Teamsters Cannery Local 670 v. National Labor Relations Board

ALARCON, Circuit Judge: The question we must answer in this case is whether the record contains substantial evidence to support the National Labor Relations Board’s (NLRB) finding that Teamsters Cannery Local No. 670 (Union) violated express provisions of a strike settlement agreement prohibiting discriminatory retaliation against financial core members when it denied those that crossed a picket line the opportunity to use facilities open to them prior to the work stoppage. I PERTINENT FACTS Stayton Canning Company Cooperative (Stayton) and Agripac, Inc., (Agripac) (collectively employers) own food processing plants in the state of Oregon. Each employs 700-800 regular full-time employees. Stayton and Agripac also employ approximately 2800-3200 additional persons each season. The Union represents approximately 98% of the regular and seasonal employees. A. Pre-Strike Benefits The Union negotiated separate but substantially similar collective bargaining agreements with Stayton and Agripac. Each agreement contains identical “union security” provisions, that require unit employees to become and remain union members “in good dues standing.” The contracts also include identical provisions concerning health and welfare benefits. Both employers are required by the collective bargaining agreements to contribute to the Oregon Processors Employees Trust (OPET). OPET provides qualified employees with coverage under insurance — 1252 — plans that include, among other things, prescription drug, dental and eye care benefits. Under these plans, the employees may choose any pharmacy, dental, or eye clinic. OPET reimburses the majority of the employees’ costs. The pharmacy plan provides for 90 percent reimbursement; thus, the employees end up paying only 10 percent of the cost. The OPET dental and eye care plans reimburse the employees for all but certain minimal payments. The Union occupies a small office building in Salem, Oregon. In addition to the Union offices, the building also houses a pharmacy, a dental clinic, and an eye clinic. The Union’s executive board and the boards of directors for the pharmacy and the clinics are identical. The climes and pharmacy operate as self-sustaining nonprofit businesses. They are open to the general public, as well as union members. The pharmacy accepts union members’ plan-paid insurance benefits as full payment for prescriptions it fills and bills the OPET fund directly. As a result, union members are afforded the convenience of receiving prescription drugs at the pharmacy without having to pay cash and wait for reimbursement from OPET. In addition, they are spared the additional 10 percent cost they would otherwise have to bear if they went to a different pharmacy. The dental and eye clinics also bill OPET directly. Thus, union members do not have to pay cash arid await reimbursement for the insured portion of the dental and eye clinics’ services. Union members may receive dental and eye care services from clinics in the union building and pay cash only for the minimal payments not covered by the insurance. Customers other than union members pay cash for the use of the pharmacy and the clinics. As another benefit, the Union, upon request, provides all laid-off members with work registration certificates. Pursuant to an agreement between the Union and the Employment Division of the State of Oregon, members who present such certificates may receive unemployment compensation without having to establish that they searched for a job, as is ordinarily required of claimants for unemployment compensation. This benefit is not spelled out in either of the collective bargaining agreements at issue here. B. Post Strike Changes on Benefits During the summer of 1982, the Union and the employers engaged in negotiations for new collective-bargaining agreements. On July 25, 1982, the Union asked the employees to cease work and strike because the contract negotiations had failed to produce new agreements. The strike against Stayton lasted 4 days. The strike against Agripac went on for almost 2 weeks. Some of the employees did not support the strike; they either continued to work or returned to work during the work stoppage. In addition, the employers called in strike replacements. Between 600 and 700 of the employees who worked during the strike notified the Union in writing that they would pay the monies required under the contractual union security provision but, nonetheless, would not be bound by membership obligations. These employees are referred to as financial core members. See NLRB v. General Motors Corp., 373 U.S. 734, 742, 83 S.Ct. 1453, 1459, 10 L.Ed.2d 670 (1963) (“Membership” in a