216 F.3d 92 (D.C. Cir. 2000)
Traction Wholesale Center Co., Inc.,Petitionerv.National Labor Relations Board, Respondent
No. 99-1336
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2000Decided June 30, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Terrence J. Nolan argued the cause for petitioner.  With  him on the briefs was Christopher H. Mills.
Rachel I. Gartner, Attorney, National Labor Relations  Board, argued the cause for respondent.  On the brief were  Leonard R. Page, General Counsel, Linda Sher, Associate  General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Peter Winkler, Supervisory Attorney, and  Jill A. Griffin, Attorney.
Before:  Randolph, Tatel and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Concurring statement filed by Circuit Judge Randolph.
Tatel, Circuit Judge:


1
Petitioner challenges the National  Labor Relations Board's determination that it committed  unfair labor practices in response to a union organizing  campaign. Petitioner also challenges the Board's imposition  of a bargaining order.  Because we conclude that the Board's  unfair labor practice determinations are supported by substantial evidence and that the Board adequately explained the  need for the bargaining order, we deny the petition for review  of those issues and grant the Board's cross-petition for enforcement.


2
* Petitioner Traction Wholesale Center Company, Inc., a  wholesale tire distributor, buys tires and wheels from manufacturers and larger distributors, reselling them to tire retailers and gas stations.  Operating out of four warehouses--two  in New Jersey and one each in Delaware and Philadelphia-Traction employed approximately thirty-six people at the time  of the events that gave rise to this case.  Traction Wholesale  Ctr. Co., Inc., 328 NLRB No. 148, 1999 WL 1186753 at *10  (July 28, 1999).  The unfair labor practices at issue occurred  when Traction learned that a union had garnered support  from a majority of its employees.  As determined by an  administrative law judge, the relevant facts are as follows.


3
In March 1997, several Traction employees approached  Charles Schiavone, one of the company's Philadelphia drivers,  "seeking guidance on how to form a union."  Id. at *10.  A  seven-year Traction veteran, Schiavone contacted and met  with the Teamsters Union, Local No. 115, about organizing  warehouse employees and drivers working in the company's four warehouses.  At the end of that meeting, Schiavone  signed a union authorization card designating the union as his  "chosen representative in all matters pertaining to wages,  hours, and working conditions."  Id.  He also took blank  authorization cards to distribute to Traction drivers and  warehousemen.  During the next month, Schiavone kept the  union apprized of his organizing efforts.  By April 14, the  union had received signed authorization cards from eleven of  Traction's twenty drivers and warehousemen.  Id. at *11.


4
Armed with the eleven authorization cards, two union representatives went to the Philadelphia warehouse on April 15  to ask Traction to recognize the union.  There they met with  the on-site manager, Scott Adams, and showed him the  signed authorization cards.  Id. at *11.  When Adams told  the union representatives that he had no authority to recognize the union, they asked him to deliver a letter to Traction's  owners, Joseph O'Donnell and Jeffrey Cohen, in which the  union demanded recognition.  Id. at *12.


5
Immediately after the union representatives left, Adams  summoned Schiavone to his office, telling him that he was  upset that Schiavone had not told him about the union  organizing effort and demanding to know who had started it. Id. at *15, 22.  Adams warned that Traction would either  close the warehouse or subcontract for delivery services if the  union campaign succeeded.  Id. at *15.  If Schiavone "wanted  to be a union thug like other union supporters who destroy  other people's property," Adams said, "then go right on  ahead."  Adams then told Schiavone to "get the fuck out of  here."  Id.  When Schiavone called Adams the next morning  asking whether he should return to work, Adams told him  that he had been fired.  Id.


6
On the same day that the union representatives met with  Adams and showed him the eleven signed cards, Adams  asked Kevin Tryon, another Philadelphia driver, whether he  had signed an authorization card.  Id. at *16, 23.  When  Tryon, who in fact had signed a card, answered no, Adams  revealed that he had seen Tryon's signature on a card.  Id. at  *16.  Later that evening, Adams told Tryon that Traction would "rather pay niggers $5.00 an hour" than work with the  union.  Id.  He also told Tryon that Traction was "not afraid  to close down, if that's what it takes."  Id.


7
That same day, Adams announced two policy changes for  the Philadelphia warehouse. First, employees would have to  begin "punching out" and "punching in" on the time clock to  document that they took no more than thirty minutes for  lunch.  Id. at *16-17.  Second, employees could no longer use  company vans after work for personal reasons.  Id.  Until  this announcement, Adams had allowed such use even though  company policy prohibited it.


8
The union then filed a representation petition, and the  Board ordered an election.  During the two months before  the election, Traction's two owners and Adams conducted two  meetings with the Philadelphia drivers and warehousemen  that led to additional unfair labor practice charges.  At the  first meeting, on April 23, Adams told Tryon that although he  was "due for a raise, he would not be getting it...."  Id. at  *18.  Also during that meeting, Cohen (one of the owners)  asked the employees what Traction had done to make them  bring in a union, telling them not only that Traction could  offer them more than the union, but that if they had any  personal or job-related problems, Traction could help.  Id. at  *18, 24.  At a second meeting, this one on June 3, Cohen told  the employees that Traction would "give them more than the  union" and that once they "got past this thing, we can move  on to something bigger and better."  Id. at *24.


