Alwin Manufacturing Co. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 1999 Decided September 28, 1999

No. 98-1432

Alwin Manufacturing Co., Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

United Steelworkers of America, AFL-CIO/CLC,

Intervenor

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

John R. Cernelich argued the cause for petitioner. With

him on the briefs was Scott M. Loomis. William E. Cough-

lin entered an appearance for petitioner.

Rachel I. Gartner, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the

brief were Linda R. Sher, Associate General Counsel, Aileen

A. Armstrong, Deputy Associate General Counsel, and Mar-

garet A. Gaines, Supervisory Attorney.

Craig Becker argued the cause for intervenor. With him

on the brief were Carl B. Frankel, Daniel M. Kovalik, Larry

Engelstein and James B. Coppess.

Before: Wald, Silberman and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: Alwin Manufacturing Co., Inc. ("Al-

win" or "the company") unilaterally instituted minimum pro-

duction standards and changed its vacation scheduling policy

during the pendency of a collective bargaining agreement it

had with the United Steelworkers of America, AFL-CIO/

CLC ("the union"). The National Labor Relations Board

("the Board") found Alwin's unilateral actions to be unfair

labor practices under the National Labor Relations Act ("the

Act"). The Board's decision, however, did not issue until

after the applicable collective bargaining agreement ("CBA")

had expired. Before the Board's decision issued, Alwin and

the union engaged in extensive but ultimately unsuccessful

negotiations over a new CBA. At the expiration of the CBA,

the union went on strike, and Alwin implemented the terms of

its final offer as the conditions of employment at its plant.

The Board found in a second proceeding that Alwin violated

the Act by unilaterally implementing its final offer, and by

treating the striking workers as economic strikers, rather

than unfair labor practice strikers.

The primary question in this case is whether the Board

properly concluded that the existence of the original unfair

labor practices causally contributed to the parties' inability to

reach a new collective bargaining agreement. In addition, we

must consider whether there is substantial evidence in the

record to support the Board's conclusion that the workers

were engaged in an unfair labor practice strike, and whether

Alwin sufficiently brought to the attention of the Board its

objections to the remedy proposed by the Administrative Law

Judge ("ALJ"), which is a prerequisite to judicial review

under section 10(e) of the Act.

We hold that the Board's findings and conclusions are

supported by substantial evidence on the record, and that the

company did not properly take an exception to the remedy

proposed by the ALJ. Accordingly, we deny Alwin's petition

for review and grant the Board's cross-application for en-

forcement of its order.

I. Background

Alwin is a closely-held corporation located in Green Bay,

Wisconsin that manufactures metal dispensers for paper tow-

els, tissues, and napkins. The United Steelworkers of Amer-

ica has represented Alwin's employees since the early 1960s;

the bargaining unit consists of approximately 123 employees.

Alwin and the union were parties to a series of collective

bargaining agreements, one of which covered the period from

March 1, 1991 through February 28, 1994.

In June 1992, management informed the union that it

wished to alter the vacation scheduling policy. Following

some discussion, but without the union's agreement, Alwin

implemented a new policy in which vacation requested more

than three weeks in advance would be scheduled according to

"first come, first served," rather than according to seniority.1

On September 21, 1992, management informed the union

that, as of the following day, certain jobs would be subject to

minimum production standards. On September 23, 1992,

Alwin began disciplining workers for failing to meet the

standards.

Shortly thereafter, the union filed unfair labor practice

("ULP") charges with the Board, alleging that the unilateral

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1 In addition, the company would set a maximum of people who

could take vacation on any given day, and employees would only be

eligible to schedule on the "first come, first served" basis if they

had already made a financial commitment to the vacation when they

requested the time off.

implementation of these policies violated sections 8(a)(1) and

(5) of the Act. An ALJ heard the case in Spring 1993 and

issued a decision on April 27, 1994, finding that Alwin had

committed ULPs. The Board affirmed the ALJ's decision

and adopted his proposed order on July 28, 1994. Alwin Mfg.

Co., 314 N.L.R.B. 564 (1994) (Alwin I), enforced, 78 F.3d 1159

(7th Cir. 1996). The company resisted complying with the

order and the Board petitioned the Seventh Circuit for en-

forcement. The court of appeals found that Alwin's argu-

ments against enforcement were frivolous and enforced the

order. NLRB v. Alwin Mfg. Co., 78 F.3d 1159, 1163 (7th Cir.

