dissenting:
I respectfully dissent. Although I agree with my colleagues that substantial evidence supports the Board’s findings that the Company violated the federal labor laws, I would remand' the remedial aspect of the case, inasmuch as the Board failed to consider a highly relevant factor in determining what constituted the appropriate remedy.
Preliminarily, I note my agreement with the Company’s plea that Board-sponsored elections are as a general matter to be preferred to authorization cards. In addition, there is no doubt that employers, if they insist, enjoy the right to demand an election, even when a union comes forward with cards signed by a majority of the employees in a proposed bargaining unit. See Linden Lumber, supra, 419 U.S. 301, 95 S.Ct. 429; Georgetown Hotel v. NLRB, supra, 835 F.2d at 1470-71. But the law is equally clear that employers can voluntarily recognize unions and thereby waive their right to an election. See NLRB v. Lyon & Ryan Ford, Inc., supra, 647 F.2d at 750-51. Here, as Judge Mikva’s opinion for the court amply demonstrates, the factual findings to this effect are supported by substantial evidence on the record as a whole; it is therefore clear that the Board’s factual determinations must stand.
I
But that does not end the case. The Company contends that, by virtue of extraordinary turnover in The Broker’s workforce since the organizational campaign occurred long ago in 1981, a bargaining order would improperly divest current employees of their right to choose whether to have a union, and if so, which one. This right, explicitly protected by section 7 of the NLRA, 29 U.S.C. § 157, is a fundamental value safeguarded by federal labor laws. Curiously, even though this argument was squarely raised below, neither the ALJ nor the Board even mentioned the factor of almost-complete employee turnover, and how (if at all) that development affected the Board’s choice of remedies.
*1305Now I hasten to emphasize that this is not an instance where employer intransigence and delay contributed to the protracted nature of the proceedings. Cf. Chromalloy Mining & Minerals v. NLRB, 620 F.2d 1120, 1132-33 (5th Cir.1980). Indeed, the Company justifiably complains that had its request for an election been granted, this matter would have been resolved long ago. For its part, the Board took several years from the conclusion of briefing to reach its decision in this case. The Company argues, quite correctly, that it should not be held responsible either for the undue length of this case or the extraordinary employee turnover that attended the prolonged period of delay. See NLRB v. Pace Oldsmobile, Inc., 739 F.2d 108 (2d Cir.1984).
And, employee turnover at The Broker has indeed been extraordinary. During the long years of delay, all but three of the restaurant’s employees as of August 1981 have gone on to other opportunities. See Affidavit of Stavros Veletsis, Nov. 25, 1987 (appended to Brief for Respondent). Of those three, two were card signers in 1981. See J.A. at 227, 228 (authorization cards for Yvonne Tyler and Juan Robles). Indeed, as of the date of the hearing before the AU in 1982, twenty-two of the Company’s thirty-eight employees had left; at least half of the employees who had signed authorization cards had left by that time. See J.A. at 171, 202, 248-49. In light of this almost complete turnover, to require bargaining at this late date, the Company argues, would satisfy the wishes of only one party — Local 25. But what is more troubling to me at this juncture is that the Board failed even to discuss this relevant factor bearing on its choice of remedy.
The Board responds by emphasizing that its remedial discretion is broad. The court seconds that unexceptional point, and tosses in a citation to Chevron for good measure. Specifically, the Board musters impressive authority for the proposition that courts will not disturb the Board’s choice of remedies after unfair labor practices have been shown. See, e.g., Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943); Franks Bros. Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944) (bargaining order to remedy unlawful withdrawal of recognition approved despite delay and the union’s subsequent loss of majority status).
Coming down from these lofty pronouncements to focus on this case, the Board maintains that the authorities relied upon by the Company bear on remedies only in a specific context. As the NLRB sees it, courts have required the Board specifically to consider the factors of employee turnover and delay only under the line of cases beginning with NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). In the ordinary case, the remedy for unfair labor practices is the ordering of a Board election. Under Gissel, however, if an employer’s unfair labor practices have rendered a fair election impossible, the Board may then issue an order to bargain forthwith. The Board argues that only in the Gissel context has it been obliged to consider the factor of employee turnover. In all other situations, the Board concludes, courts are not to question the Board’s choice of remedies for unfair labor practices.
In my view, the Board’s position is not only unduly mechanical, it is wrong as a matter of law. Contrary to the Board’s assertions, this court has squarely held that the Board is to consider employee turnover and the effects of Board decisions on current employees in non-Gissel cases. See Peoples Gas System, Inc. v. NLRB, 629 F.2d 35 (D.C.Cir.1980); Conair Corp. v. NLRB, supra, 721 F.2d at 1388 n. 1 (Wald, J., dissenting). Furthermore, we have cited this court’s decision in NLRB v. Ship Shape Maintenance Co., Inc., 474 F.2d 434 (D.C.Cir.1972), a Gissel ease, for the more general proposition that extraordinary employee turnover is a factor that must be considered by the Board. This requirement was laid down without drawing the bright-line distinction between Gis-sel and non -Gissel cases that the Board now urges.
