The opinion
WALLACE, Circuit Judge,
concurring in part and dissenting in part:
I concur in part I of the majority opinion, which enforces the Board’s decision on the section 8(a)(1) and section 8(a)(3) charges, and in part IIIA, which upholds the Board’s transfer remedy. I dissent from part II of the majority opinion, which upholds the Board’s refusal to defer to the arbitrator’s denial of backpay to the seven union employees. As a result, I find it unnecessary to reach the merits of the backpay issue, which are discussed in part IIIB.
Although the Board is granted wide discretion in its decision whether to defer to an arbitration award, see Alfred M. Lewis, Inc. v. NLRB, 587 F.2d 403, 407 (9th Cir.1978); Hawaiian Hauling Service, Ltd. v. NLRB, 545 F.2d 674, 676 (9th Cir.1976), cert. denied, 431 U.S. 965 , 97 S.Ct. 2921 , 53 L.Ed.2d 1061 (1977) (Hawaiian Hauling), it abuses that discretion “if it fails to follow its own deferral standards or if the standards themselves are invalid.” Ad Art, Inc. v. NLRB, 645 F.2d 669, 675 (9th Cir.1980) (Ad Art); NLRB v. Max Factor & Co., 640 F.2d 197, 201 (9th Cir.1980), cert. denied, 451 U.S. 983 , 101 S.Ct. 2314 , 68 L.Ed.2d 840 (1981) (Max Factor); Hawaiian Hauling, supra, 545 F.2d at 676 . The Board may change its mind or alter its standards without necessarily engaging in abuse of discretion. Id. at 676 & n. 6; accord Ad Art, supra, 645 F.2d at 675 n. 2. Nevertheless, the Board is “required to explain departures from [its] policies or rules so that a reviewing court is able to determine if [it] was acting in a reasoned, deliberate manner.” NLRB v. Cofer, 637 F.2d 1309, 1312 (9th Cir.1981) (discussing Board’s self-imposed jurisdictional limitations), quoting Bob’s Big Boy Family Restaurants v. NLRB, 625 F.2d 850, 852 (9th Cir.1980) (discussing Board’s self-imposed contract-bar rule). In short, the Board must either follow its own rules or explain why those rules should be disregarded in any particular case. Id. at 853 .
The arbitrator here found that the company had discriminated against union members, but he refused to award backpay. He specifically found that, on the average, employees at the old O’Farrell store earned more in commissions than did employees at the new Post store. Thus, the seven employees suffered no damages from Magnin’s discriminatory refusal to transfer them, and a backpay award was unwarranted. The union responded that the employees would have earned higher commissions had the collective bargaining agreement been in effect at the Post store, and that the figures should be adjusted to reflect the difference. The arbitrator rejected this contention and stated: “No evidence is provided or suggested, however, that would enable such an adjustment to be made. Accordingly, this requested relief is denied.”
*1464 The Board refused to defer to the arbitrator’s decision, stating that the arbitrator “was not presented with sufficient evidence by the parties and therefore was unable to make findings of fact crucial to shaping the necessary remedy with regard to backpay for the employees denied transfers by Respondent.” Joseph Magnin Co., 257 N.L.R.B. 656 , 656 n. 1 (1981). The question is whether this proffered reasoning is encompassed by any of the Board’s deferral standards, or if the Board has explained its departure from its previously announced rules.
The only case the Board cites in its order for refusing to defer, Triple A Machine Shop, Inc., 245 N.L.R.B. 136 (1979) (Triple A), is not on point. There, the Board found that the arbitrator had not considered statutory issues that were before him, had failed to make necessary credibility and factual findings, and had issued “compromise” awards. Id. at 137. As the dissent in Triple A pointed out, the majority imputed bad faith to the arbitrator and suggested that he had attempted to avoid further proceedings. Id. at 138 (Member Penello, dissenting).
