dissenting.
I.
The opinion of the majority has found yet another way to undercut the NLRB’s role as the arbiter of national labor policy. The ebb and flow of the jurisprudence of this court in that regard has already been chronicled. See NLRB v. K & K Gourmet Meats, Inc., 640 F.2d 460, 470 (3d Cir.1981) (Gibbons, J., dissenting). What is remarkable is that in the majority’s unwillingness to enforce a Board order against an employer, which even it cannot find unsupported by substantial evidence, it has chosen a route that contravenes an explicit statutory provision limiting our review, disregards recent decisions of this court, twists the record in this case, and ignores well-established jurisdictional and prudential limits to our review.
II.
A.
A review of the facts and administrative proceedings relating to this matter is essential to an understanding of the remarkable nature of the disposition by the majority.
The. testimony, as credited by the Administrative Law Judge, established that Robert Campione, Ralph Campione, and Walter Dowd complained at a regular monthly Union meeting that the Union leaders were not fulfilling their duty to assure that plumbing jobs at the Passaic Valley job site were performed by members of the Union. They argued at the meeting that these jobs were being performed by members of other craft unions. App. at 251a. Within two weeks, all three men were discharged. The testimony linking the employer's termination of these three employees to their criticism of the Union leaders at the Union meeting and to their involvement in Union politics was credited by the AU. App. at 251-52a, 253a-54a.
The employees filed a grievance which was referred to the Joint Conference Committee, consisting of five members of the contractor’s association and five officers of the Union. That meeting lasted about one or one and a half hours. At that meeting, James McManus, the Union’s business manager, “jumped up” when they were three-quarters of the way through the meeting and said, “ ‘These fellows also have a complaint with the National Labor Relations Board,’ and a hush went over the floor and that was about it, they cut us short.” App. at 107a (testimony of Ralph Campione).1 The full text of the Joint Committee’s decision was:
At the conclusion of the presentation of the above testimony the committee reviewed and discussed the available evidence and found that there was no substantiation of the charge by the Campiones and Dowd that they were unjustly dismissed. The committee decided that there should be no restriction on an employer terminating a foreman in that it had been the employer’s sole decision to employ the person in question as a foreman. In other words, if he had the right to appoint him he had the right to terminate him. The committee further believes that under the Local 24 — MCA current collective bargaining agreement there is no restriction on the right to terminate any employee whether foreman or not under conditions similar to those occurring in this case.
App. at 309a-10a.
As stated by McManus, a charge had indeed been filed with the Board, and the General Counsel filed a complaint. In that complaint, the General Counsel alleged that the three employees were discharged for engaging in activities protected under the National Labor Relations Act, and that such discharge and the conduct of the employer in threatening to discharge Robert Campione and Walter Dowd if they engaged in union activities constituted unfair *163labor practices within the meaning of sections 8(a)(1) and (3), 29 U.S.C. §§ 158(a)(1), (a)(3) (1982). The complaint, of course, alleged that the three men were employees and subject to the Act’s protection. App. at 3a.
The employer in its answer to the Board’s complaint merely denied the allegations generally and did not raise either a claim that the Act was inapplicable to the three employees or a claim that deference should be accorded to a grievance resolution by the Joint Conference Committee. The case proceeded to hearing before the AU. The AU heard extensive, and often conflicting, testimony. One must keep in mind that the three employees were contending that their discharges stemmed from their criticism of the Union. Only when the AU inquired during the course of the hearing about the absence of a Union representative did the employer’s attorney mention, for the first time, that the discharges had been the subject of a Union grievance which had been resolved in favor of the employer. The employer’s attorney did not, even then, suggest that deference to the Committee’s decision was due. App. at 20a-22a.
Later in the hearing, and out of what may have been an overabundance of caution, the Board’s counsel embarked on an attempt to rebut a possible contention by the employer that the employees, denominated as foremen, were not protected by the Act. The AU accurately noted that that was not an issue in the case, and thus questioned the purpose of this inquiry. The Board’s counsel responded that the firing of these Union members, even though they were denominated as foremen, makes out a section 8(a)(3) violation. The Administrative Law Judge interrupted, stating:
JUDGE TRUNKES: Is that being denied by you? . [referring to the employer]. That’s not an issue. Don’t make it an issue or he [employer] will start contesting it and we will be here all week.
