dissenting:
In this case, the Board seeks to have us enforce its order, which among other provisions, compels reinstatement of a discharged Du Pont employee. The Board, in concluding that employee Slaughter was dismissed because of his insistence that a co-worker witness be present at any interview which might lead to disciplinary action, based its order upon the principles of the Supreme Court decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975). The issue thus presented to us — an issue never before addressed by this Court — is whether such a request by a non-union employee is protected activity under section 7 of the National Labor Relations Act. It is the extension of the Weingarten doctrine to the non-union context that makes the present issue one of first impression in this Circuit,1 and one about which even a member of the majority has expressed substantial reservations. (See Majority Opinion, at 1065 n. 5, indicating Judge ADAMS’ doubts in this respect.) In my opinion, the state of the record before us makes it impossible for this Court to reach, or even address, the Weingarten issue. This being so, it is manifest to me that we cannot grant enforcement of the Board’s order. The threshold question which cannot be answered at this time, primarily because of the different burden of proof tests employed by the ALJ and the Board, is whether the cause-in-fact for Slaughter’s dismissal was indeed his request for such a witness. A negative response to this inquiry would not implicate Weingar-ten principles, and thus would obviate any *1070need to decide whether Weingarten applies to non-union employees.2 Because the record in its present posture cannot support enforcement of any order — Weingarten or otherwise — I believe that a remand to the Board and then to the ALJ is required.
I.
Walter Slaughter, a Du Pont employee, had received a poster from the National Labor Relations Board concerning representation elections. He placed this poster on the bulletin board in the employee’s cafeteria. Supervisor Thomas Farley observed Slaughter’s activities. He asked Slaughter to come to his office to answer questions about the poster. Farley testified that after Slaughter posted the flyer received from the Board, Farley asked Slaughter to come to his office for a meeting to answer questions. Slaughter said that he would not discuss union activity without the presence of a third party. App. at 14-15, 175. Farley testified: “Walter, I did not even state the meeting, what the meeting was about. I just would like you to come to my office. He [Slaughter] refused.” App. at 175. Farley testified that Slaughter refused several times to accompany him to his office, giving as his reason the failure to provide a witness of his choosing. The ALJ also found that when Slaughter and Farley met later in a hallway, Slaughter announced “somewhat loudly that he would not discuss union business without a third party. Farley replied that he had not said anything, but Slaughter once more made his intentions known, and a little louder.” App. at 15. After being given several opportunities to come to Farley’s office to discuss the incident in the cafeteria, Slaughter was suspended for insubordination, and was ultimately dismissed.
These alleged independent acts of insubordination in refusing to leave the worksite could clearly provide legitimate grounds for dismissal under Roadway Express, Inc., 246 N.L.R.B. 1127 (1979). See supra note 2. The ALJ’s opinion, however, found in one conclusory sentence that: “Respondent’s sole reason for its discharge of Slaughter was his insubordination in refusing to submit to an interview without an employee witness.” App. at 16. This finding, strangely enough, was made after the ALJ had discounted Slaughter’s testimony3 and had credited the testimony of Supervisor Farley, who testified for Du Pont. The ALJ stated that “Slaughter was, at best, expansive in his testimony and was inclined to answer his own questions and present arguments, rather than answer the precise questions asked of him.” App. at 14 n. 1. Thus, all the findings made by the ALJ were based on the testimony of Supervisor Farley, whom the ALJ found to be more reliable than Slaughter.
The Board adopted the “finding” made by the ALJ, and, without any additional evidentiary explanation, agreed that *1071Slaughter was to be reinstated because the company had transgressed the rule of Weingarten. The Board then sought enforcement of its order in this Court. Curiously, the majority’s opinion (at pp. 1068-1069) tracks the Board’s opinion in totally ignoring the fact that Slaughter’s testimony was, insofar as it involved the issues in this case, totally discredited by the ALJ. See Eastern Engineering & Elevator Corp. v. NLRB, 637 F.2d 191 (3d Cir.1980) & infra note 7.
