United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2000 Decided April 14, 2000
No. 99-1202
Vincent Industrial Plastics, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
Ronald I. Tisch argued the cause for petitioner. With him
on the briefs were Paul J. Kennedy and Alan D. Cohn.
Anne Marie Lofaso, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Leonard R. Page, General Counsel, Linda R. Sher,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and David Habenstreit, Supervi-
sory Attorney.
Before: Edwards, Chief Judge, Tatel and Garland, Circuit
Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: Vincent Industrial Plastics, Inc.
("Vincent" or "the Company") operates a plastics manufactur-
ing plant in Henderson, Kentucky. On February 19, 1993, a
majority of Vincent's full- and part-time production and main-
tenance employees (designated a bargaining unit by the Na-
tional Labor Relations Board ("the Board")) selected the
International Chemical Workers Union, AFL-CIO, Local
1032 ("the Union") as the employees' bargaining representa-
tive. The Board certified the Union on September 29, 1993,
and Company and Union officials commenced collective bar-
gaining negotiations in January 1994. The negotiations con-
tinued for more than a year, but the parties were unable to
reach a final agreement. On February 16, 1995, after receiv-
ing a decertification petition from unit employees, the Compa-
ny withdrew its recognition of the Union and declined to
participate in any further collective bargaining negotiations.
Between July 5, 1994 and April 20, 1995, the Union filed
several unfair labor practice charges ("ULPs") alleging that
Vincent violated the National Labor Relations Act ("the
Act"), 29 U.S.C. s 158(a)(1), (3), (5) ("s 8"), by unilaterally
implementing material changes in working conditions, coer-
cively interrogating an employee, disciplining and terminating
employees on account of their support for the Union, and
unlawfully withdrawing its recognition of the Union. The
Board issued complaints on all of the charges.
Following a hearing on the complaints, an Administrative
Law Judge ("ALJ") concluded that the Company was guilty
of ULPs on all but one charge. See Vincent Indus. Plastics,
Inc., 328 N.L.R.B. No. 40, 1999 WL 282397, at *9 (1999). The
National Labor Relations Board ("Board") subsequently held
that Vincent was guilty of ULPs on all charges. The Board
specifically rejected the ALJ's finding that Vincent had not
violated the Act in unilaterally changing the Company's at-
tendance policy. See id. at *1. The Board found that the
attendance policy was a material working condition, and that
Vincent was not legally justified in changing the policy with-
out the Union's agreement. The Board issued a cease-and-
desist order (including a remedy of reinstatement and back
pay for the employees who were unlawfully fired) and a
"Gissel" bargaining order, see NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969), requiring the Company to recognize the
Union and to resume collective bargaining negotiations.
Vincent petitions for review of the Board's order, and the
Board cross-petitions for enforcement. We grant the Board's
petition for enforcement, with one significant exception. The
Board, inexplicably, has once again defied the law of this
circuit and failed to offer an adequate justification for the
bargaining order sanction imposed against Vincent. We
therefore find ourselves in the all-too-familiar position of
having to remand this case to the Board for adequate justifi-
cation of the proposed affirmative bargaining order, thus
further delaying relief for the employees the Board purports
to protect.
I. BACKGROUND
A. Factual Background
The facts of this case are laid out in detail in the ALJ's
decision, so we need only summarize here. The Company's
conduct that was found to be unlawful by the Board began
during the last half of 1994, after Vincent and the Union had
been negotiating for five months. Between July and Decem-
ber, 1994, Vincent unilaterally promulgated four policy
changes relating to attendance, work duties, working hours,
and time-keeping. We review each of these briefly.
On July 1, 1994, Vincent changed the policy by which it
disciplined employees for attendance problems. Prior to that
time, Vincent used a bifurcated system to tally employees'
excess attendance "occurrences" (unexcused absences, tardi-
ness, and early exits). For pre-August 1992 hires, occur-
rences cleared from an employee's personnel file at the end of
every fiscal year. For employees hired after August 1992,
occurrences cleared on a rolling 360-day basis. All employ-
ees were subject to discipline if they incurred a certain
number of attendance occurrences during the applicable peri-
od.
