252 F.3d 445 (D.C. Cir. 2001)
Randell Warehouse of Arizona, Inc., Petitionerv.National Labor Relations Board, RespondentSheet Metal Workers International Association, Local #359, AFL-CIO, Intervenor
No. 00-1155
United States Court of Appeals
DISTRICT OF COLUMBIA CIRCUIT
Argued February 13, 2001Decided June 12, 2001

On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board
Michelle L. Ray argued the cause for the petitioner.  Gerard Morales was on brief.
Harold P. Coxson, Jr. was on brief for amicus curiae  Council on Labor Law Equality.  Michael J. Murphy entered  an appearance.
Jill A. Griffin, Attorney, National Labor Relations Board,  argued the cause for the respondent.  Leonard R. Page,  General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,  and Charles P. Donnelly, Attorney, National Labor Relations  Board, were on brief.
Craig Becker argued the cause for intervenor Sheet Metal  Workers International Association, Local #359, AFL-CIO.  James B. Coppess and Patrick J. Riley entered appearances.
Before:  Henderson, Randolph and Garland, Circuit  Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge:


1
Randell Warehouse of Arizona, Inc. (Randell) petitions for review of an  order of the National Labor Relations Board (NLRB or  Board) directing it to bargain with the Sheet Metal Workers  International Association, Local #359, AFL-CIO (Union). The NLRB cross-petitions for enforcement.  For the reasons  stated below, we grant the petition for review and remand to  the Board for further proceedings.

I.

2
The facts before us are straightforward.  After the Union  won a representation election, Randell filed with the Board  several objections to the election.  Randell contended inter  alia (1) that numerous acts of intimidation created an atmosphere of coercion that reasonably tended to interfere with  the free and uncoerced choice of the employees and (2) that  other acts of interference by Union adherents and agents  affected the result of the election.  See Randell Warehouse of  Ariz., Inc., 328 N.L.R.B. No. 153 app. at 19-20, 1999 WL  554239, at *30 (July 27, 1999).  The Regional Director ordered a hearing to consider Randell's objections.  See id. at  19, 1999 WL 554239, at *29.  Following a two-day hearing, an NLRB Hearing Officer made several findings of fact and  recommendations regarding the relevant issues.


3
As to Randell's first objection, the Hearing Officer found  that a Randell employee and Union supporter, Ray Encinas,  made certain objectionable comments in two employee meetings held by Randell to discuss unionization.  In the first  meeting, when one employee inquired what would happen to  someone who crossed the picket line during a strike, Encinas  commented in Spanish that " 'they would bring somebody  from down below to take care of those people.' "  Id. at 21,  1999 WL 554239, at *33.  In a second meeting, when another  employee asked what would happen to those who did not  want to become union members if the Union won the election,  Encinas volunteered, again in Spanish, " 'they would have the  Chico Mafia take care of those people.' "  Id.  Furthermore,  on another occasion, one employee who was wearing a "Vote  No" button was told by a lead worker "there is people here  that beat up people that wear that."1  Id., 1999 WL 554239, at  *34.  Despite these fact findings, the Hearing Officer concluded that, when measured against the standard governing thirdparty conduct in representation elections, the three incidents  did not "form the basis for setting aside the election" or  create "an atmosphere of confusion of [sic] fear" that "a free and fair election could not have been held."  Id. at 22, 1999  WL 554239, at *34.  Accordingly, the Hearing Officer recommended that the Board overrule Randell's objections on this  issue.


4
Regarding the second objection, the Hearing Officer found  that, before the election, as Union representatives distributed  Union literature in front of Randell's building, another Union  representative photographed the employees as they accepted  or rejected the literature.  See id.  Moreover, the photographer took pictures of some employees' vehicles as well. When one employee asked about the purpose of the photographs, one of the Union representatives responded "It's for  the Union purpose, showing transactions that are taking  place.  The Union could see us handing flyers and how the  Union is being run."  Id., 1999 WL 554239, at *35.


5
The Hearing Officer concluded the Union's conduct was in  violation of Pepsi-Cola Bottling Co. of Los Angeles, 289  N.L.R.B. 736 (1988) (holding that, absent explanation or  justification, photographing employees while they engage in  protected activity violates National Labor Relations Act  (NLRA)).  See id. He therefore recommended that Randell's  objection based on Union photographing be sustained and a  new election be held.