9
The union lost the election.  Sixteen employees voted  against the union, two voted for it, and two ballots were  contested.  Id. at *19.  Following an evidentiary hearing, an  administrative law judge found that Traction had committed a  series of unfair labor practices in violation of sections 8(a)(1)  and (3) of the National Labor Relations Act, 29 U.S.C.  §§ 158(a)(1), (a)(3), by firing Schiavone, denying Tryon's  raise, and changing its policies with respect to personal use of  vans and clocking in and out for lunch.  Id. at *37.  The ALJ  also concluded that Adams' comments to both Schiavone and  Tryon amounted to unfair labor practices in violation of section 8(a)(1), as did Cohen's comments to Traction's Philadelphia employees.  Id.  The ALJ recommended that the  Board invalidate the election and issue a bargaining order.Id. at * 38.


10
The Board agreed that Traction had committed the enumerated unfair labor practices and that a bargaining order  was appropriate.  Id. at *1.  The Board disagreed with the  ALJ on just one issue.  Despite concluding that Traction had  committed an unfair labor practice by changing its van policy,  the ALJ recommended no remedy because Traction had  offered evidence that its insurance policy would not cover  personal use of company vans.  Id. at *38 n.30.  Without  explanation, the Board ordered Traction to rescind its personal use prohibition.  Id. at *1 n.2.  Member Brame dissented  on two grounds:  he thought that Cohen's remarks at the  April 23 and June 3 meetings did not amount to unfair labor  practices;  he also thought the bargaining order inappropriate  because, in his view, the union had never attained majority  support.  Id. at *5-6.


11
In its petition for review, Traction argues that the unfair  labor practice charges stemming from the Schiavone firing,  the changed van policy, the denial of Tryon's raise, and  Cohen's comments are not supported by substantial evidence  in the record.  Traction also challenges two of the Board's  remedies:  the reinstatement of its personal van use policy  and the bargaining order.  With respect to the latter, Traction argues that the Board failed to satisfy this circuit's strict  standards for imposing bargaining orders.  See, e.g., Avecor,  Inc. v. NLRB, 931 F.2d 924, 934-39 (D.C. Cir. 1990).  The  Board cross-petitions for enforcement.

II

12
Section 8(a)(1) of the NLRA makes it an unfair labor  practice for employers "to interfere with, restrain, or coerce  employees" in the exercise of their rights "to selforganization, to form, join, or assist labor organizations, to  bargain collectively through representatives of their own  choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...."  29 U.S.C. §§ 158(a)(1), 157.  Section 8(a)(3)  makes it an unfair labor practice for employers "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."  Id. § 158(a)(3).  To establish that an employer's conduct (in this case, Schiavone's  firing, the change in van policy, and the denial of Tryon's  raise) violates section 8(a)(3), the general counsel must first  show that the "protected activity was a motivating factor in  the adverse employment decision."  Frazier Indus. Co., Inc.  v. NLRB, 213 F.3d 750 (D.C. Cir. 2000) (internal  quotation marks omitted).  If this prima facie showing is  made, the burden shifts to the employer to demonstrate that  "it would have made the adverse decision even had the  employee not engaged in protected activity."  Vincent Ind.  Plastics, Inc. v. NLRB, 209 F.3d 727, 735 (D.C. Cir. 2000)  (citing Wright Line, Inc., 251 N.L.R.B. 1083, 1089 (1980)).In determining whether an employer had a 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.' "  Id. (quoting Power Inc. v. NLRB, 40 F.3d  409, 418 (D.C. Cir.1994)).


13
Our review of Board unfair labor practice determinations is  quite narrow.  "The Board's findings of fact, if supported by  substantial evidence, are conclusive."  Avecor, 931 F.3d at  928. In reviewing the Board's conclusions, "[w]e ask not  whether [petitioner's] view of the facts supports its version of  what happened, but rather whether the Board's interpretation of the facts is reasonably defensible."  Harter Tomato  Prods. Co. v. NLRB, 133 F.3d 934, 938 (D.C. Cir. 1998)  (internal quotation marks omitted).  Moreover, "we must  accept the ALJ's credibility determinations, as adopted by the  Board, unless they are patently insupportable."  Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1246 (D.C. Cir 1994).  "We  are even more deferential when reviewing the Board's conclusions regarding discriminatory motive, because most evidence  of motive is circumstantial."  Vincent Plastics, 209 F.3d at 734.  Bearing this deference in mind, we turn to Traction's  four challenges to the Board's unfair labor practice determinations.

Schiavone Firing

14
This record contains more than substantial evidence to  support the Board's conclusion that anti-union animus motivated the Schiavone firing.  Adams fired Schiavone immediately after learning not only that the union had obtained  eleven authorization cards, but that Schiavone had signed  one.  Equally indicative of anti-union animus, the ALJ concluded that Adams violated section 8(a)(1) by telling Tryon  and Schiavone that the company would shut down before  working with a union (a conclusion that Traction does not  contest).  See Vincent Plastics, 209 F.3d at 735 ("Evidence  that an employer has violated section 8(a)(1) of the Act can  support an inference of anti-union animus.").


