UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


VINCENT INDUST

v.

NLRB


99-1202a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: Vincent Industrial Plastics, Inc.  ("Vincent" or
"the Company") operates a plastics manufactur- ing plant in Henderson,
Kentucky. On February 19, 1993, a  majority of Vincent's full- and
part-time production and main- tenance employees (designated a
bargaining unit by the Na- tional Labor Relations Board ("the Board"))
selected the  International Chemical Workers Union, AFL-CIO, Local 
1032 ("the Union") as the employees' bargaining representa- tive. The
Board certified the Union on September 29, 1993,  and Company and
Union officials commenced collective bar- gaining negotiations in
January 1994. The negotiations con- tinued for more than a year, but
the parties were unable to  reach a final agreement. On February 16,
1995, after receiv- ing a decertification petition from unit
employees, the Compa- ny withdrew its recognition of the Union and
declined to  participate in any further collective bargaining
negotiations.  Between July 5, 1994 and April 20, 1995, the Union
filed  several unfair labor practice charges ("ULPs") alleging that 
Vincent violated the National Labor Relations Act ("the  Act"), 29
U.S.C. s 158(a)(1), (3), (5) ("s 8"), by unilaterally  implementing
material changes in working conditions, coer- cively interrogating an
employee, disciplining and terminating  employees on account of their
support for the Union, and  unlawfully withdrawing its recognition of
the Union. The  Board issued complaints on all of the charges.


Following a hearing on the complaints, an Administrative  Law Judge
("ALJ") concluded that the Company was guilty  of ULPs on all but one
charge. See Vincent Indus. Plastics,  Inc., 328 N.L.R.B. No. 40, 1999
WL 282397, at *9 (1999). The  National Labor Relations Board ("Board")
subsequently held  that Vincent was guilty of ULPs on all charges. The
Board  specifically rejected the ALJ's finding that Vincent had not 
violated the Act in unilaterally changing the Company's at- tendance
policy. See id. at *1. The Board found that the 


attendance policy was a material working condition, and that  Vincent
was not legally justified in changing the policy with- out the Union's
agreement. The Board issued a cease-and- desist order (including a
remedy of reinstatement and back  pay for the employees who were
unlawfully fired) and a  "Gissel" bargaining order, see NLRB v. Gissel
Packing Co.,  395 U.S. 575 (1969), requiring the Company to recognize
the  Union and to resume collective bargaining negotiations.


Vincent petitions for review of the Board's order, and the  Board
cross-petitions for enforcement. We grant the Board's  petition for
enforcement, with one significant exception. The  Board, inexplicably,
has once again defied the law of this  circuit and failed to offer an
adequate justification for the  bargaining order sanction imposed
against Vincent. We  therefore find ourselves in the all-too-familiar
position of  having to remand this case to the Board for adequate
justifi- cation of the proposed affirmative bargaining order, thus 
further delaying relief for the employees the Board purports  to


I. BACKGROUND


A. Factual Background


The facts of this case are laid out in detail in the ALJ's  decision,
so we need only summarize here. The Company's  conduct that was found
to be unlawful by the Board began  during the last half of 1994, after
Vincent and the Union had  been negotiating for five months. Between
July and Decem- ber, 1994, Vincent unilaterally promulgated four
policy  changes relating to attendance, work duties, working hours, 
and time-keeping. We review each of these briefly.


On July 1, 1994, Vincent changed the policy by which it  disciplined
employees for attendance problems. Prior to that  time, Vincent used a
bifurcated system to tally employees'  excess attendance "occurrences"
(unexcused absences, tardi- ness, and early exits). For pre-August
1992 hires, occur- rences cleared from an employee's personnel file at
the end of  every fiscal year. For employees hired after August 1992, 
occurrences cleared on a rolling 360-day basis. All employ-


ees were subject to discipline if they incurred a certain  number of
attendance occurrences during the applicable peri- od.


Vincent believed that, among pre-August 1992 hires, the  end of each
fiscal year occasioned a rash of attendance  occurrences as employees
took advantage of the impending  slate-cleaning to maximize their
attendance occurrences for  the year. Vincent proposed that pre-August
1992 hires oper- ate under the rolling system. The Union stated that
it  wanted to negotiate the entire contract rather than agree to 
provisions piecemeal. In the face of the Union's insistence on 
negotiating the entire agreement prior to agreeing to a  revised
attendance policy, the Company unilaterally imposed  its policy change
on July 1, 1994, at the beginning of the new  fiscal year.