1996).2

As of Fall 1993, there had been a hearing on the ULP

charges but no decision, and Alwin continued to implement

the new vacation policies and production standards. The

CBA was scheduled to expire on February 28, 1994. In

December 1993, the parties began to negotiate over a new

CBA. There were fourteen sessions held, with the final one

occurring on February 28, 1994.

The parties were far apart on a host of issues, including the

scope of the management rights clause, changes in vacation

policy, use of temporary workers, and wage and benefit

concessions. However, the company's insistence on the re-

tention of its unilaterally adopted production standards was

one of the primary issues on which the parties disagreed.

Alwin had implemented hourly quotas for different jobs in the

plant, and failure to meet those quotas resulted in warnings,

temporary layoffs, and ultimately discharge.3 The company

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2 The Seventh Circuit also noted that the ULP charges should not

have been a surprise to Alwin, since "[f]ew topics are more central

to the relationship between an employer and its union-represented

employees than vacation policy and performance expectations." 78

F.3d at 1160. The court of appeals subsequently awarded the

Board double costs pursuant to Rule 38 of the Federal Rules of

Appellate Procedure.

3 There was testimony before the ALJ that by February 28, 1994,

there were 60-70 grievances pending on production standards and

seven employees had been discharged for failure to meet the

standards.

consistently took the position throughout the pre-strike nego-

tiations that, although the process by which new standards

would be adopted might be negotiable, the standards which

were already in place were "proven" and not subject to

negotiation or challenge by the union.4

On February 28, 1994, Alwin gave the union its final offer.

In that offer, the production standards in effect as of March

1, 1994, would not be subject to challenge or grievance.

However, production standards instituted after that day could

be challenged and taken to an arbitrator. The offer also

contained a $3 per hour pay cut and other changes which,

from the perspective of the union, were detrimental. At that

meeting, the company also indicated it would rescind all

discipline, including discharge, for failure to comply with the

performance standards prior to March 1, 1994.

The union representative indicated that he thought this

offer would not be acceptable to the members of the union.

The company's representative declared that they were at an

impasse, and that the company would implement its final

proposal the following day. The union held a meeting that

same day so its members could consider the company's

proposal. The union's chief negotiator went through the

company's final proposal with the union members. Among

the issues he highlighted was the fact that, if the workers

accepted this offer, they would never be able to challenge the

production standards already in place, which had been re-

sponsible for dozens of grievances and seven discharges.

Following a discussion, the union voted 115-2 to reject the

offer and go on strike as of March 1, 1994. The first day of

the strike, Alwin's president sent all striking employees a

letter urging them not to strike, and advising them that if

they did strike they were subject to permanent replacement,

with only a preference for future hiring. Six weeks into the

strike, Alwin sent letters to each of the striking workers who

had been discharged for failure to meet production standards,

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4 The company maintained this position consistently until August

26, 1994, over five months into the strike and a month after the

Board issued its decision in Alwin I.

offering them $10,000 in exchange for a release of all claims

they might have against the company. Three of the workers

accepted the offer.

On April 27, 1994, the ALJ issued his opinion in Alwin I,

finding that the unilateral institution of production standards

and changes in vacation policy were unfair labor practices.

Around May 4, 1994, the company indicated that it was not

willing to compromise on any issues. On July 28, 1994, the

Board adopted the ALJ's findings and proposed order requir-

ing Alwin, inter alia, to rescind the production standards and

discipline issued under them. Alwin took no steps to comply

with the remedial order.

On August 26, 1994, the parties met for a negotiation

session, which was also attended by a federal mediator. The

company initially rejected a proposal to allow the union to

challenge the production standards that were in effect as of

March 1, 1994, and insisted it would not change the produc-

tion standard policies it had implemented. The company then

indicated that it would allow the union to perform a time-

study of the standards (based on the replacement workers),

and arbitrate their fairness. The company made no sugges-

tion that it had done or would do anything to comply with the

Board's remedial order.

