The opinion
REINHARDT, Circuit Judge,
dissenting:
INTRODUCTION
The majority upholds an NLRB decision and order that defies reason and contravenes elementary principles of labor law. The majority, like the Board, concludes that a strike settlement agreement intended to protect strikebreakers against retaliation for their past conduct compels the union to afford those individuals all of the rights and privileges enjoyed by full union members even though they refuse, months after the strike, to accept full membership status. According to the majority’s reasoning, the non-retaliation clause obligates the union to afford all its members, including those core members who elect to accept only limited union duties and responsibilities, the same rights and privileges of full membership. Thus, in this ease, the core members can insist that they will not accept any of the obligations of union membership and at the same time demand that they receive all the benefits. Such an extraordinary result is not only contrary to the strike settlement agreements but also to the law on which the majority relies.
A union has a statutorily protected right to afford greater benefits to full members than to financial core members. A necessary corollary of this rule is that core members are not entitled to all of the rights and privileges that full members enjoy. 1 Neither the Board nor the majority is willing to acknowledge this rule. Yet it is not possible to evaluate the union’s actions in this case fairly without starting from the premise that a union has the right to limit the benefits of core members. Because of their failure to recognize this principle, it is not surprising that both the Board and the majority conclude that the union’s policy is retaliatory and therefore unlawful.
The evidence the majority relies on to support the Board’s findings, including the isolated statements of office personnel and one union representative, does little more than establish that the union exercised its right to deny certain extracontractual benefits to core members, a fact that is not contested. Critical to the majority’s conclusion regarding discriminatory animus is its suggestion that the union effectively prevented core members from converting to full membership status. Here, the majority attributes to the Board an inference that the Board itself never made. Further, the- majority ignores the undisputed testimony that a number of employees who crossed the picket line and became financial core members did in fact convert to full membership status after the strike. Finally, the majority violates a fundamental tenet of administrative law when it affirms the judgment of the Board on a ground not invoked by the Board. Without this crucial ground to support it, and without any other evidence sufficient to support a finding of discriminatory animus, there is simply no basis for the result the majority reaches.
I. LEGAL BASIS FOR THE UNION’S POLICY
Section 8(b)(1)(A) of the NLRA makes it an unfair labor practice for a union to *1261 “restrain or coerce ... employees in the exercise of the rights guaranteed in Section 7.” However, the proviso to section 8(b)(1)(A) provides that that section “shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” 2 The challenged policy is clearly protected under this section of the Act.
The proviso preserves the right of unions to adopt rules governing internal matters such as membership. Thus, 8(b)(1)(A) affords unions the authority to determine the rights and privileges that all members of the union, including core members, will enjoy. Upon examining the legislative materials dealing with section 8(b)(1)(A), the Supreme Court noted that “there are a number of assurances by its sponsors that the section was not meant to regulate the internal affairs of unions.” NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 186 , 87 S.Ct. 2001, 2009 , 18 L.Ed.2d 1123 (1967). Section 8(b)(1)(A), hence, does not invalidate internal union rules even if they tend to restrain or coerce employees exercising their rights under section 7. However, internal union rules are not exempt from the strictures of section 8(b)(1)(A) if they have an external effect, 1.e., if they affect employment status.
The Supreme Court has adhered to the distinction between internal and external enforcement of union rules and has made it clear that section 8(b)(1)(A) applies only to the latter. See, e.g., Pattern Makers’ League of North America v. NLRB, 473 U.S. 95, 102-03 , 105 S.Ct. 3064, 3068-69 , 87 L.Ed.2d 68 (1985). Internal union regulations that do not affect the employment status of the employees generally do not run afoul of the prohibitions embodied in section 8(b)(1)(A). For, as the Allis-Chal-mers Court explained, “Congress did not propose [by means of section 8(b)(1)(A)] any limitations with respect to the internal affairs of unions, aside from barring enforcement of a union’s internal regulations to affect a member’s employment status.” NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. at 195 , 87 S.Ct. at 2014 . See also NLRB v. Boeing Co., 412 U.S. 67, 73-74 , 93 S.Ct. 1952, 1956 , 36 L.Ed.2d 752 (1973) (under 8(b)(1)(A), the NLRB has “authority to pass on those rules affecting an individual's employment status but not on his union membership status”); NLRB v. International Ass’n of Bridge, Etc., 600 F.2d 770, 777 (9th Cir.1979) (section 8(b)(1)(A) makes it unlawful for unions “to act in an unreasonable, arbitrary, or invidious manner in regard to an employee’s employment status”), cert. denied, 445 U.S. 915 , 100 S.Ct. 1275 , 63 L.Ed.2d 599 (1980).