Between October and December 1994, Vincent instituted  three additional
policy changes without first proposing them  to the Union during
ongoing collective bargaining sessions.  First, in October, Vincent
relieved quality control employees  of their weighing and labeling
duties, which comprised 25% of  their workday, and transferred the
duties to press operators.  Then, in mid-November, Vincent instituted
a shift extension  requiring quality control employees to work an
extra 15  minutes at the end of each shift. Finally, on December 9, 
1994, Vincent eliminated the use of time cards and instituted  a team
system in which employees check in at the beginning  of their shift
with their "team leader," and the team leader  then keeps track of the
hours worked by each team member.  Vincent alleged that the new system
was precipitated by its  observation that time cards were often lost
or stolen, that  employees clocked in without reporting immediately to
work,  and that employees clocked in for one another.


In addition to the foregoing changes in working conditions,  the Union
also filed ULP charges related to Vincent's treat- ment of four Union
members. First, in December 1994,  Mark Coomes, a supervisor, called
Robert Ferguson away  from his machine and asked him whether he had
heard  anything about the Union going on strike. This inquiry was 


apparently prompted by an earlier conversation that day  between Mr.
Coomes and Michael Early, president of the  Union, in which Mr. Early
raised the possibility of a strike  vote. In response to Mr. Coomes'
questioning, Mr. Ferguson  responded that he did not know anything
about a possible  strike. Mr. Ferguson testified that Mr. Coomes
inquired as  to a possible strike a second time that day, in the break
room.  The Union alleged that Mr. Coomes' conduct constituted 
coercive interrogation in violation of the Act.


In January 1995, Vincent disciplined Gloria Chester, the  Union's
designated observer at the 1993 election and its plant  steward until
October 1993, for alleged insubordination and  disrespectful actions
toward a supervisor. On the day when  she was disciplined, Ms.
Chester, while returning to her press  after bringing some material to
the quality control office,  stopped to speak with Sue Scott, another
press operator.  During the conversation, Ms. Scott complained to Ms.
Ches- ter about a clean-up job that Supervisor Rebecca Basham had 
assigned to Ms. Scott. Ms. Chester said, "I would tell Becky  to kiss
my ass." At this time, Ms. Basham was standing  behind Ms. Chester and
overheard the remark. Ms. Chester,  apparently unaware of Ms. Basham's
presence, returned to  her press area. Later that day, Tina Bradford,
Vincent's  personnel manager, issued Ms. Chester a written warning. 
The Union claimed that Vincent disciplined Ms. Chester on  account of
her Union affiliation.


The third ULP related to Vincent's treatment of Union  members involves
the allegedly discriminatory termination of  Mr. Early, Union
President, in February 1995. Mr. Early  was arrested in September 1994
for driving while intoxicated.  He was to be sentenced either to 32
days jail time or to five  months of jail time in coordination with a
work release  program with his employer. In February 1995, Mr. Early 
approached John Domsic, plant manager, and requested that  Vincent
participate in the work release program. On Febru- ary 7, Mr. Domsic
informed Mr. Early that Vincent would not  participate in the work
release program. Mr. Early then  inquired abut the possibility of
taking personal leave, and Mr.  Domsic replied that he would get back


On February 13, Mr. Early was sentenced to 32 days in jail  and 28 days
in a rehabilitation center, to begin February 17.  On February 14, Mr.
Early called Ms. Bradford, informed her  that he would be starting a
jail sentence and therefore would  not be able to report to work, and
asked about COBRA  benefits. When Ms. Bradford said she was not aware
that he  had been terminated, he replied that he felt that the Compa-
ny's refusal to participate in the work release program was 
tantamount to termination. When Mr. Early failed to report  to work on
February 15, he was effectively terminated.


