author: PER CURIAM KAVANAUGH, Circuit Judge,

text:
    JOHN DOE COMPANY, Appellant v. CONSUMER FINANCIAL PROTECTION BUREAU and Richard Cordray, in his official capacity as Director of the Consumer Financial Protection Bureau, Appellees
    No. 17-5026
    September Term, 2016
    United States Court of Appeals, District of Columbia Circuit.
    Filed On: March 3, 2017

      Cathy A. Hinger, Attorney, Womble Carlyle Sandridge & Rice, LLP, Washington, DC, for Plaintiff-Appellant.
    Christopher J. Deal, Consumer Financial Protection Bureau, Legal Division, Washington, DC, for Defendants-Appel-lees.
    BEFORE: KAVANAUGH, MILLETT, and WILKINS, Circuit. Judges

       Circuit Judge Kavanaugh would grant the motion for injunction pending appeal for the reasons set forth in the attached statement.

   ORDER

PER CURIAM

Upon consideration of the emergency motion for injunction pending appeal, the response thereto, and the reply, it is

ORDERED that the motion for injunction be denied.

Appellant John Doe Company is a California limited liability company with its principal place of business in the Philippines. The Company is in the business of purchasing and selling income streams. A recent Government Accountability Office study explained that income-stream-marketing businesses often target vulnerable clients such as our military veterans and the elderly, charging effective interest rates far in excess of state usury laws (up to 87% in some cases) and providing lump sum payouts that are roughly half the minimum required under federal law governing pensions. See U.S. Gov’t Accountability Office, GAO-15-846T, Pension Advance Transactions: Questionable Business Practices Identified 20-22, 23-26, 27 (2015). The GAO Report recommended that the Federal Trade .Commission and the Consumer Financial Protection Bureau investigate income-stream marketers. The Company itself has been the subject of regulatory proceedings by at least six States under their consumer protection laws. As the district court found, “neither side seems to dispute that John Doe Co. has been the subject of considerable negative publicity throughout the past few years.” Dist. Ct. Op. Denying Prelim. Inj. 7.

In November 2016, the Consumer Financial Protection Bureau issued a Civil Investigative Demand (“CID”) to the Company pursuant to its statutory authority, 12 U.S.C. § 5562(c)(1). Congress authorized the Bureau to issue CIDs to collect information relevant to the enforcement of specified consumer protection laws. Id.; see also 12 U.S.C. § 5511. The issuance of a CID is purely investigatory. It does not initiate a law-enforcement proceeding or even signify that any violation of law has been committed. See 12 U.S.C. § 5562(e).

CIDs are not self-enforcing, and noncompliance triggers no fine or penalty. 12 U.S.C. § 5562(e)(1); Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau, 979 F.Supp.2d 104, 108 (D.D.C. 2013), aff'd, 785 F.3d 684 (D.C. Cir. 2015). The Company thus needed to do nothing in response to the CID it received. If a recipient declines to respond to the CID, the Bureau must obtain a court order to enforce it. 12 U.S.C. § 5562(e). In that court proceeding, the recipient can raise any relevant legal objection to enforcement of the CID.

In this case, the Company did not wait for the Bureau to seek enforcement of the CID, but instead filed a pre-enforcement suit in district court challenging the constitutionality of the Bureau’s structure and seeking to halt any and all Bureau action “adverse” to the company, Mot. for Prelim. Inj. 26, including enjoining enforcement of the CID and forbidding the disclosure of the Company’s identity. The district court denied Doe’s request for a preliminary injunction, concluding that the Company had not met its burden of establishing either a likelihood of success or irreparable harm: The Company now requests an emergency injunction pending appeal.

A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the [movant] is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20, 129 S.Ct. 365. Because the Company seeks the exceptional remedy of an injunction pending appeal, the Company faces the difficult task of coming forward with evidence and argument showing that it is “likelfy]” that the district court “abused its discretion” in denying a preliminary injunction. See, e.g., Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).

The Company’s sole argument regarding likelihood of success on the merits before this court and the district court has been to point to the now-vacated majority opinion in PHH Corporation v. Consumer Financial Protection Bureau, 839 F.3d 1 (D.C. Cir. 2016), vacated, reh’g en banc granted, No. 15-1177, — F.3d —, 2017 WL 631740 (D.C. Cir. Feb. 16, 2017). But remember: the Company has to show not just that there is potentially persuasive authority for its legal position, but that the district court abused its discretion in not sufficiently crediting that showing in the balancing of equities that preliminary in-junctive relief requires. Pointing to PHH is not enough for four reasons.

First, the PHH decision on which the Company relies has been vacated. And even within that decision, panel members differed on the appropriateness or necessity of issuing the separation-of-powers ruling given predicate statutory issues in the case. PHH, 839 F.3d at 56 (Henderson, J., concurring in part and dissenting in part) (declining to reach the constitutional question because an adequate remedy could be provided on the statutory ground); see also id. at 55 (Randolph, J., concurring) (also finding constitutional error in the ALJ who heard the proceeding). Without suggesting anything one way or the other about how the en banc court might ultimately resolve the PHH case and with all due respect to its panel members, the district court did not abuse its discretion in determining that simply pointing to the vacated majority opinion in PHH did not establish the likelihood of an identical constitutional ruling by the en banc court in PHH or the court in this case.

Second, even assuming for purposes of this motion that the en banc court were to reach the same constitutional ruling as the majority opinion in PHH, the Company is not remotely in the same constitutional position as PHH. PHH, remember, was on the receiving end of a completed law enforcement proceeding by the Bureau, and had been ordered to pay a $109 million fine. PHH, 839 F.3d at 7. In finding a separation-of-powers violation, the majority opinion repeatedly emphasized its view of the Constitution’s assignment of “law enforcement” authority to the Executive Branch. See, e.g., id. at 18 (discussing “the core Article II executive power of bringing law enforcement actions”); id. at 19 (Social Security Administrator distinguishable because he “does not possess unilateral authority to bring law enforcement actions against private citizens, which is the core of the executive power and the primary threat to individual liberty posed by executive power”); id. at 20 n.5 (court’s holding would not invalidate other single-director independent agencies because they “do not exercise the core executive power of bringing law enforcement actions”).

The Company, by contrast, filed a pre-enforcement suit to stop a non-self-executing investigative demand for regulatory information. The Company voices no objection here to the scope or content of the CID and does not argue that it falls beyond the Bureau’s statutory authority. The Company’s sole argument is that the Bureau’s single-Director structure is unconstitutional. And the sole injury it asserts on appeal is the harm occasioned by having to respond to a non-self-executing CID.

Standing is determined on a claim-by-claim basis. See, e.g., Davis v. FEC, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (explaining that standing is not “dispensed in gross” but a plaintiff “must demonstrate standing for each claim he seeks to press and for each form of relief that is sought”) (quotation marks and citations omitted). And the only thing that happened prior to the Company filing its pre-enforcement suit was the Bureau’s issuance of an investigative demand for information relevant to the Company’s adherence to federal law. The Company accordingly has to demonstrate that the action of merely requesting information from private entities subject to regulation is by itself exclusively confined to the Executive Branch, and thus that issuance of this CID by the Bureau violates the separation of powers.

The Company has utterly failed that task. Nowhere in its arguments has it even acknowledged the distinct posture of its preemptive proceeding or the nature of the governmental action it seeks to halt. That failure to even attempt to discharge its particularized burden of proof is fatal. To obtain an injunction pending appeal on the ground that the Bureau transgresses the separation of powers just by issuing a CID — just by investigating a regulated entity’s compliance with federal law — the Company would have to show that only the Executive Branch can demand information from regulated businesses or take such investigative steps. That is, to say the least, far from constitutionally self-evident. Congress issues subpoenas for .information. And in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court specifically carved out such investigative measures from its holding that the Commission there was exercising powers forbidden by the Constitution, id. at 137-138, 96 S.Ct. 612.

That the Company frames its argument as a facial challenge to the Bureau’s ability to take any “action adverse to Plaintiff’ does not save it, even assuming it has standing to seek such sweeping relief at this pre-enforcement juncture on the basis of nothing other than the issuance of a CID. A statute is not facially unconstitutional unless it is unconstitutional in all of its applications. See, e.g., United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). Given that, the district court certainly did not abuse its discretion in concluding that the Company’s failure to even argue its own alleged constitutional injury (rather than PHH’s) meant it had not established a likelihood of success on appeal.

Third, the Company’s argument that the alleged separation-of-powers violation requires that the Bureau be stopped in its tracks ignores traditional constraints on separation-of-powers remedies. Often in separation-of-powers cases, severance of the unconstitutional provision is the chosen remedy. That is what the now-vacated majority opinion in PHH did — the decision just severed the Director’s for-cause removal provision, making him removable by the President at will. As the opinion repeatedly stated, the Bureau could continue its work apace. See, e.g., PHH, 839 F.3d at 8 (declining to “shut down the entire CFPB”); see also Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 509, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (severing unconstitutional provision requiring for-cause removal of officers); Buckley, 424 U.S. at 142, 96 S.Ct. 612 (allowing the FEC to continue its investigations and administrative actions even though it was unconstitutionally structured).

In addition, vacatur of past actions is not routine. The PHH decision did not undo the Bureau enforcement action and make it start over from scratch. The court simply remanded for the Bureau to address specified matters. See PHH, 839 F.3d at 8. Indeed, the Supreme Court and this court have often accorded validity to past acts of unconstitutionally structured governmental agencies. See, e.g., Buckley, 424 U.S. at 142, 96 S.Ct. 612; Citizens for Abatement of Aircraft Noise, Inc. v. Metropolitan Wash. Airports Auth., 917 F.2d 48, 57 (D.C. Cir. 1990) (“We direct, however, that actions taken by the Board to this date not be invalidated automatically on the basis of our decision.”), aff'd, 501 U.S. 252, 111 S.Ct. 2298, 115, L.Ed.2d 236 (1991); see also In re Application of President’s Comm’n on Organized Crime, 763 F.2d 1191, 1202 (11th Cir. 1985) (Fay, J., writing separately) (“[O]ur holding regarding the separation of powers doctrine does not require the voiding” of a Commission subpoena); id. (Roney, J., specially concurring) (agreeing with decision to enforce the subpoena despite constitutional infirmity).

