209 F.3d 727 (D.C. Cir. 2000)
Vincent Industrial Plastics, Inc.,Petitionerv.National Labor Relations Board, Respondent
No. 99-1202
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2000Decided April 14, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Ronald I. Tisch argued the cause for petitioner.  With him on the briefs were Paul J. Kennedy and Alan D. Cohn.
Anne Marie Lofaso, Attorney, National Labor Relations  Board, argued the cause for respondent.  With her on the  brief were Leonard R. Page, General Counsel, Linda R. Sher,  Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David Habenstreit, Supervisory Attorney.
Before:  Edwards, Chief Judge, Tatel and Garland, Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge:


1
Vincent Industrial Plastics, Inc.  ("Vincent" or "the Company") operates a plastics manufacturing plant in Henderson, Kentucky.  On February 19, 1993, a  majority of Vincent's full and part-time production and maintenance employees (designated a bargaining unit by the National Labor Relations Board ("the Board")) selected the  International Chemical Workers Union, AFL-CIO, Local  1032 ("the Union") as the employees' bargaining representative.  The Board certified the Union on September 29, 1993,  and Company and Union officials commenced collective bargaining negotiations in January 1994.  The negotiations continued for more than a year, but the parties were unable to  reach a final agreement.  On February 16, 1995, after receiving a decertification petition from unit employees, the Company withdrew its recognition of the Union and declined to  participate in any further collective bargaining negotiations. Between July 5, 1994 and April 20, 1995, the Union filed  several unfair labor practice charges ("ULPs") alleging that  Vincent violated the National Labor Relations Act ("the  Act"), 29 U.S.C. § 158(a)(1), (3), (5) ("s 8"), by unilaterally  implementing material changes in working conditions, coercively interrogating an employee, disciplining and terminating  employees on account of their support for the Union, and  unlawfully withdrawing its recognition of the Union.  The  Board issued complaints on all of the charges.


2
Following a hearing on the complaints, an Administrative  Law Judge ("ALJ") concluded that the Company was guilty  of ULPs on all but one charge.  See Vincent Indus. Plastics,  Inc., 328 N.L.R.B. No. 40, 1999 WL 282397, at *9 (1999).  The  National Labor Relations Board ("Board") subsequently held  that Vincent was guilty of ULPs on all charges.  The Board  specifically rejected the ALJ's finding that Vincent had not  violated the Act in unilaterally changing the Company's attendance policy.  See id. at *1.  The Board foundthat the attendance policy was a material working condition, and that  Vincent was not legally justified in changing the policy without the Union's agreement.  The Board issued a cease-anddesist order (including a remedy of reinstatement and back  pay for the employees who were unlawfully fired) and a  "Gissel" bargaining order, see NLRB v. Gissel Packing Co.,  395 U.S. 575 (1969), requiring the Company to recognize the  Union and to resume collective bargaining negotiations.


3
Vincent petitions for review of the Board's order, and the  Board cross-petitions for enforcement.  We grant the Board's  petition for enforcement, with one significant exception.  The  Board, inexplicably, has once again defied the law of this  circuit and failed to offer an adequate justification for the  bargaining order sanction imposed against Vincent.  We  therefore find ourselves in the all-too-familiar position of  having to remand this case to the Board for adequate justification of the proposed affirmative bargaining order, thus  further delaying relief for the employees the Board purports  to protect.

I. BACKGROUND
A. Factual Background

4
The facts of this case are laid out in detail in the ALJ's  decision, so we need only summarize here.  The Company's  conduct that was found to be unlawful by the Board began  during the last half of 1994, after Vincent and the Union had  been negotiating for five months.  Between July and December, 1994, Vincent unilaterally promulgated four policy  changes relating to attendance, work duties, working hours,  and time-keeping.  We review each of these briefly.


5
On July 1, 1994, Vincent changed the policy by which it  disciplined employees for attendance problems.  Prior to that  time, Vincent used a bifurcated system to tally employees'  excess attendance "occurrences" (unexcused absences, tardiness, and early exits).  For pre-August 1992 hires, occurrences cleared from an employee's personnel file at the end of  every fiscal year.  For employees hired after August 1992,  occurrences cleared on a rolling 360-day basis.  All employees were subject to discipline if they incurred a certain  number of attendance occurrences during the applicable period.


