concurring, with whom HENRY, Circuit Judge, joins.
I concur in the result reached by the majority. I write separately because I am not persuaded that any deference is owed to the Board’s interpretation of the phrase “membership dues,” as used in section 302(c)(4) of the National Labor Relations Act, 29 U.S.C. § 186(c)(4).
Section 302, although generally part of the Act, is a criminal statute. Its enforcement thus lies not with the Board, but presumably with the Department of Justice (DOJ). Indeed, in its order in this case, the Board noted that the DOJ was “the agency responsible for the enforcement of’ section 302, and had “issued an influential opinion in 1948 construing the term ‘membership dues’ in” section 302(c)(4). NLRB Op. at 6. Further, the Board deferred to the DOJ’s interpretation of section 302 in reaching its decision in this case.1
Nor are we obligated to defer to the DOJ’s interpretation of section 302(c)(4). See Crandon v. United States, 494 U.S. 152, 177, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (Scalia, J., concurring) (“[W]e have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference.”). That leaves us to interpret section 302(c)(4) de novo, applying the applicable rules of statutory construction.
I agree with the majority that the term “membership dues,” as used in section 302(c)(4), is ambiguous. Given that conclusion, I would look to the legislative history of section 302 for guidance. See generally Garcia v. United States, 469 U.S. 70, 76 n. 3, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984) (noting that “ ‘[rjesort to legislative history’ ” is warranted “ ‘where the face of the [statute] is inescapably ambiguous’ ”) (quoting Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395-96, 71 S.Ct. 745, 95 L.Ed. 1035 (1951)). Senator Taft, one of the authors of section 302, explained that the general prohibition set forth in section 302(a) was intended to apply to “a case of extortion or a case where the union representative is shaking down the employer.” 93 Cong. Rec. 4746 (1947). As for the exception set forth in section 302(c)(4), Taft explained that it “simply prohibits] a check-off made without any consent whatever by the employees.” Id. In light of these statements, it appears that a broad construction of the section 302(c)(4) exception is warranted.
*1292In addition, the rule of lenity arguably comes into play here since we are dealing with an ambiguous term in a criminal statute. See Staples v. United States, 511 U.S. 600, 619 n. 17, 114 S.Ct. 1798, 128 L.Ed.2d 608 (1994) (noting rule of lenity requires that “ambiguous criminal statute[s] ... be construed in favor of the accused”). Under the rule of lenity, the exception set forth in section 302(c)(4) should be construed broadly to eliminate possible bases of criminal liability that do not violate the intent and purpose of the statute.
For these reasons, as well as those outlined in the majority opinion, I conclude the most reasonable construction of the term “membership dues” is the broad one long utilized by the Board and the DOJ. Under that construction, it is permissible for respondent to deduct “permit fees” from the wages of probationary employees and forward them to the Union if the probationary employees have authorized the procedure. As noted by the Board in its decision, the “permit fee” falls within the broad construction of the term “membership dues” because it (a) is “equal in amount to the monthly dues the Union charges its members,” (b) resembles an initiation fee “because it represents an amount the [probationary] employee must pay the Union prior to becoming a member,” and (c) “can reasonably be viewed as a charge to finance the cost of [the Union] representing the probationary employees, just as the Union charges dues to finance the cost of representing the regular employees.” NLRB Order at 7.
. These factors, in my view, arguably distinguish this case from Babbitt v. Sweet Home Chapter of Cmties. for a Great Ore., 515 U.S. 687, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995), which involved the Secretary of Interior's interpretation of a statute, the Endangered Species Act of 1973(ESA), that carried both civil and criminal penalties. Because the Secretary of Interior had enforcement authority over the civil penalty provisions of the ESA, it is understandable why some deference was owed to the Secretary's interpretation of that statute.