In Peoples Gas, which is emphatically not a Gissel case, we stated in general terms that the Board’s remedial discretion *1306is not so broad as to permit it to ignore a relevant factor — indeed, a factor that is explicitly statutorily protected. Subsequent cases have cited Peoples Gas for the general proposition that the Board (as is true of other agencies) may not ignore relevant factors in reaching its decisions. See American Fed’n of Gov’t Employees v. FLRA, 785 F.2d 333, 386 n. 6 (D.C.Cir.1986) (citing Peoples Gas for the proposition that the agency must show that it “has considered the factors which are relevant to its choice of remedies”); Florida Steel Corp. v. NLRB, 713 F.2d 823, 834 (D.C.Cir.1983) (citing Peoples Gas for the proposition that the Board must consider the circumstances “in light of the violation with which it is faced and the conditions in the bargaining unit at the time it renders its decision” (internal quotes removed)); see also NLRB v. National Car Rental System, Inc., 672 F.2d 1182 (3d Cir.1982).
In Peoples Gas, we rejected the Board’s position that an unlawful refusal to bargain must be remedied by an order to bargain. In doing so, we stated:
In its opinion in this case, the Board seems to regard a bargaining order as the automatic and “clearly appropriate” remedy for refusal to bargain. This would be so if the only interests to be balanced were those of the employer and the Union, or if it were clear that the workers’ interests paralleled those of the Union. But as the Supreme Court made clear in Gissel, bargaining orders do not automatically flow from a refusal to bargain if it is not clear that the employees desire the Union as their representative. A balance must be drawn in such cases between the various purposes of the Act. For example, if the employer’s violation is deliberate and egregious enough, the interest in deterrence of future violations may override the employees’ wishes, especially if it is likely that the workers’ rejection of the Union flows from the Company’s violations.
When the violation is less substantial or is committed in good faith, the interest in deterrence is less substantial as well. Correspondingly, the employees’ rights to decide whether they want Union representation, and by which Union, should be given greater weight; the Board should make findings as to the likelihood of infringement of those rights and explain, if it should conclude that a bargaining order is nevertheless necessary, why other remedies would not suffice and why other purposes of the Act must outweigh the employees’ rights.
Peoples Gas, supra, 629 F.2d at 46-47 (footnotes omitted).
Here, we are entirely without the benefit of the Board’s balancing of the competing policies recognized in the labor laws. Peoples Gas makes it plain that the rights of current employees may not be dismissed as irrelevant, even when the issue concerns the legality of an employer’s good-faith refusal to bargain. Consistently, in Conair, supra, 721 F.2d at 1388 n. 1, Judge Wald (in dissent on another point) set forth the state of the law on the relevance of post-violation events. She stated:
This court has required the Board to consider subsequent events only when particularly noteworthy events such as an unusually high rate of turnover, NLRB v. Ship Shape Maintenance Co., Inc., 474 F.2d at 443, or the union’s decisive loss in a valid election wholly free of employer coercion, Peoples Gas System, Inc. v. NLRB, 629 F.2d at 47-48, have been brought to the attention of the Board or the court.... [I]n neither of these ... cases had the employer been found guilty of substantial, much less “outrageous and pervasive,” unfair labor practices.
721 F.2d at 1388 n. 1.
II
In an impressive piece of advocacy, my colleagues summon up arguments that the Board, blinded by its doctrinaire approach adumbrated above, has not made (and for aught that appears, has not even thought of). I repeat: neither the AU nor the Board even mentioned the Company’s employee-turnover argument. The reasons the court supplies for the Board’s not doing so amount to classic ad hoc rationalizing, which is but a different species of a no-no *1307which should by now have been quite settled in the precincts of this courthouse. Ad hoc rationalizing by agencies (or by courts on their behalf) simply will not do. If the rules of the game were being followed, this portion of my dissent would be unnecessary and, without further adieu, we would send the case back to the Board where it belongs, by virtue of the analysis set forth in Part I.
But since my colleagues have undertaken to speak where the Board has been silent, I must say, with all respect, that the court’s analysis represents a well-crafted but misguided exercise in formalism. The foundation of the court’s rationalization of NLRB silence is the following: “It is hornbook law that a union, once recognized, enjoys a presumption of continuing majority support.” Maj. Op. at 1300. Once the union is recognized, the argument goes, “turnover that occurs between the recognition and unlawful withdrawal of recognition has no legal significance.” Id. at 1301.
It should be quite obvious that this is not the delay of which I speak, as the court itself is commendably quick to note. No one is quibbling about turnover between Homan’s informal act of recognition (which of course the Company has always disputed) and the clear statement by the Company within a few days thereafter that it did not recognize the union. The point is, rather, that virtually complete turnover has occurred during the protracted period that the Board had this case pending before it for decision. And what my colleagues skillfully skirt over is that the case law on which they rely involves situations where the employer is seeking to withdraw recognition from a previously certified (or otherwise functioning) incumbent union. I have no quarrel with the settled proposition that a presumption of continued majority support exists where an employer is trying to unseat a previously certified (or otherwise functioning) incumbent union. Where an ongoing union-employer relationship exists, it is quite sensible to assume that “new” employees support the union in the same ratio as the old. The reason for this assumption is clear enough. In those circumstances, the union has been providing services to the employees — bargaining efforts, grievance handling, and the like. If employees, whether new or old, are dissatisfied with the union’s performance, then that dissatisfaction will presumably be manifested in some way, say by the filing of a decertification petition.