On October 27, 1994, the striking workers made an uncon-

ditional offer to return. Alwin indicated that it would recall

strikers as openings occurred, in order of seniority. Two

senior workers were recalled, and then disciplined for failure

to meet production standards, with one being discharged and

the other receiving a discharge caution. The ALJ found that

there was evidence of discrimination against the returning

strikers, including giving them the worst work and encourag-

ing replacement workers to work harder so the company

could recall fewer strikers.

In a second proceeding, the Board found that the unreme-

died ULPs, i.e., the unilateral implementation of performance

standards and new vacation policy, contributed to the parties'

failure to reach an agreement. Alwin Mfg. Co., 326 N.L.R.B.

No. 63 (August 27, 1998) (Alwin II). As a result, the Board

concluded that the parties did not reach a good-faith impasse,

and Alwin was not entitled to unilaterally impose its final

offer. The Board also concluded that the employees' strike

was an unfair labor practice strike, and that the company had

committed additional violations of the Act, in treating the

workers as economic strikers subject to permanent replace-

ment and in bypassing the union to deal directly with employ-

ees. Finally, the Board found that the company had engaged

in bad-faith conduct in negotiations with the union and in the

agency proceeding. Thus, the Board ordered the company

not only to pay make-whole damages to the workers, but also

to pay the union's costs of negotiating, striking, and litigating

these issues, as well as the General Counsel's litigation costs.

II. Discussion

A. The Board's Conclusions that Alwin Violated the Act

Section 8(a)(5) of the Act makes it an unfair labor practice

for an employer to "refuse to bargain collectively with the

representatives of his employees." 29 U.S.C. s 158(a)(5). It

is a violation of section 8(a)(5) for an employer to make

changes in terms and conditions of employment without ei-

ther reaching an agreement with the union or bargaining in

good faith until impasse is reached. See Litton Fin. Printing

Div. v. NLRB, 501 U.S. 190, 198 (1991); NLRB v. Katz, 369

U.S. 736, 743 (1962); Daily News v. NLRB, 73 F.3d 406, 410-

11 (D.C. Cir. 1996). In this case, there is no question that the

changes in vacation policy and production standards unilater-

ally instituted during the prior collective bargaining agree-

ment were unfair labor practices. The central question is

whether the existence of those unfair labor practices had a

negative impact on the negotiations over a new CBA that

contributed to the deadlock. If not, then Alwin may have

been entitled to implement its final offer at the end of

negotiations. See American Fed'n of Television & Radio

Artists v. NLRB, 395 F.2d 622, 624 (D.C. Cir. 1968) (where

parties reach good-faith impasse, employer entitled to unilat-

erally institute terms reasonably comprehended within its

pre-impasse proposals); see also NLRB v. Cauthorne, 691

F.2d 1023, 1025-26 (D.C. Cir. 1982) (no presumption that

existence of ULPs prevents the parties from reaching a valid

impasse). On the other hand, if the existence of the unreme-

died ULPs did contribute to the lack of an agreement, then

there was no good-faith impasse. Intermountain Rural Elec.

Ass'n v. NLRB, 984 F.2d 1562, 1569-70 (10th Cir. 1993); J.D.

Lunsford Plumbing, 254 N.L.R.B. 1360, 1366 (1981), enforced

without opinion sub nom. Sheet Metal Workers, Local 9 v.

NLRB, 684 F.2d 1033 (D.C. Cir. 1982); see also Wayne's

Dairy, 223 N.L.R.B. 260, 265 (1976) ("A party cannot parlay

an impasse resulting from its own misconduct into a license to

make unilateral changes.").5 If there was no good-faith im-

passe, Alwin was not entitled to make any changes in the

terms of employment, even after the prior CBA had expired.

See Litton, 501 U.S. at 198; Cauthorne, 691 F.2d at 1025.

Alwin's primary contention is that the Board did not con-

sider whether the ULPs contributed to the deadlock, but

rather that the Board applied a per se rule that the existence

of the ULPs necessarily meant that good-faith bargaining

could not occur. This argument, however, is entirely belied

by the record. The Board specifically cited the ALJ's finding

that "the Respondent's insistence on maintaining these unlaw-

ful employment terms through the entire negotiating process

resulted in continued friction and disagreement at the bar-

gaining table and ultimately was responsible, in material

part, for the breakdown in negotiations." Alwin II, slip

opinion ("slip op.") at 3 (emphasis added); see also id. at 44

(ALJ's analysis and conclusions) ("Since the breakdown in

negotiations, in material part, was a proximate result of the

Respondent's unyielding adherence to its unremedied unfair

labor practices, I find that the Respondent was not entitled to

declare impasse....").

