United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2018 Decided August 3, 2018

No. 15-1231

CC1 LIMITED PARTNERSHIP, DOING BUSINESS AS COCA COLA 

PUERTO RICO BOTTLERS,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 15-1467

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Néstor M. Méndez-Gómez argued the cause for petitioner. 

With him on the briefs were María D. Trelles Hernández and 

Jason R. Aguiló Suro. Carlos Concepción entered an 

appearance.

Jeffrey W. Burritt, Attorney, National Labor Relations 

Board, argued the cause for respondent. With him on the brief 

were Richard F. Griffin, Jr., General Counsel, John H. 

Ferguson, Associate General Counsel, Linda Dreeben, Deputy 
2

Associate General Counsel, and Usha Dheenan, Supervisory 

Attorney.

Before: ROGERS, GRIFFITH, and SRINIVASAN, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: The National Labor Relations 

Board (“Board”) determined that CC1 Limited Partnership 

(“CC1”) unlawfully fired several employees who had engaged

in work stoppages. Although we agree with the Board that there 

was substantial evidence that one of the discharged employees 

played no part in a work stoppage, we remand to the Board for 

further explanation its conclusion that the later wildcat strike

was protected activity. We also dismiss additional claims CC1 

makes but failed to properly preserve for our review. 

I

A

CC1 operates a bottling plant under the name of Coca Cola 

Puerto Rico Bottlers in Cayey, Puerto Rico. Its warehouse 

employees are represented by the Union De Tronquistas De 

Puerto Rico, Local 901, International Brotherhood of 

Teamsters (the “Union”). Until October 2008, José Adrián 

López was the Union’s chief negotiator with CC1 and the 

principal representative of the employees. Employees Miguel 

Colón, Carlos Rivera, Francisco Marrero, Romián Serrano, and 

Félix Rivera were elected to participate in negotiations on the 

Union’s behalf as shop stewards. The collective-bargaining 

agreement that had been in place between CC1 and the Union 

since 2003 expired on July 31, 2008. 
3

During the afternoon of September 9, 2008, CC1 and 

López met to negotiate a new agreement. López planned to 

share the status of the negotiations at an 8:30 p.m. meeting in 

CC1’s cafeteria with CC1 employees who worked the late shift. 

When López arrived at the plant that night, the security guard 

tried to block his entrance. Over the guard’s protests, López 

entered the plant anyway and held the meeting. During the 

meeting, a CC1 supervisor interrupted López and told him to 

leave the plant. López refused, and the two argued. Eventually, 

the supervisor left the cafeteria to call security, and López led 

the group of employees to the plant’s warehouse to continue 

the meeting. The shop stewards on site at the time encouraged 

other employees to abandon their workstations and follow 

López.

At 8:45 p.m., Colón arrived at the plant to attend the 

meeting in the cafeteria with López. By that time, the meeting 

had moved to the warehouse. By 9:00 p.m., Colón joined the 

meeting at the warehouse, where he found López and about 

ninety employees. Soon after, police called by CC1’s security 

came, and López told the employees to return to work. All in 

all, the work stoppage caused by López’s meeting cost the 

company two hours of work from the employees who attended. 

On the next day, CC1 suspended Colón and the other shop 

stewards. According to the letter each received from the 

company, they were suspended for “invading private property, 

encouraging others to abandon their job, verbally abusing the 

supervisors and intentionally paralyzing the production line”

the night before. App’x 369. In response, the Union called a 

meeting at which the CC1 employees unanimously agreed to 

strike unless management agreed to three demands: (1) 

reinstate the suspended shop stewards; (2) forgo filing any 

charges against the Union based on the work stoppage; and (3) 

return to the table to negotiate a new collective-bargaining 
4

agreement. The next day, a Union officer requested strike 

assistance from national headquarters. 

One month later, the Union had not yet met with CC1 

negotiators or planned a strike. On October 9, Colón and the 

other shop stewards circulated a flyer announcing a meeting on 

October 12 to discuss a strike. But the meeting was not 

authorized by the Union. Upon seeing the flyer, one Union 

official asked Colón not to “divide the membership.” Another 

Union representative suggested to him that only a strike would 

ensure reinstatement of the shop stewards. On October 10, CC1 

discharged the suspended shop stewards. Two days later at the 

October 12 meeting called by Colón and the other shop 

stewards, employees signed a petition authorizing a strike 

unless CC1 agreed to the Union’s demands. But the Union had 

no part in the meeting. No Union official attended, and the 

Union never responded to Colón’s list of employees who had 

signed the strike petition.

