Petition for Writ of Certiorari — Hood River Distillers, Inc., Petitioner v. National Labor Relations Board

No. 25In the

Supreme Court of the United States

HOOD RIVER DISTILLERS, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of A ppeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Sasha A. Petrova

Counsel of Record

Steven Wilker

Tonkon Torp LLP

1300 SW Fifth Avenue,

Suite 2400

Portland, OR 97201

(503) 802-2130

sasha.petrova@tonkon.com

Counsel for Petitioner

120532

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

The National Labor Relations Act (“Act”) requires

employers to bargain with their employees’ union regarding

terms and conditions of employment. Ordinarily, an employer

may only make unilateral changes after bargaining to

impasse. The National Labor Relations Board (“Board”)

has recognized an exception to that rule, which allows an

employer to implement changes if the union engages in

dilatory tactics to delay bargaining or forestall impasse.

Here, the parties bargained for 14 months. The

union rejected more than 70 bargaining dates offered by

employer, delayed bargaining for months at a time, and

ultimately refused to bargain by placing an impossible

condition on further bargaining. Consequently, employer

implemented its last, best, and final offer.

The Board ruled that employer violated the Act.

Employer sought judicial review pursuant to 29 U.S.C.

§ 160(f), which authorizes reviewing courts to set aside the

Board’s orders, provided that “findings of the Board with

respect to questions of fact if supported by substantial

evidence on the record considered as a whole shall . . . be

conclusive.” The court of appeals affirmed the Board in a

split-panel decision after concluding it had “no choice but

to affirm it, based on the applicable standard of review.”

The questions presented by this case, which are of

critical importance to employers, are:

1.

Does review for “substantial evidence” require courts

to ensure that the Board’s decision is reasonably

supported by the evidence as a whole, including

evidence that detracts from the Board’s view, as

opposed to deferring to the Board if the record

ii

contains any evidence that, when considered in

isolation, would support the Board’s ultimate decision?

2.

Is an employer excused from bargaining to impasse

(and thus permitted to unilaterally change the terms

and conditions of employment) when a union engages

in dilatory tactics to delay bargaining and prevent

impasse?

iii

PARTIES TO THE PROCEEDING BELOW

In addition to the parties named in the caption,

Teamsters Local Union No. 670 and the Board of Trustees

of the Oregon Processors Employees Trust Fund were

charging parties in the underlying proceedings before

the Board. The Board’s General Counsel was also a party

to those proceedings.

iv

CORPORATE DISCLOSURE STATEMENT

Petitioner Hood River Distillers, Inc. has no parent

corporation, and no publicly held corporation owns ten

percent (10%) or more of its stock.

v

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

•

Hood River Distillers, Inc. v. National Labor

Relations Board, No. 23-1235 (D.C. Cir.) (opinion

issued Mar. 7, 2025)

•

Hood River Distillers, Inc. & Teamsters Loc. Union

No. 670 & Bd. of Trs. of the Oregon Processors Emps.

Tr. Fund, 372 NLRB No. 126 (decision issued Aug.

24, 2023)

vi

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING BELOW . . . . . . iii

CORPORATE DISCLOSURE STATEMENT . . . . . . . iv

STATEMENT OF RELATED PROCEEDINGS . . . . . v

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 4

I.

Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 6

III. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . 10

vii

Table of Contents

Page

REASONS FOR GRANTING THE PETITION . . . . 13

I.

This case presents an important question

regarding the meaning of “substantial

evidence” review and the outer limits of

judicial deference to the Board . . . . . . . . . . . . . . 13

II. The decision below is wrong . . . . . . . . . . . . . . . . 17

III. This Cour t’s g uidance is needed to

preserve the right of employers to obtain

meaningful judicial review of the Board’s

labor policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

viii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLU M BI A CIRCUIT,

FILED MARCH 7, 2025 . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — DECISION, ORDER, AND

NO TICE T O SHOW CAUSE OF T HE

NATIONAL LABOR RELATIONS BOARD,

FILED AUGUST 24, 2023 . . . . . . . . . . . . . . . . . . . . . 39a

APPENDIX C — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLU M BI A CIRCUIT,

