concurring:
I remain of the opinion that this Circuit’s line of cases on the Board’s issuance of bargaining orders when an employer fails to bargain with an incumbent union is erroneous. Although several eases, including this one, recognize the difference between a Gis-sel situation and refusal to bargain with an incumbent union, our jurisprudence has been infected by the original case in this line, Peoples Gas, which did not. See Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 47 (D.C.Cir.1980). A bargaining order is not an extraordinary remedy in an 8(a)(5) case for the reasons that I have discussed in prior opinions, one of which was relied upon by the Fourth Circuit in accepting the Board’s approach. See NLRB v. Williams Enterprises, 50 F.3d 1280, 1290 (4th Cir.1995); Exxel/Atmos, Inc. v. NLRB, 37 F.3d 1538, 1539-40 (D.C.Cir.1994) (per curiam) (Silberman, J., dissenting); Sullivan Indus. v. NLRB, 957 F.2d 890, 906-10 (D.C.Cir.1992) (Silberman, J., concurring in part, dissenting in part).
Be that as it may, I agree with my colleagues that the Board cannot so easily dodge the particularized finding requirement that we have imposed — albeit improperly— on the Board before it issues a bargaining order. The Board’s “presumption” that a bargaining order is appropriate whenever an employer’s illegal refusal to bargain antedates a manifestation of employee dissatisfaction with the union does not seem to me to be an abuse of its extensive remedial discretion — but of course I thought the same when the Board routinely issued such orders without explicitly basing them on a “presumption.” Since our opinions, however, clearly *1463require the Board to balance what we have described as the interests of the employees in a secret ballot election with a union and the Board’s interest in remedying an unfair labor practice in light of the particular facts in every such case, the Board’s “presumption” is simply a way to tell this Circuit to go fly a kite. I would have thought it more appropriate to have sought certiorari in one of the earlier cases. See, e.g., Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243 (D.C.Cir.), petition for reh’g denied, 37 F.3d 1538 (D.C.Cir.1994) (per curiam).
Even I, however, one of only two judges on this Circuit who have manifested toleration of the Board’s policy, see Exxel, 37 F.3d at 1538, am dubious about a bargaining order in this case because it eomes seven years after the crucial events and therefore seems quite stale. The delay, moreover, appears to be entirely the responsibility of the Board itself.
SENTELLE, Circuit Judge,concurring in part and concurring in the judgment:
I agree with much of what the court has to say, and I especially agree with the disposition of the bargaining order issue. I disagree only with the portion of the decision which upholds the Board’s rule that an employer’s refusal to bargain, even one so slight and void of malicious intent as the one the Board strains to find in the present case, is presumed to taint any subsequent loss of majority support by the union absent the highly unlikely “showing that employee disaffection arose after the employer resumed its recognition of the union and bargained for a reasonable period of time without committing any additional unfair labor practices that would detrimentally affect the bargaining.” Supplemental Decision at 4.
I say “highly unlikely” because if the Board found a taint on the facts before it in this case, it would find one always. As Justice Scalia expressed in his dissent in NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 812, 110 S.Ct. 1542, 1562, 108 L.Ed.2d 801 (1990) (Scalia, J., dissenting), an “underlying question” cannot be “altered by characterizing factual probabilities as presumptions.” In the same case, Chief Justice Rehnquist, concurring, decried the Board’s refusal to allow an “employer to resort to ... commonsense assumptions,” in defending a good faith doubt about the continuance of majority support. Id. at 797, 110 S. Ct. at 1554 (Rehnquist, C.J., concurring). Also in that case, Justice Blackmun dissenting insisted that even in considering an agency’s use or nonuse of a presumption, a “reviewing court ... must ask whether the agency’s decision is the product of an adequate deliberative process and is consonant with other agency pronouncements in analogous areas.” Id. at 800, 110 S.Ct. at 1556 (Blackmun, J., dissenting).
In the present case, the Board’s use of the presumption that employees’ otherwise free choice is all but irrefutably tainted when an employer has even slightly refused to bargain does not meet the standards any of these separate Justices would apply to determine if the Board has “give[n] objectively reasonable probative effect to the reality” of the facts before it. Id. at 808, 110 S.Ct. at 1560 (Scalia, J., dissenting).
As the court today notes in discussing the imposition of the bargaining order, “employee ‘free choice’ ... is a core principle of the [National Labor Relations] Act.” Maj. Op. at 11 (citing Skyline Distribs. v. NLRB, 99 F.3d 403, 411 (D.C.Cir.1996)). However, in cases like the present one, the Board, in the face of that core principle, presumes that the employees are incapable of exercising their core right because they might have been deceived as to the union’s strength by the employers’ apparent willingness to challenge the union. If that is the case, and a union is worth having, then why couldn’t the unions so inform the employees out of it? To presume that, employees are such fools and sheep that they have lost all power of free choice based on the acts of their employer, bespeaks the same sort of elitist Big Broth-erism that underlies the imposition of the invalid bargaining order in this ease. Consider anew the facts before us. In 1990, 85.7 percent of the employees of the bargaining unit signed a petition asking for a chance to exercise their free choice. Seven years later, those employees still have not had the election they sought because the Board presumes that the employers’ refusal for a few *1464days to bargain with the Union thoroughly fooled those poor deluded employees to such a point that neither the Union nor anyone else could possibly educate them of the truth known only to their Big Brother, the Labor Board.
Consider for a moment a hypothetical world in which the supporters of a congressional candidate engage in illegal expenditures the day before an election. Their candidate ousts the incumbent by a few votes. Conceivably some hypothetical federal commission might, acting by delegation of Congress, someday have the power to set aside such an election. It is inconceivable that the people of the United States would tolerate empowering that commission to at the same time impose upon them the continuing services of the incumbent congressman for the next three and one-half congressional terms without a further election because of the presumed “taint” arising from the illegal expenditures. And yet, the Board feels perfectly righteous in so disenfranchising the employees in this case for the simple reason that they are employees. That is, the Board apparently has reasoned that the working class is composed of individuals not competent to determine their own best interest or even to know their own minds. I cannot in good conscience nor in obedience to my understanding of the role of a reviewing court support such administrative arrogance.