The opinion
NORRIS, Circuit Judge,
dissenting:
Rather than treating this matter as a routine case of enforcement of a Board order which is based upon findings supported by substantial evidence in the record as a whole, NLRB v. World Evangelism, Inc., 656 F.2d 1349, 1352 (9th Cir.1981); Stephens Institute v. NLRB, 620 F.2d 720 , 726 (9th Cir.), cert. denied, 449 U.S. 953 , 101 S.Ct. 358 , 66 L.Ed.2d 217 (1980), the majority refuses to enforce the Board’s order by invoking, without citation of authority, some vague and unarticulated doctrine of fairness.
I
It is well established that an employer violates section 8(a)(3) and (1) of the Act when it discharges employees because of their union activities. See NLRB v. Fort Vancouver Plywood Co., 604 F.2d 596 , 599 & n. 1, 600 (9th Cir.1979), cert. denied, 445 U.S. 915 , 100 S.Ct. 1275 , 63 L.Ed.2d 599 (1980); Santa Fe Drilling Co. v. NLRB, 416 F.2d 725, 729 (9th Cir.1969). Here, Sav-On stipulated that pharmacist managers Kunysz and Fogel were discharged because of their activities on behalf of the Guild, and it did not challenge the administrative law judge’s conclusion, based on the Board’s decision in the representation case, that Kunysz and Fogel were employees, not supervisors. Thus, as the majority is forced to concede, an undisputed prima facie ease of violation of the Act has been made out.
*1151 Sav-On argues, however, that it cannot fairly be held to have violated section 8(a)(3) and (1) because of the regional director’s initial decision that Kunysz and Fogel were supervisors. According to Sav-On, it was entitled to rely upon the decision of the regional director as final and binding upon it until such time as the Board reversed the decision, notwithstanding the fact that it knew not only that the Guild had petitioned for review, but that review had been granted by the Board. Sav-On further contends that Congress’ intent that a regional director’s decision should be “final and binding” despite the pendency of an appeal is shown by that portion of section 3(b) of the Act which provides that the Board’s decision to review the action of a regional director “shall not, unless specifically ordered by the Board, operate as a stay of [that] action.” 29 U.S.C. § 153 (b) (1976). Sav-On points out that no stay issued here. Finally, Sav-On appears to contend, as it argued before the Board, that it had to discharge Kunysz and Fogel lest it subject itself to unfair labor practice charges for permitting its supervisors to engage in activities on behalf of the Guild at a time when the Union, and not the Guild, was certified to represent its employees.
These arguments are without merit. First, there is no basis for Sav-On’s assertion that it had a right to rely on the regional director’s decision until that decision was reversed by the Board, even though it knew that the Board had granted review. It is an inherent characteristic of our legal system that, where levels of review are provided and parties resort to them, the decisions and findings of an inferior forum may ultimately be reversed by a higher tribunal. Litigants are presumed to understand this risk. 1 Neither the procedures provided under the Act for review of a regional director’s decision nor the results which flow from resort to those procedures are in any way novel in this respect. Thus, section 3(b) of the Act, which authorizes delegation to the regional directors of certain of the Board’s powers in representation cases, provides that any interested person may seek review of a decision of the regional director and that the Board, in its discretion, may grant such review. The Board has further amplified this right to seek review by providing in its rules and regulations that “[i]n the event the regional director decides the issues in a case, his decision is final subject to the review procedure set forth” in the rules and regulations, 29 C.F.R. § 101.21 (a) (1982) (emphasis added), and also that “[t]he decision of the regional director shall be final: Provided, however, That within 10 days after service thereof any party may file ... a request for review with the Board,” 29 C.F.R. § 102.67 (b) (1982). Section 102.67(c) then explains:
The Board will grant a request for review only where compelling reasons exist therefor. Accordingly, a request for review may be granted only upon one or more of the following grounds:
(1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, officially reported Board precedent.
(2) That the regional director’s decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of a party.
*1152 (3) That the conduct of the hearing or any ruling made in connection with the proceeding has resulted in prejudicial error.
(4) That there are compelling reasons for reconsideration of an important Board rule or policy.