Given all of that, the - Company failed to make any relevant showing at all that it has a likelihood of succeeding on its effort to prevent the Bureau from investigating the company via a CID or taking any other unspecified adverse action. Or.at least the district court did not abuse its discretion in so concluding.

Fourth, the Company’s prospects of success stumble in yet another respect: this court is not the proper forum for the Company to press its separation of powers claim. We have held on multiple occasions that, even if a party is the subject of an arguably unconstitutional regulatory action, that constitutional argument should be raised within the context of an administrative enforcement proceeding. See, e.g., Jarkesy v. SEC, 803 F.3d 9, 12 (D.C. Cir. 2015); Morgan Drexen, 785 F.3d at 694; cf. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215-216, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994) (holding that petitioner’s constitutional claims could first be brought before the agency).

The Company notes that, in Free Enterprise, the Supreme Court permitted a standalone, pre-enforcement constitutional challenge. True enough. But the Supreme Court did so there because, to do otherwise, could have “foreclosed all meaningful judicial review[.]” Free Enterprise, 561 U.S. at 489, 130 S.Ct. 3138 (quoting Thunder Basin, 510 U.S. at 212-213, 114 S.Ct. 771). The Company, by contrast, has immediate access to another forum in which it can raise its constitutional claim: the' enforcement action pending in the United States District Court for the Central District of California. The Company has made no argument whatsoever that requiring it to raise its claim in an actual enforcement proceeding would somehow “foreclose all meaningful judicial review,” id.

Also, unlike the plaintiffs in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), the Company has not identified any exceptional measures it must undertake in response to the CID. In fact, as noted, no action at all is required unless and until the CID is enforced. Thus, unlike Abbott Laboratories or State Street, the Company has come to this court to halt an agency action that requires nothing on its part, and certainly does not force it to “bet the farm,” Free Enterprise, 561 U.S. at 490, 130 S.Ct. 3138.

With respect to its obligation to demonstrate irreparable harm, the Company started with the entirely unsubstantiated and conclusory assertions that its customers and employees will flee and its reputation will be materially harmed if word of the Bureau’s investigation gets out. Tellingly, the Company does not suggest that customers or employees defected after six state regulatory investigations, an adverse GAO report, and the “considerable negative publicity” that has already surrounded the Company, Dist. Ct. Op. Denying Prelim. Inj. 7. The district court thus did not abuse its discretion in finding that the Company’s conclusory assertions of reputational and economic harm, unaccompanied by any relevant declarations, did not establish an injury that is “both certain and great; * * * actual and not theoretical.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). In any event, it is “well settled that economic loss does not, in and of itself, constitute irreparable harm,” id. at 674, especially when it is nothing more than speculation about how third parties might respond to routine regulatory investigations. For .those same reasons, the Company has failed to demonstrate why the district court abused its discretion in holding that its name need not be kept confidential in public court proceedings. Indeed, the Company has offered this court no answer to the point that its identity could readily be obtained through a Freedom of Information Act, 5 U.S.C. § 552, request.

By its reply brief in this court (see Reply Br. 10 & n.2), the Company abandoned any further defense of those asserted reputa-tional and economic harms, putting all of its eggs in the per se basket: the Company insists that any alleged separation-of-powers injury .is by its very nature irreparable. The short answer is that this Court has held otherwise. In the absence of “immediate or ongoing harm stemming from the [Bureau’s] alleged constitutional defects,” the “violation of separation of powers” by itself is not invariably an irreparable injury. In re al-Nashiri, 791 F.3d 71, 79-80 (D.C. Cir. 2015); see also Morgan Drexen, 785 F.3d at 695 n.3 (being forced to await an enforcement proceeding and to litigate in another forum where no greater burden is imposed is not irreparable injury); Tilton v. SEC, 824 F.3d 276, 286 (2d Cir. 2016) (holding, in Appointments Clause challenge to SEC judges, that the injury of “ ‘being subjected to an unconstitutional adjudicative procedure,’ with the attendant ‘embarrassment, expense, * * * ordeal, * * * [and] state of anxiety and insecurity’ ” was not an “irremediable harm”) (alterations in original; citation omitted).

That is doubly so here where the only consequence of denying, an injunction pending appeal in the Company’s pre-en-forcement suit is that it must raise its separation-of-powers arguments in the pending CID enforcement action in district court. As the Supreme Court has explained, “the expense and disruption of defending [oneself] in protracted adjudicatory proceedings” is not an irreparable harm. FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980); see also Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974) (“Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury.”). That is because, if found to be constitutionally warranted, “[v]aeatur, even at the appeal-from-final-judgment stage, would fully vindicate” the separation-of-powers rights of the Company. In re al-Nashiri, 791 F.3d at 80-81. The Company has offered this court no argument as to why such precedent does not apply here, or more to the point, why it was not an abuse of discretion for the district court to find no irreparable harm under these special circumstances.

Given the Company’s failure to establish a likelihood of success on the merits of its pre-enforcement challenge and irreparable harm, the balance of equities — especially when it comes to consumer protection— weighs against granting an injunction pending appeal.

For the foregoing reasons, the motion for an injunction pending appeal is denied.

KAVANAUGH, Circuit Judge,

dissenting:

I would grant the motion for an injunction pending appeal.

Petitioner John Doe Company claims that it is being regulated by an unconstitutionally structured agency, the Consumer Financial Protection Bureau. The CFPB has issued binding rules that govern the Company’s conduct, and the CFPB can bring enforcement actions against the Company for violations of those rules (or of statutes). Under the Supreme Court’s and this Court’s precedents, the Company as a regulated entity has standing to raise its free-standing constitutional claim, and the claim is ripe. The Company need not wait for a CFPB enforcement action in order to raise the constitutional challenge. See Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 490, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010); Abbott Laboratories v. Gardner, 387 U.S. 136, 152-53, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); State National Bank of Big Spring v. Lew, 795 F.3d 48, 53-54 (D.C. Cir. 2015). “To use the Supreme Court’s words, we ‘normally do not require plaintiffs to bet the farm’ by violating the law in order to challenge the constitutionality of the regulating agency.” State National Bank of Big Spring, 795 F.3d at 54 (quoting Free Enterprise Fund, 561 U.S. at 490, 130 S.Ct. 3138 (internal quotation marks omitted)). Indeed, this Court has already held that a business may bring a stand-alone constitutional challenge to the structure of the CFPB — and that case is now pending in the U.S. District Court for the District of Columbia. See id. at 53-54.

In order to obtain a preliminary injunction or injunction pending appeal, the Company must show, as relevant here, (i) a likelihood of success on the merits and (ii) irreparable harm.

In my view, the Company has shown a likelihood of success on the merits of its constitutional claim, for reasons fully explained in this Court’s opinion in PHH Corp. v. CFPB, 839 F.3d 1 (D.C. Cir. 2016). The “CFPB’s structure violates Article II of the Constitution because the CFPB operates as an independent agency headed by a single Director.” Id. at 12. The CFPB’s structure as a single-Direetor independent agency with yast rulemaking and enforcement authority is unprecedented in American history. To be sure, the PHH case will soon be reheard by this Court en banc. But in my view, the CFPB’s structure is unconstitutional. And given the Supreme Court’s Article II precedents, I believe that the CFPB’s structure is likely to be ruled unconstitutional, whether by this Court sitting en banc or by the Supreme Court. The Company has shown a likelihood of success on the merits.

The Company also has shown irreparable harm. Irreparable harm occurs almost by definition when a person or entity demonstrates a likelihood that it is being regulated on an ongoing basis by an unconstitutionally structured agency that has issued binding rules governing the plaintiffs conduct and that has authority to bring enforcement actions against the plaintiff. See Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (“Although a plaintiff seeking equitable relief must show a threat of substantial and immediate irreparable injury, a prospective violation of a constitutional right constitutes irreparable injury for these purposes.”) (alteration and internal quotation marks omitted) (quoting Davis v. District of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998)); see also National Federation of Federal Employees-IAM v. Vilsack, 681 F.3d 483, 499 (D.C. Cir. 2012); Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303-04 (D.C. Cir. 2006); cf. Free Enterprise Fund, 561 U.S. at 490-91, 130 S.Ct. 3138; Correctional Services Corp. v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001).

The CFPB argues that, even if the agency is unconstitutionally structured under Article II, the remedy for the Article II violation would be to sever the for-cause removal provision, as PHH held. In that scenario, the CFPB would continue to regulate the Company, although the CFPB would do so as an executive agency instead of an independent agency. According to the CFPB, the Company therefore is not entitled to a preliminary injunction or injunction pending appeal to prevent the CFPB in its current form from regulating the Company now. The CFPB s analysis on this point is badly mistaken. Unless and until that remedy is put in place and the for-cause removal provision is actually severed from the statute, the Company will continue to be regulated on an ongoing basis by an unconstitutional agency. What the Company objects to is not merely regulation by the CFPB, but rather regulation by the CFPB in its current unconstitutional and unprecedented structure — namely, an independent agency headed by a single Director who is unaccountable to the President or to any fellow commissioners. A preliminary injunction would alleviate that ongoing harm.

The CFPB’s primary strategy to defeat the Company’s irreparable harm argument is deflection. The CFPB says there is no irreparable harm because other courts (the Central District of California and ultimately the Ninth Circuit) can entertain the Company’s constitutional arguments in a challenge to the civil investigative demand issued to the Company by the CFPB. The CFPB’s argument makes little sense, in my view. A party seeking a preliminary injunction in one court is not barred from obtaining the preliminary injunction simply because some other court might someday grant relief to that party. To be sure, if this Court lacked jurisdiction or statutory authority to hear this case at this time, we could not grant a preliminary injunction, But if this Court has jurisdiction and statutory authority to hear a case (as we do here, see Free Enterprise Fund, 561 U.S. at 489-91, 130 S.Ct. 3138), then a party’s claim of irreparable harm in the preliminary injunction context is not defeated by the mere fact that the party’s constitutional claims could also eventually be raised in another court.

