concurring in part and dissenting 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 exceeded 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 824-25.
Senffs 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 825. 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 discipline 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, sustained 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 825.
Even with its informal, “lenient” disciplinary system, Garvey 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 conduct. See maj. op. at 825. 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. § 160(c). I agree with the Seventh Circuit that an “employer who has tolerated bad *830behavior in the past is not forced to continue to d& so, let alone required to tolerate increasingly bad behavior.” 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 employee’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 Materials, 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 [Senffs] 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 “Senffs 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 825. The cost-benefit calculus is not so simple. [The costs of Senffs 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 Senffs 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, Senffs valúe 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 825. A reasonable circumstance for termination is the accumulated irritation of Senffs 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 warranted, especially once-Senffs termination is removed as a justification. 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 retribution would not ensure a fair *831re-run election, especially given the substantial turnover among the pilots (the perpetrators of the ULPs) and the deckhands (the victims). See maj. op. at 828 (noting turnover). I am not persuaded that speculative 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.