245 F.3d 819 (D.C. Cir. 2001)
Garvey Marine, Inc., Petitionerv.National Labor Relations Board, Respondent
International Longshoremen's Association, Local 2038, Intervenor

No. 00-1076
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2000Decided April 17, 2001
[Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board.
Kenneth R. Dolin argued the cause for petitioner.  With  him on the briefs was Scott V. Rozmus.
Julie B. Broido, Supervisory Attorney, National Labor  Relations Board, argued the cause for respondent.  With her on the brief were Leonard R. Page, General Counsel, and  Aileen A. Armstrong, Deputy Associate General Counsel. Charles P. Donnelly, Supervisory Attorney, entered an appearance.
James B. Coppess argued the cause for intervenor.  With  him on the brief was Craig Becker.
Before:  Ginsburg, Randolph and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Opinion concurring in part and dissenting in part filed by  Circuit Judge Randolph.
Ginsburg, Circuit Judge:


1
The International Longshoreman's Association, Local 2038, AFL-CIO sought to represent  deckhands on one of several fleets of boats belonging to  Garvey Marine, Inc., a company that provides towing and  related services.  The Union, after losing a representation  election, filed a complaint with the National Labor Relations  Board alleging that Garvey had engaged in numerous unfair  labor practices (ULPs), in violation of  8(a)(1), (3), and (5)  of the National Labor Relations Act, 29 U.S.C.  158(a)(1),  (3) & (5).  The Board held that Garvey had committed most  of the alleged ULPs, and ordered the Company not only to  take various steps to remedy those violations but also to  bargain with the Union.  See Garvey Marine, Inc. et al., 328  NLRB No. 147, slip op. at 7-8 1999 WL 562095 (1999) (hereinafter Decision).


2
Garvey petitions for review of the Board's order, the Board  cross-applies for enforcement of its order, and the Union  intervenes on behalf of the Board.  Because the agency's  findings are supported by substantial evidence and its order  is reasonable, we deny Garvey's petition and grant the  Board's application for enforcement.

I. Background

3
Garvey provides "barge towing, fleeting, switching and  related harbor services for barge companies and a variety of  other commercial entities" from docks in five Illinois towns. Decision at 12.  This appeal involves only Garvey's facility in Lemont, Illinois, which is managed by its vice president, Todd  Hudson.  Each Garvey boat is staffed by a crew of deckhands  supervised by two or more pilots, one of whom serves as  captain.  A dispatcher, with two assistants, oversees the  movement of the boats and assigns pilots and deckhands to  crews.


4
In early 1995 the Union filed with the Board a petition to  represent the Lemont deckhands and pilots.  After Garvey  presented evidence that the pilots were supervisors, the  Union agreed to exclude them from the bargaining unit.  A  representation election was held in March, and the Union lost  by a narrow margin.  Id. at 10.


5
The Union then filed an unfair labor practice charge  against Garvey alleging that Garvey's agents had made numerous illegal threats, promises, and predictions during the  election campaign;  illegally implemented a new disciplinary  system in order to discourage union support;  and warned and  dismissed employees for supporting the Union.  See 29  U.S.C.  158(a)(1), (3).  The Union asked the Board to issue  a so-called Gissel order directing Garvey to bargain with the  Union notwithstanding the Union's having lost the election. See NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 614  (1969) (holding that Board may order employer to bargain  with union that once had majority support if "the possibility  of erasing the effects of past practices and of ensuring a fair  [new] election ... by the use of traditional remedies ... is  slight").


