Coreslab Structures v. NLRB

94 F.4th 969

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 28, 2024
• Docket: 23-9502
• Status: Published

Opinion

Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH February 28, 2024 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

CORESLAB STRUCTURES (TULSA), INC.,

Petitioner/Cross Respondent,

v. Nos. 23-9502, 23-9505

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross Petitioner.

---------------------------------------- INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 627, AFL-CIO,

Intervenor. _________________________________

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board (NLRB Nos. 14-CA-248354, 14-CA-248812) _________________________________

Christopher C. Murray of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. of Indianapolis, Indiana (Daniel A. Adlong and Henry Bryce Farrington of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. of Costa Mesa, California, with him on the briefs), for Petitioner/Cross Respondent.

Joel Heller (Elizabeth A. Heany, Ruth E. Burdick, Jennifer A. Abruzzo, Peter Sung Ohr, and David Habenstreit with him on the briefs) of the National Labor Relations Board, Washington, D.C., for Respondent/Cross Petitioner. Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 2

Steven R. Hickman of Fraiser, Fraiser & Hickman, LLP of Tulsa, Oklahoma, for Intervenor. _________________________________

Before HARTZ, TYMKOVICH, and ROSSMAN, Circuit Judges. _________________________________

ROSSMAN, Circuit Judge. _________________________________

Coreslab Structures petitions for review of a National Labor Relations

Board decision finding it violated several provisions of the National Labor

Relations Act. Exercising jurisdiction under 29 U.S.C. § 160(e) and (f), we grant

in part and deny in part Coreslab’s petition for review, deny the Board’s

cross-petition for enforcement, and remand to the Board for further

proceedings.

I

A

Coreslab produces bridge components and other structural materials

at its facility in Tulsa, Oklahoma.1 From 2004 until 2019, Coreslab

recognized the International Union of Operating Engineers, Local 627,

AFL-CIO (the Union) as the bargaining representative of the company’s

production and maintenance employees.

1 We draw these facts from the Board’s order. We address Coreslab’s

challenges to these findings in Section II. 2 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 3

Coreslab and the Union executed their first collective-bargaining

agreement in 2005. That agreement and the agreements that followed

required Coreslab to make pension contributions to a Central Pension Fund.

Under Article XVI of the collective-bargaining agreement at issue here,

Coreslab had to pay a certain amount into the Central Pension Fund for “all

hours worked” by unit employees.

But beginning in 2011, Coreslab made pension contributions only for

hours worked by unit employees who were members of the Union—about

twenty-five percent of the total of unit employees. In lieu of pension

contribution payments, Coreslab provided annual profit-sharing payments

to non-Union bargaining unit employees. These profit-sharing payments

were not included in the collective-bargaining agreements. Nor were they

provided to Union employees. Some Union-member employees, including

Union steward Floyd Prince, became aware of this dual-track

pension/profit-sharing system as early as 2011. But Coreslab did not inform

Union President Jason Evans, Union Business Manager Michael Stark, or

the two business agents who helped Mr. Evans negotiate the 2015-2019

agreement, until 2019.

In March 2019, Coreslab received notice from the Central Pension

Fund that the Fund would conduct a random compliance audit for

Coreslab’s pension contributions over the past three years. Eventually, that

3 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 4

audit revealed Coreslab underpaid the Fund by roughly $120,000 during

the 2016 to 2018 period. This underpayment, the audit determined, was due

to the exclusion since 2011 of hours worked by non-Union bargaining unit

employees from Coreslab’s calculations of its obligations to the Fund. The

audit results became available to Coreslab in mid-July 2019. Shortly after,

the company informed the Union of the audit’s basic conclusion—Coreslab

owed the Central Pension Fund money—but it did not tell the Union how

much money was owed or the cause of underpayment.

In a separate July incident, Mr. Evans was speaking with a new hire

in the Coreslab facility’s breakroom. While not yet a permanent employee,

the new hire was signing an authorization for Union representation. A plant

manager, Danny Johnson, interrupted their conversation, and directed the

new hire not to speak with the Union. Mr. Johnson apparently believed

temporary employees had no right to speak to the Union; Mr. Evans

explained “that wasn’t the law, and . . . wasn’t the way it worked.” AR.136.

After this brief exchange, both the new hire and Mr. Johnson left the

breakroom.

Since April 2019, meanwhile, Mr. Evans had been attempting to

schedule bargaining sessions with Coreslab general manager Neil Drews to

negotiate a successor collective-bargaining agreement. Mr. Drews cancelled

further meetings after a brief session in the spring, and delayed bargaining

4 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 5

in response to at least six requests from Mr. Evans during the early summer

of 2019. The parties finally met in late July 2019, when Coreslab proposed

the cessation of the pension benefit program. The company did not inform

Mr. Evans that Coreslab had already terminated its pension payments for

non-Union employees.

To provide employees with Coreslab’s view of the flagging bargaining

efforts, Mr. Drews met with company employees in late August. He

mentioned the audit results and shared his view that one impediment to

progress was the audit’s conclusion the company owed money. “Any money

that the company may owe,” Mr. Drews warned, would “be paid to the

pension fund and not the employees.” AR.1626. If the employees were not

Union members, he continued, they would receive no benefit from the

“extra” contribution the company was being forced to make, AR.1626, and

they would “be forfeiting the profit sharing” payments, AR.1640.

At the third bargaining session on September 6, 2019, Mr. Drews told

Mr. Evans for the first time that Coreslab had not been making pension

contributions to the Central Pension Fund for non-Union bargaining unit

members. Instead, non-Union employees were permitted to participate in a

profit-sharing plan. Shortly after the meeting, the Union requested

information about Coreslab’s profit-sharing plan; Coreslab declined to

5 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 6

provide some of the requested information, including the 401(k) plan

prospectus and the calculation bases for profit-sharing eligibility.

On September 11, Mr. Drews received a disaffection petition signed

by 18 of the 26 bargaining-unit employees. The petition indicated the

undersigned employees no longer wished to be represented by the Union.

The next day, Mr. Drews withdrew tentative agreements reached

during the three bargaining sessions. Mr. Drews rejected an additional

information request from the Union received on September 16 about the

company’s 401(k) and profit-sharing plans. He explained that information

was not relevant because it only concerned plans “taken off the table . . . on

. . . September 12, 2019.” AR.1626.

Disaffection petition in hand, Mr. Drews informed the Union on

September 24 that Coreslab would be withdrawing its recognition when the

current collective-bargaining agreement expired on September 30, 2019.

Mr. Drews refused requests for further bargaining sessions, and Coreslab

ceased recognizing the Union on October 1.

