Garvey Marine, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2000 Decided April 17, 2001

No. 00-1076

Garvey Marine, Inc.,
Petitioner

v.

National Labor Relations Board,
Respondent

International Longshoremen's Association, Local 2038,
Intervenor

On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board

Kenneth R. Dolin argued the cause for petitioner. With
him on the briefs was Scott V. Rozmus.

Julie B. Broido, Supervisory Attorney, National Labor
Relations Board, argued the cause for respondent. With her

on the brief were Leonard R. Page, General Counsel, and
Aileen A. Armstrong, Deputy Associate General Counsel.
Charles P. Donnelly, Supervisory Attorney, entered an ap-
pearance.

James B. Coppess argued the cause for intervenor. With
him on the brief was Craig Becker.

Before: Ginsburg, Randolph and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Opinion concurring in part and dissenting in part filed by
Circuit Judge Randolph.

Ginsburg, Circuit Judge: The International Longshore-
man's Association, Local 2038, AFL-CIO sought to represent
deckhands on one of several fleets of boats belonging to
Garvey Marine, Inc., a company that provides towing and
related services. The Union, after losing a representation
election, filed a complaint with the National Labor Relations
Board alleging that Garvey had engaged in numerous unfair
labor practices (ULPs), in violation of ss 8(a)(1), (3), and (5)
of the National Labor Relations Act, 29 U.S.C. ss 158(a)(1),
(3) & (5). The Board held that Garvey had committed most
of the alleged ULPs, and ordered the Company not only to
take various steps to remedy those violations but also to
bargain with the Union. See Garvey Marine, Inc. et al., 328
NLRB No. 147, slip op. at 7-8 (1999) (hereinafter Decision).

Garvey petitions for review of the Board's order, the Board
cross-applies for enforcement of its order, and the Union
intervenes on behalf of the Board. Because the agency's
findings are supported by substantial evidence and its order
is reasonable, we deny Garvey's petition and grant the
Board's application for enforcement.

I. Background

Garvey provides "barge towing, fleeting, switching and
related harbor services for barge companies and a variety of
other commercial entities" from docks in five Illinois towns.
Decision at 12. This appeal involves only Garvey's facility in

Lemont, Illinois, which is managed by its vice president, Todd
Hudson. Each Garvey boat is staffed by a crew of deckhands
supervised by two or more pilots, one of whom serves as
captain. A dispatcher, with two assistants, oversees the
movement of the boats and assigns pilots and deckhands to
crews.

In early 1995 the Union filed with the Board a petition to
represent the Lemont deckhands and pilots. After Garvey
presented evidence that the pilots were supervisors, the
Union agreed to exclude them from the bargaining unit. A
representation election was held in March, and the Union lost
by a narrow margin. Id. at 10.

The Union then filed an unfair labor practice charge
against Garvey alleging that Garvey's agents had made nu-
merous illegal threats, promises, and predictions during the
election campaign; illegally implemented a new disciplinary
system in order to discourage union support; and warned and
dismissed employees for supporting the Union. See 29
U.S.C. ss 158(a)(1), (3). The Union asked the Board to issue
a so-called Gissel order directing Garvey to bargain with the
Union notwithstanding the Union's having lost the election.
See NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 614
(1969) (holding that Board may order employer to bargain
with union that once had majority support if "the possibility
of erasing the effects of past practices and of ensuring a fair
[new] election ... by the use of traditional remedies ... is
slight").

After a hearing, an Administrative Law Judge held that
Garvey had committed many, though not all, of the alleged
ULPs. The ALJ held that pilots, whom he determined to be
"supervisors" under the Act, Decision at 27, had made a large
number of "patently coercive" promises and threats to pro-
union employees. Id. at 28. Weighing the credibility of
sometimes conflicting testimony, the ALJ found that several
pilots had told deckhands that if the Union lost the election
then the deckhands would get raises, overtime pay, and
improved insurance benefits, but if the Union won then
Garvey would refuse to negotiate with it, there would be wage

reductions and a strike, employees would be required to pay
for their equipment, and Garvey might close the Lemont
facility. The ALJ also credited the testimony of some deck-
hands that pilots had implied there would be reprisals against
pro-union deckhands, one of whom was threatened with a
"shipboard accident." Id. at 19-22.

