“Arguments raised for the first time in a reply brief are forfeited.” (cleaned up)
How later courts described this case
- “Arguments raised for the first time in a reply brief are forfeited.” (cleaned up)
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2024 Decided March 7, 2025
No. 23-1235
HOOD RIVER DISTILLERS, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 23-1270
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Sasha A. Petrova argued the cause for petitioner. With her
on the briefs was Steven M. Wilker.
Heather S. Beard, Senior Attorney, National Labor
Relations Board, argued the cause for respondent. With her on
the brief were Jennifer A. Abruzzo, General Counsel, Ruth E.
Burdick, Deputy Associate General Counsel, David
2
Habenstreit, Assistant General Counsel, and Elizabeth A.
Heaney, Supervisory Attorney.
Before: WALKER, CHILDS, and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge PAN.
Dissenting opinion filed by Circuit Judge WALKER.
PAN, Circuit Judge: In this petition for review, Hood
River Distillers, Inc. challenges a decision and order of the
National Labor Relations Board. The Board found that Hood
River violated the National Labor Relations Act (“NLRA”) by
unilaterally changing the employment terms of its unionized
employees even though its negotiations with the employees’
union over a new collective bargaining agreement had not
reached an impasse. On appeal, Hood River contends: (1) that
the Board erred in concluding that the parties were not at an
impasse, and (2) that even absent an impasse Hood River’s
unilateral conduct was lawful because the union had engaged
in unjustified delay tactics. Because substantial evidence
supports the Board’s decision, we deny Hood River’s petition
for review and grant the Board’s cross-application for
enforcement.
I.
Hood River operates a liquor distillery in Oregon. The
distillery employs approximately twenty-five unionized
employees represented by Teamsters Local Union No. 670
(“the Union”). In January 2019, the Union and Hood River
agreed to negotiate a new collective bargaining agreement.
Under the parties’ prior agreement, which ran from March
2015 to February 2019, Hood River paid in full for certain
unionized employees to receive health insurance through the
3
Oregon Processors Employees Trust Fund (“OPET”). Hood
River also provided a 401(k) match and permitted Union
representatives to access the distillery to meet with employees.
The parties’ negotiations over a new agreement focused on
these provisions and the issue of wages.
A.
Negotiations began in February 2019. During the first
bargaining session, the parties agreed to a three-year contract
term but were far apart on details. Among other things, the
Union wanted a 6% annual wage increase, a more generous
401(k) match, and to keep its members on their existing OPET
health plan. Hood River, by contrast, sought significant cuts to
the employees’ benefits. It proposed a three-year wage freeze
and unlimited discretion to change the 401(k)-match program.
Hood River also wanted the Union’s members to move from
OPET to the company-sponsored Cigna health plan. The
company explained that it needed to reduce costs because it
recently had sold its best-performing liquor brand, which made
the company unprofitable.
Before the parties’ next meeting, the Union evaluated the
company’s Cigna health plan and discussed the plan with its
members. When the parties met again on June 24, 2019, the
Union indicated that it was flexible on wages but firm on health
benefits — its members wanted to remain on OPET. The next
day, Hood River proposed that the Union’s members could
remain on OPET if, among other conditions, they agreed: (1)
to pay half of any OPET rate increases, and (2) to accept a
three-year wage freeze. In a counterproposal, the Union agreed
to a three-year wage freeze. But the Union wanted Hood River
to pay in full for any OPET rate increases and to maintain the
existing 401(k)-match program with no changes. Hood River’s
negotiating team expressed enthusiasm about the Union’s
4
proposal. They stated that it was a positive development, but
they needed to secure final approval from Hood River’s board
of directors. Based on that statement, the Union understood
that the parties had made a deal, subject to the board’s consent
to the Union’s 401(k) proposal.
On July 17, 2019, Hood River’s negotiating team met with
their CEO, Ron Dodge, who was also a member of the
company’s board of directors. Dodge rejected the Union’s June
25 proposal and told the company’s negotiators that it was
better to give in on wages while remaining firm on health
benefits. On July 22, 2019, Hood River’s negotiating team
informed the Union that the company had rejected its June 25
offer. The Union was stunned. In August, it held meetings with
its members to discuss the path forward. Following one visit
by Union representatives to Hood River’s distillery, Hood
River accused the Union of violating the existing agreement’s
union-access policy.
B.
After Hood River changed its negotiating strategy and
rejected the June 25 Union offer, a new phase of bargaining
began on September 27, 2019, when the parties met again.
After some back-and-forth, Hood River presented the Union
with an offer labeled “final.” The offer proposed to move the
Union’s members from OPET to the company’s health plan; in
return, the Union’s members would receive a 1% wage increase
in the second and third contract years, and the existing 401(k)-
match program would remain unchanged. In addition, Hood
River now sought changes to the union-access policy.
Furthermore, Hood River informed the Union that the company
was switching from its Cigna plan to a new plan provided
through Blue Cross Blue Shield. The Union was surprised and
said it would need additional time and information to evaluate
the Blue Cross plan.
5
On October 3, 2019, Hood River provided the Union with
information about the Blue Cross plan. The Union said that it
would ask its third-party benefits administrator to perform a
comparison between the OPET and Blue Cross plans. On
November 1, Hood River emailed the Union that five weeks
was “a reasonable amount of time” for the Union to conduct
the comparison and that Hood River wished to “finalize the
contract as soon as possible.” J.A. 668. “Therefore,” Hood
River wrote, “our last presented offer on September 27, 2019”
is our “last and final offer.” J.A. 668. The company gave the
Union until November 13 to accept or reject the offer. The
Union did not respond by that date.
On November 14, 2019, Hood River declared an impasse
and said that it would implement its September 27 offer on
January 1, 2020. The Union denied that the parties were at an
impasse. The Union explained that it was still awaiting the
health-plan comparison and that it would reach out to schedule
further bargaining sessions once it had the opportunity to
discuss the comparison with its members.
On December 11, 2019, Hood River again declared an
impasse. But the company said it was “willing to meet with
the union prior to” January 1. J.A. 688. A week later, the Union
explained that it had received the health-plan comparison and
was “in the process” of discussing the Blue Cross plan with its
members. J.A. 689. The Union proposed to hold bargaining
sessions after the holidays. A Hood River official later
admitted that the company’s threats of impasse were merely an
effort to “get back to the bargaining table.” J.A. 2094.
