dissenting:
In discovery interviews conducted after a dispute had been submitted to binding arbitration, the Cook Paint & Varnish Company coerced two employees to answer questions and threatened one with discipline for refusing to produce a union notebook. The National Labor Relations Board (NLRB or Board) held this action to constitute an unfair labor practice under Section 8(a)(1) of the National Labor Relations Act (NLRA).1 This court today sets aside the decision of the Board. As an integral part of its reasoned opinion the Board articulated a rule of decision that would have clarified the rights of employees in similar cases — a rule that would have protected employees from coercive interview and discovery techniques after resort to arbitration had established an adversary relationship between labor and management. This court today strikes down that rule, holding that employer threats and other coercion may produce desirable results, such as promoting settlement of disputes slated for arbitral resolution. Unable to agree with either the majority’s reasoning or its conclusions, I dissent.
In my view, the majority’s opinion is based on an improvident and unwarranted construction of the Board’s announced rule of decision. Reading that rule more broadly than is required by the context of its assertion, the majority holds it to be inconsistent with the letter and policies of the NLRA; finding the Board’s order against Cook to be based largely on that rule, the court denies the Board’s petition for enforcement. I regard the majority opinion as a premature decision against the rule’s validity that produces a wrong result on the instant facts and unnecessarily restricts the authority of the Board to protect important rights of employees under the NLRA. Reading the Board’s decision much more narrowly, I would uphold its articulated rationale as applied to the facts of this case. The Board’s announced rule of decision was supported by both a reasoned explanation and substantial evidence. Moreover, there are important benefits to be derived from the Board’s articulation of a rule-like ratio decidendi, which provides much clearer guidance to interested parties than would an ad hoc balancing of factors peculiar to a particular controversy. In the absence of a clear rule defining their rights, employees may possess no rights effectively enforceable against employers bent on coerced extraction of privileged information. I cannot agree that the NLRA denies the Board the authority to develop enforceable standards. The Board should be given the opportunity to do so, including the opportunity to construe its own rule, and perhaps to limit it if necessary, in future cases.
I
A.
The issues presented by this case involve inter-relationships among at least three provisions of the National Labor Relations Act: Section 7, Section 8(a)(1), and Section 8(d).
Section 7 of the NLRA2 guarantees the right of employees “to engage in * * * con*727certed activities for the purpose of * * mutual aid or protection * * It is established that Section 7 protects an employee’s participation in grievance and arbitration proceedings.3 An employer may not seek to deter an employee from involvement in such proceedings, nor may an employer sanction an employee for giving adverse testimony. Both the courts and the NLRB have also held that employees’ Section 7 rights to make common cause would sometimes encompass a right to decline to give testimony adverse to the interests of one or more of their fellows.4
Section 8(a)(1) of the NLRA5 prohibits employers from engaging in “unfair labor practices.” The section states explicitly that it shall be “an unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of rights guaranteed” by Section 7.6
Section 8(d) of the NLRA7 imposes a duty on “the representative of employees” as well as on employers to “confer in good faith with respect to wages, hours, and other terms and conditions of employment * * Despite the Section 7 right of employees to engage in concerted activity for mutual protection, the NLRB has inferred from this and other sections of the Act an employer s right to require employee cooperation in investigations of mishaps and misbehavior in the workplace. The employer has a legitimate interest in maintaining discipline, order, and safety in his place of business.8 And, in a limited range of cases, the NLRB has upheld an employer’s use of coercive interviews to secure information needed to protect this interest.9
B.
In the instant case the NLRB was called upon to strike a balance between protection of employee rights to engage in concerted activity, secured under Section 7, and preservation of employer interests in attaining information about possible employee misconduct.10 In the context of an arbitration proceeding, the fourth and most formal level of dispute resolution procedure provided by the collective bargaining agreement,11 two employees asserted a Section 7 right to refuse participation in pre-arbitral interviews conducted by the employer. The employer proceeded to coerce their cooperation by threatening them with suspension or other retaliation. The union thereupon invoked the jurisdiction of the NLRB, charging the employer with commission of unfair labor practices under Section 8(a)(1). In *728defense the employer argued that its threats of punishment were not unfair within the meaning of the statute, because they were necessary to vindicate legitimate employer interests.
