United States Court of Appeals


Argued November 6, 2000 Decided April 17, 2001 

No. 00-1076

Garvey Marine, Inc., 


National Labor Relations Board, 

International Longshoremen's Association, Local 2038, 

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-

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 

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 

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 

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-

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 

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 

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.