Vincent believed that, among pre-August 1992 hires, the
end of each fiscal year occasioned a rash of attendance
occurrences as employees took advantage of the impending
slate-cleaning to maximize their attendance occurrences for
the year. Vincent proposed that pre-August 1992 hires oper-
ate under the rolling system. The Union stated that it
wanted to negotiate the entire contract rather than agree to
provisions piecemeal. In the face of the Union's insistence on
negotiating the entire agreement prior to agreeing to a
revised attendance policy, the Company unilaterally imposed
its policy change on July 1, 1994, at the beginning of the new
fiscal year.
Between October and December 1994, Vincent instituted
three additional policy changes without first proposing them
to the Union during ongoing collective bargaining sessions.
First, in October, Vincent relieved quality control employees
of their weighing and labeling duties, which comprised 25% of
their workday, and transferred the duties to press operators.
Then, in mid-November, Vincent instituted a shift extension
requiring quality control employees to work an extra 15
minutes at the end of each shift. Finally, on December 9,
1994, Vincent eliminated the use of time cards and instituted
a team system in which employees check in at the beginning
of their shift with their "team leader," and the team leader
then keeps track of the hours worked by each team member.
Vincent alleged that the new system was precipitated by its
observation that time cards were often lost or stolen, that
employees clocked in without reporting immediately to work,
and that employees clocked in for one another.
In addition to the foregoing changes in working conditions,
the Union also filed ULP charges related to Vincent's treat-
ment of four Union members. First, in December 1994,
Mark Coomes, a supervisor, called Robert Ferguson away
from his machine and asked him whether he had heard
anything about the Union going on strike. This inquiry was
apparently prompted by an earlier conversation that day
between Mr. Coomes and Michael Early, president of the
Union, in which Mr. Early raised the possibility of a strike
vote. In response to Mr. Coomes' questioning, Mr. Ferguson
responded that he did not know anything about a possible
strike. Mr. Ferguson testified that Mr. Coomes inquired as
to a possible strike a second time that day, in the break room.
The Union alleged that Mr. Coomes' conduct constituted
coercive interrogation in violation of the Act.
In January 1995, Vincent disciplined Gloria Chester, the
Union's designated observer at the 1993 election and its plant
steward until October 1993, for alleged insubordination and
disrespectful actions toward a supervisor. On the day when
she was disciplined, Ms. Chester, while returning to her press
after bringing some material to the quality control office,
stopped to speak with Sue Scott, another press operator.
During the conversation, Ms. Scott complained to Ms. Ches-
ter about a clean-up job that Supervisor Rebecca Basham had
assigned to Ms. Scott. Ms. Chester said, "I would tell Becky
to kiss my ass." At this time, Ms. Basham was standing
behind Ms. Chester and overheard the remark. Ms. Chester,
apparently unaware of Ms. Basham's presence, returned to
her press area. Later that day, Tina Bradford, Vincent's
personnel manager, issued Ms. Chester a written warning.
The Union claimed that Vincent disciplined Ms. Chester on
account of her Union affiliation.
The third ULP related to Vincent's treatment of Union
members involves the allegedly discriminatory termination of
Mr. Early, Union President, in February 1995. Mr. Early
was arrested in September 1994 for driving while intoxicated.
He was to be sentenced either to 32 days jail time or to five
months of jail time in coordination with a work release
program with his employer. In February 1995, Mr. Early
approached John Domsic, plant manager, and requested that
Vincent participate in the work release program. On Febru-
ary 7, Mr. Domsic informed Mr. Early that Vincent would not
participate in the work release program. Mr. Early then
inquired abut the possibility of taking personal leave, and Mr.
Domsic replied that he would get back to Mr. Early.
On February 13, Mr. Early was sentenced to 32 days in jail
and 28 days in a rehabilitation center, to begin February 17.
On February 14, Mr. Early called Ms. Bradford, informed her
that he would be starting a jail sentence and therefore would
not be able to report to work, and asked about COBRA
benefits. When Ms. Bradford said she was not aware that he
had been terminated, he replied that he felt that the Compa-
ny's refusal to participate in the work release program was
tantamount to termination. When Mr. Early failed to report
to work on February 15, he was effectively terminated.