It is also well established that a union may withhold from non-members extra-contractual services and benefits “in full conformity with [its] right to regulate its internal affairs.” NLRB v. Amalgamated Local 286, U.A.W., 222 F.2d 95, 98 (7th Cir.1955) (group and hospitalization insurance coverage). In Del Casal v. Eastern Airlines, Inc., 634 F.2d 295 (5th Cir.1981), the Fifth Circuit declared “that a union is not obligated to extend those internal benefits enjoyed by its members to nonmembers.” Id. at 300 . For similar reasons, a union may withhold extra-contractual benefits from non-full members or financial core members. 3
There are practical consequences that flow from an employee’s decision to opt for limited rather than full union membership. For example, “an employee required by a union security agreement to assume financial 'membership’ is not subject to union discipline.” Pattern Makers’ League of *1262 North America v. NLRB, 105 S.Ct. at 3071 n. 16 (1985). Financial core employees place themselves outside the reach of union rules. By the same token, they renounce their right to participate in the internal conduct of union business. They “[are] ‘member[s]’ of the union only in the most limited sense.” Id. (emphasis supplied). Their association with the union is confined to the collective bargaining process. Therefore, financial core members can only demand nondiscriminatory representation. Cf. Abood v. Detroit Board of Education, 431 U.S. 209 , 221 n. 15, 97 S.Ct. 1782 , 1792 n. 15, 52 L.Ed.2d 261 (1977) (duty of fair representation). They are not entitled to any of the other benefits that union membership entails. See generally C. Morris, The Developing Labor Law 1365-67 (1983 & Supp.1987); R. Gorman, Labor Law 644-46 (1976).
There are several reasons why unions provide a wide range of benefits and make them available only to those willing to accept the advantages and obligations of full membership. The simplest is a desire to service the needs of its full members. Another is to afford those persons a tangible reward for accepting the responsibilities of membership. A third is to create practical incentives for other employees to join the union and participate fully in its affairs. All these are valid and lawful reasons, particularly in light of the proviso to section 8(b)(1)(A).
The federal labor laws not only allow but encourage unions to engage in legitimate efforts to increase their active memberships. Unions play a central role in our national labor policy. In the words of the Supreme Court: “National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions.” NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. at 180 , 87 S.Ct. at 2006 . An increase in full membership augments unions’ bargaining power and, consequently, their effectiveness in carrying out national labor policy. In Allis-Ckalmers, the Court declared expressly: “Integral to this federal labor policy has been the power in the chosen union to protect against erosion [of] its status under that policy_” Id. at 181 , 87 S.Ct. at 2007 . Thus it is fully consistent with national labor policy for unions to offer full members extra-contractual benefits and to use these benefits as an inducement to non-members or core members to step up to full membership status.
Similarly, the denial of union-provided extra-contractual benefits to core members does not constitute unlawful coercion against employees who choose to exercise their right to refrain from union activity. 4 Employees are not entitled to have it both ways. They cannot insist that they will not accept any of the obligations of union membership and at the same time demand that they receive all of the benefits. Consequently, absent some additional factor that would bring them within the strictures of 8(b)(1)(A), the policies adopted by the union in this case relate to internal union affairs, are exempted from the section and are protected by the proviso. Rather than prohibiting the union’s policies, section 8(b)(1)(A) was meant to protect precisely the type of conduct in which the union engaged. The failure of the majority and the Board to recognize this point makes it impossible for them properly to evaluate the union’s motivation or the legality of its conduct. 5
*1263 The Board and the majority also ignore the fact that the union had compelling reasons for adopting the challenged policies. Not one of those reasons is given credence in either opinion. The Board seizes on the fact that it was only after the strike that the union adopted a rule limiting the rights of core members. Yet, it was only after the strike that the union faced, for the first time in its history, the need to adopt rules governing the rights and privileges of financial core members. “Prior to its strike against the Employers [the Union] did not represent a single employee who was a financial core member.” ALJ op. at 8, reprinted in 275 N.L.R.B. at 915. Consequently, when the strike ended, the union had an obligation to define the respective rights and privileges of its full and financial core members. To be sure, in carrying out that duty, the union was not free to undermine or affect in any way the employment status of its financial core members. Nor could the union penalize or in any way discriminate against those employees who crossed the picket line or chose financial core status but were willing to return to full membership. In other words, the union was required to formulate an internal policy that did not affect any employee’s employment rights or single out or discriminate against any employee for his or her past conduct — and that is precisely what the union did.
