J.g. Kern Enterprises, Inc . v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2023 Decided March 1, 2024
No. 22-1287
J.G. KERN ENTERPRISES, INC .,
P ETITIONER
v.
NATIONAL LABOR R ELATIONS B OARD ,
R ESPONDENT
Consolidated with 22-1293
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Maurice Baskin argued the cause for petitioner. With him
on the briefs was Emily Carapella.
Aaron Solem and Glenn M. Taubman were on the brief for
amicus curiae National Right to Work Legal Defense
Foundation, Inc. in support of petitioner.
Gregoire F. Sauter, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were Jennifer A. Abruzzo, General Counsel, Peter Sung Ohr,
Deputy General Counsel, Ruth E. Burdick, Deputy Associate

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General Counsel, David Habenstreit, Assistant General
Counsel, and Elizabeth A. Heaney, Supervisory Attorney.
Before: P ILLARD and C HILDS , Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS .
EDWARDS , Senior Circuit Judge: It is well settled that,
after a union has been certified by the National Labor Relations
Board (“Board” or “NLRB”) to represent employees in an
appropriate bargaining unit, the union enjoys “a conclusive
presumption of majority status for one year.” Fall River Dyeing
& Finishing Corp. v. NLRB, 482 U.S. 27, 37 (1987). This
policy, denominated the “certification year bar,” “promotes
stability in collective-bargaining relationships, allowing a
union to concentrate on obtaining and fairly administering a
collective-bargaining agreement without worrying about the
immediate risk of decertification, and relieving the employer
of any temptation . . . to avoid good-faith bargaining in an effort
to undermine union support.” Veritas Health Servs., Inc. v.
NLRB, 895 F.3d 69, 79 (D.C. Cir. 2018) (quotations omitted).
Thus, it is understood that, when an employer “take[s] from the
Union a substantial part of” the first 12 months after
certification “largely through its refusal to bargain,” the Board
may remedy the “inequit[y]” by extending the certification
year. Mar-Jac Poultry Co., 136 N.L.R.B. 785, 787 (1962). This
case involves an application of the certification year bar.
On October 3, 2018, the Board certified Local 228,
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL-
CIO (“Union”) as the collective-bargaining representative for
a unit of employees at a manufacturing facility operated by J.G.

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Kern Enterprises, Inc. (“Company”). However, despite the
Union’s repeated requests to bargain after its certification, the
Company failed to meet with Union agents until almost three
months after the start of the certification year. When the parties
finally commenced negotiations, the Company refused to
provide the Union with requested information related to
employees’ benefit plans, thus effectively foreclosing any
meaningful bargaining on this matter. By the end of the
certification year, the parties had failed to reach agreement on
the terms of a collective-bargaining contract. About two
months after the certification year expired, the Company
withdrew recognition from the Union, purportedly because the
Union had lost its majority status.
The Union filed unfair labor practice charges with the
NLRB, and the Board’s General Counsel issued consolidated
Complaints against the Company. After a hearing before an
Administrative Law Judge (“ALJ”), the Board found that the
Company had violated Sections 8(a)(1) and (5) of the National
Labor Relations Act (“Act”), 29 U.S.C. § 158(a)(1), (5), by: (1)
delaying bargaining for nearly three months after the start of
the certification year; (2) refusing to consider any proposal for
a Union-administered benefit plan; (3) refusing to furnish
information to the Union regarding the Company’s existing
employee benefit plans; and (4) withdrawing recognition from
the Union during the extended certification year. See J.G. Kern
Enters., Inc., 371 N.L.R.B. No. 91 (Apr. 20, 2022) (“Board
Decision”), reprinted in Joint Appendix (“J.A.”) 277-307. The
Board, inter alia, ordered the Company to cease and desist
from the unfair labor practices, extended the certification year
by six months from the date good-faith bargaining resumed,
and required the parties to bargain during that period. Id. at 8-
9. The Board then denied the Company’s motion for
reconsideration.