The ALJ found further that during the election campaign
Garvey had substituted a formal, written, and progressive
system of disciplinary sanctions for its earlier "loose, subjec-
tive, erratic practice of selective verbal warnings." Finding
that the change had been made "solely in reaction to the
filing of a representation petition," the ALJ held that institu-
tion of the new policy was an ULP. Id. at 29.

Finally, the ALJ determined that Garvey had illegally
dismissed two deckhands, Karl Senff and Steven Bradley,
because of their union activities. That Senff and Bradley
actively supported the Union is undisputed. Senff was dis-
missed in April 1995 after having been given repeated warn-
ings -- which he openly and purposely flouted -- not to be
late for his shifts. Bradley was dismissed in May when,
having received a job assignment that he viewed as danger-
ous, he threatened to damage Company property and to fake
a workplace accident. Despite these two employees' admit-
tedly serious misconduct, the ALJ held their dismissals were
unlawful. He offered several reasons, notably Garvey's histo-
ry of less harshly disciplining employees guilty of similar and
more serious infractions, warnings pilots had given Senff that
his union advocacy made him a target, and the dispatcher's
statement to Bradley that he was suspended because of his
union activity. Id. at 30.

The ALJ denied the Union's request for a bargaining
order. He held that traditional remedies -- ordering Garvey
to avoid future infractions, to retract its new disciplinary code
and the warnings issued thereunder, and to offer backpay and
reinstatement to Bradley and Senff -- would be sufficient to
ensure a free and fair rerun election. Although he did not
think a bargaining order was warranted, neither did the ALJ
accept the Company's argument that he should consider

turnover in Garvey's management. Id. at 31. The ALJ did
observe, however, that Garvey's most egregious violations
were all committed by pilots -- Garvey's lowest level of
supervisors -- and that, of the deckhands who were illegally
threatened or dismissed, most had themselves engaged in
significant misconduct. He also emphasized that most of the
pilots' threats and promises had been made to only a handful
of pro-union deckhands who, by all accounts, continued none-
theless to advocate election of the Union. Id. at 31-32.

A three-member panel of the Board unanimously affirmed
the ALJ's determinations regarding Garvey's ULPs. The
majority went on to issue a bargaining order in light of what
it called Garvey's "egregious[ ]" pattern of violations. Id. at
3. The majority pointed out that the ALJ had found more
than 30 violations, among them threats of physical violence,
and that Garvey had persisted in violating the Act even after
the election was held. See id. at 4. That the threats had
been made by pilots, who were the deckhands' immediate
supervisors, seemed to the majority to create "precisely the
legacy of coercion that endures in the workplace and that the
Supreme Court addressed in Gissel." Id. at 5. Member
Hurtgen dissented with respect to the bargaining order for
essentially the reasons stated by the ALJ and because he
regarded turnover as "a relevant factor in determining
whether a fair election can be held." Id. at 9.

Garvey moved to reopen the record in order to introduce
additional evidence of turnover among its employees and
managers, and asked the Board to reconsider its orders on
the basis of this evidence. The Board denied the motion,
Member Hurtgen again dissenting, and Garvey petitioned
this court for review of the Board's orders.

II. Analysis

With regard to the ULP charges, Garvey argues that
because it had expressly instructed its pilots not to make
threats or promises during the representation election cam-
paign, the Board erred in attributing to management such
statements as were made, and that the dismissals of Senff

and Bradley were based entirely upon their own misconduct
and not at all upon their union activity. With regard to the
remedy, Garvey maintains that the Board should not have
issued a bargaining order because any ULPs it committed
were not so "extensive[ ]" and "pervasive" as to make "slight"
"the possibility of erasing the[ir] effects" by means of a new
representation election. Gissel, 395 U.S. at 614.