While under ordinary circumstances it would be reasonable for a union to afford greater benefits to full members than to financial core members, here the Union had additional cause for its actions. The union was legitimately concerned over the loss of a large number of its full members during the strike. It had every reason to look for ways to help restore the participation level that it had achieved before the strike commenced. It could, certainly, offer new extra-contractual services to its full members as part of a concerted effort to persuade financial core members to re-join. Alternatively, the union could, as it did here, limit the currently-provided benefits which were extra-contractual in nature and not subsidized by union dues to persons who were willing to become, or remain, full members.
II. THE STRIKE SETTLEMENT AGREEMENTS
As demonstrated in Part I supra, the union had a statutory right to limit the privileges and benefits afforded to core members. To the extent that it is possible to reconcile the Board’s and the majority’s analyses with the National Labor Relations Act, 29 U.S.C. §§ 141 , 158, their argument would appear to be that by signing the strike settlement agreements the union somehow waived this right, in whole or in part. Accordingly, I next consider the meaning of the strike settlement agreements and whether the union’s conduct violated their provisions.
A. Waiver of Statutory Right
The strike settlement agreements provide in pertinent part:
The union and the company hereby agree that no employee shall be discriminated against in any way by virtue of lawful activity engaged in during or in connection with the strike....
Neither party shall discriminate or seek any penalty from any employee, including supervisory employees, because of their choices or actions with respect to financial core status or resignation.
A principal purpose of the agreements was to preclude punishment by the union of its members for their past acts. As with many strike settlement agreements, the parties here each agreed not to retaliate against the other’s partisans for actions taken while the economic warfare was in progress.
The agreements cannot reasonably be read as permanently or indefinitely prohibiting the union from limiting union-provided benefits to those who are willing to accept current full membership status, or *1264 from establishing prospectively two different categories of membership governing full and financial core members respectively, with two different sets of responsibilities and two different sets of correlative rights. The agreements neither state nor contemplate that all employees must be afforded identical rights and benefits regardless of what membership decisions they make on a continuing basis after the strike has ended. Thus, under the settlement agreements, the union remains free to take ordinary measures to govern itself, to regulate membership, to determine what benefits and privileges its members will enjoy, so long as it does not discriminate on the basis of strike-related conduct. Clearly, when the union agreed not to retaliate against non-striking employees, it did not waive its statutorily protected right to limit the privileges of core members.
In the alternative, it could be that both the majority and Board believe that the strike settlement agreements, while not serving to waive entirely the union’s rights under section 8(b)(1)(A), constitute a partial waiver of such rights. Under this theory, the strike settlement agreements serve to limit the union’s otherwise lawful conduct only if the conduct is motivated by discriminatory or retaliatory animus. For purposes of my dissent, I will assume that the majority relies on this latter theory, and, in that light, will analyze its argument that the union acted out of discriminatory animus.
B. Discriminatory Animus
As noted earlier, the question whether the union acted with discriminatory animus must be considered in light of the fact that the union had a statutorily protected right to limit the rights and privileges afforded core members, to treat them differently from its full members. See supra Part 1. Both the majority and the Board fail to recognize this point. This failure causes them to view otherwise innocent behavior as highly suspect, and as supportive of a finding of discriminatory motive. When the union’s conduct is viewed in its proper context, its actions are readily characterized as eminently reasonable and justifiable.
Moreover, the most critical allegations the majority utilizes to sustain the Board’s finding of discriminatory animus were not relied on by the Board and may not properly be relied on by the majority. The remainder of the evidence it cites is marginal at best and would be deemed either irrelevant or inadmissible hearsay were it introduced in a court of law.