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In its petition for review before this court, the Company
challenges all of the Board’s findings in connection with the
contested unfair labor practices. The Company’s principal
arguments to this court are: first, that the Board erred in finding
an unlawful withdrawal of Union recognition based on a
retroactive extension of the original certification year; and,
second, that the Board had no legal basis to order the Company
to bargain with the Union for an additional six months.
We find no merit in the Company’s petition for review.
Substantial evidence supports the Board’s findings that the
Company committed the unfair labor practices as alleged. The
Company contends that, in finding an unlawful withdrawal, the
Board mistakenly followed the remedial rule set forth in
Whisper Soft Mills, Inc., 267 N.L.R.B. 813 (1983), rather than
the approach used in Master Slack Corp., 271 N.L.R.B. 78
(1984). We disagree. The Board’s General Counsel raised both
remedial approaches in pursuing the Complaints against the
Company. Furthermore, the remedial approaches taken in
Whisper Soft and Master Slack serve different purposes and do
not conflict. Therefore, the Board was free to choose which
legal theory to rely on in addressing the unfair labor practice
charges against the Company. Finally, we hold that the Board
acted within its discretion when it ordered an extension of the
certification year and required the parties to bargain to remedy
the Company’s unfair labor practices. An extension of the
certification year is a “standard remedy” when an employer
refuses to bargain for a significant part of that year. Veritas
Health, 895 F.3d at 80. Accordingly, we deny the Company’s
petition for review and grant the Board’s cross-petition for
enforcement of its order.

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I. B ACKGROUND
A. Statutory Background
“The object of the National Labor Relations Act is
industrial peace and stability, fostered by collective-bargaining
agreements providing for the orderly resolution of labor
disputes between” employees and employers. Auciello Iron
Works, Inc. v. NLRB, 517 U.S. 781, 785 (1996). In support of
these ends, Section 8(a)(5) of the Act generally makes it an
unfair labor practice for an employer to refuse to bargain in
good faith with the lawful representative of its employees.
29 U.S.C. § 158(a)(5). An employer who violates Section
8(a)(5) also violates Section 8(a)(1) of the Act, which makes it
an unfair labor practice for an employer “to interfere with,
restrain, or coerce employees in the exercise of [their statutory]
rights.” Id. § 158(a)(1); see also Regal Cinemas, Inc. v. NLRB,
317 F.3d 300, 309 n.5 (D.C. Cir. 2003). Under Section 10(c) of
the Act, the Board has remedial authority to order a violator “to
take such affirmative action . . . as will effectuate the policies”
of the Act. 29 U.S.C. § 160(c).
B. Factual and Procedural History
On October 3, 2018, the Board certified the Union as the
lawful bargaining agent for a unit of employees at the
Company’s manufacturing facility for automotive parts in
Sterling Heights, Michigan. On October 15, 2018, Union
officials contacted the Company’s representative, Jonathan
Sutton, offering to begin negotiations “anytime” at Sutton’s
“earliest convenience.” J.A. 97. Sutton indicated that he could
meet with the Union on November 5 to 7 or November 26 to
28. The Union promptly replied the next day that it was “ready
and willing to meet” on all those dates. J.A. 94. The Union
requested the first block of dates available, November 5 to 7,

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indicated that they could “go from there,” and asked where to
meet. J.A. 95. Sutton never responded. About two weeks later,
the Union again inquired about the meeting location. Again,
Sutton failed to answer.
On November 5, 2018, the first day of scheduled
negotiations, Sutton emailed the Union announcing he could
no longer meet in November. He stated that he was in Guam
for another client and also had just sold his house in Houston.
He offered to “ask someone else to step in and fill [his] spot.”
J.A. 116. The Union replied within half an hour on the same
day, saying they “need[ed] to get the ball rolling,” that “it
ma[de] no difference” with whom the Union negotiated, and
that the Union would file charges with the NLRB if the
Company failed to set a negotiation date by November 8. J.A.
115. Noting that it had “waited over a month to start the
process,” the Union made it clear that it could not “wait any
longer” and “look[ed] forward to hearing from someone,
whoever that may be.” Id. Later in November, the Company
designated someone to replace Sutton, but no meetings took
place.
On November 27, 2018, the Union filed an unfair labor
practice charge with the Board, accusing the Company of
failing to bargain in good faith by continually postponing
negotiations. The same day, the Union sent a letter to the
Company proposing 15 bargaining dates between December 4
and 20. The Company did not offer to schedule any bargaining
sessions. Sutton later testified that he could not meet in
December because of his house sale, and because “December
is a very difficult month to meet, anyway.” J.A. 30. On January
10, 2019, nearly three months after the start of the certification
year, the parties finally met to begin bargaining.