On October 14, the national headquarters approved the 

Union’s request to provide assistance in a strike. The next day, 

the Union wrote CC1 to demand that negotiations resume. CC1

agreed, but the Union never replied. 

On October 19, the shop stewards met at Colón’s home to 

prepare to strike. From October 20 until October 22, more than

100 CC1 employees went on strike. Many of them used picket 

signs and loudspeakers to protest the company’s treatment of

López and the firing of the shop stewards. They also demanded 

that CC1 reinstate the shop stewards and negotiate a new 

collective-bargaining agreement. 

On the first day of the strike, CC1 warned the Union that 

the company planned to “resort to ulterior actions against the 

Union and its representatives” unless the strike stopped. App’x
5

399. Upon receiving CC1’s message, the Union explained that 

the strike was an illegal “wildcat” strike because it was not 

backed by the Union: “We want to clarify that we have not sent 

or authorized the presence of Officers or Union members in 

said stoppage; therefore, the presence there of any Union 

member would have been of their own accord, not official, and 

in violation of the statutes of the Union.” App’x 403. The 

Union added that it would take action against the “false 

leaders” who were “threatening . . . the welfare of the great 

majority of the [CC1] workers in order to promote their own 

ignoble interests.” Id. CC1 distributed the Union’s message to 

the striking employees, some of whom responded by 

abandoning the strike.

Once the strike ended, CC1 suspended or discharged 

eighty-six of the striking employees. At the Union’s request, 

CC1 agreed to reinstate suspended employees who signed a socalled “last-chance agreement,” which subjected them to 

immediate termination should they violate any of the 

agreement’s terms.

B

CC1’s response to the events surrounding the work 

stoppage and the strike drew multiple charges. In 2009, the

Board’s General Counsel issued a complaint alleging that CC1 

unlawfully discharged its employees for participating in those 

actions. After an evidentiary hearing, an Administrative Law 

Judge (ALJ) determined that discharging Colón violated the 

NLRA because the evidence showed he had not encouraged the 

September 9 work stoppage as CC1 claimed. The ALJ 

determined that the wildcat strike was protected by the NLRA,

making CC1’s discharge of the striking employees unlawful. 

The ALJ also concluded that the last-chance agreements were 

unlawful.
6

CC1 challenged the ALJ’s decision, which the Board

affirmed with some exceptions. CC1 Limited Partnership, 358 

N.L.R.B. 1233 (2012). As to the firing of Colón, the Board 

found that he had not encouraged the work stoppage and, even 

if he had, his actions would have been protected by the NLRA.

Id. at 1234 & n.5. As to the wildcat strike, the Board agreed

that it was protected activity because it supported the Union’s 

strategy. Id. at 1235-36. To this latter point, the Board looked 

at the two factors set forth in Silver State Disposal Service, Inc., 

326 N.L.R.B. 84, 103 (1998): “(1) whether the employees 

[attempted] to [bypass their union and] bargain directly with 

the employer and (2) whether the employees’ position [was] 

inconsistent with the union’s position.” CC1, 358 N.L.R.B. at 

1235. The Board determined that the employees were striking 

as individuals on behalf of the Union, reasoning the Union 

never told the employees not to strike and that they did not 

know the Union was pursuing separate negotiations with 

management. Id. at 1235-36. The Board also concluded that the 

employees’ three demands of CC1 were consistent with the 

Union’s position. Id. In its order, the Board required CC1 to 

provide backpay to the discharged employees. Id. at 1238.

The Board denied CC1’s motion for reconsideration.

Order Denying Motion for Reconsideration, 2013 WL 298118 

(N.L.R.B. Jan. 24, 2013). CC1 sought review in our court, but 

we held its petition in abeyance until the Supreme Court 

decided NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). In 

Noel Canning, the Court held that the recess appointments of 

three members of the Board, two of whom were on the 2012 

panel, were unlawful. Id. at 2557, 2578. As a result, the Board 

set aside the 2012 decision. Order, 2014 WL 2929759 

(N.L.R.B. June 27, 2014). Meanwhile, CC1 reached settlement 

agreements with all of the employees involved except for four 
7

who had been discharged for striking and Colón. CC1 Limited 

Partnership, 362 N.L.R.B. No. 125, at 1 n.1 (June 18, 2015).