15
Challenging the Board's determination that the general  counsel had made out a prima facie case of anti-union animus,  Traction maintains that Adams decided to fire Schiavone on  April 11, four days before learning that employees had authorized the union.  Traction claims that it decided to fire  Schiavone because of two incidents having nothing at all to do  with the union.  The first involved Schiavone's alleged misuse  of a company policy that entitled employees to discounts on  tire purchases.  When Schiavone bought tires in early April,  he took not just the employee discount to which he was  entitled, but also a discount available only to cash-paying  customers.  The latter discount reduced the price of the tires  by an additional $6.59.  The other incident involved graffiti  that Adams found on the warehouse wall that said "Chuck"  and "Chuck is cool."  Schiavone's first name is Charles.


16
Adams testified that on April 11, after discovering that  Schiavone had taken the extra discount and after seeing the  graffiti, he told owner O'Donnell that he planned to fire  Schiavone.  Adams further testified that he and O'Donnell  had agreed to fire Schiavone on Monday, April 14, but  because one employee called in sick and another was on vacation on that day, he postponed firing Schiavone until the  next day.  O'Donnell's testimony confirmed the basic elements of Adams' story.  Relying on Adams' and O'Donnell's  testimony, Traction argues that Schiavone's firing could not  have been motivated by discriminatory animus because on  April 11--the day it decided to fire him--it was unaware of  the union organizing campaign.


17
Traction's argument suffers from a fatal flaw:  The ALJ  credited neither Adams' nor O'Donnell's testimony.  "It was  patently obvious," the ALJ found, "that Adams could not  keep his story straight on several matters, and that much, if  not all, of his testimony was simply fabricated to suit [Traction's] case."  Traction, 1999 WL 1186753 at *19.  Calling  Adams' testimony "self-contradictory and filled with inconsistencies," the ALJ rejected it as "simply not credible."  Id.O'Donnell's testimony, the ALJ found, was "equally unpersuasive."  Id. at *20.  Traction has offered nothing to suggest  that the ALJ's credibility determinations are "patently insupportable."  See Exxel/Atmos, 28 F.3d at 1246.  Absent  O'Donnell's and Adams' testimony, all evidence in the record,  including the timing of the firing and the section 8(a)(1)  violations, points to anti-union animus.


18
A prima facie case of discriminatory animus having been  established, Traction could have avoided an unfair labor practice finding only by demonstrating that it would have fired  Schiavone regardless of his union activities.  Traction failed  to meet this burden.  The Board concluded that neither the  discount policy error nor the graffiti otherwise would have led  to Schiavone's firing.  Substantial evidence supports the  Board's conclusion.  O'Donnell testified not only that employees often made price code mistakes, but also that when they  inadvertently took extra discounts, the company simply required repayment of the discounted amount.  Traction, 1999  WL 1186753 at *27.  Moreover, from his "observation of  [Schiavone's] demeanor on the witness stand and throughout  the hearing," the ALJ found that Schiavone was not "someone who would risk losing his job of 7 years for a meager  $6.59."  Id.  With respect to Traction's other explanation for  firing Schiavone, the ALJ credited Schiavone's testimony that the graffiti had been on the wall for close to a month before  Traction fired him.  Id.  Disbelieving both Adams and  O'Donnell and believing Schiavone, the ALJ thought it  "strain[ed] credulity to believe that Adams, having declined to  take action against Schiavone when he first observed the  writing sometime in March, would decide one month later to  discharge Schiavone, in part, for such activity."  Id.


19
To be sure, the ALJ could have chosen to credit record  evidence supporting Traction's version of events.  The only  question before us, however, is whether substantial evidence  supports the Board's view of the disputed events, not Traction's.  See Frazier, 213 F.3d at 756 (affirming Board's unfair  labor practice finding because "[a]lthough [the employer's]  interpretation of evidence may be reasonable, the Board's  finding to the contrary was supported by substantial evidence").  Because we find no basis for questioning the ALJ's  credibility determinations, we affirm the Board's conclusion  that the Schiavone firing amounted to an unfair labor practice.

Personal Use of Company Vans

20
Challenging the Board's determination that it violated sections 8(a)(3) and (1) by changing its van policy in retaliation  for its employees' organizing efforts, Traction argues (as it  did with respect to the Schiavone firing) that it could not have  been motivated by anti-union animus.  When O'Donnell told  Adams to start enforcing the company policy prohibiting  personal use of vans (on April 11), the company says, it did  not know about the union's organizing efforts.  According to  Adams, O'Donnell told him to start enforcing the personal use  prohibition because the company had received a summons for  an unpaid New York parking ticket on one of the vans.Traction also offered a letter from its insurance company  stating that its policy does not cover personal use of company  vans.  From this, Traction argues that substantial evidence  does not support the Board's unfair labor practice determination.


21
Again, Traction misunderstands the substantial evidence  standard.  Having discredited both Adams' and O'Donnell's  testimony, the ALJ found that they had not discussed the van  policy on April 11.  Traction, 1999 WL 1186753 at *31."[T]he more credible scenario, and the one I accept as  true,"--and the one to which we owe deference--"is that  Adams never received any such instruction from O'Donnell in  the first place, and imposed the ban only after learning that  his Philadelphia store employees were supporting the Union."Id.  The ALJ also found that the insurance company letter  could not possibly have motivated Adams' April 15 van policy  announcement because the letter was dated May 14.  Id. at  *31 n.27.  Absent Traction's proffered explanations, the only  record evidence shows that employees were told on April 15,  the same day Adams spoke with the union representatives,  that he would start enforcing the van policy.  Given this  timing, together with Adams' threats to close the company if  the union prevailed, the ALJ's conclusion that the enforcement of the van policy was motivated by discriminatory  animus finds more than adequate support in the record.