The day Mr. Early was terminated, employees circulated a  petition to
decertify the Union. Over two days, on February  15 and 16, 1995, a
majority (82 out of 128) of the maintenance  and production employees
signed the petition. Management  at Vincent verified the signatures
and informed the Union  that the Company would no longer engage in
bargaining.  After withdrawing its recognition of the Union, Vincent 
granted wage increases, implemented a 401(k) plan, and  denied the
Union's request for information regarding bar- gaining unit


About a month later, on March 20, Vincent terminated  Wanda Nantz, a
press operator and Union supporter (she  was, in fact, among those who
did not sign the petition to  decertify the Union). Vincent alleges
that it fired Ms. Nantz  because she failed, for the first two hours
of her March 20  shift, to record hourly "shot" counts (i.e., the
number of parts  produced for that hour) in the machine's production
log.  After the omission was brought to Ms. Nantz's attention, she 
recorded the counts until she was relieved of her duties and  given a
disciplinary notice. The discipline would not have  resulted in Ms.
Nantz's discharge except that she earlier had  been suspended for
three days for smoking near her press.


B. Board Proceedings


The ALJ found that Vincent violated the Act by unilaterally 
implementing all of the policy changes except for the attend- ance
policy. The ALJ termed the attendance problem "suffi- ciently urgent
to warrant unilateral implementation" of the  employer's policy.
Vincent Indus., 1999 WL 282397 at *9. 


According to the ALJ, the Union had the opportunity to  bargain but
chose to insist on an overall agreement. See id.  As for the other
policy changes, the ALJ found both that, in  each case, Vincent failed
to present the proposed changes to  the Union during contract
negotiations, thereby giving the  Union no opportunity to bargain over
the issues, and that  none of the changes was necessitated by economic
hardship.  See id. at *8, *10.


In addition, the ALJ found the questioning of Mr. Fergu- son, the
termination of Mr. Early and Ms. Nantz, and the  disciplining of Ms.
Chester to constitute violations of s 8(a)(1)  and (3) of the Act. The
interrogation of Mr. Ferguson,  according to the ALJ, interfered with
Mr. Ferguson's right  "to keep private his sentiments as to the Union
and his  knowledge of its affairs." Id. at *10. The ALJ found that 
Gloria Chester's discipline was motivated by her Union affilia- tion,
given the "ample credible evidence" that the language  she used
generally was tolerated at Vincent, that no docu- mentation supported
Vincent's assertions that other employ- ees had been disciplined for
similar behavior, and that no  management representative ever
questioned Ms. Chester  about the reason she left her press area,
which was ostensibly  the reason she was disciplined. Id. at *11-12.
The ALJ  termed Vincent's explanation for why it refused to accommo-
date Mr. Early's work release or leave request "inartful  pretext,"
and found that, but for Mr. Early's Union affiliation,  Vincent would
not have both declined to participate in the  work release program and
denied him personal leave. See id.  at *13. With respect to Ms. Nantz,
the ALJ found that,  during the five-month period that the requirement
of an  hourly "shot" count had been in effect, no one was cited for 
omissions from the production log although omissions did  occur. See
id. at *15. The ALJ accordingly concluded that,  given Ms. Nantz's
public pro-Union stance, the issuance of  the citation to Ms. Nantz
followed by her discharge was  discriminatory and a violation of s


On review of the ALJ's decision, the Board affirmed all of  the ALJ's
ULP findings save one. The Board reversed the  ALJ on the attendance
policy issue, finding that Vincent had 


"failed to prove that its attendance problem constituted an  economic
exigency." Id. at *2. Therefore, the Board found  that the change in
attendance policy violated s 8(a)(1) and (5)  of the Act.


On its own analysis, the Board found that Vincent's with- drawal of
recognition was a violation of s 8(a)(1) and (5) of  the Act, applying
the so-called "Master Slack" factors, see  Master Slack Corp., 271
N.L.R.B. 78 (1984), to evaluate the  causal connection between the
unremedied ULPs and subse- quent employee expression of
dissatisfaction with a union.  The Board cited the following factors
in finding a causal  connection between the ULPs and the
decertification move- ment: (1) the unremedied ULPs continued until
the day  before the employees began signing the decertification peti-
tion; (2) the unilateral changes and disciplining of Union  supporters
were "likely to have a long lasting effect on the  bargaining unit and
to discourage employees from supporting  the Union"; and (3) the
disciplining and termination of Union  supporters "convey to employees
the notion that any support  for the Union may jeopardize their
employment." Vincent  Indus., 1999 WL 282397, at *3. The Board also
imposed an  affirmative bargaining order as a remedy for the Company's
 violations of the Act. No justification was offered to support  the


Vincent petitions for review of all of the above findings. In 
addition, Vincent argues that the Board has failed to ade- quately
justify imposing an affirmative bargaining order as a  remedy for the
violations of the Act. The Board cross- petitions for enforcement of


II. ANALYSIS


Under the Act,


[i]t shall be an unfair labor practice for an employer--


(1) to interfere with, restrain, or coerce employees in  the exercise
of the rights guaranteed in section 157 of  this title; ...