The day Mr. Early was terminated, employees circulated a
petition to decertify the Union. Over two days, on February
15 and 16, 1995, a majority (82 out of 128) of the maintenance
and production employees signed the petition. Management
at Vincent verified the signatures and informed the Union
that the Company would no longer engage in bargaining.
After withdrawing its recognition of the Union, Vincent
granted wage increases, implemented a 401(k) plan, and
denied the Union's request for information regarding bar-
gaining unit employees.
About a month later, on March 20, Vincent terminated
Wanda Nantz, a press operator and Union supporter (she
was, in fact, among those who did not sign the petition to
decertify the Union). Vincent alleges that it fired Ms. Nantz
because she failed, for the first two hours of her March 20
shift, to record hourly "shot" counts (i.e., the number of parts
produced for that hour) in the machine's production log.
After the omission was brought to Ms. Nantz's attention, she
recorded the counts until she was relieved of her duties and
given a disciplinary notice. The discipline would not have
resulted in Ms. Nantz's discharge except that she earlier had
been suspended for three days for smoking near her press.
B. Board Proceedings
The ALJ found that Vincent violated the Act by unilaterally
implementing all of the policy changes except for the attend-
ance policy. The ALJ termed the attendance problem "suffi-
ciently urgent to warrant unilateral implementation" of the
employer's policy. Vincent Indus., 1999 WL 282397 at *9.
According to the ALJ, the Union had the opportunity to
bargain but chose to insist on an overall agreement. See id.
As for the other policy changes, the ALJ found both that, in
each case, Vincent failed to present the proposed changes to
the Union during contract negotiations, thereby giving the
Union no opportunity to bargain over the issues, and that
none of the changes was necessitated by economic hardship.
See id. at *8, *10.
In addition, the ALJ found the questioning of Mr. Fergu-
son, the termination of Mr. Early and Ms. Nantz, and the
disciplining of Ms. Chester to constitute violations of s 8(a)(1)
and (3) of the Act. The interrogation of Mr. Ferguson,
according to the ALJ, interfered with Mr. Ferguson's right
"to keep private his sentiments as to the Union and his
knowledge of its affairs." Id. at *10. The ALJ found that
Gloria Chester's discipline was motivated by her Union affilia-
tion, given the "ample credible evidence" that the language
she used generally was tolerated at Vincent, that no docu-
mentation supported Vincent's assertions that other employ-
ees had been disciplined for similar behavior, and that no
management representative ever questioned Ms. Chester
about the reason she left her press area, which was ostensibly
the reason she was disciplined. Id. at *11-12. The ALJ
termed Vincent's explanation for why it refused to accommo-
date Mr. Early's work release or leave request "inartful
pretext," and found that, but for Mr. Early's Union affiliation,
Vincent would not have both declined to participate in the
work release program and denied him personal leave. See id.
at *13. With respect to Ms. Nantz, the ALJ found that,
during the five-month period that the requirement of an
hourly "shot" count had been in effect, no one was cited for
omissions from the production log although omissions did
occur. See id. at *15. The ALJ accordingly concluded that,
given Ms. Nantz's public pro-Union stance, the issuance of
the citation to Ms. Nantz followed by her discharge was
discriminatory and a violation of s 8(a)(1) and (3) of the Act.
On review of the ALJ's decision, the Board affirmed all of
the ALJ's ULP findings save one. The Board reversed the
ALJ on the attendance policy issue, finding that Vincent had
"failed to prove that its attendance problem constituted an
economic exigency." Id. at *2. Therefore, the Board found
that the change in attendance policy violated s 8(a)(1) and (5)
of the Act.
On its own analysis, the Board found that Vincent's with-
drawal of recognition was a violation of s 8(a)(1) and (5) of
the Act, applying the so-called "Master Slack" factors, see
Master Slack Corp., 271 N.L.R.B. 78 (1984), to evaluate the
causal connection between the unremedied ULPs and subse-
quent employee expression of dissatisfaction with a union.
The Board cited the following factors in finding a causal
connection between the ULPs and the decertification move-
ment: (1) the unremedied ULPs continued until the day
before the employees began signing the decertification peti-
tion; (2) the unilateral changes and disciplining of Union
supporters were "likely to have a long lasting effect on the
bargaining unit and to discourage employees from supporting
the Union"; and (3) the disciplining and termination of Union
supporters "convey to employees the notion that any support
for the Union may jeopardize their employment." Vincent
Indus., 1999 WL 282397, at *3. The Board also imposed an
affirmative bargaining order as a remedy for the Company's
violations of the Act. No justification was offered to support
the bargaining order.