union as a condition of employment may require only the payment of fees and dues and is therefore “whittled down to its financial core.”). Prior to the strike, the Union had no financial core members. Only those who worked during the strike became financial core members. The strikes ended on July 29, 1982 (Stay-ton) and August 8 or 9, 1982 (Agripac) when the parties reached a consensus on the terms of the strike settlement and new collective-bargaining agreements. The terms of the collective-bargaining and the strike settlement agreements formed part of a single package. The strike settlement agreements with Agripac and with Stayton were identical in all respects material to this case. The strike settlement agreements provided that neither the employer nor the Union would retaliate or discriminate against any employees who chose to — 1253 — be financial core members during the strike. The agreements read, in pertinent part, as follows: The parties have agreed that it is in the best interests of the company, the union, and all employees that any bad feelings or disharmony in the plant generated by the strike be eliminated as soon as possible in the interests of efficient operations; and that no employee should suffer discrimination, harassment or intimidation by virtue of choices made to support or not to support the strike; and that every employee is entitled to a working environment free from acrimony and hard feelings. 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. In December 1982, less than five months after the date of the strike settlement agreement, the Union’s executive board voted that it would no longer provide work registration certificates to financial core members. On the same day, the members of the Union’s executive board, sitting as the board of directors of the clinics and pharmacy located in the union building, voted not to provide any future services to financial core members. II PROCEEDINGS BEFORE THE NLRB Each of the employers filed separate unfair labor practice charges with the NLRB alleging that the Union’s decision to deny pharmacy, dental, and eye care benefits to financial core members violated the strike settlement agreements. The NLRB consolidated the two cases for hearing. The complaint filed by the NLRB, as amended, alleged (1) that the Union had failed to abide by, and had unilaterally modified, the terms of the strike settlement agreements; (2) that the Union had restrained and coerced certain employees, in violation of section 8(b)(1)(A) of the Labor Management Relations Act of 1947, 29 U.S.C. § 158(b)(1)(A) (1982), by refusing to allow them to use the pharmacy and the clinics, and by refusing to issue work registration certificates, because these employees had assumed financial core status in the Union during the 1982 strike; and (3) that the Union had violated sections 8(b)(3) and 8(d) of the Act, 29 U.S.C. §§ 158(b)(3) & (d) (1982), by the same actions because the actions were in derogation of the strike settlement agreements. On November 8, 1983, a hearing was held before an Administrative Law Judge (AU). In an order and decision dated February 23, 1984, the AU found that the Union violated the terms of the strike settlement agreements when it refused to issue work registration certificates to unemployed financial core members and when it ordered the pharmacy and clinics in the Union building to refuse service to financial core members. The AU also found that because the Union violated the strike settlement agreements, it violated section 8(b)(1)(A) of the National Labor Relations Act (NLRA or Act). Finally, the AU found that the Union unilaterally adopted and enforced “a union policy or rule which is in derogation of rights guaranteed the employees by the terms of the contract ...” and that such action violated sections 8(b)(3) and 8(d) of the NLRA. Having found violations of the NLRA, the AU recommended compensation for those financial core members who had financial losses and recommended that the Union “cease and desist” the illegal conduct. The AU recommended that identification of the financial core members owed a remedy be left to the compliance stage of the proceedings. The Union filed exceptions to the AU’s decision with the NLRB. The NLRB adopted the recommended order of the AU with a minor modification that is irrelevant for purposes of this appeal. Teamsters Cannery Local 670 (Stayton Canning), — 1254 — 275 N.L.R.B. 911 (1985). The Union filed for review in this court. The NLRB, in turn, filed an application for enforcement of its order. We granted motions filed by the employers for leave to intervene in support of the NLRB. Ill DISCUSSION A. Standard of Review We will enforce an NLRB order if substantial