(3) by discrimination in regard to hire or tenure of  employment or any
term or condition of employment 


to encourage or discourage membership in any labor  organization ...


(5) to refuse to bargain collectively with the represen- tatives of his
employees, subject to the provisions of  section 159(a) of this
title.


29 U.S.C. s 158(a). We review Board ULP findings under a  deferential
standard. This court will uphold the Board's  decision upon
substantial evidence even if we would reach a  different result upon
de novo review. See Perdue Farms,  Inc., Cookin' Good Div. v. NLRB,
144 F.3d 830, 834-35 (D.C.  Cir. 1998). We are even more deferential
when reviewing the  Board's conclusions regarding discriminatory
motive, because  most evidence of motive is circumstantial. See LCF,
Inc. v.  NLRB, 129 F.3d 1276, 1281 (D.C. Cir. 1997).


Furthermore, when the Board, as it did here, concludes  that unremedied
ULPs tainted a decertification petition, this  court requires it to
offer a reasoned explanation, based on  substantial evidence, in
support of its finding. See Quazite  Div. v. NLRB, 87 F.3d 493, 496-97
(D.C. Cir. 1996). Finally,  to justify the imposition of an
affirmative bargaining order,  we require the Board to explicitly
balance three consider- ations: (1) the employees' s 7 rights; (2)
whether other  purposes of the Act override the rights of employees to
 choose their bargaining representatives; and (3) whether  alternative
remedies are adequate to remedy the violations of  the Act. See
Skyline Distribs. v. NLRB, 99 F.3d 403, 410  (D.C. Cir. 1996).


A. The Board's ULP Findings


The Board's holding that Vincent's unilateral actions chang- ing
established working conditions constituted ULPs is easily  upheld. An
employer may not unilaterally impose material  changes in terms or
conditions of employment that are man- datory subjects of bargaining
without first negotiating to  impasse. See Litton Fin. Printing Div.
v. NLRB, 501 U.S.  190, 198 (1991); Grondorf, Field, Black & Co. v.
NLRB, 107  F.3d 882, 886 (D.C. Cir. 1997). There are two exceptions to
 this general rule: An employer may impose unilateral terms  if the
union engages in dilatory tactics to delay bargaining. 


See Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 235  (D.C. Cir.
1996). And an employer may act unilaterally if  faced with an economic
exigency justifying the change. See  Visiting Nurse Servs., Inc. v.
NLRB, 177 F.3d 52, 56 (1st Cir.  1999), cert. denied, 120 S. Ct. 787
(2000); RBE Elecs. of S.D.,  Inc., 320 N.L.R.B. 80, 81 (1995). An
economic exigency must  be a "heavy burden" and must require prompt
implementa- tion. See RBE Elecs., 320 N.L.R.B. at 81. The employer 
must additionally demonstrate that "the exigency was caused  by
external events, was beyond the employer's control, or was  not
reasonably foreseeable." Id. at 82 (footnote omitted).


Vincent imposed all of the changes save one without pre- senting a
proposal to the Union during bargaining sessions.  Vincent can mount
no argument that any of the disputed  changes were made due to an
economic exigency, although it  tries to argue that the changes were
not material or that they  were waived by the Union. These arguments
hold no water:  All of the changes involved mandatory subjects of
bargaining,  they raised material issues, and the Union cannot be held
to  have waived the right to bargain over an issue that was never 
proposed during bargaining sessions. There is one change  that Vincent
did propose before imposing: the change in  attendance policy. Vincent
urges that the Board's decision on  the attendance policy issue should
be reversed, first, because  the Union waived its right to bargain
over this issue, and,  second, because the Company had to make the
changes in  order to meet an economic exigency. Vincent's arguments 


There was no waiver by the Union here. The Union  desired to bargain
over the attendance policy; it made clear  to Vincent that it wanted
to negotiate the entire contract,  including the attendance policy, as
a whole. See Visiting  Nurse Servs., 177 F.3d at 59 (rejecting
employer's suggestion  that a union cannot insist on negotiating an
entire contract  rather than piecemeal negotiation). In addition, the
Union  offered counter-proposals to the Company's attendance policy 
prior to Vincent's imposition of the policy change. See  Eighth
Negotiation Session Meeting Notes, May 18, 1994, at  3-5, reprinted in
Joint Appendix ("J.A.") 795-97; Ninth 