1. Strikebreakers as core members
The majority places great emphasis on its assertion that the evidence is undisputed that the only “victims” of the union’s challenged policy were financial core members who crossed the picket line. See maj. op. at 1254-1255. While this may be true, it is wholly beside the point. There are no other financial core members; if there were, under the union’s rules they would receive the identical treatment. As pointed out earlier, some rule was required when a new category of members emerged, and there is absolutely nothing suspect either about the fact that a rule was adopted, or that it provided that financial core members would receive fewer benefits than full members. Also, the issue is not whether the policy disadvantages core members— and the Board and the majority go to great lengths to establish this uncontested point —but whether the policy discriminated against non-striking employees because of their conduct during the strike. The facts clearly demonstrate that core members do not receive different treatment because of their strike-related activities. They receive different treatment only if they currently — months after the strike has ended — refuse to participate in the affairs of the union and currently elect not to become eligible for the full range of benefits. As long as an employee is currently willing to accept full membership, he is entitled to all of the union-provided benefits — irrespective of what actions he took during the strike. 6
*1265 Given these facts, it cannot reasonably be said that the union’s policy is one of retaliation for past conduct. Indeed, as the NLRB noted, “employees who chose to work during the strike, but did not resign their [union] membership” receive exactly the same benefits as full members who wholeheartedly supported the strike. ALJ op. at 10, reprinted, in 275 N.L.R.B. at 916. Equally important, individuals who converted to financial core membership status during the strike and subsequently reinstated their full memberships receive all of the benefits of full membership. It is clear from these facts alone that the challenged policy does not penalize individuals because of strike-related conduct.
In short, while financial core members receive fewer benefits, it is not because they chose to become financial core members during the strike. They can receive the full benefits of union membership whenever they wish to do so. They need only do what all the other persons who receive those benefits have done — become full members of the union. Thus the fact that all the core members are individuals who worked during the strike does not by itself support any inference that the union’s action was motivated by discriminatory animus.
2. Statements suggesting discriminatory animus
The majority next refers to four isolated statements that it apparently believes show that the union’s actions were retaliatory in nature and therefore violated the strike settlement agreements. See maj. op. at 1254-55. 7 The first statement was purportedly an admission of an office manager as to the purpose of the rule. However, the statement in no way pertains to the reasons why the rule was adopted. If anything, it only relates a somewhat inaccurate description of the scope or effect of the rule. Equally important, an office manager does not participate in any way in the formulation of union policy, is not normally knowledgeable as to the motives underlying the union’s decisions, and her statements cannot serve to bind the union on the issue of motivation. The second statement was purportedly made by an unnamed “office worker”, and the third by “someone in the Union’s office”. Again, these hearsay statements, the contents of which were also far from definitive, cannot serve to bind the union, and provide no insight into the union’s motivation. The only statement purportedly made by a union official was made by Marty Dolan, a business representative. Dolan simply told a core member that in order to reinstate his full membership he should write a letter explaining why he signed financial core and crossed the picket line, and also why he wanted to be reinstated. Clearly, this statement does not serve to establish the basis of the union’s decision to adopt the challenged policy.
When viewed separately or together, the four isolated snippets, consigned to a footnote in the Board’s opinion 8 , do little more than demonstrate the actual if undisputed existence of the challenged policy. They in no way constitute the substantial evidence as to motivation needed for this court to affirm the Board’s order.
3. Denial of union facilities to core members
The majority also claims to find “additional support” for its conclusion that there is substantial evidence of discriminatory animus in the fact that core members were denied use of the union’s building facilities. The majority’s reliance on this evidence— even if only to provide additional support for its judgment — again reflects its failure to understand that the union may legitimately proscribe rights, privileges and benefits of core members, so long as employment status is not affected. Indeed, under the proviso to section 8(b)(1)(A), the *1266 union may make core membership as unattractive as possible.
Nor is it relevant that members of the public were entitled to use the facilities. Such persons, unlike core members, have not rejected full union participation; nor can the union offer them an all or nothing full membership option. Clearly, the union has nothing to gain from denying the use of its facilities to the general public. However, the union does stand to benefit if core members are denied every possible privilege and as a result are given additional incentive to become full members.