__________

5 Although a valid impasse is described as a good-faith impasse, in

this context the question is not only the subjective good faith of the

parties, but also whether the employer's unilateral actions harmed

the negotiations, regardless of its subjective good faith. See Katz,

369 U.S. at 747; Intermountain, 984 F.2d at 1570.

Alwin points to one sentence in the Board's opinion and one

sentence in the ALJ's opinion to confirm its view that a per se

rule was applied in this case. We find that neither of the

sentences suffices to establish that the Board used a per se

rule.

Near the beginning of its decision, the Board stated that it

was adopting the ALJ's finding that Alwin was not entitled to

implement its final contract proposal, adding "[i]n so doing,

we rely on the first rationale set forth in the judge's decision;

i.e., no valid impasse had been reached ... because [Alwin]

had not remedied its prior unfair labor practices." Alwin II,

slip op. at 1. The Board then went on to state that it was not

relying on the ALJ's alternative ground for finding violations

of the Act, namely that Alwin engaged in surface bargaining.

Id.

As already noted, the ALJ explicitly found, on the basis of

the factual record in the case, a causal connection between

the unilateral changes and the failure to reach an agreement.

Had the Board said nothing more on the subject, we might

worry whether the Board's unfortunately abbreviated de-

scription of the ALJ's rationale does suggest a kind of per se

rule. However, that is not this case, for the ALJ himself did

not apply a per se rule, and other parts of the Board's

opinion, i.e., its description of the ALJ's finding that "insis-

tence on maintaining the unlawfully implemented employment

terms ... was responsible, in material part, for the break-

down in negotiations," id. at 3, show that the Board under-

stood that the ALJ's analysis rested securely on a finding

that the ULPs contributed to the deadlock. Read in the

context of the full opinion then, the Board merely seems to be

using a shorthand description of the ALJ's invalid impasse

rationale upfront to distinguish it from the ALJ's alternative,

and rejected, surface bargaining rationale.

Alwin's other indication in support of a per se rule is the

ALJ's statement that "until remedied, [the establishment of

production standards and changes to vacation policy] cannot

serve as valid grounds for deadlock during contract negotia-

tions." Alwin II, slip op. at 45. It appears that the ALJ

made this statement in the course of finding that Alwin

engaged in surface bargaining. Since the Board declined to

adopt the ALJ's finding of surface bargaining, and explicitly

cited the separate finding of the ALJ that the existence of the

ULPs "was responsible, in material part, for the breakdown

in negotiations," this language is not in the end evidence that

the Board applied a per se rule at all.

Alwin makes a secondary argument that the Board erred in

finding that the existence of the ULPs contributed to the lack

of an agreement. The Board's factual findings are conclusive

in this court if supported by substantial evidence on the

record considered as a whole. 29 U.S.C. s 160(e); Universal

Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951). We find

that the Board's conclusion that the unremedied ULPs con-

tributed to the parties' inability to reach an agreement is

supported by substantial evidence in the record.

It may not always be easy to distinguish between an

unremedied ULP which contributes to deadlock and one that

does not. This is a quintessential question of fact which is

appropriately left to the Board to resolve in each case in light

of its expertise. See American Fed'n of Television & Radio

Artists v. NLRB, 395 F.2d 622, 627 (D.C. Cir. 1968) ("In the

whole complex of industrial relations few issues are less

suited to appellate judicial appraisal than evaluation of bar-

gaining processes or better suited to the expert experience of

[the Board].") (quoting Dallas Gen'l Drivers v. NLRB, 355

F.2d 842, 844-45 (D.C. Cir. 1966)). There is certainly evi-

dence in this record, however, to support the Board's conclu-

sion in this case.

There are at least two ways in which an unremedied ULP

can contribute to the parties' inability to reach an agreement.

First, a ULP can increase friction at the bargaining table.

Second, by changing the status quo, a unilateral change may

move the baseline for negotiations and alter the parties'

expectations about what they can achieve, making it harder

for the parties to come to an agreement. Evidence that both

of these things occurred is ample in this record.