6
After a hearing, an Administrative Law Judge held that  Garvey had committed many, though not all, of the alleged  ULPs.  The ALJ held that pilots, whom he determined to be  "supervisors" under the Act, Decision at 27, had made a large  number of "patently coercive" promises and threats to prounion employees.  Id. at 28.  Weighing the credibility of  sometimes conflicting testimony, the ALJ found that several  pilots had told deckhands that if the Union lost the election  then the deckhands would get raises, overtime pay, and  improved insurance benefits, but if the Union won then  Garvey would refuse to negotiate with it, there would be wage reductions and a strike, employees would be required to pay  for their equipment, and Garvey might close the Lemont  facility.  The ALJ also credited the testimony of some deckhands that pilots had implied there would be reprisals against  pro-union deckhands, one of whom was threatened with a  "shipboard accident."  Id. at 19-22.


7
The ALJ found further that during the election campaign  Garvey had substituted a formal, written, and progressive  system of disciplinary sanctions for its earlier "loose, subjective, erratic practice of selective verbal warnings."  Finding  that the change had been made "solely in reaction to the  filing of a representation petition," the ALJ held that institution of the new policy was an ULP.  Id. at 29.


8
Finally, the ALJ determined that Garvey had illegally  dismissed two deckhands, Karl Senff and Steven Bradley,  because of their union activities.  That Senff and Bradley  actively supported the Union is undisputed.  Senff was dismissed in April 1995 after having been given repeated warnings -which he openly and purposely flouted -not to be  late for his shifts.  Bradley was dismissed in May when,  having received a job assignment that he viewed as dangerous, he threatened to damage Company property and to fake  a workplace accident.  Despite these two employees' admittedly serious misconduct, the ALJ held their dismissals were  unlawful.  He offered several reasons, notably Garvey's history of less harshly disciplining employees guilty of similar and  more serious infractions, warnings pilots had given Senff that  his union advocacy made him a target, and the dispatcher's  statement to Bradley that he was suspended because of his  union activity.  Id. at 30.


9
The ALJ denied the Union's request for a bargaining  order.  He held that traditional remedies -ordering Garvey  to avoid future infractions, to retract its new disciplinary code  and the warnings issued thereunder, and to offer backpay and  reinstatement to Bradley and Senff -would be sufficient to  ensure a free and fair rerun election.  Although he did not  think a bargaining order was warranted, neither did the ALJ  accept the Company's argument that he should consider turnover in Garvey's management.  Id. at 31.  The ALJ did  observe, however, that Garvey's most egregious violations  were all committed by pilots -Garvey's lowest level of  supervisors -and that, of the deckhands who were illegally  threatened or dismissed, most had themselves engaged in  significant misconduct.  He also emphasized that most of the  pilots' threats and promises had been made to only a handful  of pro-union deckhands who, by all accounts, continued nonetheless to advocate election of the Union.  Id. at 31-32.


10
A three-member panel of the Board unanimously affirmed  the ALJ's determinations regarding Garvey's ULPs.  The  majority went on to issue a bargaining order in light of what  it called Garvey's "egregious[ ]" pattern of violations.  Id. at  3.  The majority pointed out that the ALJ had found more  than 30 violations, among them threats of physical violence,  and that Garvey had persisted in violating the Act even after  the election was held.  See id. at 4.  That the threats had  been made by pilots, who were the deckhands' immediate  supervisors, seemed to the majority to create "precisely the  legacy of coercion that endures in the workplace and that the  Supreme Court addressed in Gissel."  Id. at 5.  Member  Hurtgen dissented with respect to the bargaining order for  essentially the reasons stated by the ALJ and because he  regarded turnover as "a relevant factor in determining  whether a fair election can be held."  Id. at 9.


11
Garvey moved to reopen the record in order to introduce  additional evidence of turnover among its employees and  managers, and asked the Board to reconsider its orders on  the basis of this evidence.  The Board denied the motion,  Member Hurtgen again dissenting, and Garvey petitioned  this court for review of the Board's orders.

II. Analysis

12
With regard to the ULP charges, Garvey argues that  because it had expressly instructed its pilots not to make  threats or promises during the representation election campaign, the Board erred in attributing to management such  statements as were made, and that the dismissals of Senff and Bradley were based entirely upon their own misconduct  and not at all upon their union activity.  With regard to the  remedy, Garvey maintains that the Board should not have  issued a bargaining order because any ULPs it committed  were not so "extensive[ ]" and "pervasive" as to make "slight"  "the possibility of erasing the[ir] effects" by means of a new  representation election.  Gissel, 395 U.S. at 614.