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On February 21, 2019, the Board’s General Counsel issued
a Complaint against the Company, alleging that it failed to
bargain in good faith with the Union. The Complaint requested
that the Board extend the certification year. J.A. 56 at ¶ 2(b)
(citing Mar-Jac Poultry Co., 136 N.L.R.B. 785 (1962)).
Once the parties finally commenced bargaining in January
2019, the Union requested information regarding the cost of
various employee benefits provided by the Company. The
Union explained that it needed this information to propose
alternative, Union-administered benefits. In response, the
Company provided information on the costs to employees of
various plan options, rather than the cost to the Company as the
Union requested. When the Union followed up, the Company
refused to provide any more information. The Company’s
representative, Sutton, emailed the Union to say: “[T]here is a
limit to the information we will be providing . . . . In light of as
much, there seems [to be] no need for [the Union] to put further
effort into working up a proposal for union provided benefits.
We will stick with the present plan.” J.A. 100. After more
unsuccessful back-and-forth, the Union filed a second unfair
labor practice charge with the Board on July 29, 2019, alleging
that the Company had failed to furnish requested information.
On October 8, 2019, the Board’s General Counsel issued a
consolidated Complaint against the Company alleging, as
additional violations, that the Company unlawfully refused to
consider any proposal for Union-administered benefit plans,
and that the Company unlawfully refused to furnish relevant
information. As with the first Complaint, the General
Counsel’s consolidated Complaint also requested that the
Board remedy the violations by extending the certification
year. J.A. 69 at ¶ 2(b) (citing Mar-Jac Poultry Co., 136
N.L.R.B. 785 (1962)).

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The parties did not agree on a collective bargaining contract
by the end of the certification year. Less than two months after
the certification year expired, on November 25, 2019, the
Company withdrew recognition of the Union and refused to
continue bargaining. Company officials claimed that they had
received a petition signed by a majority of the employees in the
bargaining unit indicating the employees no longer wished to
be represented by the Union. In response, the Union filed a
third unfair labor practice charge alleging that the Company
had unlawfully withdrawn recognition of the Union.
On June 22, 2020, the Board’s General Counsel issued a
second consolidated amended Complaint. Incorporating all of
the Union’s charges, the Complaint alleged that the Company
violated Sections 8(a)(1) and (5) of the Act by: (1) refusing to
meet and bargain in good faith; (2) refusing to bargain over
Union-administered benefit plans; (3) failing to respond to a
request for information about employee benefits; and (4)
withdrawing recognition of the Union. J.A. 77, 79 at ¶¶ 9, 10,
14, 15.
The General Counsel presented two theories to the ALJ to
support the claim of unlawful withdrawal of Union recognition.
First, the General Counsel argued that the Company’s
withdrawal was unlawful under the analysis adopted in Master
Slack Corp., 271 N.L.R.B. 78 (1984), which considers whether
an employer’s unfair labor practice caused the loss of union
support. See J.A. 199. Second, the General Counsel argued, in
the alternative, that if the Board granted an extension of the
certification year of greater than 53 days – i.e., the number of
days from the certification-year expiration after which the
Company withdrew recognition – “then [the Company]
unlawfully withdrew recognition during the [extended]
certification year notwithstanding whether the factors in
Master Slack have been met.” J.A. 203. This second theory of

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unlawful withdrawal is consistent with the approach followed
by the Board in cases such as Whisper Soft Mills, Inc., 267
N.L.R.B. 813 (1983).
On October 6, 2020, the ALJ found merit in all of the unfair
labor practice charges raised by the General Counsel. J.A. 229-
30. The ALJ applied the approach set forth in Master Slack and
determined that the withdrawal of recognition was unlawful
because the Company’s unfair labor practices had caused the
Union to lose its majority status. J.A. 227-29.
On April 20, 2022, the Board accepted the ALJ’s factual
findings. However, the Board found it unnecessary to
determine whether the Company’s unfair labor practices had
caused the Union to lose its majority status. Rather, the Board
relied on the General Counsel’s alternative theory of liability,
as exemplified by the approach followed in Whisper Soft, in
determining the appropriate remedy for the unfair labor
practices committed by the Company. Following Whisper Soft
and other like cases, the Board found that the unfair labor
practices committed during the original certification year
supported extension of the certification year as well as
invalidation of the Company’s withdrawal of recognition
during that extension. See Board Decision, at 2-3. To remedy
the unfair labor practices, the Board, inter alia, ordered the
Company to cease and desist from violating the Act; extended
the certification year by six months from the date that good-
faith bargaining resumed; and required the parties to bargain
for 40 hours a month, for at least eight hours per session, until
they reach an agreement or good-faith impasse. Id. at 8-9. The
Board then denied the Company’s motion for reconsideration.
See J.A. 308-12. The Company now petitions this court for
review, and the Board cross-petitions for enforcement of its
order.