The record evidence supports the ALJ's finding that the

ULPs increased friction at the bargaining table, which in turn

contributed to the parties' deadlock. At one point, the union

representative told management that the unilateral changes

were reducing the trust between the parties, and that it

looked to the union as though the company would do whatev-

er it wanted, regardless of the parties' agreement. See Alwin

II, slip op. at 24; Joint Appendix ("J.A.") at 1619-20. At

another point, the union representative stated he was willing

to work on productivity standards, but the company was

"shafting" its employees. Alwin II, slip op. at 22. There was

testimony that there were 60-70 grievances pending, and

seven discharges, as a result of employees' inability to meet

the performance standards. The existence of a large number

of grievances attributable to a ULP could be expected to

contribute to the friction at the bargaining table. See also id.

at 19 (management representative suggested that employee

who was discharged for failure to meet production standards

had not wanted to meet standards).6

Apart from the question of friction, however, there is also

evidence in the record that Alwin attempted to use the ULPs

to gain an advantage in the bargaining process. As the ALJ

stated, one reason why Alwin was obligated to rescind its

unilateral changes was "to enable the Union, when required

to address these issues at the bargaining table, to negotiate

their every aspect, including initial implementation. It was

not intended that the Union be reduced, as here, to picking

over the detail of accomplished facts only to the extent

permitted by [Alwin]...." Alwin II, slip op. at 44.

There is ample evidence from which the Board could con-

clude that Alwin used the implementation of the production

standards to move the baseline for negotiations.7 Alwin

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6 It is worth noting that historically, prior to 1992, the union and

Alwin had had a harmonious relationship.

7 We focus only on the production standards for convenience.

The changes in vacation policy could serve to illustrate a similar

point, if perhaps on a less critical issue in the negotiations. But cf.

Intermountain, 984 F.2d at 1570 (unilateral change which is not a

consistently took the position that the production standards

which had been implemented unilaterally in September 1993

had been "proven" and were not subject to negotiation or the

grievance procedure. By contrast, Alwin proposed that if it

wanted to establish a new production standard, that standard

would be subject to grievance when first implemented, and

that the union could take the issue to arbitration.8 There is

ample record evidence that the company treated the stan-

dards which were in place on February 28, 1994, not as

proposals for new standards, but as established standards not

subject to negotiation.9

Finally, the fact that the company made repeated efforts to

settle the pending grievances concerning production stan-

dards as part of the negotiations is also evidence that the

ULP made it harder for the parties to reach agreement.

The company did not propose rescinding all disciplinary

actions, including discharge, until February 28, 1994. If

Alwin had any doubts about whether the unilateral imple-

mentation of production standards constituted a ULP, and

wanted to encourage good-faith negotiations over those stan-

dards, a more appropriate path would have been to rescind

disciplinary actions, and probably the production standards,

__________

major subject of bargaining can still harm bargaining process so as

to prevent a good faith impasse).

8 During negotiations, the union expressed concern about limiting

the time to grieve standards, but did not reject the idea of arbitrat-

ing performance standards.

9 In August 1994, the company did propose allowing the union to

challenge all production standards. At that point, however, the

Board had issued its opinion in Alwin I, ordering Alwin to rescind

the production standards. In light of Alwin's failure to indicate at

that session that it would take any steps to comply with the Board's

order, it is hardly evidence of good-faith negotiation that it offered

to let the union go to arbitration on those standards. Cf. Alwin II,

slip op. at 5-6 (Member Brame, dissenting in part from Board's

order, finding that Alwin engaged in "unusually aggravated miscon-

duct" when it failed to alter materially its bargaining position after

the Alwin I decision).

at the beginning of negotiations.10 See Porta-King Bldg Sys.

v. NLRB, 14 F.3d 1258, 1263 (9th Cir. 1994) ("An employer's

offer to bargain after unlawful, unilateral layoffs have oc-

curred, and after an unfair labor practice charge has been

filed, does not satisfy its duty to bargain in good faith"); cf.

Storer Communications, Inc., 297 N.L.R.B. 296, 298 (1989)

(while a unilateral change does not necessarily preclude good-

faith negotiations, "there are circumstances where the nature

of an employer's unilateral change, unless rescinded, will

preclude postimplementation good-faith bargaining").

