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 Og letree, Deakins, Nash, Sm oak & Stewart, P.C. of Indianapolis, Indiana (Dan iel A. Adlong and Henr y Bryce Farrington of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. of Costa Mesa, California, with him on the briefs), fo r Petitioner/Cross Respondent. Joel Heller (Elizabeth A. Heany, Ruth E. Burdick, Jennifer A. Abruzzo, Peter Sung Ohr, and David Habens treit 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 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 12 Steven R. Hickman of Fraiser, Fraise r & Hickman, LLP of Tulsa, Oklahoma, for Intervenor.

________________ _________________ Before HARTZ , TYMKOVICH , and ROSSMAN , Circuit Judges.

________________ _________________ ROSSMAN , Circuit Judge.

________________ _________________ Coreslab Structures petitions for re view of a National Labor Relations Board decision finding it violated several provisions of the National Labor Relations Act. Exercising juri sdiction 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 enforc ement, and remand to the Board for further proceedings. I A Coreslab produces bridge componen ts and other structural materials at its facility in Tulsa, Oklahoma. 1 From 2004 until 2019, Coreslab recognized the International Union of Operating Engine ers, Local 627, AFL-CIO (the Union) as the bargaini ng representative of the company’s production and maintenance employees.

1 We draw these facts from the Bo ard’s order. We address Coreslab’s challenges to these fi ndings in Section II. Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 23 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 in to 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 prov ided annual profit-sharing payments to non-Union bargaining unit empl oyees. These profit-sharing payments were not included in th e collective-bargaining agre ements. Nor were they provided to Union employees. Some Union-member employees, including Union steward Floyd Prince, beca me 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 no tice from the Central Pension Fund that the Fund would conduct a random compliance audit for Coreslab’s pension contributions over th e past three years. Eventually, that Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 34 audit revealed Coreslab underpaid th e Fund by roughly $120,000 during the 2016 to 2018 period. This underpaym ent, 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 Core slab in mid-July 2019. Shortly after, the company informed the Union of th e 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 authorizat ion for Union representation. A plant manager, Danny Johnson, interrupted th eir conversation, and directed the new hire not to speak with the Unio n. Mr. Johnson ap parently 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 session s with Coreslab general manager Neil Drews to negotiate a successor collective-bargain ing agreement. Mr. Drews cancelled further meetings after a brief session in the spring, and delayed bargaining Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 45 in response to at least six requests from Mr. Evan s during the early summer of 2019. The parties finally met in la te 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 compan y 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. Drew s warned, would “b e 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 wa s being forced to make, AR.1626, and they would “be forfeiting the prof it 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-s haring plan; Coreslab declined to Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 56 provide some of the requested info rmation, including the 401(k) plan prospectus and the calculation bases for profit-sharing eligibility. On September 11, Mr. Drews receiv ed a disaffection petition signed by 18 of the 26 bargaining-unit empl oyees. The petition indicated the undersigned employees no longer wished to be represented by the Union. The next day, Mr. Drews withdr ew 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 concer ned 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 wi thdrawing its recognition when the current collective-bargaining agreemen t expired on September 30, 2019. Mr. Drews refused requests for furthe r 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 bar gain collectively through representatives of their own choosing.” 29 U.S.C. § 157. Sectio n 8 of the Act makes unlawful a number of unfair labor practices. Among them, employers may not Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 67 “interfere with, restrain, or coerce em ployees” in the exercise of protected rights, 29 U.S.C. § 158(a)(1), discrimi nate “in regard to . . . any term or condition of employment to encourag e 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 unf air 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 Unio n, the General Counsel of the NLRB issued a complaint against Coreslab . He alleged the company’s conduct constituted unfair labor practices under three pr ovisions of the Act. Coreslab, the General Counsel urged, violated 29 U.S.C. § 158(a)(5) by: unilaterally modifying i ts agreements with the Un ion, 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 contribu tions after the 2015–2019 agreement expired, failing to bargain with the Un ion in good faith, and withdrawing recognition of the Union. He allege d Coreslab discriminated between Union and non-Union employees by provid ing profit-sharing payments to the Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 78 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 administrativ e law judge (ALJ) assigned to the case largely agreed with the Genera l Counsel and found Coreslab violated 29 U.S.C. § 158(a)(1), (3), and (5). That decision was uphe ld, in relevant part, 2 by the Board. First, the Board rejected Coreslab’ s contention the Union had actual or constructive knowledge of the di sparate compensation plans. AR.1621. While the Board refused the ALJ’s ch aracterization of the pension and profit-sharing plans as “secret” or “c overt,” 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, th e Board pointedly did “not rely on the [ALJ’s] characterization of [Cor eslab’s] unlawful pension and profitsharing conduct as ‘secret’ and ‘covert.’” AR.1621 n.7. Coreslab makes much of this disagr eement in its petition for review, insisting it “demonstrat[es] a lack of substantial evidence.” Opening Br. at 15. If Coreslab means this disagreemen t is part of the co mplete record on review, it is, of course, correct. But if Coreslab intends to suggest contradictory findings be tween the Board and an AL J indicate a lack of substantial evidence per se , we reject that conten tion. 