In 2015, a lawfully appointed panel of the Board reviewed 

de novo the ALJ’s decision and “affirm[ed] the [ALJ’s] rulings, 

findings, and conclusions . . . to the extent and for the reasons 

stated” in the 2012 decision and order. Id. at 1. The new panel 

unanimously found that CC1 had unlawfully discharged Colón

“by terminating [him] for his participation in the [September]

walkout.” Id. at 3 n.7. But the panel divided over whether the 

October wildcat strike was protected activity. The dissent

argued that the strike was not because it “undermined the 

Union’s position as . . . exclusive collective bargaining 

representative,” id. at 5, and diluted the “united front” that 

gives unions the bargaining power to make their negotiations 

effective, id. (quoting Emporium Capwell Co. v. W. Addition

Cmty. Org., 420 U.S. 50, 70 (1975)). In the dissent’s view, the 

striking employees were a “dissident” faction that intended to 

“usurp” the Union’s exclusive negotiation authority. Id. In the 

view of the majority, the striking employees were simply 

“ma[king] good on the [Union’s previous] strike threat.” Id. at 

3. As with the 2012 order, the Board ordered CC1 to provide 

backpay in a lump sum to the unlawfully discharged 

employees, id. at 4, but newly required CC1 to reimburse 

employees for any tax penalties triggered by the award, id. The 

Board also ordered CC1 to “[c]ease and desist from . . . 

[c]oercing employees into signing overbroad ‘last chance’

agreements as a condition of their reinstatement” and to 

remove any references to those agreements from the files of the 

employees who signed one. Id.

In July 2015 CC1 petitioned our court for review, and in 

December 2015 the Board cross-applied to enforce its decision.

We consolidated the cases and consider now whether the Board 
8

properly determined that CC1 violated the NLRA by firing 

Colón and the striking employees. 

II

The Board had jurisdiction over this matter pursuant to 29 

U.S.C. §§ 151, 160(a), and we have jurisdiction under § 160(f).

Even though “[w]e review the [Board’s] orders under a 

deferential standard,” we cannot affirm a decision made 

without a “reasoned explanation.” Int’l Transp. Serv., Inc. v. 

NLRB, 449 F.3d 160, 163 (D.C. Cir. 2006) (internal quotation 

marks omitted). We will affirm a decision that applies a 

“reasonably defensible” interpretation of the NLRA, even if we 

“might prefer another view of the statute.” Ford Motor Co. v. 

NLRB, 441 U.S. 488, 496-97 (1979). And we uphold the 

Board’s policy judgments that are not arbitrary or capricious. 

Int’l Transp., 449 F.3d at 163. 

The Board’s factual findings are “conclusive” if they are 

“supported by substantial evidence on the record considered as 

a whole.” 29 U.S.C. § 160(e); see also Universal Camera 

Corp. v. NLRB, 340 U.S. 474, 477 (1951). “Indeed, the Board 

is to be reversed only when the record is so compelling that no 

reasonable fact finder could fail to find to the contrary.” Bally’s 

Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)

(citations and internal quotation marks omitted). We will 

accept the credibility determinations made by an ALJ and 

adopted by the Board unless those determinations are 

“hopelessly incredible, self-contradictory, or patently 

unsupportable.” Stephens Media, LLC v. NLRB, 677 F.3d 1241, 

1250 (D.C. Cir. 2012) (internal quotation marks omitted).
9

III

A

CC1 asserts that it fired Colón because he encouraged the 

September 9 work stoppage, which was unlawful.

* The Board

responds that CC1 was motivated instead by Colón’s support 

for the Union. “It is well settled that an employer violates the 

NLRA by taking an adverse employment action . . . in order to 

discourage union activity.” Tasty Baking Co. v. NLRB, 254 

F.3d 114, 125 (D.C. Cir. 2001) (citing Wright Line, 251 

N.L.R.B. 1083, 1089 (1980)). To demonstrate that the 

employer’s motivation was unlawful, the General Counsel 

must present to the Board “a prima facie showing sufficient to 

support the inference that protected [i.e., union-related] 

conduct was a motivating factor in the . . . adverse action.” Id.

(alterations in original) (quoting TIC-The Indus. Co. Se., Inc. v. 