Accordingly, we find the Board's conclusion that the par-

ties' inability to reach an agreement was due in part to the

existence of the unremedied ULPs to be supported by sub-

stantial evidence on the record. It follows that the parties

did not reach a good-faith impasse and Alwin was not entitled

to implement its final offer altering terms and conditions of

employment. See Litton, 501 U.S. at 198; Intermountain,

984 F.2d at 1570; Cauthorne, 691 F.2d at 1025.

In addition to finding that the parties failed to reach a

good-faith impasse, so that Alwin violated section 8(a)(5) when

it unilaterally implemented its final offer, the Board also

found that the employees' strike was an unfair labor practices

strike, so that the company violated section 8(a)(1) by replac-

ing the striking workers, and otherwise treating them as

economic strikers. See NLRB v. International Van Lines,

409 U.S. 48, 50-51 (1972) (economic strikers subject to perma-

nent replacement; unfair labor strikers generally entitled to

reinstatement). A strike is an unfair labor practice strike "if

the employer's violations of the labor laws are a 'contributing

cause' of the strike." General Indus. Employees Union,

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10 Rescinding the production standards for the period dating from

December 1993 until February 1994 would not have prevented the

parties from litigating a ULP charge based on the unilateral

implementation of the standards in September 1992, although it

could have affected the remedy to which the union would be

entitled. See Cauthorne, 691 F.2d at 1026 (ongoing liability for

ULP ends when parties reach agreement or good-faith impasse).

Local 42 v. NLRB, 951 F.2d 1308, 1311 (D.C. Cir. 1991).11

The Board concluded that the decision to strike was moti-

vated, at least in part, by Alwin's "insistence to impasse on its

final offer, which included the two employment terms found

to be unlawfully implemented in Alwin I." Alwin II, slip op.

at 1. The Board also concluded that Alwin's unlawful behav-

ior prolonged the strike.

Alwin contends that the terms of its last offer, which were

implemented after the impasse, were significantly different

from the employment terms which were unilaterally imple-

mented two years earlier. Alwin views the strike as a

rejection of the proposed concessionary contract, and argues

there is not substantial evidence to support a finding that the

strike was motivated in part by the prior unilateral implemen-

tation of the production standards.

Alwin's argument appears to be premised largely on the

idea that, because the company had made some concessions

on contract language concerning production standards, the

employment term implemented on March 1, 1994, as part of

Alwin's final offer, was not the same employment term that

existed on February 28, 1994, as an unfair labor practice.

The reality is that the substance of the performance stan-

dards did not change on March 1, 1994.12 Thus, as long as

there is substantial evidence that Alwin's continued use of

production standards, and discipline issued pursuant to them,

contributed to the decision to strike, the Board was correct in

characterizing the strike as an unfair labor practices strike.

There is substantial evidence in the record to support the

Board's finding that the existence of the production standards

in part motivated the union members' decision to strike.

There is no doubt that the production standards, as they were

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11 An economic strike can also be converted to an unfair labor

practice strike if the strike is prolonged by the employer's later,

unlawful conduct. General Indus. Employees Union, Local 42, 951

F.2d at 1311.

12 There was testimony that the most controversial performance

standard, for the drive roller job, did not change from when it was

unilaterally implemented in 1992 until at least December 1994.

in effect on February 28, 1994, were one of the core issues in

the negotiations. Before the union voted to reject the compa-

ny's offer and go on strike, the union's chief negotiator

specifically pointed out that accepting the offer meant that

the union could not challenge any of the production standards

which had been implemented prior to March 1, 1994, and

which had already caused seven employees to lose their jobs.

Giving up any possibility of changing those standards was a

major issue for the employees. See J.A. at 442-43 (testimony

that inability to challenge standards was important because

workers "were scared to death because they didn't know if

they were going to be the next one on the chopping block").

In addition, a striking worker told a local newspaper that one

of the reasons for the strike was the fact that Alwin was

discharging workers for failing to meet performance stan-

dards. This evidence is sufficient to support the Board's

finding that the unilateral implementation of the production

standards was one of the motivating factors for the strike.

Alwin also objects to the Board's finding that the company

violated the Act in its treatment of striking workers Sheldon

Anderson and John Tilly, by not giving them their former

positions back immediately when they made an unconditional

offer to return, and by putting them on one of the most

difficult jobs and then disciplining them for failing to meet the

performance standards. Alwin's objections to this finding are

largely dependent on its contentions that the impasse was

valid and the strike was economic.