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 incl ude the ALJ’s findings, “whether they contradict or support the Board’s determination.” Id. Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 89 impute Mr. Prince’s knowledge of the pl ans to the Union it self (as required by Coreslab’s actual-knowledge argument) or to find Mr. Evans had failed to exercise basic diligence that woul d have revealed Coreslab’s actions (as required by Coreslab’s constructi ve-knowledge argument), AR.1621–23. 3 On the merits, the Board found Co reslab 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 un it employees because they were not members of the Union,” and, conversel y, “discriminatorily excluding unit employees who were members of the Un ion from [the company’s] profitsharing plan because of their memb ership in the Union.” AR.1629–30. Failing to make pension contributi ons and adding the profit-sharing

3 Board Member Ring dissented from this portion of the Board’s decision. Member Ring would have he ld 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 conc lusion Coreslab “violated [§ 158(a)(5)] by modifying the 2015-2019 collective-bargaining agreement and by unilaterally implementing profit-sharing payments.” AR.1636. Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 910 program, the Board determined, were also unlawful, un ilateral 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 bar gain in good faith with the Union,” “withdrawing recognition from the Unio n” based on a tainted disaffection petition, and ceasing pe nsion 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 cu rrent 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 “wit hout an offset for the benefits [the employees] were already receiving. ” AR.1630 n.32, 1632. Coreslab also was ordered to re-recognize the Union, pr ovide it with the information needed as “collective-bargaining representati ve of [Coreslab’s] unit employees,” and bargain for a successor agreem ent in good faith. AR.1632. And Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 1011 unilateral changes, like the profit-sha ring program, were to be rescinded “[o]n request by the Union.” AR.1632. II Coreslab assails the Board’s unfai r-labor-practice findings on multiple fronts. It argue s the profit-sharing plan was implemented openly and without anti-union animus. It main tains it did not violate the Act “by failing to make pension contribution s for unit employees who were not Union members and excluding those who were Union members from its profit-sharing plan.” Op ening Br. at 32. The co mpany 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 sub stantial evidence.” United Steelworkers of Am., Loc. 14534 v. NLRB , 983 F.2d 240, 244 (D.C. Cir. 1993) (citation omitte d). As we explain, we discern no reason to Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 1112 overturn the Board’s judgment, and re ject 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) (d escribing scope of review as “quite narrow”). We will not re-weigh the evidence or second gu ess the Board’s factual inferences. NLRB v. Velocity Exp., Inc. , 434 F.3d 1198, 1201 (10th Cir. 2006). Instead, “we review only to ensu re the NLRB acted within reasonable bounds and substantial evid ence supports the order.” Id. ; see 29 U.S.C. § 160(e) (“The findings of the Board wi th respect to que stions of fact if supported by substantial ev idence on the record considered as a whole shall be conclusive.”). Substa ntial evidence is “such relevant evidence as a reasonable mind might accept as ad equate 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 Rela tions Act is entitl ed to considerable deference.” NLRB v. Okla. Fixture Co. , 79 F.3d 1030, 1033 (10th Cir. 1996). “For the Board to prevail, it need no t show that its construction is the best way to read the statute; rather, cour ts must respect the Board’s judgment so long as its reading is a reasonable one.” Holly Farms Corp. v. NLRB , 517 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 1213 U.S. 392, 409 (1996). It is not for this court to “displace the Board’s choice between two fairly conflicting views, ev en though the court would justifiably have made a different choice ha d 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 conc lusions that Coreslab’s selective profit-sharing payments and its failure to make pension fund contributions violated the Act. Recall, the Board found (1) the Un ion 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 encourag e or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). Employer conduct which “discriminates solely on the basis of uni on 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 colle ctively with union representatives. 29 U.S.C. § 158(a)(5). “[A] n employer’s unilateral ch ange in conditions of employment . . . is a circumvention of the duty to negotiate which frustrates the objectives of [§ 158(a)(5)] mu ch as does a flat refusal.” NLRB v. Katz , 369 U.S. 736, 743 (1962). Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 1314 1 Coreslab contends there can be no violation of either § 158(a)(3) or (a)(5) here because the Union ha d known about the dual-track compensation scheme since 2005. The Union, Coreslab argues, had actual knowledge of the disparate pension an d profit-sharing plans based on Mr. Prince’s status as a Un ion steward. And even if not, the Union had constructive knowledge of the practices becaus e it could have discovered the violations through the exerci se of “reasonable diligen ce.” Opening Br. at 26. Coreslab’s actual-knowledge argumen t rests on the existence of an alleged principal-agent re lationship between the Un ion 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 mu st encompass the “specific conduct” at issue. In re Cornell Forge Co. , 339 NLRB 733, 733 (2003). As the party asserting the existe nce of an agency relationship, Coreslab has the burden of estab lishing 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 asse rting a principalagent relationship bears th e burden of establishing its existence by ‘clear Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 1415 and satisfactory evidence.’” (citation omitted)). Coreslab could make this showing by demonstr ating 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 mani festations 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 ac t 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) (“Appare nt authority results from a manifestation by the principal to a th ird party that creates a reasonable belief that the principal has authoriz ed 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 be lief.” (citation omitted)). Whatever the agency relationsh ip 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 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 1516 purpose but not another.”). Here, then, Mr. Prince’s actual authority would come from the Union’s express representa tion to Mr. Prince that he had the authority to consent to changes in th e 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 factua l record before us. Mr. Evans, not Mr. Prince, was the design ated point of contact fo r issues involving the terms of the collective-bargaining ag reement. Mr. Evans and Mr. Prince confirmed Mr. Prince did not discus s the inclusion, modification, or omission of agreement terms. The Un ion never held ou t Mr. Prince as having authority to approve or declin e changes to the collective-bargaining agreement. And the record indicate s Mr. Drews addressed substantive matters about the collective-bargain ing agreement with Mr. Evans—and Mr. Evans only. While the record sugge sts Mr. Prince attended at least one negotiating session, he apparently neve r spoke at the bargaining table. The company has provided no reason to th ink Mr. Prince’s “mute presence” at these sessions generated actual or appa rent authority, particularly given the “long-established channels of co mmunication for bargaining matters” between Coreslab’s ma nagement and Mr. Evans. AR.1622 & n.10. Substantial evidence supports the Bo ard’s reasoning, and we will not Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 1617 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 exe rcise reasonable diligence. Had the Union made even a mi nimal 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 rate s, 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 th e Respondent’s fringe benefit forms. The Union rarely visite d the Respondent’s operation however, never appointed a shop steward, . . . and never took any measures to enforce the uni on-security provisions of the contract. Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 1718 306 NLRB at 192. “[A] union is not re quired 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 ev ents . . . 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 holdi ng “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 Coresl ab’s basic compensation practices apparently escaped Mr. Evans’s attentio n 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 th e 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 canno t 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 fac ility and interacted with employees there. Unlike the unfair labor practices at issues in Moeller Bros. , the profitsharing and pension fund violations we re not literally visible. And where the employer in Moeller Bros. provided regular repo rts that did not match the facts—e.g., by misstating the numb er of employees working at any given time—Coreslab has identified nothing th e company or the Fund provided to Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 1819 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 supp orted by substantial evidence. 4

4 On appeal, Coreslab argues the Bo ard 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 otherwis e, the defense would be unavailing based on the panel’s re solution of the notice /knowledge issues. As discussed, Mr. Prince had no agency to bind the Union to a modification of the collective bargain ing agreement. Whether notice to Mr. Prince could have constituted no tice to the Union may be a closer question, however. Ordinarily, the Union steward is the agent through which a Union learns of breaches. Bu t on the record before us—which involves breach of contra ctual 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 no tice 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 be gins when the victim of an unfair labor practice receives unequivocal notice of a final adverse decision. Rumors or suspicions w ill not do; nor is it re levant 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 fa cts necessary to support a present, ripe, unfair labor practice charge.”). Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 1920 2 Coreslab next contends the Board e rred in concluding its withholding of pension contributions and its prov ision of profit-sharing payments to non-Union employees violated the Act. We disagree. Recall, an employer viol ates 29 U.S.C. § 158(a)(3) if it “discriminat[es] in regard to . . . any term or cond ition of employment to encourage or discourage membership in any labor or ganization.” Here, Coreslab provided profit-sharing payments to non-Unio n members. It did not provide profit-sharing payments to Un ion members. Regardless of why it initiated this dual-track compensation sche me, Coreslab has not otherwise argued the provision and denial of this bene fit turned on any other basis beyond Union membership. Accordingly, substa ntial 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 th is facially discriminatory distinction “bears its own indicia of intent to discourage or encourage membership in the Union,” AR.1625 (i nternal quotation marks omitted). See also NLRB v. Great Dane Trailers, Inc. , 388 U.S. 26, 32 (1967) (explaining an employer discriminate s under § 158(a)(3) by “paying accrued benefits to one group of employees wh ile announcing the extinction of the same benefits for another group of employees who are distinguishable only by their participation in protected concerted activity”). Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 2021 An employer violates 29 U.S.C. § 158( a)(5) when it shir ks its statutory obligation to bargain before changi ng the terms and conditions of employment settled upon in a collective-bargaining agreement. Katz , 369 U.S. at 743 (explaining a “unila teral 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 maki ng 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 substant ial evidence supports the Board’s findings of Act violatio ns based on the refusa l to make full pension contributions and the commencement of a profit-sharing pl an that did not include Union members. C Coreslab also argues it did not viol ate the Act by telling a worker he could not speak with Union officials. We discern no erro r in the Board’s finding to the contrary. The Act prohibits an employer’s in terference with, restraint, or coercion of employees in the exerci se 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 righ ts. Rather, “[t]he test is . . . whether Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 2122 the employer engaged in conduct which reasonably tends to interfere with, restrain or coerce employees in th e 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 staff ing service. Opening Br. at 44–45. We are not persuaded. As the Board correctly explains, wh ether 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 sta tus as an employee of a staffing company, the Supreme Court has endo rsed Board precedent holding an “‘employer’ may violate [§ 158(a)(1)] wi th 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 concludi ng Mr. Johnson’s directive that the employee could not speak with Union President Evans would “reasonably Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 2223 tend” to interfere with the empl oyee’s right to speak to union representatives. D Next, Coreslab insists “[t]he Boar d erroneously found the Company failed to bargain with the Union in good faith for a su ccessor agreement.” Opening Br. at 45. Recall, an employer will violate 29 U.S.C. § 158(a)(5) by failing to “bargain collectively with the repres entatives of [its] employees” “with respect to wages, hours, and other te rms 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 no t 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 in formation needed by a labor union for the proper performance of its duti es as the employees’ bargaining representative.’” Id. (quoting Detroit Edison Co. v. NLRB , 440 U.S. 301, 303 (1979)). Here, the record supports the Boar d’s conclusion Coreslab failed to bargain in good faith. Coreslab refuse d 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 Ap ril 10, 2019, Coreslab cancelled the Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 2324 scheduled negotiation on April 19—an d 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 bargainin g.” AR.1627. At the same time the company proposed modifying pensio n contributions and adding profitsharing, it declined to inform the Union it had al ready made those changes unilaterally until the third, final bargaining session. And, even after informing Mr. Evans of the profit-shari ng plan and receiving his request for further information abou t it, Coreslab refused to provide the relevant information requested by th e 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 uni t employees provided “objective evidence the Union no longer had the support of a substantial majority of the unit.” Opening Br. at 50. Un der these circumstances, Coreslab maintains, the Act permits an em ployer to withdraw recognition. Coreslab is correct that a “petitio n expressing disaffection that is signed by a majority of the represented unit . . . provides reliable evidence Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 2425 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 disa ffection petition tainted by “its own unfair labor practices.” NLRB Br. at 42. “[U]nfair labor practices which are of a characte r as to cause employee disaffection with the union, or at leas t have a meaningful impact in bringing about that disaffection, will tain t a subsequent employee antiunion petition” and may not serve as the bas is 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 natu re of the unfair labor practices, (3) the tendency of the unfair labor prac tices 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 th e time of the disaffection petition. Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 2526 At (2), the Board rightly found unila teral additions and alterations to compensation programs, made in disr egard of the terms of the collectivebargaining agreement itself, will und ermine employees’ perception of the Union’s effectiveness. Un der prong (3), we agree with the Board that the tendency of the unfair labor practi ce to cause disaffection was amply demonstrated by Mr. Drews’s discus sion with bargaining unit employees, who were upset to hear they might lose their profit-sharing payments and never benefit from the pension contri butions 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. Drew s 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 di sturb 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 ca n discern no abuse of discretion on most of these remedies. But we find the Board exceed ed its statutory Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 2627 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 th e 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 bac k-payment without offset,