6
Randell filed exceptions to the Hearing Officer's recommendations.  Of relevance here, Randell argued that threats  and intimidation by Union supporters destroyed the "laboratory conditions"2 required for a representation election.  Randell supported the Hearing Officer's resolution of the photographing issue, however, arguing that a new election was  warranted on that basis and emphasizing that the photographing did not take place in an atmosphere otherwise free  of coercion.


7
The Board adopted all but one of the Hearing Officer's  recommendations.  It rejected the Hearing Officer's conclusion about the Pepsi-Cola Bottling violation, opting instead to  overrule Pepsi-Cola Bottling.  See Randell, 328 N.L.R.B. No.  153, at 3, 1999 WL 554239, at *4.  In light of its decision, the  Board certified the Union as the collective bargaining representative of the appropriate bargaining unit of Randell employees.  See id. at 5, 1999 WL 554239, at *7.


8
Randell refused to bargain with the Union, prompting the  Union to file an unfair labor practice charge.  The NLRB  General Counsel issued a complaint and Randell answered. In its answer, Randell raised two defenses:  the election was  tainted by an atmosphere of coercion and intimidation which  prevented the employees from exercising their rights freely  and the Board erroneously applied its new photographing  rule retroactively.  The General Counsel, on the other hand,  sought summary judgment reasoning that Randell's objections could have been raised or had already been rejected in  the representation proceedings.  The Board agreed with the  General Counsel, found Randell in violation of section 8(a)(5)  and (1) of the NLRA and ordered Randell to bargain with the  Union.  See Randell Warehouse of Ariz., Inc., 330 N.L.R.B.  No. 135, at 2, 2000 WL 345407, at *2-3 (Mar. 20, 2000).  This  appeal followed.

II.

9
"On questions regarding representation, we accord the  Board an especially 'wide degree of discretion.'  NLRB v.  A.J. Tower Co., 329 U.S. 324, 330 (1946);  see also C.J.  Krehbiel Co. v. NLRB, 844 F.2d 880, 882 (D.C. Cir. 1988)  (citations omitted);  Amalgamated Clothing & Textile Workers, 736 F.2d 1559, 1564 (D.C. Cir. 1984) ('the scope of our  review of the Board's decisions in cases involving certification  is extremely limited') (citing Amalgamated Clothing Workers  of America v. NLRB, 424 F.2d 818, 827 (D.C. Cir. 1970)). We will affirm the Board's order to bargain unless the Board  abused its discretion in overruling [an employer's] objections  in the underlying election proceeding.  See C.J. Krehbiel Co., 844 F.2d at 881-82."  Canadian Am. Oil Co. v. NLRB, 82  F.3d 469, 473 (D.C. Cir. 1996).  Yet, "[a]lthough our review is  deferential, we are not merely 'the Board's enforcement arm. It is our responsibility to examine carefully both the Board's  findings and its reasoning....' "  General Elec. Co. v. NLRB,  117 F.3d 627, 630 (D.C. Cir. 1997) (quoting Peoples Gas Sys.,  Inc. v. NLRB, 629 F.2d 35, 42 (D.C. Cir. 1980)).  And,  especially significant here, "the Board cannot ignore its own  relevant precedent but must explain why it is not controlling." B B & L, Inc. v. NLRB, 52 F.3d 366, 369 (D.C. Cir. 1995) (per  curiam) (citing Cleveland Constr. Co. v. NLRB, 44 F.3d 1010,  1016 (D.C. Cir. 1995)).


10
In Pepsi-Cola Bottling, the Board found objectionable a  union's videotaping of employees being handed union leaflets  as they left the employer's premises during a union rally. 289 N.L.R.B. 736.  Because the employees received no legitimate explanation for the videotaping, the Board concluded  the employees could reasonably believe the Union was contemplating some future reprisals against them and set aside  the election as interfering with the employees' right to choose  their representatives freely.  See id.