NLRB, 126 F.3d 334, 337 (D.C. Cir. 1997)). “Once a prima 

facie case has been established, the burden shifts to the 

company to show that it would have taken the same action in 

the absence of the unlawful motive.” Id. at 126. “[O]ur review 

of the Board’s conclusions as to discriminatory motive is 

[especially] deferential, because most evidence of motive is 

circumstantial.” Fort Dearborn Co. v. NLRB, 827 F.3d 1067, 

1075-76 (D.C. Cir. 2016) (internal quotation marks omitted).

Before the ALJ, the General Counsel argued that CC1’s 

reason for discharging Colón must have been unlawful because 

the company’s professed explanation, his encouragement of the 

work stoppage, never happened. The ALJ found that Colón

arrived at the plant after the employees had already left their 

 * We do not reach the issue of whether the conduct CC1 alleges 

was protected activity because, as we determine below, this conduct 

was a pretext to discharge Colón and not CC1’s true motivation. 
10

work stations to gather at the warehouse, leaving no 

opportunity for Colón to encourage the work stoppage. Only 

Armando Troche, a CC1 supervisor, testified that he saw Colón

telling employees to stop working. The ALJ did not credit this 

testimony because he believed, mistakenly as it turned out, that 

Troche hadn’t mentioned Colón’s conduct in his pretrial 

affidavit. Despite the ALJ’s mistake, he found other reasonable 

grounds to discount what Troche claimed. Colón and two 

corroborating witnesses testified that he had not encouraged the

work stoppage. Moreover, Troche’s testimony focused on the 

shop stewards as a group, mentioning Colón only to say that 

when he arrived he joined in the other shop stewards’ conduct.

App’x 307.

We cannot second-guess “the ALJ’s credibility 

determinations, as adopted by the Board, unless they are 

patently insupportable.” Gold Coast Rest. Corp. v. NLRB, 995

F.2d 257, 265 (D.C. Cir. 1993) (quoting NLRB v. Creative 

Food Design Ltd., 852 F.2d 1295, 1297 (D.C. Cir. 1988)). 

Because there is scant evidence that Colón encouraged the 

work stoppage and plenty of evidence that he did not, we defer 

to the Board.

If Colón did not encourage the work stoppage, as we 

conclude, the Board was justified to infer that some other 

conduct must have motivated CC1, and the General Counsel 

successfully made a prima facie case that such conduct was 

protected activity. See Prop. Res. Corp. v. NLRB, 863 F.2d 964, 

967 (D.C. Cir. 1988) (stating that the Board “can infer from 

falsity of employer’s stated reason for discharge that motive is 

unlawful” (citing Shattuck Denn Mining Corp. v. NLRB, 362 

F.2d 466, 470 (9th Cir. 1966))). The burden shifted to CC1 to 

present an alternative, lawful motivation, but the company still 

offers none, instead standing behind its argument that “Colón 
11

did indeed encourage employees to engage in a work 

stoppage.” CC1 Br. 44. 

It is possible of course that CC1 fired Colón based on a

mistaken but good-faith belief that he had encouraged the work 

stoppage. See Sutter E. Bay Hosps. v. NLRB, 687 F.3d 424, 

435-36 (D.C. Cir. 2012). But CC1 does not make this 

argument. See N.Y. Rehab. Care Mgmt. v. NLRB, 506 F.3d 

1070, 1076 (D.C. Cir. 2007). Regardless, the Board concluded 

from the ALJ’s findings that CC1 did not believe in good faith

that Colón had encouraged the work stoppage. For example, 

the ALJ determined that CC1 “conducted a superficial 

investigation as it concerned Shop Steward Col[ó]n, and 

manufactured evidence in its desire to lump together the 

actions of the four other Shop Stewards with those of Col[ó]n.” 

App’x 21. The ALJ also found that “none of the Shop Stewards 

including Col[ó]n were ever provided the opportunity to state 

their position concerning the events of September 9, but rather 

were summarily suspended on September 10.” Id. These 

findings certainly cast suspicion on the possibility that CC1 

fired Colón because it made a good-faith mistake. See Inova 

Health Sys. v. NLRB, 795 F.3d 68, 84 (D.C. Cir. 2015) 

(doubting that a company fired its employee for her 

unprofessional conduct, as it claimed, when that company’s 

investigation into her behavior was “one-sided” and 

incomplete).