evidence on the record viewed as a whole supports the findings of fact and the correct law was applied. NLRB v. Rockwood & Co., 834 F.2d 837, 839 (9th Cir.1987) (citing NLRB v. Nevis Indus., 647 F.2d 905, 908 (9th Cir.1981)). “If the [NLRB’s] findings are supported by substantial evidence, we must enforce them, even if we might reach a different conclusion from the same evidence.” Id. In performing our appellate duties, we may not “displace the [NLRB’s] choice between two fairly conflicting views” of the evidence “even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). In addition, the Supreme Court has instructed that, [t]he [NLRB] has the primary responsibility for applying “ ‘the general provisions of the Act to the complexities of industrial life.’ ” Ford Motor Co. v. NLRB, 441 U.S. 488, 496 [99 S.Ct. 1842, 1849, 60 L.Ed.2d 420] (1979), quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 [83 S.Ct. 1139, 1150, 10 L.Ed.2d 308] (1963), in turn quoting NLRB v. Steelworkers, 357 U.S. 357, 362-363 [78 S.Ct. 1268, 1271-72, 2 L.Ed.2d 1383] (1958). Where the [NLRB’s] construction of the Act is reasonable, it should not be rejected “merely because the courts might prefer another view of the statute.” Ford Motor Co. v. NLRB, supra [441 U.S.] at 497 [99 S.Ct. at 1849]. Pattern Makers’ League of North America v. NLRB, 473 U.S. 95, 114, 105 S.Ct. 3064, 3075, 87 L.Ed.2d 68 (1985). B. The Strike Settlement Agreement As noted above, the strike settlement agreements provided in pertinent part that, “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....” Notwithstanding the clarity and unlimited scope of these words, shortly after the execution of the strike settlement agreement, the Union’s executive board formally voted to withdraw from financial core members the right to benefits enjoyed by full union members to work registration certificates and service at the Union controlled pharmacy, and the dental and eye clinics. The NLRB, after reviewing the record, found that that action was taken in violation of the strike settlement agreements to punish financial core members for crossing the picket line. Stayton Canning, 275 N.L.R.B. at 916. After reviewing the record, we have concluded that there is substantial evidence to support this finding. The evidence is undisputed that the only victims of the Union’s discriminatory policy were the financial core members who crossed the picket line. At the time of the filing of these unfair labor practice charges, each of the financial core members was expressly protected from discriminatory reprisal by the strike settlement agreement. The record also contains substantial evidence to support the NLRB’s finding that the Union’s decision was motivated by a discriminatory animus, a desire to punish financial core members economically or to coerce them into full union membership. Union Office Manager Grace Hayward testified that after the Union’s executive board voted to deny financial core members the benefits described above, Union Secretary Treasurer L.B. Day instructed her that financial core members could not use the health care facilities located in the union building. Hayward stated that pursuant to Day’s orders, she highlighted the names of financial core members with a red marking pen and distributed copies to the pharmacy and the dental and eye clinics — 1255 — with instructions not to serve those members. Thereafter, employees of the pharmacy and the clinics refused service to financial core members. Financial core employee Roger Elmore testified that he was told by a pharmacist that he could not fill a prescription at the union pharmacy because Elmore’s name was “on a list.” Elmore stated that he went upstairs to the Union offices to seek an explanation from Union Business Agent Marty Dolan. According to Elmore, Dolan explained to him that his conversion to financial core status was the cause of his inability to receive service at the pharmacy. Elmore also testified that Dolan “said the executive council had told them that if you didn’t want to have anything to do with the union, then the union was going to have nothing to do with you, and I could no longer use the facilities there of any kind.” Another financial core member, John Gunn, testified that when he complained to Grace Hayward about being denied service by the pharmacy, she told him, “you crossed the picket line, signed financial core, and you can’t use the facilities any more.” Gunn said Hayward told him that “anybody who crossed the picket line wasn’t going to be able to the [sic] facilities.” Gunn inquired of Marty Dolan how he could reinstate his full membership. Dolan advised him that he would have to write a letter explaining “why you signed financial core