11
The Board set aside a representation election in Mike  Yurosek & Son, Inc. as well.  292 N.L.R.B. 1074 (1989). There a union representative took photographs of campaign  activity by pro-union and anti-union employees.  The representative also told an anti-union activist "We've got it on film; we know who you guys are . . . after the Union wins the  election some of you may not be here."  Id.  Relying on  Pepsi-Cola Bottling, the Board again found interference with  the employees' rights under the NLRA and ordered a new  election.


12
Here the Board, in a volte face, determined that union  photographing of employees engaged in protected activities  during an election campaign, without more, does not necessarily interfere with employee free choice.  See Randell, 328  N.L.R.B. No. 153, at 3, 1999 WL 554239, at *4.  At the same  time the Board overruled Pepsi-Cola Bottling, it nonetheless  declined to overrule Mike Yurosek, reasoning that photographing accompanied by threats or coercive conduct does  interfere with employee free choice.  See id., 1999 WL  554239, at *5.  Applying its newly announced rule to the facts  before it, the Board found no objectionable conduct.  See id.  at 5, 1999 WL 554239, at *7.


13
Randell argues the Board erred by failing to consider the  applicability of Mike Yurosek here.  We agree.3  We have  repeatedly told the Board that "silent departure from precedent" will not survive judicial scrutiny.  Cleveland Constr. Co.  v. NLRB, 44 F.3d 1010, 1016 (D.C. Cir. 1995); accord Gilbert  v. NLRB, 56 F.3d 1438, 1445 (D.C. Cir. 1995) ("It is . . .  elementary that an agency must conform to its prior decisions  or explain the reason for its departure from such precedent."), cert. denied, 516 U.S. 1171 (1996).  Here, the Hearing  Officer found that Union supporters engaged in at least three  separate instances of potentially threatening conduct.  See  supra at ___ _ ___.  Moreover, rumors about a fourth and graver  incident circulated throughout the plant.  See supra note 1. In view of these factual findings, the applicability of Mike  Yurosek is a critical issue the Board should have examined  carefully.  Yet, having announced that Mike Yurosek would  continue to apply, the Board failed to explain why the threatening conduct catalogued by the Hearing Officer did not  amount to objectionable conduct under that case.  As we have  stated before, "[w]ithout some explanation of how the Board  reached its conclusion, we have no basis in the record upon which to evaluate whether the Board's application of[its]  rule is rational, based on substantial evidence, and consistent  with the Board's own precedents."  Lima v. NLRB, 819  F.2d 300, 303 (D.C. Cir. 1987).  Accordingly, we remand to  the Board "for further consideration and a reasoned opinion,  thereby providing a meaningful basis for judicial review under 5 U.S.C.             706(2)."  Id.;  see also Darr v. NLRB, 801  F.2d 1404, 1408-09 (D.C. Cir. 1986) (remanding where Board  did not clearly explain basis for its decision).


14
For the reasons stated above, we grant Randell's petition  for review and remand to the Board for further proceedings  consistent with this opinion.


15
So ordered.



Notes:


1
 At the hearing, a pro-company employee testified that, while he  was wearing a "Vote No" button, two Union supporters told him to  "take [it] off" unless he was "looking for trouble."  Deferred  Appendix (D.A.) 320.  The employee also testified that, later the  same day, when driving home, he was boxed in by the two Union  supporters and almost driven off the road.  D.A. 321-25.  The  Hearing Officer discredited this testimony, concluding that the two  pro-Union employees "both credibly denied the account of the  incident as testified to by [the pro-company employee]" and "two  other credible witnesses" corroborated the pro-Union employees'  account of the event.  Randell, 328 N.L.R.B. No. 153 app. at 21,  1999 WL 554239, at *33.  The Hearing Officer did note, however,  that rumors about the incident spread throughout the plant and  that a leadman told the pro-company employee to " 'be careful' "  because " 'they are crazy.' "  Id. at 21, 1999 WL 554239, at *33  (quoting D.A. 328).


2
 General Shoe Corp., 77 N.L.R.B. 124, 127 (1948) (holding that  representation election should be held in "laboratory . . . conditions  as nearly ideal as possible, to determine the uninhibited desires of  the employees").


3
 Randell also contends the Board erred in overruling the per se  rule of Pepsi-Cola Bottling and in retroactively applying the new  rule to this case.  Because we remand to the Board on another  basis, we need not reach these objections.