App. at 55a-56a. The employer’s attorney did not challenge that ruling and did not suggest that because the men were foremen, they were outside protection of the Act. This is the only colloquy relevant to the status of the employees.2
Later at the hearing, the employer sought to introduce the formal decision of the Joint Committee on the Union’s grievance. The AU found that there was nothing in the decision of the Joint Committee to show that the unfair labor practice charges had been considered by the Committee. App. at 131a-33a. The AU, recounting the state of the record on this point, said, “Apparently, once McManus said they filed a charge with the NLRB, that was the end of that. As far as they were concerned, let them go to the NLRB and handle it from there, which is what we are doing.” App. at 134a. The AU continued addressing the employer’s attorney on this point, stating that he assumed the employer was asked what happened during the investigation by the Regional Director. The AU stated, “There was no discussion that there was an arbitration proceeding which prevented us from holding the hearing.” Id. He stated further,
You have a decision that says that the employer has the right to hire and discharge the employees. I don’t know what was said at this meeting [of the Joint Conference Committee] but from what the employees testified to, nothing was brought up such as what we have been hearing for the past three hours at this hearing.
App. at 135a. The employer’s attorney. Mr. Vercollone, agreed, saying:
MR. VERCOLLONE: I get the impression there was nothing decided at this hearing concerning this particular issue [unfair labor practice charges].
Id.
When Vercollone was asked directly if he sought to introduce the Report to show *164that the AU was bound by it, Vercollone replied, “No, that is not my purpose. If I thought you were [bound by the decision], I would have brought it up a long time ago.” App. at 135a. Nonetheless, the AU admitted the Committee’s Report into evidence so that the employer could use it to argue credibility. The Board objected on the ground of relevancy, and the AU stated “[The employer] is not bringing it in simply making me bound by that decision.” App. at 137a. Mr. Vercollone, the employer’s attorney, responded, “Certainly not.” Id. Patently, therefore, there was no suggestion before the AU that the Committee’s report was entitled to deference on any issue.
The ÁU, in an exhaustive analysis and discussion of the merits of the charge contained in his 15-page decision, concluded that the termination of the three employees violated sections 8(a)(3) and (1) because it occurred as a result of their protected concerted and union activities, and further that the employer violated section 8(a)(1) by threatening to discharge Robert Campione and Dowd should they engage in protected concerted and union activity. App. at 248a-62a. On the effect of the arbitration, the AU concluded, “At no time was the matter of unfair labor practices discussed between the parties,” App. at 259a, and that deference to an arbitral decision under the doctrine of Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955), should not be accorded because “there is not a scintilla of evidence that the Joint Council considered, in any manner, a possible unfair labor practice, as charged herein.” App. at 260a.
The employer excepted to the Board from the decision of the AU on three grounds: (1) that the AU’s conclusion that the employer discriminated against the three employees because of their activities on behalf of the Union was not in accord with either law or fact; (2) that the conclusion that the employer threatened the employees with loss of employment should they engage in protected activities was not in accord with either law or fact; and (3) that the procedure by which the AU conducted the hearing was clear evidence that he was less than an impartial trier of fact and was prejudiced in favor of the employees.
Significantly, none of the three exceptions related either to the applicability of the Act to the employees or to the need to defer to the decision, of the Joint Committee. However, in its brief in support of those exceptions, the employer argued that “the findings of that Joint Committee ... contained in Respondent’s Exhibit 3 ... [which] state basically that there is no substantion [sic] to the charges of Ralph Campione, Robert Campione or Walter Dowd that they were unjustly dismissed” should have been binding on the AU. App. at 271a-72a. Even if we consider this to be a proper urging of an objection, notwithstanding its omission from the Exceptions, it constitutes, at most, an objection seeking deference to the Joint Committee’s findings regarding the merits of the dismissal. The majority does not cite to any exception or argument to the Board that it should defer to any finding by the Joint Committee relating to the applicability of the Act to the discharged employees because none exists. No such finding could have been made by the Joint Committee because it never considered the applicability of the Act to those individuals. The Committee’s decision was explicitly limited to its construction of “the Local 24 — MCA current collective bargaining agreement.” App. at 310a.
The .Board affirmed the rulings, findings, and conclusions of the AU, and adopted his recommended order. In a footnote, the Board agreed with the AU that “it [was] inappropriate, in the circumstances presented here, to defer to the decision of the Joint Conference Committee disposing of grievances filed over the discharge that gave rise to the instant 8(a)(3) and (1) allegations.” 262 N.L.R.B. No. 45 at 1 n. 1 (1982), App. at 290a. The footnote continued that although Board Member Hunter favored the principles of deferral established in Spielberg Manufacturing Company, 112 N.L.R.B. 1080 (1955), “he finds that the instant record does not justify *165deferring to the grievance award in this case.” After noting the “ambiguously worded” statement in the Joint Committee’s award that there should be “no restriction” on the employer’s right to discharge these employees, the footnote continued, “Clearly, the [Act] protects the right of employees to engage in union activities, and Member Hunter will not defer to a grievance award that indicates on its face that statutory protections have neither been considered nor have any application in these circumstances.” Id.