In a careful and detailed opinion an Administrative Law Judge (ALJ) held that the coercive interviews conducted by the employer constituted “unfair labor practices” condemned by the National Labor Relations Act.12 The ALJ reached her decision by articulating a general legal principle, itself reached through a balancing of statutory interests and policies, that applied to the largely undisputed facts. The ALJ’s opinion recognized the employer’s legitimate interest in obtaining information about employee misconduct and necessary discipline. It dealt carefully and thoroughly with prior cases in which coercive procedures to obtain such information had been upheld.13 According to the ALJ, the prior cases decided on their merits by the Board and by the courts had all involved attempts by an employer, in the context of an investigatory effort, to obtain information helpful in determining whether discipline was appropriate.14 Neither the Board nor the courts had stated rules for'determining the propriety of coercive interviewing in the context of an arbitration proceeding. And, the ALJ observed, pre-arbitral interrogations are importantly different from the kinds of investigatory interviews considered in other cases. By the time a dispute reaches arbitration, the employer has already taken a decision to impose disciplinary sanctions; his investigation of the facts underlying the grievance has presumably come to an end; the context is irreducibly adversary. Based on these considerations the ALJ determined that arbitration represented an appropriate point for linedrawing in defining the Section 7 rights of employees under the Act:
There obviously is a world of difference between an employer’s trying to obtain factual information helpful in determining whether an employee should be disciplined, on the one hand, and, on the other hand, his attempting to obtain information to justify discipline already imposed. In the former case, the employer is legitimately concerned about maintaining order in the operation of his business; in the latter case, he is concerned only to vindicate action he has already taken. In the former case, an employee’s statutory right to make common cause with his fellow employees may well have to yield to the more urgent need of orderly conduct of the business, a necessity to management and labor alike; in the latter case, however, there is no apparent reason why an employer’s vindication of action he has already taken should be allowed to override the employees’ concern for solidarity. * * * E15¡
On administrative appeal the NLRB explicitly adopted the ALJ’s conclusions regarding coercive interviews in the arbitration context.16 Its short opinion also included an independent statement of justification for the principle that a line was appropriately drawn at this point: *729prior to disciplinary action, we have struck the balance in favor of the interests of the employer. Our decision today does not alter that balance.
*728In [prior] eases, we have been required to balance the right of employees to make common cause with their fellow employees against the need for an employer to maintain the orderly conduct of its business. Where the employer’s questioning takes place in an investigatory context
*729In the instant case, however, [the employer] had already completed an investigatory process pursuant to which it was determined that discipline of an employee was justified. Disciplinary action was taken, the grievance machinery was activated, and the dispute was to be submitted to arbitration. At this juncture, when an employer seeks to question its employees, it moves into the arena of seeking to vindicate its disciplinary decision and of discovering the union’s arbitration position, and moves away from the legitimate concern of maintaining an orderly business operation. In this context, for the reasons stated by the Administrative Law Judge, we find that the delicate balance must be struck in favor of the employees, and that an employer that seeks to compel its employees to submit to questioning in such circumstances violates Section 8(a)(l).17
Following the Board’s decision the employer petitioned for review in this court. The Board filed a cross-application for enforcement of its order.
II
Because the Board justified its resolution of the present case by invoking a general rule of decision, the validity of that rule is squarely and indisputably before this court. We could not affirm the Board’s decision except on the reasoning advanced by it to support its conclusions.18
Unlike the majority, however, I believe that the underlying facts are important both to understanding the decision of the Board and to appraising its legality. In articulating an interpretive rule for application of Section 8(a)(1) in the arbitration context, the Board was entitled to rely at least partly on its general expertise concerning the purposes and illegitimate coercive effects of compulsory interviews of employees after grievances have been set for arbitration.19 But the facts of the present case also provide substantial evidence for the Board’s conclusion that, after an employer has imposed disciplinary sanctions and a dispute has been submitted to arbitration, an employer who threatens his employees with suspension or dismissal for noncooperation in a discovery interview “moves into the arena of seeking to vindicate its disciplinary decision and of discovering the union’s arbitration position, and moves away from the legitimate concern of maintaining an orderly business operation.” 20
Because of their importance to the case, certain operative facts deserve close scrutiny-
A.
The dispute involved in the present case grew out of a decision by the Cook Paint & Varnish Company to fire an employee named Paul Thompson.21 The firing oc*730curred on February 6, 1978, triggered by events that had occurred three days earlier. It is undisputed that Thompson had left work early on February 3,1978, allegedly to see a doctor. The record reflects a dispute between company and union whether Thompson did or did not carry out his assignments on that date, and whether in performing his assignments he slipped and fell.22
On February 6 Thompson was summoned to the office of the company’s labor relations manager.23 The meeting began with an announcement that Thompson was to be discharged that day for insubordination and insufficient production. It continued thereafter for approximately three hours, as company and union representatives discussed the events surrounding Thompson’s departure from work on February 3. Among those present was union steward Jesse Whitwell, who participated freely in the discussion and answered company questions about the incident.24 The company apparently made no effort at that time to secure information from Doug Rittermeyer, the employee who had cleaned up the spilled material left by Thompson upon his departure on February 3.