FILED APRIL 30, 2025 . . . . . . . . . . . . . . . . . . . . . 223a

APPENDIX D — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225a

ix

TABLE OF CITED AUTHORITIES

Page

Cases

AAA Motor Lines, Inc.,

215 NLRB 793 (1974) . . . . . . . . . . . . . . . . . . . . . . . 5, 21

Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359 (1998) . . . . . . . . . . . . . . . . . . . . . 16, 17, 23

AMF Bowling Co. v. NLRB,

63 F.3d 1293 (4th Cir. 1995) . . . . . . . . . . . . . . . . . . . . 18

Bundy Corp.,

292 NLRB 671 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 20

Calex Corp. v. NLRB,

144 F.3d 904 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 20

Consol. Edison Co. of New York v. NLRB,

305 U.S. 197 (1938) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Consolo v. Federal Maritime Commission,

383 U.S. 607 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Coreslab Structures (TULSA), Inc. v. NLRB,

100 F.4th 1123 (10th Cir. 2024) . . . . . . . . . . . . . . . . . 19

Dickinson v. Zurko,

527 U.S. 150 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hamady Bros. Food Markets, Inc.,

275 NLRB 1335 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 18

x

Cited Authorities

Page

Hood River Distillers, Inc. v. NLRB,

130 F.4th 204 (D.C. Cir. 2025) . . . . . . 11, 12, 19, 21, 22

I. Bahcall Industries Inc.,

287 NLRB 1257 (1988) . . . . . . . . . . . . . . . . . . . . . . . . 18

Litton Fin. Printing Div. v. NLRB,

501 U.S. 190 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

M & M Contractors,

262 NLRB 1472 (1982) . . . . . . . . . . . . . . . . . . . . . . 5, 21

McAllister Bros., Inc.,

312 NLRB 1121 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 18

NLRB. v. Auto Fast Freight, Inc.,

793 F.2d 1126 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . 6

NLRB v. Columbian Enameling & Stamping Co.,

306 U.S. 292 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

NLRB v. Gibraltar Industries, Inc.,

653 F.2d 1091 (6th Cir. 1981) . . . . . . . . . . . . . . . . . . . 18

NLRB v. Ingredion Inc.,

930 F.3d 509 (D.C. Cir. 2019) . . . . . . . . . . . . . . . . . . . 20

NLRB v. Ins. Agents’ Int’l Union, AFL-CIO,

361 U.S. 477 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

xi

Cited Authorities

Page

NLRB v. Katz,

369 U.S. 736 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

NLRB v. Pinkston-Hollar Const. Servs., Inc.,

954 F.2d 306 (5th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . 6

Serramonte Oldsmobile, Inc. v. NLRB,

86 F.3d 227 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . 6

Sw. Portland Cement Co.,

289 NLRB 1264 (1988) . . . . . . . . . . . . . . . . . . . . . . 5, 21

Troutbrook Co. LLC v. NLRB,

107 F.4th 994 (D.C. Cir. 2024) . . . . . . . . . . . . . . . . . . 20

TruServ Corp. v. NLRB,

254 F.3d 1105 (D.C. Cir. 2001) . . . . . . . . . . . . . . . . . . 18

Universal Camera Corp. v. NLRB,

340 U.S. 474 (1951) . . . . . . . . . . . . . . . . 14, 15, 16, 17, 23

Woodland Clinic,

331 NLRB 735 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 20

Statutes

5 U.S.C. § 706(2)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

xii

Cited Authorities

Page

29 U.S.C. § 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

29 U.S.C. § 158(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . 4, 11, 20

29 U.S.C. § 158(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

29 U.S.C. § 158(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

29 U.S.C. § 160(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13

National Labor Relations Act,

Pub. L. 74-198 § 10, 49 Stat. 449 (1935) . . . . . . . . . . 13

1

INTRODUCTION

This Court has ruled that courts, not agencies, are

the final arbiters of law. But there is another doctrine that

has thwarted meaningful judicial review of administrative

decisions: “substantial evidence” review. Although

Congress intended courts to serve as the necessary

backstop for agency decisions, the lack of clarity regarding

what substantial evidence means, as well as the amount

of deference owed by reviewing courts to agencies, has

rendered many agency decisions all but impervious to

challenge.