B

The National Labor Relations Act, 29 U.S.C. § 151 et seq., protects the

right of employees “to bargain collectively through representatives of their

own choosing.” 29 U.S.C. § 157. Section 8 of the Act makes unlawful a

number of unfair labor practices. Among them, employers may not

6 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 7

“interfere with, restrain, or coerce employees” in the exercise of protected

rights, 29 U.S.C. § 158(a)(1), discriminate “in regard to . . . any term or

condition of employment to encourage or discourage membership in any

labor organization,” 29 U.S.C. § 158(a)(3), or “refuse to bargain collectively

with the” employee representatives, 29 U.S.C. § 158(a)(5). To effect these

rights, the National Labor Relations Board “is empowered . . . to prevent

any person from engaging in any unfair labor practice . . . affecting

commerce,” 29 U.S.C. § 160(a), after the filing of a charge and investigation

by the Board and its agents, 29 U.S.C. § 160(b).

C

Based on charges filed by the Union, the General Counsel of the NLRB

issued a complaint against Coreslab. He alleged the company’s conduct

constituted unfair labor practices under three provisions of the Act.

Coreslab, the General Counsel urged, violated 29 U.S.C. § 158(a)(5) by:

unilaterally modifying its agreements with the Union, failing to make

pension contributions required by the collective-bargaining agreement,

initiating a profit-sharing payment program for non-Union employees,

ceasing all pension fund contributions after the 2015–2019 agreement

expired, failing to bargain with the Union in good faith, and withdrawing

recognition of the Union. He alleged Coreslab discriminated between Union

and non-Union employees by providing profit-sharing payments to the

7 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 8

latter and not the former, in violation of § 158(a)(3). And he identified as

violative of § 158(a)(1) Mr. Johnson’s direction to an employee not to speak

with the Union.

In February 2021, the administrative law judge (ALJ) assigned to the

case largely agreed with the General Counsel and found Coreslab violated

29 U.S.C. § 158(a)(1), (3), and (5).

That decision was upheld, in relevant part,2 by the Board.

First, the Board rejected Coreslab’s contention the Union had actual

or constructive knowledge of the disparate compensation plans. AR.1621.

While the Board refused the ALJ’s characterization of the pension and

profit-sharing plans as “secret” or “covert,” AR.1621 n.7, it declined to

2 While the Board and the ALJ agreed the Union lacked knowledge of

the pension and profit-sharing plans, the Board pointedly did “not rely on the [ALJ’s] characterization of [Coreslab’s] unlawful pension and profit- sharing conduct as ‘secret’ and ‘covert.’” AR.1621 n.7.

Coreslab makes much of this disagreement in its petition for review, insisting it “demonstrat[es] a lack of substantial evidence.” Opening Br. at 15. If Coreslab means this disagreement is part of the complete record on review, it is, of course, correct. But if Coreslab intends to suggest contradictory findings between the Board and an ALJ indicate a lack of substantial evidence per se, we reject that contention. Our “standard of review is not altered when the ALJ and the Board reach contrary conclusions.” Medite of N.M., Inc. v. NLRB, 72 F.3d 780, 785 (10th Cir. 1995) (quoting Harberson v. NLRB, 810 F.2d 977, 983 (10th Cir. 1987)). The record, however, will include the ALJ’s findings, “whether they contradict or support the Board’s determination.” Id.

8 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 9

impute Mr. Prince’s knowledge of the plans to the Union itself (as required

by Coreslab’s actual-knowledge argument) or to find Mr. Evans had failed

to exercise basic diligence that would have revealed Coreslab’s actions (as

required by Coreslab’s constructive-knowledge argument), AR.1621–23.3

On the merits, the Board found Coreslab violated § 158(a)(1) when

Mr. Johnson prohibited an employee from speaking with Union

representatives during non-working hours in a non-working area. It

concluded Coreslab violated § 158(a)(3) by “discriminatorily failing to make

pension contributions on behalf of unit employees because they were not

members of the Union,” and, conversely, “discriminatorily excluding unit

employees who were members of the Union from [the company’s] profit-

sharing plan because of their membership in the Union.” AR.1629–30.

Failing to make pension contributions and adding the profit-sharing

3 Board Member Ring dissented from this portion of the Board’s decision. Member Ring would have held Mr. Prince’s knowledge of the alternative compensation scheme—and Coreslab’s apparently open practice of the profit-sharing program—gave the Union actual knowledge of Coreslab’s benefits practices. Member Ring also concluded the Union had constructive knowledge, based on the practice’s longevity, and its implication of a “a key economic term of the collective-bargaining agreement.” AR.1635. Based on this reasoning, Member Ring dissented from the majority’s conclusion Coreslab “violated [§ 158(a)(5)] by modifying the 2015-2019 collective-bargaining agreement and by unilaterally implementing profit-sharing payments.” AR.1636. 9 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 10

program, the Board determined, were also unlawful, unilateral contract

modifications barred under § 158(a)(5).

The Board further concluded Coreslab had violated § 158(a)(5) “by

failing and refusing to furnish the Union with requested relevant

information,” “failing and refusing to bargain in good faith with the Union,”

“withdrawing recognition from the Union” based on a tainted disaffection

petition, and ceasing pension contributions for all unit employees after

September 30, 2019. AR.1630.

To remedy these violations, the Board required Coreslab to make

pension contributions for all unit employees, regardless of Union status,

and to include Union members within the profit-sharing program. The

company was ordered to “[m]ake all delinquent payments to the Central

Pension Fund,” and to “[m]ake all current and former unit employees who

were excluded from [Coreslab’s] profit-sharing plan . . . whole for any loss

of earnings and other benefits.” AR.1632. The Board directed Coreslab to

provide these make-whole remedies “without an offset for the benefits [the

employees] were already receiving.” AR.1630 n.32, 1632. Coreslab also was

ordered to re-recognize the Union, provide it with the information needed

as “collective-bargaining representative of [Coreslab’s] unit employees,”

and bargain for a successor agreement in good faith. AR.1632. And

10 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 11

unilateral changes, like the profit-sharing program, were to be rescinded

“[o]n request by the Union.” AR.1632.

II

Coreslab assails the Board’s unfair-labor-practice findings on

multiple fronts. It argues the profit-sharing plan was implemented openly

and without anti-union animus. It maintains it did not violate the Act “by

failing to make pension contributions for unit employees who were not

Union members and excluding those who were Union members from its

profit-sharing plan.” Opening Br. at 32. The company claims there was

nothing unlawful about Mr. Johnson’s interruption of a representative-

employee meeting and his instruction to the worker not to speak with the

Union. And Coreslab insists it neither failed to bargain with the Union in

good faith nor unlawfully withdrew recognition from the Union.