Immediately following Thompson’s discharge the union filed a grievance on his behalf. Apparently satisfied with the fact-finding that had preceded Thompson’s firing, the company made no effort to obtain evidence from other employees prior to the initial hearing provided by the collective bargaining agreement. It clearly could have done so under a string of NLRB decisions, the validity of which the Board affirmed in the present case.25 Only when the initial procedure failed to resolve the dispute, and the union invoked arbitration, did the company’s outside labor attorney, William Nulton, summon union steward Whitwell to a discovery interview.26 It was at this point — more than two months after the company had completed its initial investigation of the incident, more than two months after it had fired Thompson, and after it had brought in an outside lawyer to represent its adversary position in binding arbitration — that Whitwell attempted to assert a Section 7 right not to be interviewed. Company spokesmen thereupon threatened him with suspension if he failed, not only to answer questions, but also to disclose the contents of his union notebook.27 Rittermeyer was similarly threatened that he must answer questions or face suspension.28
B.
The majority holds that management coercion of employee testimony in a pre-arbitral context is not necessarily violative of employee rights protected by Section 7. So long as the company has a legitimate interest in the information it seeks, the majority would tolerate threats of suspension or other coercive techniques. Its implicit assumption seems to be that attempts to coerce employees in ways violative of legitimate Section 7 interests are rare or that the Section 7 interests of employees are relatively narrow or insignificant.
In holding as it does the majority not only overrides the considered judgment of the Board; it ignores a line of cases recognizing that the employees’ Section 7 right to engage in concerted action for mutual aid and protection encompasses an interest in maintaining silence in the face of questioning by an adversary employer.29 The *731leading cases prohibiting coerced discovery of employee testimony have involved unfair labor practice proceedings before the NLRB itself. See, e. g., International Union, United Automobile, etc. Wkrs of America v. NLRB, 392 F.2d 801 (D.C.Cir.1967), cert. denied, 392 U.S. 906, 88 S.Ct. 2058, 20 L.Ed.2d 1364 (1968); Joy Silk Mills, Inc. v. NLRB, 185 F.2d 732, 743-744 (D.C.Cir. 1950). In this context the law is clear: Once a grievance is scheduled for hearing before the NLRB, the employer may not force an employee to give discovery testimony adverse to his own interests, those of a fellow employee, or those of his union, nor may an employee be subjected to interrogation that he might construe as threatening or coercive of his possible testimony before the Board itself. The rationale for these cases follows from the clear language and policy of the statute, which aims to protect the interest of workers in engaging in joint action for their mutual protection after lines are drawn and labor and management are locked into adverse roles. As this court held in the International Union case, supra, “employer interrogation of employees during a labor dispute ” possesses an “inherently coercive nature * * * in violation of an employee’s Section 7 rights * * *.” 392 F.2d at 809 (emphasis added).30
Ignoring cases holding that Section 7 prohibits coercive interviews once a dispute has been scheduled for hearing before the NLRB, the majority finds its main support for the legitimacy of coercive interrogation in decisions arising from one very different context: cases upholding the legitimacy of coercive interviews during predisciplinary investigations of employee misconduct.31 Yet, as the Board recognized, it is crucial that these cases involved questioning conducted prior to an employer’s determination that discipline was required. Like those cases forbidding discovery in cases before the Board, these cases called for a balancing of employer against employee interests.32 And, in prediscipline cases, the employer’s interest in attaining information essential to the orderly conduct of his business— without resort to the NLRB or other authority to obtain a discovery order — has been held to predominate over the employees’ statutory interest in providing mutual support and protection. However, as is demonstrated by the cases involving proceedings before the NLRB, the statutory balance will at some point tip the other way, as the parties become entrenched adversaries in a labor dispute. In this context the employer’s interest in the orderly conduct of business gives way to an adversarial interest in prevailing in the forthcoming adjudication. Because the employer’s adversarial interest may embrace such illegiti*732mate aims as intimidation of a potential witness, discovery of litigating strategy or bargaining positions, and coercion of other protected information, this court has followed the NLRB in establishing stringent safeguards concerning the conduct of discovery interviews in unfair labor practice cases pending before the Board. In International Union, supra, for example, this court embraced the prophylactic standards enunciated by the NLRB, under which “ ‘the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning * * * must not be itself coercive in nature.’ ”33 Employer questioning not in accordance with this standard has generally been held by the courts to constitute a violation of the unfair labor practices prohibition of Section 8(a)(1).34 And no court has yet upheld the legality of coercive interviews in this advanced adversarial context.35
In the present litigation this court is called upon to review the NLRB’s balancing of employer and employee interests in the context of compulsory arbitration proceedings — the most advanced form of dispute resolution provided by the collective bargaining agreement. Although the majority holds otherwise, I believe that the balancing question here is closely analogous to that presented in “unfair labor practice” cases before the Board — more analogous, surely, than it is to the question involved in cases of employer investigations to determine whether to discipline an employee.