The consequences have been particularly acute for

employers dealing with the National Labor Relations

Board (“Board”)—an agency that has historically

enjoyed wide latitude in setting the nation’s labor policy.

The Board’s peculiar practice of developing that policy

almost exclusively through adjudication, rather than

formal rulemaking, makes the availability of judicial

review critical to employers. Unfortunately, the courts’

inconsistent understanding and application of the

substantial evidence standard has increasingly allowed

the Board’s decisions to escape meaningful scrutiny. This

case provides a clear example.

Petitioner Hood River Distillers, Inc. (“HRD”) spent

an astonishing 14 months bargaining with its employees’

union. During that time, the union rejected more than 70

bargaining dates offered by HRD. From start to finish,

the union delayed negotiations. The union took weeks

or months to respond to HRD’s requests to schedule

bargaining, rejected HRD’s proposed bargaining dates

without explanation and without offering alternatives,

2

and ultimately refused to meet with HRD altogether by

insisting on a bargaining condition that the union knew

was impossible to satisfy. As a result of these tactics, the

union was able to continue to enjoy the benefits of its longexpired collective bargaining agreement and to avoid the

concessions sought by HRD.

After spending 14 months diligently trying to reach

agreement, HRD finally reached the end of its rope.

HRD thus implemented its last, best, and final offer

as previously communicated to the union. It did so

pursuant to an exception, expressly recognized by the

Board and multiple appellate courts, which entitles an

employer to unilaterally change the terms and conditions

of employment (even without bargaining to impasse) if

the union engages in dilatory tactics designed to delay

bargaining and to prevent the parties from reaching

impasse.

Incredibly, the Board concluded that it was HRD

that failed to comply with its bargaining obligations

under the National Labor Relations Act (“Act”). To

reach that outcome, the Board ignored overwhelming,

uncontroverted evidence of the union’s delay tactics and

instead drew inferences that no reasonable person could

reach when considering the record as a whole. The court of

appeals affirmed in a split-panel decision after concluding

that it had “no choice but to affirm” the Board based on

the applicable standard of review.

The Board’s decision is wrong, and the appellate

court’s affirmance stretches administrative deference past

its breaking point. It sanctions bargaining misconduct by

a union that would unquestionably be held to violate the

3

Act if committed by an employer. And it sends the message

that, no matter how diligently an employer tries to satisfy

its bargaining obligations under the Act, the union will

always have the upper hand—both before the Board and

on judicial review.

Certiorari should be granted because this case

presents a vehicle for this Court to clarify the outer limits

of deference owed by appellate courts to the Board when

reviewing for substantial evidence, as well as employers’

rights and obligations under the Act when faced with a

union’s refusal to bargain in good faith.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit is published at 130 F.4th

204 and reproduced at Pet. App. 1a-38a. The decision of the

Board is published at 372 NLRB No. 126 and reproduced

at Pet. App. 39a-222a.

JURISDICTION

The court of appeals entered judgment on March 7,

2025. A timely petition for rehearing was denied on April

30, 2025. Pet. App. 223a-224a. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions, including selected parts

of 29 U.S.C. § 158 and 29 U.S.C. § 160(f), are reproduced

in the appendix. Pet. App. 225a-227a.

4

STATEMENT OF THE CASE

I.

Legal Framework

Section 8(d) of the Act imposes mutual obligations

on employers and unions to bargain collectively with

respect to “wages, hours, and other terms and conditions

of employment.” 29 U.S.C. § 158(d); see also NLRB v.

Ins. Agents’ Int’l Union, AFL-CIO, 361 U.S. 477, 487–88

(1960) (“[T]he policy of Congress is to impose a mutual

duty upon the parties to confer in good faith with a desire

to reach agreement, in the belief that such an approach

from both sides of the table promotes the over-all design

of achieving industrial peace.”). Although the Act does

not compel agreement, a refusal to bargain collectively—

whether by the employer or the union—constitutes an

unfair labor practice. See 29 U.S.C. § 158(a)(5) (it is an

unfair labor practice for an employer “to refuse to bargain

collectively with the representatives of his employees”); 29

U.S.C. § 158(b)(3) (it is an unfair labor practice for a labor

organization “to refuse to bargain collectively with an

employer”). This Court has further held that an employer’s

“unilateral change in conditions of employment under

negotiation” violates the Act, because it amounts to “a

circumvention of the duty to negotiate which frustrates the

objectives of [section] 8(a)(5) much as does a flat refusal.”