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II. ANALYSIS
A. Jurisdiction and Standard of Review
The court has jurisdiction over this appeal pursuant to
Sections 10(e) and (f) of the Act. 29 U.S.C. § 160(e), (f). This
court’s role in reviewing a Board decision is “limited.”
Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348 (D.C. Cir.
2011). We must uphold the Board’s judgment unless “the
Board’s findings are not supported by substantial evidence, or
. . . the Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case.” Id. (quoting Mohave
Elec. Coop., Inc. v. NLRB, 206 F.3d 1183, 1188 (D.C. Cir.
2000)). To determine whether evidence is substantial, this court
must “ask whether a reasonable mind might accept a particular
evidentiary record as adequate to support a conclusion.”
Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (quotation marks
omitted). “[T]he Board is to be reversed only when the record
is ‘so compelling that no reasonable factfinder could fail to
find’ to the contrary.” United Steelworkers of Am. v. NLRB, 983
F.2d 240, 244 (D.C. Cir. 1993) (quoting INS v. Elias-Zacarias,
502 U.S. 478, 484 (1992)).
B. The Company’s Unfair Labor Practices
Committed During the Original Certification
Year
The Board found that, during the original certification year,
the Company violated Sections 8(a)(1) and (5) of the Act by:
(1) “delaying bargaining for a period of almost three months at
the start of the certification year”; (2) “refusing to furnish
requested employer cost information regarding the existing
benefit plans for unit employees”; and (3) “notif[ying] the
Union via email that it would not consider any proposal for a
union-administered benefit plan and would stick with its

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present benefit plan.” Board Decision, at 1. Although the
Company challenges these findings, there is no serious dispute
that the record supports the Board’s determinations.
Substantial evidence supports the Board’s first finding that
the Company unlawfully delayed negotiations. An employer’s
refusal to bargain with a union during the certification year “is
per se an unfair labor practice under §§ 8(a)(1) and 8(a)(5) of
the [Act].” NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775,
778 (1990). Here, following the Union’s certification on
October 3, 2018, the Union promptly requested bargaining on
October 15, 2018. However, as the ALJ found, the Company
responded “by cancelling bargaining dates in November and
then making a blanket refusal to bargain at all in December.”
Board Decision, at 25. It was not until after the Union filed an
unfair labor practice charge that the Company agreed to its first
bargaining session on January 9, 2019, almost three months
after the start of the certification year. In other cases, the Board
has found delays of similar or even shorter lengths to be
inconsistent with the duty to bargain. See, e.g., Ne. Ind. Broad.
Co., 88 N.L.R.B. 1381, 1390-91 (1950) (finding five-week
delay unreasonable); Fruehauf Trailer Servs., Inc., 335
N.L.R.B. 393, 393 (2001) (finding three-month delay
unreasonable).
Substantial evidence also supports the Board’s second
finding that the Company violated Sections 8(a)(1) and (5) of
the Act by failing to bargain over Union-administered benefits.
“[A] refusal to bargain on a mandatory subject of bargaining”
may be challenged as an unfair labor practice. Loc. Union No.
189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S.
676, 685 (1965). Under the Act, “mandatory subjects of
collective bargaining include,” as relevant here, “insurance
benefits for active employees.” Allied Chem. & Alkali Workers
v. Pittsburgh Plate Glass Co., 404 U.S. 157, 159 (1971). The

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Union requested information from the Company regarding the
cost the Company incurred to provide employee benefits,
explaining that the Union intended to “cost the package” and
“provide the company with an option” to administer insurance
through a Union benefit plan. J.A. 100. In reply, the Company
declared there was “no need for [the Union] to put further effort
into working up a proposal for union provided benefits,”
because the Company would “stick with the present plan.” Id.
The record thus plainly supports the Board’s determination that
the Company impermissibly foreclosed bargaining over a
mandatory subject.
Finally, substantial evidence supports the Board’s third
finding that the Company refused to provide requested
information relevant to mandatory subjects of bargaining. The
duty to bargain collectively under the Act “includes a duty to
provide relevant information needed by a labor union for the
proper performance of its duties.” Detroit Edison Co. v. NLRB,
440 U.S. 301, 303 (1979). Information considered
“presumptively relevant to collective bargaining” includes
matters “related to . . . benefits” of represented employees.
Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1191 (D.C.
Cir. 2000); see also The Nestle Co., 238 N.L.R.B. 92, 94 (1978)
(finding company committed unfair labor practice by “refusing
to furnish the [u]nion with the requested information
concerning claims and premiums” the company paid for
employees’ health insurance). Relevant information must be
disclosed unless the employer provides a “valid countervailing
interest.” Oil, Chem. & Atomic Workers Loc. Union No. 6-418
v. NLRB, 711 F.2d 348, 360 (D.C. Cir. 1983). Here, the
Company refused repeated requests for information on the cost
to the Company of its benefit plans, asserting that “[c]ost
information will not be shared.” J.A. 106. In this case, the ALJ
found, and the Board agreed, that the Company “provided no
explanation other than its own obstinacy” for “refusing to