Finally, the other two factors also support a preliminary injunction. The Company has shown that an injunction “is in the public interest” and that the “balance of equities tips in its favor. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The public interest is not served by letting an unconstitutionally structured agency continue to operate until the constitutional flaw is fixed. And in this circumstance, the equities favor the people whose liberties are being infringed, not the unconstitutionally structured agency.

I respectfully dissent from the Court’s denial of the motion for an injunction pending appeal.

      . Nor does the Company object to any other regulatory measure taken by the Bureau, or identify in its injunction papers other regulatory burdens to which it objects. Cf. State Nat’l Bank of Big Spring v. Lew, 795 F.3d 48, 53 (D.C. Cir. 2015).


source: Caselaw Access Project

author: GRIFFITH, Circuit Judge:

license: Public Domain

text:
    ABM ONSITE SERVICES—WEST, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent International Association of Machinists and Aerospace Workers, District Lodge W24 and Local Lodge 1005, Intervenor
    No. 15-1299 Consolidated with 15-1347
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 21, 2016
    Decided March 7, 2017

      Douglas W. Hall, Washington, DC, argued the cause and filed the briefs for petitioner.
    Amy H. Ginn, Attorney, National Labor Relations Board, argued the cause for respondent. With her. on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney.
    David L. Neigus argued the cause and filed the brief for intervenor International Association of Machinists and Aerospace Workers, District Lodge W24 and Local Lodge 1005 in support of respondent. Mark D. Schneider, Washington, DC, and William H. Haller entered appearances.
    Before: GRIFFITH, SRINIVASAN, and MILLETT, Circuit Judges.
   GRIFFITH, Circuit Judge:

This petition for review challenges the determination of the National Labor Relations Board that a union’s effort to represent the workers who handle airline baggage is governed by the National Labor Relations Act and not the Railway Labor Act. In reaching its conclusion, the Board departed from its precedent without offering a rationale for its new approach. We therefore vacate the Board’s order and remand the matter for further proceedings.

I

A

The National Labor Relations Act, 29 U.S.C. §§ 151 et seq., regulates most private-sector labor relations. Concerned, however, that labor strife in the railway and airline industries could disrupt commerce nationwide, Congress expressly carved out these industries, which were already covered by the Railway Labor Act, from coverage under the NLRA framework when it passed the NLRA. See id. § 152; see also Tex. & New Orleans R.R. v. Bhd. of Ry. & S.S. Clerks, 281 U.S. 548, 565, 50 S.Ct. 427, 74 L.Ed. 1034 (1930) (remarking that “the major purpose of Congress in passing the Railway Labor Act was to provide a machinery to prevent strikes”). The Act creates a “special scheme” for the railway and airline industries, premised on “their unique role in serving the traveling and shipping public in interstate commerce.” Verrett v. SABRE Grp., Inc., 70 F.Supp.2d 1277, 1281 (N.D. Okla. 1999). Under this separate regulatory scheme, various mediation and arbitration boards work to resolve airline and railway labor disputes that could interrupt interstate commerce. See id.

The question of whieh labor scheme governs has meaningful consequences for both employers and employees. Chief among them are the different powers Congress has given the agencies that administer the relevant statutes. For example, the NLRB can initiate unfair-labor-practice proceedings and issue orders to employers, but the National Mediation Board (NMB), which administers the RLA, performs no law-enforcement function. The NMB’s role is limited mainly to determining whether employees in the airline and railway industries have chosen union representation and then mediating collective, bargaining. In addition, under the RLA, both employers and employees must exhaust an extended negotiation and mediation process before they can lawfully resort to self-help measures, such as unilaterally altering working conditions or calling a strike. This prolonged process is designed to avoid strikes and “keep transportation moving” in the specific subset of the American economy that concerns the RLA. Pan Am. World Airways, Inc. v. United Bhd. of Carpenters & Joiners of Am., 324 F.2d 217, 220 (9th Cir. 1963). Under the NLRA, by contrast, employers and employees have much more latitude to engage in self-help. Employees often prefer to organize under the NLRA, as it protects a wider array of “concerted activity” by employees than does the RLA. See Beckett v. Atlas Air, Inc., 968 F.Supp. 814, 820 (E.D.N.Y. 1997) (citing cases).

The RLA originally covered only common carriers, but Congress expanded the Act in 1934 to cover certain companies that perform transportation-related services for those carriers. As a result, a company is subject to the RLA and falls outside the jurisdiction of the NLRB if it “is directly or indirectly owned or controlled by or under common control with any carrier” and “operates any equipment or facilities or performs any service” related to transportation. 45 U.S.C. § 151. Whether a company is controlled by a carrier, however, is often unclear. Thus, “the NLRB and the NMB have, in the absence of any statute addressing the point, jointly developed their own method for determining their mutual jurisdictional question of whether the NLRA or the RLA governs” in any given case. United Parcel Serv., Inc. v. NLRB, 92 F.3d 1221, 1223 (D.C. Cir. 1996).

The NLRB frequently refers the jurisdictional question to the NMB for an advisory opinion and then defers to the NMB’s view, based on the NMB’s expertise in administering the RLA. See United Parcel Serv., Inc., 318 N.L.R.B. 778, 780 (1995) (referring cases to the NMB “enables the [NLRB] to obtain the NMB’s expertise on jurisdictional matters most familiar to it”), aff'd, 92 F.3d 1221 (D.C. Cir. 1996); Pan Am. World Airways, Inc., 115 N.L.R.B. 493, 495 (1956) (explaining the NLRB’s view of the NMB’s primacy in resolving jurisdictional questions that implicate the RLA). The NLRB follows this accepted practice when a party raises a colorable claim that the NLRB lacks jurisdiction. See Spartan Aviation Indus., 337 N.L.R.B. 708, 708 (2002) (“When a party raises a claim of arguable jurisdiction under the RLA, the Board generally refers the case to the National Mediation Board ... for an advisory opinion.... ”). This practice dates back to at least 1956. See Pan Am. World Airways, Inc., 115 N.L.R.B. at 495 (declining to assert jurisdiction in a case over which the NMB claimed jurisdiction). An exception exists to the general rule, however: under “longstanding practice,” the NLRB will not refer jurisdictional questions to the NMB in situations where NMB precedent provides a clear answer. United Parcel Serv., Inc., 92 F.3d at 1228.

B

The airlines that fly into and out of the Portland International Airport formed the Portland Airlines Consortium (“PAC” or “the Consortium”) to operate the airport’s baggage-handling system. Since 2011, the Consortium has retained ABM Onsite Services — West (“ABM” or “the Company”), an independent contractor, to run the system. The issue in this case is whether ABM is a “carrier” under the RLA and thus falls outside the NLRB’s jurisdiction. The answer turns on the degree of control that the Consortium exercises over the Company. To assess that control, it is important to understand the extent of the Consortium’s contractual and practical in'volvement in a number of areas: how ABM employees do their jobs, how they are trained, what equipment they use, and even how they dress.

Most notably, the contract allows the Consortium to establish all standard operating procedures and provide all operating manuals for ABM. These manuals serve as the basis for ABM employee training. The contract also allows the Consortium to keep a close eye on the performance of ABM and its employees. For example, the Company is required to provide the Consortium with access to documents dealing with its operations, its compliance with non-discrimination laws, its operations and maintenance safety plans, and reports of on-the-job accidents.

In addition, the contract enables the Consortium to exercise influence over the Company’s personnel decisions. All of the Company’s staffing plans, for instance, must be approved by the Consortium before taking effect, and the Consortium’s general manager must approve overtime work by ABM employees. Importantly, the Consortium also has the right to approve any changes in the Company’s “key personnel,” and to direct the company to remove employees from the contract. The contract does not, however, authorize the Consortium to discipline the Company’s employees directly or require the Company to consult with it about discipline.

Furthermore, the contract specifies that the Consortium is to provide the Company with certain equipment, such as electric vehicles to move baggage and industrial bicycles to get around the baggage-handling system. The Consortium also must provide, free of charge, office space for the Company at the airport. Finally, the contract dictates that ABM employees meet certain appearance standards and wear uniforms that display the Consortium’s logo, rather than the logo of ABM.

C

In January 2015, the International Association of Machinists (the Union) filed a petition with the NLRB seeking to represent ABM’s “jammer technicians,” who ensure that passenger bags get from the airlines’ ticket counters to the aircraft, and its dispatchers, who take calls from airline employees regarding baggage issues and are the primary point of contact with the airlines. The Company protested that the NLRB lacked jurisdiction over the matter because the Company was subject to the RLA, not the NLRA. In the alternative, the Company argued, the NLRB should refer the jurisdictional question to the NMB for an advisory opinion. To resolve that jurisdictional question, the NLRB’s regional director held a hearing at which the Company’s facility manager and branch manager testified, along with two dispatchers. The regional director found that the Consortium did not exercise control over the Company and its employees within the meaning of the RLA and concluded that the NLRB thus had jurisdiction over the matter. The Company sought review of the order by the NLRB itself, which summarily denied the Company’s request and affirmed its own jurisdiction in a 2-to-l decision. The majority determined that the petition raised “no substantial issues warranting review.” J.A. 608. The dissenting member, however, was not satisfied that the Board had jurisdiction, writing that “substantial evidence [exists] that the Portland Airlines Consortium is involved in [the Companyl’s personnel decisions and operations, which may have been afforded insufficient weight by the Regional Director.” J.A. 608.

That same day, a majority of ABM’s participating employees voted in favor of union representation. The NLRB certified the Union as the employees’ collective-bargaining representative. To challenge the Board’s jurisdictional ruling, the Company refused to bargain with the Union, which drew an unfair-labor-practice charge from the Union and a complaint from the regional director of the NLRB. The NLRB granted summary judgment against the Company, which then filed this petition for review. The NLRB cross-applied for enforcement of its order, and the Union subsequently intervened.