NLRB v. Katz, 369 U.S. 736, 743 (1962). Consequently, an

employer commits an unfair labor practice if it unilaterally

changes the terms or conditions of employment which are

mandatory subjects of collective bargaining without either

reaching an agreement with the union or bargaining to

5

impasse. Litton Fin. Printing Div. v. NLRB, 501 U.S.

190, 198 (1991) (citing Katz, 369 U.S. 736)).1

The Board has recognized several exceptions to that

general rule. One such exception is that an employer

may change working conditions, even without reaching

agreement or bargaining to impasse, when in response

to the employer’s good faith efforts, the union insists on

continually avoiding or delaying bargaining to prevent

impasse. See M & M Contractors, 262 NLRB 1472, 1478

(1982) (employer did not violate the Act by implementing

changes after seven months of bargaining, during which

employer “made diligent and earnest efforts to initiate

negotiations” but which efforts were “met with silence

and with actions that gave [employer] a reasonable basis

for concluding that it was ‘getting the runaround’”);

Sw. Portland Cement Co., 289 NLRB 1264, 1275–77

(1988) (employer entitled to implement last offer without

bargaining to impasse because union’s insistence on a

federal mediator was “pretextual and advanced for the

purpose of impeding collective bargaining” because it

created a condition on bargaining that “could not be

fulfilled”); AAA Motor Lines, Inc., 215 NLRB 793, 794

(1974) (employer justified in unilaterally instituting changes

where it “diligently and earnestly [sought] bargaining

sessions” with union representatives, while union was

“equally insistent on not meeting with [employer] until

other matters which it considered of superior priority were

1. In Katz, this Court left open the possibility of exceptions

to the general rule requiring bargaining to impasse. 369 U.S.

at 747–48 (“While we do not foreclose the possibility that there

might be circumstances which the Board could or should accept as

excusing or justifying unilateral action, no such case is presented

here.”).

6

resolved”). Although multiple circuits have recognized

the “dilatory tactics” defense in theory, employers lack

guidance as to when it may be successfully asserted in

cases subject to substantial evidence review. 2

This case presents the Court with an opportunity

to prov ide employers w ith such g uidance, while

simultaneously clarifying the limits of deference owed

by the circuit courts of appeals to the Board.

II.

Factual Background

HRD is the Pacific Northwest’s oldest distillery,

located in Hood River, Oregon. Pet. App. 80a. HRD has

been in the business of bottling and distributing spirits

such as bourbon, whisky vodka, and rum since 1934. Id.

HRD employs approximately 25 unionized employees

belonging to the Teamsters Local Union No. 670 (“Union”).

Pet. App. 2a, 81a. In December 2018, the Union requested

bargaining to amend the operative collective bargaining

agreement, which was set to expire in February 2019. Id.

2. See NLRB v. Auto Fast Freight, Inc., 793 F.2d 1126,

1129–30 (9th Cir. 1986) (recognizing “narrow exception” to the

bargain to impasse rule but concluding that substantial evidence

supported Board’s decision that union had not intentionally

avoided bargaining); NLRB v. Pinkston-Hollar Const. Servs.,

Inc., 954 F.2d 306, 311 (5th Cir. 1992) (noting that “some courts

have recognized a narrow exception to the bargain to impasse

rule[] where, upon expiration of a collective bargaining agreement,

the union has avoided or delayed bargaining”); Serramonte

Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 235–36 (D.C. Cir. 1996)

(recognizing defense but affirming Board’s ruling because the

record “did not clearly show” which party was responsible for the

lapse in bargaining).

7

2a, 26a, 81a. HRD accepted the Union’s request in early

January 2019. Id. 82a.

The parties then proceeded to bargain for 14 months.