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provide most of this presumptively relevant cost information.”
Board Decision, at 27; see also id. at 1.
In sum, substantial evidence clearly supports the Board’s
findings that, during the original certification year, the
Company committed three unfair labor practices and impaired
the Union’s ability to bargain during that protected year.
C. The Company’s Withdrawal of Union
Recognition After the Original Certification Year
The primary contention on appeal concerns the Board’s
fourth finding, that the Company unlawfully withdrew Union
recognition and refused to bargain less than two months after
the expiration of the original certification year. The Board
reasoned that the unfair labor practices committed during the
original certification year warranted an extension of the
certification year by at least nearly three months, the length of
time that the Company delayed bargaining during the original
certification year. See id. at 3. Therefore, the Board concluded
that the Company’s withdrawal of recognition less than two
months after the original certification year, occurring during
the extended certification year, violated the Company’s duty to
bargain in good faith and constituted an unfair labor practice
under Sections 8(a)(1) and (5) of the Act. The Board’s
reasoning is eminently reasonable and supported by
longstanding precedent.
It is well established that, “after a union has been certified
by the Board as a bargaining-unit representative, it usually is
entitled to a conclusive presumption of majority status for one
year following the certification.” Fall River, 482 U.S. at 37. An
employer must bargain in good faith during these first 12
months and cannot withdraw recognition of the union, even if
the union allegedly loses majority support through no fault of

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the employer. See Auciello Iron Works, 517 U.S. at 786;
Brooks v. NLRB, 348 U.S. 96, 98-99 (1954). As explained
above, this certification-year bar “enable[s] a union to
concentrate on obtaining and fairly administering a collective-
bargaining agreement without worrying” about the immediate
risk of decertification. Fall River, 482 U.S. at 38. It also
“remove[s] any temptation on the part of the employer to avoid
good-faith bargaining in the hope that, by delaying, it will
undermine the union’s support among the employees.” Id.
After the certification year expires, “the presumption of
majority status becomes a rebuttable one.” Auciello Iron
Works, 517 U.S. at 786.
When an employer has, “largely through its refusal to
bargain, taken from the Union a substantial part of the period
when Unions are generally at their greatest strength[,] the 1-
year period immediately following the certification,” the Board
may remedy the “inequit[y]” by extending the certification
year. Mar-Jac, 136 N.L.R.B. at 787; see also Loc. Union No.
2338, IBEW v. NLRB, 499 F.2d 542, 544 & n.3 (D.C. Cir. 1974)
(per curiam) (noting with approval the Mar-Jac remedy). The
Board, with this court’s approval, has long treated extension of
the certification year as the “standard remedy” for an
employer’s refusal to bargain in good faith during a union’s
first 12 months as the employees’ representative. Veritas
Health, 895 F.3d at 80 (citing Dominguez Valley Hosp., 287
N.L.R.B. 149, 149 (1987)).
The Board may grant an extension of the certification year
when the employer or an employee files a petition with the
Board seeking to decertify the Union, and the Board determines
that the employer failed to bargain in good faith for the full
certification year. See, e.g., Mar-Jac, 136 N.L.R.B. at 787 &
n.6 (dismissing decertification petition filed after original
certification year had expired and extending certification year

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by six months because employer had refused to bargain for that
length of time). The Board has also granted certification-year
extensions where the employer unilaterally withdraws
recognition from the union during the certification year, and
the union files an unfair labor practice charge against the
employer in response. See, e.g., Dominguez Valley Hosp., 287
N.L.R.B. at 151 (extending certification year by six months
because employer refused to bargain during part of the
certification year and prematurely withdrew union
recognition).
In some cases, an employer withdraws union recognition
during the certification year. See, e.g., id.; Veritas Health, 895
F.3d at 80; Bryant & Stratton Bus. Inst., Inc. v. NLRB, 140 F.3d
169, 186 (2d Cir. 1998). In other cases, like the instant matter,
an employer withdraws recognition of the union shortly after
the certification year’s expiration. See, e.g., Whisper Soft, 267
N.L.R.B. at 816; New Madrid Nursing Center, 325 N.L.R.B.
897, 902 (1998), enf’d, 187 F.3d 769 (8th Cir. 1999). The
Board must bar the withdrawal if it occurs during the
unextended certification year. And, where the Board finds that
the employer failed to bargain in good faith for a significant
portion of the certification year, it can remedy the inequity by
extending the certification year and barring withdrawal during
the extension period. See, e.g., Veritas Health, 895 F.3d at 80;
Bryant & Stratton, 140 F.3d at 186; Whisper Soft, 267 N.L.R.B.
at 816; New Madrid, 325 N.L.R.B. at 902.
In this case, the Board relied in part on Whisper Soft and
New Madrid to find that the Company unlawfully withdrew
recognition of the Union during the extended certification year.
See Board Decision, at 3. In Whisper Soft, the employer refused
to bargain for four and a half months of the certification year
and then withdrew recognition within a month after the
certification year expired. Whisper Soft, 267 N.L.R.B. at 816.