A. Pilots as Agents of Management

According to Garvey, the deckhands could not reasonably
have believed that the pilots who made promises and threats
to union adherents were acting on the Company's behalf.
Garvey points out that its vice president, Hudson, made
repeated written and oral statements disclaiming any prom-
ises or threats and assuring deckhands there would be no
reprisals taken for their union activity. Garvey also notes
that it conducted formal training for its pilots during which it
specifically forbade them to issue threats or promises. In
view of all this, Garvey says, the deckhands surely would have
discounted any offending statement made by an errant pilot.

The Board took the opposite position, to which we must
defer if it is supported by substantial evidence:

[T]he Board's determination of whether a particular ac-
tor is properly considered an agent or was acting with
apparent authority is granted only limited deference ....
However, the standard of review is not de novo ....
[T]he existence of an agency relationship is a factual
matter ... which cannot be disturbed if supported by
"substantial evidence on the record considered as a
whole."

Overnite Transp. Co. v. NLRB, 140 F.3d 259, 265 (D.C. Cir.
1998). The Board's determination finds such support. Gar-
vey required its pilots to sign a policy that they would
support the Company in the Union campaign -- and the
deckhands knew it. Decision at 13, 27-28. A reasonable
deckhand, therefore, would not necessarily have assumed that
a pilot's statement in contravention of Garvey's official poli-
cies was unauthorized; he would as likely have concluded that

Garvey's public statements were primarily for show while the
pilot's private warnings reflected management's actual posi-
tion. Similarly, the Board could reasonably determine that
the close working relationship between the pilots and the
deckhands they supervised enhanced rather than undermined
the credibility of the pilots' statements. Because the Board's
determination that Garvey's pilots were, and were viewed as,
the Company's agents is based upon substantial evidence,
those findings merit our deference.

B. The Dismissals of Senff and Bradley

Garvey suspended and then dismissed Senff and Bradley
pursuant to its newly adopted disciplinary code. See Part I
above at 3. It is unclear, however, whether the Board
believes (as suggested in its order) that the dismissals of
Senff and Bradley were perforce illegal because they were
made "pursuant to the ... unlawfully implemented progres-
sive disciplinary system," see Decision at 2, or (as the Board
suggests in its brief) merely that the unlawfulness of the
policy "strongly support[s]" a further finding that the dis-
missals were themselves ULPs. Because the former claim is
doubtful, see Performance Friction Corp. v. NLRB, 117 F.3d
763, 768 (4th Cir. 1997), we follow the General Counsel in
attributing the latter view to the Board.

For the Board to hold that the dismissals of Senff and
Bradley were unfair labor practices, the General Counsel
must first have made out a prima facie case that their union
activities were "a substantial or motivating factor" in their
dismissals. Wright Line, 251 NLRB 1083, 1087 (1980), ap-
proved by NLRB v. Transp. Mgmt. Co., 462 U.S. 393, 401
(1983), overruled in other respects, Director, Office of Work-
ers' Compensation Programs v. Greenwich Collieries, 512
U.S. 267, 278 (1994). The burden then shifts to Garvey to
show that it would have dismissed the two "regardless of [its]
forbidden motivation." Id. In our view the Board correctly
determined that the General Counsel made out a prima facie
case regarding both Senff and Bradley, and that Garvey
failed to rebut either one.

 1. Dismissal of Senff

Garvey contends that it dismissed Senff only because of his
repeated and deliberate lateness and not because of his
activity on behalf of the Union. Not only was Senff consis-
tently and habitually tardy, he informed supervisors that he
felt "entitled" to come in late whenever he had been relieved
late at the end of his previous shift. Decision at 23. On
several occasions boats were delayed beyond their scheduled
departure times waiting for Senff; sometimes they left with-
out him. After ignoring numerous warnings Senff was dis-
charged for tardiness some time in 1994. He was later
rehired, however, in "late 1994 or early 1995." Id.