22
Insisting that its van policy was not in fact motivated by  anti-union animus, Traction maintains that after April 15,  Adams made exceptions for certain employees, including  Tryon, a known union supporter.  Again, while such evidence  may well support Traction's version of the events, the critical  point is that substantial evidence supports the ALJ's view of  the evidence.  See Frazier, 213 F.3d at 756.  We therefore find  no deficiency in the Board's conclusion that the change in van  policy constituted an unfair labor practice.


23
The Board's remedy is a different matter.  The ALJ  recognized that rescission was the ordinary remedy for this  type of unfair labor practice, but he thought it "improper" to  order Traction to rescind the unilateral change, i.e., to order  it to reinstate its prior practice of allowing employees personal use of vans, because it "appears to be the case" that "such  practice is prohibited by its insurance policy."  Traction, 1999  WL 1186753 at *38 n.30.  The Board disagreed.  Stating only  that "rescission ... is the customary remedy for the violations found in this case," it rejected the ALJ's recommendation and directed Traction to rescind "the unilateral changes  in ...  the van policy."  Id. at 1 n.2.  Of course, the Board  "is free to substitute its judgment for the ALJ's," Local 702,  Int'l B'hood of Elec. Workers, AFL-CIO v. NLRB, 2000 WL  520950 at *2 (D.C. Cir. 2000), but "when the Board reverses  an ALJ it 'must make clear the basis of its disagreement.' "Mathews Readymix, Inc. v. NLRB, 165 F.3d 74, 77 (D.C. Cir.  1999) (quoting United Food & Commercial Workers Int'l  Union, Local 152 v. NLRB, 768 F.2d 1463, 1470 (D.C.Cir. 1985).  See also Chicago Local No. 458-3M v. NLRB, 206  F.3d. 22, 29 (D.C. Cir. 2000) ("In order for the court properly  to review the Board's decision, it 'must be able to discern the  rationale' underlying the Board's conclusions.") (quoting Oil,  Chemical & Atomic Workers Int'l Union v. NLRB, 46 F.3d  82, 90 (D.C.Cir.1995)).  Because the Board has failed to  explain, in either its decision or its brief, why it disagreed  with the ALJ that the insurance policy made rescission  inappropriate, we grant the petition for review with respect to  this issue and remand to the Board.

Tryon Raise

24
In testimony credited by the ALJ, Tryon said that when he  began working for Traction in early March, Adams told him  that he would probably get a raise within thirty to sixty days.Tryon testified that at the April 23 meeting, Adams said:"You're due for your raise but now I can't give it to you  because of the union."  Adams denied promising Tryon a  raise, explaining that when Tryon requested one, he refused  because he thought it would be "improper" to give Tryon any  benefits during the union organizing campaign.  Traction,  1999 WL 1186753 at *29.


25
Again crediting Tryon's testimony over Adams', the ALJ  found Adams' denial of the raise to have been motivated by  anti-union animus.  Id. at *28-29.  As the ALJ concluded,  because Adams had promised Tryon a raise, Adams was  obligated to act as he would have had no organizing campaign  been underway, i.e., to give him the raise.  See Perdue  Farms, Inc., Cookin' Good Div. v. NLRB, 144 F.3d 830, 836 (D.C. Cir. 1998) ("[A]s a general rule, an employer's legal  duty in deciding whether to grant benefits while a representation proceeding is pending is to decide that question precisely  as it would if the union were not on the scene.").


26
Traction argues that even if Adams had promised Tryon a  raise within thirty to sixty days, because the denial of the  raise had not occured until after sixty days, Tryon was no  longer entitled to it, leaving Adams' explanation--that he  denied the raise because of his concern that it might be  viewed as an unlawful benefit--as the only credible evidence  in the record.  To accept this argument, we would have to  infer from the fact that Tryon was told that he was entitled to  a raise within thirty to sixty days that he was not entitled to  the raise unless he asked for it before the sixtieth day.  Not  only do we think this rather unlikely, but more important, the  ALJ chose not to draw this inference.

Cohen Statements

27
Traction begins its challenge to the Board's determination  that Cohen committed unfair labor practices at the employee  meetings on April 23 and June 3 by claiming that substantial  evidence does not demonstrate that Cohen even made the  statements.  This argument fails for the same reason that  Traction's other substantial evidence challenges fail:  the ALJ  credited the General Counsel's witnesses and reached a different conclusion, a conclusion supported by substantial evidence.  Not only did Tryon testify that Cohen made the  statements, but Cohen never directly contradicted Tryon.Cohen did not testify at all about the June 3 meeting, and  with respect to the April 23 meeting, "while generally denying making any unlawful remarks, [he] admitted to recalling  'absolutely nothing' of what he or O'Donnell may have said."Traction, 1999 WL 1186753 at *24.