4. Ability of core members to become full members
Perhaps most important to the majority’s conclusion that there is substantial evidence of discriminatory animus is its suggestion that the union effectively prevented core members from converting to full membership status. The majority refers to testimony by three core members who sent letters to union officials in early 1983 asking to become full members, and whose requests were still pending at the time of the administrative hearing that November. See Maj. op. at 1255-1256. My colleagues conclude that it was “proper for the NLRB to infer, from the Union’s failure to act upon these requests for reinstatement to full membership, that the purpose of its December 1982 discriminatory action against financial core members was to punish them for crossing the picket line.” Id. at 1256. Unfortunately for the majority’s argument, no such inference was made by the NLRB.
Both the non-existent inference and the evidence of delay are fundamental elements of the majority’s case. Had the Board made an inference of discriminatory treatment in reliance on evidence that the union refused to act on applications for full membership, and had the record as a whole justified the drawing of such an inference from such evidence, there would in all likelihood be sufficient basis for a finding of improper motivation. However, not only did the Board not make the inference relied on by the majority but it appears to have given no weight at all to the testimony regarding the alleged delays. Nowhere in its decision is any reference whatever made either to the evidence or the rationale upon which the majority relies. Moreover, the record contains undisputed testimony that a number of employees who crossed the picket line and chose to become financial core members did convert to full membership status after the strike, apparently without difficulty.
Thus the majority is simply incorrect when it suggests that the Board concluded that the union effectively prevented core members from converting to full membership status. Indeed, the only logical inference we can draw from the entire record and the Board’s decision not to rely on the evidence of delay is that the Board concluded that the evidence was not sufficiently credible or probative to affect its judgment.
Finally, even if the majority’s suggestion that core members were effectively prevented from converting to full membership status were correct, the judgment of the Board could not be affirmed on that ground. “[A]n agency’s order must be upheld, if at all, ‘on the same basis articulated in the order by the agency itself.’ ” FPC v. Texaco, Inc., 417 U.S. 380, 397 , 94 S.Ct. 2315, 2326 , 41 L.Ed.2d 141 (1974) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 , 83 S.Ct. 239, 245-46 , 9 L.Ed.2d 207 (1962)). See also Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607, 631 , 100 S.Ct. 2844, 2858 , 65 L.Ed.2d 1010 (1980) (plurality opinion); FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249 , 92 S.Ct. 898, 908 , 31 L.Ed.2d 170 (1972). Indeed, the Supreme Court has long held that we “must judge the propriety of such [administrative] action solely by the grounds invoked by the agency.” SEC v. Chenery Corp., 322 U.S. 194 , 196, 67 S.Ct. 1575, 1577 , 91 L.Ed. 1995 (1947). Here, the Board clearly did not purport to base its judgment on the inability of core members to convert. Thus the majority affirms the judgment of the Board in reliance on an entirely new ground, one never referred to by the Board. This it may not do.
*1267 The majority errs egregiously when it attributes to the Board an inference the Board never made, ignores the undisputed testimony that core members were free to convert, and upholds the Board’s judgment on a basis not invoked by the Board. Without this critical underpinning, there is simply no adequate basis for the majority’s decision.
5. Conclusion
The Board’s finding of improper motivation “amounts to little more than speculation”. NLRB v. International Brotherhood of Electrical Workers, 827 F.2d 530, 537 (9th Cir.1987). “Weighed against this [speculative] evidence was the uncontro-verted fact”, id., that employees who crossed the picket line but did not become financial core members and employees who became financial core members during the strike but returned to full membership af-terwards were both afforded full membership benefits and neither suffered reprisals. They were treated identically, in every respect, to those who fully supported the strike. Only those individuals who chose more than four months after the strike to reject full membership status and to continue in a dues-paying-only capacity were deprived of the benefits the union decided to afford only to its full members. The union admittedly sought to treat financial core members differently, to treat them in a far less favorable manner than full members. But, there is no substantial evidence in the record to support the Board’s inference that it was motivated by a desire to retaliate against those members for their strike-related conduct. Accordingly, the Board’s conclusion that the union breached the settlement agreements should not be affirmed. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 , 71 S.Ct. 456, 464-65 , 95 L.Ed. 456 (1951).
