Garvey Marine, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2000 Decided April 17, 2001

No. 00-1076

Garvey Marine, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

International Longshoremen's Association, Local 2038,

Intervenor

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 ap-

pearance.

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: The International Longshore-

man'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 ss 8(a)(1), (3), and (5)

of the National Labor Relations Act, 29 U.S.C. ss 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) (hereinafter Decision).

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

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.

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.

The Union then filed an unfair labor practice charge

against Garvey alleging that Garvey's agents had made nu-

merous 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. ss 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").

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 pro-

union 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 deck-

hands 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.

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, subjec-

tive, 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 institu-

tion of the new policy was an ULP. Id. at 29.

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 dis-

missed in April 1995 after having been given repeated warn-

ings -- 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 danger-

ous, he threatened to damage Company property and to fake

a workplace accident. Despite these two employees' admit-

tedly serious misconduct, the ALJ held their dismissals were

unlawful. He offered several reasons, notably Garvey's histo-

ry 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.

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 none-

theless to advocate election of the Union. Id. at 31-32.

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.

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

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 cam-

paign, 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

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 prom-

ises 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.

The Board took the opposite position, to which we must

defer if it is supported by substantial evidence:

[T]he Board's determination of whether a particular ac-

tor 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."

Overnite Transp. Co. v. NLRB, 140 F.3d 259, 265 (D.C. Cir.

1998). The Board's determination finds such support. Gar-

vey 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 poli-

cies 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 posi-

tion. 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

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 progres-

sive 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 dis-

missals 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.

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), ap-

proved by NLRB v. Transp. Mgmt. Co., 462 U.S. 393, 401

(1983), overruled in other respects, Director, Office of Work-

ers' 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

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 consis-

tently 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 with-

out him. After ignoring numerous warnings Senff was dis-

charged for tardiness some time in 1994. He was later

rehired, however, in "late 1994 or early 1995." Id.

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 cam-

paign." Id. at 2.

Garvey's awareness of Senff's union activities and the tim-

ing 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 sympa-

thies.

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 Deci-

sion 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 entire-

ly reliable.

The General Counsel having made his prima facie case, the

burden shifted to Garvey to show that it would have dis-

missed 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, demon-

strates 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.

__________

* 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 be-

came 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

2. Dismissal of Bradley

The Board's decision regarding Garvey's dismissal of Brad-

ley 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 Brad-

ley'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.

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

__________

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.

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

The Board may order an employer to bargain with a union

that has lost a representation election because of the employ-

er'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 employ-

er's ULPs were "serious," Skyline Distrib. v. NLRB, 99 F.3d

403, 410 (D.C. Cir. 1996), and the Board must have

explicitly balance[d] three considerations: (1) the em-

ployees' s 7 rights [to a representative of their own

choosing]; (2) whether other purposes of the Act over-

ride the rights of employees to choose their bargaining

representatives; and (3) whether alternative remedies

are adequate to remedy the violations of the Act.

Vincent, 209 F.3d at 734. The Board must also have "deter-

mine[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 reason-

able. See Traction Wholesale Ctr. Co., Inc. v. NLRB, 216

F.3d 92, 104 (D.C. Cir. 2000).

In this case the Board did all that we require. It conduct-

ed a detailed analysis of the proven ULPs, and reasonably

concluded that the resulting "legacy of coercion" would pre-

vent 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.

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.

These arguments do not show that the Board acted unrea-

sonably. The Board acknowledged that relatively few deck-

hands 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 cam-

paign; 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.

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

__________

** 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.

evaluate. The premise of Garvey's argument is false, howev-

er; 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 con-

trast, 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 argu-

ment 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.

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 influen-

tial so far as the ordinary worker is concerned than a

necessarily more formal, structured, and purposeful state-

ment 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.

Finally, Garvey contends that changes in its ownership and

turnover in its workforce make a bargaining order unneces-

sary. 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' s 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.

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:

[W]e have not in this case refused to consider the

Respondent's representations regarding turnover. Rath-

er, 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.

Decision at 6 n.14.

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 Compa-

ny 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

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.

So ordered.

Randolph, Circuit Judge, concurring in part and dissent-

ing in part: 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.

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 exceed-

ed 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 8.

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.

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 disci-

pline 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, sus-

tained 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 9.

Even with its informal, "lenient" disciplinary system, Gar-

vey 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 con-

duct. See maj. op. at 8. It later rehired him, possibly

because it faced a shortage of deckhands. See Decision at 1-

2. In addition, as Senff himself testified, the company had

discharged other deckhands for attendance problems like his.

See Decision at 13.

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. s 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 behav-

ior." 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 employ-

ee'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 Materi-

als, 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.

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.

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.

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 accu-

mulated 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.

I am also unconvinced that a bargaining order is warrant-

ed, especially once Senff's termination is removed as a justifi-

cation. 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 retri-

bution would not ensure a fair re-run election, especially

given the substantial turnover among the pilots (the perpetra-

tors of the ULPs) and the deckhands (the victims). See maj.

op. at 13 (noting turnover). I am not persuaded that specula-

tive 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.