We conclude the Board’s findings regarding Coreslab’s violations of

the Act are “the product of reasoned decisionmaking.” Motor Vehicle Mfrs.

Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983).

Under these circumstances, the Board’s conclusions will be upheld unless

they have “no rational basis or [are] unsupported by substantial evidence.”

United Steelworkers of Am., Loc. 14534 v. NLRB, 983 F.2d 240, 244 (D.C.

Cir. 1993) (citation omitted). As we explain, we discern no reason to

11 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 12

overturn the Board’s judgment, and reject Coreslab’s petition in this

respect.

Our review of the Board’s decisions on the merits is deferential, and

the scope of our inquiry limited. NLRB v. Interstate Builders, Inc., 351 F.3d

1020, 1028 (10th Cir. 2003) (describing scope of review as “quite narrow”).

We will not re-weigh the evidence or second guess the Board’s factual

inferences. NLRB v. Velocity Exp., Inc., 434 F.3d 1198, 1201 (10th Cir.

2006). Instead, “we review only to ensure the NLRB acted within reasonable

bounds and substantial evidence supports the order.” Id.; see 29 U.S.C.

§ 160(e) (“The findings of the Board with respect to questions of fact if

supported by substantial evidence on the record considered as a whole shall

be conclusive.”). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Interstate Builders, 351 F.3d at 1027–28.

“Although we ordinarily review questions of law de novo, the Board’s

construction of the National Labor Relations Act is entitled to considerable

deference.” NLRB v. Okla. Fixture Co., 79 F.3d 1030, 1033 (10th Cir. 1996).

“For the Board to prevail, it need not show that its construction is the best

way to read the statute; rather, courts must respect the Board’s judgment

so long as its reading is a reasonable one.” Holly Farms Corp. v. NLRB, 517

12 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 13

U.S. 392, 409 (1996). It is not for this court to “displace the Board’s choice

between two fairly conflicting views, even though the court would justifiably

have made a different choice had the matter been before it de novo.”

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

First, we review the Board’s conclusions that Coreslab’s selective

profit-sharing payments and its failure to make pension fund contributions

violated the Act. Recall, the Board found (1) the Union lacked knowledge of

the company’s unilateral addition of profit-sharing and failure to make

pension fund contributions until 2019, and (2) these dual-track

compensation systems discriminated based on Union membership status.

The Act generally bars “discrimination in regard to . . . any term or

condition of employment to encourage or discourage membership in any

labor organization.” 29 U.S.C. § 158(a)(3). Employer conduct which

“discriminates solely on the basis of union status” will fall within the Act’s

ambit. Metro. Edison Co. v. NLRB, 460 U.S. 693, 702 (1983). The Act

proscribes the refusal to bargain collectively with union representatives.

29 U.S.C. § 158(a)(5). “[A]n employer’s unilateral change in conditions of

employment . . . is a circumvention of the duty to negotiate which frustrates

the objectives of [§ 158(a)(5)] much as does a flat refusal.” NLRB v. Katz,

369 U.S. 736, 743 (1962).

13 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 14

Coreslab contends there can be no violation of either § 158(a)(3) or

(a)(5) here because the Union had known about the dual-track

compensation scheme since 2005. The Union, Coreslab argues, had actual

knowledge of the disparate pension and profit-sharing plans based on Mr.

Prince’s status as a Union steward. And even if not, the Union had

constructive knowledge of the practices because it could have discovered the

violations through the exercise of “reasonable diligence.” Opening Br. at 26.

Coreslab’s actual-knowledge argument rests on the existence of an

alleged principal-agent relationship between the Union and Mr. Prince. The

Board’s agency determination looks to common-law agency principles.

Mar-Jam Supply Co., 337 NLRB 337, 337 (2001). At common law, an agency

relationship may be found where an individual has actual authority or

apparent authority to act on behalf of another. Id. In either scenario, the

agency relationship must encompass the “specific conduct” at issue. In re

Cornell Forge Co., 339 NLRB 733, 733 (2003).

As the party asserting the existence of an agency relationship,

Coreslab has the burden of establishing its existence by clear and

convincing evidence. In re Branding Iron Motel, Inc., 798 F.2d 396, 401

(10th Cir. 1986) (“We begin by noting that a party asserting a principal-

agent relationship bears the burden of establishing its existence by ‘clear

14 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 15

and satisfactory evidence.’” (citation omitted)). Coreslab could make this

showing by demonstrating Mr. Prince’s actual or apparent authority to act

in lieu of the Union. See Alfaro-Huitron v. Cervantes Agribusiness, 982 F.3d

1242, 1251 (10th Cir. 2020).

Actual authority requires the agent’s “reasonabl[e] belie[f], in

accordance with the principal’s manifestations to the agent, that the

principal wishes the agent to so act.” Id. (quoting Restatement (Third) of

Agency § 2.01). Apparent authority turns on a third party’s reasonable

belief that the agent “has authority to act on behalf of the principal and that

belief is traceable to the principal’s manifestations.” Id. (quoting

Restatement (Third) of Agency § 2.03); see also In re Pan-Oston Co.,

336 NLRB 305, 305–06 (2001) (“Apparent authority results from a

manifestation by the principal to a third party that creates a reasonable

belief that the principal has authorized the alleged agent to perform the

acts in question. Either the principal must intend to cause the third person

to believe the agent is authorized to act for him, or the principal should

realize that its conduct is likely to create such a belief.” (citation omitted)).

Whatever the agency relationship asserted, Coreslab must show

Mr. Prince’s agency encompassed the specific conduct—notice and consent

to agreement modifications—at issue here. Pan-Oston Co., 336 NLRB at 306

(“We emphasize that an employee may be an agent of the employer for one

15 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 16

purpose but not another.”). Here, then, Mr. Prince’s actual authority would

come from the Union’s express representation to Mr. Prince that he had the

authority to consent to changes in the collective bargaining agreement. His

apparent authority would follow from any representations made by the

Union to Coreslab that Mr. Prince could consent to changes to the

agreement.

Both arguments falter on the factual record before us. Mr. Evans, not

Mr. Prince, was the designated point of contact for issues involving the

terms of the collective-bargaining agreement. Mr. Evans and Mr. Prince

confirmed Mr. Prince did not discuss the inclusion, modification, or

omission of agreement terms. The Union never held out Mr. Prince as

having authority to approve or decline changes to the collective-bargaining

agreement. And the record indicates Mr. Drews addressed substantive

matters about the collective-bargaining agreement with Mr. Evans—and

Mr. Evans only. While the record suggests Mr. Prince attended at least one

negotiating session, he apparently never spoke at the bargaining table. The

company has provided no reason to think Mr. Prince’s “mute presence” at

these sessions generated actual or apparent authority, particularly given

the “long-established channels of communication for bargaining matters”

between Coreslab’s management and Mr. Evans. AR.1622 & n.10.

