253 F.3d 720 (D.C. Cir. 2001)
Willamette Industries, Inc., Petitionerv.National Labor Relations Board, RespondentGraphic Communications Union Local 17-M, AFL-CIO, CLC, Intervenor
No. 00-1366
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 2001Decided June 19, 2001

On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board
Stanley C. Fickle argued the cause for petitioner.  With  him on the briefs were Peter A. Morse, Jr., Julie C. Sipe and  Richard H. Streeter.
Steven B. Goldstein, Attorney, National Labor Relations  Board, argued the cause for respondent.  With him on the  brief were Leonard R. Page, Acting General Counsel, John  H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Julie B. Broido, Senior Attorney.  Anne M. Lofaso, Attorney, and Howard E. Perlstein, Deputy Assistant General Counsel, entered  appearances.
James B. Coppess argued the cause for intervenor. With  him on the brief were Laurence Gold and William R. Groth.
Before:  Williams, Ginsburg and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge:


1
The National Labor Relations  Board determined that the refusal of Willamette Industries to  negotiate with the Graphic Communications Union Local  17-M after the Union lost a decertification election was an  unfair labor practice (ULP), in violation of   8(a)(1) and (5)  of the National Labor Relations Act.  Because the Board's  decision is inconsistent with the rule the Board purported to  apply, we grant the petition and remand the case to the  Board for further consideration.

I. Background

2
Willamette manufactures continuous business forms at several locations, only some of which are unionized.  See Willamette Indus., Inc., 331 NLRB No. 73, slip op. at 2 (2000)  ("Decision").  The Union, which represents workers at Willamette's Indianapolis plant, failed in 1997 to win a majority  of votes in a decertification election the Board held at the  request of an employee.  See id. at 2.  The Union immediately filed objections to the employer's conduct during the  election campaign, but before the Board hearing officer issued his report Willamette announced that it would no longer  negotiate with the Union because the outcome of the decertification election gave it a "good-faith doubt that the Union  represented a majority of the employees."  Id. at 3.


3
The Union's objection concerned two meetings that Willamette held during the decertification campaign in which Company officials spoke to the Indianapolis employees about the  availability of 401(k) plans at Willamette's non-union plants. Willamette and the Union disagree whether the Company  stated it would make the plans available only at non-union  plants;  such a statement would likely be regarded as a threat  or a promise, and therefore a ULP under the Act.  The  NLRB hearing officer who heard the Union's objections did  not reach a decision until after Willamette had notified the  Union that it would not bargain;  when he did rule, he  determined that the Company's statements constituted "objectionable conduct" sufficient to warrant setting aside the  election results and holding a new election.  Id. at 3 & n.1.


4
Willamette and the Union then signed a "Stipulated Election Agreement" in which Willamette agreed not to contest  the hearing officer's findings and the parties set an early date  for the rerun election.  Willamette contends, and the ALJ in  this case found, that the Company signed the agreement "in  an effort to expedite a rerun election."  Id. at 3.  The day  after the agreement was signed, however, the Union charged  Willamette with having violated the Act;  among the ULPs  alleged were the statements the Company allegedly made  during the decertification campaign regarding the 401(k)  plans and the Company's refusal to bargain with the Union  after the decertification election.  The Regional Director issued a complaint and simultaneously dismissed the decertification petition, without prejudice to its reinstatement after  the complaint was resolved.  The Union then renewed its  request to bargain and Willamette again refused.  Id. at 3.


5
The ALJ held that the Company had committed only one of  the alleged ULPs.  Asserting he was not bound by the  decision of the hearing officer in the prior proceeding, the  ALJ determined that Willamette made no illegal promises or  threats at the meetings where 401(k) plans were discussed. See Decision at 6-8.  The ALJ did hold, however, that  Willamette's refusal to bargain in the wake of the disputed  decertification election was a ULP because "an employer has  a statutory obligation to bargain with a union[ ] which ostensibly has lost a decertification election until the certification  results issue."  Id. at 8 (citing W.A. Krueger Co., 299 NLRB  914, 916 (1990)).  The ALJ recommended that Willamette be  required "[o]n request, [to] bargain in good faith with the  Union" and that the decertification proceedings "be reinstated, and that a rerun election be held."  Id. at 10-11.


6
The Board accepted all the ALJ's conclusions regarding the  alleged ULPs, holding that Willamette's only violation of the  Act was its refusal to bargain.  Although the Board noted  that in making that determination the ALJ had relied upon  W.A. Krueger, see Decision at 2 n.8, it had its own reason for  reaching the same result.  The Board first stated its longstanding general rule that an "employer may rebut the  presumption of [a union's] continued majority status by showing that ... the employer has a good-faith doubt concerning  the union's majority status."  Decision at 1.  The Board then  held, however, that when Willamette "voluntarily waived its  right to appeal" the hearing officer's determination that the  decertification election should have been set aside, it left the  result of that election "tainted by [its] own objectionable  conduct";  Willamette thus had no basis for a good-faith  doubt.  Id.  The Board therefore adopted the ALJ's proposed  order requiring Willamette to bargain with the Union.  It  omitted from the order, however, the ALJ's proposed paragraph providing for the decertification proceeding to be reopened and a rerun election held.  Decision at 2, 11.


7
Willamette petitions for review of both the Board's holding  that its refusal to bargain was a ULP and the Board's failure  to order a rerun of the decertification election.  The Union  intervenes on behalf of the Board.

