dissenting:

The National Labor Relations Board has decided that a union affiliation election does not satisfy the requirements of due process if nonmembers are ineligible to vote. Amoco Production Co., 262 N.L.R.B. 1240 (1982). I do not find that position irrational or inconsistent with the National Labor Relations Act, 29 U.S.C. §§ 151-169 , and would affirm. See Beth Israel Hospital v. NLRB, 437 U.S. 483, 501 , 98 S.Ct. 2463, 2473 , 57 L.Ed.2d 370 (1978).

The Fifth Circuit has enforced the Board’s rule. Local No. 4-14, Chemical & Atomic Workers International Union v. NLRB, 721 F.2d 150 (5th Cir.1983). It identifies “the crux of the Board’s reasoning”:

Id. at 152 n. 2 (quoting Amoco Production, 262 N.L.R.B. at 1241 (quoting North Electric Co., 165 N.L.R.B. 942 , 944 (1967) (dissent))).

The Fifth Circuit noted that “[sjtrong arguments” for the contrary rule “were adopted by the Board in its earlier rulings that were overruled” by the new ruling. Id. at 152. It concluded that “Although the Board earlier vacilated [sic] somewhat in establishing a rule ..., [it] clearly articulated reasonable grounds for this later change.” Id.

The court stated:

Local Union No. 4-14, 721 F.2d at 152-53 . I agree. That one circuit already has concluded that the Board’s position is rational reinforces my position. An intercircuit conflict over the rationality of the Board’s decision is unwarranted.

The majority explains at length its reasons for reaching the opposite conclusion. It engages in the balancing of interests that is the province of the Board, not the courts.

First, does the new rule unnecessarily interfere with internal union affairs? The Board has concluded that an affiliation election is not an internal union affair, but involves the selection of a bargaining representative. Amoco Production, 262 N.L.R.B. at 1241. While the Board has presumed in the past that an affiliation election was an internal union affair unless a question concerning continuity of representation arose, it may change its application of the Act “in light of its cumulative expe *369 rience.” Beth Israel Hospital, 437 U.S. at 508 , 98 S.Ct. at 2477 .

The Board has concluded that affiliation election voting rights for nonmembers are necessary to preserve their right to participate in the selection of a bargaining representative. See 29 U.S.C. § 157 . The bargaining unit here consists of about 4800 employees, of which 2824 are union members. Only 1206 member employees voted for affiliation; 774 voted against it.

The majority opinion concludes that requiring participation of nonmembers constitutes an unwarranted interference with internal union affairs. While the majority may give the preservation of union autonomy higher priority, we are required to defer to the Board’s expertise. See NLRB v. Walton Mfg. Co., 369 U.S. 404, 405 , 82 S.Ct. 853, 854 , 7 L.Ed.2d 829 (1962); Texaco, Inc. v. NLRB, 700 F.2d 1039, 1042-43 (5th Cir.1983). The Board need only justify its position within the statutory framework. Beth Israel Hospital, 437 U.S. at 501 , 98 S.Ct. at 2473 ; Local Union No. 4-14, 721 F.2d at 152 .

Second, is the Board’s rule inconsistent with the promotion of stability in the bargaining representative? The majority opinion states that this is a situation in which the promotion of stability of the bargaining representative should prevail over individual employees’ rights to free choice. A change in affiliation is a change in the status of the bargaining representative. Under the new rule, nonmembers may not force affiliation because the decision to hold an affiliation election remains the province of the union. The Board’s rule will promote stability more effectively than did its former position.

Third, is the Board’s new rule irrational? The majority contends that irrationality is established by the adequacy of the old procedure and the inadequacy of the Board’s reasoning.

The adequacy of the old procedure is irrelevant. We should instead determine whether the new rule is rational and consistent with the Act. The merit or sufficiency of the previous rule should not control.

The majority lists risks that it considers created unnecessarily by the change in procedure. I would defer to the Board’s conclusions as to the necessity of the new rule. Those risks each identify a policy, the protection of which is discussed elsewhere in this opinion.

The Board has not avoided the appropriate statutory inquiry. It has decided that the right of nonmembers to select their bargaining representative will be protected adequately only if they may participate in affiliation decisions. Therefore, due process fairness and the integrity of the certification process require the right to participate in affiliation elections.

I would affirm.