Given our conclusion that it was a ULP to maintain the

performance standards after March 1, 1994, Alwin must

concede that the Board properly required it to rescind the

discipline issued under the performance standards. See, e.g.,

NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346-47 (1953);

Cauthorne, 691 F.2d at 1025. Likewise, given our conclusion

that the Board was justified in finding that the strike was

motivated in part by the unfair labor practices, Alwin must

concede that Anderson and Tilly were entitled to return to

their former positions when they asked to do so, and not

when Alwin had need of them. See International Van Lines,

409 U.S. at 50-51; General Indus. Employees Union, Local

42 v. NLRB, 951 F.2d at 1311. Although the issue is some-

what cumulative, we also note that there is substantial evi-

dence in the record as a whole to support the Board's finding

that Alwin's treatment of Anderson and Tilly was due in part

to their participation in the strike.

We uphold the Board's other findings either because Alwin

did not challenge them, see International Union of Petrole-

um & Indus. Workers v. NLRB, 980 F.2d 774, 778 n.1 (D.C.

Cir. 1992), or because Alwin only challenged them on the

ground that they were dependent on a finding that the strike

was an unfair labor practices strike. Accordingly, we con-

clude that all of the Board's findings are supported by

substantial evidence in the record.

B. Alwin's Objection to the Remedy

The Board endorsed the ALJ's finding that Alwin had

engaged in "egregious" conduct, and adopted the ALJ's pro-

posed remedy requiring Alwin to reimburse the union for the

costs and expenses the union incurred in negotiating the new

CBA, in undertaking the strike, and in litigating Alwin II

before the Board. The Board likewise required Alwin to

reimburse the General Counsel for his costs of litigating this

matter. In this court, Alwin contends that the remedy is not

justified and is beyond the Board's authority.

The Board noted in its decision that Alwin had not except-

ed to the remedy, and thus would be barred from seeking

review of it in a court of appeals. Nonetheless, the Board

discussed its rationale for the remedy and its authority for

ordering it. The Board cited the ALJ's finding that Alwin's

conduct frustrated the bargaining process and depleted the

Union's resources, so that extraordinary remedies to restore

the status quo ante were warranted. The Board also found

that Alwin's bad faith in negotiations, by insisting on its

terms even after they were found to be unlawful in Alwin I,

and in litigating Alwin II, justified an award of litigation

costs to the union and the General Counsel. In ordering

these remedies, the Board relied on section 10(c) of the Act

and its inherent authority to control its own proceedings.

Member Brame dissented from this portion of the Board's

decision, suggesting that an award of strike costs was unprec-

edented and insufficiently justified, and that Alwin did not

engage in "unusually aggravated misconduct" until the Board

decided Alwin I and the company still refused to change its

negotiating position significantly. Thus, Member Brame indi-

cated he would only award the union its costs for the August

1994 negotiating session.

Section 10(e) of the Act requires the Board to seek enforce-

ment of its order in a court of appeals, but provides that "no

objection that has not been urged before the Board ... shall

be considered by the court, unless the failure or neglect to

urge such objection shall be excused because of extraordinary

circumstances." 29 U.S.C. s 160(e); see also 29 C.F.R

s 102.46 (1998) (specifying how to except properly to an ALJ

decision). The Supreme Court has indicated that section

10(e) bars review of any issue not presented to the Board,

even where the Board has discussed and decided the issue.

A court of appeals altogether "lacks jurisdiction to review

objections that were not urged before the Board." Woelke &

Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982)

(where Board raises issue sua sponte, aggrieved party must

seek reconsideration by Board before seeking judicial review);

International Ladies' Garment Workers' Union v. Quality

Mfg. Co., 420 U.S. 276, 281 n.3 (1975) (same); see also Local

900, IUE v. NLRB, 727 F.2d 1184, 1191 (D.C. Cir. 1984)

("[T]he statute requires objection to the Board, and not

discussion by the Board, before an issue may be presented in

court.").