6
Vincent believed that, among pre-August 1992 hires, the  end of each fiscal year occasioned a rash of attendance  occurrences as employees took advantage of the impending  slate-cleaning to maximize their attendance occurrences for  the year.  Vincent proposed that pre-August 1992 hires operate under the rolling system.  The Union stated that it  wanted to negotiate the entire contract rather than agree to  provisions piecemeal.  In the face of the Union's insistence on  negotiating the entire agreement prior to agreeing to a  revised attendance policy, the Company unilaterally imposed  its policy change on July 1, 1994, at the beginning of the new  fiscal year.


7
Between October and December 1994, Vincent instituted  three additional policy changes without first proposing them  to the Union during ongoing collective bargaining sessions. First, in October, Vincent relieved quality control employees  of their weighing and labeling duties, which comprised 25% of  their workday, and transferred the duties to press operators. Then, in mid-November, Vincent instituted a shift extension  requiring quality control employees to work an extra 15  minutes at the end of each shift.  Finally, on December 9,  1994, Vincent eliminated the use of time cards and instituted  a team system in which employees check in at the beginning  of their shift with their "team leader," and the team leader  then keeps track of the hours worked by each team member. Vincent alleged that the new system was precipitated by its  observation that time cards were often lost or stolen, that  employees clocked in without reporting immediately to work,  and that employees clocked in for one another.


8
In addition to the foregoing changes in working conditions,  the Union also filed ULP charges related to Vincent's treatment of four Union members.  First, in December 1994,  Mark Coomes, a supervisor, called Robert Ferguson away  from his machine and asked him whether he had heard  anything about the Union going on strike.  This inquiry was apparently prompted by an earlier conversation that day  between Mr. Coomes and Michael Early, president of the  Union, in which Mr. Early raised the possibility of a strike  vote.  In response to Mr. Coomes' questioning, Mr. Ferguson  responded that he did not know anything about a possible  strike.  Mr. Ferguson testified that Mr. Coomes inquired as  to a possible strike a second time that day, in the break room. The Union alleged that Mr. Coomes' conduct constituted  coercive interrogation in violation of the Act.


9
In January 1995, Vincent disciplined Gloria Chester, the  Union's designated observer at the 1993 election and its plant  steward until October 1993, for alleged insubordination and  disrespectful actions toward a supervisor.  On the day when  she was disciplined, Ms. Chester, while returning to her press  after bringing some material to the quality control office,  stopped to speak with Sue Scott, another press operator. During the conversation, Ms. Scott complained to Ms. Chester about a clean-up job that Supervisor Rebecca Basham had  assigned to Ms. Scott.  Ms. Chester said, "I would tell Becky  to kiss my ass."  At this time, Ms. Basham was standing  behind Ms. Chester and overheard the remark.  Ms. Chester,  apparently unaware of Ms. Basham's presence, returned to  her press area.  Later that day, Tina Bradford, Vincent's  personnel manager, issued Ms. Chester a written warning. The Union claimed that Vincent disciplined Ms. Chester on  account of her Union affiliation.


10
The third ULP related to Vincent's treatment of Union  members involves the allegedly discriminatory termination of  Mr. Early, Union President, in February 1995.  Mr. Early  was arrested in September 1994 for driving while intoxicated. He was to be sentenced either to 32 days jail time or to five  months of jail time in coordination with a work release  program with his employer.  In February 1995, Mr. Early  approached John Domsic, plant manager, and requested that  Vincent participate in the work release program.  On February 7, Mr. Domsic informed Mr. Early that Vincent would not  participate in the work release program.  Mr. Early then  inquired abut the possibility of taking personal leave, and Mr.  Domsic replied that he would get back to Mr. Early.


11
On February 13, Mr. Early was sentenced to 32 days in jail  and 28 days in a rehabilitation center, to begin February 17.On February 14, Mr. Early called Ms. Bradford, informed her  that he would be starting a jail sentence and therefore would  not be able to report to work, and asked about COBRA  benefits.  When Ms. Bradford said she was not aware that he  had been terminated, he replied that he felt that the Company's refusal to participate in the work release program was  tantamount to termination.  When Mr. Early failed to report  to work on February 15, he was effectively terminated.