The Board held in this case that once a grievance has reached the stage of arbitration, an employer seeking to compel testimony from its employees “moves into the arena of seeking to vindicate its disciplinary decision and of discovering the union’s arbitration position, and moves away from the legitimate concern of maintaining an orderly business operation.”36 The facts illustrate the total reasonableness of this conclusion. The company here sought to interview a union steward. It attempted to coerce production of a union notebook.37 And, even regarding his questioning of the employee who was not a union officer, the company lawyer in the present case stated plainly that one of his aims in seeking the interviews was to discover “what the union’s position would be if it went to arbitration.” 38 Based on these situational facts, I would regard this case as falling within the persuasive rationale of the cases prohibiting coerced discovery of employee testimony in cases pending before the NLRB.39
*733c.
The majority concludes otherwise. In its view, the lawyer Nulton’s declaration of purpose — to discover what the union’s position would be if it went to arbitration — requires heavy discounting. The “most important];]” reason for finding no violation of Section 8(a)(1), it asserts, is that “there is no substantial evidence to support a finding that Nulton” did in fact “use the interviews to discover the union’s position at the upcoming arbitration.”40 Assuming arguendo the absence of “substantial evidence” showing that Nulton did discover the union’s bargaining position or litigating strategy in this particular case, I would still uphold the Board’s conclusion that employer coercion of employee testimony in the pre-arbitral context — “once arbitration is invoked [and] the fact is in the fire and the parties are unquestionably ‘adversaries’ ” 41 — is violative of employee interests protected by Section 7. First, unlike the majority I would take cognizance of the Board’s special expertise in identifying the regular and predictable — if not necessarily invariant — effects of certain employer practices. Apparently unlike the majority, I take seriously what this court said recently in United Steelworkers of America v. NLRB, 646 F.2d 616, at - (D.C.Cir. 1981):
Coercive effects are difficult to prove, yet at the same time the most important to dissipate. Certainly in this setting even more so than in other areas, the Board possesses an unmatched expertise * * *. We believe that the Board may rely on that expertise, and on the cumulative experience of past cases, to presume that certain employer conduct will inevitably produce certain effects on employees.
(Emphasis added.)
Against this realist view of the difficulty of demonstrating coercive effects in a particular case, the current majority would seemingly insist that every case should be decided on a balancing of its unique facts. In an ideal world, I would agree. In labor disputes in the real world, however, an employee whose rights must be culled from a complex body of uncertain facts and arcane decision law may have no rights that he can enforce effectively, the NLRA’s Section 7 notwithstanding. Indeed, the facts of this case amply illustrate the impossibility of the employee’s problem under such circumstances. Jesse Whitwell, the union steward whose testimony and notebook were sought by the employer, was summoned to the office of the company president and threatened with suspension if he did not cooperate.42 The lawyer Nulton there advised him of the legality of the threatened sanction.43 Although Whitwell was permitted to consult a union attorney, that lawyer had no opportunity to conduct legal research before giving his apparently tentative opinion that Whitwell could not be punished for refusing to submit to discovery. Under the circumstances, it is not surprising that Whitwell dared not refuse to answer questions and presumably would not have dared to refuse, no matter how legally intolerable the scope of the employer’s inquiry. As the situation was aptly summarized for him by the company lawyer, “You have the opinion of two attorneys here but it is your job that is on the line."44
Against a realist backdrop, a principal virtue of the Board’s enunciated rule would lie in its simplicity and enforceability. This court should not strip the NLRB of power to propound enforceable standards.
Ill
As I read its opinion, the majority rests its decision on two principal bases. Both assume an unnecessarily broad and therefore unwarranted reading of the Board’s decision. Because no such reading is necessary to support the decision under review, this case presents no necessary or proper *734occasion to invalidate a rule that could reasonably be construed in a manner obviating the majority’s asserted objections.
