violated § 8(b)(2). Under those circumstances, the Union’s action would have been irrelevant to legitimate union interests and the Union’s asserted justification merely a mask for an improper motive. I recognize that there was some evidence to support a finding that the Union’s motives were improper (the relationship of the outside stewards appointed to Raftery and the fact that employee Scheble was later designated as a steward on another Company job); however, no such finding was made by either the ALJ or the Board.
I would deny the petition for review.
. Member Penello argues in his dissenting opinions in the present case and two similar cases decided the same day, United Bhd. of Carpenters Local 49 (Scott & Duncan, Inc.), 239 N.L. R.B. No. 191 (1979), and Teamsters Local 959 (Ocean Technology, Inc.), 239 N.L.R.B. No. 193 (1979), that because union interference with employment raises a presumption of encouragement of union membership, well-settled precedent requires that the union show that its action was “necessary to the effective performance of the union’s representative functions” in order to rebut the presumption. 239 N.L.R.B. No. 192 (slip op. at 8) (emphasis added); see, e. g., NLRB v. Bricklayers Local No. 7, 563 F.2d 977 (9th Cir. 1977) (per curiam), enforcing 224 N.L.R.B. 206 (1976); International Union of Operating Eng’rs Local 18 (Ohio Contractors’ Ass'n), 204 N.L.R.B. 681 (1975). Member Pe-nello argues that the Union’s causing the layoff of employee Scheble can be regarded as lawful only if the Union can rebut the adverse presumption created thereby by affirmatively showing that its action was necessary to the effective performance of its representative functions. For example, the Company argues that the Board should have required the Union to show that employees already hired consistently or continuously refused to enforce the union trade rules, union jurisdiction or the collective bargaining agreement before approving the Union’s appointment of an outside steward. I agree that the discharge of an employee caused by the Union raises a presumption of encouragement of union membership. “Not every encouragement of union membership is unlawful . .” Ashley, Hickham, supra, 210 N.L.R.B. at 33. In fact, an effective union will in itself encourage union membership. See Local 357, Teamsters v. NLRB, 365 U.S. 667, 675-76, 81 S.Ct. 835, 839-40, 6 L.Ed.2d 11 (1961). “[Ujnder §§ 8(a)(3) and 8(b)(2), encouragement of membership is a sine qua non of a violation, but does not, without more, establish a violation.” NLRB v. Milk Drivers & Dairy Employees Local 338 (Dairylea), supra, 531 F.2d at 1166. Thus, in the absence of improper motivation, the union may still prevail if it can establish legitimate and substantial justifications, even though its action is discriminatory and encourages union membership. See id., citing NLRB v. Great Dane Trailers, Inc., supra, 388 U.S. at 34, 87 S.Ct. at 1798.
. The “significance” to the Board of the Union’s asserted justification was no doubt implicit in the fact that it involved stewards and their important role as employee representatives. E. g., Aeronautical Ind. Lodge 727 v. Campbell, supra, 337 U.S. at 528-29, 69 S.Ct. at 1290-91.
. The employee laid off was himself a union member. However, it is well established that the prohibition against discrimination to encourage or discourage union membership in *1337§ 8(a)(3) includes reference to the degree of a union member’s participation in union activities as well as the initial decision whether or not to join the union. See Radio Officers’ Union v. NLRB, 347 U.S. 17, 39-42, 74 S.Ct. 323, 335-336, 98 L.Ed. 455 (1954); Dairylea Coop. Inc., supra, 219 N.L.R.B. at 658 (employment benefits which encouraged employees to serve as stewards).
. I also think that Local 798 is distinguishable on its facts. The Board in Local 798 stated that there was no compelling reason why the union should control the hiring process by appointing outside stewards in order to maintain proper employee representation. 212 N.L.R.B. at 617. The Board observed that “[a]ny failure of stewards who were already employed to enforce the trade agreements could surely be controlled by appropriate union training or, if necessary by internal union discipline of stewards who failed to perform responsibly.” Id.
Although similarly involving the construction industry, Local 798 is distinguishable in several ways from the present case, not the least of which is the interim decision in Dairylea expressly validating limited preferential treatment for stewards. The stewards clause in Local 798 provided that the union had the right to designate a job steward on each job and further provided that all stewards were to be designated “from the union hall from the ranks of the unemployed members.” In addition, the union’s by-laws provided that stewards must be union members in good standing for three years. The Board found that the stewards’ clause was intended to permit the union to require the hiring of designated stewards and in that way obtain additional employment. 212 N.L.R.B. at 616.
In comparison, the appointment-of-steward clause in the present case did not restrict the appointment of stewards to unemployed union members, there are no eligibility requirements for appointment as steward, and, as found by the Board, the Union’s “sole reason for exercising its contractual power to designate its own steward was to ensure it would have present a steward who would be more disposed to enforce trade rules and police the contract without fear of losing a regular job.” Slip op. at 4.
. The Company argues that the real reason for the appointment of a steward in this case was nepotism. See Building Material, Truck Drivers Local 282 (Explo, Inc.), 229 N.L.R.B. No. 11 (1977) (union business agent appointed his son-in-law as shop steward). The majority describes it as “cronyism.” The Company emphasizes that the first steward appointed was the business agent’s brother, the third was married to one of the business agent’s nieces and the fourth attended college with the business agent. The Union, intervenor in this case, notes that over 100 of its members are related in some manner to Gregory Raftery. Neither the ALJ nor the Board accepted the Company’s argument on this point. The ALJ did find that the appointment-of-steward clause was unlawfully enforced because another employee was laid off as a result, not because the business agent was improperly appointing his relatives or friends as stewards.