We have jurisdiction under 29 U.S.C. §§ 160(f) and 160(e).

II

This case turns on the fundamental principle that an agency may not act in a manner that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(a). The NLRB has violated that cardinal rule here by applying a new test to determine whether the RLA applies, without explaining its reasons for doing so. Because an agency’s unexplained departure from precedent is arbitrary and capricious, we must vacate the Board’s order. Comcast Corp. v. FCC, 526 F.3d 763, 769 (D.C. Cir. 2008) (citing Pontchartrain Broad. Co. v. FCC, 15 F.3d 183, 185 (D.C. Cir. 1994)).

A

Any company that is “directly or indirectly owned or controlled by” an airline is governed , by the RLA, 45 U.S.C. § 151, provided that the company’s employees do work “that is traditionally performed by employees of ... air carriers,” Air Serv Corp., 33 NMB 272, 284 (2006). No party takes issue with the NMB’s interpretation on that latter point or disputes that ABM employees do work that is traditionally performed by employees of air carriers. As a result, because ABM is not owned by air carriers, the only question in this case is whether it is controlled by them.

In 1980, the NMB began “an extensive evaluation of its jurisdictional standards,” including on the issue of control, “in light of changing corporate relationships and increasing use of contractors to perform work integral to rail and air transportation.” Bhd. Ry. Carmen of the U.S. & Can., 8 NMB 58, 61 (1980). Over the ensuing years, the NMB developed a list of six factors to guide it in determining whether a company is controlled by an air carrier. See, e.g., Miami Aircraft Support, 21 NMB 78, 81 (1993). As stated most directly by the NMB in-2006, the agency looked to (1) the extent of the carrier’s control over the manner in which the company conducts its business; (2) the carrier’s access to the company’s operations and records; (3) the carrier’s role in the company’s personnel’ decisions; (4) the degree of carrier supervision of the company’s employees; (5) whether company employees are held out to the public as carrier employees; and (6) the extent of the carrier’s control over employee training. See Air Serv Corp., 33 NMB at 285.

As framed by the NMB in that case, the “standard for satisfying” this test was “the degree of influence that a carrier has over discharge, discipline, wages, working conditions and operations,” as opposed to any kind of requirement “that a carrier hire, fire, set wages, hours and working conditions of contractor employees.” Id. (emphasis added); see also Roca v. Alphatech Aviation Servs., Inc., 961 F.Supp.2d 1234, 1240 (S.D. Fla. 2013) (explaining that control under the RLA would exist under the “NMB’s ... test [when the] ‘carrier controls the details of the day-to-day process by which the contractor provides services — for example, the number of employees assigned to particular tasks, the employees’ attire, the length of their shifts, and the methods they use in their work.’ ” (quoting Cunningham v. Elec. Data Sys. Corp., No. 06-cv-3530 (RJH), 2010 WL 1223084, at *6 (S.D.N.Y. Mar. 30, 2010))). In other words, for the NMB to find the type of control that would trigger the jurisdiction of the RLA, an air carrier did not have to dictate decisions over employee discharge, discipline, wages, working conditions, and operations; it simply had to exercise some significant influence over those aspects of the employment relationship.

Under this test, ABM would plainly fall under the control of air carriers. The NLRB does not even attempt to argue otherwise. Indeed, the NMB previously found control and jurisdiction with facts similar to these for many airline-services contractors. In fact, according to one commentator, the NMB “found RLA jurisdiction in all but one of over thirty [such] airline-control cases” it considered between the mid-1990s and 2011. Brent Gar-ren, NLRA and RLA Jurisdiction over Airline Independent Contractors: Back on Course, 31 ABA J. Lab. & Emp. L. 77, 93 (2015).

Air Serv Corp. is an especially clear example of how that agency used to find carrier control over contractors like ABM. With apologies to the reader for the lengthy excerpt, the NMB’s discussion of the key facts in Air Serv shows that there is little daylight between that contractor’s situation and ABM’s:

United’s flight schedules affect the work schedules of Air Serv employees. United establishes a minimum level of staffing. United provides and repairs the equipment used by Air Serv to service the Carrier’s aircraft. United provides many of the supplies Air Serv uses to service the aircraft. United specifies the cleaning supplies which must be used to clean its aircraft. In order to perform periodic security and safety audits, United has access to Air Serv’s records regarding personnel, maintenance, and training. United’s [internal] regulations appear, by reference, to be an extensive set of regulations and standards that must be adhered to under the terms of the Services Agreement. Through [its internal] regulations^] United dictates the cleaning guidelines and procedures for servicing the aircrafts Air Serv has very little discretion concerning how or when to provide service.
Although Air Serv supervises its own employees, United exercises a great deal of control over Air Serv employees through its comprehensive monitoring of the contract’s performance. This monitoring includes: monetary performance penalties, minimum staffing levels, daily vendor meetings, detailed ... regulations and regular audits.

Air Serv Corp., 33 NMB at 285-86.

Indeed, there is no meaningful distinction between the control United exercised over Air Serv and the control carriers exercise over ABM. Here, the carriers’ flight schedules determine the work schedules of the Company’s employees. The Consortium decides when, where, and how many employees work at a time. It provides much of the equipment the Company uses, along with office space. The Consor-, tium specifies the exact procedures by which ABM employees do their jobs, and it has access to ABM employee-training and qualifications records. The Consortium’s general manager directly trains ABM employees on bag hygiene, and when the general manager does not do the training himself, the Consortium still provides the training materials and dictates the procedures to be followed. And even though ABM supervises its own employees, the Consortium wields a great deal of influence in practice through its comprehensive monitoring of the contract’s performance. If anything, carriers appear to exercise more control over ABM than United did over Air Serv, given the Consortium’s contractual right to approve changes in key ABM personnel, its control over the appearance of ABM employees, and the fact that the Consortium places its own logo on ABM employees’ uniforms.

Had the NLRB followed the NMB’s analysis in Air Serv, there is no question that ABM would be covered by the RLA and that the NLRB would have no jurisdiction over this labor dispute. Indeed, even in prior cases where carrier influence over personnel decisions was a factor weighing in favor of a finding of control, the NMB never went so far as to hold that the ability to discipline or discharge company personnel was necessary or even that it was a factor to be given significantly greater weight than the others. See, e.g., Complete Skycap Servs., Inc., 31 NMB 1, 5 (2003) (listing the fact that carriers “may request removal of an employee” as merely one of the many factors favoring a finding of control). Moreover, in the past, the NMB had found control even where there was no indication that an airline “ha[d] the right to request employee discipline or removal” and where “there [was] no evidence that [the airline] ha[d] []ever requested [the contractor] to discipline or remove an employee.” Kanonn Serv. Enters. Corp., 31 NMB 409, 417 (2004). If the ability to dictate personnel actions (especially nega-' five ones) had been a necessary condition for finding RLA-level control, the NMB would have reached the opposite result in such cases. By the same token, had the NLRB followed the reasoning used in those cases here, it would have concluded that the RLA governed the dispute with ABM even though the airlines cannot discipline or effectively fire ABM’s employees.

In a clear departure from precedent, however, the NMB in 2013 began requiring that air carriers exercise a substantial “degree of control over the firing[] and discipline of a company’s employees” before it would find that company subject to the RLA. Huntleigh USA Corp., 40 NMB 130, 137 (2013); see also Aero Port Servs., Inc., 40 NMB 139, 143 (2013) (finding that a cargo-screening company was not subject to air-carrier control, based on a lack of direct involvement by the airlines in employee discipline). The NMB made no effort to explain this change to its test for RLA jurisdiction. The agency expanded on this approach later that year in Bags, Inc., where it found especially relevant that the employer made the final disciplinary decisions, even though airlines could provide “input” into the process. See 40 NMB 165, 170 (2013). The NMB determined that meaningful control was lacking even though, in this line of cases, carriers provided training and operating-procedure manuals, Menzies Aviation, Inc., 42 NMB 1, 2 (2014); determined staffing levels, id. at 4; Aero Port Servs., 40 NMB at 141; controlled scheduling; Bags, Inc., 40 NMB at 170; provided equipment and space, id.; Menzies Aviation, 42 NMB at 2; recommended promotions, Airway Cleaners, LLC, 41 NMB 262, 266 (2014); and possessed veto authority over material changes to contractors’ staff, id. at 265.

We are not the first to remark on this shift in the NMB’s analysis. In an order issued just two months before the NLRB granted summary judgment against ABM, an NLRB member observed “that in ... recent cases, the National Mediation Board ... ha[d] issued advisory opinions to the NLRB declining jurisdiction, despite air carriers providing detailed specifications as to the employer’s performance of work traditionally performed by carriers (and their auditing that performance).” Primeflight Aviation Servs., Inc., 12-RC-113687, 2015 WL 3814049, at *1 n.1 (June 18, 2015) (describing the view of Board Member Harry I. Johnson, III). In that member’s assessment, “these cases represented] a shift by the NMB from earlier opinions in which it had asserted jurisdiction on similar grounds.” Id.

In 2014, a member of the NMB noted the same change:" “In recent cases where the [National Mediation] Board has declined to find jurisdiction over similar companies, it [has] generally relied on the absence of substantial control over ‘the firing and discipline of a company’s employees ....’” Airway Cleaners, 41 NMB at 275-76 (2014) (Geale, Mem., concurring in part and dissenting in part) (quoting Huntleigh USA Corp., 30 NMB at 137). “Those cases,” Board Member Nicholas Geale explains, “appear to overly emphasize that aspect compared to [earlier] NMB precedent.” Id. Member Geale reiterated those concerns later that year, dissenting from another NMB advisory opinion. See Menzies Aviation, Inc., 42 NMB at 8 (Geale, Mem., dissenting) (confessing “difficulty understanding what, if any, evidence could convince [the NMB] of coverage under our traditional ,.. test”). The NMB’s decision to find no control in Menzies Aviation is remarkable in light of its prior decisions because, as Member Geale observes, the airline in that case had the right to demand the removal of particular vendor employees from the contract. See id. (Geale, Mem., dissenting). These cases and commentary from members of both boards demonstrate that, under the test the NMB now applies, the NMB will not find control for RLA purposes if the contractor is ultimately allowed “to determine the appropriate discipline” for its own employees. See id. at 6 (majority opinion). Th at rule is impossible to square with cases from just a few years earlier. Cf. Garren, supra, at 103 (noting that the NMB’s decisions in Airway Cleaners and other recent cases “seem[] inconsistent with [the] more than thirty decisions from 1996-2011 that found RLA jurisdiction” under similar facts).