and crossed the picket line and why you wanted to be reinstated.” When Nancy Gunn, the wife of another financial core member, went to the Union office and requested a prescription card, necessary to use the pharmacy in the building and receive the benefit of its direct billing to the OPET, she was told by an office worker that she “could not get the prescriptions because Tom [her husband] had crossed the picket line.” An Agripac seasonal employee, Rosalie Walker, who became a financial core member and worked during the strike, testified that she was denied a work registration certificate and was told by someone in the Union’s office, “I’m sorry, we cannot sign your form because you crossed our picket line.” The Union attempts to justify this retaliation against financial core members by referring us to NLRA section 8(b)(1)(A). Section 8(b)(1)(A) provides that a labor organization has the right “to prescribe its own rules with respect to acquisition or retention of membership.... ” The Union concludes from this language that Section 8(b)(1)(A) authorizes it to restrict the benefits it offers to full members as an inducement to financial core members to step up to full membership status. There is substantial evidence in this record to support the NLRB’s finding that the Union’s discriminatory actions against financial core members were not taken to encourage financial core members to resume full membership status. Beverly Bowers, an Agripac employee, testified that in February 1983 she wrote a letter requesting to be reinstated to full membership status. Bowers stated that in June 1983 she talked to Union Business Representative Bob Weekly about the delay in processing her request. Weekly stated that her letter had to go before the Union board and he was not sure when that would be. Bowers also testified that, two weeks prior to the November 8, 1983 AU hearing she conferred with Marty Dolan about her request. Dolan told her that her letter was still pending and had not been ruled upon. Eunice Castleman, another Agripac employee, testified that Bob Weekly told her that she could write a statement to support her request to be removed from financial core status. Castleman sent a request to the Union board to be removed from financial core status on January 24, 1983. She called the Union regarding her application at least two times. As of the November 8, 1983 AU hearing, she had received no response from the Union. Joseph Nelke, another Agripac employee, testified that in February 1983 he filled out a form to regain full membership status. As of the hearing before the AU he had not been reinstated. — 1256 — The Union’s failure to act on the requests by the financial core members to regain their full membership status supports the NLRB’s finding that the Union was acting in retaliation for strike related activities and in violation of the strike settlement agreements. 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.1 At the hearing before the AU, it was stipulated that the pharmacy and climes were open to the general public and not restricted to union members. However, after the Union’s discriminatory action in December 1982, financial core members were refused all services. Thus, while members of the general public were allowed to patronize the clinics, financial core members could not use the facilities even if they paid cash. Kim Hatfield, a Stayton employee and Patricia Gunn, John Gunn’s wife, both testified that they were not allowed to pay cash for prescriptions filled at the pharmacy. They were told that no prescriptions could be filled for financial core members and that they would have to go to another pharmacy. Beverly Bowers and Ruth Dunn, the wife of a financial core member, also testified that they were refused service at the eye clinic. Furthermore, Bowers testified that she was refused service at the dental clinic. Grace Hayward testified that the Union’s secretary-treasurer L.B. Day “said that the board of directors had met and they had made the decision that financial core members were not entitled to use the Labor center pharmacy, the dental clinic, and the vision.” (Emphasis added). If the Union did not intend to punish the financial core members, it would follow that they would at least be accorded the same right to use the union building facilities available to the general public. The fact that they were denied all use of the facilities provides additional support for the NLRB’s finding of retaliation and violation of the strike settlement agreements. C. Section 8(b)(1)(A) Claim The NLRB held that the Union “violated Section 8(b)(1)(A) of the Act when, in derogation of the terms of its strike settlement agreements with the Employers, it