Vincent petitions for review of all of the above findings. In
addition, Vincent argues that the Board has failed to ade-
quately justify imposing an affirmative bargaining order as a
remedy for the violations of the Act. The Board cross-
petitions for enforcement of its order.
II. ANALYSIS
Under the Act,
[i]t shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 157 of
this title; ...
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment
to encourage or discourage membership in any labor
organization ...
(5) to refuse to bargain collectively with the represen-
tatives of his employees, subject to the provisions of
section 159(a) of this title.
29 U.S.C. s 158(a). We review Board ULP findings under a
deferential standard. This court will uphold the Board's
decision upon substantial evidence even if we would reach a
different result upon de novo review. See Perdue Farms,
Inc., Cookin' Good Div. v. NLRB, 144 F.3d 830, 834-35 (D.C.
Cir. 1998). We are even more deferential when reviewing the
Board's conclusions regarding discriminatory motive, because
most evidence of motive is circumstantial. See LCF, Inc. v.
NLRB, 129 F.3d 1276, 1281 (D.C. Cir. 1997).
Furthermore, when the Board, as it did here, concludes
that unremedied ULPs tainted a decertification petition, this
court requires it to offer a reasoned explanation, based on
substantial evidence, in support of its finding. See Quazite
Div. v. NLRB, 87 F.3d 493, 496-97 (D.C. Cir. 1996). Finally,
to justify the imposition of an affirmative bargaining order,
we require the Board to explicitly balance three consider-
ations: (1) the employees' s 7 rights; (2) whether other
purposes of the Act override the rights of employees to
choose their bargaining representatives; and (3) whether
alternative remedies are adequate to remedy the violations of
the Act. See Skyline Distribs. v. NLRB, 99 F.3d 403, 410
(D.C. Cir. 1996).
A. The Board's ULP Findings
The Board's holding that Vincent's unilateral actions chang-
ing established working conditions constituted ULPs is easily
upheld. An employer may not unilaterally impose material
changes in terms or conditions of employment that are man-
datory subjects of bargaining without first negotiating to
impasse. See Litton Fin. Printing Div. v. NLRB, 501 U.S.
190, 198 (1991); Grondorf, Field, Black & Co. v. NLRB, 107
F.3d 882, 886 (D.C. Cir. 1997). There are two exceptions to
this general rule: An employer may impose unilateral terms
if the union engages in dilatory tactics to delay bargaining.
See Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 235
(D.C. Cir. 1996). And an employer may act unilaterally if
faced with an economic exigency justifying the change. See
Visiting Nurse Servs., Inc. v. NLRB, 177 F.3d 52, 56 (1st Cir.
1999), cert. denied, 120 S. Ct. 787 (2000); RBE Elecs. of S.D.,
Inc., 320 N.L.R.B. 80, 81 (1995). An economic exigency must
be a "heavy burden" and must require prompt implementa-
tion. See RBE Elecs., 320 N.L.R.B. at 81. The employer
must additionally demonstrate that "the exigency was caused
by external events, was beyond the employer's control, or was
not reasonably foreseeable." Id. at 82 (footnote omitted).
Vincent imposed all of the changes save one without pre-
senting a proposal to the Union during bargaining sessions.
Vincent can mount no argument that any of the disputed
changes were made due to an economic exigency, although it
tries to argue that the changes were not material or that they
were waived by the Union. These arguments hold no water:
All of the changes involved mandatory subjects of bargaining,
they raised material issues, and the Union cannot be held to
have waived the right to bargain over an issue that was never
proposed during bargaining sessions. There is one change
that Vincent did propose before imposing: the change in
attendance policy. Vincent urges that the Board's decision on
the attendance policy issue should be reversed, first, because
the Union waived its right to bargain over this issue, and,
second, because the Company had to make the changes in
order to meet an economic exigency. Vincent's arguments
are meritless.