In ABM’s case, the NLRB found “that the record did not establish whether an employee’s removal from service” at the airport — which the Consortium has the right to request or require under certain circumstances — “would effectively result in the employee’s discharge” from the company. J.A. 568. The NLRB also emphasized that the Company “conducts its own investigations of [its] employees” before doling out discipline. J.A. 568. Under those facts, the most recent NMB precedent (on its own) might justify the NLRB’s determination that carriers exercise insufficient control over ABM for the RLA to apply. See Menzies Aviation, 42 NMB at 6 (explaining that “the authority to remove employees” from a contract is relevant only when “an employee has been terminated following a carrier request that he or she be removed from the contract” (emphasis added)). After all, it is far from clear that the Consortium has the power to determine discipline .for ABM employees or to ensure that those employees are fired from the Company (and not just removed from service at the airport).

And that is the very reasoning the NLRB used to conclude that the RLA did not apply here. See J.A. 571 (citing Menzies Aviation, Inc., 42 NMB 1; Airway Cleaners, LLC, 41 NMB 262; and Bags, Inc., 40 NMB 165) (finding PAC’s ability to discipline and discharge ABM employees lacking and observing “that the degree of control that PAC has over [ABM] is contractually no greater than the type of control exercised in a typical subcontractor relationship”). Yet the NMB never expressly disavowed its precedent that took all six factors into account when determining whether a carrier controlled a contractor. Nor did the NMB ever explain why it decided to replace that traditional approach with an analysis that emphasized carrier control of discipline and discharge. Given the NLRB’s previous endorsement of the prior approach, see, e.g., Aircraft Serv. Int’l Grp., 342 N.L.R.B. 977 (2004), it was not enough for the NLRB simply to follow suit without an explanation for why it, too, was leaving behind settled precedent.

B

The NLRB claims that “the NMB has primary authority to interpret the RLA,” Oral Arg. Tr. 30:6-7, and readily acknowledges that its practice is “to apply the NMB’s test,” id. at 26:22-23. Indeed, the NLRB has for years hitched its wagon to the NMB’s star, including in formal, published opinions. See, e.g., Aircraft Serv. Int’l Grp., 342 N.L.R.B. at 977. When the NLRB first adopted and applied the NMB’s traditional test, it bound itself to continue doing so; any deviation would require a reasoned explanation. In finding that it had jurisdiction over the Company, however, the NLRB relied exclusively on the NMB’s most recent precedent — silently elevating the airlines’ power over personnel decisions to dispositive status.

It is well-settled that the NLRB — like any other agency — cannot “turn[ ] its back on its own precedent and policy without reasoned explanation.” Dupuy v. NLRB, 806 F.3d 556, 563 (D.C. Cir. 2015); see also E.I. Du Pont de Nemours & Co. v. NLRB, 682 F.3d 65, 70 (D.C. Cir. 2012) (explaining that the NLRB must “give a reasoned justification for departing from its precedent”). Generally speaking, “the requirement that an agency provide reasoned explanation for its action ... demand[s] that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). And if “a party makes a significant showing that analogous cases have been decided differently, the agency must do more than simply ignore that argument.” LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55, 61 (D.C. Cir. 2004). Thus, when the Board fails to explain — or even acknowledge — its deviation from established precedent, “its decision will be vacated as arbitrary and capricious.” Manhattan Ctr. Studios, Inc., v. NLRB, 452 F.3d 813, 816 (D.C. Cir. 2006).

Because the NLRB follows the NMB’s lead in interpreting and applying the RLA, the question becomes how to treat an unacknowledged and unexplained deviation from precedent by the NLRB that is precipitated by a likewise unacknowledged and unexplained deviation from precedent by the NMB. We hold that, under such circumstances, the NLRB is not free to simply adopt the NMB’s new approach without offering a reasoned explanation for that shift. Indeed, an agency cannot avoid its duty to explain a departure from its own precedent simply by pointing to another agency’s unexplained departure from precedent. This is a corollary of the rule that an agency cannot justify a departure from its precedent simply by pointing to another one of its cases that departed from precedent, if that other case does not itself announce the new standard or a supporting rationale for it. See Ramaprakash v. FAA, 346 F.3d 1121, 1128-29 (D.C. Cir. 2003) (citing Hatch v. FERC, 654 F.2d 825, 834 (D.C. Cir. 1981)).

In short, the NLRB should have recognized that longstanding NMB precedent— which the NLRB previously followed— compelled a finding of control in this case. The NLRB may have fairly read recent NMB opinions to require greater carrier control over personnel matters than the record evinced here. But rather than ignore the NMB’s earlier precedent, which it had effectively adopted as its own, the NLRB was obligated to consider that precedent and acknowledge the conflict in this case. See Hatch, 654 F.2d at 834-35 (requiring “explicit recognition by [an agency] that the standard has been changed” and a genuine “attempt to forthrightly distinguish or outrightly reject apparently inconsistent precedent”). At that point, the NLRB would have had two options. First, it could have attempted to offer its own reasoned explanation for effectively whittling down the traditional six-factor test. It would have needed to explain why such a change was appropriate, how the new test reasonably interprets the RLA, and why the NLRB has decided to determine for itself ' the appropriate test rather than keeping with its past practice of referring such questions to the NMB and deferring to their formulation of the test for RLA jurisdiction. Or the NLRB could have simply referred this matter to the NMB and asked that agency to explain its decision to change course. If the NLRB were persuaded, it could then have adopted the NMB’s explanation as its own. The NLRB, however, followed neither path. As a result, we must vacate the NLRB’s order as arbitrary and capricious.

At oral argument, counsel for the NLRB was asked what the appropriate remedy would be if the Board had in fact applied a new test without explanation. Counsel suggested that, on remand, it would be up to the NLRB to provide, some explanation justifying the new test or to identify another agency that could. See Oral Arg. Tr. 24:1-6. We agree. Either scenario is preferable to the present state of affairs, in which both employers and employees are caught in a web of conflicting precedent on the issue of RLA jurisdiction.

III

We grant the Company’s petition for review and deny the NLRB’s cross-application for enforcement. We vacate the NLRB’s order and remand for further proceedings consistent with this opinion.

So ordered.

      . Although the RLA initially applied only to rail carriers, "[a]ir carriers and their employees were made subject to the ... Act in 1936.” Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 381 n.16, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969) (citing 45 U.S.C. §§ 181-182).

      . These facts are drawn from the findings made by the NLRB's regional director or come directly from the contract.

      . The NMB has never directly overruled or even disavowed these decisions. See Garren, supra, at 102-03.

      . The NMB also emphasized that Aero Port Services' contract involved "the type of control expected in nearly any contract for services.” 40 NMB 139, 143 (2013). Although the NMB did not explain what a typical contract for services looks like, it subsequently recited similar language in Bags, Inc., where it observed that "the type of control exercised by the [airlines] over [the employer] is found in almost any contract between a service provider and a customer.” 40 NMB 165, 170 (2013). The NMB has continued to use this language ever since. See Menzies Aviation, Inc., 42 NMB 1, 4, 7 (2014); Airway Cleaners, LLC, 41 NMB 262, 268 (2014).


author: KAREN LeCRAFT HENDERSON, Circuit Judge: KAREN LeCRAFT HENDERSON, Circuit Judge,

text:
    SCOMAS OF SAUSALITO, LLC, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent UNITE HERE, Local 2850, Intervenor
    No. 15-1412 Consolidated with 15-1476
    United States Court of Appeals, District of Columbia Circuit.
    Argued February 7, 2017
    Decided March 7, 2017

      Diane Aqui, Santa Rosa, CA, argued the cause and filed briefs for the petitioner.
    Heather S. Beard, Attorney, National Labor Relations Board, argued the cause for the respondent. Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dree-ben, Deputy Associate General Counsel, and Jill A. Griffin, Supervisory Attorney, were with her on brief.
    Before: HENDERSON, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.
   Concurring opinion filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Scomas of Sausalito (Scomas) operates a seafood restaurant in northern California. From 2000 to 2013, it recognized UNITE HERE! Local 2850 (Union) as the exclusive collective-bargaining representative for the restaurant’s bartenders, bussers, cooks, dishwashers, hostesses and servers. In 2013, 29 of the bargaining unit’s 54 employees signed a decertification petition asking Scomas to “withdraw recognition from [the Union] immediately” if the petitioners “make up 50% or more of the bargaining unit.” Joint Appendix (JA) 131-32. One of the employees gave the petition to Scomas. Another filed it with the National Labor Relations Board (NLRB or Board) because the petition asked the Board to conduct a decertification election if the petitioners “make up 30% or more (and less than 50%) of the bargaining unit.” Id. Without telling Scomas,.the Union persuaded six of the petitioners to revoke their signatures. Two days later, still unaware that six employees had a change of heart, Scomas withdrew recognition from the Union. The remaining petitioners, apparently believing they were free of the Union, withdrew the decertifi-cation petition from the Board. Only then did the Union spring back into action: it filed an unfair labor practice (ULP) charge with the Board, claiming that Scomas had violated the National Labor Relations Act (Act), 29 U.S.C. §§ 151 et seg., by withdrawing recognition from the Union when it in fact had majority support.

The Board sided with the Union and ordered Scomas to recognize and bargain with it. The bargaining order includes a “bar to raising a question concerning the Union’s continuing majority status for a reasonable time,” on the theory that such delay is “necessary” to “dissipate[ ]” the “taint” of Scomas’s violation. 362 NLRB No. 174, at 7 (Aug. 21, 2015).

