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.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

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 
2 

General Counsel, David Habenstreit, Assistant General 

Counsel, and Elizabeth A. Heaney, Supervisory Attorney. 

Before: PILLARD and CHILDS, 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), AFLCIO (“Union”) as the collective-bargaining representative for 

a unit of employees at a manufacturing facility operated by J.G. 
3

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. 
4

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.
5

I. BACKGROUND

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, 
6

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. 
7

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)).
8

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 
9

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 goodfaith 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.
10

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 
11

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 
12

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 
13

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 
14

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 collectivebargaining 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 
15

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. 
16

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 goodfaith 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 goodfaith 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 
17

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. 
18

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 
19

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 
20

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 
21

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 goodfaith 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 
22

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 
23

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 sixmonth 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.
24

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.