There was no waiver by the Union here. The Union
desired to bargain over the attendance policy; it made clear
to Vincent that it wanted to negotiate the entire contract,
including the attendance policy, as a whole. See Visiting
Nurse Servs., 177 F.3d at 59 (rejecting employer's suggestion
that a union cannot insist on negotiating an entire contract
rather than piecemeal negotiation). In addition, the Union
offered counter-proposals to the Company's attendance policy
prior to Vincent's imposition of the policy change. See
Eighth Negotiation Session Meeting Notes, May 18, 1994, at
3-5, reprinted in Joint Appendix ("J.A.") 795-97; Ninth
Negotiation Session Meeting Notes, May 24, 1994, at 3-4,
reprinted in J.A. 802-03. The Union did not precipitate an
impasse by insisting on negotiating a contract as a whole
rather than piecemeal. Such a view is mischievous, because it
would both "permit the employer to remove, one by one,
issues from the table and impair the ability to reach an
overall agreement through compromise on particular items"
and "undercut the role of the Union as the collective bargain-
ing representative." Visiting Nurse Servs., 177 F.3d at 59.
Nor did the Board err in finding a lack of evidence to
support Vincent's claim of economic necessity. The Board
correctly noted that the "exigency" asserted by Vincent was
hardly extraordinary: The Company could point only to the
impending possibility of attendance problems. The Board
reasonably found that the Company's alleged problem did not
pose a "heavy burden" necessary to show an economic exigen-
cy. See RBE Elecs., 320 N.L.R.B. at 81. In addition, the
Board reasonably concluded that Vincent failed to show that
the attendance problem was unforeseen, caused by external
events outside its control, or that it was new. See id. at 82.
The Board's findings that Vincent fired two employees and
disciplined another in violation of the Act are also supported
by substantial evidence in the record. To establish a causal
nexus between adverse employment decisions and an employ-
ee's union affiliation, the complaining party must first show
that protected activity "was a 'motivating factor' " in the
adverse employment decision, and then the employer may
show that it would have made the adverse decision even had
the employee not engaged in protected activity. Wright
Line, Inc., 251 N.L.R.B. 1083, 1089 (1980); see also NLRB v.
Transportation Management Corp., 462 U.S. 393, 403 (1983)
(approving of Wright Line approach). To establish an em-
ployer's discriminatory motive, the NLRB may "consider[ ]
such factors as the employer's knowledge of the employee's
union activities, the employer's hostility toward the union, and
the timing of the employer's action." Power Inc. v. NLRB,
40 F.3d 409, 418 (D.C. Cir. 1994). Evidence that an employer
has violated s 8(a)(1) of the Act can support an inference of
anti-union animus. See Parsippany Hotel Management Co.
v. NLRB, 99 F.3d 413, 423-24 (D.C. Cir. 1996).
The ALJ found, and the Board affirmed, that Vincent
violated the Act in three instances when it took adverse
employment actions against its employees on account of their
Union affiliation: (1) when Vincent disciplined Gloria Chester;
(2) when Vincent terminated Michael Early; and (3) when
Vincent terminated Wanda Nantz. With respect to all three
findings, there is substantial evidence to support the Board's
determination.
The ALJ, with whom the Board agreed, relied on Ms.
Chester's position as a Union supporter, the fact that she
received discipline at a time when Vincent had taken several
unlawful unilateral actions, and the "significant aberrant cir-
cumstances surrounding issuance of the warning" to conclude
that the discipline would not have occurred but for Ms.
Chester's Union involvement. Vincent Indus., 1999 WL
282397, at *11. There is substantial evidence to support this
conclusion, especially given our deference to the Board's
findings regarding discriminatory motive. See Laro Mainte-
nance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995).
Vincent cites to testimony in which the employer asserted
that other employees had been disciplined for similar behav-
ior, but the ALJ and Board rejected this testimony for lack of
documentary or other corroborating evidence. The Board's
judgment on this point was reasonable. Cf. Synergy Gas
Corp. v. NLRB, 19 F.3d 649, 653 (D.C. Cir. 1994) (reversing
finding of discrimination where company introduced person-
nel records to demonstrate that other employees had been
terminated for actions similar to that of the complaining
employee).