As construed by the majority, the Board’s order establishes a per se rule that an employer can never have a right to discover facts from an employee after a labor dispute has reached the stage of arbitration.45 The majority finds this rule impermissible for two reasons. First, it argues that arbitration rights and procedures are appropriately governed by contract. It therefore holds that the Board acted impermissibly in establishing a standard that would limit the right of parties to bargain for alternative dispute settlement procedures.46 Second, the majority argues that the Board’s decision destroys the statute’s intended parity of labor and management obligations to supply information47
As I read the Board’s opinion, however, it need not be construed as holding that an employer may never have a right to obtain evidence from its employees in pre-arbitral interviews; it definitively establishes only that unilateral coercion and intimidation are not legitimate mechanisms for enforcing such a right in the advanced adversarial posture of an arbitration proceeding.48 Although it may be possible to understand the Board as having said more, it is unnecessary and therefore inappropriate for this court to do so at this time. I would assume only what is essential to the Board’s decision of this case: that it forbids employers to obtain evidence by threats of dismissal or other unilaterally coercive and intimidating measures after a dispute has gone to arbitration. Similarly, although the majority is again eager to read the Board’s opinion as broadly as possible and thus to resolve issues that might or might not arise in future cases, I see nothing in the Board’s opinion upsetting any statutory parity of labor and management rights to information, or the parity of their rights to bargain for access to information either during arbitration or during any other grievance proceeding. Although the Board holds management coercion to be an unfair tactic in pre-arbitral interviews, it leaves open all other avenues by which an employer might obtain testimony from an employee after a dispute has gone to arbitration. For example, an employer might rely on the compulsory process of tribunals created either by contract between the parties or by statute — just as a union must do if it wishes to obtain information from an unwilling employer.
Certain portions of the majority opinion suggest that coercion is itself a proper and accepted mechanism of information procurement, which should be upheld on policy grounds as conducive, at least indirectly, to the settlement of labor grievances.49 Such judgments of disputed fact and policy are more properly made by the NLRB than by this court, especially when statutory interests in information procurement threaten to conflict with employee interests protected *735by Section 7. See, e. g., NLRB v. Truck Drivers Local 449, 353 U.S. 87, 96, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957) (“The function of striking [the] balance to effectuate national labor policy is often a difficult and delicate responsibility, which Congress has committed primarily to the National Labor Relations Board, subject to limited judicial review.”).
Moreover, from a legal perspective the chain of argument supporting the majority position is not strong. The majority cites cases supporting the proposition that provision of information is necessary if arbitration is to work effectively, relying especially on NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967), and Fawcett Printing Corp., 201 NLRB 964 (1973). But the majority fails to establish a persuasive link between Acme and Fawcett and those cases in which the Board has recognized the legitimacy of employer efforts to coerce testimony — cases generally involving inquiries into employee misconduct prior to imposition of final disciplinary action. The link is highly questionable. Although the language of Acme suggests the desirability of an information exchange, it nowhere suggests that the best time for this exchange to occur is during the arbitral process. Thus the underlying policy aims of Acme would seem satisfied as long as there is an opportunity for the parties to procure proper information at some stage of the dispute resolution process. And certain language in the Acme opinion seems to suggest that national labor policy is best served when information is provided and disputes resolved, not after the invocation of arbitration, but at the earliest point possible:
[I]f all claims originally initiated as grievances had to be processed through to arbitration, the system would be woefully overburdened. Yet, that is precisely what [the employer’s asserted right never to provide information except in an actual arbitration hearing] would require. It would force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim. * * * [50]
The ALJ, whose conclusions the Board adopted, reasoned explicitly from this premise. Permitting coercive discovery at the arbitral stage, she stated, “would make a sham of the prearbitral grievance procedures carefully spelled out in most union contracts; if the parties know that they can lose nothing by postponing their investigations until the grievance step, * * * [t]he result will inevitably be delays, the avoidance of which is a major purpose of grievance and arbitration provisions.”51 The majority takes issue with this position at least partly on factual grounds, suggesting that grievances will be better resolved if employers are able to conduct coercive interviews at any stage of the dispute resolution process. For reasons that seem to me to be obvious, I cannot join this court in lecturing the NLRB about how the statutory policy of promoting settlements can best be effectuated.