Id. 26a. During that time, the Union rejected more than

70 bargaining dates proposed by HRD and the parties

met only seven times. Id.

After two bargaining sessions in February 2019, the

Union spent more than a month ignoring HRD’s requests

to meet in April and May. Id. When the Union finally

responded, it proposed only tentative dates in June. Id.;

see also id. 86a. HRD readily accepted all dates offered

by the Union. C.A. App. 522.

After meeting twice in June, the Union once again

delayed responding to HRD’s requests to meet. Pet. App.

26a. On July 22, 2019, HRD proposed multiple meeting

dates in August; the Union rejected them without offering

any alternatives. Id. 26a-27a, 92a; C.A. App. 590-91. On

July 31, 2019, HRD once again offered six more dates in

August. C.A. App. 595. The Union did not accept any of

those dates and did not provide any alternate dates in

August. C.A. App. 1139-40. Three weeks later, the Union

proposed dates for September 2019—three months after

the parties’ last meeting in June, and seven months after

their first bargaining session. Pet. App. 27a, 96a; C.A.

App. 598.

The parties met again on September 27, 2019. At

that meeting, HRD informed the Union that it had a new

administrator for its health plan—a possibility that HRD

had previewed for the Union in February—and provided

the Union with a summary of the revised medical benefits.

8

C.A. App. 621-37, 1903-04; Pet. App. 84a, 99a. On October

4, 2019, HRD inquired about the Union’s availability to

continue bargaining in October and November. Pet. App.

27a, 101a-102a. The Union declined to offer any dates

based on its stated need for additional time to compare

health plans. Id. When HRD followed up on October 24,

the Union refused to set any further bargaining, citing

the need for even more time to compare health plans. Id.

HRD reached out again on November 1. Id. 27a,

102a. HRD pointed out that it had provided health plan

information five weeks prior, and that HRD had been

repeatedly forthcoming with bargaining dates. Id. 102a.

The Union ignored HRD for two weeks, until HRD

wrote again and declared impasse. Id. 27a, 103a. On

November 15, the Union responded by denying impasse

but continuing to refuse to schedule bargaining due to its

ongoing comparison of health plans. Id. 27a, 103a-104a.

The Union finally completed its eight-page health

plan comparison on November 27, 2019—two months

after HRD provided the medical benefits information.

Id. 99a, 104a; C.A. App. 678-86. Even then, the Union

did not contact HRD and did not attempt to schedule

further bargaining. Instead, after weeks of silence, HRD

contacted the Union again on December 11, requesting to

schedule further bargaining in December. Pet. App. 27a;

C.A. App. 688. Despite having the comparison in hand for

nearly three weeks, the Union did not respond for another

week. Finally, on December 17, 2019, the Union responded

by demanding additional time—now to review the health

plan comparison. Pet. App. 27a, 105a; C.A. App. 689. HRD

answered the following day, offering seven bargaining

dates in late December and early January 2020. C.A. App.

9

692. The Union did not respond for another two weeks,

when it informed HRD that it was available to bargain

in mid to late January—more than three months after it

first started comparing the health plans. Pet. App. 28a;

C.A. App. 694. HRD accepted all of the Union’s proposed

dates. C.A. App. 698-99.

Events outside the parties’ control prevented them

from meeting in January 2020. Pet. App. 28a, 106a-107a.

When HRD offered replacement dates in February,

the Union responded by offering dates in mid-March.

Id. 28a. Given the Union’s reluctance to meet or even

schedule bargaining, HRD suggested bargaining with

the assistance of a federal mediator. Id. 107a. The Union

declined HRD’s request. Id.

The parties next met on March 10, 2020—nearly six

months after their last bargaining date—and again on

March 30. Id. 28a. The March 30 meeting was held by

telephone, because by that point, the COVID-19 pandemic

had restricted in-person meetings. Id. 110a-112a. HRD

then made its last, best, and final offer. Id. 116a-118a.

Despite having rejected HRD’s proposal to enlist

a federal mediator just a month prior, the Union now

responded to HRD’s offer by demanding in-person

mediation with a mediator. Id. 28a, 118a-120a; C.A. App.