Negotiation Session Meeting Notes, May 24, 1994, at 3-4,  reprinted in
J.A. 802-03. The Union did not precipitate an  impasse by insisting on
negotiating a contract as a whole  rather than piecemeal. Such a view
is mischievous, because it  would both "permit the employer to remove,
one by one,  issues from the table and impair the ability to reach an 
overall agreement through compromise on particular items"  and
"undercut the role of the Union as the collective bargain- ing
representative." Visiting Nurse Servs., 177 F.3d at 59.


Nor did the Board err in finding a lack of evidence to  support
Vincent's claim of economic necessity. The Board  correctly noted that
the "exigency" asserted by Vincent was  hardly extraordinary: The
Company could point only to the  impending possibility of attendance
problems. The Board  reasonably found that the Company's alleged
problem did not  pose a "heavy burden" necessary to show an economic
exigen- cy. See RBE Elecs., 320 N.L.R.B. at 81. In addition, the 
Board reasonably concluded that Vincent failed to show that  the
attendance problem was unforeseen, caused by external  events outside
its control, or that it was new. See id. at 82.


The Board's findings that Vincent fired two employees and  disciplined
another in violation of the Act are also supported  by substantial
evidence in the record. To establish a causal  nexus between adverse
employment decisions and an employ- ee's union affiliation, the
complaining party must first show  that protected activity "was a
'motivating factor' " in the  adverse employment decision, and then
the employer may  show that it would have made the adverse decision
even had  the employee not engaged in protected activity. Wright 
Line, Inc., 251 N.L.R.B. 1083, 1089 (1980); see also NLRB v. 
Transportation Management Corp., 462 U.S. 393, 403 (1983)  (approving
of Wright Line approach). To establish an em- ployer's discriminatory
motive, the NLRB may "consider[ ]  such factors as the employer's
knowledge of the employee's  union activities, the employer's
hostility toward the union, and  the timing of the employer's action."
Power Inc. v. NLRB,  40 F.3d 409, 418 (D.C. Cir. 1994). Evidence that
an employer  has violated s 8(a)(1) of the Act can support an


anti-union animus. See Parsippany Hotel Management Co.  v. NLRB, 99
F.3d 413, 423-24 (D.C. Cir. 1996).


The ALJ found, and the Board affirmed, that Vincent  violated the Act
in three instances when it took adverse  employment actions against
its employees on account of their  Union affiliation: (1) when Vincent
disciplined Gloria Chester;  (2) when Vincent terminated Michael
Early; and (3) when  Vincent terminated Wanda Nantz. With respect to
all three  findings, there is substantial evidence to support the
Board's  determination.


The ALJ, with whom the Board agreed, relied on Ms.  Chester's position
as a Union supporter, the fact that she  received discipline at a time
when Vincent had taken several  unlawful unilateral actions, and the
"significant aberrant cir- cumstances surrounding issuance of the
warning" to conclude  that the discipline would not have occurred but
for Ms.  Chester's Union involvement. Vincent Indus., 1999 WL  282397,
at *11. There is substantial evidence to support this  conclusion,
especially given our deference to the Board's  findings regarding
discriminatory motive. See Laro Mainte- nance Corp. v. NLRB, 56 F.3d
224, 229 (D.C. Cir. 1995).  Vincent cites to testimony in which the
employer asserted  that other employees had been disciplined for
similar behav- ior, but the ALJ and Board rejected this testimony for
lack of  documentary or other corroborating evidence. The Board's 
judgment on this point was reasonable. Cf. Synergy Gas  Corp. v. NLRB,
19 F.3d 649, 653 (D.C. Cir. 1994) (reversing  finding of
discrimination where company introduced person- nel records to
demonstrate that other employees had been  terminated for actions
similar to that of the complaining  employee).