5 Coreslab contends the Board also abused its discreti on by ordering the company “to recognize and bargain with the Union,” Opening Br. at 55, though this argument seems to disappea r by the Reply Brief. In any case, it lacks merit. In cons idering the propriety of an affirmative bargaining order, the Board already took the extr a 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 addition al findings to support a remedial bargaining order. Even were we to endo rse that circuit’s ru le, we would find it satisfied here.” (citat ion omitted)). And it corre ctly 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 wi thdrawal . . . . may file an unfair labor practice charge alleging . . . that the petition is tainted by serious unremedied labor practices”). In a single paragraph, Coreslab ch allenges “[t]he remainder of the Board’s remedies” as unenf orceable because “the Boar d’s findings of various violations are unsupported by substa ntial 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. Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 2728 but the Board rejoins the company’s failure to mo ve 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 challenge d 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 challe nges on a petition for review. After explaining the jurisdictional color of 29 U.S.C. § 160(e)’s preservation requirement, we address both the Boar d’s contentions and conclude we have jurisdiction.
1 Preservation concerns 6 typically bear on whethe r 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 exhau stion” 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”). Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 2829 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 requ est plain error review, we do not address it[,]’ [b]ut even wh en a party fails to preser ve an issue, we retain ‘discretion to raise and decide issues sua sponte’ . . . because ‘[w]aiver . . . binds only the party, not the court’” (c itations omitted)). But the terms of the Act itself transform preservation i ssues into jurisdic tional questions. That is because, under 29 U.S.C. § 160(e), “[n]o obje ction that has not been urged before the Board, it s member, agent, or agen cy, shall be considered by the court, unless the failure or negl ect to urge such objection shall be excused because of extraordinary ci rcumstances.” 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 liti gation 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 addre ssed only to the parties .” Id. at 1076. Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 2930 plain from its face that it seeks to a llow the agency at least the chance to apply its expertise to a proble m before it comes to us.” Id. Indeed, the “salutary policy” behind § 160(e) “a fford[s] the Board opportunity to consider on the merits que stions to be urged upon re view 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, “th e critical inquiry is whet her the objections made before the Board were adequate to pu t the Board on notice that the issue might be pursue d on appeal.” Consol. Freightways v. NLRB , 669 F.2d 790, 794 (D.C. Cir. 1981). From this we summarize the genera l principle: If a party does not “urge[]” an objection be fore the Board—meaning raise it in a manner sufficient to place the Board on noti ce it should be addressed and may become an issue in this court—we may not consid er the objection for the first time on appeal abs ent 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: 3031 whole remedies before the agency. In co nsidering this contention, we assess both the exceptions file d 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 th e sufficiency of these objections, our opinion in Public Service Company is instructive. There, petitioners made a two-sentence objection to the AL J’s analysis. 692 F.3d at 1073–74. We found this objection sufficient—thou gh barely—to preserve the issue for review in this court. Id. at 1074. We also found cita tions 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 preservati on requirement. As in that case, we cannot say the brevity of Coreslab’s obje ctions rendered them inadequate to

7 We are unpersuaded, then, by the Board’s contention that Coreslab’s objections were as bare-bones as th e objections found insufficient in NLRB v. Seven-Up Bottling Co. of Miami , 344 U.S. 344, 350 (1953). Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 3132 place the issue before the Board on in tra-agency review. And we observe, like the petitioners in Public Service Company , Coreslab included citations to the record where the ALJ reason ed 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 be yond the exceptions themselves. To determine whether an issue has been urged before the Board, we must consider whether the Board itself und erstood an obligatio n 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 ex ceptions] insufficient for any purpose,” the Board “[i]nstead . . . chose to addre ss the . . . objections it felt it could discern lurking here.” 692 F.3d at 1074. Clearly, then, Coreslab’s submission “provid[ed] sufficient sp ecificity and clarity”—albeit with “painful brevity”—“to allow the Boar d to bring its expe rtise 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). Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 3233 Recall, the “salutary policy” be hind § 160(e)’s preservation requirement guarantees the Board a firs t 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 expres sly 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, sub stitute fringe bene fits.’” 