At least two extremely troublesome and related problems are presented by the current state of the record. First, recognizing that the ALJ “found” that “Respondent’s sole reason for its discharge of Slaughter was his insubordination in refusing to submit to an interview without an employee witness,”4 App. at 16, no evidence has been identified on which such a finding could be predicated. See, e.g., NLRB v. Armcor Industries, 535 F.2d 239, 245 (3d Cir.1976) (appellate court requires articulation of reasons from Board). Second, even if such a “finding” were substantially supported in the record and had been adequately explained by the ALJ and the Board, it could not constitute the basis for sustaining the Board’s order, since such a finding would have had to have been made pursuant to a now rejected test of causality or burden of proof. See Wright Line, A Division of Wright Line, Inc., 251 N.L.R.B. 1083, 1084 (1980). Thus, the quantum of proof and the burden of persuasion necessary to prove Du Pont’s motivation in dismissing Slaughter, an essential ingredient of the Weingarten rule if it is to be extended to a non-union context, cannot be determined on this record. In essence, therefore, whatever the quality of evidence, or the quality of findings that were made, because of the failure of the ALJ and the Board to utilize the correct and the same standard for determining a “mixed motive” discharge, the Board’s order cannot be enforced.
II.
At the outset, I stress that in examining the record and the testimony, I make no credibility judgments. I recognize that as a court we must accept factual findings made by administrative bodies such as the Board if they are supported by substantial evidence.5 E.g., Hedstrom v. NLRB, 629 F.2d 305 (3d Cir.1980). For us to perform even this circumscribed function of judicial review, however, we require some explanation from the Board, predicated on the administrative record, of the basis on which such findings and conclusions rest. Cf. Cotter v. Harris, 642 F.2d 700, 704-05 (3d Cir.1981) (findings by Secretary regarding eligibility for Social Security benefits must contain indication of evidence accepted and rejected); Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir.1979) (Secretary must sufficiently explain weight given to evidence in order for court to scrutinize record to determine whether conclusions are rational). See NLRB v. Permanent Label Corp., 657 F.2d 512, 532 (3d Cir.1982) (Garth, J. dissenting). As this Court has noted: “The ‘reasoned basis for the agency’s action’ must be provided by the agency in the administrative proceedings. We ‘may not accept appellate counsel’s post hoc rationalizations for agency action.’ ” Port Norris Express Co. v. ICC, 687 F.2d 803 (3d Cir.1982) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962).
In this case, other than the one eoncluso-ry statement made by the ALJ that “Respondent’s sole reason for its discharge of Slaughter was his insubordination in refusing to submit to an interview without an employee witness,” nothing appears in the ALJ’s opinion or the Board’s adoption of his findings and conclusions to inform us as to the evidence upon which either of them *1072relied.6 This is particularly puzzling considering that Du Pont’s evidence and arguments went to great lengths in order to show that the acts committed by Slaughter were outside the protection of Weingarten.7 It is not our role to examine the record independently to determine for ourselves the facts and conclusions which should be drawn from the evidence. However, while it may be the function of a court of appeals to review and instruct those agencies over which it has appellate jurisdiction, it is also necessary for the agency whose actions are being reviewed to inform the reviewing court of the basis of its decision. Without that information, it is impossible for us to perform our appellate function properly. As the Supreme Court stated in SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947):
If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive. In other words, “We must know what a decision means before the duty becomes ours to say whether it is right or wrong.”
Id. at 196-97, 67 S.Ct. at 1577 (quoting United States v. Chicago, M., St. P. & P. R.R. Co., 294 U.S. 499, 55 S.Ct. 462, 79 L.Ed. 1023 (1935). See also NLRB v. Permanent Label Corp., 657 F.2d 512, 532 (3d Cir.1982) (in banc) (Garth, J., dissenting).
If we are to function effectively as a court, then we must know the basis for the Board’s findings and conclusions without regard to the context in which they arise. In my view, we are well within the bounds of our authority to require such explanations and articulations. The Chenery requirement, which focuses on effective judicial review, cannot be deemed to constitute an undue burden on the Board. Nor does it intrude in any respect upon internal Board procedures, so as to trench upon any of the principles expressed in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (review of rule making action rather than adjudicatory procedures); see also Permanent Label, 657 F.2d at 532. The requirement that the Board disclose the basis of its order when it exercises the discretion given to it by Congress is mandated in order that a court may perform its reviewing function properly and thereby guarantee the integrity of the administrative process.
Without any indication from the Board or from the ALJ as to how each justified the fact found or the conclusion reached, it is in *1073my judgment impossible for us to determine whether substantial evidence supports the Board’s decision. This alone would require us to deny enforcement of the Board’s order.