28
Traction next argues that even if Cohen made the April 23  statements, they were not unlawful.  (Traction does not appear to challenge the ALJ's ULP determination with respect  to Cohen's June 3 comments).  Tryon testified about Cohen's  statements at the April 23 meeting as follows:  "He just stated that if there was ever a problem, ... whether it be  personal or job-wise, Traction was always there to help....Somebody from management or through the company was  always willing to help or lend a hand."  According to Tryon,  Cohen also asked the employees "what it was that the company did wrong ... to bring somebody from the union into the  company," and he told them that "Traction would be able to  offer more than" the union.


29
Traction does not challenge the standard the Board uses to  determine whether an employer's solicitation of grievances  constitutes an unfair labor practice: Soliciting grievances is  not in itself an unfair labor practice, but implicit or explicit  promises to correct grievances may violate section 8(a)(1)  because "the combined program of inquiry and correction"  suggests that "union representation [is] unnecessary."  Reliance Electric Co., 191 NLRB 44, 46 (1971), enf'd, 457 F.2d 503  (6th Cir. 1972).  An employer who has not previously solicited  grievances but who begins to do so in the midst of a union  campaign creates a "compelling inference" that the employer  is "implicitly promising" to correct the problems.  Id.  The  ALJ found, and the Board agreed, that neither Traction nor  Cohen had any past practice of soliciting grievances and that  there was a "compelling inference" that Cohen was implicitly  promising to correct any problems, a promise that was "clearly coercive and designed to show that [management] alone  had the wherewithal to address and resolve employee problems."  Traction, 1999 WL 1186753 at *1-2, 25.


30
Relying on Member Brame's dissent, Traction argues that  it made no implied promise to correct grievances because  "Cohen's alleged statement merely reflects his view of Traction's past practice with respect to its treatment of employees  and cannot reasonably be construed as a promise to take any  particular action in the future."  Because Cohen's statements  were framed in the past tense, Member Brame asserted,  there is no "basis from which it can be inferred 'that the  grievances will be remedied and [no] circumstances giving  rise to the inference that the remedy will only be provided if  the union loses the election.' "  Traction, 1999 WL 1186753 at  *6.


31
No doubt Member Brame's interpretation--that Cohen's  statements referred only to Traction's past practice--is plausible.  But the opposite interpretation, the one drawn by the  ALJ and the Board, is equally plausible, and it is to the  Board, not the dissenter, that we owe deference.  According  to both the Board and the ALJ, Cohen was "plainly sending  the message that ... [Traction] was now (and would continue  to be) willing to 'lend a hand or help' with any problems  employees might have."  Id. at *2.  Moreover, because it is  not at all clear whether Tryon was quoting Cohen or paraphrasing what Cohen had said--"He just stated that if there  was ever a problem, ... Traction was always there to help"-we defer to the interpretation of the ALJ who heard the  testimony and found that "at the April 23 meeting Cohen ...  assured [employees] that if they had any personal or jobrelated problem, [Traction's] management team was there to  help them."  Traction, 1999 WL 1186753 at *24.  We therefore think the Board had sufficient basis for inferring that  Cohen's statements represented an implicit promise to correct grievances and, by extension, coercion in violation of  section 8(a)(1).  See Avecor, 931 F.2d at 931 ("We recognize  the Board's competence in the first instance to judge the  impact of utterances made in the context of the employeremployee relationship.") (internal quotation marks omitted).

III

32
This brings us to the heart of this case--Traction's challenge to the bargaining order.  Our starting point is the  Supreme Court's decision in NLRB v. Gissel Packing Co.,  Inc., 395 U.S. 575 (1969).  "[W]here an employer has committed ... unfair labor practices [in addition to its refusal to  bargain] which have made the holding of a fair election  unlikely or which have in fact undermined a union's majority  and caused an election to be set aside.... [the Board] has the  authority to issue a bargaining order....  [T]he Board has  the same authority even where it is clear that the union,  which once had possession of [authorization] cards from a  majority of the employees, represents only a minority when  the bargaining order is entered."  Id. at 610.  Bargaining orders are sometimes necessary, the Court explained, because  "[i]f an employer has succeeded in undermining a union's  strength and destroying the laboratory conditions necessary  for a fair election, he may see no need to violate a cease-anddesist order by further unlawful activity.  The damage will  have been done...."  Id. at 612.


33
Because bargaining orders can deprive employees of their  section 7 right to choose their representative, this court has  carefully delineated the circumstances under which the Board  may issue such orders.  Absent "outrageous and pervasive  ULP's," the Board may issue a bargaining order only if it has  substantial evidence that (1) "the Union, at some time, ...had majority support within the bargaining unit";  (2) "the  employer's unfair practices ... had the tendency to undermine majority strength and impede the election process";and (3) "the Board [has] determine[d] that the possibility of  erasing the effects of past practices and of ensuring a fair  rerun election by the use of traditional remedies is slight and  that employee sentiment once expressed in favor of the Union  would be better protected by a bargaining order."  Avecor,  931 F.2d at 934.  We also require the Board "to explicitly  balance" several factors to determine whether the need for a  bargaining order outweighs employees' section 7 rights to a  representation election.  Vincent Plastics, 209 F.3d at 734.