12
The day Mr. Early was terminated, employees circulated a  petition to decertify the Union.  Over two days, on February  15 and 16, 1995, a majority (82 out of 128) of the maintenance  and production employees signed the petition.  Management  at Vincent verified the signatures and informed the Union  that the Company would no longer engage in bargaining. After withdrawing its recognition of the Union, Vincent  granted wage increases, implemented a 401(k) plan, and  denied the Union's request for information regarding bargaining unit employees.


13
About a month later, on March 20, Vincent terminated  Wanda Nantz, a press operator and Union supporter (she  was, in fact, among those who did not sign the petition to  decertify the Union).  Vincent alleges that it fired Ms. Nantz because she failed, for the first two hours of her March20  shift, to record hourly "shot" counts (i.e., the number of parts  produced for that hour) in the machine's production log. After the omission was brought to Ms. Nantz's attention, she  recorded the counts until she was relieved of her duties and  given a disciplinary notice.  The discipline would not have  resulted in Ms. Nantz's discharge except that she earlier had  been suspended for three days for smoking near her press.

B. Board Proceedings

14
The ALJ found that Vincent violated the Act by unilaterally  implementing all of the policy changes except for the attendance policy.  The ALJ termed the attendance problem "sufficiently urgent to warrant unilateral implementation" of the  employer's policy.  Vincent Indus., 1999 WL 282397 at *9.  According to the ALJ, the Union had the opportunity to  bargain but chose to insist on an overall agreement.  See id.As for the other policy changes, the ALJ found both that, in  each case, Vincent failed to present the proposed changes to  the Union during contract negotiations, thereby giving the  Union no opportunity to bargain over the issues, and that  none of the changes was necessitated by economic hardship. See id. at *8, *10.


15
In addition, the ALJ found the questioning of Mr. Ferguson, the termination of Mr. Early and Ms. Nantz, and the  disciplining of Ms. Chester to constitute violations of S 8(a)(1)  and (3) of the Act.  The interrogation of Mr. Ferguson,  according to the ALJ, interfered with Mr. Ferguson's right  "to keep private his sentiments as to the Union and his  knowledge of its affairs."  Id. at *10.  The ALJ found that  Gloria Chester's discipline was motivated by her Union affiliation, given the "ample credible evidence" that the language  she used generally was tolerated at Vincent, that no documentation supported Vincent's assertions that other employees had been disciplined for similar behavior, and that no  management representative ever questioned Ms. Chester  about the reason she left her press area, which was ostensibly  the reason she was disciplined.  Id. at *11-12.  The ALJ  termed Vincent's explanation for why it refused to accommodate Mr. Early's work release or leave request "inartful  pretext," and found that, but for Mr. Early's Union affiliation,  Vincent would not have both declined to participate in the  work release program and denied him personal leave.  See id.  at *13.  With respect to Ms. Nantz, the ALJ found that,  during the five-month period that the requirement of an  hourly "shot" count had been in effect, no one was cited for  omissions from the production log although omissions did  occur.  See id. at *15.  The ALJ accordingly concluded that,  given Ms. Nantz's public pro-Union stance, the issuance of  the citation to Ms. Nantz followed by her discharge was  discriminatory and a violation of S 8(a)(1) and (3) of the Act.


16
On review of the ALJ's decision, the Board affirmed all of  the ALJ's ULP findings save one.  The Board reversed the  ALJ on the attendance policy issue, finding that Vincent had "failed to prove that its attendance problem constituted an  economic exigency."  Id. at *2.  Therefore, the Board found  that the change in attendance policy violated S 8(a)(1) and (5)  of the Act.


17
On its own analysis, the Board found that Vincent's withdrawal of recognition was a violation of S 8(a)(1) and (5) of  the Act, applying the so-called "Master Slack" factors, see  Master Slack Corp., 271 N.L.R.B. 78 (1984), to evaluate the  causal connection between the unremedied ULPs and subsequent employee expression of dissatisfaction with a union. The Board cited the following factors in finding a causal  connection between the ULPs and the decertification movement:  (1) the unremedied ULPs continued until the day  before the employees began signing the decertification petition;  (2) the unilateral changes and disciplining of Union  supporters were "likely to have a long lasting effect on the  bargaining unit and to discourage employees from supporting  the Union";  and (3) the disciplining and termination of Union  supporters "convey to employeesthe notion that any support  for the Union may jeopardize their employment."  Vincent  Indus., 1999 WL 282397, at *3.  The Board also imposed an  affirmative bargaining order as a remedy for the Company's  violations of the Act.  No justification was offered to support  the bargaining order.


