dissenting.
No one, not the National Labor Relations Board (“Board”), not the parties and not even the court, posits that the “permit fees” in this case are membership dues. Counsel for the Board candidly admitted at oral argument that this was a first, particularly when the source of the authority for these fees is not contained in the record.1 The court concludes that “membership dues” is ambiguous because “agency fees” have been included within the *1293term, as well as initiation fees and other union assessments. Finding ambiguity, the court defers to the NLRB interpretation as reasonable, in no small part because that interpretation enhances union security, a conclusion that is unaddressed by the record but in any event could not override the statute. As the courts are charged with administering criminal statutes, not the Board, Chevron deference seems inappropriate. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (deference appropriate to “an executive department’s construction of a statutory scheme it is entrusted to administer”); Crandon v. United States, 494 U.S. 152, 177, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (Scalia, J., concurring in the judgment) (Chevron deference is inapplicable to criminal statutes because those statutes are enforced by courts); Seneca-Cayuga Tribe of Okla. v. Nat’l Indian Gaming Comm’n, 327 F.3d 1019 (10th Cir.2003) (“Because the Johnson Act is a federal criminal statute enforced by the United States Department of Justice, we owe no deference to the NIGC’s construction.”); United States v. McGoff, 831 F.2d 1071, 1080 n. 17 (D.C.Cir.1987). Even were some degree of deference appropriate as suggested by the court, no deference should be accorded an interpretation of the statute that disconnects the term “membership dues” from union membership or its practical equivalent. The Board’s interpretation is flawed because it fails to distinguish between cases involving employer payments of assessments against current union members (permissible) and payments of assessments against non-union members (impermissible).
In NLRB v. General Motors Corp., 373 U.S. 734, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963), the Supreme Court determined that union membership may be a condition of employment only when “whittled down to its financial core,” and so understood, agency fees are “the practical equivalent” of union membership. Id. at 742-43, 83 S.Ct. 1453. Unlike agency fees, the permit fees in this case are not reflective of the type of “membership” that consists of having the present ability to join the union, but merely paying one’s union dues and assessments. See Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 37, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998) (noting the term “membership” for purposes of § 8(a)(3) is satisfied “merely by paying to the union an amount equal to the union’s initiation fees and dues”). The CBA makes it clear that the core financial obligation of union membership does not arise for probationary employees until the 91st day of employment.2
The permit fees in this case simply are not agency fees, initiation fees, service fees or assessments, or the practical equivalent. The probationary employees are not union members under the CBA, and there is no provision in the CBA for an agency fee; after all, we are dealing with a union shop. The probationary employees are excluded from certain benefits of union membership, including seniority status, resort to grievance procedures and paid holidays. When *1294they become union members, they still are required to pay an initiation fee. They have not consented to the withholding of anything akin to union dues; instead, desirous of employment, they are compelled to have the employer remit permit fees to the union prior to union membership. The fact that such payments may enhance union security (a test that would eviscerate any prohibition on payments by the employer to the union) has never been held to override at least some connection between “membership dues” and union membership.
With the exception of membership dues withheld pursuant to a written assignment, Congress generally has made it unlawful for any employer to pay any money to any labor organization. 29 U.S.C. § 186(a), (c)(4). Though the statute does not define “membership dues,” the term has thus far, and ought to be, construed “as connoting a payment related to membership of some kind.” NLRB v. Okla. Fixture Co., 295 F.3d 1143, 1146 (10th Cir.2002). Congress could amend the Labor Management Relations Act to sever this link, but it has not done so. That must be the source of any change, for “[w]e do not sit as a ‘superleg-islature’ to second-guess these policy choices.” Ewing v. California, — U.S. -, 123 S.Ct. 1179, 1189, 155 L.Ed.2d 108 (2003). For these reasons, and those contained in the panel opinion, Okla. Fixture Co., 295 F.3d at 1144-47, I respectfully dissent.
. The permit fees are not required by the collective bargaining agreement ("CBA”), but the NLRB determined that the employer’s past practice of deducting the permit fees became an implied term of the CBA and that the probationaiy employees voluntarily executed authorizations for deductions of amounts equal to union dues. Oklahoma Fixture Co., 331 NLRB 1116, 1120-21 (2000). In discussing why the permit fee resembled an initiation fee, the NLRB relied upon a prior case involving a document given to new employees describing the Union’s "dues and permit structure.” Id. at 1122 n. 29 (quoting Oklahoma Fixture Co., 305 NLRB 1077, 1078 (1992)). We usually decide cases based upon the record, not upon the record in some other case, although we have held that evidence outside the record may be considered in an unfair labor practice proceeding. Beth Israel Hosp. & Geriatric Ctr. v. NLRB, 688 F.2d 697, 699 (10th Cir.1982) (en banc). This record lacks definitive evidence as to the source of authority for imposing the permit fees, as well as their mandatory character.
. The court faults the panel opinion for consulting the CBA in determining that permit fees are not membership dues. As the court observes, however, the purpose of a given payment is particularly instructive in determining whether such payment falls within the ambit of “membership dues” under § 302(c)(4). Maj. Op. § IV. The CBA is a reasonable source to which to look for the purpose of the permit fees. We do, after all, apply statutes to facts, and the CBA provides a factual foundation for the Union’s purpose, or lack thereof, in collecting the permit fees. The lack of any discernible purpose is exactly what led the Board to use such expressions as "resembles,” and "similar to” in attempting to locate a post hoc justification for the permit fees.