The majority’s second main argument against the Board’s decision topples with the first. Far from destroying the parity between labor and management obligations to supply information, the Board’s holding serves to place them in positions of practical as well as theoretical equality. Common sense suggests that an employee has no effective means of coercing an employer to comply with its discovery requests prior to an arbitration. It seems to be no accident that the company ignored union requests for information in the present case.52 An employer, on the other hand, will, as a practical matter, frequently be able to use the threat of discipline or dismissal to extract information — including information to which it has no legal right — from an unwilling employee. In removing this unfair advantage held by the employer, the Board, in my judgment, acted entirely consistently with the statutory policy of mutuality of labor and management obligations to sup*736ply information. The majority’s second argument is therefore also mistaken.
The majority also advances, but relies less heavily upon, a third argument that the Board failed to reconcile its decision in this case with the result in Pacific Southwest Airlines, Inc., 242 NLRB No. 151, 101 LLRM 1366 (1979). In that case the Board explicitly invoked the so-called Spielberg doctrine, see Spielberg Manufacturing Co., 112 NLRB 1080 (1955), under which the Board defers to the decision of an arbitrator without endorsing his analysis. The majority rightly argues that deference, as acknowledged by the Board, is appropriate only if the arbitrator’s decision is not clearly repugnant to the purposes and policies of the Act.53 It then argues that, if upholding the coercive interview in Spielberg was not inconsistent with the Act, then the Board cannot now propound a decision rule holding that coercive interviews are violations of Section 8. The majority’s argument may be rejected on either of two grounds. First, the Board gave a reasoned explanation of its Pacific Southwest decision and why it lacked binding force in the present controversy. Consistent with its analysis of the underlying factual situation as presenting a conflict of legitimate employee interests with legitimate employer interests, the Board stated that “an award vindicating either of the conflicting rights cannot be viewed as being clearly repugnant to the policies of the Act.”54 Second, the arbitrator in Pacific Southwest found only that the employer had not violated Section 7 in a particular case. But the decision of a particular case should not bar the Board from developing a rule permitting the presumption that a certain kind of employer conduct will have predictable and impermissible effects in most cases, particularly when “[cjoercive effects are difficult to prove, yet * * * important to dissipate,” and “the Board possesses an unmatched expertise”55 in identifying the harmful conduct.
IV
Properly construed, the Board’s decision in this case, in my view, is supported by substantial evidence and otherwise free of legal error. Like the NLRB, I would therefore think it unnecessary to reach the question whether Jesse Whitwell, because of his position as a union steward, enjoyed special statutory rights that were violated by the coercive interview conducted in this case. Because the majority rejects the Board’s stated rationale for finding an unfair labor practice, however, questions about the relevance of Whitwell’s union office and functions become central to a fair adjudication of the union’s claim under Section 8(a)(1). Under the circumstances, I agree that the Board must be given an opportunity to consider whether Whitwell was entitled to special protection because of his status as a union steward. Forced by the majority to reach this issue, I concur that the case should be remanded to the Board for further findings regarding the legality of a coercive interview of a union steward in the factual setting presented by this case. As to the main issue in the case, however, I respectfully dissent.
. 29 U.S.C. §§ 151-169 (1976).
. Section 7, 29 U.S.C. § 157 (1976), provides:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition *727of employment as authorized in section 158(a)(3) of this title.
. See, e. g., Keokuk Gas Service Co. v. NLRB, 580 F.2d 328, 333-334 (8th Cir. 1978); Daphne San Francisco Funeral Service, 224 NLRB 461, 463 (1976).
. Conduct of coercive discovery interviews during the pendency of a case before the NLRB has repeatedly been held to violate employee rights under § 7. See, e. g., International Union, United Automobile, etc. Wkrs of America v. NLRB, 392 F.2d 801, 809 (D.C. Cir. 1967), cert. denied, 392 U.S. 906, 88 S.Ct. 2058, 20 L.Ed.2d 1364 (1968); Joy Silk Mills, Inc. v. NLRB, 185 F.2d 732, 743-744 (D.C.Cir. 1950); Johnnie’s Poultry Co., 146 NLRB 770, 775 (1964), enforcement denied, 344 F.2d 617 (8th Cir. 1965). A similar recognition that § 7 provides employees at least a prima facie right to resist discovery interviews in the arbitration context is implicit in the NLRB’s balancing of employer interests against employee rights in right-to-information cases. See Service Technology Corp., 196 NLRB 845, 847 (1972); Primadonna Hotel Inc., 165 NLRB 111 (1967).
. 29 U.S.C. § 158(a)(1) (1976).
. Id.
. 29 U.S.C. § 158(d) (1976).
. See Service Technology Corp., supra note 4; Cross Baking Co., 186 NLRB 199 (1970).