Of even greater concern, however, is the effect of the recent decision of the United States Supreme Court as it pertains to the present record. At the time that the AU’s decision was rendered, August 22, 1980, the Board’s “mixed motive” burden of proof doctrine set out in Wright Line, A Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir.1981) (enforcing order but rejecting Board’s allocation of burdens of proof), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), had yet to be announced. Apparently, the Board at that time would order reinstatement whenever it concluded that an employee’s discharge was colored by no more than the “in part” causation test. The Board itself described that rule which it declined to enforce thereafter, as follows:
In its present form the “in part” test provides that if a discharge is motivated, “in part,” by the protected activities of the employee the discharge violates the Act even if a legitimate business reason was also relied on....
Since its inception, the “in part” test has been perceived by some to be, at least conceptually, at odds with the oft-repeated idea that:
Management can discharge for good cause, or bad cause, or no cause at all. It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification: it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids. [N.L.R.B. v. MaGahey, 233 F.2d 406, 413 (5th Cir. 1956)]. See also Klate Holt Co., 161 NLRB 1606, 1612 (1966). Compare Shattuck Den Mining Corporation v. N.L.R.B., 362 F.2d 466 (9th Cir.1966).
A conflict between this concept and the “in part” rationale is seen because, in a dual motivation case, the employer does have a legitimate reason for its action. Yet, an improper reason for discharge is also present. Thus, the employer’s recognized right to enforce rules of its own choosing is viewed as being in practical conflict with the employees’ right to be free from adverse effects brought about by their participation in protected activities. Critics of the “in part” test have asserted that rather than seeking to resolve this conflict and accommodate the legitimate competing interests, the analysis goes only half way, in that once hostility to protected rights is found, the inquiry ends and the employer’s plea of legitimate justification is ignored.
In its Wright Line opinion, the First Circuit characterized the “in part” test as follows:
Under this approach, a discharge was improper even if it would have occurred absent the illegal motivation, e.g. the employee may have committed an infraction so serious that any employee — union or non-union — would have been fired. This partial motivation test — as the Board now acknowledges — placed the “union activist in an almost impregnable position once [anti-]union animus had been established.” Activists could not be discharged for conduct that would be unforgivable in the case of another employee. The result was to immunize union activists against legitimate discipline for genuine offenses and to deprive employers of the freedom to apply their own rules uniformly to all their employees.
662 F.2d at 902.
Thus, when the ALJ was evaluating the evidence in this case, the Board’s earlier rule of “in part” causation was in force. Application of the “in part” causation rule, however, mandated consideration of the employer’s evidence of an independent basis of discharge on the one hand, and the employee’s evidence of protected activity on the other, leading to a finding of whether a legitimate reason for action was taken without the presence of any improper consideration. Thus, even though an “in part” causation test differed substantially from a *1074mixed motive Wright Line test, both tests required evaluation of conflicting evidence.
Approximately one week after the AU’s decision was rendered, on August 27, 1980, the Board’s “mixed motive” Wright Line rule displaced the older “in part” rule. Under Wright Line, it must be shown not merely that protected activity was a partial motivation for dismissal, but that such improper animus was the “but for” cause of the challenged action. Once the General Counsel had shown, however, that animus against protected activity was “a motivating factor” in the decision, the burden of persuasion shifted to the employer to show that the same decision would have been reached even in the absence of the protected action. Wright Line, 251 N.L.R.B. at 1089.
To complete the history of the causation/burden of proof rules in this context, this Court, in 1982, followed the First Circuit’s analysis and held that the burden of proof was always on the General Counsel to show that “but for” the protected activity, an employee would not have been disciplined. Behring International, Inc. v. NLRB, 675 F.2d 83 (3d Cir.1982), vacated and remanded, - U.S. -, 103 S.Ct. 3104, 77 L.Ed.2d 1359 (1983). In doing so, we rejected the Board’s Wright Line analysis. Thus, at the time that this case was argued before us, our Behring standard was in effect.