29 C.F.R. § 102.67 (c) (1982).
These provisions make it amply clear to litigants that a decision of the regional director, like the decisions of most inferior tribunals, is not final and cannot safely be relied upon so long as a request for review can still be timely filed, or when review has been requested and granted by the Board. See Transportation Enterprises, Inc. v. NLRB, 630 F.2d 421, 425-26 (5th Cir.1980). Litigants before the Board are “charged with knowledge of the Board’s powers and functions and, therefore, of the limitations placed by law upon the authority and actions of its subordinates.” NLRB v. Armstrong Tire & Rubber Co., Tire Test Fleet Branch, 263 F.2d 680, 682 (5th Cir.1959). Accordingly, once review has been granted, all parties are on notice that the Board will review the regional director’s findings and that those findings are subject to modification or reversal. Indeed, given the nature of the grounds listed in 29 C.F.R. § 102 .-67(c) for a grant of review by the Board — a substantial question of law or policy raised, a clearly erroneous factual determination, a significant procedural error, and a need for reconsideration of an important Board rule or policy — the prudent litigant should realize that if the Board has granted review of the regional director’s decision there is a substantial possibility that that decision will be reversed. Certainly one who takes action under these circumstances must be aware that he acts at his peril.
For these reasons Sav-On, which was well aware when it discharged the two pharmacists that an appeal reviewing their status was pending before the Board, cannot argue that it was surprised or unfairly prejudiced either by the Board’s action in reversing the regional director’s decision or by the Board’s subsequent conclusion that the discharges constituted an unfair labor practice. Having chosen to act in this climate of uncertainty, Sav-On cannot now complain of unfair treatment.
II
Nor is Sav-On’s position advanced by the argument that the regional director’s decision had some greater force or finality because it was not stayed. Both the Act and the Board’s rules and regulations make it clear that decisions of the regional director become final only if the time for taking an appeal runs without an appeal being taken or a request for review is made by a party and then denied by the Board. Once a request for review is made and granted, the regional director’s decision is precluded from ripening into a final decision. This circumstance cannot be altered by the actions of the parties in seeking or choosing not to seek a stay. Hence, while section 3(b) of the Act indeed provides that review by the Board “shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director,” this language means only that parties who have been directed by the regional director to take some action — most often, to proceed to an election — must do so regardless of the pendency of the appeal, unless they obtain a stay. As Congressman Kearns of Pennsylvania stated in discussing this language shortly before it was enacted, it was intended merely “to avoid the taking of an appeal as a delaying technique.” 2 Office of General Counsel, NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 1750 (1959).
In the instant case, as the administrative law judge observed, since the regional director’s decision had dismissed the Guild’s representation petition, “there [was] no action to be taken by [the] regional director or by the parties,” and, accordingly, “no need or purpose for a stay order to be either requested or issued.” See generally 4A C.J.S. Appeal and Error § 632 (1957) (generally, parties can obtain a stay “of any appealable judgment, order, or decree which commands or permits some act to be done or which is of a nature to be actually *1153 enforced against the party affected ”) (emphasis added); Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977) (to obtain a stay in the federal courts one must show, inter alia, that without such relief he will be irreparably injured). It would have been pointless for the Guild, which filed the request for review, to seek a stay because the regional director’s decision neither commanded nor permitted any act to be done, and the Guild thus had no need for a stay. There was nothing to stay because there was no order directing or restraining anyone from doing anything. In this circumstance, a stay could not properly have issued. Hence, the Guild’s decision not to seek a stay is irrelevant to the question of the finality of the regional director’s decision.
The majority argues that the Guild is responsible for Sav-On’s violations of the Act because of its contentious union campaigning and failure to seek a “stay” pending appeal of the regional director’s decision. However, whether Sav-On acted while caught in an economic “crossfire” in part created by the Guild’s union activities or wholly avoidable by the issuance of a stay is an issue neither raised before the Board nor argued on appeal by Sav-On. The majority’s reliance on this ratio decidendi therefore requires a factual determination to have been made by the Board of Sav-On’s anticipated “economic loss” and “administrative turmoil” which was not made. Sav-On has instead only argued a theory of legal duress, that, once the regional director’s decision issued, it was forced to resume negotiations with the Union lest it face refusal-to-bargain charges under section 8(a)(5) of the Act, 29 U.S.C. § 158 (a)(5) (1976). According to Sav-On, it had no choice but to terminate Kunysz and Fogel after the regional director’s decision declared the pharmacist managers to be supervisors and confirmed the Union’s right to represent Sav-On’s pharmacist employees by dismissing the Guild’s petitions. Sav-On argues that a failure to discharge Kunysz and Fogel at that point would have subjected Sav-On to unlawful assistance charges under section 8(a)(2) of the Act, 29 U.S.C. § 158 (a)(2) (1976), for permitting its supervisors to campaign for a rival union.