A. Pilots as Agents of Management

13
According to Garvey, the deckhands could not reasonably  have believed that the pilots who made promises and threats  to union adherents were acting on the Company's behalf. Garvey points out that its vice president, Hudson, made  repeated written and oral statements disclaiming any promises or threats and assuring deckhands there would be no  reprisals taken for their union activity.  Garvey also notes  that it conducted formal training for its pilots during which it  specifically forbade them to issue threats or promises.  In  view of all this, Garvey says, the deckhands surely would have discounted any offending statement made by an errant pilot.


14
The Board took the opposite position, to which we must  defer if it is supported by substantial evidence:


15
[T]he Board's determination of whether a particular actor is properly considered an agent or was acting with apparent authority is granted only limited deference .... However, the standard of review is not de novo .... [T]he existence of an agency relationship is a factual matter ... which cannot be disturbed if supported by "substantial evidence on the record considered as a whole."


16
Overnite Transp. Co. v. NLRB, 140 F.3d 259, 265 (D.C. Cir.  1998).  The Board's determination finds such support.  Garvey required its pilots to sign a policy that they would  support the Company in the Union campaign -and the  deckhands knew it.  Decision at 13, 27-28.  A reasonable  deckhand, therefore, would not necessarily have assumed that  a pilot's statement in contravention of Garvey's official policies was unauthorized;  he would as likely have concluded that Garvey's public statements were primarily for show while the  pilot's private warnings reflected management's actual position.  Similarly, the Board could reasonably determine that  the close working relationship between the pilots and the  deckhands they supervised enhanced rather than undermined  the credibility of the pilots' statements.  Because the Board's  determination that Garvey's pilots were, and were viewed as,  the Company's agents is based upon substantial evidence,  those findings merit our deference.

B. The Dismissals of Senff and Bradley

17
Garvey suspended and then dismissed Senff and Bradley  pursuant to its newly adopted disciplinary code.  See Part I  above at 3.  It is unclear, however, whether the Board  believes (as suggested in its order) that the dismissals of  Senff and Bradley were perforce illegal because they were  made "pursuant to the ... unlawfully implemented progressive disciplinary system," see Decision at 2, or (as the Board  suggests in its brief) merely that the unlawfulness of the  policy "strongly support[s]" a further finding that the dismissals were themselves ULPs.  Because the former claim is  doubtful, see Performance Friction Corp. v. NLRB, 117 F.3d  763, 768 (4th Cir. 1997), we follow the General Counsel in  attributing the latter view to the Board.


18
For the Board to hold that the dismissals of Senff and  Bradley were unfair labor practices, the General Counsel  must first have made out a prima facie case that their union  activities were "a substantial or motivating factor" in their  dismissals.  Wright Line, 251 NLRB 1083, 1087 (1980), approved by NLRB v. Transp. Mgmt. Co., 462 U.S. 393, 401  (1983), overruled in other respects, Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512  U.S. 267, 278 (1994).  The burden then shifts to Garvey to  show that it would have dismissed the two "regardless of [its]  forbidden motivation."  Id.  In our view the Board correctly  determined that the General Counsel made out a prima facie  case regarding both Senff and Bradley, and that Garvey  failed to rebut either one.

1. Dismissal of Senff

19
Garvey contends that it dismissed Senff only because of his  repeated and deliberate lateness and not because of his  activity on behalf of the Union.  Not only was Senff consistently and habitually tardy, he informed supervisors that he  felt "entitled" to come in late whenever he had been relieved  late at the end of his previous shift.  Decision at 23.  On  several occasions boats were delayed beyond their scheduled  departure times waiting for Senff;  sometimes they left without him.  After ignoring numerous warnings Senff was discharged for tardiness some time in 1994.  He was later  rehired, however, in "late 1994 or early 1995."  Id.