The parties ultimately agreed to hold two bargaining
sessions in January 2020. Both sessions were canceled,
however. The first cancelation was due to an ice storm. The
second scheduled session was canceled because one member
of Hood River’s bargaining team was recovering from surgery.
6
Hood River sought to reschedule for mid-February; the Union
offered availability in early March.
The parties met again on March 10, 2020. After some back
and forth, the Union proposed two options. Under the first
option, the Union’s eligible members would accept a wage
freeze but remain on OPET. Under the second option, the
Union’s eligible members would switch to the Blue Cross plan
in exchange for a 2% wage increase in all three contract years.
Although Hood River considered the proposed wage increase
excessive, it later remarked that it “was grateful for the Union’s
apparent willingness to show flexibility on health insurance
and believed that an agreement was within reach.” J.A. 903.
The parties’ final bargaining session on March 30, 2020,
took place by telephone due to the COVID-19 pandemic.
Before that session, Hood River emailed the Union (1) to
propose adding a fourth year to the contract; and (2) to propose
a 1% wage increase in the second, third, and fourth contract
years, in exchange for Union members switching to the Blue
Cross plan.
At the bargaining session, the Union agreed to a four-year
contract, a wage freeze in the first year, and for its members to
switch health plans. But the Union sought wage increases of
3%, 3.25%, and 3.5% in the second, third, and fourth contract
years, respectively. Although Hood River dismissed the
Union’s wage proposal as regressive, the Union explained —
and the Board later found1 — that the Union’s March 30
proposal would cost Hood River less money than its March 10
1
Although these findings were made by an administrative law
judge (“ALJ”), “[b]ecause the Board affirmed the ALJ’s findings, we
refer to those findings as made by the Board.” Thrifty Payless, Inc.
v. NLRB, 86 F.4th 909, 916 n.3 (D.C. Cir. 2023).
7
proposal because the wage freeze in the first year lessened the
compounding effect in subsequent years.
In its counterproposal, Hood River maintained its prior
position on wages but committed to specific health-plan
deductibles and out-of-pocket maximums. The Union
responded with a further concession on wages, reducing its
proposed wage increases by 0.25% in each contract year.
Despite this progress, Hood River emailed the Union
shortly after the bargaining session that the parties “appear to
be at loggerheads” on wages, the 401(k)-match program, and
the union-access policy, and that the company was “unwilling
to entertain any further concessions on the wages.” J.A. 885.
Hood River then presented its “last, final and best offer,” which
maintained the company’s prior position on wages and health
benefits but offered to accept the Union’s 401(k) proposal if the
Union accepted revisions to the union-access policy. J.A. 885.
The Union replied that the parties should meet in person
with a mediator. Hood River said that in-person mediation “is
not acceptable given . . . COVID-19” but that the company
would agree to virtual mediation. J.A. 884. The Union
responded that “[a]fter convening via teleconference today and
seeing where it landed us, . . . a meeting in person is absolutely
necessary.” J.A. 883.
Hood River then thanked the Union for “the progress the
parties made today on health care,” but said the parties “have
come as far as they can go on the other open matters” and that
the Union was engaging in “delay tactics . . . to maintain the
status quo.” J.A. 883. The Union “categorially denie[d]” Hood
River’s claim and noted that despite the company’s prior
impasse declarations, “the parties have reached a number of
Tentative Agreements on issues that the Employer previously
claimed impasse on.” J.A. 886.
8
C.
In early April 2020, both parties communicated with the
Federal Mediation and Conciliation Service. Union officials
were aware that federal mediators were not conducting in-
person mediations due to the pandemic, but Union officials
thought the pandemic would end quickly and in-person
mediation would soon resume.
On April 23, 2020, Hood River told the Union that its
continued insistence on in-person mediation was an unlawful
delay tactic, that the parties were at an impasse, and that the
company would unilaterally implement its March 30 offer on
May 1. Hood River said, however, it would “carefully
consider” any proposals from the Union “to see if they may
break the impasse.” J.A. 904–05. The Union again
emphatically denied that the parties were at an impasse.
Nevertheless, on April 27, 2020, Hood River instructed its
unionized employees to enroll in the Blue Cross plan by May
1, 2020. And, on May 1, Hood River unilaterally implemented
its March 30 offer.
Days later, the Union’s members went on strike. The
Union claimed that the strike was in response to an unfair labor
practice (“ULP”) by Hood River — specifically, the company’s
unilateral implementation of its March 30 offer before
negotiations had reached an impasse. Under settled principles
of labor law, “employees who engage in an unfair labor practice
strike are entitled to reinstatement to their former positions if
they wish to return to work at the conclusion of the strike, even
if the employer has hired replacements.” Spurlino Materials,
LLC v. NLRB, 805 F.3d 1131, 1137 (D.C. Cir. 2015). If, by
contrast, employees go on an “economic” strike, they “run the
risk of permanent replacement by new hires.” Gen. Indus.
Emps. Union, Local 42 v. NLRB, 951 F.2d 1308, 1311 (D.C.
9
Cir. 1991). Hood River, for its part, insisted that the strike was
economic.
In mid-May 2020, Hood River began hiring replacement
workers, mostly as temporary employees. In June 2020, Hood
River threatened publicly to permanently replace the striking
workers. A month later, the company followed through on its
threat and announced that it had permanently replaced twenty-
one strikers. The company said that it would reinstate returning
strikers only if there were open positions.
In August 2020, the striking workers offered to return to
work without conditions and demanded immediate
reinstatement. Hood River denied that those employees had
engaged in a ULP strike and claimed that because it had no
open positions, it was not required to immediately reinstate the
strikers. The Union filed ULP charges with the Board.
D.
Acting on the charges filed by the Union, the Board’s
General Counsel issued a complaint against Hood River,
alleging that the company had committed several ULPs.
The case was tried before an administrative law judge
(“ALJ”) who heard testimony from both parties over eleven
days in May and June 2021. In December 2021, the ALJ found
that Hood River violated the NLRA, including by unilaterally
implementing its March 30 offer absent an impasse. The ALJ
emphasized that “the parties made significant progress” during
their two bargaining sessions in March 2020. J.A. 425. The
ALJ also rejected Hood River’s assertion that it was privileged
to unilaterally implement its March 30 offer absent impasse
because the Union unreasonably delayed bargaining by
insisting on in-person mediation. The ALJ reasoned that
“[g]iven the uncertainty at the time about just how long the
Covid-19 pandemic would persist, I do not find that the
10
Union’s position was unreasonable.” J.A. 425. Hood River
appealed to the Board.