Since that time, however, the Supreme Court has explicitly endorsed the Board’s Wright Line test. NLRB v. Transportation Management Corp., - U.S. -, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). It vacated Behring and our cases following Behring and directed that we reconsider the allocation of burdens of proof in light of Transportation Management. It is thus clear that, to the extent Behring is inconsistent with Wright Line, Behring no longer has any vitality. See Behring International, Inc. v. NLRB, 714 F.2d 291, (3d Cir.1983) (on remand from Supreme Court).
To summarize: the ALJ, laboring under the assumption, which was correct as of that time only, that the “in part” test was the proper measure of causation in “mixed motive” cases, found that Du Pont had improperly dismissed Slaughter. When the Board’s decision was announced in this case, it operated under the Wright Line test,8 which specified a different test for causation, employing different elements of proof. When the case was briefed and argued before us in the spring of 1983, the Behring burden of proof rule was in effect in this Circuit. After argument before this Court, the Supreme Court in Transportation Management taught us, however, that the correct rule was not our Behring rule but was indeed the “mixed motive” rule of Wright Line.
Any factual finding coming to us from such a record must therefore be fatally tainted. The ALJ undoubtedly used the “in part” test now rejected by the Board and the Supreme Court. The Board, although giving cursory mention to Wright Line, accepted the ALJ’s findings by incorporation without further explanation or analysis. In doing so, it necessarily infected its own *1075decision with the erroneous allocation of burdens of proof and persuasion contained in the ALJ’s “finding” and opinion. The problem here is not in any way cured, therefore, even if the Board utilized the Wright Line analysis, since the underlying facts upon which such an analysis necessarily relied were derived from, and the product of, the now rejected “in part” causation test.
IY.
In its unseemly haste to rush to a Wein-garten judgment, the majority opinion attempts to avoid dealing with the misallocation of burdens of proof by clinging to the lone (an unsubstantiated) sentence in the ALJ’s report — later adopted by the Board— that “Respondent’s sole reason for its discharge of Slaughter was his insubordination in refusing to submit to an interview without a witness.” The majority opinion relies upon this one sentence to argue that Slaughter’s dismissal was not a “mixed motive” discharge, but rather was merely a “single motive” discharge, and that no dual motive analysis — be it “in part” (see supra p. 1067) or Wright Line was required. It therefore suggests that, in analyzing the evidence, it was unnecessary to invoke the Wright Line burdens of proof, which deal only with “mixed motive” cases, despite the fact the Du Pont introduced a substantial amount of testimony in order to demonstrate that Slaughter’s dismissal was due to reasons other than his insistence on a coworker witness and despite the fact that the record on its face reveals this to be a garden variety “mixed motive” case.
The majority opinion apparently fails to perceive the circularity of this analysis. A factual finding regarding which reason, or combination of reasons, actually motivated the employee’s discharge must be the result of a Wright Line analysis, not an excuse to ignore Wright Line in the first place. This was true of the earlier “in part” analysis as well. If anything, the existence of this sentence in the ALJ’s report actually emphasizes the need to invoke Wright Line rather than providing a means of escape. If one accepts the argument of the majority, then it would be a simple matter to bypass Wright Line altogether by using a factual finding made at the end of an evi-dentiary hearing to condone non-compliance with allocation of burdens of proof which should have been applied at the beginning of the fact-finding process.
Thus, if the employer raises a claim that there was an independent reason for the employee’s discharge (as Du Pont has done here), then the ALJ must employ a dual motive test, as now set out in Wright Line, to analyze such evidence properly.9 Du Pont has strenuously asserted from the very beginning of these proceedings that Slaughter’s discharge was the result of Slaughter’s insubordinate act of “refusing to leave the worksite.” App. at 97-98. It is therefore necessary to invoke the Wright Line dual motive analysis. Of course, it may be that at the end of such analysis, the ALJ would conclude that there was in fact only one motivating factor leading to dismissal, but such a conclusion is the “cart” and not the “horse.”
Here, not only did the ALJ use an incorrect causation burden of proof analysis, but the Board, by adopting the ALJ’s “findings” which were made on the basis of a rejected burden of proof test, infected its own determination. Thus, even if the Board utilized a Wright Line analysis, by incorporating the tainted “findings” of the ALJ in that analysis, its conclusion was necessarily flawed.