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The Board held that the employer’s unlawful refusal to bargain
entitled the union to an extension of the certification year by at
least four and a half months from the date that the certification
year expired. Id. The Board held that the employer’s
withdrawal of recognition before the extended certification
year expired constituted a violation of the Act. Id.
Similarly, the Board in New Madrid found an employer’s
withdrawal the day after the end of the certification year
unlawful, because the employer’s conduct during the year
precluded “a full year of bargaining” by 10 days. New Madrid,
325 N.L.R.B. at 902. The ALJ (whose findings and conclusions
the Board adopted) explained that whether there existed a
causal relationship between the employer’s conduct and the
loss of majority status “has no impact on [the] decision.” Id.
Rather, because “[t]he Union was entitled to 1 year of good-
faith bargaining from the date of certification,” “an extension
of the certification year by at least 10 days . . . [was]
warranted.” Id. Thus, the Board concluded that the withdrawal
of recognition impermissibly occurred before the expiration of
the extended certification year. Id. (citing Whisper Soft, 267
N.L.R.B. at 816).
Whisper Soft and New Madrid are directly on point and
support the Board’s disposition of this case. The extension
ensures that the Union in fact receives one full year of good-
faith bargaining with the employer. In this case, the Company
does not contest that, under Whisper Soft and New Madrid, its
withdrawal of Union recognition two months after the
certification year would be unlawful, where it committed unfair
labor practices during the certification year that impeded
bargaining for longer than two months. Rather, the Company
contends that the Board was required to apply Master Slack
Corp., 271 N.L.R.B. 78 (1984). The Company argues that
Master Slack superseded Whisper Soft, and also that New

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Madrid was wrongly decided because it applied Whisper Soft
instead of Master Slack.
Contrary to the Company’s view, Master Slack does not
replace the well-established line of precedents instructing that
when an employer impedes the union’s ability to bargain
during the certification year, the Board may remedy the
inequity by extending the year. See, e.g., Veritas Health, 895
F.3d at 80; Bryant & Stratton, 140 F.3d at 186; Loc. Union No.
2338, 499 F.2d at 544; New Madrid, 325 N.L.R.B. at 902;
Dominguez Valley Hosp., 287 N.L.R.B. at 151; Whisper Soft,
267 N.L.R.B. at 816; Mar-Jac, 136 N.L.R.B. at 787.
Instead, Master Slack offers another, independent legal
theory for determining the legality of an employer’s
withdrawal of recognition. Importantly, Master Slack did not
concern certification-year principles. In Master Slack, an
employer withdrew recognition from the union eight years after
the union’s certification, following the expiration of a
collective-bargaining agreement. See Master Slack, 271
N.L.R.B. at 79 & n.5, 85. The Board articulated a four-factor
test to determine whether the employer’s unfair labor practices
tainted the union’s loss of majority status. The test 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.

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Id. at 84; see also Tenneco Auto., Inc. v. NLRB, 716 F.3d 640,
648 (D.C. Cir. 2013) (noting this court’s endorsement of
Master Slack’s four-factor test).
The approaches taken by the Board in Master Slack and
Whisper Soft/New Madrid serve different purposes. Whisper
Soft/New Madrid guarantees that a union receives one full year
of good-faith bargaining after certification. Thus, if the
employer commits an unfair labor practice during the
certification year that impairs the union’s ability to bargain, the
Board may remedy the inequity by extending the certification
year. In comparison, Master Slack concerns whether an
employer caused a union’s loss of majority support, and can be
applied to analyze withdrawals of recognition without
reference to the certification year. See, e.g., Tenneco, 716 F.3d
at 643, 648.
The Company points out that the Board has at times
applied Master Slack in cases in which the unfair labor
practices were committed during the certification year, when it
presumably could have applied the approach followed in
Whisper Soft/New Madrid. In these cases, the Board decided
whether to invalidate an employer’s withdrawal of union
recognition shortly after the end of the original certification
year based on whether the employer’s unfair labor practices
caused the union’s loss of majority support. See Final Brief
(“Br.”) of Petitioner 15-16 (citing Denton Cnty. Elec. Coop.,
Inc., 366 N.L.R.B. No. 103, at 2-3 (2018), enf’d in relevant
part, 962 F.3d 161 (5th Cir. 2020); Champion Home Builders
Co., 350 N.L.R.B. 788, 788 (2007); Garden Ridge Mgmt., 347
N.L.R.B. 131, 134 (2006); Tritac Corp., 286 N.L.R.B. 522,
537-40 (1987)). The Company argues that the Board’s reliance
on Master Slack in these cases indicates that the Board has
overruled Whisper Soft/New Madrid, or impermissibly ignored