In another footnote, the Board stated that “the employees who the Administrative Law Judge found were threatened and discharged in violation of sec. 8(a)(1) and (3) are classified as foremen and, in one case, a general foreman.” The Board then- continued, “No contention has been made, and the record evidence does not establish, that these individuals are supervisors within the meaning of Sec. 2(11) of the Act.” Id. at n. 2 (emphasis added).
B.
Before us are the Board’s application for enforcement of its order and the employer’s cross-application for dismissal of the Board’s order in its entirety. The employer presented four questions to this court: (1) whether the decision and order of the Board was erroneous “because it failed to fully address the issue whether — or find that — the subject employees were ‘supervisors’ as defined by the [NLRA],” (2) whether the Board’s decision and order was erroneous “because it failed to defer to the unanimous Decision of the Joint Conference Committee ... which held that the subject employees were not illegally or wrongfully terminated,” (3) whether the Board erred in failing to find the activities for which the employees were terminated were not protected activities under the Act, and (4) whether the order granting reinstatement should be denied “because neither the employees’ former positions nor substantially equivalent positions are in existence.” Brief for Respondent-Appellant at 2-3.
In its further written argument on the “supervisor” issue, the employer argued that the record evidence showed that the three men were “supervisors” and exempt from the Act, acknowledged the issue was not raised.before the Board by a specific objection, and claimed its failure to do so was excused by “extraordinary circumstances”, Brief for Respondent-Appellant at 16-17. Significantly, on the deference issue, the employer argued only that the Board should have deferred to the merits of the Committee’s decision, and not that the Joint Conference Committee made a decision with regard to the “supervisor” status of the employees to which the Board should have deferred.
In the face of this record, the majority treats as the dispositive issue before us whether the Committee decided that the employees were supervisors within the meaning of the Act and remands to “allow” the Board “to determine whether the Com: mittee’s findings on the power of the employer over these foremen were a resolution of the statutory inquiry, ...”
III.
A.
There are a number of grounds on which the majority opinion and disposition are flawed. I will discuss only the most salient. Chief among these is that the two central issues, the nonapplicability of the Act to these employees and deference to the Joint Conference Committee which may have decided that the employees were not covered by the Act, cannot be considered by this court because they were waived by the employer.
Congress has by statute established a strict and obligatory prerequisite to judicial administrative review in labor cases. In section 10(e) of the National Labor Relations Act (NLRA), Congress has stated:
No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by- the court, unless the failure or neglect to *166urge such objection shall be excused because of extraordinary circumstances.
29 U.S.C. § 160(e) (1982) (emphasis added). Section 10(e), which applies to court review of petitions for enforcement by the Board, is also incorporated in section 10(f), applicable to petitions for review of the Board’s order.
The Supreme Court has clearly stated that application of section 10(e) is mandatory. The failure to object is not one that we have discretion to overlook. NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 322, 82 S.Ct. 344, 347, 7 L.Ed.2d 312 (1961). As the Supreme Court recently reaffirmed in Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66, 102 S.Ct. 2071, 2082-83, 72 L.Ed.2d 398 (1982), when an issue is not raised during the proceedings before the Board, the Court of Appeals is without jurisdiction to consider that question.
This court has twice this year shown unusual unanimity in labor cases in strictly adhering to the requirement that an objection must be “urged before the Board” before it can be considered on review. Thus, in NLRB v. A. Duie Pyle, Inc., 730 F.2d 119, 123 (3d Cir.1984), the employer contended on appeal before us that the Board should have deferred to a settlement agreement that it had reached with the employee and that the AU refused to approve. Despite the public interest in private, amicable resolution of labor disputes, we “quickly resolve[d]” that contention, stating, “We may not consider whether the AU erred in this instance because the company failed to raise the settlement issue before the Board.” Id. at 124. Again, in Oldwick Materials, Inc. v. NLRB, 732 F.2d 339 (3d Cir.1984), Judge Higginbotham explored sections 10(e) and (f), and their foreclosure of any judicial consideration of objections not raised before the Board. In concluding that we lacked jurisdiction to consider the employer’s arguments on review because it had not raised these before the Board, he referred to this court’s “long adher[ence] to the jurisdictional principles” encompassed in these sections as interpreted by the Supreme Court and us. Id. at 342.