18
Vincent petitions for review of all of the above findings.  In  addition, Vincent argues that the Board has failed to adequately justify imposing an affirmative bargaining order as a  remedy for the violations of the Act.  The Board cross petitions for enforcement of its order.

II. ANALYSIS

19
Under the Act,


20
[i]t shall be an unfair labor practice for an employer


21
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;...


22
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ...


23
(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.


24
29 U.S.C. S 158(a).  We review Board ULP findings under a  deferential standard.  This court will uphold the Board's  decision upon substantial evidence even if we would reach a  different result upon de novo review.  See Perdue Farms,  Inc., Cookin' Good Div. v. NLRB, 144 F.3d 830, 834-35 (D.C.  Cir. 1998).  We are even more deferential when reviewing the  Board's conclusions regarding discriminatory motive, because  most evidence of motive is circumstantial.  See LCF, Inc. v.  NLRB, 129 F.3d 1276, 1281 (D.C. Cir. 1997).


25
Furthermore, when the Board, as it did here, concludes  that unremedied ULPs tainted a decertification petition, this  court requires it to offer a reasoned explanation, based on  substantial evidence, in support of its finding.  See Quazite  Div. v. NLRB, 87 F.3d 493, 496-97 (D.C. Cir. 1996).  Finally,  to justify the imposition of an affirmative bargaining order,  we require the Board to explicitly balance three considerations:  (1) the employees' S 7 rights;  (2) whether other  purposes of the Act override the rights of employees to  choose their bargaining representatives;  and (3) whether  alternative remedies are adequate to remedy the violations of  the Act.  See Skyline Distribs. v. NLRB, 99 F.3d 403, 410  (D.C. Cir. 1996).

A. The Board's ULP Findings

26
The Board's holding that Vincent's unilateral actions changing established working conditions constituted ULPs is easily  upheld.  An employer may not unilaterally impose material  changes in terms or conditions of employment that are mandatory subjects of bargaining without first negotiating to  impasse.  See Litton Fin. Printing Div. v. NLRB, 501 U.S.  190, 198 (1991);  Grondorf, Field, Black & Co. v. NLRB, 107  F.3d 882, 886 (D.C. Cir. 1997).  There are two exceptions to  this general rule:  An employer may impose unilateral terms  if the union engages in dilatory tactics to delay bargaining.  See Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 235  (D.C. Cir. 1996).  And an employer may act unilaterally if  faced with an economic exigency justifying the change.  See  Visiting Nurse Servs., Inc. v. NLRB, 177 F.3d 52, 56 (1st Cir.  1999), cert. denied, 120 S. Ct. 787 (2000);  RBE Elecs. of S.D.,  Inc., 320 N.L.R.B. 80, 81 (1995).  An economic exigency must  be a "heavy burden" and must require prompt implementation.  See RBE Elecs., 320 N.L.R.B. at 81.  The employer  must additionally demonstrate that "the exigency was caused  by external events, was beyond the employer's control, or was  not reasonably foreseeable."  Id. at 82 (footnote omitted).


27
Vincent imposed all of the changes save one without presenting a proposal tothe Union during bargaining sessions. Vincent can mount no argument that any of the disputed  changes were made due to an economic exigency, although it  tries to argue that the changes were not material or that they  were waived by the Union.  These arguments hold no water: All of the changes involved mandatory subjects of bargaining,  they raised material issues, and the Union cannot be held to  have waived the right to bargain over an issue that was never  proposed during bargaining sessions.  There is one change  that Vincent did propose before imposing:  the change in  attendance policy.  Vincent urges that the Board's decision on  the attendance policy issue should be reversed, first, because  the Union waived its right to bargain over this issue, and,  second, because the Company had to make the changes in  order to meet an economic exigency.  Vincent's arguments  are meritless.