This is not that sort of case, however. Here, we have no basis whatever for divining what the new employees’ preferences are, inasmuch as the union has never provided any services of any nature on behalf of any employees, whether new or old. The new employees at The Broker have thus never been in the situation of an ongoing union-employer relationship.
What is more, our remaining faithful to the settled law of this circuit does not, as my colleagues fear, do violence to the statutory scheme crafted by Congress. Maj. Op. at 14. The labor laws do indeed, as the court emphasizes, provide ways for employers to seek to unseat “an ensconced union.” But this union is “ensconced” at The Broker only in a metaphysical sense; and it became “ensconced” only after the Board finally adjudicated, years later, the issue whether Homan’s act on that fateful morning back in 1981, with his business partners not even on the premises, constituted the fatal act of “recognition.” Thus, in what can only be called an act of judicial prestidigitation, my colleagues take the Board’s years-later decision and, with a wave of the judicial wand, “relate back” that decision to crown the union as having been “ensconced” at The Broker all the while. If the court is right that the union was indeed “ensconced” at the restaurant since 1981, then the employees at The Broker may well wonder where it was all these years. This union was as real as Harvey the rabbit. No bargaining agreements (indeed no bargaining), no grievance handling, no nothing. That is a remarkably lean legacy for a “ensconced union.” And of course the reason for this Baltimore Orioles (1988 version)-type performance is that this phantom union has not in fact been at The Broker, as everyone (except the court) knows. For lo these many years, the union has not been on the scene, carrying on in the em*1308ployees’ behalf and representing their interests; it has, rather, been many blocks away from The Broker, downtown at the NLRB steadfastly litigating its right to be on the restaurant’s premises in the first instance. This, therefore, is an “ensconced union” only in a magical, apparitional sense. It has quite plainly not been an “ensconced union” in a functional sense, which is what the case law, not to mention common sense, requires.
Ill
In sum, the following points are, I believe, indisputable: first, the rate of employee turnover at The Broker has been “unusually high,” and second, the employer has not been guilty of “outrageous and pervasive” unfair labor practices. The Company’s conduct here cannot, in conscience, be condemned as “outrageous.” It has, rather, been litigating a fairly litigable point, welcoming all the while (but to no avail) an old-fashioned, tried-and-true election.
That brings me to the final point, one of law. Section 10(c) of the NLRA, 29 U.S.C. § 160(c), sets forth the scope of the Board’s remedial authority. The Board’s remedial mission is to “effectuate the policies of th[e] Act.” Id. The Board has relied here on the admittedly important statutory policies of deterring employer misconduct and, relatedly, not rewarding employers for engaging in litigation. That policy, for reasons already stated, is not fairly implicated in the present situation where the employer has stood ready from the outset to have a Board-supervised election. But, in any event, another, equally fundamental, policy of the labor laws is implicated in this case — the goal of ensuring employee freedom of association and choice. See Virginia Electric & Power Co. v. NLRB, supra, 319 U.S. at 539-40, 63 S.Ct. at 1218-19 (stating that the purpose of the Act is to encourage and protect “full freedom of association for workers”). Moreover, Franks Bros., supra, 321 U.S. 702, 64 S.Ct. 817 (which held that a union’s loss of majority status during litigation does not render a bargaining order impermissible), is not, as the Board would have it, helpful to the agency's position. Indeed, the Supreme Court in that case alluded to the fact that the NLRB had specifically discussed the union’s loss of majority status, and had stated its reasons for nonetheless ordering bargaining. See 321 U.S. at 706, 64 S.Ct. at 819. In this case, however, the Labor Board never articulated why it dismissed as irrelevant the rights of all save two of The Broker’s current employees; sad to say, there is not a single word to suggest that the Board even took cognizance of the dramatically changed employment picture at the restaurant.
Under these circumstances, a remand should be ordered for the Board to consider the unusual facts presented by this case. On remand, the NLRB would obviously be at liberty to conclude that a bargaining order is in fact warranted. But the Board should be required to articulate its reasons for choosing one remedial course over another. See Peoples Gas, supra, 629 F.2d at 46-47. I am at a loss to divine any reason why the previously expressed choice of the two solitary card signers who remain with the restaurant should be honored without even considering the factor of whether their many more numerous colleagues should be given a voice in the process. Workplace democracy requires greater sensitivity than the Board, now with my colleagues’ approbation, has displayed to the congressionally ordained value of employees’ unfettered right to choose (or reject) a specific representative. I would therefore remand to the Board so it can carry out this basic task. As my colleagues are of different view, I respectfully dissent.