Scomas petitions for review of the Board’s order. The Board cross-petitions for enforcement. We grant the former petition and deny the latter. Under Board law, “an employer with objective evidence that the union has lost majority support— for example, a petition signed by a majority of the employees in the bargaining unit — withdraws recognition at its peril” and can stave off a ULP charge only by establishing that “the union had, in fact, lost majority support at the time the employer withdrew recognition.” Levitz Furniture Co., 333 NLRB 717, 725 (2001). Applying Levitz, the Board concluded that the six revocation signatures prevented Scomas from proving the Union lacked majority support at the time of withdrawal. Although we do not disturb that conclusion, the Board’s remedy does not follow from it. A bargaining order is an extraordinary remedy that, on these facts, is out of keeping with the Act’s purposes. It rewards the Union for sitting on its hands. It punishes Scomas for acting unwarily but in good faith. And it “give[s] no credence whatsoever to employee free choice,” Skyline Distribs. v. NLRB, 99 F.3d 403, 411 (D.C. Cir. 1996) (internal quotation omitted), unduly delaying an election to determine majority status. We therefore vacate the bargaining order and remand to the Board for further proceedings.

I. BACKGROUND

Before recounting why and how Scomas withdrew recognition from the Union, we summarize the legal context of its actions.

A. The Law Op Withdrawal

“The Act’s twin . pillars” are “freedom of choice and majority rule in employee selection of representatives.” Conair Corp. v. NLRB, 721 F.2d 1355, 1381 (D.C. Cir. 1983). Section 1 declares a policy of “protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” 29 U.S.C. § 151. Under section 9, a “majority of the employees in a unit appropriate for” collective bargaining selects an exclusive bargaining representative. 29 U.S.C. § 159(a). Once an employee unit has selected a union to represent it, the law presumes the union enjoys “continuing majority support.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 794, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990). The presumption fosters “industrial peace” and “stability in collective-bargaining relationships, without impairing the free choice of employees.” Id. (internal quotation omitted).

The presumption, however, is only that: except during certain periods not at issue here, employees are not bound to be represented by a union they no longer want. Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 786, 116 S.Ct. 1754, 135 L.Ed.2d 64 (1996) (presumption is “rebut-table” except for one year following union’s initial certification and when any collective-bargaining agreement is in effect for up to three years). Employees have two ways of severing union representation. First, if 30 per cent of the unit employees agree, they can obtain an election by filing a decertifi-cation petition with the Board, which decides majority status based on the election. See 29 U.S.C. § 169(c)(1)(A)(ii); NLRB Ca-sehandling Manual, Pt. 2, Representation Proceedings § 11023.1 (Jan. 2017). Or, second, the employees can go directly to the employer, presenting it with a petition or other evidence that the union has lost majority support. See, e.g., Pac. Coast Supply, LLC v. NLRB, 801 F.3d 321, 324, 326 (D.C. Cir. 2015); Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 730 (D.C. Cir. 2000).

When presented with evidence that the union no longer has majority backing, the employer “has three options: to request a formal, Board-supervised election, to withdraw recognition from the union and refuse to bargain, or to conduct an internal poll of employee support for the union.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 361, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998). Only the first two options are relevant here. If the employer opts for an election, it must file a petition with the Board. NLRB Casehandling Manual, supra, § 11042; cf. Parkwood Dev. Ctr., Inc. v. NLRB, 521 F.3d 404, 406 & n.1 (D.C. Cir. 2008). Election is the “preferred” method of determining majority status, Levitz, 333 NLRB at 723, 725-27, because an employer’s unilateral withdrawal of recognition is more subjective and less precise, NLRB v. Cornerstone Builders, Inc., 963 F.2d 1075, 1078 (8th Cir. 1992). Levitz bears out this preference. Under Levitz, “an employer may rebut the continuing presumption of an incumbent union’s majority status, and unilaterally withdraw recognition, only on a showing that the union has, in fact, lost the support of a majority of the employees in the bargaining unit.” 333 NLRB at 725. As a corollary, the employer acts “at its peril” when it withdraws recognition, even when presented with “a petition signed by a majority of the employees in the bargaining unit.” Id. By contrast, an employer obtains an election under a “more lenient standard,” “by demonstrating reasonable good-faith uncertainty as to [an] incumbent union[’s] continued majority status.” Id. at 723 (emphasis omitted).

B. Scomas’s Withdrawal

The Union is the exclusive collective-bargaining representative of Scomas’s service staff. From 2000 until September 2012, Scomas operated under a series of collective-bargaining agreements with the Union. For more than one year after the last agreement expired in 2012, the Union did not request bargaining. Also, according to employee Georgina Canche, the Union for years held no meetings and gave its members no information, despite collecting dues all the while.

“[F]rustrated,” Canche researched de-certification procedures online and obtained a standard-form decertification petition. JA 58. Between September 26 and October 28, 2013, she collected 29 signatures from the 54 employees in the bargaining unit. A fellow employee delivered the petition to Roland Gotti, Scomas’s general manager, on October 28. The next day, Canche filed the petition with the Board. The petition asked Scomas to “withdraw recognition from [the Union] immediately” if the petitioners “make up 50% or more of the bargaining unit.” JA 131-32. In the alternative, it asked the Board to conduct a decertification election if the petitioners “make up 30% or more (and less than 50%) of the bargaining unit.” Id.

Lian Alan, the Union’s lead organizer, heard about the petition before it was filed. He emailed Gotti late in the evening on October 28, 2013, to “request bargaining dates to begin the negotiations for a collective bargaining agreement.” JA 53. The email said nothing about the petition, however, or that Alan intended to persuade the petitioners to revoke their signatures.

The following afternoon, October 29, 2013, Alan spoke with several of the petitioners outside Scomas’s restaurant during a shift change. The evidence is in conflict about what he said. According to Alan, he told them “it was possible that [Scomas] could withdraw recognition from the Union,” JA 22, in which case “all of their benefits, pay, and wages would be determined by” Scomas, JA 146. According to the employees — whose recollections differed about the exact words — Alan said that, if the Union were decertified, Scomas could take away their benefits, fire them or report them to immigration authorities. By all accounts, Alan told them that if they wanted to withdraw their names from the decertification petition, they could do so. He presented them with a form stating: “If I signed a petition to decertify or get rid of the Union, I hereby revoke my signature. I do wish to continue being represented by [the Union] for the purposes of collective bargaining.” JA 54. Six of the employees who had earlier signed the decertification petition then signed the revocation form. Alan did not tell Scomas about the revocation.

In the meantime, Gotti compared the 29 signatures on the decertification petition with the signatures on the employees’ payroll records. Because the signatures matched and represented a majority of the unit employees, Scomas withdrew recognition from the Union as the petition requested. Specifically, on October 31, 2013, Scomas told Alan via fax, email and certified mail that it had “received a petition from the majority of [its] employees stating they do not want to be represented by [the Union] any longer.” JA 65. Scomas said that, in light of the petition, it was “withdrawing recognition” and could not grant Alan’s October 28 request for bargaining. Id. Scomas sent the message without knowing that Alan had two days earlier obtained revocation signatures from six petitioners. On receiving the message, Alan still did not tell Scomas about the revocation. Indeed, as far as the record shows, he did not respond at all.

On November 6, 2013, Canche withdrew the decertification petition from the Board, presumably because she and the other petitioners thought Scomas had mooted any election by withdrawing recognition from the Union. On November 12, the Union filed a ULP charge against Scomas, claiming the Union had majority status when Scomas withdrew recognition on October 31.

C. The Board Proceedings And Bargaining Order

An administrative law judge (ALJ) conducted a hearing at which Gotti, Alan and several unit employees testified. Afterward, in a published order, the ALJ rejected Scomas’s contention that “the Union had a duty to inform [Scomas] that it had gathered evidence of support for the Union from decertification signers.” 362 NLRB No. 174, at 6. The ALJ observed that Levitz required Scomas to establish that the Union “actually” lacked majority support when Scomas withdrew recognition. Id. at 3. Crediting Alan’s testimony over that of the revocation signatories, the ALJ found that “the revocation signatures were not the subject of misrepresentation or coercion and are valid revocations.” Id. at 6. In light of that finding, the ALJ concluded that Scomas had violated section 8(a)(5) and (1) of the Act by withdrawing recognition when the Union enjoyed majority support.

To remedy the violation, the ALJ ordered Scomas to (inter alia) “recognize and bargain with the Union for a reasonable period of time.” 862 NLRB No. 174, at 6. Consistent with “time-honored Board practice,” Caterair Int’l v. NLRB, 22 F.3d 1114, 1122 (D.C. Cir. 1994), the order “bar[s]” Scomas and its employees from “raising a question concerning the Union’s continuing majority status” during the required bargaining period, 362 NLRB No. 174, at 7.

In support of the bargaining order, the ALJ “quoted in full and adopted” the Board’s reasoning in Anderson Lumber Co., 360 NLRB 538 (2014), enforced sub nom., Pac. Coast Supply, LLC v. NLRB, 801 F.3d 321 (D.C. Cir. 2015), a case in which the Board imposed the same remedy. 362 NLRB No. 174, at 7. As relevant here, the ALJ quoted Anderson Lumber for the following three propositions, correlating to a three-factor balancing test mandated by our case law. See, e.g., Vincent Indus. Plastics, 209 F.3d at 738. First, in the ALJ’s view, the order “vindicates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by [Scomas’s] withdrawal of recognition” and “does not unduly prejudice” employees who oppose the Union, especially because their opposition “may be at least in part the product of’ Scomas’s conduct. 362 NLRB No. 174, at 7 (quoting Anderson Lumber, 360 NLRB at 538). Second, according to the ALJ, the order “foster[s] meaningful collective bargaining and industrial peace” by removing Sco-mas’s “incentive to delay bargaining in the hope of further discouraging support for the Union” and by ensuring the Union does not feel “pressured ... to achieve immediate results at the bargaining table.” Id. (quoting Anderson Lumber, 360 NLRB at 538). Third, in the ALJ’s telling, an alternative remedy “would be inadequate ... because it would permit another challenge to the Union’s majority status before the taint of [Scomas’s] unlawful withdrawal of recognition has dissipated, and before the employees have had a reasonable time to regroup and bargain through” the Union. Id. (quoting Anderson Lumber, 360 NLRB at 538-39).