28
There was no waiver by the Union here.  The Union  desired to bargain over the attendance policy;  it made clear  to Vincent that it wanted to negotiate the entire contract,  including the attendance policy, as a whole.  See Visiting  Nurse Servs., 177 F.3d at 59 (rejecting employer's suggestion  that a union cannot insist on negotiating an entire contract  rather than piecemeal negotiation).  In addition, the Union  offered counter-proposals to the Company's attendance policy  prior to Vincent's imposition of the policy change.  See  Eighth Negotiation Session Meeting Notes, May 18, 1994, at  3-5, reprinted in Joint Appendix ("J.A.") 795-97;  Ninth Negotiation Session Meeting Notes, May 24, 1994, at 3-4,  reprinted in J.A. 802-03.  The Union did not precipitate an  impasse by insisting on negotiating a contract as a whole  rather than piecemeal.  Such a view is mischievous, because it  would both "permit the employer to remove, one by one,  issues from the table and impair the ability to reach an  overall agreement through compromise on particular items"  and "undercut the role of the Union as the collective bargaining representative."  Visiting Nurse Servs., 177 F.3d at 59.


29
Nor did the Board err in finding a lack of evidence to  support Vincent's claim of economic necessity.  The Board  correctly noted that the "exigency" asserted by Vincent was  hardly extraordinary:  The Company could point only to the  impending possibility of attendance problems.  The Board  reasonably found that the Company's alleged problem did not  pose a "heavy burden" necessary to show an economic exigency.  See RBE Elecs., 320 N.L.R.B. at 81.  In addition, the  Board reasonably concluded that Vincent failed to show that  the attendance problem was unforeseen, caused by external  events outside its control, or that it was new.  See id. at 82.


30
The Board's findings that Vincent fired two employees and  disciplined another in violation of the Act are also supported  by substantial evidence in the record.  To establish a causal  nexus between adverse employment decisions and an employee's union affiliation, the complaining party must first show  that protected activity "was a 'motivating factor' " in the  adverse employment decision, and then the employer may  show that it would have made the adverse decision even had  the employee not engaged in protected activity.  Wright  Line, Inc., 251 N.L.R.B. 1083, 1089 (1980);  see also NLRB v.  Transportation Management Corp., 462 U.S. 393, 403 (1983)  (approving of Wright Line approach).  To establish an employer's discriminatory motive, the NLRB may "consider[ ]  such factors as the employer's knowledge of the employee's  union activities, the employer's hostility toward the union, and  the timing of the employer's action."  Power Inc. v. NLRB,  40 F.3d 409, 418 (D.C. Cir. 1994).  Evidence that an employer  has violated S 8(a)(1) of the Act can support an inference of anti-union animus.  See Parsippany Hotel Management Co.  v. NLRB, 99 F.3d 413, 423-24 (D.C. Cir. 1996).


31
The ALJ found, and the Board affirmed, that Vincent  violated the Act in three instanceswhen it took adverse  employment actions against its employees on account of their  Union affiliation:  (1) when Vincent disciplined Gloria Chester;(2) when Vincent terminated Michael Early;  and (3) when  Vincent terminated Wanda Nantz.  With respect to all three  findings, there is substantial evidence to support the Board's  determination.


32
The ALJ, with whom the Board agreed, relied on Ms.  Chester's position as a Union supporter, the fact that she  received discipline at a time when Vincent had taken several  unlawful unilateral actions, and the "significant aberrant circumstances surrounding issuance of the warning" to conclude  that the discipline would not have occurred but for Ms.  Chester's Union involvement.  Vincent Indus., 1999 WL  282397, at *11.  There is substantial evidence to support this  conclusion, especially given our deference to the Board's  findings regarding discriminatory motive.  See Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995).Vincent cites to testimony in which the employer asserted  that other employees had been disciplined for similar behavior, but the ALJ and Board rejected this testimony for lack of  documentary or other corroborating evidence.  The Board's  judgment on this point was reasonable.  Cf. Synergy Gas  Corp. v. NLRB, 19 F.3d 649, 653 (D.C. Cir. 1994) (reversing  finding of discrimination where company introduced personnel records to demonstrate that other employees had been  terminated for actions similar to that of the complaining  employee).