In August 2023, the Board affirmed the ALJ’s decision in
relevant part and found that Hood River committed six ULPs.
The Board also expanded the remedy fashioned by the ALJ to
include certain make-whole damages. Hood River timely
petitioned for review, and the Board filed a cross-application
for enforcement.
Hood River now challenges four of the six ULP
determinations made by the Board,2 and objects to the Board’s
expansion of the remedy. All four challenged ULP
determinations flow from the Board’s conclusion that Hood
River was not entitled to unilaterally implement its March 30
offer. Hood River therefore concedes that if we affirm that
conclusion and reject Hood River’s challenge to the remedy,
then the Board is entitled to enforcement of its entire order.
II.
“Our review of Board unfair labor practice determinations
is quite narrow.” Troutbrook Co. LLC v. NLRB, 107 F.4th 994,
1000 (D.C. Cir. 2024) (cleaned up). We “ordinarily defer to the
Board’s fact-finding as to the existence of a bargaining
impasse, unless the finding is irrational or unsupported by
substantial evidence.” Wayneview Care Ctr. v. NLRB, 664 F.3d
341, 348 (D.C. Cir. 2011) (cleaned up); see also 29 U.S.C.
§ 160(e) (directing courts to review the Board’s factual
2
In particular, Hood River challenges the Board’s determinations
that it violated the NLRA by: (1) unilaterally implementing its March
30 offer, (2) threatening to permanently replace workers who were
on strike in response to Hood River’s unilateral implementation of
that offer, (3) refusing to reinstate those workers upon their
unconditional offers to return to work, and (4) ceasing to collect dues
from employees’ paychecks under the expired agreement.
11
findings for substantial evidence). Indeed, “few issues are less
suited to appellate judicial appraisal than evaluation of
bargaining processes or better suited to the expert experience”
of the Board. Wayneview, 664 F.3d at 348 (cleaned up).
Substantial evidence is a deferential standard of review. It
requires only “enough relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Troutbrook
Co., 107 F.4th at 1000 (cleaned up). Thus, we need not “agree
that the Board reached the best outcome in order to sustain its
decisions.” Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929,
935 (D.C. Cir. 2011) (cleaned up). Rather, “we reverse the
Board only when the record is so compelling that no reasonable
factfinder could fail to find to the contrary.” Troutbrook Co.,
107 F.4th at 1000 (cleaned up). And we accept the Board’s
credibility determinations unless they are “hopelessly
incredible, self-contradictory, or patently unsupportable.”
Wayneview, 664 F.3d at 349 (cleaned up).
III.
Applying that deferential standard of review, we affirm the
Board’s decision. Substantial evidence supports the Board’s
conclusion that Hood River acted unlawfully in unilaterally
implementing its March 30 offer. Hood River, moreover, failed
to preserve its challenge to the remedy. We therefore deny
Hood River’s petition for review and grant the Board’s cross-
application for enforcement.
A.
Hood River first contends that it was entitled to
unilaterally implement its March 30 offer because negotiations
with the Union had reached an impasse. We disagree.
Under the NLRA, an employer must bargain in good faith
with its employees’ union over the terms and conditions of
employment. See 29 U.S.C. § 158(a)(5), (d). “An employer
12
violates this duty to bargain if” it “unilaterally” changes
employment terms “absent a final agreement or a bargaining
impasse.” TruServ Corp. v. NLRB, 254 F.3d 1105, 1113 (D.C.
Cir. 2001). “An impasse occurs only when both sides have
exhausted the prospects of reaching a deal and are at the end of
their rope” and “neither side is open to compromise,” “leaving
no realistic prospect that further discussions will be fruitful.”
Thrifty Payless, Inc. v. NLRB, 86 F.4th 909, 917 (D.C. Cir.
2023) (cleaned up). “[B]ecause the existence of an impasse is
a question of fact,” we review the Board’s determination
deferentially, evaluating only whether it was rational and
supported by substantial evidence. Wayneview, 664 F.3d at
348.
Substantial evidence supports the Board’s finding of no
impasse. During the final bargaining session on March 30,
both parties made significant concessions. Those “concessions
. . . support the Board’s view that . . . further bargaining might
have produced additional movement.” Thrifty Payless, 86
F.4th at 918 (cleaned up). On wages, Hood River offered to
add a fourth year to the contract and proposed a 1% wage
increase in that year. The Union, for its part, twice reduced the
wage increases it sought.3 On healthcare, the Union agreed to
switch its members to the company-sponsored Blue Cross plan.
3
Hood River asserts that the Union’s first wage proposal on
March 30 was regressive. But the Board carefully explained that the
Union’s proposal was not regressive, and Hood River gives us no
reason, besides its own say-so, to doubt the Board’s determination.
Although “the Board may not, either directly or indirectly, compel
concessions or otherwise sit in judgment upon the substantive terms
of collective bargaining agreements,” TruServ Corp., 254 F.3d at
1116 (cleaned up), it may determine whether one party is making
movement towards the other party’s position, which is exactly what
the Board did here, see Thrifty Payless, 86 F.4th at 918.
13
In exchange, Hood River committed to specific health-plan
deductibles and out-of-pocket maximums.
Even as Hood River declared an impasse on March 30, it
recognized that the parties had made headway and said it had
more room to give. The company thanked the Union for “the
progress . . . made today on health care.” J.A. 883. And it
proposed a further compromise: if the Union accepted Hood
River’s proposed revisions to the union-access policy, the
company would agree to the Union’s 401(k) proposal.
The Board thus reasonably determined that neither party
was at the end of its rope. Rather, the Board reasonably found
that Hood River impermissibly “cut[] off negotiations” “for its
own administrative convenience,” so it could move the
unionized employees to the company’s Blue Cross plan during
the company’s open enrollment period. Hood River Distillers,
372 N.L.R.B. No. 126, 4 (2023); see also Times Union, Capital
Newspapers, 356 N.L.R.B. 1339, 1354 (2011) (“[R]ather than
exploring whether the Union’s change in position could serve
as a basis to move the parties closer to an agreement . . . , the
Respondent declared impasse” in order to carry out layoffs by
its desired date “regardless of the state of negotiations.”).