20
Although the Board found Senff's intentional and repeated  tardiness "provocative misconduct" worthy of discipline, it  nevertheless held that his second dismissal, in April 1995, was  due not to his lateness but to his activity on behalf of the  Union.  Id. at 2, 30.  The Board based that conclusion upon  several facts:  Garvey was aware of Senff's union activities;  it  repeatedly threatened advocates of the Union, and Senff in  particular, with discharge;  it dismissed Senff for the second  and final time only a short while after the union election;  and  it had had a "tradition of leniency prior to the organizing  effort" that contrasted sharply with "the progressive written  [disciplinary] system unlawfully imposed during the campaign."  Id. at 2.


21
Garvey's awareness of Senff's union activities and the timing of his dismissal are circumstantial evidence that his  dismissal was motivated by impermissible animus.  See, e.g.,  Power Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir. 1994)  ("[B]oth direct and circumstantial evidence" of such factors  may be used to establish employer's unlawful motive).  The  prima facie case is clearly established, however, by the other  factors upon which the Board relied:  Garvey had rehired  Senff before the union campaign notwithstanding his record  of tardiness, and Garvey's agents had threatened Senff's job  on several occasions expressly because of his union sympathies.


22
Garvey objects to the Board's reliance upon the ALJ's  having credited Senff's testimony that several pilots had  repeatedly threatened his job even as the ALJ rejected other  portions of Senff's testimony as incredible.  Compare Decision at 20, 21 (crediting Senff's testimony as to threats), with  id. at 25 (rejecting Senff's testimony as to his own tardiness). The trier of fact is surely entitled, however, to credit some  but not all of a witness's testimony, particularly when he must  resolve conflicts among witnesses none of whom seems entirely reliable.


23
The General Counsel having made his prima facie case, the  burden shifted to Garvey to show that it would have dismissed Senff even had he not favored the Union.  The Board  reasonably held that Garvey did not carry that burden. Decision at 3.  Garvey suggests that its dismissal of Senff for  tardiness in 1994, before the union campaign began, demonstrates that it would have dismissed him again in 1995  regardless whether he had engaged in union activity.  This  argument fails to account, however, for Garvey's decision to  rehire Senff after having dismissed him for tardiness the first  time.  Until Senff began to campaign for the Union, Garvey  had apparently concluded that Senff's value as an employee  outweighed the cost of keeping him, including his seemingly  incorrigible tardiness.  Therefore, Garvey must persuasively  explain what change of circumstances -other than his union  activity -induced it to change its position and again fire  Senff.*  Its conclusory protestation that Hudson had finally  "tired" of Senff's conduct is unpersuasive.  Id. at 30.

2. Dismissal of Bradley

24
The Board's decision regarding Garvey's dismissal of Bradley parallels its decision regarding Senff, and we uphold it for  similar reasons.  Like Senff's tardiness, the Board deemed  Bradley's threat to fake a workplace injury "provocative  misconduct" for which discipline was reasonable.  Id. at 30. The Board was nevertheless justified in concluding that Bradley's dismissal was motivated in part by his union advocacy: Garvey's dispatcher told him so.  Id. at 3.  The Board also  relied upon Garvey's elaborate choreography of Bradley's  initial suspension, which preceded his formal dismissal by a  few days:  Garvey sent Bradley's boat back to the dock  midshift, where Bradley -observed by the crews of three  boats that had been held at the dock, presumably so they  could witness the event -was met by a sheriff's officer who  escorted him off the premises.  This procedure suggests that  Garvey at the least wanted to make an example of Bradley;  it  had staged no such spectacle when, on an earlier occasion, it  delayed until shift's end the dismissal of a deckhand who had  threatened a pilot with a knife.  See id. at 3, 5.  Finally, the  Board concurred in the ALJ's observation that there was  reason to believe that Bradley, who was known to have "a  tendency to rash, ill-considered remarks," was only joking  and was so understood by those present.  Id. at 3, 30.


