PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CORESLAB STRUCTURES 

(TULSA), INC., 

 Petitioner/Cross Respondent, 

v. 

NATIONAL LABOR RELATIONS 

BOARD, 

 Respondent/Cross Petitioner. 

---------------------------------------- 

INTERNATIONAL UNION OF 

OPERATING ENGINEERS, 

LOCAL 627, AFL-CIO, 

Intervenor. 

Nos. 23-9502, 23-9505 

_________________________________ 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 28, 2024

Christopher M. Wolpert 

Clerk of Court

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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. 

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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 

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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 

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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 

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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 

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“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 

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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 profitsharing 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. 

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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] profitsharing 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. 

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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 

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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 representativeemployee 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 

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

respect. 

A 

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 

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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). 

B 

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). 

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1

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

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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 

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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 

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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 unionsecurity 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. 

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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 profitsharing 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 

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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.”). 

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2

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”). 

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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. 

C 

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 

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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 

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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 

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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 profitsharing, 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 

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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. 

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

compensation programs, made in disregard of the terms of the collectivebargaining 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 collectivebargaining 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 

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

requiring Coreslab to retain the unlawfully-created profit-sharing 

program.5

A

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. 

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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. 

1 

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”). 

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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.

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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). 

2

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

jurisdictional argument that Coreslab inadequately objected to the makeAppellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 30
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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). 

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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). 

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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 

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§ 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.

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3

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 

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(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 

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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. 

B 

Having assured ourselves of jurisdiction, we next address our 

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

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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). 

C

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 

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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 

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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. 

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

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