Indeed, a manager for Hood River acknowledged that “since
May is our plan renewal month, it made sense for us to move
[employees to the new health plan on] May 1.” J.A. 1960.
Hood River’s reliance on Mike-Sell’s Potato Chip Co. v.
NLRB, 807 F.3d 318 (D.C. Cir. 2015) is misplaced. In Mike-
Sell’s, we explained that “if an employer remains firm in
collective bargaining as to one or more essential issues and
credibly declares a last offer in the negotiations,” “a union’s
failure to agree creates an impasse.” 807 F.3d at 324 (cleaned
up). But contrary to Hood River’s assertion, the company did
not remain firm on wages — it agreed in late March to add an
additional year with a 1% wage increase to the contract. Nor
14
did Hood River credibly declare a last offer in the negotiations.
As the Board reasonably determined, Hood River’s “repeated
declarations of impasse” throughout late 2019 and early 2020,
even as the parties continued to make progress in the
negotiations, “prevented the Union from understanding when
and if [Hood River] was truly at the end of its rope.” Hood
River Distillers, 372 N.L.R.B. No. 126, 4; see also Mike-Sell’s,
807 F.3d at 324 n.5 (“Of course, if an employer repeatedly
claimed different positions as a ‘last offer,’ it would not be
credible.”). In short, substantial evidence supports the Board’s
finding of no impasse.
B.
Even absent an impasse, Hood River claims it was entitled
to unilaterally implement its March 30 offer because the Union
engaged in unjustified delay tactics during the pandemic.
“Although a negotiating party generally may not unilaterally
impose contract terms without first bargaining to impasse, the
Board has recognized an exception when, in response to one
party’s ‘diligent and earnest efforts to engage in bargaining,’
the other party ‘insists on continually avoiding or delaying
bargaining.’” Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d
227, 235 (D.C. Cir. 1996) (quoting M & M Bldg. & Elec.
Contractors, Inc., 262 N.L.R.B. 1472, 1472 (1982)). The
Board has found this exception satisfied when a bargaining
party “purposely obstruct[s] negotiations without any
defensible justification” over a period of multiple months. See
Hood River Distillers, 372 N.L.R.B. No. 126, 4 n.12 (collecting
cases). The party seeking to invoke this exception bears the
burden of establishing that the other party engaged in
unjustified delay tactics. See id.; see also Vincent Indus.
Plastics, Inc. v. NLRB, 209 F.3d 727, 734 (D.C. Cir. 2000).
Before the Board, Hood River argued that “the Union’s
insistence on in-person mediation from late March to mid-April
15
2020 at the beginning of the Covid-19 pandemic” was an
unjustified delay tactic. Hood River Distillers, 372 N.L.R.B.
No. 126, 4 n.12. The Board found, however, that Hood River
failed to carry its burden. Id. The Union had offered a good-
faith reason for its insistence on in-person mediation. It told
Hood River that “after convening via teleconference today and
seeing where it landed us,” in-person mediation “is absolutely
necessary.” J.A. 883. And that position was not unreasonable
where, despite the Union’s significant concessions at the virtual
bargaining session on March 30, Hood River accused the
Union of regressive bargaining and again made hollow claims
of impasse.
Although federal mediators were unwilling to mediate in
person at that early stage of the pandemic, Union officials
testified that they believed the pandemic would end quickly
and in-person mediation would resume. The Board credited the
Union’s explanations. See Hood River Distillers, 372 N.L.R.B.
No. 126, 4 n.12. And because those credibility determinations
are not “hopelessly incredible, self-contradictory, or patently
unsupportable,” we have “no basis” to disturb them. See
Wayneview, 664 F.3d at 348 (cleaned up); see also Thrifty
Payless, 86 F.4th at 917 n.5 (“Only the starkest error could
justify setting [a credibility determination] aside.”);
Progressive Elec., Inc. v. NLRB, 453 F.3d 538, 549 (D.C. Cir.
2006) (“Our review of the Board’s motive determinations . . .
is especially deferential.” (cleaned up)).
Hood River offers its own interpretation of the Union’s
motivations. It contends that the Union delayed bargaining “to
extend the [healthcare] benefits . . . enjoyed by Union members
under the long-expired agreement.” Hood River Br. 40. It
points out that the Union declined Hood River’s earlier offer to
engage a mediator and only insisted on in-person mediation
after the pandemic had made such mediation impossible.
Although that is one way to view the Union’s actions, record
16
evidence supports the contrary view adopted by the Board.
Thus, “while it is possible that” the Union’s insistence on in-
person mediation was a bad-faith delay tactic, “there is
certainly no evidence in the record that would require the
Board to reach such a conclusion.” Serramonte Oldsmobile,
Inc., 86 F.3d at 235 (emphasis added). Accordingly, we must
defer to the Board. See Troutbrook Co., 107 F.4th at 1000 (“We
reverse the Board only when the record is so compelling that
no reasonable factfinder could fail to find to the contrary.”
(cleaned up)).
C.
Our dissenting colleague would grant Hood River’s
petition on the ground that the Union engaged in unjustified
delay tactics both before and during the pandemic, over the
course of the parties’ dealings from February 2019 to April
2020. In our view, that argument is not properly before us
because Hood River did not squarely present and adequately
develop it before the Board. See 29 U.S.C. § 160(e) (“No
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.”). We also believe
that the argument fails on its merits.
Before the Board, Hood River argued that the Union
engaged in unjustified delay in April 2020 when it
“demand[ed] preconditions to bargaining that were . . .
impossible due to COVID-19 restrictions.” J.A. 334. The
Board thus understood Hood River’s invocation of the dilatory-
tactics exception to be based on “the Union’s insistence on in-
person mediation” during the early weeks of the pandemic. See
Hood River Distillers, 372 N.L.R.B. No. 126, 4 n.12.
That understanding is confirmed by Hood River’s filing
before the Board. Hood River’s filing devoted twelve pages to
17
the dilatory-tactics exception and argued that the exception was
satisfied based on the Union’s demand for in-person mediation
during the early pandemic. See J.A. 332–43. Only three stray
sentences in that lengthy disquisition allude to any pre-
pandemic delay by the Union. See J.A. 334, 338. Such
“cursory” assertions failed to develop the distinct argument that
the Union’s purported pre-pandemic delay also contributed to
its alleged dilatory tactics, and therefore were “insufficient to
preserve the issue for appeal.” Parsippany Hotel Mgmt. Co. v.