refused to allow the pharmacy and eye and dental clinics in its building to do business with its financial core members employed by the Employer and refused to issue them work registration certificates.” Stayton Canning, 275 N.L.R.B. at 917 (footnote omitted). Section 8(b)(1)(A) of the NLRA makes it an unfair labor practice for a labor organization “to restrain or coerce ... employees in the exercise of the rights guaranteed in section [7] of this title: Provided, that this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein_” 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....” The Supreme Court has held that § 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against — 1257 — union members who are free to leave the union and escape the rule. Scofield v. NLRB, 394 U.S. 423, 430, 89 S.Ct. 1154, 1158, 22 L.Ed.2d 385 (1969). In concluding that the union rule at issue in Scofield did not violate section 8(b)(1)(A), the Court held that the rule “left the collective bargaining process unimpaired” and “breached no collective contract.” Id., 394 U.S. at 436, 89 S.Ct. at 1161. Thus, it was “impossible to say that it contravened any policy of the Act.” Id. In the case before us, the NLRB found that the Union’s conduct violated the strike settlement agreements. Stayton Canning, 275 N.L.R.B. at 916. The Union and the employers stipulated during the hearing before the AU that the strike settlement agreements and the collective bargaining agreements were negotiated as part of a single package. Thus, any violation of the strike settlement agreements would be a violation of the collective bargaining agreements. Accordingly, because the Union violated the provisions of the strike settlement agreements, as incorporated into the collective bargaining agreements, the Union’s conduct “contravened” the right of the financial core members to refrain from observing the Union’s work stoppage. 29 U.S.C. § 157; Scofield, 394 U.S. at 430, 436, 89 S.Ct. at 1158, 1161. In addition, the Union’s conduct violated section 8(b)(1)(A) by contravening the NLRA’s policy of encouraging collective bargaining agreements. See eg. Stationary Engineers Local 39 (San Jose Hospital), 240 N.L.R.B. 1122, 1124 (1979) (conduct in violation of an amnesty agreement that is the product of negotiation between the parties interferes with the NLRA’s policy of encouraging collective bargaining and therefore violates section 8(b)(1)(A)). The Union argues that section 8(b)(1)(A) authorizes the discriminatory action against financial core members because it permits a union to prescribe rules concerning union membership. Even if section 8(b)(1)(A) can be read to permit the discrimination shown by this record, in signing the strike settlement agreement, the Union expressly waived any right it may possess to discriminate against financial core members who crossed the picket line in order to eliminate “bad feelings and disharmony” in the employers’ plants.2 The Union’s argument that the strike settlement agreement was not intended to preclude reduction of rights and benefits after the strike directed at the financial core members who crossed the picket line is not persuasive. The Union’s interpretation of the plain words of the strike settlement agreement would negate the clearly expressed intention of the parties to protect workers who crossed the picket line from discriminatory reprisals after settlement of the strike. Because this action involves financial core members employed prior to the strike settlement agreement, the question whether section 8(b)(1)(A) authorizes the Union to apply such restrictions against persons hired after the strike was settled, as incentives for full union membership, is not now before this court. Furthermore, we cannot, on these facts, reach out to decide the question whether the strike settlement agreement precludes the Union from applying restrictions based on benefits established after the strike to financial core members who crossed the picket line. Our jurisdiction in this matter is limited to the case and controversy presented by the fact that the union reduced benefits previously available to financial core members who crossed the line. The Union also contends that the NLRB erred in finding a violation of section 8(b)(1)(A), based on the strike settlement agreements, because this theory was neither plead nor litigated before the AU. The NLRB complaint in this action alleged a violation of section 8(b)(1)(A) that was independent of the claim that the Union violated the strike settlement agreement. The Union argues that it was not given an opportunity to litigate this issue because — 1258 — the complaint’s allegation of a violation of section 8(b)(1)(A) did not contain any