The ALJ and the Board relied on similar factors to con- clude that the
Company discharged Mr. Early in violation of  the Act. First, the ALJ
found that a prima facie case of  discrimination was established in
light of the other unlawful  conduct engaged in by Vincent and the
Company's response  to Mr. Early's request for accommodation. See
Vincent  Indus., 1999 WL 282397, at *13. The ALJ found Vincent's 


explanation for refusing to participate in the work release  program to
be "cryptic" and nothing "other than inartful  pretext." Id. (noting
that Mr. Domsic stated both that  Vincent did not want to take
responsibility for Mr. Early's  program and that Vincent did not know
what it would have  been required to do). The Board agreed and we
cannot  second-guess that judgment. In upholding the Board on this 
point, we do not suggest that all employers must grant all  requests
similar to Mr. Early's lest they be accused of  discriminating against
bargaining unit employees. A compa- ny that consistently applies
neutral policies, for example,  usually is on safe ground. See TIC-The
Indus. Co. South- east, Inc. v. NLRB, 126 F.3d 334, 338 (D.C. Cir.
1997). In  this case, there is no evidence that the Company had any 
policy at all to apply to Mr. Early. Therefore, it cannot be  said
that the ALJ was unreasonable in finding that Mr.  Early's status as
Union President influenced Vincent's deci- sion to refuse to
accommodate his particular needs as a result  of his arrest,
especially considering the ALJ's conclusion,  supported by substantial
evidence, that Mr. Early "was a  long-term skilled press operator and
that there is not a  scintilla of evidence that alcohol ever affected
his job perfor- mance or that he posed any threat to others at the
plant."  Vincent Indus., 1999 WL 282397, at *13.


Vincent argues that the ALJ erroneously found violations  of the Act
for the discharge of Ms. Nantz on two grounds: (1)  the ALJ
erroneously concluded that Vincent knew of Ms.  Nantz's Union
affiliation; and (2) the discipline meted out to  Ms. Nantz was
consistent with Vincent's past practice. The  first challenge is
easily dismissed. Ms. Nantz had been a  pro-Union advocate during the
election, the shop steward, and  the Treasurer of the Local, and she
had refused to sign the  decertification petition. Under these
circumstances, there  was substantial evidence for the ALJ to conclude
that Vincent  was aware of Ms. Nantz's affiliation with the Union.


With respect to Vincent's justification for disciplining Ms.  Nantz,
the ALJ found that, for the five months that the  hourly "shot count"
requirement was in place, there was no  evidence that any employees
were disciplined even though 


employees other than Ms. Nantz had made mistakes. Vin- cent proffered
evidence that prior to the institution of the  new policy, employees
were warned for failure to fill out  production logs correctly; but
there are no such warnings in  evidence (apart from Ms. Nantz's
discharge) for the period  during which the new policy was in place.
Under these  circumstances, there was substantial evidence for the ALJ
 and Board to conclude that Vincent's purported reason for 
disciplining Ms. Nantz was pretextual.


The Board's finding that Vincent supervisor Mark Coomes  violated the
Act by coercively interrogating Robert Ferguson  is less easily
upheld. The interrogation of employees by an  employer is evaluated
under a five-factor totality of the  circumstances test in order to
determine whether the ques- tioning is coercive and therefore violates
s 8(a)(1). These  factors are: (1) the history of the employer's
hostility and  discrimination against unions; (2) whether the
information  sought is of a type that could be used to take action
against  individual employees; (3) the rank of the questioner; (4) 
where the questioning occurred; and (5) the truthfulness of  the
reply. See Perdue Farms, Inc., 144 F.3d at 835. Here  the ALJ relied
on the following facts to conclude that Mr.  Coomes compromised Mr.
Ferguson's right to "keep private  his sentiments as to the Union and
his knowledge of its  affairs": Mr. Coomes pulled Mr. Ferguson away
from his  work area to initiate questioning; and Mr. Ferguson had not 
previously identified with the Union. Vincent Indus., 1999  WL 282397,
at *10. The ALJ inferred that Mr. Coomes'  purpose, to test the
strength of the Union, was clear. Given  the substantial evidence in
the record, we cannot say that this  conclusion is unreasonable.


Vincent relies on Certainteed Corp., 282 N.L.R.B. 1101  (1987), for the
proposition that there is nothing coercive about  an employer
inquiring about the possibility of a strike. In  Certainteed, the ALJ
found that the employer did not violate  the Act by asking an employee
about the possibility of a  strike, because the employer had a
reasonable basis to fear an  "imminent strike" and had an interest in
determining whether  it would be able to keep its business open. 282


1107. Here, while Mr. Coomes had just heard from Mr.  Early about the
possibility of a strike vote, Mr. Coomes had  no legitimate reason for
inquiring of Mr. Ferguson; Mr.  Early's offhand comment about the
possibility of a strike vote  sometime in the future could hardly be
relied upon to support  a reasonable basis to fear an "imminent
strike." Certainteed  does not compel reversal of the Board.