34
One additional principle guides our review of the Board's  bargaining order.  "In fashioning its remedies ... the Board  draws on a fund of knowledge and expertise all its own, and  its choice of remedy must therefore be given special respect  by reviewing courts."  Gissel Packing, 395 U.S. at 612 n.32."Our essential task as a reviewing court is to assure ourselves  that the Board 'has considered the factors which are relevant  to its choice of remedy, selected a course that is remedial  rather than punitive, and chosen a remedy which can fairly be  said to effectuate the purposes of the Act.' "  Caterair Int'l v.  NLRB, 22 F.3d 1114, 1120 (D.C. Cir. 1994) (quoting Peoples  Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C. Cir. 1980)).


35
Traction argues that the bargaining order was not justified  because (1) the union never had majority support, (2) there is not substantial evidence to support a bargaining order, (3) the  Board failed adequately to explain the need for the bargaining order, and (4) the Board failed to consider the effect of  employee turnover.  We consider each argument in turn.

Majority Support

36
The Board found that a majority of the bargaining unit  supported the union prior to the election because eleven of  the twenty employees in the unit had signed cards designating the union as their "chosen representative in all matters  pertaining to wages, hours and working conditions."  Claiming that the Board should not have counted two of the eleven  authorization cards, Traction argues that the union never  enjoyed majority support.


37
One of the disputed cards was Anthony Hess's.  In support  of its claim that this card should not have been counted,  Traction points to Hess's testimony that he had not read the  card before signing it, that he had not understood that by  signing he was authorizing the union, and that he had been  told that the only effect of signing would be that the union  could hold an election.  The ALJ, however, discredited this  testimony, relying instead on Hess's earlier affidavit in which  he said that he had in fact read the card before signing. Traction, 1999 WL 1186753 at *33.  Finding that Hess had  both read and understood the card, the ALJ counted it. Because Traction has offered nothing to suggest that the  ALJ's credibility determination is "patently insupportable,"  we have no basis for questioning his conclusion.  See  Exxel/Atmos, Inc. v. NLRB, 28 F.3d at 1246.


38
The other disputed card was James Michener's.  Michener  never testified, nor did any witness testify to having seen him  sign the card.  The ALJ authenticated the card by comparing  the signature on it with Michener's signatures on two forms  in Traction's personnel files:  his employment application and  a signed copy of the company's work rules.  Traction, 1999  WL 1186753 at *33-34.  Agreeing with the ALJ that the card  was authentic, the Board not only examined the two documents itself, but also compared the signature on the card to Michener's W-4 federal income tax withholding form.  Id. at  *2-3.


39
Not contesting the authenticity of the three documents on  which the ALJ and the Board relied, Traction argues that the  signatures on those documents have never been properly  authenticated.  It relies on Federal Rule of Evidence  901(b)(3), which it says requires the Board to compare the  signature on a card to an authenticated signature, not just to  a signature on an authentic document.  Rule 901 provides:


40
(a) General provision.  The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims;


41
(b) Illustrations.  By way of illustration only, and not byway of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:


42
* * *


43
(3) ... Comparison by the trier of fact or by expert witness with specimens which have been authenticated.


44
We do not share Traction's interpretation of Rule 901.  Not  only is subparagraph (3) "by way of illustration only," but  Rule 901 "is satisfied by evidence sufficient to support a  finding that the matter in question is what its proponent  claims."  Rule 901(a).  Surely evidence that the signed documents came from Traction's business files and that the company relied on one of them to hire Michener and another to  withhold federal income taxes is "sufficient to support a  finding" that the signature appearing on them--James P.  Michener--is in fact Michener's.  See Weinstein's Federal  Evidence § 901.05[2][b] at 901-26 (listing business records as  an illustration of a method for authenticating handwriting  specimens).  For decades, moreover, the Board has treated  employee documents from an employer's personnel files as  genuine specimens for purposes of authenticating signatures on authorization cards.  See, e.g., Aero Corp., 149 NLRB  1283, 1287 (1964), enf'd 363 F.2d 702 (D.C. Cir. 1966);  Heck's,  Inc., 166 NLRB 186 n.1 (1967).


45
Nothing in Be-Lo Stores v. NLRB, 126 F.3d 268 (4th Cir.  1997), on which Traction relies, persuades us otherwise.  In  that case, the Fourth Circuit took the Board to task for  counting "highly questionable Union authorization cards,"  including thirteen cards "based upon [the ALJ's] comparison  of the signatures on the cards with the signatures on the  respective employees' W-4 forms."  Id. at 279.  But because  the court made this statement only after it had concluded that  a bargaining order was not warranted and because it indicated that the authorization card issue "only contribute[s] to our  concern that the Union's majority status was one of agency  construct, rather than grassroots support," id. at 280, we view  the statement as dictum.  In any event, to the extent that BeLo suggests that Rule 901 precludes authenticating signatures by comparing them to signatures on authentic business  records including W-4 forms, we disagree and find that the  Board, consistent with long-standing policy, satisfied Rule 901  by comparing the signature on the challenged authorization  card with Michener's signature on the three authentic employment forms.