. See Service Technology Corp., supra note 4; Primadonna Hotel Inc., supra note 4.
. Cook Paint & Varnish Co., 246 NLRB No. 104 at 2 (Nov. 30, 1979), reprinted in Appendix (App.) 198, 199. The Decision and Order of the Board (Decision of the Board) affirmed “the rulings, findings, and conclusions of the Administrative Law Judge [ALJ],” id. at 1, App. 198, whose opinion (ALJ Opinion) asserted the need to engage in a balancing of statutory interests. See ALJ Opinion, reprinted at App. 173, 179 & n.7.
. ALJ Opinion, supra note 10, at 3, App. 175.
. ALJ Opinion, supra note 10. The ALJ also held, as an alternative ground, that the company was barred from compelling testimony from one of the employees, a union steward, because of the latter’s quasi-fiduciary role as an employee representative in certain contractual grievance proceedings. See id. at 14-15, App. 186-187. Upholding the ALJ’s decision on the main ground, the Board explicitly declined to rest its decision on this basis, Decision of the Board, supra note 10, at 1-2, App. 198-199.
. See ALJ Opinion, supra note 10.
. The ALJ distinguished the case of Pacific Southwest Airlines, Inc., 242 NLRB No. 151, 101 LRRM 1366 (1979), on the ground that the Board, in deferring to an arbitrator’s ruling, expressly declined to express its view on the merits. See ALJ Opinion, supra note 10, at 12-14, App. 184-186.
. Id. at 7, App. 179 (footnote omitted).
. Decision of the Board, supra note 10, at 1, App. 198.
. Id at 2-3, App. 199-200 (footnotes omitted).
. As the Supreme Court held in SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943), “The ground upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Chenery recognized an apparent exception for cases in which the decision could be affirmed on purely legal grounds, not requiring judgments of fact or policy. Id. at 88, 63 S.Ct. at 459. Here, however, any decision whether Cook committed an “unfair labor practice” depends on a balancing of statutory interests entrusted by Congress to the Board, not to this court.
. E. g., NLRB v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944) (general experience of Board appropriately invoked by it in construing statutory term to apply to broad classes of employees without ad hoc decisions in individual cases); United Steelworkers of America v. NLRB, 646 F.2d 616, at 636 (D.C.Cir. 1981) (Board entitled to rely on special expertise in identifying coercive practices and their effects).
. Decision of the Board, supra note 10, at 2-3, App. 199-200 (footnote omitted).
. The facts are set out in detail in ALJ Opinion, supra note 10, at 2-5, App. 174-177.
. Id at 2, App. 174.
. Id. at 3, App. 175.
. Id.
. Decision of the Board, supra note 10, at 2, App. 199.
. ALJ Opinion, supra note 10, at 4, App. 176.
. Id.
. Id. at 5, App. 177.
. Both the courts, see, e. g., International Union, United Automobile, etc. Wkrs of America v. NLRB, supra note 4, 392 F.2d at 809; Joy Silk Mills, Inc. v. NLRB, supra note 4, 185 F.2d at 734-744, and the NLRB, see, e. g., Johnnie’s Poultry Co., supra note 4, 146 NLRB at 775, have held explicitly that employer interrogation of an employee during the pendency of a case before the NLRB is inherently coercive of employee rights protected by § 7. A similar rec*731ognition that § 7 provides employees at least a prima facie right to resist discovery interviews in the arbitration context seems implicit in the NLRB’s balancing of employer interests against employee rights in Service Technology Corp., supra note 4, 196 NLRB at 847, and Primadonna Hotel Inc., supra note 4, 165 NLRB 111.
. The majority disparages the significance of these cases by distinguishing between protection of rights arising under law and rights arising under contract:
There is a critical difference, however, between cases set before the NLRB and cases set for arbitration. Proceedings before the NLRB are instituted to protect employee rights arising under the National Labor Relations Act. Proceedings before an arbitrator are instituted to resolve contractual disputes arising under a collective bargaining agreement. * * *
Majority opinion (Maj. op.), 648 F.2d at 730 n.25. This attempted distinction would seem to suggest that the § 8(a)(1) prohibition of “unfair labor practices” has no application in the arbitration context. The case law, however, makes it abundantly clear that the NLRA bars certain coercive actions by employers as inherently unfair and unlawful, without reference to the terms of individual contracts. See, e. g., Keokuk Gas Service Co. v. NLRB, supra note 3, 580 F.2d at 333-334; Daphne San Francisco Funeral Service, supra note 3, 224 NLRB 461; El Dorado Club, 220 NLRB 886, 889 (1975).