Substantial evidence supports the Board’s reasoning, and we will not

16 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 17

displace the Board’s finding Mr. Prince was not an “agent” of the Union “in

this particular respect.” AR.1622.

Still, Coreslab maintains the Union had constructive knowledge, even

if it lacked actual knowledge. As a general matter, “the law will sometimes

impute knowledge . . . to a person who fails to learn something that a

reasonably diligent person would have learned.” Intel Corp. Inv. Policy

Comm. v. Sulyma, 140 S. Ct. 768, 776 (2020). The Board and parties relied

on Moeller Bros. Body Shop, 306 NLRB 191 (1992), to help identify the

bounds of what “reasonable diligence” means in the labor-relations context.

Moeller Bros. involved an employer’s failure to abide by union-

security provisions and pay certain benefits and contractually required

wages. There, the Board rejected claims of violations which occurred before

the sixth-month limitations period in 29 U.S.C. § 160(b) based on union

officials’ failure to exercise reasonable diligence.

Had the Union made even a minimal effort to monitor the Respondent’s facility since 1983, it should have become aware of the Respondent’s policy of hiring prejourneymen at individually negotiated pay rates, without making fringe benefit payments on their behalf. Mere observation would have put the Union on notice that the number of unit employees was at least double the number reported on the Respondent’s fringe benefit forms. The Union rarely visited the Respondent’s operation however, never appointed a shop steward, . . . and never took any measures to enforce the union-security provisions of the contract.

17 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 18

306 NLRB at 192. “[A] union is not required to aggressively police its

contracts,” the Board explained, but “it cannot with impu[]nity ignore an

employer or a unit . . . and then rely on its ignorance of events . . . to argue

that it was not on notice of an employer’s” unfair labor practices. Id. at 193.

We agree with this general proposition from Moeller Bros. But we also

agree with the Board majority’s holding “the facts of that case are clearly

distinguishable” from those before us. AR.1623. To be sure, we share some

of Member Ring’s alarm that Coreslab’s basic compensation practices

apparently escaped Mr. Evans’s attention for well over a decade. But “[o]ur

job isn’t to make the call ourselves, . . . only to ask whether a reasonable

mind could have made the call the NLRB made.” Laborers’ Int’l Union of

N. Am., Loc. 578 v. NLRB, 594 F.3d 732, 734 (10th Cir. 2010).

Like the Board majority, we cannot ascribe Mr. Evans’s dilatory

awareness of these changes to the lack of “reasonable diligence” described

in Moeller Bros. 306 NLRB at 192. Unlike the officials in Moeller Bros.,

Mr. Evans frequented the Coreslab facility and interacted with employees

there. Unlike the unfair labor practices at issues in Moeller Bros., the profit-

sharing and pension fund violations were not literally visible. And where

the employer in Moeller Bros. provided regular reports that did not match

the facts—e.g., by misstating the number of employees working at any given

time—Coreslab has identified nothing the company or the Fund provided to

18 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 19

the Union that could have placed Mr. Evans on notice of the violative

compensation practices.

The Board’s conclusion that the Union lacked knowledge of the

pension contribution/profit-sharing scheme until Coreslab informed Mr.

Evans on September 6, 2019 is supported by substantial evidence.4

4 On appeal, Coreslab argues the Board erred in finding the company’s

§ 10(b) limitations argument waived. We need not reach this argument. Even if Coreslab properly raised this defense before the agency and the Board was wrong to conclude otherwise, the defense would be unavailing based on the panel’s resolution of the notice/knowledge issues.

As discussed, Mr. Prince had no agency to bind the Union to a modification of the collective bargaining agreement. Whether notice to Mr. Prince could have constituted notice to the Union may be a closer question, however. Ordinarily, the Union steward is the agent through which a Union learns of breaches. But on the record before us—which involves breach of contractual provisions governing compensation practices, not the sort of day-to-day work of employees—we conclude the Board could reasonably find Mr. Prince was not an agent for notice of this breach.

We thus agree with the Board the Union lacked knowledge of the violations until September 2019, so the six-month clock in § 10(b) would not begin to run until that time. See, e.g., Esmark, Inc. v. NLRB, 887 F.2d 739, 746 (7th Cir. 1989) (“The 10(b) period begins when the victim of an unfair labor practice receives unequivocal notice of a final adverse decision. Rumors or suspicions will not do; nor is it relevant when an unlawful decision was actually made, if the decision was not communicated to the affected party until later. . . . The 10(b) period does not commence until an aggrieved party has knowledge of the facts necessary to support a present, ripe, unfair labor practice charge.”). 19 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 20

Coreslab next contends the Board erred in concluding its withholding

of pension contributions and its provision of profit-sharing payments to

non-Union employees violated the Act. We disagree.

Recall, an employer violates 29 U.S.C. § 158(a)(3) if it “discriminat[es]

in regard to . . . any term or condition of employment to encourage or

discourage membership in any labor organization.” Here, Coreslab provided

profit-sharing payments to non-Union members. It did not provide

profit-sharing payments to Union members. Regardless of why it initiated

this dual-track compensation scheme, Coreslab has not otherwise argued

the provision and denial of this benefit turned on any other basis beyond

Union membership. Accordingly, substantial evidence supports the Board’s

conclusions Coreslab withheld benefits “solely on the basis of union status,”

Metro. Edison Co., 460 U.S. at 702, and that this facially discriminatory

distinction “bears its own indicia of intent to discourage or encourage

membership in the Union,” AR.1625 (internal quotation marks omitted).

See also NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 32 (1967)

(explaining an employer discriminates under § 158(a)(3) by “paying accrued

benefits to one group of employees while announcing the extinction of the

same benefits for another group of employees who are distinguishable only

by their participation in protected concerted activity”).

20 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 21

An employer violates 29 U.S.C. § 158(a)(5) when it shirks its statutory

obligation to bargain before changing the terms and conditions of

employment settled upon in a collective-bargaining agreement. Katz,

369 U.S. at 743 (explaining a “unilateral change in conditions of

employment . . . is a circumvention of the duty to negotiate which

frustrates” the Act). Here, the record confirms Coreslab did not bargain

with the Union before it ceased making pension contributions for all hours

worked by bargaining unit employees. This was a “unilateral change”

encompassed by 29 U.S.C. § 158(a)(5).