The arbitrator’s behavior in our case cannot be so characterized. He considered all the issues before him and rejected the union’s request for backpay, not on legal grounds, but only because the union had not substantiated its claims. The record clearly indicates that had the union proven its damages, backpay would have been granted. Thus, this is not a case in which the arbitrator refused to pass on a statutory issue, see Stephenson v. NLRB, 550 F.2d 535, 537 (9th Cir.1977) (Stephenson); Greif Brothers Corp., 238 N.L.R.B. 240 , 243 (1978), vacated on other grounds, 635 F.2d 531 (6th Cir. 1980), rejected Board precedent, see Stephenson, supra, 550 F.2d at 537 ; Alfred M. Lewis, Inc. v. NLRB, supra, 587 F.2d at 407-08 , or ordered reinstatement without backpay in an attempt to effectuate a compromise award, see Cessna Aircraft Co., 220 N.L.R.B. 873 , 874-75 (1975). 1
The Board’s decision also contradicts the policy behind its deferral standards, which is to favor voluntary settlement of labor disputes through arbitration. Ad Art, supra, 645 F.2d at 674 ; Max Factor, supra, 640 F.2d at 201 ; Spielberg Manufacturing Co., 112 N.L.R.B. 1080 , 1082 (1955). In effect, it places the burden on the arbitrator to develop the necessary evidence to substantiate positions taken by the parties. This contradicts the general rule that the burden of production of evidence in arbitration proceedings is on the party that makes an allegation. See F. Elkouri & E. Elkouri, How Arbitration Works 279 (3d ed. 1973). Such a holding undermines the finality and integrity of arbitration decisions and thus can only discourage parties from settling their disputes through the arbitration process.
I do not interpret Triple A as shifting the burden of production of evidence from the charging party to the arbitrator; nor has the Board cited any case endorsing such a shift. Thus, the Board has failed in its order either to follow its own standards or to explain its departure from those standards. 2
In its brief filed in our court, the Board shifts ground and asserts the third prong of Spielberg as its reason for refusing to defer. It contends that the arbitrator’s decision was repugnant to the purpose and policies of the Act because he failed to provide a make-whole remedy. See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 186-87 , 94 S.Ct. 414, 426 , 38 L.Ed.2d 388 (1973); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187-89 , 61 S.Ct. 845, 849-50 , 85 L.Ed. 1271 (1941). The Board apparently seeks to distinguish the arbitrator’s remedial authority from his authority to decide statutory allegations. Although its reasoning is not fully developed, the Board implies that once an arbitrator has found a statutory violation, *1465 the Board will review his proposed remedy de novo to determine if it fully compensates the aggrieved party, regardless of whether the arbitrator has diligently performed his task or whether the charging party has failed to substantiate its claim for relief during the arbitration process. The majority opinion appears to rely more on the Board’s argument in its brief than on the rationale provided in the order.
The Board’s analysis may be a plausible interpretation of the third prong of Spielberg, or provide sufficient explanation for the Board’s departure from its traditional standards in this case. Unfortunately, this reasoning, which is barely touched upon in its brief, is not contained at all in the Board’s published order. See 257 N.L.R.B. at 656 n. 1. It is axiomatic that “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 87 , 63 S.Ct. 454, 459 , 87 L.Ed. 626 (1943); FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249-50 , 92 S.Ct. 898, 907-08 , 31 L.Ed.2d 170 (1972); Bob’s Big Boy Family Restaurants v. NLRB, supra, 625 F.2d at 854 (We are not permitted to “substitute a different rationale for the rationale provided by the Board.”).
Because the Board fails, in its order, to follow its own deferral standards or to explain its departure from those standards in this case, I dissent from part II of the majority’s opinion and therefore would not reach the question discussed in part IIIB.
. Nor is Suburban Motor Freight, Inc., 247 N.L.R.B. 146 (1980), which is cited by the majority, on point. The backpay issue here was both presented to and considered by the arbitrator.
. The union does not allege that it was unable to secure information because it was within the control of the employer or otherwise unattainable.