25
These circumstances are adequate to make out a prima  facie case that Bradley's dismissal was motivated in part by  his union activity.  See, e.g., Reno Hilton Resorts v. NLRB,  196 F.3d 1275, 1282 (D.C. Cir. 1999) (upholding Board's  determination that a prima facie case is made out if "there is  substantial evidence supporting the [claim] that anti-union  animus was a motivating factor in the employer's decision"). Garvey is correspondingly unable to demonstrate that it  would have fired Bradley even if he had not engaged in such  activity.  On this record, the dispatcher's statement to the  contrary and the little mid-shift melodrama of the suspension  are insurmountable ramparts protecting the Board's position  from successful attack.

C. The Bargaining Order

26
The Board may order an employer to bargain with a union  that has lost a representation election because of the employer's ULPs if, as here, the union at one time enjoyed majority  support in the bargaining unit, see Gissel, 395 U.S. at 610. Because a Gissel order is, however, an "extreme remedy,"  Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 738  (D.C. Cir. 2000), we scrutinize with great care the Board's  decision to issue one.  The Board must show that the employer's ULPs were "serious," Skyline Distrib. v. NLRB, 99 F.3d  403, 410 (D.C. Cir. 1996), and the Board must have


27
explicitly balance[d] three considerations:  (1) the employees'  7 rights [to a representative of their own choosing];  (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.


28
Vincent, 209 F.3d at 734.  The Board must also have "determine[d] the appropriateness of a Gissel bargaining order in  light of the circumstances existing at the time it is entered." Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1171  (D.C. Cir. 1998).  If the Board has done all this, then the  court will uphold the Board's decision provided it is reasonable.  See Traction Wholesale Ctr. Co., Inc. v. NLRB, 216  F.3d 92, 104 (D.C. Cir. 2000).


29
In this case the Board did all that we require.  It conducted a detailed analysis of the proven ULPs, and reasonably  concluded that the resulting "legacy of coercion" would prevent employees from freely exercising their right to choose  their own representative if only the usual remedies, including  a new election, were ordered.  Decision at 5.


30
Garvey objects to several features of the Board's analysis. First, the Company points out that the threats cited by the  Board in support of its order were made during one-on-one  encounters between pilots and a relatively small number of  deckhands. Moreover, those most seriously threatened - Senff, Bradley, and another -were undeterred in their union  advocacy and, according to Garvey, there was no evidence  that the many deckhands who were not personally threatened  ever learned of the threats.  Garvey also marshals the ALJ's  point that the threats were less serious because they came  only from pilots and were at odds with the official statements  made by Vice President Hudson.


31
These arguments do not show that the Board acted unreasonably.  The Board acknowledged that relatively few deckhands were threatened in person, but it balanced that fact  against the small size of the unit, which had only 22 voters,  see Decision at 10;  the frequency of the threats, of which  there were more than 30 during the two-month union campaign;  and the nature of those threats, several of which  menaced union adherents with physical harm.  See id. at 4. The Board's reasonable assumption that news of the ULPs - both the threats and the discharges -would be disseminated  among the deckhands is buttressed by Garvey's very public  staging of Bradley's suspension.**  The Board reasonably  concluded that the pattern of ULPs created a "legacy of  coercion" that was likely to have been disseminated and to  have poisoned the atmosphere in which any new election  would take place.  Id. at 5.