NLRB, 99 F.3d 413, 419 (D.C. Cir. 1996); cf. Schneider v.
Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (“It is not
enough to merely mention a possible argument in the most
skeletal way, leaving the court to do counsel’s work, create the
ossature for the argument, and put flesh on its bones. . . . Judges
are not expected to be mindreaders. Consequently, a litigant
has an obligation to spell out its arguments squarely and
distinctly . . . .”).
Our dissenting colleague disagrees with our conclusion
that any dilatory-tactics argument that relies on pre-pandemic
delay was not squarely presented and adequately developed
before the Board. Dissent 9. But the dissent does not dispute
that the Board understood Hood River’s dilatory-tactics claim
to rely solely on the Union’s conduct during the pandemic. See
Dissent 11. Nor does the dissent dispute that Hood River
alluded to pre-pandemic delay only briefly and sporadically in
the twelve-page section of its brief before the Board that
addressed the dilatory-tactics exception. See Dissent 10.
Instead, our dissenting colleague points to a different section of
Hood River’s 204-page brief, which discussed pre-pandemic
delay in a different legal context. Dissent 10–11. That is
insufficient to preserve the issue for appeal. To preserve an
argument that the dilatory-tactics exception was satisfied based
on pre-pandemic delay, Hood River had to present that
argument “squarely and distinctly, or else forever hold its
peace.” Schneider, 412 F.3d at 200 n.1. The Board is
18
obviously not required to “sift pleadings and documents to
identify arguments that are not stated with clarity by a
petitioner.” New England Pub. Commc’ns Council v. FCC, 334
F.3d 69, 79 (D.C. Cir. 2003) (cleaned up).
Even on appeal, Hood River has neither squarely presented
nor fully developed the argument that the dilatory-tactics
exception is satisfied based on pre-pandemic delay. Instead,
Hood River again focuses its dilatory-tactics claim on the
Union’s conduct during the pandemic. While the Board does
not contend that any claim based on pre-pandemic delay has
been forfeited, the Board apparently is unsure whether Hood
River has even made such a claim. A single sentence in the
Board’s brief states only that “[t]o the extent that Hood River
claims the Union’s insistence on in-person bargaining was a
culmination of purported union delay tactics,” that notion “is
fully refuted.” Board Br. 47. We will not fault the Board for
failing to argue the forfeiture of a claim that was not clearly
raised.
But even if this unpreserved argument were properly
before us, we would have little trouble rejecting it. Our
precedents leave no doubt that substantial evidence is a
deferential standard of review. See Island Architectural
Woodwork, Inc. v. NLRB, 892 F.3d 362, 370 (D.C. Cir. 2018)
(“The substantial evidence standard requires ‘a very high
degree of deference.’” (quoting Bally’s Park, 646 F.3d at 935));
see also Biestek v. Berryhill, 587 U.S. 97, 103, 107 (2019)
(explaining that under the “deferential substantial-evidence
standard,” “the threshold for . . . evidentiary sufficiency is not
high”). Under that deferential standard, we must “affirm the
Board’s findings unless no reasonable factfinder could find as
[the Board] did.” Wendt Corp. v. NLRB, 26 F.4th 1002, 1008
(D.C. Cir. 2022) (cleaned up). “[E]ven if we would have come
to a different conclusion in the first instance,” we are not free
19
to “substitute our own judgment” for the Board’s. Progressive
Elec., 453 F.3d at 543.
Here, we respectfully disagree with our dissenting
colleague that it is impossible for a reasonable factfinder to
reach the same conclusion as the Board. The dissent appears
to conclude that the Union must have intentionally delayed
negotiations, and there can be no other explanation for its
behavior, merely because the parties held only seven
bargaining sessions over fourteen months, and the Union often
sought to schedule each bargaining session a month later than
Hood River proposed. Dissent 5–7. And yet, there are myriad
possible explanations for that state of affairs, and we should
neither act as factfinders ourselves nor substitute our judgment
for that of the Board. Although the Board did not address the
exact argument made by our colleague — because Hood River
did not make that claim — substantial evidence supports the
Board’s conclusion that the Union did not engage in dilatory
tactics.
Contrary to the dissent’s narrative, the Union was not
alone responsible for the duration of the negotiations and the
delays experienced along the way. As the Board found, after
five months of productive bargaining, the parties had made
significant progress and appeared to reach a deal, subject to
final approval by Hood River’s leadership. It was Hood
River’s negotiating team that took nearly a month to discuss
the deal with the company’s CEO. And then, Hood River’s
CEO rejected the deal and told the negotiating team to change
its negotiating strategy altogether, which set the negotiations
back to square one. Hood River’s negotiating team took
another week to communicate the company’s rejection to the
Union by email.
When the parties returned to the negotiating table in late
September 2019, a new phase of bargaining had begun. At the
20
September bargaining session, Hood River surprised the Union
by announcing that the company would switch healthcare
plans. The Union explained that it would need time to evaluate
the new plan and discuss the plan with its members. The parties
eventually agreed to meet again after the holidays in January
2020, but both of those sessions were canceled through no fault
of the Union. The parties then held two productive bargaining
sessions in March 2020 before the pandemic hit.
While it is possible that the Union engaged in some
intentional delay, it is certainly not the only reasonable
interpretation of the above-described events. Although the
dissent thinks the Union should have evaluated the Blue Cross
plan more quickly and scheduled bargaining sessions more
promptly, Dissent 6–7, the Board explained that Hood River
“was seeking drastic changes to the status quo” and such
changes take time to sort out, Hood River Distillers, 372
N.L.R.B. No. 126, 3. Because a reasonable factfinder plainly
could reach the Board’s determination, we have no choice but
to affirm it, based on the applicable standard of review.
D.
Finally, we decline to consider Hood River’s contention
that “[t]he Board erred by expanding the ALJ’s award of
‘make-whole’ damages.” Hood River Br. 44. That argument
is not properly before us because Hood River never made it to
the Board. See 29 U.S.C. § 160(e).