In order to reach its conclusion that the Guild is responsible for Sav-On’s negotiations with the Union and, therefore, somehow also responsible for the unfair labor practices subsequently committed, the majority appears to have accepted this reasoning. This argument is, of course, merely a variation of Sav-On’s earlier contention that it had a right to rely on the regional director’s decision, despite the pendency of the Guild’s petition for review, until such time as the Board’s decision issued. But these arguments must fail because, as already shown, Sav-On did not have a right to rely on the regional director’s decision when it knew that an appeal was pending. Nor is it true that Sav-On would have been guilty of unlawfully assisting the Guild if it had failed to terminate Kunysz and Fogel for their activities on behalf of that union. So long as the Guild’s appeal was pending, it was uncertain whether the Union would or would not prevail as the bargaining representative for Sav-On’s pharmacists. Accordingly, Sav-On was not obliged to behave as if Kunysz and Fogel were supervisors campaigning for a rival union in derogation of the certified bargaining representative. If Sav-On was concerned with insuring that Kunysz and Fogel’s conduct would not be attributed to management, it had only to explain to its employees that, so long as the appeal was pending, the pharmacist managers had a right to campaign for the Guild but that they did not speak for management which wished to remain neutral until the Board decided which union would represent the pharmacists. Such a statement to employees would almost certainly have insulated Sav-On against charges that it had rendered unlawful assistance to the Guild. See Ohio Rubber Co., a Division of the Eagle-Picher Co., 152 N.L.R.B. 1121 , 1125 & n. 3 (1965); Livingston Shirt Corp., 107 N.L.R.B. 400 , 402-03 (1953); Westinghouse Electric Corp., 91 N.L.R.B. 955 , 956-57 & n. 6 (1950). As a result, it is simply not true that Sav-On was forced to discharge Kunysz and Fogel in order to *1154 avoid unfair labor practice charges. Whether Sav-On was subjected to some form of duress — either legal, as Sav-On itself contends, or economic and administrative, as the majority asserts — which compelled bargaining with the Union is therefore simply irrelevant to the Board’s conclusion, supported by substantial evidence in the record, that Sav-On discharged Kunysz and Fogel in violation of the Act.
Sav-On and the Union’s negotiations are of even less discernible relevancy to whether termination of the striking pharmacists constituted an unfair labor practice. The majority seems to have ignored this issue entirely. Strikers retain their status as “employees” under section 2(3) of the Act and therefore have a right to be reinstated to their former positions at the conclusion of a strike. 2 NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 , 88 S.Ct. 543, 545-546 , 19 L.Ed.2d 614 (1967). An employer violates section 8(a)(3) and (1) of the Act if he discharges employees for engaging in a lawful strike, NLRB v. International Van Lines, 409 U.S. 48, 50-52 , 93 S.Ct. 74, 76-77 , 34 L.Ed.2d 201 (1972), and the Board has held, with the approval of this and other courts, that employees who are discharged because of strike activity are entitled to backpay from the date of the unlawful discharge until the employer’s liability for backpay is tolled by an offer of reinstatement. NLRB v. Trident Seafoods Corp., 642 F.2d 1148, 1149-50 (9th Cir.1981); NLRB v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 755-57 (7th Cir.), cert. denied, 454 U.S. 894 , 102 S.Ct. 391 , 70 L.Ed.2d 209 (1981); Abilities & Goodwill, Inc., 241 N.L.R.B. 27 , 27, enf. denied on other grounds, 612 F.2d 6 (1st Cir.1979); Fry Foods, Inc., 241 N.L.R.B. 76 , 76 n. 2, enf’d, 609 F.2d 267 (6th Cir.1979). Since Sav-On stipulates here that it discharged the strikers because of their strike activity, it is plain that Sav-On has violated the Act and that the strikers are entitled to backpay from the date of their discharge. 3
Ill
Although the majority does not advert to it, Sav-On argued before this court that it had a right to discharge the strikers because the strike violated the no-strike clause in its collective bargaining agreement with the Union and was therefore unprotected. See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 280 , 76 S.Ct. 349, 356 , 100 L.Ed. 309 (1956); Chrysler Corp., Dodge Truck Plant, 232 N.L.R.B. 466 , 474 (1977). However, this argument will not withstand scrutiny. In the first place, only about half of the strikers were covered by the contract, for thirty-one of those discharged were either from non-union stores or were pharmacist managers excluded from coverage by the parties’ extension agreement. 4 Since these employees were not bound by the contract, their conduct in striking was within the Act’s protection and Sav-On was not free to discharge them.