Although the Board found Senff's intentional and repeated
tardiness "provocative misconduct" worthy of discipline, it
nevertheless held that his second dismissal, in April 1995, was
due not to his lateness but to his activity on behalf of the
Union. Id. at 2, 30. The Board based that conclusion upon
several facts: Garvey was aware of Senff's union activities; it
repeatedly threatened advocates of the Union, and Senff in
particular, with discharge; it dismissed Senff for the second
and final time only a short while after the union election; and
it had had a "tradition of leniency prior to the organizing
effort" that contrasted sharply with "the progressive written
[disciplinary] system unlawfully imposed during the cam-
paign." Id. at 2.

Garvey's awareness of Senff's union activities and the tim-
ing of his dismissal are circumstantial evidence that his
dismissal was motivated by impermissible animus. See, e.g.,
Power Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir. 1994)
("[B]oth direct and circumstantial evidence" of such factors
may be used to establish employer's unlawful motive). The
prima facie case is clearly established, however, by the other
factors upon which the Board relied: Garvey had rehired
Senff before the union campaign notwithstanding his record
of tardiness, and Garvey's agents had threatened Senff's job
on several occasions expressly because of his union sympa-
thies.

 Garvey objects to the Board's reliance upon the ALJ's
having credited Senff's testimony that several pilots had
repeatedly threatened his job even as the ALJ rejected other
portions of Senff's testimony as incredible. Compare Deci-
sion at 20, 21 (crediting Senff's testimony as to threats), with
id. at 25 (rejecting Senff's testimony as to his own tardiness).
The trier of fact is surely entitled, however, to credit some
but not all of a witness's testimony, particularly when he must
resolve conflicts among witnesses none of whom seems entire-
ly reliable.

The General Counsel having made his prima facie case, the
burden shifted to Garvey to show that it would have dis-
missed Senff even had he not favored the Union. The Board
reasonably held that Garvey did not carry that burden.
Decision at 3. Garvey suggests that its dismissal of Senff for
tardiness in 1994, before the union campaign began, demon-
strates that it would have dismissed him again in 1995
regardless whether he had engaged in union activity. This
argument fails to account, however, for Garvey's decision to
rehire Senff after having dismissed him for tardiness the first
time. Until Senff began to campaign for the Union, Garvey
had apparently concluded that Senff's value as an employee
outweighed the cost of keeping him, including his seemingly
incorrigible tardiness. Therefore, Garvey must persuasively
explain what change of circumstances -- other than his union
activity -- induced it to change its position and again fire
Senff.* Its conclusory protestation that Hudson had finally
"tired" of Senff's conduct is unpersuasive. Id. at 30.

__________
* Our dissenting colleague speculates that Garvey may have fired
Senff the second time because the cumulative costs of his brazen
tardiness, assessed in an everchanging environment, simply be-
came too much for Garvey to bear. Dissent at 2-3. A prima
facie case that Senff was fired for his union advocacy having been
made, however -- a case supported not only by his 1994 dismissal
but also by explicit warnings from Garvey's agents that Senff's
job "was in jeopardy because of his union activities," Decision at
30 -- it is Garvey, and not the Board, that bears the burden of
demonstrating that the scenario in the dissent is indeed what
occurred. See Transp. Mgmt., 462 U.S. at 401-02. Contrary to