The Board's findings that several unremedied ULPs taint- ed the
decertification petition is unassailable. For the first  year after a
successful certification election, a union enjoys an  irrebuttable
presumption of majority support, after which the  employer may
withdraw recognition if it has a good faith,  reasonable basis to
doubt majority support for the union. See  Peoples Gas Sys., Inc. v.
NLRB, 629 F.2d 35, 37-38 (D.C. Cir.  1980). When a majority of unit
employees signs a petition in  support of decertification, an employer
may reasonably doubt  that there exists majority support for the
union. See Sulli- van Indus. v. NLRB, 957 F.2d 890, 898 (D.C. Cir.
1992).  Nonetheless, if the Board determines that unremedied ULPs 
contributed to the erosion of support for the union, the  employer may
commit an unfair labor practice by withdraw- ing its recognition of
the union. See, e.g., Lee Lumber &  Bldg. Material Corp. v. NLRB, 117
F.3d 1454, 1458-60 (D.C.  Cir. 1997) (per curiam) (examining whether
ULPs contributed  to lack of support for union).


The Board's traditional four-factor test for determining  whether there
is a causal connection between unremedied  ULPs and a petition for
decertification consists of the follow- ing elements: "(1) [t]he
length of time between the unfair  labor practices and the withdrawal
of recognition; (2) the  nature of the illegal acts, including the
possibility of their  detrimental or lasting effect on employees; (3)
any possible  tendency to cause employee disaffection from the union;
and  (4) the effect of the unlawful conduct on employee morale, 
organizational activities, and membership in the union."  Master Slack
Corp., 271 N.L.R.B. at 84. Vincent argues that  the explanation
offered by the Board does not satisfy the  Master Slack requirements.
We reject this contention.


The Board adequately explained its decision on the basis of  all four
Master Slack factors, in more than conclusory lan- guage. The Board
noted the close temporal link between the  unremedied ULPs and the
decertification petition. See Vin- cent Indus., 1999 WL 282397, at *3.
The Board additionally  explained that the unilateral implementation
of changes in  working conditions has the tendency to undermine
confidence  in the employees' chosen collective-bargaining agent. See
id.  The Board finally reasonably concluded that the discipline  and
termination of public supporters of the Union "convey to  employees
the notion that any support for the Union may  jeopardize their
employment." Id. The Board's conclusion  that Vincent's practices
contributed to the decertification  petition are reasonably justified
and supported by substantial  evidence. See NLRB v. Williams Enters.,
Inc., 50 F.3d 1280,  1288-89 (4th Cir. 1995) (upholding finding of
causation where  four months passed between company's anti-union
statements  and decertification petition); Columbia Portland Cement
Co.,  303 N.L.R.B. 880, 882 (1991), enf'd, 979 F.2d 460, 464-65 (6th 
Cir. 1992) (upholding Board's finding of causation where 
justification offered by Board was simply that the unremedied  ULPs
"are likely to have undermined the Union's authority  generally and
influenced [the Union's] employees to reject the  Union as their
bargaining representative") (internal quotation  marks omitted)


B. The Board's Remedies


The Board's remedies on behalf of the Union and the unit  employees who
were adversely affected by Vincent's ULPs  included a cease-and-desist
order, reinstatement and back  pay for the employees who were
unlawfully terminated, and  an affirmative bargaining order. The
Company challenges all  of the remedies imposed by the Board on the
grounds that  the employer did not commit any ULPs. As noted above, we
 reject this contention as meritless. The Company argues  further,
however, that even if the Board did not err in finding  the aforecited
ULPs, there was no basis for the Board to  issue an affirmative
bargaining order against Vincent. The  Company's argument on this


The Board approved the ALJ's recommended remedy of an  affirmative
bargaining order with little explanation. The  closest the ALJ came to
justifying the order was to observe  that the "serious and egregious
misconduct shown here[ ]  demonstrates a general disregard for
fundamental rights  guaranteed employees by Section 7 of the Act."
Vincent  Indus., 1999 WL 282397, at *15. This will not do. This court 
repeatedly has reminded the Board that an affirmative bar- gaining
order is an extreme remedy that must be justified by  a reasoned
analysis that includes an explicit balancing of  three considerations:
(1) the employees' s 7 rights; (2)  whether other purposes of the Act
override the rights of  employees to choose their bargaining
representatives; and (3)  whether alternative remedies are adequate to
remedy the  violations of the Act. See Skyline Distribs., 99 F.3d at
410.  There is no such reasoned analysis in the instant case.