32
In its reply brief, Garvey argues that the Board must  accept the ALJ's finding that word of the ULPs had not been  disseminated among Garvey's workforce because the ALJ  based his determination upon his assessment of the credibility  of witnesses, whose testimony the Board could not directly evaluate.  The premise of Garvey's argument is false, however;  the ALJ never found, based upon testimony before him,  that in fact news of the ULPs had not gotten around. Rather, he opined that the threatened employees' persistence  in union activities "would certainly tend to diminish the  coercion's impact" even assuming it was disseminated to  deckhands on other boats.  Id. at 31.  The Board, by contrast, believed that Bradley's suspension alone, having been  "carried out in a manner that would ensure a dramatic and  lasting impression on other employees ... obviates any argument that other employees would not have been aware of the  unlawful conduct and its import."  Id. at 5.  Thus, we see, the  Board did not reject the ALJ's factual findings;  it merely  gave less weight than had the ALJ to the testimony of  various deckhands who said they had not heard about the  ULPs.


33
The Board was also reasonable in hypothesizing, contrary  to the ALJ, that a "rough and ready" threat made by an  immediate supervisor "may be far more credible and influential so far as the ordinary worker is concerned than a  necessarily more formal, structured, and purposeful statement of a high-ranking executive," id. at 4 & n.11 (quoting  Teamsters v. NLRB, 435 F.2d 416, 417 (D.C. Cir. 1970)).  It  would not be unreasonable to believe that a direct supervisor  can coerce a line employee at least as effectively as an  executive can even had that view not been explicitly endorsed  by this court in the case just quoted.


34
Finally, Garvey contends that changes in its ownership and  turnover in its workforce make a bargaining order unnecessary.  Between the conclusion of the election campaign and  the issuance of the order Garvey came under new ownership,  all but four of the deckhands, three of the six pilots who  committed ULPs, and the lead dispatcher at Lemont left the  Company, and a fourth pilot left the Lemont facility.  With  most of both the perpetrators and the direct victims of the  ULPs gone, suggests Garvey, traditional remedies should  suffice to protect the current employees'  7 rights.  Garvey  also notes that only a rerun election would allow its many new  deckhands a chance to vote for or against the Union.


35
Notwithstanding the Board's assertion that it "traditionally  does not consider turnover among bargaining unit employees  in determining whether a bargaining order is appropriate,"  lest employers in violation of the Act gain an incentive to stall  enforcement proceedings,  Decision at 5, this court requires  it to consider turnover "unless it finds that the employer's  practices are particularly flagrant, ... pervasive, and likely to  persist despite turnover."  Avecor, Inc. v. NLRB, 931 F.2d  924, 937 (D.C. Cir. 1991).  That is precisely the finding that  the Board made in this case:


36
[W]e have not in this case refused to consider the Respondent's representations regarding turnover.  Rather, we find that, even when those representations are considered, the circumstances of this case do not warrant a conclusion that a fair second election is possible.


37
Decision at 6 n.14.


38
As we have seen, the Board reasonably viewed Garvey's  pattern of ULPs as egregious and pervasive.  Such violations  would likely, as the Board said (quoting Bandag, Inc. v.  NLRB, 583 F.2d 765, 772 (5th Cir. 1978)), "live on in the lore  of the shop," affecting the ability of new hires and veteran  employees alike to vote their true preferences in a new  election.  Id. at 6.  A change in the ownership of the Company is insufficient to reverse this effect;  indeed, Hudson, who  was in charge of the Lemont facility when the ULPs were  committed, continues in the same capacity under the new  ownership.  Nor can Garvey repudiate its lower-level agents  on the ground that its association with the ULPs committed  by its pilots dissipated with their departure.  Having enlisted  the pilots in aid of the Company's anti-union campaign,  Garvey cannot now contend that deckhands -old or new - will understand the threats and promises that the pilots made  in the course of that campaign to have been rogue acts  unrepresentative of management's position.  See Part II.A  above.  For all these reasons, we hold the Board's bargaining  order and its denial of Garvey's motions to reopen the record  and for reconsideration are reasonable.

III. Conclusion

39
The Board's factual findings in this case are supported by  substantial evidence, its legal conclusions are reasonable, and  its Gissel order meets the criteria prescribed by this court. We therefore deny Garvey's petition for review and grant the  Board's application for enforcement.