Indeed, the majority opinion concedes, as does the employer, that it failed to argue before the Board that the individuals were supervisors and hence unprotected by the NLRA. The Board’s reference to a point not urged before it “does not excuse petitioner from its statutory obligation under § 10(e) to file exceptions presenting and preserving its argument to the Board.” Oldwick Materials, Inc. v. NLRB, 732 F.2d at 343 n. 1. Since the majority also finds that there are no “extraordinary circumstances” within the meaning of section 10(e) of the Act, this should dispose of the matter before us.
However, by a deft manipulation, the majority concludes that although the issue of whether the employees were “supervisors” (and thereby outside the Act) was waived, because not raised by the employer until its brief before us, the Board would nonetheless be obliged to defer to the Joint Committee’s “finding” that “the employees were foremen and thus could be discharged at will” if these “findings ... were a resolution of the statutory inquiry.” The majority concludes that “if the Committee did [decide that the employees were supervisors within the meaning of the Act] the Board’s refusal to defer was an abuse of discretion.”
In the first place, there is not a scintilla of evidence that the Committee even considered, much less decided, this issue. The Joint Committee never used the term “supervisors” and never discussed the applicability of the Act to the individuals. There is no justification on the record for the majority to state “the Committee may well have decided that the Campiones and Dowd were supervisors,” a statement fabricated out of the Emperor’s invisible clothing.
In the second place, the majority seems to be proceeding on the assumption that foremen are automatically supervisors, and outside the Act’s protection. That assumption is simply wrong as a matter of law. There is a long line of cases to the effect that foremen are not automatically supervi*167sors. See, e.g., NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 688 (7th Cir.1982) (“warehouse foreman” not supervisor); Laborers & Hod Carriers Local No. 341 v. NLRB, 564 F.2d 834, 837-39 (9th Cir.1977) (“labor foreman” was not supervisor); Park Drug Co., 122 N.L.R.B. 878, 879-80 (1959) (“working foremen” not supervisors); Sebastopol Cooperative Cannery, 111 N.L.R.B. 530, 531 (1955) (“day shift label foreman” not supervisor); In re Emerson Television Service Corp., 88 N.L.R.B. 55, 56 (1950) (foreman not supervisor).
Finally, the majority makes a mockery of sections 10(e) and (f). The employer never argued before the Board that it should defer to a Joint Committee finding that the employees were supervisors and hence exempt, and has not so argued before us. Of course, “the Board does not argue that the Company has waived its right to raise this issue,” as the majority states, because until the majority’s decision, no one has even argued that the Joint Committee may have made such a decision. Thus, we are not free to consider it or decline to enforce the Board’s order on this basis.
Moreover, the Board and this court have established that a party urging deference to an arbitral determination must raise this issue before the ALJ, stating the grounds for deference in the particular case. See Herman Brothers, Inc. v. NLRB, 658 F.2d 201, 205-06 (3d Cir.1981); Wheeling-Pittsburgh Steel v. NLRB, 618 F.2d 1009, 1015-16 (3d Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 859, 66 L.Ed.2d 801 (1981); Food Fair Stores, Inc. v. NLRB, 491 F.2d 388 (3d Cir.1974). This rule gives the Board the opportunity to decide whether to defer to arbitration “after hearing all the facts relevant to the appropriateness of deferral” and ensures that deferral is indeed desired by a party. Wheeling-Pittsburgh Steel, 618 F.2d at 1015. The record in this case demonstrates without equivocation that the employer waived any claim for deference before the AU and never stated that deference was appropriate as to supervisory status.
B.
There is yet another, equally compelling reason for this court not to reach the issue deemed dispositive by the majority. As is set forth in Part II. B., supra, the employer not only failed to argue to the Board that the Joint Conference Committee made a decision as to the applicability of the NLRA to these three employees, but it failed to so argue in its brief to this court. This court has followed the established principle that an appellate court should not consider issues that have not been raised before it by the parties. See Battle v. Pennsylvania, 629 F.2d 269, 271 n. 1 (3d Cir.1980), cert. denied, 452 U.S. 968, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981); Brown & Sielaff, 474 F.2d 826, 828 (3d Cir.1973); Fed.R.App.P. 28(a) (appellant’s brief shall state issues presented for review); 9 J. Moore, B. Wald & J. Lucas, Moore’s Federal Practice 11228.02[2.-1] (2d ed. 1983).
C.
Even more distressing than the majority’s rush to meet an issue not properly before us is its novel suggestion that the Board would be required to defer to an arbitrator’s construction of the scope of the NLRA. No authority is cited by the majority, nor do I know of any, for this proposition.