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without explanation a square conflict between those cases and
Whisper Soft/New Madrid. We disagree.
The decisions the Company highlights do not say anything
about Whisper Soft/New Madrid. As the Board here notes,
neither the General Counsel nor the parties in those cases raised
that theory with the Board. See Board Decision, at 5. And the
Board itself never stated in any of those cases that Master Slack
superseded or otherwise modified Whisper Soft/New Madrid.
Furthermore, as discussed above, Master Slack and Whisper
Soft/New Madrid pose no irreconcilable conflict, as they
provide distinct ways to assess a union’s loss of representative
status. Even if there are cases in which both theories might
apply, this provides no basis for us to invalidate Whisper
Soft/New Madrid. The General Counsel and the Board may use
any available theory deemed appropriate to assess unfair labor
practice allegations. See, e.g., NLRB v. WTVJ, Inc., 268 F.2d
346, 348 (5th Cir. 1959) (enforcing Board decision that found
violation based on a theory of wrongdoing different from the
theory relied upon by the ALJ); Jefferson Electric Co., 274
N.L.R.B. 750, 750-51 (1985), enf’d., 783 F.2d 679 (6th Cir.
1986) (affirming ALJ’s conclusion but on different grounds).
We can find no relevant case law suggesting that a Board’s
decision to use one legal theory implies the rejection of
another, independent legal theory.
The Company argues that the certification-year principles
in Whisper Soft hold no precedential value because the Ninth
Circuit vacated and reversed the Board’s decision. See Final
Br. of Petitioner 32-35 (citing Whisper Soft Mills, Inc. v. NLRB,
754 F.2d 1381, 1388 (9th Cir. 1984)). We disagree. The Ninth
Circuit simply rejected the Board’s holding that the Company
had a duty to bargain. Whisper Soft, 754 F.2d at 1387. The
Ninth Circuit did not, however, criticize the underlying
principle applied by the Board that an unlawful bargaining

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delay may warrant extension of the certification year. See id.
(noting that the Board extended the certification year to remedy
unlawful delay, but that “[s]ince . . . [the employer’s] method
of making a wage proposal did not result in any illegality, the
certification year should not have been extended”). Nowhere in
its decision did the Ninth Circuit reject the longstanding
principle that the Board may extend the certification year if the
employer unlawfully impairs bargaining during that year.
Finally, the Company protests that its due process rights
have been violated because the General Counsel did not rely on
Whisper Soft. The Company also urges that it would have
prevailed in this case if the Board had adhered to the approach
followed in Master Slack. These claims are belied by the
record. As detailed above, the General Counsel did present the
Whisper Soft theory to the ALJ, arguing that if an extension of
sufficient duration were granted, “then [the Company]
unlawfully withdrew recognition during the [extended]
certification year notwithstanding whether the factors in
Master Slack have been met.” J.A. 203. Furthermore, the ALJ
applied Master Slack and ruled against the Company. See J.A.
227-29. Regardless, the main point here is that we need not
decide the merits of this case under the Master Slack theory.
The Company was neither surprised nor disadvantaged in
defending itself with respect to the alternative theories of
liability raised by the General Counsel. And the Board acted
within its authority in choosing which of the alternative
theories to apply in determining how best to redress the unfair
labor practices committed by the Company. The Board’s
reliance on Whisper Soft certainly did not cause manifest
injustice or violate any due process rights of the Company.
There is thus no basis for the Company’s challenge to the
Board’s remedial order here, and no support for its claim that