Thus, I believe that we would be ill-advised is passing on a novel question of law (whether Weingarten applies in a non-union context) which creates a conflict between the circuits (see supra note 1) when it has yet to be determined at the outset whether, if the evidence in this case were correctly *1076assessed and measured by the appropriate standard, such an issue would even arise. For instance, if because of the refusal by the ALJ to credit Slaughter’s testimony, the General Counsel failed even to establish a prima facie showing, no burden under Wright Line would ever shift to Du Pont. At the least, therefore, we as a reviewing court are entitled to know whether the evidence in all particulars satisfied the now established burden of proof test endorsed by the Supreme Court in Transportation Management. We can only learn that, if the ALJ and the Board first make the essential findings by a correct burden of proof analysis, then identify that evidence which supports those findings, and finally relate and articulate those findings to the Transportation Management standard.
V.
Because it is evident that the ALJ and the Board used markedly different burden of proof analyses in determining causation, and because of the character of the present record, significant doubt is raised, in my opinion, as to whether, even using the standard announced in Transportation Management, this record could ever support a Weingarten order. Thus, I cannot conceive of an analysis under which the Board’s present order may be enforced. Rather than deny enforcement, however, particularly in light of the history of changing burden of proof standards as described in text supra, I believe it to be far sounder from a jurisprudential standpoint to remand to the Board for findings based on a uniform test of causation. As we stated in In re Bildisco, 682 F.2d 72 (3d Cir.1982), affd., — U.S. -, 104 S.Ct. 1188, 79 L.Ed.2d 482:10
Where the state of the law is not settled, and the court of first instance has not set forth a reasoned elaboration for its decision, as here, an appellate court cannot determine what motivated the trial court’s decision. It cannot ^properly determine whether there was a specific act or omission constituting legal error. Even though an appellate court can affirm on the basis of reasons different from those set forth in the trial court, a reviewing court cannot properly perform its function until the parties are given the opportunity to prepare a record and the trial court the opportunity to apply in the first instance newly formulated precepts to the facts adduced.
VI.
I would therefore grant Du Pont’s petition for review to the extent that I would remand this case to the Board for proceedings consistent with my foregoing opinion. In so doing, I would deny enforcement of the Board’s order for the reasons which I have stated.
. NLRB v. Weingarten arose in a union context. There, the Supreme Court held that a request for a union representative to be present at any interview which might lead to disciplinary action was concerted activity for mutual aid and protection, and therefore fell within the protection of § 7 of the National Labor Relations Act. See generally Gregory, The Employee’s Right to R,epresentation During Employer Investigatory Interviews: A Critical Analysis of the Evolution of Weingarten Principles, 28 Vill.L.Rev. 572 (1983).
One other Court of Appeals has addressed this issue recently. The Ninth Circuit, in adjudicating a similar controversy between the same parties, declined to extend Weingarten to a non-union setting. E.I. Du Pont de Nemours & Co. v. NLRB, 707 F.2d 1076 (9th Cir.1983). It did so on the grounds that no concerted activity was involved with respect to the employer-employee interview in that case and that concerted activity was an essential component of § 7 of the Act. Because I have no occasion on this record to address the merits of the Board’s claim, and thus the availability of Weingarten in a non-union context, I do no more than acknowledge the Ninth Circuit’s decision, but I express no view with respect to its holding or analysis.
However, the majority opinion, which insists upon reaching this issue — a result which I believe to be unwise and indeed erroneous — has now created still another conflict between the circuits. The Chief Justice of the United States and the Congress have both expressed concern about such intercircuit conflicts. See, e.g., H.R.1970, 98th Cong., 1st Sess., 129 Cong.Rec. H940 (March 3, 1983); S.R. 645, 98th Cong., 1st Sess., 129 Cong.Rec. S1845 (March 1, 1983) (proposing the establishment of an Intercircuit Tribunal of the Courts of Appeals to resolve intercircuit conflicts). This Court itself has reacted to this problem by adopting a procedure whereby such intercircuit conflicts are expressly brought to the attention of the full court on circulation of panel opinions.
. I observe that, even if Weingarten did apply, under Roadway Express Inc., 246 N.L.R.B. 1127 (1979), an employee may be properly dismissed if, in addition to requesting a co-worker witness, he also commits other, independent acts of insubordination. In Roadway Express, the Board said:
Simply stated, we find that an employee’s Weingarten rights, with all its attendant safeguards, matures at the commencement of the interview, whether it be on the production floor or in a supervisor’s office. If the employer chooses to initiate its investigation in a work area, then it is bound to comply immediately with an employee’s request for representation there. If, however, the employer, as here, asks the employee to leave the production area and go to an office or some other location where further discussion is contemplated, then the employee acts at his own peril if he or she declines to do so.