Instead, the Board's counsel was forced to conjure up an  argument in
an effort to bolster the Board's unsupported  position. According to
counsel, the Board need not justify  the imposition of a bargaining
order in two types of cases:  where the employer has unlawfully
withdrawn recognition  from the Union; and, as a subset of the first
class, where  there are explicit Master Slack findings demonstrating a
 causal connection between unremedied ULPs and a with- drawal of
recognition. See Br. for NLRB at 47-55. Coun- sel's argument in
defense of this position was inspired and  thoughtful, albeit in vain.
The problem here is that counsel's  argument is nowhere to be found in
the orders under review,  so we cannot ascribe it to the Board. The
argument there- fore constitutes a post hoc rationalization, which
carries no  weight on review. See International Union of Petroleum & 
Indus. Workers v. NLRB, 980 F.2d 774, 781 (D.C. Cir. 1992).


The Board's stubborn refusal to accept this circuit's posi- tion on
affirmative bargaining orders is perplexing, for it  merely undermines
the Board's purported goal of protecting  workers against employer
violations of the Act. Board deci- sions, like those from other
administrative agencies, are  entitled to deference. However, once a
court has issued a  legal ruling on a disputed issue, the Board is
bound to follow 


the court's judgment unless and until it is reversed by the  Supreme
Court. The Board, no doubt, will plead innocence,  claiming that
circuit courts often take different positions on  certain legal
issues, so the Board is free to adopt a course  most to its liking
within a maze of disparate courts of appeals  judgments. In addition,
as counsel pointed out during oral  argument in this case, the Board
sometimes has no clear idea  where a petition for review will be
filed, so it cannot always  guess right in deciding what circuit law
to follow. This latter  point is a fair rebuttal, but it is
shortsighted in a case such as  the instant one. What is so troubling
about this case, and  others like it, is that the Board could easily
follow the law of  the D.C. Circuit--i.e., give a reasoned analysis to
support an  affirmative bargaining order--without ever transgressing
the  law of any other circuit. Some other circuits may not require  as
much as does the D.C. Circuit with respect to what is  required to
justify an affirmative bargaining order, but no  circuit will reject a
bargaining order if the Board justifies it  as this court requires.


What is ultimately dissatisfying about this familiar dance is  not a
sense that this court's institutional integrity is under- mined by the
Board's refusal to modify its behavior in re- sponse to operant
conditioning, but that those left in the lurch  are precisely those
who, in this case, sought protection from  the Board. As a result of
the Board's failure to justify the  imposition of an affirmative
bargaining order, relief for the  employees represented by the Union
will be that much fur- ther delayed. Three years passed between the
ALJ's deci- sion and the Board's decision upholding the ALJ. Another 
year has passed since the issuance of the Board decision here  on
review. We now remand to the Board for an undeter- mined amount of
time. As the Board well knows, in the  context of employee
representation and collective bargaining,  relief delayed under the
Act may be relief denied. This  makes little sense where, as here, the
Board can easily satisfy  the commands of this circuit's law without
running amok  because of a split in the law of the circuits.


The Board may persist in its stubbornness, but that will not  dissuade
this court from fulfilling its role on behalf of parties 


seeking judicial review. As we have said before when re- manding to the
Board to justify an affirmative bargaining  order, "[w]e persist not
out of pique but from a sense that it  is our duty to ensure that the
Board adheres to its statutory  mandate." Caterair Int'l v. NLRB, 22
F.3d 1114, 1123 (D.C.  Cir. 1994).


III. CONCLUSION


For the reasons articulated herein, we deny in part and  grant in part
the petition for review and we grant in part and  deny in part the
cross-application for enforcement. We re- mand the case to the Board
with instructions to justify the  imposition of an affirmative
bargaining order as required by  the law of this circuit or, in the
absence of such justification,  to vacate that portion of the