 2. Dismissal of Bradley

The Board's decision regarding Garvey's dismissal of Brad-
ley parallels its decision regarding Senff, and we uphold it for
similar reasons. Like Senff's tardiness, the Board deemed
Bradley's threat to fake a workplace injury "provocative
misconduct" for which discipline was reasonable. Id. at 30.
The Board was nevertheless justified in concluding that Brad-
ley's dismissal was motivated in part by his union advocacy:
Garvey's dispatcher told him so. Id. at 3. The Board also
relied upon Garvey's elaborate choreography of Bradley's
initial suspension, which preceded his formal dismissal by a
few days: Garvey sent Bradley's boat back to the dock
midshift, where Bradley -- observed by the crews of three
boats that had been held at the dock, presumably so they
could witness the event -- was met by a sheriff's officer who
escorted him off the premises. This procedure suggests that
Garvey at the least wanted to make an example of Bradley; it
had staged no such spectacle when, on an earlier occasion, it
delayed until shift's end the dismissal of a deckhand who had
threatened a pilot with a knife. See id. at 3, 5. Finally, the
Board concurred in the ALJ's observation that there was
reason to believe that Bradley, who was known to have "a
tendency to rash, ill-considered remarks," was only joking
and was so understood by those present. Id. at 3, 30.

These circumstances are adequate to make out a prima
facie case that Bradley's dismissal was motivated in part by
his union activity. See, e.g., Reno Hilton Resorts v. NLRB,
196 F.3d 1275, 1282 (D.C. Cir. 1999) (upholding Board's
determination that a prima facie case is made out if "there is
substantial evidence supporting the [claim] that anti-union
animus was a motivating factor in the employer's decision").
Garvey is correspondingly unable to demonstrate that it

__________
the dissent (at 3), we do not suggest that an employer must
"tolerate misconduct so long as [a] problem employee maintains
the same level of insubordination"; but an employer does not
meet its burden under Wright Line when, after a prima facie
demonstration of antiunion animus, it does no more than contend,
without support, that it just couldn't take it anymore.

would have fired Bradley even if he had not engaged in such
activity. On this record, the dispatcher's statement to the
contrary and the little mid-shift melodrama of the suspension
are insurmountable ramparts protecting the Board's position
from successful attack.

C. The Bargaining Order

The Board may order an employer to bargain with a union
that has lost a representation election because of the employ-
er's ULPs if, as here, the union at one time enjoyed majority
support in the bargaining unit, see Gissel, 395 U.S. at 610.
Because a Gissel order is, however, an "extreme remedy,"
Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 738
(D.C. Cir. 2000), we scrutinize with great care the Board's
decision to issue one. The Board must show that the employ-
er's ULPs were "serious," Skyline Distrib. v. NLRB, 99 F.3d
403, 410 (D.C. Cir. 1996), and the Board must have

explicitly balance[d] three considerations: (1) the em-
ployees' s 7 rights [to a representative of their own
choosing]; (2) whether other purposes of the Act over-
ride the rights of employees to choose their bargaining
representatives; and (3) whether alternative remedies
are adequate to remedy the violations of the Act.

Vincent, 209 F.3d at 734. The Board must also have "deter-
mine[d] the appropriateness of a Gissel bargaining order in
light of the circumstances existing at the time it is entered."
Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1171
(D.C. Cir. 1998). If the Board has done all this, then the
court will uphold the Board's decision provided it is reason-
able. See Traction Wholesale Ctr. Co., Inc. v. NLRB, 216
F.3d 92, 104 (D.C. Cir. 2000).

In this case the Board did all that we require. It conduct-
ed a detailed analysis of the proven ULPs, and reasonably
concluded that the resulting "legacy of coercion" would pre-
vent employees from freely exercising their right to choose
their own representative if only the usual remedies, including
a new election, were ordered. Decision at 5.

 Garvey objects to several features of the Board's analysis.
First, the Company points out that the threats cited by the
Board in support of its order were made during one-on-one
encounters between pilots and a relatively small number of
deckhands. Moreover, those most seriously threatened --
Senff, Bradley, and another -- were undeterred in their union
advocacy and, according to Garvey, there was no evidence
that the many deckhands who were not personally threatened
ever learned of the threats. Garvey also marshals the ALJ's
point that the threats were less serious because they came
only from pilots and were at odds with the official statements
made by Vice President Hudson.