We find no extraordinary circumstances present here, so

the question is whether Alwin properly presented its objec-

tion to the remedy to the Board.13 Our cases suggest that

__________

13 We could review the remedy if we believed it was "patently in

excess of [the Board's] authority." Detroit Edison Co. v. NLRB,

440 U.S. 301, 311 n.10 (1979); see also NLRB v. Cheney California

Lumber Co., 327 U.S. 385, 388 (1946); Local 900, IUE, 727 F.2d at

1191 n.5. Without deciding whether the Board has authority to

award strike-related costs under section 10(c) and litigation costs

under its inherent authority, we do not find this order to be

obviously ultra vires. See Unbelievable, Inc. v. NLRB, 118 F.3d

the critical question in satisfying section 10(e) is whether the

Board received adequate notice of the basis for the objection.

See Parsippany Hotel Management Co. v. NLRB, 99 F.3d

413, 417 (D.C. Cir. 1996) (ground for exception must be

evident if not explicit); Consolidated Freightways v. NLRB,

669 F.2d 790, 793 (D.C. Cir. 1981) ("Cases interpreting sec-

tion 10(e) look to whether a party's exceptions are sufficiently

specific to apprise the Board that an issue might be pursued

on appeal.").

Alwin's exceptions to the decision and order of the ALJ do

not mention the remedy proposed by the ALJ. In the

introduction to its brief in support of exceptions, Alwin includ-

ed the following language:

Despite the weight of record evidence to the contrary

and applicable law inconsistent with the ALJ's Decision,

the Judge incorrectly concluded that Respondent violated

Sections 8(a)(1), (3), (4) and (5) of the Act. As a result,

the Judge proposed extraordinary and unduly burden-

some remedies against Respondent. It is from these

findings and conclusions that Respondent excepts, offer-

ing the instant Brief in Support.

J. A. at 38. In the remaining 48 pages of the brief, Alwin

does not mention the remedy.

This language clearly states that Alwin objects to the ALJ's

allegedly incorrect "findings and conclusions." However, it

would be a strain to read that sentence as stating a separate

objection to the remedy, in the event the Board agreed with

the ALJ that Alwin violated the Act. More importantly, even

if a separate objection to the remedy could be located in that

language, the language does not provide any hint as to the

basis for Alwin's objection to the remedy.

__________

795, 799 (D.C. Cir. 1997) (Board has authority to order compensa-

tion for negotiation expenses if traditional remedies not sufficient to

eliminate effects of aggravated misconduct); id. at 800 n.* (declin-

ing to decide whether Board has inherent authority to order

payment of litigation expenses under "bad faith" exception to the

American Rule).

Where a party explicitly excepts to a remedy, and offers

some explanation for its objection in its brief, we have held

that there is sufficient notice to the Board to satisfy section

10(e). See Capital Cleaning Contractors, Inc. v. NLRB, 147

F.3d 999, 1009 (D.C. Cir. 1998). We have also held that an

exception to an issue can be sufficient to preserve an issue,

even without briefing, if the exception sufficiently highlights

the specific issue being contested. See Davis Supermarkets,

Inc. v. NLRB, 2 F.3d 1162, 1174-75 (D.C. Cir. 1993). Where,

however, a party excepts to the entire remedy, and provides

no indication of the basis for its objection, the exception alone

provides insufficient notice to the Board of the party's partic-

ular arguments to satisfy section 10(e). See Quazite v.

NLRB, 87 F.3d 493, 497 (D.C. Cir. 1996). It follows, a

fortiori, that where a passing objection to the remedy is made

in the introduction to a brief, and not in the exceptions, the

Board has not received sufficient notice of the party's argu-

ments to satisfy section 10(e).14 Accordingly, we conclude

that we lack jurisdiction to consider Alwin's objections to the

Board's remedy.

III. Conclusion

We conclude that the Board properly considered the impact

Alwin's unfair labor practices had on the negotiations over a

new collective bargaining agreement, and there is sufficient

evidence in the record as a whole to support the Board's

findings and conclusions. We hold that under 29 U.S.C.

s 160(e) we lack jurisdiction to hear Alwin's objection to the

Board's remedy. Accordingly, we deny Alwin's petition for

review and grant the Board's cross-application for enforce-

ment of its order.

So ordered.

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14 We also note that the failure to except specifically to the

remedy constitutes waiver of the issue under the Board's regula-

tions. See 29 C.F.R. s 102.46(b)(2) (1998).