Accordingly, we conclude substantial evidence supports the Board’s

findings of Act violations based on the refusal to make full pension

contributions and the commencement of a profit-sharing plan that did not

include Union members.

Coreslab also argues it did not violate the Act by telling a worker he

could not speak with Union officials. We discern no error in the Board’s

finding to the contrary.

The Act prohibits an employer’s interference with, restraint, or

coercion of employees in the exercise of guaranteed rights. 29 U.S.C.

§ 158(a)(1). To be liable under § 158(a)(1), an employer need not actually

succeed in infringing an employee’s rights. Rather, “[t]he test is . . . whether

21 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 22

the employer engaged in conduct which reasonably tends to interfere with,

restrain or coerce employees in the free exercise of their rights.” Lear

Siegler Inc. v. NLRB, 890 F.2d 1573, 1580 (10th Cir. 1989) (quoting

Medallion Kitchens, Inc. v. NLRB, 806 F.2d 185, 191 (8th Cir. 1986))

(emphasis added) (internal quotation marks omitted).

According to Coreslab, Mr. Johnson’s statement in the breakroom

could not reasonably tend to interfere, restrain, or coerce protected rights

because (1) “[t]here is no evidence that [Mr.] Johnson’s statements had any

effect on” the individuals involved and (2) Mr. Evans was speaking to a

temporary worker employed by a staffing service. Opening Br. at 44–45. We

are not persuaded.

As the Board correctly explains, whether the statement affected the

employee is irrelevant—an employee’s “subjective response does not bear

on the issue” because liability may lie “regardless of whether the ‘coercion

has succeeded or failed.’” NLRB Br. at 16 (quoting Lear Siegler, 890 F.2d at

1580). As for the employee’s temporary status as an employee of a staffing

company, the Supreme Court has endorsed Board precedent holding an

“‘employer’ may violate [§ 158(a)(1)] with respect to employees other than

his own.” Hudgens v. NLRB, 424 U.S. 507, 510 n.3 (1976). On this record,

we have no great difficulty concluding Mr. Johnson’s directive that the

employee could not speak with Union President Evans would “reasonably

22 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 23

tend” to interfere with the employee’s right to speak to union

representatives.

D

Next, Coreslab insists “[t]he Board erroneously found the Company

failed to bargain with the Union in good faith for a successor agreement.”

Opening Br. at 45.

Recall, an employer will violate 29 U.S.C. § 158(a)(5) by failing to

“bargain collectively with the representatives of [its] employees” “with

respect to wages, hours, and other terms and conditions of employment.”

29 U.S.C. § 158(a)(5), (d). “Parties must bargain in good faith to comply with

the statutory duty, but bad faith is not a necessary element for a breach of

the duty.” Norris v. NLRB, 417 F.3d 1161, 1168 (10th Cir. 2005) (citing

Katz, 369 U.S. at 742–43). “The employer’s duty to bargain collectively

‘includes a duty to provide relevant information needed by a labor union for

the proper performance of its duties as the employees’ bargaining

representative.’” Id. (quoting Detroit Edison Co. v. NLRB, 440 U.S. 301, 303

(1979)).

Here, the record supports the Board’s conclusion Coreslab failed to

bargain in good faith. Coreslab refused to meet with the Union more than

three times over a five-month period, despite repeated requests from the

Union. After a first meeting on April 10, 2019, Coreslab cancelled the

23 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 24

scheduled negotiation on April 19—and refused to reschedule for three

months. On appeal, Coreslab points to the pending audit of the Central

Pension Fund to explain its delay. But, like the Board, we are left to wonder

“why that should halt all bargaining.” AR.1627. At the same time the

company proposed modifying pension contributions and adding profit-

sharing, it declined to inform the Union it had already made those changes

unilaterally until the third, final bargaining session. And, even after

informing Mr. Evans of the profit-sharing plan and receiving his request for

further information about it, Coreslab refused to provide the relevant

information requested by the Union about this plan.

We conclude the Board’s finding of the § 158(a)(5) bargaining violation

is amply supported by substantial evidence.

E

Finally, Coreslab argues there was nothing unlawful about its

withdrawal of recognition from the Union. Rather, the disaffection petition

signed by 18 of the 26 bargaining unit employees provided “objective

evidence the Union no longer had the support of a substantial majority of

the unit.” Opening Br. at 50. Under these circumstances, Coreslab

maintains, the Act permits an employer to withdraw recognition.

Coreslab is correct that a “petition expressing disaffection that is

signed by a majority of the represented unit . . . provides reliable evidence

24 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 25

of actual loss of support.” Id. at 50; see Leggett & Platt, Inc. v. NLRB,

988 F.3d 487, 493 (D.C. Cir. 2021). But, as the Board convincingly argues,

that general principle is of limited force here because Coreslab cannot

defend its withdrawal based on a disaffection petition tainted by “its own

unfair labor practices.” NLRB Br. at 42.

“[U]nfair labor practices which are of a character as to cause employee

disaffection with the union, or at least have a meaningful impact in bringing

about that disaffection, will taint a subsequent employee antiunion

petition” and may not serve as the basis for withdrawing recognition from

the Union. Manna Pro Partners, L.P. v. NLRB, 986 F.2d 1346, 1353 (10th

Cir. 1993). To decide whether the unfair labor practices “are of a character

as to . . . cause employee disaffection,” the Board weighs the four factors

identified in Master Slack Corp., 271 NLRB 78, 84 (1984). Those facts are

(1) the temporal proximity between the unfair labor practices and the

withdrawal of recognition, (2) the nature of the unfair labor practices, (3)

the tendency of the unfair labor practices to cause employee disaffection

from the union, and (4) the effect of the unfair labor practices on unit

employee morale, organizing, and union membership. Id.

The Board carefully considered each factor, and we conclude

substantial evidence supports its findings. At (1), the disparate

compensation system was ongoing at the time of the disaffection petition.

25 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 26

At (2), the Board rightly found unilateral additions and alterations to

compensation programs, made in disregard of the terms of the collective-

bargaining agreement itself, will undermine employees’ perception of the

Union’s effectiveness. Under prong (3), we agree with the Board that the

tendency of the unfair labor practice to cause disaffection was amply

demonstrated by Mr. Drews’s discussion with bargaining unit employees,

who were upset to hear they might lose their profit-sharing payments and

never benefit from the pension contributions required by the collective-

bargaining agreement. And as to (4), that Master Slack factor is borne out

by the facts on the ground—employees told Mr. Drews they did not join the

Union because of the unlawful profit-sharing plan.