These arguments do not show that the Board acted unrea-
sonably. The Board acknowledged that relatively few deck-
hands were threatened in person, but it balanced that fact
against the small size of the unit, which had only 22 voters,
see Decision at 10; the frequency of the threats, of which
there were more than 30 during the two-month union cam-
paign; and the nature of those threats, several of which
menaced union adherents with physical harm. See id. at 4.
The Board's reasonable assumption that news of the ULPs --
both the threats and the discharges -- would be disseminated
among the deckhands is buttressed by Garvey's very public
staging of Bradley's suspension.** The Board reasonably
concluded that the pattern of ULPs created a "legacy of
coercion" that was likely to have been disseminated and to
have poisoned the atmosphere in which any new election
would take place. Id. at 5.

In its reply brief, Garvey argues that the Board must
accept the ALJ's finding that word of the ULPs had not been
disseminated among Garvey's workforce because the ALJ
based his determination upon his assessment of the credibility
of witnesses, whose testimony the Board could not directly

__________
** The suspension is relevant to the Gissel order although it
postdated the election because the Union had by then filed its
first complaint alleging that Garvey's misconduct had tainted the
election, and thereby raised the possibility that there would be a
rerun election. See Decision at 5.

evaluate. The premise of Garvey's argument is false, howev-
er; the ALJ never found, based upon testimony before him,
that in fact news of the ULPs had not gotten around.
Rather, he opined that the threatened employees' persistence
in union activities "would certainly tend to diminish the
coercion's impact" even assuming it was disseminated to
deckhands on other boats. Id. at 31. The Board, by con-
trast, believed that Bradley's suspension alone, having been
"carried out in a manner that would ensure a dramatic and
lasting impression on other employees ... obviates any argu-
ment that other employees would not have been aware of the
unlawful conduct and its import." Id. at 5. Thus, we see, the
Board did not reject the ALJ's factual findings; it merely
gave less weight than had the ALJ to the testimony of
various deckhands who said they had not heard about the
ULPs.

The Board was also reasonable in hypothesizing, contrary
to the ALJ, that a "rough and ready" threat made by an
immediate supervisor "may be far more credible and influen-
tial so far as the ordinary worker is concerned than a
necessarily more formal, structured, and purposeful state-
ment of a high-ranking executive," id. at 4 & n.11 (quoting
Teamsters v. NLRB, 435 F.2d 416, 417 (D.C. Cir. 1970)). It
would not be unreasonable to believe that a direct supervisor
can coerce a line employee at least as effectively as an
executive can even had that view not been explicitly endorsed
by this court in the case just quoted.

Finally, Garvey contends that changes in its ownership and
turnover in its workforce make a bargaining order unneces-
sary. Between the conclusion of the election campaign and
the issuance of the order Garvey came under new ownership,
all but four of the deckhands, three of the six pilots who
committed ULPs, and the lead dispatcher at Lemont left the
Company, and a fourth pilot left the Lemont facility. With
most of both the perpetrators and the direct victims of the
ULPs gone, suggests Garvey, traditional remedies should
suffice to protect the current employees' s 7 rights. Garvey
also notes that only a rerun election would allow its many new
deckhands a chance to vote for or against the Union.

 Notwithstanding the Board's assertion that it "traditionally
does not consider turnover among bargaining unit employees
in determining whether a bargaining order is appropriate,"
lest employers in violation of the Act gain an incentive to stall
enforcement proceedings, Decision at 5, this court requires
it to consider turnover "unless it finds that the employer's
practices are particularly flagrant, ... pervasive, and likely to
persist despite turnover." Avecor, Inc. v. NLRB, 931 F.2d
924, 937 (D.C. Cir. 1991). That is precisely the finding that
the Board made in this case:

[W]e have not in this case refused to consider the
Respondent's representations regarding turnover. Rath-
er, we find that, even when those representations are
considered, the circumstances of this case do not warrant
a conclusion that a fair second election is possible.