883-85. The Union’s demand was significant, because

by that point in the pandemic, federal mediators were

no longer conducting in-person mediation. Pet. App.

28a, 120a-122a. HRD agreed to mediate but pointed out

the obvious—that any such meeting would have to be

conducted remotely. Id.

10

The Union responded by refusing to schedule any

further bargaining. It did so by insisting that meeting

in person with a federal mediator was “absolutely

necessary”—despite knowing that federal mediators were

not conducting in-person mediation by that time and had

no estimate for when such mediation would resume. Id.

28a, 121a-122a, 129a.

Finally, in late April, HRD declared impasse and

informed the Union that it would implement its final offer

on May 1, 2020. Id. 28a, 124a-125a. As of May 1, the Union

continued to refuse to schedule further bargaining unless

it was in person and with a federal mediator. Id. 128a-129a.

HRD implemented its final offer that same day—more

than 14 months after the parties’ collective bargaining

agreement had expired.

III. Proceedings Below

The Union filed charges, and the Board’s General

Counsel issued a complaint alleging, among other

things, that HRD committed an unfair labor practice

by unilaterally implementing its final offer without

bargaining to impasse.

The case was presented to an administrative law judge

(“ALJ”). HRD argued that it was entitled to implement

its final offer because, after 14 months of bargaining, the

parties were at an impasse. Pet. App. 163a. Alternatively,

HRD argued that it was excused from further bargaining

based on the Union’s bad-faith tactics designed to delay

bargaining and prevent impasse. Id. 164a. The ALJ

rejected both arguments and ruled that HRD violated

11

Sections 8(a)(5) and (1) of the Act by unilaterally

implementing its final offer on May 1, 2020. 3 Id. 163a-167a.

The Board affirmed the ALJ’s ruling with limited

modifications. Id. 43a-46a. The Board acknowledged that

it previously recognized the dilatory tactics defense in

situations “[w]hen a union, in response to an employer’s

diligent and earnest efforts to engage in bargaining, insists

on continually avoiding or delaying bargaining.” Id. 53a.

The Board nevertheless ruled that HRD failed to show

that the Union engaged in “unreasonable or intentional

avoidance or delay” by demanding in-person bargaining

with a mediator in March and April 2020, without taking

into account the Union’s lengthy bargaining delays in the

ten months leading up to that point. Id. 53a-54a.

The Court of Appeals for the District of Columbia

Circuit affirmed in a split-panel decision. Hood River

Distillers, Inc. v. NLRB, 130 F.4th 204 (D.C. Cir. 2025);

see also Pet. App. 1a-38a. The panel majority ruled that

“[w]hile it is possible that the Union engaged in some

intentional delay, it is certainly not the only reasonable

interpretation” of the record. Pet. App. 23a. Consequently,

the panel majority concluded it had “no choice but to affirm

it, based on the applicable standard of review.”4 Id. at 24a.

3. The ALJ erroneously ruled that the Board had not

recognized a dilatory tactics defense. Pet. App. 164a. Nevertheless,

the ALJ summarily concluded that such a defense would fail

because the Union had not engaged in any misconduct that

prevented the parties from reaching an agreement or a goodfaith impasse by insisting on in-person mediation with a federal

mediator. Id. 165a-166a.

4. The panel majority also concluded, sua sponte, that HRD

failed to preserve the full scope of its dilatory tactics defense.

12

The dissent would have ruled that the Board’s rejection

of HRD’s dilatory tactics defense lacked substantial

evidence. Id. at 31a (Walker, J., dissenting). The dissent

emphasized that, although “substantial evidence” has

been understood to be a deferential standard, it does not

permit courts to affirm the Board’s decisions when they

are contrary to the overwhelming weight of the evidence.

Id. at 26a, 30a-31a. Based on the evidentiary record in this

case—including uncontroverted evidence of the Union’s

months-long delays and failures to provide explanations

for refusing to bargain—the dissent would have held

that the Union was “guilty of systematically evasive and

dilatory bargaining that permitted [HRD] to lawfully

implement its last offer.” Id. at 35a (citation modified). 5

The majority addressed the argument anyway. Pet. App. 21a-24a.