The Board correctly applied Master Slack to explain why the

disaffection petition could not render lawful the company’s withdrawal of

recognition. Coreslab has provided no alternative to support the

withdrawal, and we see no basis to disturb the Board’s conclusion Coreslab

violated the Act by this action.

III

Having affirmed the Board’s findings on Coreslab’s violations of the

Act, we turn to the company’s petition for review of the remedies selected

by the Board for those violations. We can discern no abuse of discretion on

most of these remedies. But we find the Board exceeded its statutory

26 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 27

authority under the Act by ordering back-payments without offset and

requiring Coreslab to retain the unlawfully-created profit-sharing

program.5

As a threshold matter, the Board argues we lack jurisdiction to

consider Coreslab’s objections to the make-whole remedies because the

company did not challenge them before the Board. Coreslab points to places

in the record where it did contest the award of back-payment without offset,

5 Coreslab contends the Board also abused its discretion by ordering

the company “to recognize and bargain with the Union,” Opening Br. at 55, though this argument seems to disappear by the Reply Brief. In any case, it lacks merit. In considering the propriety of an affirmative bargaining order, the Board already took the extra steps required by the D.C. Circuit— but not our own. See NLRB v. Cmty. Health Servs., Inc., 483 F.3d 683, 688 (10th Cir. 2007) (“We are aware that the District of Columbia Circuit requires the Board to adopt additional findings to support a remedial bargaining order. Even were we to endorse that circuit’s rule, we would find it satisfied here.” (citation omitted)). And it correctly addressed the impact of the tainted disaffection petition. See Johnson Controls, Inc., 368 NLRB No. 20, 2019 WL 2893706, at *9 (July 3, 2019) (explaining a “union that receives . . . notice of anticipatory withdrawal . . . . may file an unfair labor practice charge alleging . . . that the petition is tainted by serious unremedied labor practices”).

In a single paragraph, Coreslab challenges “[t]he remainder of the Board’s remedies” as unenforceable because “the Board’s findings of various violations are unsupported by substantial evidence and/or arbitrary.” Opening Br. at 65. As we have explained, we find no error in the Board’s conclusion Coreslab violated the Act, and decline to disturb the Board’s remedies on that basis. 27 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 28

but the Board rejoins the company’s failure to move for reconsideration

means the issue has not been preserved.

We therefore understand the Board to identify two impediments to

our jurisdiction. To address them and assure “ourselves that our

jurisdiction is proper,” Cotton Petroleum Corp. v. U.S. Dep’t of Interior,

870 F.2d 1515, 1521 (10th Cir. 1989), we must first consider whether

Coreslab challenged—and challenged adequately—the make-whole

remedies before the Board. If so, we must still determine whether Coreslab’s

failure to move for reconsideration of the Board’s order divests this court of

jurisdiction to entertain those challenges on a petition for review. After

explaining the jurisdictional color of 29 U.S.C. § 160(e)’s preservation

requirement, we address both the Board’s contentions and conclude we have

jurisdiction.

Preservation concerns6 typically bear on whether it is appropriate for

a party to raise an argument on appeal, not on whether we have the power

6 Confusingly, courts describe § 160(e) in terms of “exhaustion,” “preservation,” and “jurisdiction.” Compare Noel Canning v. NLRB, 705 F.3d 490, 497 (D.C. Cir. 2013) (comparing § 160(e) to other “jurisdictional exhaustion” provisions), with Allied Aviation Serv. Co. of N.J. v. NLRB, 854 F.3d 55, 62 (D.C. Cir. 2017) (referring to § 160(e)’s “preservation requirement”).

28 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 29

to consider it. See First W. Cap. Mgmt. Co. v. Malamed, 874 F.3d 1136, 1144

(10th Cir. 2017) (explaining that “‘[n]ormally when a party presents a new

argument on appeal and fails to request plain error review, we do not

address it[,]’ [b]ut even when a party fails to preserve an issue, we retain

‘discretion to raise and decide issues sua sponte’ . . . because ‘[w]aiver . . .

binds only the party, not the court’” (citations omitted)). But the terms of

the Act itself transform preservation issues into jurisdictional questions.

That is because, under 29 U.S.C. § 160(e), “[n]o objection that has not been

urged before the Board, its member, agent, or agency, shall be considered

by the court, unless the failure or neglect to urge such objection shall be

excused because of extraordinary circumstances.” In turn, § 160(e)’s

“objection” requirement is satisfied when “the matter the petitioner seeks

to raise here [was] pressed before the Board with ‘sufficient specificity and

clarity’ so the tribunal was aware it needed to be addressed and could

become the subject of litigation in this court.” Pub. Serv. Co. of N.M. v.

NLRB, 692 F.3d 1068, 1073 (10th Cir. 2012) (quoting Interstate Builders,

351 F.3d at 1034 n.8). “[W]hatever else § 160(e) may be designed to do, it’s

In Public Service Company of New Mexico v. NLRB, we explained § 160(e) embodies an “‘objection’ requirement,” but confirmed § 160(e) operates as a “true jurisdictional limit.” 692 F.3d 1068, 1073, 1076 (10th Cir. 2012). “[T]he language of § 160(e) speaks to the power of the reviewing court, a fact that distinguishes it from many non-jurisdictional requirements addressed only to the parties.” Id. at 1076. 29 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 30

plain from its face that it seeks to allow the agency at least the chance to

apply its expertise to a problem before it comes to us.” Id. Indeed, the

“salutary policy” behind § 160(e) “afford[s] the Board opportunity to

consider on the merits questions to be urged upon review of its orders[s].”

Marshall Field & Co. v. NLRB, 318 U.S. 253, 256 (1943). Adherence

“assure[s] that the Board is fully alerted to the contentions of the parties

and aware that they should be addressed and ruled upon.” NLRB v. L & B

Cooling, Inc., 757 F.2d 236, 240 (10th Cir. 1985). “In each case,” the D.C.

Circuit has explained, “the critical inquiry is whether the objections made

before the Board were adequate to put the Board on notice that the issue

might be pursued on appeal.” Consol. Freightways v. NLRB, 669 F.2d 790,

794 (D.C. Cir. 1981).

From this we summarize the general principle: If a party does not

“urge[]” an objection before the Board—meaning raise it in a manner

sufficient to place the Board on notice it should be addressed and may

become an issue in this court—we may not consider the objection for the

first time on appeal absent extraordinary circumstances. 29 U.S.C. § 160(e).

With this foundation in mind, we turn to the Board’s first

jurisdictional argument that Coreslab inadequately objected to the make-

30 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 31

whole remedies before the agency. In considering this contention, we assess

both the exceptions filed by Coreslab and how the Board understood them.