The Board summarily “affirm[ed]” the ALJ’s “rulings, findings, and conclusions” and “adopt[ed]” her remedial order with modifications not pertinent here. 362 NLRB No. 174, at 1 (footnotes omitted). Member Johnson joined the decision but wrote separately to note that, in an appropriate case, “he would modify the Levitz standard by requiring that unions present evidence of reacquired majority support within a reasonable amount of time[.]” Id. at 1 n.2.

II. ANALYSIS

Scomas petitions for review on two grounds: (1) it did not violate the Act; and (2) even if it did, an affirmative bargaining order is too extreme a remedy. We reject the first ground but agree with the second.

A. Scomas Violated The Act.

Based on the revocation signatures and Lian Alan’s testimony, the ALJ found that Scomas did not meet its burden of proof under Levitz Furniture Co., 333 NLRB 717 (2001). The Board affirmed the ALJ’s finding and Scomas does not challenge it. Instead Scomas argues that it did not have to satisfy Levitz at all. We disagree.

Scomas contends that an employer who relies with “good-faith certainty ... on a petition signed by a majority of the employees in the bargaining unit” does not violate the Act by decertifying a union based on the petition. Pet’r Br. 14 (emphasis omitted). Levitz squarely forecloses the contention, holding that a decertification “petition signed by a majority of the employees in the bargaining unit” does not shield an employer from the “peril” of a ULP charge unless the employer shows that the union “actually” lacked majority support when the employer withdrew recognition. 333 NLRB at 725. Our own precedent has recognized that principle, see, e.g., Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 180-82 (D.C. Cir. 2006) (applying Levitz where employer relied on “disaffection petition ... purportedly signed by 96 of the unit’s 164 employees”), and we are not free to ignore it, see HTH Corp. v. NLRB, 823 F.3d 668, 676 (D.C. Cir. 2016) (panel cannot “overrule or supersede a prior panel’s decision” (internal quotation omitted)).

In its briefs, Scomas alternatively urged “a modification of the Levitz framework” based on the Union’s failure to disclose its restored majority status. Pet’r Reply Br. 6. In particular, it asked us to “impos[e] on the [u]nion an affirmative duty to notify an employer of reacquired majority support after withdrawal of recognition.” Pet’r Br. 18 (emphasis in original). We are uncertain whether its request still stands: Scomas stated at oral argument that it is “not contesting Levitz.” Oral Arg. Recording 3:17-3:25. In any event, we see no basis for the modification Scomas proposed. Levitz focuses on “the time [at which] the employer withdrew recognition,” 333 NLRB at 725, and the Board has repeatedly declined to consider evidence that “was not before the [employer] when it withdrew recognition,” Highlands Hosp. Corp., 347 NLRB 1404, 1407 n.17 (2006), enforced, 508 F.3d 28 (D.C. Cir. 2007); see also, e.g., Anderson Lumber Co., 360 NLRB 538, 543 (2014) (“post-withdrawal ... evidence is irrelevant”), enforced sub nom., Pac. Coast Supply, LLC v. NLRB, 801 F.3d 321, (D.C. Cir. 2015). Our cases have deferred to the Board’s approach as “rational and consistent with the Act.” Pac. Coast Supply, 801 F.3d at 333 (internal quotation omitted); see Highlands Hosp. Corp., 508 F.3d at 32. We would run afoul of those cases were we to hold that liability turns on what a union tells (or fails to tell) an employer after the employer withdraws recognition.

B. The Board Abused Its Discretion In Imposing A Bargaining Order.

The Act “charges the Board with the task of devising remedies to effectuate [its] policies.” NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346, 73 S.Ct. 287, 97 L.Ed. 377 (1953) (citing 29 U.S.C. § 160(c)). In view of the Board’s expertise, see Caterair Int’l v. NLRB, 22 F.3d 1114, 1120 (D.C. Cir., 1994), “[w]e will disturb [its] remedy only when it amounts to an abuse of discretion,” Teamsters Local Union No. 639 v. NLRB, 924 F.2d 1078, 1085 (D.C. Cir. 1991). The standard of review is deferential but not toothless: we must “assure ourselves that the Board has considered the factors which are relevant to its choice of remedy, selected a course which is remedial rather than punitive, and chosen a remedy which can fairly be said to effectuate the purposes of the Act.” Caterair Int’l, 22 F.3d at 1120 (internal quotation omitted). Here, the Board failed in every respect.

For starters, we see no indication that the Board considered why a bargaining order was necessary in this case, an unusual one in which the Union withheld information about its restored majority status. “[A]n affirmative bargaining order is an extreme remedy, because according to time-honored Board practice it comes accompanied by a decertification bar that prevents employees from challenging the Union’s majority status for at least a reasonable period.” Caterair Int’l, 22 F.3d at 1122 (internal quotations omitted). A decertification bar, in turn, “touch[es] at the very heart of employees’ rights” by preventing them from “dislodging] the union” no matter “their sentiments about it.” Id. Because the remedy is so potent, we require the Board to “justiffy]” it

by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees’ § 7 rights [of self-organization and collective bargaining]; (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.

Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000); see Lee Lumber & Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1461 (D.C. Cir. 1997) (per curiam) (noting that, “[b]ecause affirmative bargaining orders interfere with the employee free choice that is a core principle of the Act,” we “view[ ] them with suspicion” and demand special justification for them (internal quotation omitted)).

Here, the ALJ — whose findings the Board summarily affirmed, 362 NLRB No. 174, at 1 (Aug. 21, 2015) — purported to satisfy the reasoned-analysis requirement by quoting wholesale, id. at 7, from the Board’s decision in Anderson Lumber, 360 NLRB at 538-39. But Anderson Lumber is inapposite. Unlike the Union here, the union there did not withhold information about its restored majority status. For that reason alone the ALJ’s cut-and-paste job does not suffice. See Douglas Foods Corp. v. NLRB, 251 F.3d 1056, 1066 (D.C. Cir. 2001) (“extensive quotation” is no “substitute[ ]” for “considering] the factors as they apply to the instant case”); Lee Lumber, 117 F.3d at 1461 (“[I]f the Board wishes to impose an affirmative bargaining order, it must explain why that remedy is appropriate given the facts of that particular case.”).

We could send the case back to the Board for a better explanation. The problem, however, “is not just that the Board has failed to justify its position[.]” Skyline Distribs. v. NLRB, 99 F.3d 403, 404 (D.C. Cir. 1996). The problem is that its position cannot be justified. We decline to merely order a remand that would permit the Board to reimpose a bargaining order. See id. at 412 (vacating bargaining order and remanding for lesser remedy because no findings could justify order); see also Vincent Indus. Plastics, 209 F.3d at 739 (“[R]elief delayed under the Act may be relief denied.”).

“[A] bargaining order is not a snake-oil cure for whatever ails the workplace[.]” Avecor, Inc. v. NLRB, 931 F.2d 924, 938-39 (D.C. Cir. 1991). It therefore should be prescribed only when the employer has committed a “[h]allmark violation!]” of the Act. Id. at 934, 936; see Douglas Foods Corp., 251 F.3d at 1065. It should not be imposed if the violation is “far from serious.” Skyline Distribs., 99 F.3d at 410. Severity depends on (inter alia) whether the employer’s conduct was “deliberate or calculated,” id. at 411 (internal quotations omitted), whether it was “the genesis of [the] employees’ desire to rid themselves of’ the union, Daisy’s Originals, Inc. v. NLRB, 468 F.2d 493, 502 (5th Cir. 1972), and whether it was so “flagrant” that an election cannot fairly be held, id. at 503 (internal quotation omitted).

Far from being deliberate or calculated, Scomas’s violation was unintentional. The company acted in good faith on a facially valid decertification petition. It verified the petitioners’ signatures. The same day that its general manager, Roland Gotti, received the petition, the Union’s lead organizer, Lian Alan, requested bargaining for the first time in a long time. Gotti did not have to write off the timing as a coincidence. He could reasonably assume the Union knew of the petition and he could reasonably expect Alan to challenge it if the Union doubted it as a measure of employee sentiment. Yet Alan said nothing of the petition, let alone that he intended to persuade the petitioners to revoke their signatures. And even after six petitioners revoked their signatures at Alan’s behest-restoring the Union’s majority status' — Alan did not tell Scomas. Three days after receiving the petition and having heard nothing from the Union, Scomas withdrew recognition. In doing so, it may have been incautious with respect to Levitz and insufficiently wary of Union gamesmanship. But nothing about its conduct was “flagrant.” Daisy’s Originals, 468 F.2d at 503 (internal quotation omitted).

The Board suggests “any ‘gamesmanship’ ” was “on the part of the Company.” Resp’t Br. 24 n.9. We see none. Scomas did not “ignore[ ] the election called for by the employees” or “its own option to request an election.” Id. Because it had no reason to doubt that 29 of 54 unit employees supported the decertification petition, it had no reason to call for an election. The petition sought an election only if the petitioners “make up 30% or more (and less than 50%) of the bargaining unit.” JA 131-32. Indeed, the petition stated that, if the petitioners “make up 50% or more of the bargaining unit,” Scomas was to “withdraw recognition from [the Union] immediately.” Id. (emphasis added). Understandably, that is just what Scomas did.