In these circumstances and given our deferential standard 

of review, we affirm the Board’s conclusion that CC1 did not 

fire Colón because it believed that he had encouraged the 

September 9 work stoppage. See Fort Dearborn Co., 827 F.3d 

at 1072. And because CC1 didn’t satisfy its burden to 

demonstrate an alternative, lawful reason for firing him, we 

affirm the Board’s conclusion that CC1 fired Colón for 

unlawful reasons. See Shamrock Foods Co. v. NLRB, 346 F.3d 
12

1130, 1135 (D.C. Cir. 2003) (explaining that once the General 

Counsel shows that a company had unlawful motivations, the 

burden to demonstrate a lawful motivation shifts to the 

company) (citing Wright Line, 251 N.L.R.B. at 1089). 

B

CC1 argues that it was lawful to fire the employees who 

participated in the October strike because it was a wildcat 

strike, which is not protected by the NLRA. The Board agrees

that the October strike was a wildcat strike, but believes that it 

was protected by the NLRA.

Wildcat strikes are governed by sections 7 and 9 of the 

NLRA. In most circumstances, section 7 protects an employee

who claims his labor rights through “concerted activities,” such 

as strikes. 29 U.S.C. § 157 (“Employees shall have the right to 

self-organization, to form, join, or assist labor organizations, to 

bargain collectively through representatives of their own 

choosing, and to engage in other concerted activities for the 

purpose of collective bargaining or other mutual aid or 

protection . . . .”); see also NLRB v. Erie Resistor Corp., 373

U.S. 221, 233 (1963). An employer who disciplines an 

employee for exercising a protected right to strike violates the 

NLRA. 29 U.S.C. § 158(a)(1); Consolidated Commc’ns, Inc. v. 

NLRB, 837 F.3d 1, 7 (D.C. Cir. 2016). Section 9 provides that

a lawfully elected union is the exclusive bargaining 

representative of the employees. 29 U.S.C. § 159(a) 

(“Representatives . . . selected for the purposes of collective 

bargaining . . . shall be the exclusive representatives of all the 

employees in such unit for the purposes of collective 

bargaining in respect to rates of pay, wages, hours of 

employment, or other conditions of employment . . . .”). 
13

The exclusive bargaining authority granted unions by 

section 9 sometimes creates a tension, which the NLRA does 

not clearly resolve, with labor rights granted employees by 

section 7. The Supreme Court addressed this tension in 

Emporium Capwell Co. v. Western Addition Community 

Organization, holding that a strike is not protected activity 

when it interferes with an elected union’s exclusive 

representation. 420 U.S. at 62. Even so, the Court did not strip

the NLRA’s protection from all wildcat strikes. By electing a 

union, employees do not “waive[] all rights to protect 

themselves against an employer’s unlawful actions.” Jones & 

McKnight, Inc. v. NLRB, 445 F.2d 97, 105 (7th Cir. 1971); see 

also Bridgeport Ambulance Serv., Inc., 302 NLRB 358, 363-

64 (1991) (explaining that a wildcat strike was still protected 

activity because “the employees’ demands and statements 

during this period w[ere] not in derogation of the Union or 

contrary to, or inconsistent with, the Union’s bargaining 

position”), enf’d, 966 F.2d 725, 729 (2d Cir. 1992) (agreeing

that Emporium Capwell does not transform all unauthorized

concerted activity into unprotected activity). It is only when 

employees’ activity undermines the Union’s objectives or 

position as bargaining authority that it loses NLRA protection.

In light of Emporium Capwell and Silver State, the Board

looked at whether the negotiation efforts of the CC1 employees 

were independent of the Union or inconsistent with its strategy.

CC1, 362 N.L.R.B. No. 125 at 1. “The resolution of any 

statutory ambiguity latent in the NLRA is a task that the 

Congress, in the first instance, has entrusted to the Board, not 

this Court,” Children’s Hosp. & Research Ctr. of Oakland, Inc. 