. Although the majority points to a number of cases holding that employers and employees are obliged to exchange information prior to arbitration, it cites only two, Service Technology Corp., supra note 4, and Primadonna Hotel Inc., supra note 4, in which it has been approved by a court of law.
. This was explicitly recognized by the Board in both Service Technology Corp., supra note 4, and Primadonna Hotel Inc., supra note 4.
. International Union, United Automobile, etc. Wkrs of America v. NLRB, supra note 4, 392 F.2d at 809, quoting Johnnie’s Poultry Co., supra note 4, 146 NLRB at 775.
. See, e. g., International Union, United Automobile, etc. Wkrs of America v. NLRB, supra note 4; NLRB v. Neuhoff Bros., Packers, Inc., 375 F,2d 372, 378 (5th Cir. 1967); and Montgomery Ward & Co. v. NLRB, 377 F.2d 452, 456 (6th Cir. 1967), all applying the Johnnie’s Poultry standard quoted at text accompanying note 33 supra.
. Indeed, in circuits that have adopted a “totality of circumstances” test to identify unfair labor practices in this context, the relevant question has typically been framed as whether “coercion” occurred. See, e. g., A & R Transport, Inc. v. NLRB, 601 F.2d 311, 317 (7th Cir. 1979); Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 492 (2d Cir. 1975).
. Decision of the Board, supra note 10, at 2-3, App. 199-200 (footnote omitted).
. ALJ Opinion, supra note 10, at 4, App. 176.
. Decision of the Board, supra note 10, at 3 n.3, App. 200 n.3.
. Indeed, given the acceptance by the Board and by the courts of the so-called Spielberg doctrine, see note 53 and accompanying text infra, the danger and injustice of permitting employer coercion of employee testimony may be even greater in the context of an arbitration than in disputes before the Board itself. Under Spielberg the Board will sometimes defer to an arbitrator’s decision, even though it might have decided an issue differently had it reached the merits. The benefits of the Board’s special expertise in detecting the wrongful effects of coercive practices, see United Steelworkers of America v. NLRB, supra note 19, 646 F.2d at 626, are thus more likely to be lost in an arbitration case than they are in a controversy before the Board for decision on the merits.
. Maj. op., 648 F.2d at 723-724 n.24.
. ALJ Opinion, supra note 10, at 11, App. 183.
. Id at 4, App. 176.
. Id.
. Id. (emphasis added).
. See Maj. op., 648 F.2d at 721-722.
. Id, 648 F.2d at 721-722.
. Id, 648 F.2d at 716-717.
. The relevant portion is printed in text preceding note 17 supra.
At least in certain portions of its opinion the majority refuses to acknowledge any distinction between unilaterally coercive and non-coercive procurement of information. See especially Maj. op., 648 F.2d at 725 & n.25. Although the majority suggests otherwise, I believe that the difference between my analysis and that of the majority stems more from disagreement about the significance of coercion than from disagreement about the relevance of contract. 1 do not disagree with the majority view that “pre-arbitration interviews are part of the [contractually created] grievance-arbitration process.” Id. I do not, however, see how “it clearly follows,” id. that pre-arbitral threats and similar coercion — any more than firings and beatings — are insulated from condemnation under the NLRA as “matter[s] to be decided by the parties.” Id. To respect a contractual agreement to supply information is one thing; to uphold the legitimacy of unilateral coercion to enforce rights claimed under an agreement is quite another — especially where, as here, the rights claimed may themselves be matters of dispute. Here, it may be worth recalling, the company threatened Whitwell with coercive reprisal if he failed to turn over his union notebook.
. See Maj. op. 648 F.2d at 720 (suggesting employer coercion needed to make rights “enforceable”).
. NLRB v. Acme Industrial Co., 385 U.S. 432, 438, 87 S.Ct. 565, 569, 17 L.Ed.2d 495 (1967).
. ALJ Opinion, supra note 10, at 13, App. 185.
. See id. at 9, App. 181.
. Maj. op., 648 F.2d at 729-730.
. Decision of the Board, supra note 10, at 5, App. 202.
. United Steelworkers of America v. NLRB, supra note 19, 646 F.2d at 626; see Mourning v. Family Publications Service, Inc., 411 U.S. 356, 374, 93 S.Ct. 1652, 1663, 36 L.Ed.2d 318 (1973) (“[A] requirement that a line be drawn which insures that not one blameless individual will be subject to the provisions of an act would unreasonably encumber effective administration and permit many clear violators to escape * * * entirely.”).