The ALJ and the Board relied on similar factors to con-
clude that the Company discharged Mr. Early in violation of
the Act. First, the ALJ found that a prima facie case of
discrimination was established in light of the other unlawful
conduct engaged in by Vincent and the Company's response
to Mr. Early's request for accommodation. See Vincent
Indus., 1999 WL 282397, at *13. The ALJ found Vincent's
explanation for refusing to participate in the work release
program to be "cryptic" and nothing "other than inartful
pretext." Id. (noting that Mr. Domsic stated both that
Vincent did not want to take responsibility for Mr. Early's
program and that Vincent did not know what it would have
been required to do). The Board agreed and we cannot
second-guess that judgment. In upholding the Board on this
point, we do not suggest that all employers must grant all
requests similar to Mr. Early's lest they be accused of
discriminating against bargaining unit employees. A compa-
ny that consistently applies neutral policies, for example,
usually is on safe ground. See TIC-The Indus. Co. South-
east, Inc. v. NLRB, 126 F.3d 334, 338 (D.C. Cir. 1997). In
this case, there is no evidence that the Company had any
policy at all to apply to Mr. Early. Therefore, it cannot be
said that the ALJ was unreasonable in finding that Mr.
Early's status as Union President influenced Vincent's deci-
sion to refuse to accommodate his particular needs as a result
of his arrest, especially considering the ALJ's conclusion,
supported by substantial evidence, that Mr. Early "was a
long-term skilled press operator and that there is not a
scintilla of evidence that alcohol ever affected his job perfor-
mance or that he posed any threat to others at the plant."
Vincent Indus., 1999 WL 282397, at *13.
Vincent argues that the ALJ erroneously found violations
of the Act for the discharge of Ms. Nantz on two grounds: (1)
the ALJ erroneously concluded that Vincent knew of Ms.
Nantz's Union affiliation; and (2) the discipline meted out to
Ms. Nantz was consistent with Vincent's past practice. The
first challenge is easily dismissed. Ms. Nantz had been a
pro-Union advocate during the election, the shop steward, and
the Treasurer of the Local, and she had refused to sign the
decertification petition. Under these circumstances, there
was substantial evidence for the ALJ to conclude that Vincent
was aware of Ms. Nantz's affiliation with the Union.
With respect to Vincent's justification for disciplining Ms.
Nantz, the ALJ found that, for the five months that the
hourly "shot count" requirement was in place, there was no
evidence that any employees were disciplined even though
employees other than Ms. Nantz had made mistakes. Vin-
cent proffered evidence that prior to the institution of the
new policy, employees were warned for failure to fill out
production logs correctly; but there are no such warnings in
evidence (apart from Ms. Nantz's discharge) for the period
during which the new policy was in place. Under these
circumstances, there was substantial evidence for the ALJ
and Board to conclude that Vincent's purported reason for
disciplining Ms. Nantz was pretextual.
The Board's finding that Vincent supervisor Mark Coomes
violated the Act by coercively interrogating Robert Ferguson
is less easily upheld. The interrogation of employees by an
employer is evaluated under a five-factor totality of the
circumstances test in order to determine whether the ques-
tioning is coercive and therefore violates s 8(a)(1). These
factors are: (1) the history of the employer's hostility and
discrimination against unions; (2) whether the information
sought is of a type that could be used to take action against
individual employees; (3) the rank of the questioner; (4)
where the questioning occurred; and (5) the truthfulness of
the reply. See Perdue Farms, Inc., 144 F.3d at 835. Here
the ALJ relied on the following facts to conclude that Mr.
Coomes compromised Mr. Ferguson's right to "keep private
his sentiments as to the Union and his knowledge of its
affairs": Mr. Coomes pulled Mr. Ferguson away from his
work area to initiate questioning; and Mr. Ferguson had not
previously identified with the Union. Vincent Indus., 1999
WL 282397, at *10. The ALJ inferred that Mr. Coomes'
purpose, to test the strength of the Union, was clear. Given
the substantial evidence in the record, we cannot say that this
conclusion is unreasonable.
Vincent relies on Certainteed Corp., 282 N.L.R.B. 1101
(1987), for the proposition that there is nothing coercive about
an employer inquiring about the possibility of a strike. In
Certainteed, the ALJ found that the employer did not violate
the Act by asking an employee about the possibility of a
strike, because the employer had a reasonable basis to fear an
"imminent strike" and had an interest in determining whether
it would be able to keep its business open. 282 N.L.R.B. at
1107. Here, while Mr. Coomes had just heard from Mr.
Early about the possibility of a strike vote, Mr. Coomes had
no legitimate reason for inquiring of Mr. Ferguson; Mr.