This is not a case in which, absent a bargaining order, Scomas would “benefit by [its] own wrongs.” Daisy’s Originals, 468 F.2d at 502. As far as the record reflects, the genesis of the employees’ discontent was not Scomas’s conduct but an extended period of Union neglect. It follows that an election can fairly be held without a bargaining order and attendant bar on questioning the Union’s majority status. Contrary to the Board’s analysis, 362 NLRB No. 174, at 7, there is no “taint” to “dissipatef ].” The only conceivable function of the order, then, is to punish Scomas, presumably to deter future violations. But we see no evidence that, absent the order, Scomas will recidivate. Cf. NLRB v. Century Moving & Storage, Inc., 683 F.2d 1087, 1094 (7th Cir. 1982) (reversing bargaining order where “recurring misconduct” unlikely).

In any event, in imposing a remedy, the Board must balance deterrence with “ascertainable employee free choice.” Caterair Int’l, 22 F.3d at 1122 (internal quotation omitted). Here, the bargaining order “give[s] no credence whatsoever to employee free choice.” Skyline Distribs., 99 F.3d at 411 (internal quotation omitted). Even after six unit employees revoked their signatures, at least 42 per cent (23 54) of the unit employees supported an election. The Board contends that, because Scomas “did not demonstrate that the Union actually lost the support of a majority of employees,” an election would not be an appropriate “alternative remed[y].” Resp’t Br. 30. That makes no sense. The threshold for an election is 30 per' cent, not 50 per cent. NLRB Casehandling Manual, Pt. 2, Representation Proceedings § 11023.1 (Jan. 2017).

In sum, the bargaining order does not further the Act’s policy of “protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing[.]” 29 U.S.C. § 151. To the contrary, it handcuffs Scomas’s employees to the Union for no good record-based reason. Accordingly, we grant the petition for review, deny the cross-petition for enforcement, vacate the bargaining order and remand to the Board for the determination of a new remedy. See Skyline Distribs., 99 F.3d at 412.

So ordered.

KAREN LeCRAFT HENDERSON, Circuit Judge,

concurring:

The United States Supreme Court has cautioned that the trial process is not to be treated as “a poker game in which players enjoy an absolute right always to conceal their cards until played.” Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). The same ought to be true of labor relations. But participants on either side of the table could easily draw a different conclusion from Levitz Furniture Co., 333 NLRB 717 (2001), which holds that an employer withdraws recognition from a union “at its peril” even when it acts in good faith on a facially valid decer-tification petition, id. at 725. I write separately to express my view that Levitz should be carefully cabined in eases involving restored majority status so that it does not reward gamesmanship at the expense of transparency.

The statute itself hints at one limiting principle. Section 8(a)(5) makes it “an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5) (emphasis added). Ordinarily, tfye act of “refus[al]” is volitional: it requires “a positive willingness,” Webster’S Third New International Dictionary 1910 (1993), or a knowing “rejection],” XIII Oxford English Dictionary 495 (2d ed. 1989), not simply a failure. See, e.g., Overton v. City of Austin, 748 F.2d 941, 949 (5th Cir. 1984) (court’s “mere failure” to grant injunctive relief was “not the same as ‘refusing’ it”); Hinson v. Mich. Mut. Liab. Co., 275 F.2d 537, 539 (5th Cir. 1960) (under since-amended version of Federal Rule of Civil Procedure 37, excusable “failure” to comply with court order was not “refusal” to obey it). It is linguistically jarring to. say that an employer acting on a facially valid decertification petition “refuses” to bargain with a union that, unbeknownst to the employer, has covertly collected enough revocation signatures to restore majority status.

Even Levitz is distinguishable on that basis.- When the employer there told the union it had “objective evidence” that the union no longer enjoyed majority status, the union replied that it had evidence to the contrary and was “ready at any time” to present it. 333 NLRB at 719 (internal quotation omitted). The émployer withdrew recognition anyway, without examining the union’s alleged evidence. Id. That is a refusal to bargain.

I read Levitz to hold that the employer assumes the risk of being wrong about the union’s majority status, not that the employer assumes the risk of union subterfuge. The Act must be construed in a way that fosters “industrial peace” and “stability in collective-bargaining relationships” “without impairing the free choice of employees.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 794, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990) (internal quotation omitted). Giving a union free rein to withhold information about restored majority status would sow tension and distrust, not peace and stability. For fear of an unforeseeable ULP charge, a prudent employer would be hard pressed to withdraw recognition even when presented with a seemingly reliable decertification petition — and even where, as here, the petition demands “immediate[ ]” ouster. JA 181-32. So much for employee free choice.

True, an employer with a good-faith doubt about a union’s majority status can call for an election, Levitz, 338 NLRB at 723, but it is no cure-all. A union can and often does file a ULP charge — a “blocking charge” — “to forestall or delay the election.” Id. at 732 (Member Hurtgen, concurring). Even when the charge is dismissed and the union loses the election, it can file objections afterward. Id. The process takes months. Jeffrey M. Hirsch, NLRB Elections: Ambush or Anticlimax? 64 Emory L.J. 1647, 1652-53 (2015) (summarizing Board statistics about election delays); see id. at 1663 (noting that recent election reforms have not addressed use of blocking charge as “tactic” for “delay”). In the meantime, the employer must continue to recognize the union despite its putative lack of majority support. Levitz, 333 NLRB at 732 (Member Hurtgen, concurring).

The Union’s conduct in this case highlights the foregoing problems. Had the Union’s lead organizer, Lian Alan, had any concern for the wishes of unit employees, he would have notified Scomas as soon as he collected the revocation signatures so that, in keeping with the decertification petition, the Board could conduct an election. After all, 23 petitioners remained. They represented 42 per cent.of the unit employees. Their signatures alone would have triggered an election. NLRB Case-handling Manual, Pt. 2, Representation Proceedings § 11023.1 (Jan. 2017) (setting required threshold of “[p]etitioner interest” at 30 per cent); see JA 131-32 (petition called for election if petitioners “make up 30% or more (and less than 50%) of the bargaining unit”). At minimum Alan should have told Scomas about the revocation signatures when Scomas withdrew recognition so that it could take immediate corrective action. His refusal to do so reflects that he deliberately let Scomas act “at its peril,” Levitz, 333 NLRB at 725, positioning the Union to pursue a ULP charge and delay the election. It was a neat trick, really. One doubts the Union would have won an election after years of doing nothing for the employees. And here we are another three and one-half years later with the Union still at the helm.

In short, I do not think an employer violates the Act when, in good faith, it withdraws recognition from a union as a result of the union’s intentional nondisclosure of its restored majority status. Sco-mas’s conduct would fit that description had Scomas established that, fully informed, it would not have withdrawn recognition. But it introduced no direct evidence on that score. See, e.g., Oral Arg. Recording 1:42-2:06 (Scomas’s counsel acknowledged that general manager Roland Gotti did not testify about “what he would have done if he had known of the six defectors”); cf. Johnson Controls, Inc., NLRB Case No. 10-CA-151843, ALJ Decision at 13, 2016 WL 626283 (Feb. 16, 2016) (finding no violation where, inter alia, employer “remained open to considering evidence that contradicted the disaffection petition”). Thus, I see no way around the unsatisfying conclusion that Scomas violated the Act.

      . Parts of the record refer to the restaurant as "Scoma's.” The company's briefs call it "Sco-mas,” however, so we use that formulation.

      . A seventh employee signed the revocation form but her signature was not counted because she had not signed the decertification petition.

      . Section 8(a)(5) makes it "an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees[.]” 29 U.S.C. § 158(a)(5). Section 8(a)(1) makes it “an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in” section 7, including the right "to bargain collectively through representatives of their own choosing.” Id. §§ 157, 158(a)(1). Because of the overlap in provisions, "an employer who violates section 8(a)(5) also, derivatively, violates section 8(a)(1).” Exxon Chem. Co. v. NLRB, 386 F.3d 1160, 1164 (D.C. Cir. 2004).

      . Two weeks elapsed between Alan’s securing the six signatures and his indirectly revealing the same to Scomas by filing the ULP charge. Member Johnson stated that "the [U]nion's failure to give notice of its restored majority status misled [Scomas] into a disruptive unlawful withdrawal with the collateral effect of precluding employees from filing a decertifi-cation election petition with the Board.” 362 NLRB No. 174, at 1 n.2. In his view, however, Scomas had not sufficiently raised the notice issue in its exceptions to the ALJ’s decision. Id.

      . At oral argument, the Board resisted the notion that the violation was "technical.” Oral Arg. Recording 13:14-13:50, 19:20-19:45. Fair enough; call it inadvertent and "far from serious.” Skyline Distribs., 99 F.3d at 410.

      . I am not alone in this view. In the Board decision, Member Johnson suggested that Lev- itz should not be read as "a policy allowing unions to withhold evidence of reacquired majority support.” 362 NLRB No. 174, at 1 n.2. Similarly, in Johnson Controls, Inc., NLRB Case No. 10-CA-151843, 2016 WL 626283 (Feb. 16, 2016), an ALJ declined to extend Levitz "so far that it smiles on ‘gotcha.’ ” ALJ Decision at 13. As far as its docket shows, the Board has not issued a final decision in Johnson Controls.

      . If Scomas had challenged the ALJ’s credibility findings, this likely would have been the rare case in which I would have voted to set them aside as "patently insupportable.” Douglas Foods Corp. v. NLRB, 251 F.3d 1056, 1061 (D.C. Cir. 2001) (internal quotation omitted). Alan’s concealment of the revocation signatures says a great deal about his forthrightness generally. The employees who revoked their signatures testified that they did so because Alan told them, in some formulation or another, that they faced dire consequences— loss of benefits, termination or immigration consequences — if the Union were decertified. 362 NLRB No. 174, at 5. The ALJ rejected their testimony because they could not agree on what words were uttered, id., but the collective gist was consistent. If their accounts differed in minor particulars, the difference showed only that they did not script and rehearse a unified story beforehand. It was Alan's account that could not be reconciled at any level of generality.

      . Because a union’s loss of majority status is "an affirmative defense” to a ULP charge, "tfie employer has the burden of establishing” it. Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 183 (D.C. Cir. 2006) (internal quotations omitted). By the same logic, I would require an employer who claims union concealment to show that it would not have withdrawn recognition had it known of the union's restored majority status.