In its exceptions to the ALJ’s order, Coreslab objected to the

“retroactive grant of [a] profit[-]sharing benefit remedy,” to the “grant of [a]

profit[-]sharing benefit remedy,” and to mandated “contributions to the

Central Pension Fund” as “contrary to the law and substantial weight of the

record.” AR.1494–95. As we evaluate the sufficiency of these objections, our

opinion in Public Service Company is instructive. There, petitioners made

a two-sentence objection to the ALJ’s analysis. 692 F.3d at 1073–74. We

found this objection sufficient—though barely—to preserve the issue for

review in this court. Id. at 1074. We also found citations to the ALJ’s order

included in the exceptions “put a little more meat on the bone, directing the

Board to the specific reasoning the ALJ offered on these particular issues.”

Id.7

Here, Coreslab’s exceptions to the make-whole remedies were

similarly terse. But Public Service Company directs us to find them

sufficient to satisfy § 160(e)’s preservation requirement. As in that case, we

cannot say the brevity of Coreslab’s objections rendered them inadequate to

7 We are unpersuaded, then, by the Board’s contention that Coreslab’s

objections were as bare-bones as the objections found insufficient in NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 350 (1953). 31 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 32

place the issue before the Board on intra-agency review. And we observe,

like the petitioners in Public Service Company, Coreslab included citations

to the record where the ALJ reasoned through the challenged action.

Coreslab’s objections to the ALJ’s remedies “w[ere] (just) enough to

preserve” the issue for our review. Pub. Serv. Co., 692 F.3d at 1074.

Our law also directs us to look beyond the exceptions themselves. To

determine whether an issue has been urged before the Board, we must

consider whether the Board itself understood an obligation to address an

argument and was provided the opportunity to do so. See L & B Cooling,

757 F.2d at 240.

Here, we cannot say the exceptions were insufficient to put the Board

on notice the make-whole remedies might come up on appeal. To the

contrary, as in Public Service Company, though “the Board might have been

within its rights to consider [the exceptions] insufficient for any purpose,”

the Board “[i]nstead . . . chose to address the . . . objections it felt it could

discern lurking here.” 692 F.3d at 1074. Clearly, then, Coreslab’s

submission “provid[ed] sufficient specificity and clarity”—albeit with

“painful brevity”—“to allow the Board to bring its expertise to bear.” Id.; see

also Interstate Builders, 351 F.3d at 1034 n.8 (considering whether the

Board was “aware” of the need to decide an issue).

32 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 33

Recall, the “salutary policy” behind § 160(e)’s preservation

requirement guarantees the Board a first chance “to consider on the merits

questions to be urged upon review of its order[s].” Marshall Field & Co., 318

U.S. at 256. Here, the Board expressly concluded any challenge to the

make-whole remedies without offset would be unmeritorious based on

Board precedent “finding a wrongdoing employer ‘cannot complain of the

extra cost of improperly created, substitute fringe benefits.’” AR.1630 n.32.

For that proposition, it cited its holding in In re Harding Glass Company,

337 NLRB 1116, 1118 (2002), in which the Board rejected a similar

argument that “contribution payments due . . . must be offset by the value

of any alternative payments [already] made.”

On this record, we cannot conclude our exercise of jurisdiction would

deprive the Board of an opportunity to consider the issue in the first

instance. Coreslab challenged the remedies—if generally and briefly—and

the Board opted to defend the make-whole orders with a specificity that

encompassed the issue currently before us. “Whether or not each of these

things alone might be sufficient, in light of them collectively,” we find

Coreslab “present[ed] qualifying ‘objections’ on these two issues under

33 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 34

§ 160(e)” and allowed “the Board to bring its expertise to bear.” Pub. Serv.

Co., 692 F.3d at 1074.8

8 Coreslab argues an alternative basis for our jurisdiction. Because

the make-whole order without offset veered from remedial to punitive, the company contends, the Board exceeded the policy parameters of the Act. And this court, Coreslab urges, “may review actions that exceed the Board’s statutory authority irrespective of [§ 160(e)].” Reply Br. at 19.

As Coreslab correctly points out, § 160(e) bears its exceptions. We may exercise our jurisdiction over a challenge despite a party’s failure to object before the agency in the case of “extraordinary circumstances,” 29 U.S.C. § 160(e), or where the decision at issue clearly demonstrates the Board exceeded its statutory authority, NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385, 388 (1946) (“[I]f the Board has patently traveled outside the orbit of its authority,” then “there is legally speaking no order to enforce.”).

“Congress has imposed on [us] responsibility for assuring that the Board keeps within reasonable grounds.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 490 (1951). To police those bounds of agency action, federal courts must retain the ability to consider “[c]ertain jurisdictional challenges” which “need not be raised before the Board to be considered on review.” Carroll Coll., Inc. v. NLRB, 558 F.3d 568, 574 (D.C. Cir. 2009) (finding Board lacked jurisdiction over petitioner despite petitioner’s failure to raise jurisdictional argument before the Board). At bottom, “[a] court can always invalidate Board action” when that action “is patently beyond the Board’s jurisdiction, even if the jurisdictional challenge was never presented to the Board.” Loc. 900, Int’l Union of Elec., Radio & Mach. Workers, AFL-CIO v. NLRB, 727 F.2d 1184, 1191 n.5 (D.C. Cir. 1984).

Because we find Coreslab adequately urged its exceptions before the Board, we need not determine whether we would also have jurisdiction because the Board’s make-whole remedies without offset exceeded the bounds of its statutory authority. 34 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 35

Even accepting Coreslab’s objection was urged before the agency, the

Board insists we still lack jurisdiction because “Coreslab needed to file a

motion for reconsideration with the Board to preserve that challenge for

appeal.” NLRB Br. at 51–52 (citing Woelke & Romero Framing, Inc. v.

NLRB, 456 U.S. 645, 665–66 (1982)). We are unpersuaded.

We observe, as a preliminary matter, the statutory provisions

governing our jurisdiction do not require reconsideration motions to

preserve challenges. See 29 U.S.C. § 160(e) (obliging parties only to “urge[]”

objections before the Board). And as Coreslab persuasively argues, the

agency’s own regulations provide no such requirement: A party “may . . .

move for reconsideration,” but “[a] motion for reconsideration . . . need not

be filed to exhaust administrative remedies.” 29 C.F.R. § 102.48(c), (c)(3)

(emphasis added).