reference to the strike settlement agreement. We disagree. We have consistently held that [ajctions before the [NLRB] are not subject to the technical pleading requirements that govern private lawsuits. NLRB v. Carilli, 648 F.2d 1206, 1210 (9th Cir.1981). The charge need not be technically precise as long as it generally informs the party charged of the nature of the alleged violations. Id. Moreover, where the issue is fully and fairly litigated at the administrative hearing, the [NLRB] may find an unfair labor practice even though no specific charge is made in the original complaint. Clear Pine Mouldings, Inc. v. NLRB, 632 F.2d 721, 728 (9th Cir.1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2317, 68 L.Ed.2d 841 (1981); NLRB v. Olympic Medical Corp., 608 F.2d 762, 763 (9th Cir.1979). Industrial Tech. and Prof. Employees Div., Nat’l Maritime Union v. NLRB, 683 F.2d 305, 307-08 (9th Cir.1982). Accord, George C. Foss Co. v. NLRB, 752 F.2d 1407, 1411 (9th Cir.1985). The question whether the Union violated the strike settlement agreement was squarely presented in the complaint. This question was the critical issue at the hearing before the ALJ. It was also the basis of the alleged violations of sections 8(b)(3) and 8(d). Accordingly, the Union was given a full and fair opportunity to litigate the question whether the strike settlement agreements were violated. D. Section 8(b)(3) and 8(d) Claims The NLRB found “that the sections of the strike settlement agreements violated by the [Union’s] conduct constitute mandatory subjects of bargaining.” Stayton Canning, 275 N.L.R.B. at 918. Thus, the NLRB found “that by violating the strike settlement agreements that [the Union] violated Section 8(b)(3) and Section 8(d) of the Act_” Id. at 919. Section 8(b)(3) makes it an unfair labor practice for a union “to refuse to bargain collectively with an employer....” Section 8(d) states in pertinent part that [f]or the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other items and conditions of employment. ... Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract ... unilaterally and without notice to the other party. The Supreme Court has held that “within the meaning of § 8(d) ... a ‘modification’ is a prohibited unfair labor practice only when it changes a term that is a mandatory rather than a permissive subject of bargaining.” Allied Chemical & Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 185, 92 S.Ct. 383, 400, 30 L.Ed.2d 341 (1971). Subjects of mandatory bargaining “includes only issues that settle an aspect of the relationship between the employer and employees.” Id. at 178, 92 S.Ct. at 397. The NLRB’s “judgment as to what is a mandatory bargaining subject is entitled to considerable deference.” Ford Motor Co. v. NLRB, 441 U.S. 488, 495, 99 S.Ct. 1842, 1848, 60 L.Ed.2d 420 (1979). The NLRB found, in the matter before this court, that the nondiscrimination clause in the strike settlement agreements settle an aspect of the employment relationship between the Employers and their employees. The purpose of these sections was to assure that those employees who worked during the strike would not be the subject of adverse action by the [Union] because they had chosen to work during the strike and in connection with this choice had opted to become financial core members so as to avoid being penalized by [the Union] for their refusal to support its strike. In other words the sections of the strike settlements which [the Union] violated involve a highly sig — 1259 — nificant aspect of the employment relationship between the Employers and their employees, namely, the employees’ decision whether or not to work for the employers during [the Union’s] strike. Stayton Canning, 275 N.L.R.B. at 918. Finally, the NLRB held that strike settlement agreements “appear to play a significant role in helping the parties to develop mutually acceptable compromises during the course of the negotiations leading to a cessation of a strike and a peaceful settlement of the dispute, which is, of course, the primary purpose of the Act.” Id. at 919. The Union has failed to present any argument that would persuade us to decline to defer to the NLRB’s conclusion. We believe that the NLRB’s finding that the strike settlement agreement’s nondiscrimination clause settles an aspect of the employer-employee relationship is reasonable. Without the strike settlement agreements, it would have been more difficult to settle the strikes because of the fear of retaliation against employees who chose to cross the picket line during the strike. A labor organization which, in violation of sections 8(b)(3) and 8(d), unilaterally, and without serving notice or following the requirements of section 8(d), purports