v. NLRB, 793 F.3d 56, 59 (D.C. Cir. 2015), and we think the 

Board’s interpretation is “reasonably defensible,” Ford Motor 

Co., 441 U.S. at 497. See Children’s Hosp., 793 F.3d at 59 

(deferring to the Board’s understanding of the “interplay”

between NLRA provisions that, on their faces, seemed to 
14

conflict); E. Chi. Rehab. Ctr., Inc. v. NLRB, 710 F.2d 397, 402-

03 (7th Cir. 1983) (“[I]f the Board chooses to distinguish 

between wildcat strikes that undermine the union’s position as 

exclusive collective bargaining representative and ones that do 

not . . . we must let it.” (citations omitted)). However, the Board 

failed to explain how it applied Silver State to the employees 

who continued to strike after learning the Union disavowed it

as a move by “false leaders.” Because the employees knew the 

Union disapproved of the strike, it seems that the employees 

who continued to strike might have been doing so on their own 

behalf for their own reasons. The Board dismissed this 

suggestion because “[t]he Union sent a letter to [CC1] stating 

that the strike was not authorized, but it was [CC1]—not the 

Union—that photocopied the letter and asked security guards 

to give it to the strikers.” CC1, 362 N.L.R.B. at 2 n.6.

It is unclear to us how CC1’s distribution of the letter 

affected the Board’s decision. Perhaps the Board thought the 

striking employees’ knowledge of the Union’s position wasn’t 

important unless that knowledge came from the Union itself. 

But that’s just a guess, and we can’t rely on guesses. We cannot 

determine if the Board based its decision on a reasonably 

defensible interpretation of the NLRA if we do not know how 

the Board reached its conclusions. See Int’l Transp., 449 F.3d 

at 163. In short, we cannot determine if there was substantial 

evidence for the Board to find that the wildcat strike was 

protected activity. We remand this issue so that the Board can 

explain the importance of the provenance of the letter and also 

whether the Union’s message to CC1 accurately represented its

position.

C

CC1 makes two additional arguments, one about the 

remedy granted by the Board and another about the Board’s 
15

decision that the last-chance agreements were unlawful. But we 

dismiss them both without considering their merits because 

CC1 fails to properly raise them on appeal.

First, CC1 argues that we should reverse the Board’s order 

to compensate Colón and the striking employees for the tax 

consequences of the backpay award. CC1 failed to raise this 

argument before the Board, and section 10(e) of the NLRA 

provides that “[n]o objection that has not been urged before the 

Board . . . shall be considered by the court, unless the failure or 

neglect to urge such objection shall be excused because of

extraordinary circumstances.” 29 U.S.C. § 160(e); see also

Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-

66 (1982) (“[T]he Court of Appeals lacks jurisdiction to review 

objections that were not urged before the Board.”).

CC1 argues that the exception for “extraordinary 

circumstances” applies here because the Board did not impose 

the tax remedy until its 2015 decision. But the unusual 

procedural history in this case that led to a second Board 

decision did not deprive CC1 of an opportunity to timely 

challenge the ordered remedy. And CC1 does not offer an 

excuse for failing to move for reconsideration of the Board’s 

2015 order on this ground. See Woelke, 456 U.S. at 665-66 

(noting that the section 10(e) bar applies to issues that the 

parties did not raise before the Board but were nonetheless 

decided by the Board if the parties failed to object to the 

findings in a petition for reconsideration or rehearing); see also

Enter. Leasing Co. of Fla. v. NLRB, 831 F.3d 534, 551 (D.C. 

Cir. 2016). We are therefore “powerless” to review it. Enter.

Leasing, 831 F.3d at 550 (internal quotation marks omitted).

Second, CC1 argues that because it hadn’t realized the 

last-chance agreements were at issue in this case, we should not 

enforce the Board’s finding that they were unlawful. But CC1 
16

raised this for the first time in its reply, not opening, brief and 

thusforfeited this claim. See N.Y. Rehab. Care Mgmt., 506 F.3d 

at 1076; New York v. EPA, 413 F.3d 3, 20 (D.C. Cir. 2005) 

(stating that petitioners waive arguments that they fail to raise 

in their opening briefs) (citing Verizon Tel. Cos. v. FCC, 292 

F.3d 903, 911-12 (D.C. Cir. 2002)). As a result, summary 

enforcement is appropriate. See Carpenters & Millwrights, 

Local Union 2471 v. NLRB, 481 F.3d 804, 808 (D.C. Cir. 2007) 

(“[I]t is our longstanding rule that ‘[t]he Board is entitled to 

summary enforcement of the uncontested portions of its 

order[s].’” (second and third alterations in original) (quoting 

Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 181 (D.C. Cir. 

2006))).

IV

We vacate and remand for further explanation the Board’s 

conclusion that the striking employees were unlawfully 

terminated for engaging in protected activity. In all other 

respects, we deny CC1’s petition for review and grant the 

Board’s cross-application for enforcement.

So ordered.