33
The ALJ and the Board relied on similar factors to conclude that the Company discharged Mr. Early in violation of  the Act.  First, the ALJ found that a prima facie case of  discrimination was established in light of the other unlawful  conduct engaged in by Vincent and the Company's response  to Mr. Early's request for accommodation.  See Vincent  Indus., 1999 WL 282397, at *13.  The ALJ found Vincent's explanation for refusing to participate in the work release  program to be "cryptic" and nothing "other than inartful  pretext."  Id. (noting that Mr. Domsic stated both that  Vincent did not want to take responsibility for Mr. Early's  program and that Vincent did not know what it would have  been required to do).  The Board agreed and we cannot  second-guess that judgment.  In upholding the Board on this  point, we do not suggest that all employers must grant all  requests similar to Mr. Early's lest they be accused of  discriminating against bargaining unit employees.  A company that consistently applies neutral policies, for example,  usually is on safe ground.  See TIC-The Indus. Co. Southeast, Inc. v. NLRB, 126 F.3d 334, 338 (D.C. Cir. 1997).  In  this case, there is no evidence that the Company had any  policy at all to apply to Mr. Early.  Therefore, it cannot be  said that the ALJ was unreasonable in finding that Mr.  Early's status as Union President influenced Vincent's decision to refuse to accommodate his particular needs as a result  of his arrest, especially considering the ALJ's conclusion,  supported by substantial evidence, that Mr. Early "was a  long-term skilled press operator and that there is not a  scintilla of evidence that alcohol ever affected his job performance or that he posed any threat to others at the plant."Vincent Indus., 1999 WL 282397, at *13.


34
Vincent argues that the ALJ erroneously found violations  of the Act for the discharge of Ms. Nantz on two grounds:  (1)  the ALJ erroneously concluded that Vincent knew of Ms.  Nantz's Union affiliation;  and (2) the discipline meted out to  Ms. Nantz was consistent with Vincent's past practice.  The  first challenge is easily dismissed.  Ms. Nantz had been a  pro-Union advocate during the election, the shop steward, and  the Treasurer of the Local, and she had refused to sign the  decertification petition.  Under these circumstances, there  was substantial evidence for the ALJ to conclude that Vincent  was aware of Ms. Nantz's affiliation with the Union.


35
With respect to Vincent's justification for disciplining Ms.  Nantz, the ALJ found that, for the five months that the  hourly "shot count" requirement was in place, there was no  evidence that any employees were disciplined even though employees other than Ms. Nantz had made mistakes.  Vincent proffered evidence that prior to the institution of the  new policy, employees were warned for failure to fill out  production logs correctly;  but there are no such warnings in  evidence (apart from Ms. Nantz's discharge) for the period  during which the new policy was in place.  Under these  circumstances, there was substantial evidence for the ALJ  and Board to conclude that Vincent's purported reason for  disciplining Ms. Nantz was pretextual.


36
The Board's finding that Vincent supervisor Mark Coomes  violated the Act by coercively interrogating Robert Ferguson  is less easily upheld.  The interrogation of employees by an  employer is evaluated under a five-factor totality of the  circumstances test in order to determine whether the questioning is coercive and therefore violates S 8(a)(1).  These  factors are:  (1) the history of the employer's hostility and  discrimination against unions;  (2) whether the information  sought is of a type that could be used to take action against  individual employees;  (3) the rank of the questioner;  (4)  where the questioning occurred;  and (5) the truthfulness of  the reply.  See Perdue Farms, Inc., 144 F.3d at 835.  Here  the ALJ relied on the following facts to conclude that Mr.  Coomes compromised Mr. Ferguson's right to "keep private  his sentiments as to the Union and his knowledge of its  affairs":  Mr. Coomes pulled Mr. Ferguson away from his  work area to initiate questioning;  and Mr. Ferguson had not  previously identified with the Union.  Vincent Indus., 1999  WL 282397, at *10.  The ALJ inferred that Mr. Coomes'  purpose, to test the strength of the Union, was clear.  Given  the substantial evidence in the record, we cannot say that this  conclusion is unreasonable.