to modify the terms of a strike settlement agreement that has been incorporated into a collective bargaining agreement, is guilty of violating sections 8(b)(3) and 8(d). Assoc. Home Builders of Greater East Bay v. NLRB, 352 F.2d 745, 750-52 (9th Cir.1965). We agree with the NLRB’s holding that the strike settlement agreements involve mandatory subjects of bargaining. Because there is substantial evidence to support the NLRB’s finding that those agreements were violated, we conclude that the Union violated sections 8(b)(3) and 8(d). E. Remedy The Union argues that the NLRB erred when it “ordered a remedy for the entire class of financial core employees, without requiring any identification of members of the class at the hearing.” The Union contends “that a remedy should not include employees who were not named in the hearing.” The NLRB, in fashioning the remedy, ordered that “[t]he identity of the financial core members affected by the [Union’s] unfair labor practices and the amount of financial loses [sic] they may have suffered as the result of said unfair labor practices shall be left to the compliance stage of this proceeding.” Stayton Canning, 275 N.L.R.B. at 919. In rejecting the Union’s argument that only those who were specifically identified during the hearing should be remedied, the NLRB found that the Union’s unfair labor practices were not directed toward several employees but against a whole class of employees numbering in the hundreds. Under the circumstances leaving the determination of the identity of the employees who suffered financial loses [sic] as a result of [the Union’s] unfair labor practices for the compliance stage of this proceeding represents an orderly and efficient means for processing a[n] ... order of this kind, particularly since the [Union] waited until the hearing had opened in this case before objecting to this procedure. Id. The NLRA gives the NLRB the power to issue an order requiring a party who has committed an unfair labor practice to “cease and desist from such unfair labor practice, and to take such affirmative action ... as will effectuate the policies” of the NLRA. 29 U.S.C. § 160(c) (1982). This statutory command has been interpreted “as vesting in the [NLRB] the primary responsibility and broad discretion to devise remedies that effectuate the policies of the Act, subject only to limited judicial review.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898-99, 104 S.Ct. 2803, 2812, 81 L.Ed.2d 732 (1984). Consequently, “a reviewing court’s scope of review of the [NLRB’s] remedial orders is narrow. The [NLRB’s] choice of remedies will not be disturbed on review in the absence of a clear abuse of discretion.” General Teamsters Local No. 162 v. NLRB, 782 F.2d 839, 844 (9th Cir.1986). A remedial order — 1260 — should stand unless it is “shown that the order is a patent attempt to achieve ends other than those that can be fairly said to effectuate the policies of the Act.” NLRB v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, Local 433, 600 F.2d 770, 777-78 (9th Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1275, 63 L.Ed.2d 599 (1980). The NLRB did not abuse its discretion in leaving until the compliance stage the identification of those financial core members who were injured by the Union’s discriminatory actions. As we have held previously, “leaving the identification of the discri-minatees ... to the compliance stage of the proceedings represents an orderly and efficient means for processing ... orders_” Id. at 779. ENFORCEMENT GRANTED. Footnotes [1] Our dissenting colleague argues that we cannot rely on this evidence to uphold the NLRB's factual determination that the Union acted with discriminatory animus because it was not expressly relied upon by the NLRB in its opinion. Dissent at 1267. As stated above, in reviewing a decision of the NLRB, we are compelled to look at the record as a whole to determine whether there is substantial evidence to support the NLRB’s factual determinations. Rockwood & Co., 834 F.2d at 839. Thus we cannot, as suggested by the dissent, limit ourselves to those portions of the record that the NLRB refers to in its decision. Evidence that financial core members found it difficult to regain full union membership clearly supports the NLRB’s factual finding that the Union’s actions were aimed at punishing financial core members for crossing the picket lines. [2] Contrary to our dissenting colleague’s assertion, see Dissent at 1260, 1262-63 n. 5, we do acknowledge the existence of a rule that allows a union to treat financial core members differently than full union members. We hold, however, that this right may be waived or limited by agreements between a union and an employer.