Instead, the Board’s argument for the necessity of a reconsideration

motion rests solely on Woelke & Romero. In that case, the Supreme Court

held the petitioners “could have objected to the Board’s decision in a petition

for reconsideration or hearing,” and the “failure to do so prevent[ed]

consideration of the question by the courts.” 456 U.S. at 666. For support,

the Court cited International Ladies’ Garment Workers’ Union, Upper South

Department, AFL-CIO v. Quality Manufacturing Co., 420 U.S. 276, 281 n.3

35 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 36

(1975), in which it had previously held an objection “may not be considered”

when the objecting party fails to avail itself of the post-judgment motions

provided for by Board regulations.

We rejected a similar argument from the Board in Facet Enterprises,

Inc. v. NLRB, 907 F.2d 963, 971–72 (10th Cir. 1990). There, the ALJ found

Facet Enterprises violated its statutory duty to bargain in good faith by

unit-splitting—or separating employees in one facility from an “established

appropriate bargaining unit.” Id. at 970. The Board agreed the employer

violated its statutory duty. But its amended conclusions of law based that

determination on a different ground, “finding instead that Facet was

culpable for direct dealing.” Id. Facet Enterprises contended—before this

court—that the “switching of legal theories by the Board on appeal violated

due process.” Id. The problem, though, was that Facet Enterprises failed to

object to the Board’s recasting of the violation by moving for

reconsideration. The agency pointed out as much, and contended Woelke &

Romero and Garment Workers’ Union “preclude[d] our review of [the

company’s] due process claim.” Id. at 971.

We disagreed, distinguishing Woelke & Romero and Garment Workers’

Union by explaining those cases were concerned with circumstances when

the Board lacked entirely “an opportunity to consider” claims the

petitioning employers advanced on appeal. We find that distinction

36 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 37

persuasive on these analogous facts. As in Facet Enterprises, the Board did

address the company’s challenge to the action contested by the employer—

and defended by the Board—on review before this court. When switching

legal bases for liability, the Board in Facet Enterprises had already

“considered specifically the due process implications.” Id. at 971. So too

here, where the Board addressed and defended a potential objection to the

make-whole remedies without offset.

In Facet Enterprises, we reasoned “[t]he policies underlying [§ 160(e)],

i.e., notice, efficiency and providing the Board with the first opportunity to

consider a claim, would have been undermined had the Supreme Court

allowed judicial review” in Woelke & Romero and Garment Workers’ Union.

907 F.2d at 971. In contrast, those policy considerations were not implicated

when the Board already had that first opportunity, and Coreslab’s “filing a

motion seeking reconsideration of the Board’s decision would have been”

the “empty formality” we have refused to require of parties invoking our

jurisdiction. Id. at 972. On these facts, we decline to convert a motion for

reconsideration into a jurisdictional requirement.

Having assured ourselves of jurisdiction, we next address our

standard of review and then the propriety of the Board’s remedies.

37 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 38

The Board enjoys broad discretion to craft remedies appropriate for

violations of the Act. Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203,

216 (1964); accord NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n.32

(1969) (“In fashioning its remedies under the broad provisions of [29 U.S.C.

§ 160(c)] . . . the Board draws on a fund of knowledge and expertise all its

own, and its choice of remedy must therefore be given special respect by

reviewing courts.”).

But that deference cannot extend to remedial orders “other than those

which can fairly be said to effectuate the policies of the Act,” Va. Elec. &

Power Co. v. NLRB, 319 U.S. 533, 540 (1943), or those exceeding a “rational

and consistent” interpretation of the Board’s statutory authority, NLRB v.

United Food & Com. Workers Union, Loc. 23, AFL-CIO, 484 U.S. 112, 123

(1987). The power Congress granted to the Board to rectify unfair labor

practices is—and must be in its exercise—“remedial, not punitive.” Republic

Steel Corp. v. NLRB, 311 U.S. 7, 12 (1940).

We conclude two of the Board’s ordered remedies are inconsistent with

the purposes and policies of the Act.

First, the orders to provide back payments under the profit-sharing

plan and back payments to the Central Pension Fund without offset

exceeded the Board’s authority. As Coreslab persuasively explains, the

38 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 39

Board’s otherwise broad discretion to craft a response to an employer’s

unfair labor practices stops when that response veers from remedial to

punitive. See Republic Steel, 311 U.S. at 9 (providing for deductions from

award amounts “because, having already been received, these amounts

were not needed to make the employees whole”). To comply with the Act,

the Board should have ensured its remedies were “sufficiently tailored to

expunge only the actual, and not merely speculative, consequences of the

unfair labor practice.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984).

Here the Board orders to provide full back-pension contributions and

provide full back-profit-sharing payments to all employees without offset for

the compensation already provided to them were not “sufficiently tailored”

to the actual harms suffered by those employees, and must be made so on

remand.

Second, the order to retain the profit-sharing program unless the

Union requested its recission similarly exceeded the Board’s authority. As

we have previously explained, “the Board’s remedial powers are ‘limited to

carrying out the policies of the [Act] . . .,’ and ‘[o]ne of these fundamental

policies is freedom of contract.’” Teamsters Loc. Union No. 435 v. NLRB,

92 F.3d 1063, 1072 (10th Cir. 1996) (quoting H.K. Porter Co., Inc. v. NLRB,

397 U.S. 99, 108 (1970)). “[T]he Board cannot dictate the terms of a labor

contract, which should be decided upon by the give and take of collective

39 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 40

bargaining.” Id. at 1072–73. It may be that Coreslab and the Union decide

to continue the profit-sharing program alongside, or in lieu of, the pension

program. But that is a decision for the parties to make during the

bargaining process the Act protects.

IV

For these reasons, we GRANT IN PART and DENY IN PART

Coreslab’s petition for review. We DENY the part of Coreslab’s petition

challenging the Board’s conclusions Coreslab violated several provisions of

the National Labor Relations Act and its remedial orders to provide the

Union with relevant information and to recognize the Union and bargain

with it in good faith. But we GRANT Coreslab’s petition to the extent it

contends the Board exceeded its statutory authority by ordering remedial

back payments without offset for prior compensation and by ordering the

company to maintain the profit-sharing plan. We GRANT Coreslab’s

unopposed motion to lodge non-record materials.

Accordingly, we also DENY the Board’s cross-petition for

enforcement.

We REMAND to the Board for further proceedings consistent with

this opinion.

40 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 41

23-9502/9505, Coreslab Structures v. NLRB HARTZ, J., partially dissenting.

I agree with the analysis of the panel opinion except on one point. On the issue of

constructive knowledge, I do not think a reasonable person could say that it was

reasonable for union leadership to fail for eight years to check on whether the employer

was complying with a contract provision as important as the provision of a pension. I

would hope, and expect, that any union that tried to defend such gross neglect would find

itself in a battle with a competing union offering better representation.