Decision at 6 n.14.

As we have seen, the Board reasonably viewed Garvey's
pattern of ULPs as egregious and pervasive. Such violations
would likely, as the Board said (quoting Bandag, Inc. v.
NLRB, 583 F.2d 765, 772 (5th Cir. 1978)), "live on in the lore
of the shop," affecting the ability of new hires and veteran
employees alike to vote their true preferences in a new
election. Id. at 6. A change in the ownership of the Compa-
ny is insufficient to reverse this effect; indeed, Hudson, who
was in charge of the Lemont facility when the ULPs were
committed, continues in the same capacity under the new
ownership. Nor can Garvey repudiate its lower-level agents
on the ground that its association with the ULPs committed
by its pilots dissipated with their departure. Having enlisted
the pilots in aid of the Company's anti-union campaign,
Garvey cannot now contend that deckhands -- old or new --
will understand the threats and promises that the pilots made
in the course of that campaign to have been rogue acts
unrepresentative of management's position. See Part II.A
above. For all these reasons, we hold the Board's bargaining
order and its denial of Garvey's motions to reopen the record
and for reconsideration are reasonable.

 III. Conclusion

The Board's factual findings in this case are supported by
substantial evidence, its legal conclusions are reasonable, and
its Gissel order meets the criteria prescribed by this court.
We therefore deny Garvey's petition for review and grant the
Board's application for enforcement.

So ordered.

 Randolph, Circuit Judge, concurring in part and dissent-
ing in part: I join all of the majority's opinion except the
portions dealing with the termination of Karl Senff and the
bargaining order. Senff kept showing up late for work. His
lateness was intentional and he was unrepentant. Given this
state of affairs, Garvey Marine did not commit an unfair labor
practice in firing him.

Senff "admitted that from early in his employment at
Lemont, he had a history of high absenteeism and tardiness
for which he had been 'hollered at a lot' ... [and verbally]
warned ...." Decision at 13-14, 23. He conceded, and two
other witnesses testified, that his punctuality problem exceed-
ed that of any other deckhand. See id. at 23. Senff was late
for three-fifths of his shifts by an average of 20 minutes. See
id. at 14. He brazenly claimed he was entitled to arrive late
as self-compensation for working late on previous shifts. See
Decision at 23; maj. op. at 8.

Senff's self-compensation program disrupted the company's
operations, causing boats to delay their scheduled departure
times and occasionally to leave without him. See Decision at
23; maj. op. at 8. He persisted in this course of conduct until
the date of his discharge, despite many verbal warnings and
three written warnings explicitly threatening termination.

No precedent in labor law requires a company to endure
such blatant disdain for its rules. The ALJ and the Board
both acknowledged that an employer could reasonably disci-
pline an employee for such conduct -- conduct the ALJ
characterized as "headed for self-destruction." See Decision
at 2, 29. The ALJ added: "Clearly, an employer, even a
tolerant one, is not expected to forever suffer the provocative
misconduct of employees who had once engaged in protected
activities." Decision at 30. Nonetheless, the Board, sus-
tained by my colleagues, found insufficient evidence that the
company would have terminated Senff regardless of his union
activities. See Decision at 2-3, 30; maj. op. at 9.

Even with its informal, "lenient" disciplinary system, Gar-
vey Marine never countenanced the sort of conduct for which
Senff was discharged. As the majority acknowledges, the
company had previously terminated Senff for the same con-
duct. See maj. op. at 8. It later rehired him, possibly
because it faced a shortage of deckhands. See Decision at 1-

2. In addition, as Senff himself testified, the company had
discharged other deckhands for attendance problems like his.
See Decision at 13.