Substantial Evidence

46
Traction's second challenge to the bargaining order--that it  is not supported by substantial evidence in the record-requires little discussion, for the Board's order easily satisfies  the standards we set forth in Skyline Distributors, Inc. v.  NLRB, 99 F.3d 403, 410-11 (D.C. Cir. 1996).  There, we  summarized the factors justifying a bargaining order as follows:


47
"First, an unfair labor practice that is viewed as 'deliber-ate' or 'calculated' is more likely to lead to a bargaining order than one that is not.  Second, much turns on the significance of the interest being endangered.  If the employer's statements or acts can be characterized as threatening either a significant economic interest, such as retention of jobs, or a fundamental legal right, it ismore likely to lead to a bargaining order.  Third, acts of reprisal, particularly discharges, are considered to beextremely effective in swaying votes and very difficult tore medy.  Not only is there a great deal of language tothis effect in Board opinions, but also the coincidence of section 8(a)(3) violations and bargaining orders is nota-ble.  Fourth, promises to correct the grievance that led to union organization are also considered particularly effective.  Finally, and most significantly, the vast major-ity of bargaining order cases involve a series of unfair labor practices rather than a single act of illegality."


48
Skyline, 99 F.3d at 411 (quoting Julius G. Getman & Bretrand B. Pogrebin, Labor Relations:  The Basic Processes, Law  And Practice 76 (1988) (footnotes omitted)).


49
Beginning with the first factor, we have no doubt that  Traction's unfair labor practices were " 'deliberate' or 'calculated.' "  The ALJ found that Traction's response to the union  organizing drive, particularly Adams' interrogation of Tryon  and Schiavone and Adams' threat that Traction would "close  down, if that's what it takes," were "clearly designed to nip  the Union's organizational drive in the bud."  Traction, 1999  WL 1186753 at *21, 35.  Adams' comments, moreover, threatened "a significant economic interest," indeed perhaps the  employees' most significant economic interest--"retention of  jobs."  (Factor 2).  Not only did Traction threaten to close  down or hire others, but by firing Schiavone, the person most  identified with the union, the company made clear that by  voting for the union, employees risked their jobs.  (Again,  Factor 2).  Traction's "acts of reprisal, particularly [Schiavone's] discharge[ ]" in violation of section 8(a)(3) "are considered to be extremely effective in swaying votes and very  difficult to remedy."  (Factor 3).  Repeatedly interrogating  employees, Adams sought to learn what grievances led to the  union campaign, and both Adams and Cohen suggested that  they would correct those grievances and that employees  would get "bigger and better things" by rejecting the union.Put another way, they "promise[d] to correct the grievance  that led to union organization."  (Factor 4).


50
Finally, this case involved "a series of unfair labor practices  rather than a single act of illegality."  (Factor 5).  For  starters, Traction's response to the union organizing drive  was "immediate, swift, and retributive."  Traction, 1999 WL  1186753 at *35.  Summoning Schiavone to his office, Adams  interrogated him about his union activity, then fired him. The company "did not stop there."  Id.  Adams twice interrogated Tryon, denied Tryon's raise, threatened to close the  Philadelphia warehouse, and imposed new and retributive  policies on Philadelphia employees.  At two employee meetings, Cohen committed additional unfair labor practices. Taken together, the evidence reveals a company engaged in a  course of retribution designed not only to punish employees  who gave the union its strongest support, but also to intimidate other employees into voting against the union.  And  contrary to Traction's argument, the effects of its actions  extended well beyond the Philadelphia warehouse.  Id. at *36.Such evidence more than sufficiently supports the bargaining  order.  See Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162,  1176 (D.C. Cir. 1993) (affirming bargaining order where company's "large number of unfair labor practices, ... committed  by some of the top officials in the company, and ... directed  at numerous employees ... instilled a strong fear of union  representation in the employees.") (internal quotation marks  omitted).

Balancing

51
Before enforcing a bargaining order, "we require the Board  to explicitly balance three considerations:  (1) the employees'  Section 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."  Vincent  Plastics, 209 F.3d at 738.  Because of the Board's failure to  balance these factors, we have repeatedly refused to enforce  bargaining orders that have come before us in recent years. In Avecor, for instance, we declined to enforce a bargaining  order because although "the ALJ briefly discussed the first  two factors," he never considered the third, i.e., why traditional remedies, including a re-run election, would have been  inadequate.  931 F.2d at 938.  "The ALJ never explained,"  we said, "why the cloud created by these violations was likely  to linger."  Id.  Rejecting another bargaining order in Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1078-1080  (D.C. Cir. 1996), we "searched the ALJ's decision but ...found no explanation of why a fair election would not be  possible once the Company has been required to post notices  and reinstate the improperly discharged employees with back  pay."  Id. at 1079.


52
In our most recent rejection of a bargaining order, Vincent  Plastics, neither the ALJ nor the Board had provided any  explanation for the order.  Remanding the case with instructions to either provide an adequate justification or vacate the  bargaining order, we expressed our frustration with the  Board's continued recalcitrance:  "What is ultimately dissatisfying about this familiar dance is not a sense that this court's  institutional integrity is undermined by the Board's refusal to  modify its behavior in response to operant conditioning, but  that those left in the lurch are precisely those who, in this  case, sought protection from the Board."  Vincent Plastics,  209 F.3d at 739.