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 du e . . . must be offset by the value of any alternative payments [already] made.” On this record, we canno t conclude our exercise of jurisdiction would deprive the Board of an opportunity to consider the issue in the first instance. Coreslab challenged the re medies—if generally and briefly—and the Board opted to defend the make-who le 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 ‘obj ections’ on these two issues under Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 3334 § 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 bas is for our jurisdiction. Because the make-whole order without offset v eered from remedial to punitive, the company contends, the Board exceeded the policy parameters of the Act. And this court, Coreslab urges, “may re view 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 challe nge despite a party’s failure to object before the agency in the case of “e xtraordinary circumstances,” 29 U.S.C. § 160(e), or where the decision at i ssue 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 patent ly traveled outside the orbit of its authority,” then “there is legally speaking no order to enforce.”). “Congress has imposed on [us] re sponsibility 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 ab ility to consider “[c]ertain jurisdictional challenges” which “need not be raised be fore 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 th at action “is patently beyond the Board’s jurisdiction, even if the jurisdictional ch allenge 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 whethe r we would also have jurisdiction because the Board’s make-whole reme dies without offset exceeded the bounds of its sta tutory authority. Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 3435 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 Bo ard to preserve th at 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 ma tter, the statuto ry provisions governing our jurisdicti on do not require reco nsideration 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 su ch requirement: A party “may . . . move for reconsideration,” but “[a] motion for reconsideration . . . need not be filed to exhaust ad ministrative remedies .” 29 C.F.R. § 102.48(c), (c)(3) (emphasis added). Instead, the Board’s argument for th e 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 deci sion 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 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 3536 (1975), in which it had previously held an objection “may not be considered” when the objecting party fails to ava il 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 bar gain in good faith by unit-splitting—or separating employees in one facility from an “established appropriate bargaining unit.” Id. at 970. The Board ag reed the employer violated its statutory du ty. 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 co ntended—before this court—that the “switching of legal theor ies 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 poin ted 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 co ncerned with circumstances when the Board lacked entirely “an oppo rtunity to consider” claims the petitioning employers advanced on appeal. We find that distinction Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 3637 persuasive on these analogous facts. As in Facet Enterprises , the Board did address the company’s challenge to th e 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 de fended a potential objection to the make-whole remedies without offset. In Facet Enterprises , we reasoned “[t]he polic ies 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 polic y considerations were not implicated when the Board already ha d that first opportunity, and Coreslab’s “filing a motion seeking reconsideration of th e Board’s decision would have been” the “empty formality” we have refuse d to require of parties invoking our jurisdiction. Id. at 972. On these facts, we de cline to convert a motion for reconsideration into a juri sdictional requirement. B Having assured ourselves of juri sdiction, we next address our standard of review and then the pr opriety of the Board’s remedies. Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 3738 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 unde r the broad provisio ns 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 th erefore be given special respect by reviewing courts.”). But that deference cannot extend to remedial orders “other than those which can fairly be said to effe ctuate the policies of the Act,” Va. Elec. & Power Co. v. NLRB , 319 U.S. 533, 540 (1943), or th ose 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 ex ercise—“remedial, not punitive.” Republic Steel Corp. v. NLRB , 311 U.S. 7, 12 (1940). C We conclude two of the Board’s orde red remedies are in consistent 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 Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 3839 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 alre ady been received, these amounts were not needed to make the employees whole”). To comply with the Act, the Board should have en sured 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 provid e full back-pension contributions and provide full back-profit-shari ng payments to all employees without offset for the compensation already provided to them were not “sufficiently tailored” to the actual harms suffered by thos e 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 explai ned, “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 ca nnot dictate the terms of a labor contract, which should be decided upon by the give and take of collective Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 3940 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 Core slab 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 statut ory authority by ordering remedial back payments without offset for prio r compensation and by ordering the company to maintain the profit-sharing plan. We GRANT Coreslab’s unopposed motion to lodg e non-record materials. Accordingly, we also DENY the Board’s cross-petition for enforcement. We REMAND to the Board for further pr oceedings consistent with this opinion. Appellate Case: 23-9502 Document: 010111006640 Date Filed: 02/28/2024 Page: 4023-9502/9505, Coreslab Structures v. NLRB HARTZ , J., partially dissenting. I agree with the analysis of the panel opi nion 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 a ny 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