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it lacked notice in violation of due process. The Board
acknowledges that it could have alternatively (or additionally)
considered whether the Union’s loss of majority status was
caused by the Company’s unfair labor practices per Master
Slack, but that it was not required to do so. J.A. 277-78. And it
is noteworthy that even though dissenting Board Member Ring
disagreed with the part of the Board’s order granting
retrospective relief from decertification without a Master Slack
showing, he recognized that proof of taint under Master Slack
is not necessarily available in all circumstances in which an
employer has unlawfully impaired the benefits of the
certification year. On this point, the dissent tellingly observes
that: “[p]roof of causation under Master Slack requires that unit
employees are aware of their employer’s unfair labor practices,
and employees typically may not know what is going on in
collective bargaining. As a result, the General Counsel may
find it difficult to prove that the unfair labor practices caused
employees to abandon the union, and the withdrawal of
recognition will be lawful [if reviewed only under Master
Slack] . . . even if the employer, by its unlawful bargaining
conduct, has deprived the union of the 12 full months of good-
faith bargaining to which the certification-year doctrine entitles
it.” Board Decision, at 15 n.28 (Ring dissent). This fortifies the
point that the approaches followed in Whisper Soft and Master
Slack may be more or less appropriate depending on the
circumstances before the Board. And it is for the Board to
decide, within its broad discretion, which remedial approach to
follow.
The essential point here is that the Board has indicated no
intention to walk away from its well-established precedent. It
is settled Board law that if an employer deprives the union of
one full year of good-faith bargaining, the Board may remedy
the inequity by extending the certification year. See, e.g.,
Veritas Health, 895 F.3d at 80. An employer is on notice that

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if it refuses to bargain with the union during that year, it does
so at its own peril. In future cases, it would be useful for the
Board to explain why it chooses to apply the Master Slack
theory when it could apply Whisper Soft/New Madrid.
Nevertheless, the Board’s choice to base its decision on one
valid theory presented, as opposed to another, falls squarely
within its lawful discretion.
D. Six-Month Extension of the Certification Year
and Affirmative Bargaining Order
To remedy the unfair labor practice violations, the Board,
inter alia, extended the certification year by six months and
imposed an affirmative bargaining order that required the
Company to bargain with the Union for those six months, 40
hours per month, for at least eight hours per session. Board
Decision, at 9. The Company argues the Board’s reasoning is
conclusory and fails to take account of the employees’
disaffection with the Union. Final Br. of Petitioner 42. We find
no merit in this argument.
Section 10(c) of the Act gives the Board authority to order
a violator “to take such affirmative action . . . as will effectuate
the policies” of the Act. 29 U.S.C. § 160(c). This court has held
that “the Board’s remedial authority is ‘a broad discretionary
one, subject to limited judicial review,’ and a remedy ‘will not
be disturbed unless it can be shown that the order is a patent
attempt to achieve ends other than those which can fairly be
said to effectuate the policies of the Act.’” United Food & Com.
Workers Union Local 204 v. NLRB, 447 F.3d 821, 827 (D.C.
Cir. 2006) (quoting Fibreboard Paper Prods. Corp. v. NLRB,
379 U.S. 203, 216 (1964)). Nevertheless, “an affirmative
bargaining order is an extreme remedy.” Vincent Indus.
Plastics, Inc. v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000). To
justify its imposition, the Board must explicitly balance three

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considerations: “(1) the employees’ § 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.” Id.
The Board acted squarely within its broad discretion in
extending the certification year by six months and ordering the
parties to bargain. As the Board noted, “the extension of the
certification year is a standard remedy where, as here, an
employer has refused to bargain for a significant part of the
certification year.” Board Decision, at 6 (citing Veritas Health,
895 F.3d at 80 and Loc. Union No. 2338, 499 F.2d at 544). The
Board explained that the six-month extension vindicates the
rights of employees “who were denied the benefits of collective
bargaining during the initial certification year.” Id. at 7. The
Board further reasoned that the six-month extension did not
unduly prejudice employees opposed to Union representation,
as “the duration of the order is no longer than is reasonably
necessary to remedy the ill effects of the bargaining violations”
and simply “restore[s] the status quo ante.” Id. Observing that
the Company’s unlawful conduct will be rewarded absent a six-
month extension and accompanying affirmative-bargaining
order, the Board reasonably concluded that the imposed
remedy eliminates incentive to delay bargaining, whereas a
cease-and-desist order alone would not provide the Union with
“the same protection it should have rightfully enjoyed during
its first year following certification.” Id. at 8. Since we find that
the Board acted within its broad remedial discretion, we decline
to disturb the Board’s remedial order.

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III. CONCLUSION
For the reasons set forth above, we deny the Company’s
petition for review and grant the Board’s cross-application for
enforcement of its order.
So ordered.

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