246 N.L.R.B. at 1128 (emphasis added).
. Slaughter was the only witness to testify in support of his charge. His testimony was credited only once in a matter unrelated to the issues in this case. App. at 15 n. 2.
Contrary to the majority’s reading of the ALJ’s opinion (see maj. op., at 1068 n. 9), the ALJ found Slaughter to be not credible, expansive in his testimony, and given to answer his own questions rather than the ones asked of him. App. at 14 n. 1. The disturbing aspect to which the majority opinion refers is not, therefore, my characterization of Slaughter’s testimony, but is rather the fact that the Board accepted Slaughter’s testimony after it had been discounted and not relied upon by the ALJ.
. This sentence was contained not in the Findings of Fact but in the Discussion section of the ALJ’s decision. The Board accepted this statement by the ALJ without any further comment on the evidence. App. at 6-7.
. “Substantial evidence” has been defined as such relevant evidence as a reasoning mind might accept as adequate to support a conclusion. Lewis v. Califano, 616 F.2d 73, 76 (3d Cir.1980).
. The majority opinion properly does not style this conclusory statement as a finding of fact, as it could not. Majority op., at 1069.
. The Board, in rejecting Du Pont’s allegation that Slaughter committed acts for which he could be dismissed under Roadway Express, Inc., 246 N.L.R.B. 1127 (1979), stated that “Slaughter repeatedly stated his willingness to go to an interview if Respondent would grant his request for a witness.” App. at 11. In thus crediting Slaughter’s testimony, however, the Board relied on a witness specifícally discredited by the ALJ. It did so without explanation and with no apparent reason, contrary to the requirements of Standard Dry Wall Products, Inc., 91 N.L.R.B. 544, 545 (1950), enforced, 188 F.2d 362 (3d Cir.1951). I have already discussed in text supra the fact that the ALJ credited Farley’s testimony and did not credit Slaughter’s.
This Court, in Eastern Engineering & Elevator Corp. v. NLRB, 637 F.2d 191 (3d Cir.1980), considered the problem of disparate findings between the Board and the ALJ concerning credibility of witnesses. We noted that the report of the ALJ constitutes a vital part of the record which the court must review in determining whether a finding is supported by substantial evidence. In such a case, “we must recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner, who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion.” Id. at 197 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 469, 95 L.Ed. 456 (1951)). See also Edgewood Nursing Center, Inc. v. NLRB, 581 F.2d 363 (3d Cir. 1978) (credibility determinations rest with ALJ as long as he considers all relevant factors and sufficiently explains his resolutions).
. The Board mentioned Wright Line once in its decision in response to Du Pont’s contention that Slaughter was dismissed due to his unauthorized posting of an NLRB notice on a company bulletin board. The Board replied:
Respondent misconstrues the Board’s reasoning, as explicated in that [Wright Line] decision, since it is not sufficient to show that there may exist another reason for discharge; rather, Respondent must demonstrate that the same action would have taken place even in the absence of the protected activity. Such is not the case here, however, inasmuch as Respondent stated in its opening remarks at the hearing that its intent “was not to discipline” Slaughter for posting the notice, but just to “ask him a number of simple questions.”
App. at 10. Notably absent from the Board’s decision, however, is any finding that the General Counsel had made out a prima facie case that animus against protected activity was a motivating factor in the decision to dismiss. Without that finding, the burden would never have shifted to Respondent Du Pont.
Moreover, neither the Board nor the ALJ ever addressed at any time Du Pont’s main contention concerning Slaughter’s alleged insubordination, i.e. that he was dismissed because of his refusal to leave the work site when requested. App. at 97-98.
. Cf. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (under Title VII, employer need only articulate, without proving, an independent reason for discharge other than race in order to invoke applicable burdens of proof regarding pretext).
. In Bildiseo, this Court also had for the first time announced a standard to be applied in the rejection of executory collective bargaining agreements. Because that standard had not been available or known to the bankruptcy court or the district court, we also remanded for consideration by the courts below “in light of the precepts we announce today.”