53
In this case, the ALJ explored in depth the need for the  bargaining order.  After summarizing Traction's "immediate,  swift, and retributive" response to the union's organizing  effort, including its threats to close or hire other workers, as  well as the retaliatory section 8(a)(3) violations, the ALJ  discussed the effect of those actions on Traction's employees. Traction, 1999 WL 1186753 at *35.  The nature of Traction's  unfair labor practices, he concluded, combined with the unit's  size and the involvement of the two owners in the unfair labor  practices, had created fear so pervasive that a re-run election  would not fairly reflect the views of the majority of the unit. Id. at 35-36.  Adopting the ALJ's recommendation and imposing a bargaining order, the Board rejected Traction's  argument that "an effective alternative to a bargaining order"  would be for a Traction representative to "read the notice to  affected employees prior to the running of a second election."Id. at 1 n.2.  "[S]uch a remedy," the Board explained, would be "insufficient to cure the gross interference with free choice  in the election in this case."  Id.


54
The Board's explanation suffers from none of the deficiencies that led to our rejection of bargaining orders in earlier  cases.  For instance, in Avecor the Board never explained  "why the cloud created by [the employer's] violations was  likely to linger."  931 F.2d at 938.  Here, the ALJ carefully  explained that the section 8(a)(3) violations, particularly Traction's threats to close the warehouse and its discriminatory  discharge of Schiavone, were not only " 'hallmark violations'  of the most pernicious type," but given the small size of the unit, likely not to have been forgotten.  Traction, 1999 WL  1186753 at *35.  Moreover, as the ALJ explained, the fact  that the union, having once enjoyed majority support, garnered only two votes in the election provided additional  evidence that Traction's unfair labor practices were both  particularly effective and "likely to linger."  Avecor, 931 F.2d  at 938.  In Charlotte Amphitheater, we "found no explanation  of why a fair election would not be possible once the Company  has been required to post notices and reinstate the improperly discharged employees with back pay."  82 F.3d at 1079.But here, the ALJ found that the magnitude of Traction's  unfair labor practices, the small size of the unit, and the  involvement of the company's two owners made its "campaign  to undermine employee support for the Union through fear  and intimidation" so successful that it was unlikely that  traditional remedies would "eras[e] the effects" of that campaign.  Traction, 1999 WL 1186753 at *36.


55
In view of the Board's thorough discussion, and keeping in  mind our deferential standard of review, Gissel Packing, 395  U.S. at 612 n.32, we cannot imagine what more we could  require the Board to say.  Indeed, asked at oral argument  what else the Board should have said, Traction's counsel had  no response.  In the end, we think the words of Gissel aptly  describe this case:  Having "succeeded in undermining [the]  union's strength and destroying the laboratory conditions  necessary for a fair election, [Traction would] see no need to  violate a cease-and-desist order by further unlawful activity. The damage [had been] done."  Id. at 612.

Employee Turnover

56
We turn finally to Traction's argument that the Board  failed to consider the effect of employee turnover between the  time the unfair labor practices occurred and the issuance of  the bargaining order.  "[W]e have repeatedly instructed the  Board to determine the appropriateness of a Gissel bargaining order in light of the circumstances existing at the time it  is entered" rather than at the time of the election.  Flamingo  Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1171 (D.C. Cir.  1998).


57
The Board argues that Traction waived this issue by failing  to raise it during the administrative proceedings.  Claiming  that it had raised the issue, Traction points out that it  excepted to the ALJ's "failure to consider the effect of  mitigating circumstances on the need for a bargaining order."According to the company, this exception "put the Board on  notice that Traction was challenging, inter alia, the ALJ's  failure to consider the effect of employee turnover."  We  disagree.  How could the Board have known that by "mitigating circumstances" Traction meant employee turnover?  Not  only did Traction fail to mention employee turnover in its  brief to the Board, but the brief contained no citation to the  pages of the record that the company now contends support  its argument that employee turnover actually occurred.


58
We expect much of the Board, but we have never required  it to sift through a six-hundred plus page record to find  evidence supporting an argument that a petitioner never  made.  See Charlotte Amphitheaters 82 F.3d at 1080 ("[T]he  Board has no affirmative duty to inquire whether employee  turnover or the passage of time has attenuated the effects of  earlier unfair labor practices....").  Because Traction does  not claim that some "extraordinary circumstance" explains its  failure to raise employee turnover, we may not consider the  issue.  See 29 U.S.C. § 160(e) ("No objection that has not  been urged before the Board, its member, agent, or agency,  shall be considered by the court, unless the failure or neglect  to urge such objection shall be excused because of extraordinary circumstances.").

IV

59
With the exception of that portion of the order requiring  Traction to allow personal use of company vans, Traction's  petition for review is denied and the Board's cross-petition for  enforcement is granted.


60
So ordered.

Randolph, Circuit Judge, concurring:

61
The Board thinks it  an unfair labor practice for an employer, during an election  campaign, to ask employees what they find wrong at the  workplace.  The Board's theory is that in making the solicitation, the employer implies that something will be done to  correct whatever problems are identified, which in turn implies that the employees do not need a union.  See Reliance  Elec. Co., 191 N.L.R.B. 44, 46 (1971), enforced, 457 F.2d 503  (6th Cir. 1972).  I have my doubts about this theory, but as  the court points out, the company did not challenge it in this  case.  See op. at 13.  The company's argument was that the  evidence did not make out a violation, an argument the  court's opinion rightly rejects.  See id. at 14.