Early's offhand comment about the possibility of a strike vote
sometime in the future could hardly be relied upon to support
a reasonable basis to fear an "imminent strike." Certainteed
does not compel reversal of the Board.
The Board's findings that several unremedied ULPs taint-
ed the decertification petition is unassailable. For the first
year after a successful certification election, a union enjoys an
irrebuttable presumption of majority support, after which the
employer may withdraw recognition if it has a good faith,
reasonable basis to doubt majority support for the union. See
Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 37-38 (D.C. Cir.
1980). When a majority of unit employees signs a petition in
support of decertification, an employer may reasonably doubt
that there exists majority support for the union. See Sulli-
van Indus. v. NLRB, 957 F.2d 890, 898 (D.C. Cir. 1992).
Nonetheless, if the Board determines that unremedied ULPs
contributed to the erosion of support for the union, the
employer may commit an unfair labor practice by withdraw-
ing its recognition of the union. See, e.g., Lee Lumber &
Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1458-60 (D.C.
Cir. 1997) (per curiam) (examining whether ULPs contributed
to lack of support for union).
The Board's traditional four-factor test for determining
whether there is a causal connection between unremedied
ULPs and a petition for decertification consists of the follow-
ing elements: "(1) [t]he length of time between the unfair
labor practices and the withdrawal of recognition; (2) the
nature of the illegal acts, including the possibility of their
detrimental or lasting effect on employees; (3) any possible
tendency to cause employee disaffection from the union; and
(4) the effect of the unlawful conduct on employee morale,
organizational activities, and membership in the union."
Master Slack Corp., 271 N.L.R.B. at 84. Vincent argues that
the explanation offered by the Board does not satisfy the
Master Slack requirements. We reject this contention.
The Board adequately explained its decision on the basis of
all four Master Slack factors, in more than conclusory lan-
guage. The Board noted the close temporal link between the
unremedied ULPs and the decertification petition. See Vin-
cent Indus., 1999 WL 282397, at *3. The Board additionally
explained that the unilateral implementation of changes in
working conditions has the tendency to undermine confidence
in the employees' chosen collective-bargaining agent. See id.
The Board finally reasonably concluded that the discipline
and termination of public supporters of the Union "convey to
employees the notion that any support for the Union may
jeopardize their employment." Id. The Board's conclusion
that Vincent's practices contributed to the decertification
petition are reasonably justified and supported by substantial
evidence. See NLRB v. Williams Enters., Inc., 50 F.3d 1280,
1288-89 (4th Cir. 1995) (upholding finding of causation where
four months passed between company's anti-union statements
and decertification petition); Columbia Portland Cement Co.,
303 N.L.R.B. 880, 882 (1991), enf'd, 979 F.2d 460, 464-65 (6th
Cir. 1992) (upholding Board's finding of causation where
justification offered by Board was simply that the unremedied
ULPs "are likely to have undermined the Union's authority
generally and influenced [the Union's] employees to reject the
Union as their bargaining representative") (internal quotation
marks omitted) (alteration in original).
B. The Board's Remedies
The Board's remedies on behalf of the Union and the unit
employees who were adversely affected by Vincent's ULPs
included a cease-and-desist order, reinstatement and back
pay for the employees who were unlawfully terminated, and
an affirmative bargaining order. The Company challenges all
of the remedies imposed by the Board on the grounds that
the employer did not commit any ULPs. As noted above, we
reject this contention as meritless. The Company argues
further, however, that even if the Board did not err in finding
the aforecited ULPs, there was no basis for the Board to
issue an affirmative bargaining order against Vincent. The
Company's argument on this point is well taken.
