Vincent Industrial Plastics, Inc. v. National Labor Relations Board

                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

       Argued February 23, 2000    Decided April 14, 2000 

                           No. 99-1202

               Vincent Industrial Plastics, Inc., 
                            Petitioner

                                v.

                 National Labor Relations Board, 
                            Respondent

        On Petition for Review and Cross-Application for 
                 Enforcement of an Order of the 
                  National Labor Relations Board

     Ronald I. Tisch argued the cause for petitioner.  With him 
on the briefs were Paul J. Kennedy and Alan D. Cohn.

     Anne Marie Lofaso, Attorney, National Labor Relations 
Board, argued the cause for respondent.  With her on the 
brief were Leonard R. Page, General Counsel, Linda R. Sher, 
Associate General Counsel, Aileen A. Armstrong, Deputy 

Associate General Counsel, and David Habenstreit, Supervi-
sory Attorney.

     Before:  Edwards, Chief Judge, Tatel and Garland, Circuit 
Judges.

     Opinion for the Court filed by Chief Judge Edwards.

     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 protect.

                          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 to Mr. Early.

     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 employees.

     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 8(a)(1) and (3) of the Act.

     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 bargaining order.

     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 its order.

                           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 
are meritless.

     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 inference of 

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 N.L.R.B. at 

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) (alteration in original).

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 point is well taken.

     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 remedy.