Reference to arbitration arises in two situations. One is when a court with jurisdiction under § 301 of the Labor Management Relations Act,' 29 U.S.C. § 185, is asked to decide a dispute arising under a collective bargaining contract, and the other is when the Board’s jurisdiction to prevent and remedy unfair labor practices is invoked. The rationale for deferring to arbitration in § 301 suits is to permit the parties to arbitrate a particular issue before persons of their choosing who are expert in the law of the shop. See Steelworkers v. American Manufacturing Co., 363 U.S. 564, 567-69, 80 S.Ct. 1343, 1346-47, 4 L.Ed.2d 1403 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960), and Steelworkers v. Enter*168prise Wheel & Car Corp., 363 U.S. 593, 596-97, 80 S.Ct. 1358, 1360-61, 4 L.Ed.2d 1424 (1960). If the parties are in dispute over an issue that is not subject to the grievance procedure, there need be no deferral to arbitration. Buffalo Forge Co. v. Steelworkers, 428 U.S. 397, 407, 96 S.Ct. 3141, 3147, 49 L.Ed.2d 1022 (1976). Thus, for example, it could be an arbitral issue whether the employees were foremen under a particular provision of a contract, but no case suggests that the parties could contract to agree to arbitrate the issue whether they were “supervisors” and hence not subject to the protection of the National Labor Relations Act.
In the second situation, i.e., when there is concurrent jurisdiction between the arbitrator by contract and the Board by statute over conduct that may both violate the contract and constitute an unfair labor practice, the Board has sought to accommodate both the policy underlying deference to arbitration and the policy underlying enactment of the NLRA. While the Board may, as a discretionary matter, choose to defer to arbitration, Section 10(a) of the Act, 29 U.S.C. § 160(a), makes it clear that the Board’s power to prevent unfair labor practices is not affected by any private agreement. See NLRB v. Acme Industrial Co., 385 U.S. 432, 437, 87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967).
The Board first enunciated the circumstances in which it would choose to defer to arbitration in Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955). See generally 1 The Developing Labor Law 957-91 (C. Morris 2d ed. 1983); R. Gorman, Basic Text on Labor Law 736-43 (1976). As this court has stated, the Board and this court will defer to an arbitrator’s award “if: (1) the proceedings have been fair and regular; (2) the parties agreed to be bound; and (3) the decision was not ‘clearly repugnant’ to the purposes and policies of the Act. Spielberg, 112 N.L.R.B. at 1082.” NLRB v. General Warehouse Corp., 643 F.2d 965, 968 (3d Cir.1981). An additional requirement for deference, enunciated in Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d 471 (1st Cir.1964), and approved by this court, is that the arbitrator reach and address the statutory questions and not resolve the issue solely on the contract. See Ciba-Geigy Pharmaceutical Division v. NLRB, 722 F.2d 1120, 1125-26 (3d Cir.1983); United Parcel Service, Inc. v. NLRB, 706 F.2d 972, 980-81 (3d Cir.1983), vacated on other grounds, — U.S. -, 104 S.Ct. 419, 78 L.Ed.2d 355 (1984); NLRB v. General Warehouse Corp., 643 F.2d at 969-71. In a recent decision, the Board expounded on how it will determine whether “the arbitrator has adequately considered the facts which would constitute unfair labor practices.” Olin Corp., 268 N.L.R.B. No. 86, 115 L.R.R.M. 1056, 1058 (1984).
There is no suggestion in that case, nor in any other case known to me, that would require the Board to defer to an arbitral decision that an employee is not within the scope of and protected by the Act. That threshold issue is central to the Board’s general enforcement of the Act, and I would find it surprising were the Board to choose to defer to an arbitral determination of its own jurisdiction, which is, after all, precisely the effect of a finding that the employees are “supervisors” and hence not protected by the central provisions of the Act. Since I believe that even if the Committee had decided this statutory issue (which it is clear it did not), deference would be inappropriate and the majority’s remand to the Board is both wasteful and silly. The Board can glean nothing more from the Committee’s ambiguous one-page decision than we can from the record before us.
. Mr. LeDoux, the employer’s supervisor on the Passaic Valley Project, did not contest that this happened, but merely said he "couldn’t swear” to it. App. at 134a. The ALJ credited Campione’s recollection. Id. at 135a.
. Therefore, it is a patent misstatement of the record for the employer to cite this colloquy in its brief before us as raising the "supervisor issue” at the administrative hearing, and to state that Judge Trunkes “discouraged the issue from being pursued." Brief for Respondent-Appellant at 16.