37
Vincent relies on Certainteed Corp., 282 N.L.R.B. 1101  (1987), for the proposition that there is nothing coercive about  an employer inquiring about the possibility of a strike.  In  Certainteed, the ALJ found that the employer did not violate  the Act by asking an employee about the possibility of a  strike, because the employer had a reasonable basis to fear an  "imminent strike" and had an interest in determining whether  it would be able to keep its business open.  282 N.L.R.B. at 1107.  Here, while Mr. Coomes had just heard from Mr.  Early about the possibility of a strike vote, Mr. Coomes had  no legitimate reason for inquiring of Mr. Ferguson;  Mr.  Early's offhand comment about the possibility of a strike vote  sometime in the future could hardly be relied upon to support  a reasonable basis to fear an "imminent strike."  Certainteed  does not compel reversal of the Board.


38
The Board's findings that several unremedied ULPs tainted the decertification petition is unassailable.  For the first  year after a successful certification election, a union enjoys an  irrebuttable presumption of majority support, after which the  employer may withdraw recognition if it has a good faith,  reasonable basis to doubt majority support for the union.  See  Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 37-38 (D.C. Cir. 1980).  When a majority of unit employees signs a petition in  support of decertification, an employer may reasonably doubt  that there exists majority support for the union.  See Sullivan Indus. v. NLRB, 957 F.2d 890, 898 (D.C. Cir. 1992).Nonetheless, if the Board determines that unremedied ULPs  contributed to the erosion of support for the union, the  employer may commit an unfair labor practice by withdrawing its recognition of the union.  See, e.g., Lee Lumber &  Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1458-60 (D.C.  Cir. 1997) (per curiam) (examining whether ULPs contributed  to lack of support for union).


39
The Board's traditional four-factor test for determining  whether there is a causalconnection between unremedied  ULPs and a petition for decertification consists of the following elements:  "(1) [t]he length of time between the unfair  labor practices and the withdrawal of recognition;  (2) the  nature of the illegal acts, including the possibility of their  detrimental or lasting effect on employees;  (3) any possible  tendency to cause employee disaffection from the union;  and  (4) the effect of the unlawful conduct on employee morale,  organizational activities, and membership in the union."Master Slack Corp., 271 N.L.R.B. at 84.  Vincent argues that  the explanation offered by the Board does not satisfy the  Master Slack requirements.  We reject this contention.


40
The Board adequately explained its decision on the basis of  all four Master Slack factors, in more than conclusory language.  The Board noted the close temporal link between the  unremedied ULPs and the decertification petition.  See Vincent Indus., 1999 WL 282397, at *3.  The Board additionally  explained that the unilateral implementation of changes in  working conditions has the tendency to undermine confidence  in the employees' chosen collective-bargaining agent.  See id.The Board finally reasonably concluded that the discipline  and termination of public supporters of the Union "convey to  employees the notion that any support for the Union may  jeopardize their employment."  Id.  The Board's conclusion  that Vincent's practices contributed to the decertification  petition are reasonably justified and supported by substantial  evidence.  See NLRB v. Williams Enters., Inc., 50 F.3d 1280,  1288-89 (4th Cir. 1995) (upholding finding of causation where  four months passed between company's anti-union statements  and decertification petition);  Columbia Portland Cement Co.,  303 N.L.R.B. 880, 882 (1991), enf'd, 979 F.2d 460, 464-65 (6th  Cir. 1992) (upholding Board's finding of causation where  justification offered by Board was simply that the unremedied  ULPs "are likely to have undermined the Union's authority  generally and influenced [the Union's] employees to reject the  Union as their bargaining representative") (internal quotation  marks omitted) (alteration in original).

B.The Board's Remedies

41
The Board's remedies on behalf of the Union and the unit  employees who were adversely affected by Vincent's ULPs  included a cease-and-desist order, reinstatement and back  pay for the employees who were unlawfully terminated, and  an affirmative bargaining order.  The Company challenges all  of the remedies imposed by the Board on the grounds that  the employer did not commit any ULPs.  As noted above, we  reject this contention as meritless.  The Company argues  further, however, that even if the Board did not err in finding  the aforecited ULPs, there was no basis for the Board to  issue an affirmative bargaining order against Vincent.  The  Company's argument on this point is well taken.