Just recently in Thrifty Payless, we explained that because
a “party can challenge the Board’s sua sponte amendment to a
remedy by moving for reconsideration of the Board’s
decision,” “a party must give the Board the first go at resolving
such arguments.” 86 F.4th at 921. Hood River concedes that
it “did not seek reconsideration from the Board after [the
Board] issued its updated remedy.” Reply Br. 18 n.8. Hood
River’s “failure to do so prevents consideration of the question
21
by the courts.” Woelke & Romero Framing, Inc. v. NLRB, 456
U.S. 645, 666 (1982).
Hood River argues that it did not need to seek
reconsideration because it objected before the Board “to the
ALJ’s award of remedies.” Reply Br. 18 n.8. But the
company’s challenge before us is different. It objects not to the
remedy fashioned by the ALJ, but to the Board’s sua sponte
expansion of that remedy. See Hood River Br. 44 (“The Board
erred by expanding the ALJ’s award of ‘make-whole’ damages
. . . .”). Because Hood River never made that objection to the
Board, we cannot consider it. See 29 U.S.C. § 160(e). And to
the extent Hood River attempts in its reply brief to recast its
claim as a challenge to the ALJ’s original remedy, “[t]hat will
not suffice.” Fore River Residents Against the Compressor
Station v. FERC, 77 F.4th 882, 889 (D.C. Cir. 2023).
“Arguments raised for the first time in a reply brief are
forfeited.” Id.
* * *
Because substantial evidence supports the Board’s
decision, we deny the petition for review and grant the Board’s
cross-application for enforcement.
So ordered.
WALKER, Circuit Judge, dissenting:
Federal labor law requires unions and employers to
bargain in good faith. Here, the overwhelming weight of
evidence shows that the Union failed to meet that standard.
Because the majority reaches a different conclusion, I
respectfully dissent.
I. The Union Met With Hood River Only 7 Times In 14
Months.
Hood River Distillers sells whiskey. The Teamsters Union
represents about 25 of Hood River’s employees. In February
2019, Hood River and the Union began negotiating a new
collective bargaining agreement.
In prior negotiations, the two parties reached agreements
quickly. But this time, negotiations lasted 14 months and
ended without an agreement. During those 14 months, the
Union rejected more than 70 proposed dates for meeting with
Hood River. Instead, the parties met only 7 times.
From the start, the Union stalled. After the first and second
bargaining sessions in February 2019, the Union spent a month
ignoring Hood River’s requests to meet in April and May.
When the Union finally responded, it proposed dates in June.
After two meetings in June 2019, the Union continued to
stall. It did not respond when Hood River asked to meet in
August. Nine days later, when Hood River proposed new dates
for August, the Union rejected them without providing any
alternative dates. Nearly three weeks after that, the Union
proposed dates for late September 2019 — three months after
the parties’ last meeting in June.
Shortly after the September 2019 meeting, in early
October, Hood River asked for the Union’s availability. Again,
the Union declined. According to the Union, it needed more
2
time for a third party to compare the parties’ respective health
plans.
Then, in late October, Hood River checked in again. Still,
the Union refused to set a bargaining date. Instead, it
demanded more time to compare the two health plans.
In early November 2019, Hood River reached out again.
And once again, the Union ignored Hood River. Finally, when
Hood River declared an impasse nearly two weeks later, the
Union responded. But even then, while denying any impasse,
the Union still refused to provide availability — citing the need
for even more time to compare the health plans.
When the Union completed a comparison of the health
plans in late November 2019, the Union did not reach out to
Hood River to propose negotiating dates. Rather, Hood River,
amid the radio silence, requested dates again on December 11.
And even after that, the Union stalled for time. The Union said
it needed more time to review the comparison. By that point,
the comparison had been complete for nearly three weeks, and
the project of comparing and reviewing the plans had been
ongoing for nearly three months.
The Union told Hood River it would not meet until January
2020 — 13 weeks after it started comparing the health plans.
Then, after unforeseen circumstances prevented the parties
from meeting in January — a winter storm made travel unsafe,
and Hood River’s negotiator had a medical emergency — the
Union refused Hood River’s request to meet in February.
Instead, it offered dates for March.
In March 2020, the Union sat down at the negotiating table
for the first time in nearly six months. The parties met again
later that month. When that meeting did not lead to an
3
agreement, the Union suggested mediation — and insisted that
the mediation be in person.
That insistence mattered because it followed the recent
onset of the COVID-19 pandemic, when little else was
happening in person. What’s more, Hood River had itself
proposed mediation about a month earlier — before the
pandemic lockdowns began — only to be rebuffed by the
Union. Now, with pandemic-era restrictions in place, the
Union changed its mind. And though Hood River agreed to
mediate, it pointed out the obvious — any such meeting needed
to be done remotely. Yet the Union maintained that an in-
person meeting was “absolutely necessary.”1
For weeks after that, the Union refused to schedule a
virtual meeting. So in late April 2020, Hood River declared
impasse and informed the Union it would implement its final
offer. That was essentially the same offer Hood River had
made in September 2019, though it extended the offer for an
additional year because the negotiations had by then lasted 14
months.
Those 14 months profited the Union employees. Because
Hood River had sold off a whiskey brand that previously
generated 70% of its income, Hood River sought slower wage
growth and manageable healthcare costs. By stalling for 14
months, the Union staved off those changes.2
1
JA 883.
2
Plus, Hood River had already gifted to every employee an unusual
and generous transaction bonus equal to six months’ pay after the
whiskey brand sale, regardless of any employee’s contribution to the
sale process. Id. at 1793.
4
Hood River unilaterally implemented its final offer in May
2020. The Union went on strike. The National Labor Relations
Board’s general counsel pursued unfair labor practice charges
against Hood River and won before an administrative law
judge. The NLRB affirmed. Hood River petitioned for review,
and the Board cross-applied for enforcement.
II. An Employer May Unilaterally Alter Employment
Terms If A Union Engages In Dilatory Bargaining Tactics.
The National Labor Relations Act prohibits unfair labor
practices.3 It is an unfair labor practice for a union or an
employer “to refuse to bargain collectively.”4 So, in general,
an employer must not unilaterally alter “wages, hours, and
other terms and conditions of employment.”5 But an employer
may do so if “the union engages in dilatory tactics to delay
bargaining.”6
In its advocacy to the NLRB, Hood River argued that it
lawfully altered conditions of employment without an
agreement because the Union’s tactics were dilatory. The
NLRB disagreed. We review that finding for substantial
evidence.7
Substantial evidence “means such relevant evidence as a
reasonable mind might accept as adequate to support a
3
29 U.S.C. § 158(a), (b).
4
Id. § 158(a)(5), (b)(3).