Furthermore, even those strikers who were covered by the contract did not strike in breach of the no-strike clause. It is well settled that a no-strike obligation is the quid pro quo for an employer’s agreement to submit disputes to arbitration, Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 248 , 90 S.Ct. 1583, 1591 , 26 L.Ed.2d 199 (1970), and that, therefore, absent explicit agreement to the contrary, a no-strike obligation is limited to disputes over arbitrable issues. Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 382 , 94 S.Ct. 629, 639 , 38 L.Ed.2d 583 (1974); NLRB v. Southern California Edison Co., 646 F.2d *1155 1352 , 1367 (9th Cir.1981). In this ease, the administrative law judge found, with the Board’s approval, that the no-strike clause limits the no-strike obligation to matters subject to the grievance-arbitration procedure. This interpretation, which is reasonable and consistent with the principles set out above, is entitled to deference from this court. NLRB v. Southern California Edison Co., 646 F.2d at 1366-67. The dispute which gave rise to the strike, of course, was Sav-On’s termination of pharmacist managers Kunysz and Fogel, and this dispute was not subject to arbitration because the parties’ extension agreement, signed two months earlier, had excluded pharmacist managers from the contract’s coverage. It follows that the no-strike clause did not limit the employees’ right to strike in support of Kunysz and Fogel since the dispute surrounding their discharge could not have been resolved through arbitration. In response, Sav-On argues that the extension agreement between Sav-On and the Union did not in fact exclude the pharmacist managers, since it excluded only pharmacist managers “who are supervisors within the meaning of the Act” and the Board, some eight months later, determined that the pharmacist managers were not “supervisors within the meaning of the Act.” Therefore, according to Sav-On, the Board was incorrect in concluding that the Kunysz and Fogel terminations were not subject to the contract arbitration procedure. This argument also must fail. With such an express indication that pharmacist managers were to be excluded from the agreement as appears from its language, the Board’s conclusion that, at the time of the Kunysz and Fogel discharges, pharmacist managers were not covered by the contract is supported by substantial evidence. Since the strike did not violate the no-strike clause, it was within the Act’s protection, and Sav-On violated section 8(a)(3) and (1) of the Act by discharging the strikers and refusing to reinstate them at the termination of the strike.
IV
The majority holds today that the Act permits employees to be discharged for exercising protected rights if a rival union, here the Guild, either could have preserved the status quo pending Board review by obtaining a stay of the regional director’s judgment, or in fact made demands which pressured the employer into actions which indirectly led to the Act’s violation. Neither the statutory language nor history of the Act authorizes such treatment or analysis. The Guild’s conduct or lack of it is simply not an element of an unfair labor practice within the meaning of section 8(a)(1). See, e.g., Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. 263, 269 , 85 S.Ct. 994, 999 , 13 L.Ed.2d 827 (1965); Fun Striders, Inc. v. NLRB, 686 F.2d 659, 662 (9th Cir.1981).
In sum, the majority opinion mystifies me. That Sav-On was caught in a “crossfire” between the Union and the Guild has apparently evoked the majority’s sympathy, prompting the untenable conclusion that to enforce the board order would somehow be inequitable. I simply cannot fathom upon what legal principle the majority opinion is based. I will, however, hazard a prediction that, as a precedent in the field of labor law, the majority opinion will generate more smoke than light.
. The options which Sav-On faced after the regional director’s decision are not significantly different from those which any litigant faces when he obtains a favorable judgment from an inferior forum. For instance, if a party receives a declaratory judgment by a lower court that his product does not infringe on an existing patent and he subsequently manufactures and sells his product in reliance on that judgment, there is no doubt that he will be liable for patent infringement if a higher tribunal reverses the earlier decision and finds infringement. Once the patent holder files a timely appeal, the prevailing plaintiff acts at his peril when he relies on the lower court decision. Cf. FTC v. Weyerhaeuser Co., 648 F.2d 739, 741-42 (D.C.Cir.1981) (one who acts with knowledge that an appeal is pending from a district court order refusing to enjoin the action taken acts at his peril, and a mandatory injunction may issue restoring the status quo); see also Young Women’s Christian Association v. Kugler, 463 F.2d 203, 204 (3d Cir.1972) (a party’s actions relying on a declaratory judgment while its appeal is pending are taken at that party’s peril if the judgment should be reversed).
. Section 2(3) provides that the term “employee” shall include “any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute.” 29 U.S.C. § 152 (3) (1976).
. The question whether reinstatement was offered and similar questions regarding the actual computation of the amounts of backpay owing would have been resolved in the compliance stage of the proceedings which would have followed if the Board’s order had been enforced. See NLRB v. International Association of Bridge, Structural & Ornamental Iron Workers, Local 433, 600 F.2d 770, 778-79 (9th Cir. 1979), cert. denied, 445 U.S. 915 , 100 S.Ct. 1275 , 63 L.Ed.2d 599 (1980).
. The administrative law judge found that 16 discharged strikers were from non-union stores and 15 were classified as pharmacy managers.