42
The Board approved the ALJ's recommended remedy of an  affirmative bargaining order with little explanation.  The  closest the ALJ came to justifying the order was to observe  that the "serious and egregious misconduct shown here[ ]  demonstrates a general disregard for fundamental rights  guaranteed employees by Section 7 of the Act."  Vincent  Indus., 1999 WL 282397, at *15.  This will not do.  This court  repeatedly has reminded the Board that an affirmative bargaining order is an extreme remedy that must be justified by  a reasoned analysis that includes an explicit balancing of  three considerations:  (1) the employees' S 7 rights;  (2)  whether other purposes of the Act override the rights of  employees to choose their bargaining representatives;  and (3)  whether alternative remedies are adequate to remedy the  violations of the Act.  See Skyline Distribs., 99 F.3d at 410.There is no such reasoned analysis in the instant case.


43
Instead, the Board's counsel was forced to conjure up an  argument in an effort to bolster the Board's unsupported  position.  According to counsel, the Boardneed not justify  the imposition of a bargaining order in two types of cases: where the employer has unlawfully withdrawn recognition  from the Union;  and, as a subset of the first class, where  there are explicit Master Slack findings demonstrating a  causal connection between unremedied ULPs and a withdrawal of recognition.  See Br. for NLRB at 47-55.  Counsel's argument in defense of this position was inspired and  thoughtful, albeit in vain.  The problem here is that counsel's  argument is nowhere to be found in the orders under review,  so we cannot ascribe it to the Board.  The argument therefore constitutes a post hoc rationalization, which carries no  weight on review.  See International Union of Petroleum &  Indus. Workers v. NLRB, 980 F.2d 774, 781 (D.C. Cir. 1992).


44
The Board's stubborn refusal to accept this circuit's position on affirmative bargaining orders is perplexing, for it  merely undermines the Board's purported goal of protecting  workers against employer violations of the Act.  Board decisions, like those from other administrative agencies, are  entitled to deference.  However, once a court has issued a  legal ruling on a disputed issue, the Board is bound to follow the court's judgment unless and until it is reversed by the  Supreme Court.  The Board, no doubt, will plead innocence,  claiming that circuit courts often take different positions on  certain legal issues, so the Board is free to adopt a course  most to its liking within a maze of disparate courts of appeals  judgments.  In addition, as counsel pointed out during oral  argument in this case, the Board sometimes has no clear idea  where a petition for review will be filed, so it cannot always  guess right in deciding what circuit law to follow.  This latter  point is a fair rebuttal, but it is shortsighted in a case such as  the instant one.  What is so troubling about this case, and  others like it, is that the Board could easily follow the law of  the D.C. Circuit--i.e., give a reasoned analysis to support an  affirmative bargaining order--without ever transgressing the  law of any other circuit.  Some other circuits may not require  as much as does the D.C. Circuit with respect to what is  required to justify an affirmative bargaining order, but no  circuit will reject a bargaining order if the Board justifies it  as this court requires.


45
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.  As a result of the Board's failure to justify the  imposition of an affirmative bargaining order, relief for the  employees represented by the Union will be that much further delayed.  Three years passed between the ALJ's decision and the Board's decision upholding the ALJ.  Another  year has passed since the issuance of the Board decision here  on review.  We now remand to the Board for an undetermined amount of time.  As the Board well knows, in the  context of employee representation and collective bargaining,  relief delayed under the Act may be relief denied.  This  makes little sense where, as here, the Board can easily satisfy  the commands of this circuit's law without running amok  because of a split in the law of the circuits.  The Board may persist in its stubbornness, but that will not  dissuade this court from fulfilling its role on behalf of parties seeking judicial review.  As we have said before when remanding to the Board to justify an affirmative bargaining  order, "[w]e persist not out of pique but from a sense that it  is our duty to ensure that the Board adheres to its statutory  mandate."  Caterair Int'l v. NLRB, 22 F.3d 1114, 1123 (D.C.  Cir. 1994).

III. CONCLUSION

46
For the reasons articulated herein, we deny in part and  grant in part the petition for review and we grant in part and  deny in part the cross-application for enforcement.  We remand the case to the Board with instructions to justify the impositionof an affirmative bargaining order as required by  the law of this circuit or, in the absence of such justification,  to vacate that portion of the remedy.