II. Analysis

8
The Board recently ruled that an employer may "withdraw  recognition from an incumbent union only where the union  has actually lost the support of a majority of the bargaining  unit employees."  See Levitz Furniture Co. of the Pacific,  Inc., 333 NLRB No. 105, slip op. at 1 (2001).  Recognizing  that it was overruling a venerable line of cases, however, the Board said it would in "pending cases" apply its old rule,  under which an employer could withdraw its recognition of a  union if it had a "reasonable uncertainty of the union's  majority status."  Id.  This case was "pending" when Levitz  was decided, so the old " 'good-faith doubt' standard," id. at 1,  applies.


9
As the Supreme Court has interpreted that standard, an  employer may withdraw its recognition of a union if it has "a  genuine, reasonable uncertainty about whether [the union]  enjoy[s] the continuing support of a majority of union employees."  Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.  359, 367 (1998).  Willamette makes the straightforward point  that a union's failure to garner a majority of the votes cast in  a decertification election creates a reasonable uncertainty. To this the Board offers but one response:  that because  Willamette "voluntarily waived its right to appeal" the hearing officer's determination that it had engaged in objectionable conduct during the election campaign, "the election results  could not serve as a valid indicator of employee sentiment."* Decision at 1.


10
In holding that Willamette's waiver precludes it from relying upon the outcome of the election as a basis for good-faith  doubt, the Board misapplies its own standard. Even if Willamette's waiver can be construed as an acknowledgment that  "the results of the tally ... stood tainted," Decision at 1 -a  matter cast in some doubt by the ALJ's statement that  Willamette agreed to the waiver "in an effort to expedite a  rerun election," id. at 3 -this court has clearly held that  objectionable conduct during an election campaign does not  always carry such a taint.  Because "objectionable conduct" is  defined as any action by an employer sufficient merely to  upset the "laboratory conditions under which an election is required to be conducted," in many cases the conduct that is  deemed objectionable will not have created any taint, that is,  it will not have "significantly contribute[d] to [the union's]  loss of majority or to the factors upon which a doubt of such  majority is based."  St. Agnes Med. Ctr. v. NLRB, 871 F.2d  137, 146-47 (D.C. Cir. 1989).  The Board must therefore  consider whether the objectionable conduct in the particular  case before it significantly contributed to the employer's  good-faith doubt.  See id. at 147.  By relying exclusively upon  Willamette's waiver, the Board pretermitted that step;  we  must therefore remand the case to the Board for it to fill the  gap in its analysis.  It will then be for the Board to consider  in the first instance Willamette's argument that no objectionable conduct short of a ULP is a bar to an employer claiming  a good-faith doubt about a union's majority status based upon  the union's having lost a decertification election.  Cf. id. at  146-47 (delineating criteria for good-faith doubt where employer has committed ULPs).


11
Willamette also argues that the Board, by omitting from its  remedial order any reference to a rerun decertification election while retaining the requirement that Willamette "[o]n  request, bargain in good faith," Decision at 10, has de facto  imposed upon Willamette a so-called Gissel bargaining order,  see NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 614  (1969), without even suggesting that this case meets the  criteria for such relief, see, e.g., Garvey Marine, Inc. v.  NLRB, 245 F.3d 819, 826-27 (D.C. Cir. 2001) (describing  review of Gissel orders).  The Board denies that it has  imposed a Gissel order, allows that its omission of any  reference to a rerun election is without prejudice to the  possibility of holding another election, and justifies its omission of such a reference on the ground that the "decertification case was not a part of the instant unfair labor practice  proceedings and therefore [wa]s not before [the Board] for  resolution."  Decision at 1 n.2.


12
We doubt whether we may consider Willamette's argument  because the Company "could have objected to [this aspect of]  the Board's decision in a petition for reconsideration or  rehearing" but did not, and its "failure to do so prevents consideration by the courts."  Woelke & Romero Framing,  Inc. v. NLRB, 456 U.S. 645, 666 (1982);  see 29 U.S.C.   160(e).  Willamette claims that it excepted to the decision  of the ALJ on the ground that it cannot be required to  bargain unless the Union wins a rerun election;  but this is a  different claim than the one it makes here, namely, that the  Board's order, by a combination of what it does and what it  does not say, imposes such a requirement.  Indeed, Willamette could not have made this argument in excepting to the  decision of the ALJ because the issue arose only when the  Board itself departed from the order recommended by the  ALJ.  See Decision at 1 n.2.  In any event, we would not  reach this argument even if we had jurisdiction to do so,  because the Board may well on remand issue an order to  which the present objection does not appertain.  See LCF,  Inc. v. NLRB, 129 F.3d 1276, 1283 (D.C. Cir. 1997) (court  "need not reach ... challenge to the remedy" when Board  order on liability not based upon substantial evidence).

III. Conclusion

13
For the foregoing reasons, we deny enforcement of the  Board's order.  We remand this case to the agency for it to  consider whether Willamette's objectionable conduct so contaminated the decertification election as to leave the Company without a good-faith basis for doubting the Union's majority support.


14
So ordered.



Notes:


*
 Because the Board does not rely upon it, Decision at 1, 2 n.8,  we do not consider the argument of the Union (which the ALJ  adopted) that, even under the good-faith doubt standard an employer must continue to negotiate with a union "until the certification [of  election] results [formally] issue[s]."  Id. at 8 (citing W.A. Krueger,  299 NLRB at 916).