40
So ordered.



Notes:


*
 Our dissenting colleague speculates that Garvey may have fired  Senff the second time because the cumulative costs of his brazen  tardiness, assessed in an everchanging environment, simply became too much for Garvey to bear.  Dissent at 2-3.  A prima  facie case that Senff was fired for his union advocacy having been  made, however -a case supported not only by his 1994 dismissal  but also by explicit warnings from Garvey's agents that Senff's  job "was in jeopardy because of his union activities," Decision at  30 -it is Garvey, and not the Board, that bears the burden of  demonstrating that the scenario in the dissent is indeed what  occurred.  See Transp. Mgmt., 462 U.S. at 401-02.  Contrary to  the dissent (at 3), we do not suggest that an employer must  "tolerate misconduct so long as [a] problem employee maintains  the same level of insubordination";  but an employer does not  meet its burden under Wright Line when, after a prima facie  demonstration of antiunion animus, it does no more than contend,  without support, that it just couldn't take it anymore.


**
 The suspension is relevant to the Gissel order although it  postdated the election because the Union had by then filed its  first complaint alleging that Garvey's misconduct had tainted the  election, and thereby raised the possibility that there would be a  rerun election.  See Decision at 5.



41
Randolph, Circuit Judge, concurring in part and dissenting in part:


42
I join all of the majority's opinion except the  portions dealing with the termination of Karl Senff and the  bargaining order.  Senff kept showing up late for work.  His  lateness was intentional and he was unrepentant.  Given this  state of affairs, Garvey Marine did not commit an unfair labor  practice in firing him.


43
Senff "admitted that from early in his employment at  Lemont, he had a history of high absenteeism and tardiness  for which he had been 'hollered at a lot' ... [and verbally]  warned ...."  Decision at 13-14, 23.  He conceded, and two  other witnesses testified, that his punctuality problem exceeded that of any other deckhand.  See id. at 23.  Senff was late  for three-fifths of his shifts by an average of 20 minutes.  See  id. at 14.  He brazenly claimed he was entitled to arrive late  as self-compensation for working late on previous shifts.  See  Decision at 23;  maj. op. at 824-25.


44
Senff's self-compensation program disrupted the company's  operations, causing boats to delay their scheduled departure  times and occasionally to leave without him.  See Decision at  23;  maj. op. at 8.  He persisted in this course of conduct until  the date of his discharge, despite many verbal warnings and  three written warnings explicitly threatening termination.


45
No precedent in labor law requires a company to endure  such blatant disdain for its rules.  The ALJ and the Board  both acknowledged that an employer could reasonably discipline an employee for such conduct -conduct the ALJ  characterized as "headed for self-destruction."  See Decision  at 2, 29.  The ALJ added:  "Clearly, an employer, even a  tolerant one, is not expected to forever suffer the provocative  misconduct of employees who had once engaged in protected  activities."  Decision at 30.  Nonetheless, the Board, sustained by my colleagues, found insufficient evidence that the  company would have terminated Senff regardless of his union  activities.  See Decision at 2-3, 30;  maj. op. at 825.


46
Even with its informal, "lenient" disciplinary system, Garvey Marine never countenanced the sort of conduct for which  Senff was discharged.  As the majority acknowledges, the  company had previously terminated Senff for the same conduct.  See maj. op. at 8.  It later rehired him, possibly  because it faced a shortage of deckhands.  See Decision at 12.  In addition, as Senff himself testified, the company had  discharged other deckhands for attendance problems like his. See Decision at 13.