III. SECTION 8(b)(1)(A)
The majority reasons that because the challenged policies violate the strike settlement agreements, they also necessarily violate section 8(b)(1)(A). However, the union, on appeal, contends only that there was no “breach of those agreements”. It does not contest the Board’s conclusion that a breach of the settlement agreements constitutes a violation of section 8(b)(1)(A). 9 Accordingly, this court should not consider whether the breach constituted a violation of that provision. We should simply assume for purposes of this decision that the Board’s conclusion is legally correct. The part of the majority’s analysis which goes beyond determining whether a breach of the settlement agreement occurred constitutes unnecessary dicta and is of no binding force or effect.
In any event, I find both the NLRB’s and the majority’s reasoning tortured when they attempt to explain why a union’s breach of a contractual agreement with an employer constitutes a violation of section 8(b)(1)(A), i.e., coercion of the employees in the exercise of their statutory rights. If, in the absence of the settlement agreements, the union could lawfully have taken the actions it did without violating the employees’ statutory rights, I cannot understand how the breach of the agreements can transform those same actions into a violation of those statutory rights. I respectfully suggest that in basing its decision in part on section 8(b)(1)(A) the Board and the majority are simply relying on the wrong provision. The violations, if any, are of sections 8(b)(3) and 8(d). 10
CONCLUSION
The Board’s holding that the challenged policies violate the non-retaliation provisions of the strike settlement agreements is based on erroneous legal principles and insufficient evidence. The majority’s af-firmance of the Board’s order is even more flawed, since it relies on a basis not relied on by the Board.
*1268 There is simply no substantial evidence supporting the Board’s conclusion that the union was motivated by discriminatory animus. The union’s policy constituted a legitimate attempt both to define the respective rights and privileges of full and financial core members and to encourage employees to elect full union membership. The union lawfully exercised its power over its own internal affairs as contemplated by the proviso contained in section 8(b)(1)(A). Had the Board properly recognized the legal principles involved, it is unlikely that it would have arrived at its erroneous result.
For the foregoing reasons, I dissent.
. There are two qualifications to the rule. First, the union must not discriminate against financial core members in a manner that affects their employment rights. See infra at pages 1260-62. Second, the union may not use certain funds to provide benefits that are not available to all of its members. See infra n. 3.
. Section 7, 29 U.S.C. § 157 (1982), gives employees the right to refrain from labor organization activity "except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment...."
. We need not consider here whether the rule would be different were the expenditure of union dues money involved or, alternatively, whether the financial core members would simply be entitled to a return of part of their dues payments. Cf. CWA v. Beck, — U.S. —, 108 S.Ct. 2641 , 101 L.Ed.2d 634 (1988). The NLRB does not contend that any union dues money was expended in connection with the benefits at issue; neither does the majority. The union asserts unequivocally that no such funds were used and that the clinics and the pharmacy are self-sustaining non-profit business operations.
. As noted supra at pages 1260-62, in altering the incentive structure underlying union membership, the union may not undermine the employment rights of financial core employees. In International Ass’n of Machinists v. NLRB, 626 F.2d 119 (9th Cir.1980), we held that a union could not refuse to sell unemployment stamps— which employees off the payroll could use in lieu of regular dues — to non-members. The benefits withheld in Machinists clearly affected the employment status of the employees. The collective bargaining agreement required union membership in order to retain employment status, and the stamps enabled the unemployed to maintain their memberships.
. The Board expressly reserved the question whether the union's conduct would have violated section 8(b)(1)(A) in the absence of the strike settlement agreements. ALJ op. at 12 n. 8, re *1263 printed in 275 N.L.R.B. at 917 n. 8. The majority shows even less awareness of the meaning of the section 8(b)(1)(A) proviso and appears to proceed from the incorrect premise that the union cannot treat core members differently from full members.
. The majority, unlike the Board, erroneously suggests that the union interfered with the right *1265 of core members to convert to full membership. I address this contention in Part II.B.4 infra.
. The majority opinion refers to two other statements that simply describe the fact that core members receive lesser benefits. See maj. op. at 1255. They require no further mention here.
. ALJ op. at 10 n. 5, reprinted in 275 N.L.R.B. at 916 n. 5.
. The union does assert that we are not free to consider this claim since it was not pleaded or litigated before the Board. I agree with the majority that the procedural error, if any, was not fatal.
. However, I conclude that the union did not violate either of these sections since, as I have already explained, its actions did not violate the strike settlement agreements. See supra Part II.