An employer, even a lenient one who prides itself on
maintaining an informal workplace, is not required by the
National Labor Relations Act to tolerate what is universally
regarded as inappropriate workplace conduct from employees
who engage in union activities. See 29 U.S.C. s 160(c). I
agree with the Seventh Circuit that an "employer who has
tolerated bad behavior in the past is not forced to continue to
do so, let alone required to tolerate increasingly bad behav-
ior." Vulcan Basement Waterproofing of Illinois, Inc. v.
NLRB, 219 F.3d 677, 689 (7th Cir. 2000). Tardiness and
absenteeism are objectively bad conduct: among an employ-
ee's most basic -- and least difficult to satisfy -- obligations
is showing up for work at the appointed hour. The Board's
and the majority's contrary view "rests at bottom on the
apparent notion that blatant misconduct once tolerated at all
must be tolerated forever. However ... there must be room
in the law for a right of an employer somewhere, sometime, at
some stage, to free itself of continuing, unproductive, internal,
and improper [conduct]." NLRB v. Eldorado Mfg. Corp., 660
F.2d 1207, 1214 (7th Cir. 1981); see also Washington Materi-
als, Inc. v. NLRB, 803 F.2d 1333, 1340-41 (4th Cir. 1986)
(same). As the Seventh Circuit concluded in Eldorado, "to
ascribe any motive to [this] discharge[ ] other than a long
overdue intolerance of [Senff's] offensive and disruptive acts
would be to indulge in unwarranted speculation." 660 F.2d at
1214.

The majority's analysis violates the time-honored principle
that enough is enough. Yes, the company rehired Senff. But
to suppose that "Senff's value as an employee outweighed the
cost of keeping him" until he engaged in union activities is to
engage in pure speculation. Maj. op. at 9. The cost-benefit
calculus is not so simple. The costs of Senff's behavior must
reflect some notion of cumulation, some recognition that the
twenty-fifth instance of tardiness is worse than the first or
the fifth. The marginal aggravation of each instance is not
identical to the one before it. At some point, the marginal

cost becomes too much, especially in view of Senff's avowed
intention to impose those costs in perpetuity.

Likewise, the benefits of retaining a problem employee are
not necessarily constant, but can vary according to extrinsic
conditions unrelated to union activity. For instance, Senff's
value to the company might temporarily increase if there
were a transitory shortage of good deckhands, or if the
company's stock of experienced deckhands declined because
of workforce changes. It is not surprising that a company
might rehire a problem employee: Garvey Marine may have
needed an experienced deckhand and rehired Senff in the
hope he had learned his lesson.

The majority's insistence that Garvey Marine "persuasively
explain what change of circumstances -- other than his union
activity -- induced it to change its position and again fire
Senff" places too high a burden on employers. See maj. op.
at 9. A reasonable circumstance for termination is the accu-
mulated irritation of Senff's relentless, in-your-face tardiness.
The majority's "changed circumstances" rule makes little
sense in a case like this where "any reasonable employer
would find ... [the employee's conduct] objectionable and ...
be expected to react with some form of discipline." Decision
at 29. Are we to suppose that the employer must tolerate
misconduct so long as the problem employee maintains the
same level of insubordination? That, I am afraid, is where
the majority's theory leads.

I am also unconvinced that a bargaining order is warrant-
ed, especially once Senff's termination is removed as a justifi-
cation. A bargaining order is an extreme remedy. See
Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1170
(D.C. Cir. 1998); Skyline Distrib. v. NLRB, 99 F.3d 403, 410
(D.C. Cir. 1996); Avecor, Inc. v. NLRB, 931 F.2d 924, 938-39
(D.C. Cir. 1991). The unfair labor practices here were not so
outrageous that an injunction and an assurance against retri-
bution would not ensure a fair re-run election, especially
given the substantial turnover among the pilots (the perpetra-
tors of the ULPs) and the deckhands (the victims). See maj.
op. at 13 (noting turnover). I am not persuaded that specula-

tive arguments such as the "legacy of coercion" will survive in
the "lore of the shop" sufficiently justify the Board's order.
See Decision at 5-6. At the least, if the Senff unfair labor
practice were not upheld, the Board ought to reconsider the
scope of the relief.