5
Id. § 158(a), (d).
6
Thrifty Payless, Inc. v. NLRB, 86 F.4th 909, 919 (D.C. Cir. 2023).
7
29 U.S.C. § 160(e), (f).
5
conclusion.”8 That has been understood to be a deferential
standard of review.9 But it does not require us to ignore
economic realities like the Union’s incentive to preserve the
status quo rather than reach an agreement with Hood River. So
when we consider the record in this case, we must ask whether
enough evidence supports the NLRB’s finding that the Union
resisted the temptation to delay for the sake of delay.10
III. The NLRB’s Rejection Of Hood River’s Dilatory-
Tactics Defense Lacked Substantial Evidence.
Substantial evidence does not support the NLRB’s finding
that the Union bargained in good faith. At nearly every
opportunity, the Union delayed the bargaining process. To
excuse that delay, the Union often gave pretextual reasons. At
other times, it gave Hood River no reasons at all.
Begin with the fact that the parties met only 7 times over
14 months to resolve a relatively simple contract dispute
8
Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197, 229
(1938).
9
Cf. Robert P. Charrow & Laura M. Klaus, Substantial
Evidence — A Hodgepodge of Ambiguous Meanings Leading to
Questionable Deference, Yale J. Reg.: Notice & Comment (Aug. 5,
2024), https://perma.cc/7RMQ-F8W8.
10
Cf. Southwestern Portland Cement Co., 289 N.L.R.B. 1264, 1273
(1988) (“[T]he Union was content to sail along with unit employees
operating under the terms and conditions of employment of the
expired contract. This they were entitled to do unless the Employer
bargained to impasse and thereafter lawfully implemented; unless the
Union, by its bargaining tactics, would be deemed to have been
engaged in stalling tactics that would invoke the narrow employer
privilege to lawfully implement without impasse . . . .” (emphasis
added)).
6
involving about 25 employees. During that time, Hood River
says it proposed “more than 80 bargaining dates.”11 Even
granting that circumstances beyond the Union’s control
accounted for the delay of one month, the Union met with Hood
River fewer times in about a year than some negotiators (who
reached impasse) met in a few months.12
The Union lacked plausible reasons — other than
intentional delay — for rejecting more than 70 of Hood River’s
proposed bargaining dates. Many times, the Union simply
ignored Hood River’s requests. It ghosted Hood River for a
month when Hood River sought to meet in April and May
2019. Then it ghosted Hood River again when Hood River
wanted to meet in August 2019. Later, when Hood River once
again proposed August dates, the Union rejected those dates
and waited nearly three more weeks without suggesting any
alternatives.
When the Union did schedule meetings, it almost
invariably insisted on meeting a month later than any dates
Hood River proposed. When Hood River wanted to meet in
11
Petitioner Br. 29; see also JA 504, 518, 591, 594-95, 602, 664, 674,
692, 701-02, 884, 889, 891.
12
See, e.g., TruServ Corp. v. NLRB, 254 F.3d 1105, 1110 n.3, 1118
(D.C. Cir. 2001) (impasse after 8 meetings in 6 weeks); AMF
Bowling Co. v. NLRB, 63 F.3d 1293, 1296-97, 1301 (4th Cir. 1995)
(impasse after 7 meetings in about 6 weeks); NLRB v. Gibraltar
Industries, Inc., 653 F.2d 1091, 1094-96 (6th Cir. 1981) (impasse
after 2 meetings in 8 weeks); I. Bahcall Industries, Inc., 287
N.L.R.B. 1257, 1262 (1988) (impasse after 6 meetings in 6 weeks);
Hamady Bros. Food Markets, Inc., 275 N.L.R.B. 1335, 1336-38
(1985) (impasse after 5 meetings in nearly 9 weeks); McAllister
Bros., Inc., 312 N.L.R.B. 1121, 1122, 1125-29 (1993) (impasse after
8 meetings in nearly 11 weeks).
7
April or May 2019, the Union (eventually) proposed June.
When Hood River wanted to meet in August 2019, the Union
(eventually) proposed September. When Hood River wanted
to meet in December 2019, the Union (eventually) proposed
January 2020. And when Hood River wanted to meet in
February 2020, the Union proposed — you guessed it,
Kreskin — March.
When the Union gave a reason for its delay, it didn’t give
a very good reason. From early October 2019 until January
2020, the Union demanded more and more time to compare the
proposed health plans. But it doesn’t (or shouldn’t) take a
union that long to compare two health plans.13 Nor is it obvious
why the Union needed a third party to compare them. Many
Americans have only two weeks to compare health plans
during a typical open enrollment period.14 Considering that
comparing health plans is supposedly among a union’s core
competencies, “a reasonable mind” should view the Union’s
excuse as a dilatory tactic that successfully thwarted a meeting
with Hood River in October, November, and December 2019.15
13
Cf. JA 1920 (testimony of Hood River’s representative) (“Well, if
you’re compl — comparing the two plan summaries and you already
had one done, with not a lot of changes to the second one of our
insurance, I think anybody could’ve done it in an afternoon, quite
frankly. I could’ve done it in an afternoon.”).
14
Justin Held, What is a Typical Open Enrollment Period? 10 Stats
for Your Plan to Consider, International Foundation of Employee
Benefit Plans (Oct. 6, 2020), https://perma.cc/CK4D-Z3QT.
15
Consolidated Edison, 305 U.S. at 229.
8
Delay is also the most likely reason the Union insisted on
in-person mediation once COVID-19 lockdowns began in
March 2020. Recall that the Union turned down Hood River’s
request for mediation in February 2020. Then, once the
pandemic made in-person mediation next-to-impossible, the
Union suddenly saw it as “absolutely necessary.”16
To be sure, if the Union’s demand for in-person mediation
in March 2020 were Hood River’s only evidence of delay,
perhaps substantial evidence would support the NLRB’s
decision in this case. But the Union’s eleventh-hour revelation
on mediation — that it suddenly needed what the pandemic
suddenly precluded — was just one of many ingredients in the
Union’s cocktail of dilatory tactics. Other evidence includes
the Union’s incentive for delay, the length of the negotiations
compared to the parties’ history of quick bargaining, and the
Union’s frequent failures to provide plausible reasons for
refusing to negotiate in a timely manner.