47
An employer, even a lenient one who prides itself on  maintaining an informal workplace, is not required by the  National Labor Relations Act to tolerate what is universally  regarded as inappropriate workplace conduct from employees  who engage in union activities.  See 29 U.S.C.  160(c).  I  agree with the Seventh Circuit that an "employer who has  tolerated bad behavior in the past is not forced to continue to  do so, let alone required to tolerate increasingly bad behavior."  Vulcan Basement Waterproofing of Illinois, Inc. v.  NLRB, 219 F.3d 677, 689 (7th Cir. 2000).  Tardiness and  absenteeism are objectively bad conduct:  among an employee's most basic -and least difficult to satisfy -obligations  is showing up for work at the appointed hour.  The Board's  and the majority's contrary view "rests at bottom on the  apparent notion that blatant misconduct once tolerated at all  must be tolerated forever.  However ... there must be room  in the law for a right of an employer somewhere, sometime, at  some stage, to free itself of continuing, unproductive, internal,  and improper [conduct]."  NLRB v. Eldorado Mfg. Corp., 660  F.2d 1207, 1214 (7th Cir. 1981);  see also Washington Materials, Inc. v. NLRB, 803 F.2d 1333, 1340-41 (4th Cir. 1986)  (same).  As the Seventh Circuit concluded in Eldorado, "to  ascribe any motive to [this] discharge[ ] other than a long  overdue intolerance of [Senff's] offensive and disruptive acts  would be to indulge in unwarranted speculation."  660 F.2d at  1214.


48
The majority's analysis violates the time-honored principle  that enough is enough.  Yes, the company rehired Senff.  But  to suppose that "Senff's value as an employee outweighed the  cost of keeping him" until he engaged in union activities is to  engage in pure speculation.  Maj. op. at 9.  The cost-benefit  calculus is not so simple.  The costs of Senff's behavior must  reflect some notion of cumulation, some recognition that the  twenty-fifth instance of tardiness is worse than the first or  the fifth.  The marginal aggravation of each instance is not  identical to the one before it.  At some point, the marginal cost becomes too much, especially in view of Senff's avowed  intention to impose those costs in perpetuity.


49
Likewise, the benefits of retaining a problem employee are  not necessarily constant, but can vary according to extrinsic  conditions unrelated to union activity.  For instance, Senff's  value to the company might temporarily increase if there  were a transitory shortage of good deckhands, or if the  company's stock of experienced deckhands declined because  of workforce changes.  It is not surprising that a company  might rehire a problem employee:  Garvey Marine may have  needed an experienced deckhand and rehired Senff in the  hope he had learned his lesson.


50
The majority's insistence that Garvey Marine "persuasively  explain what change of circumstances -other than his union  activity -induced it to change its position and again fire  Senff" places too high a burden on employers.  See maj. op.  at 9.  A reasonable circumstance for termination is the accumulated irritation of Senff's relentless, in-your-face tardiness. The majority's "changed circumstances" rule makes little  sense in a case like this where "any reasonable employer  would find ... [the employee's conduct] objectionable and ...  be expected to react with some form of discipline."  Decision  at 29.  Are we to suppose that the employer must tolerate  misconduct so long as the problem employee maintains the  same level of insubordination?  That, I am afraid, is where  the majority's theory leads.


51
I am also unconvinced that a bargaining order is warranted, especially once Senff's termination is removed as a justification.  A bargaining order is an extreme remedy.  See  Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1170  (D.C. Cir. 1998);  Skyline Distrib. v. NLRB, 99 F.3d 403, 410  (D.C. Cir. 1996);  Avecor, Inc. v. NLRB, 931 F.2d 924, 938-39  (D.C. Cir. 1991).  The unfair labor practices here were not so  outrageous that an injunction and an assurance against retribution would not ensure a fair re-run election, especially  given the substantial turnover among the pilots (the perpetrators of the ULPs) and the deckhands (the victims).  See maj.  op. at 13 (noting turnover).  I am not persuaded that speculative arguments such as the "legacy of coercion" will survive in  the "lore of the shop" sufficiently justify the Board's order. See Decision at 5-6.  At the least, if the Senff unfair labor  practice were not upheld, the Board ought to reconsider the  scope of the relief.