The Board approved the ALJ's recommended remedy of an
affirmative bargaining order with little explanation. The
closest the ALJ came to justifying the order was to observe
that the "serious and egregious misconduct shown here[ ]
demonstrates a general disregard for fundamental rights
guaranteed employees by Section 7 of the Act." Vincent
Indus., 1999 WL 282397, at *15. This will not do. This court
repeatedly has reminded the Board that an affirmative bar-
gaining order is an extreme remedy that must be justified by
a reasoned analysis that includes an explicit balancing of
three considerations: (1) the employees' s 7 rights; (2)
whether other purposes of the Act override the rights of
employees to choose their bargaining representatives; and (3)
whether alternative remedies are adequate to remedy the
violations of the Act. See Skyline Distribs., 99 F.3d at 410.
There is no such reasoned analysis in the instant case.
Instead, the Board's counsel was forced to conjure up an
argument in an effort to bolster the Board's unsupported
position. According to counsel, the Board need not justify
the imposition of a bargaining order in two types of cases:
where the employer has unlawfully withdrawn recognition
from the Union; and, as a subset of the first class, where
there are explicit Master Slack findings demonstrating a
causal connection between unremedied ULPs and a with-
drawal of recognition. See Br. for NLRB at 47-55. Coun-
sel's argument in defense of this position was inspired and
thoughtful, albeit in vain. The problem here is that counsel's
argument is nowhere to be found in the orders under review,
so we cannot ascribe it to the Board. The argument there-
fore constitutes a post hoc rationalization, which carries no
weight on review. See International Union of Petroleum &
Indus. Workers v. NLRB, 980 F.2d 774, 781 (D.C. Cir. 1992).
The Board's stubborn refusal to accept this circuit's posi-
tion on affirmative bargaining orders is perplexing, for it
merely undermines the Board's purported goal of protecting
workers against employer violations of the Act. Board deci-
sions, like those from other administrative agencies, are
entitled to deference. However, once a court has issued a
legal ruling on a disputed issue, the Board is bound to follow
the court's judgment unless and until it is reversed by the
Supreme Court. The Board, no doubt, will plead innocence,
claiming that circuit courts often take different positions on
certain legal issues, so the Board is free to adopt a course
most to its liking within a maze of disparate courts of appeals
judgments. In addition, as counsel pointed out during oral
argument in this case, the Board sometimes has no clear idea
where a petition for review will be filed, so it cannot always
guess right in deciding what circuit law to follow. This latter
point is a fair rebuttal, but it is shortsighted in a case such as
the instant one. What is so troubling about this case, and
others like it, is that the Board could easily follow the law of
the D.C. Circuit--i.e., give a reasoned analysis to support an
affirmative bargaining order--without ever transgressing the
law of any other circuit. Some other circuits may not require
as much as does the D.C. Circuit with respect to what is
required to justify an affirmative bargaining order, but no
circuit will reject a bargaining order if the Board justifies it
as this court requires.
What is ultimately dissatisfying about this familiar dance is
not a sense that this court's institutional integrity is under-
mined by the Board's refusal to modify its behavior in re-
sponse to operant conditioning, but that those left in the lurch
are precisely those who, in this case, sought protection from
the Board. As a result of the Board's failure to justify the
imposition of an affirmative bargaining order, relief for the
employees represented by the Union will be that much fur-
ther delayed. Three years passed between the ALJ's deci-
sion and the Board's decision upholding the ALJ. Another
year has passed since the issuance of the Board decision here
on review. We now remand to the Board for an undeter-
mined amount of time. As the Board well knows, in the
context of employee representation and collective bargaining,
relief delayed under the Act may be relief denied. This
makes little sense where, as here, the Board can easily satisfy
the commands of this circuit's law without running amok
because of a split in the law of the circuits.
The Board may persist in its stubbornness, but that will not
dissuade this court from fulfilling its role on behalf of parties
seeking judicial review. As we have said before when re-
manding to the Board to justify an affirmative bargaining
order, "[w]e persist not out of pique but from a sense that it
is our duty to ensure that the Board adheres to its statutory
mandate." Caterair Int'l v. NLRB, 22 F.3d 1114, 1123 (D.C.
Cir. 1994).
III. CONCLUSION
For the reasons articulated herein, we deny in part and
grant in part the petition for review and we grant in part and
deny in part the cross-application for enforcement. We re-
mand the case to the Board with instructions to justify the
imposition of an affirmative bargaining order as required by
the law of this circuit or, in the absence of such justification,
to vacate that portion of the remedy.