If the Union was “surprised” by Hood River’s September 2019
change of health plan administrators, Majority Op. at 4, 20, such
surprise was unjustified because Hood River informed the Union
about that potential change during the first bargaining session in
February 2019. JA 408.
16
Id.
In a footnote, the NLRB accepted the Union’s claim that it believed
the pandemic-related restrictions would soon lift, making it
reasonable to insist on a federal mediator. And perhaps the Union
did believe the pandemic would end soon. But even so, the Union
knew that its demand for in-person mediation would cause at least
some delay. Cf. Southwestern Portland Cement, 289 N.L.R.B. at
1275-76 (the Union’s “insistence on a Federal mediator was
pretextual and advanced for the purpose of impeding collective
bargaining” (emphasis omitted)).
9
Therefore, to the extent the NLRB affirmed credibility
findings related to the Union’s motives for demanding in-
person mediation, “those determinations are hopelessly
incredible” and “patently unsupportable.”17 Put differently,
“no reasonable factfinder could agree with the Board.”18 The
Union was “guilty of systematically evasive and dilatory
bargaining that permitted” Hood River “to lawfully implement
its last offer.”19
IV. Hood River Preserved The Full Scope Of Its Dilatory-
Tactics Defense.
The majority asserts that Hood River failed to “adequately
develop” its argument that “the Union engaged in unjustified
delay tactics both before and during the pandemic, over the
course of the parties’ dealings.”20 That contention, not raised
by the NLRB, is belied by the record. Hood River lodged an
17
Wayneview Care Center v. NLRB, 664 F.3d 341, 349 (D.C. Cir.
2011) (quoting United Food & Commercial Workers Union Local
204 v. NLRB, 447 F.3d 821, 824 (D.C. Cir. 2006)); cf. M & M
Contractors, 262 N.L.R.B. 1472, 1478 (1982) (the employer “made
diligent and earnest efforts to initiate negotiations” for 7 months but
was “met with silence and with actions that gave it a reasonable basis
for concluding that it was ‘getting the runaround’”); AAA Motor
Lines, Inc., 215 N.L.R.B. 793, 794 (1974) (labor union held the
employer’s proposals “for almost 2-1/2 months” but “refused to meet
and bargain”).
18
T-Mobile USA, Inc. v. NLRB, 90 F.4th 564, 574 (D.C. Cir. 2024)
(cleaned up).
19
Southwestern Portland Cement, 289 N.L.R.B. at 1276.
20
Majority Op. at 16 (citing 29 U.S.C. § 160(e) (“No objection that
has not been urged before the Board . . . shall be considered by the
court”)).
10
exception to the administrative law judge’s dilatory-tactics
finding, and Hood River included a robust argument against
that finding in its accompanying legal brief to the NLRB.
In that brief, Hood River argued that the COVID-19
debacle “was just the latest episode in the Union’s 14-month
pattern of avoidance and delay.”21 Later in the same brief,
Hood River argued: “After fourteen long months, much of it
spent by [Hood River] waiting on bargaining dates or having
bargaining sessions cancelled by the Union, the parties had
reached the apex of either an agreement or impasse.”22 In
addition, Hood River argued that the “extended duration of the
bargaining history between [Hood River] and the Union”
supported a finding of bad faith.23
All this followed Hood River’s lengthy description of the
Union’s bad faith in the preceding section of its brief to the
NLRB:
• “The Union engaged in a pattern of delay and surface
bargaining”;
• “[T]he ALJ failed to recognize that for over a year the
Union engaged in bad faith surface bargaining designed
to forestall impasse and in no way move the parties
closer to agreement”;
• “The Union’s avoidance of scheduling bargaining dates
was in bad faith”;
21
JA 334.
22
Id. at 338.
23
Id.
11
• “[T]he Union consistently either ignored [Hood
River’s] requests to bargain or took weeks or months to
respond”;
• “One cannot view this record in its totality and come to
any conclusion other than that the Union intentionally
delayed bargaining to avoid impasse and the
concessions that would come with it – and all of this
before the Union used the pandemic as an excuse to
delay bargaining indefinitely”;
• “The Union’s six-month delay after the September 27,
2019 bargaining session—when it walked out without
notice after receiving the employer’s proposal—is truly
astonishing.”24
That all adds up to more than a “cursory exception before
the Board to the ALJ’s ruling.”25 It was an exception clearly
and repeatedly “urged before the Board.”26 And to the extent
the NLRB shared the majority’s misunderstanding of Hood
River’s argument and failed for that reason to adequately
address it, that shouldn’t mean the NLRB wins; it should mean
the NLRB loses.
24
Id. at 295-300.
25
Parsippany Hotel Management Co. v. NLRB, 99 F.3d 413, 419
(D.C. Cir. 1996).
26
29 U.S.C. § 160(e).
12
V. Conclusion
Hood River preserved its entire dilatory-tactics defense.
The NLRB’s rejection of that defense lacked substantial
evidence. I would therefore grant Hood River’s petition for
review and deny the NLRB’s cross-application for
enforcement.27
27
Hood River also challenges the NLRB’s finding that the parties
had not reached a valid impasse. I have doubts about the soundness
of the NLRB’s reasoning regarding impasse. Courts have affirmed
impasse occurring in as few as six weeks; here, the parties
“bargained” for sixty. See, e.g., TruServ, 254 F.3d at 1105, 1110 n.3,
1118 (D.C. Cir. 2001) (impasse after 8 meetings in 6 weeks). And
the NLRB has identified no judicial opinion finding that an employer
unlawfully declared impasse after the parties bargained for at least
14 months. Oral Arg. Tr. 23-24. But because the NLRB lacked
substantial evidence to deny Hood River’s dilatory-tactics defense, I
would grant Hood River’s petition without addressing impasse.
Separately, I agree with the majority that we cannot consider Hood
River’s objection to the NLRB’s sua sponte award of “make-whole”
damages because Hood River failed to move for reconsideration of
that ruling. 29 U.S.C. § 160(e), (f); Woelke & Romero Framing, Inc.
v. NLRB, 456 U.S. 645, 666 (1982).