The majority’s conclusion, which was effectively dicta since it

addressed the argument, is “belied by the record.” Id. at 36a

(Walker, J., dissenting). HRD’s entire argument below was that

the Union engaged in unjustified delays throughout the entire

bargaining process, culminating in the refusal to bargain by

insisting on the impossible condition of meeting in person with a

federal mediator when there was no prospect for doing so. Any

fair reading of the record—including the fact that the Board

understood and responded to HRD’s argument—demonstrates

that HRD’s position was fully preserved.

5. The dissent also voiced “doubts about the soundness of the

[Board’s] reasoning regarding impasse.” Hood River Distillers,

Inc., 130 F.4th at 223 n.27. However, because the Board’s denial

of HRD’s dilatory tactics defense lacked substantial evidence, the

dissent would have granted HRD’s petition without addressing

impasse.

13

REASONS FOR GRANTING THE PETITION

I.

This case presents an important question regarding

the meaning of “substantial evidence” review and

the outer limits of judicial deference to the Board.

The Board’s decisions, like all final orders of

administrative agencies, are subject to judicial review.

Reviewing courts are authorized to set aside the Board’s

orders, provided that “findings of the Board with respect

to questions of fact if supported by substantial evidence on

the record considered as a whole shall in like manner be

conclusive.” 29 U.S.C. § 160(f); see also 5 U.S.C. § 706(2)

(E) (reviewing courts shall “hold unlawful and set aside

agency action, findings, and conclusions found to be . . .

unsupported by substantial evidence”). Yet, over the

years, this Court has articulated varying definitions of

substantial evidence. The result has been an elusive legal

standard that has lacked consistent application by the

courts and has allowed the Board’s decisions to escape

meaningful judicial review.

When the Act was originally signed into law in 1935,

it required courts to accept the Board’s factual findings

if supported by “evidence.” National Labor Relations Act,

Pub. L. 74-198 § 10, 49 Stat. 449, 454 (1935). This Court

nevertheless interpreted the reference to “evidence”

as requiring the Board’s findings to be supported by

“substantial evidence.” Consol. Edison Co. of New York v.

NLRB, 305 U.S. 197, 229 (1938). Substantial evidence, the

Court explained, “is more than a mere scintilla. It means

such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id.; see also id. at

230 (noting that the “desirable flexibility in administrative

14

procedure does not go so far as to justify orders without

a basis in evidence having rational probative force”).

The very next year, the Court provided additional

guidance in NLRB v. Columbian Enameling & Stamping

Co., 306 U.S. 292 (1939). The Court explained that

evidence is substantial, as required to support the Board’s

conclusions under the Act, when the evidence “afford[s] a

substantial basis of fact from which the fact in issue can

be reasonably inferred.” Id. at 299. The Court re-affirmed

its prior guidance from Consolidated Edison, and further

explained that substantial evidence “must be enough to

justify, if the trial were to a jury, a refusal to direct a

verdict when the conclusion sought to be drawn from it is

one of fact for the jury.” Id. at 300.

Despite that clarification, in the years that followed,

some courts interpreted the substantial evidence

standard as allowing or requiring the Board’s findings

to be affirmed “when the reviewing court could find in

the record evidence which, when viewed in isolation,

substantiated the Board’s findings.” Universal Camera

Corp. v. NLRB, 340 U.S. 474, 487–88 (1951). Congress’s

response was twofold: In 1946, Congress enacted the

federal Administrative Procedure Act, and in 1947,

Congress amended the Act to formally require that the

Board’s findings be supported by “substantial” evidence.

This Court addressed the impact of these changes on

review of Board decisions in Universal Camera. Writing

for the Court, Justice Frankfurter noted the inherent

difficulty in attempting to define the standards that govern

judicial review of agency factfinding. Universal Camera

Corp., 340 U.S. at 465. At the same time, he emphasized

15

the Court’s duty to recognize Congress’s “disapproval

of the finality accorded to [the Board’s] findings by

some decisions of this and lower courts, or even of the

atmosphere which may have favored those decisions.”

Id. at 490. After reviewing Congress’s enactments and

supporting legislative history, the Court held:

[T]he Administrative Procedure Act and the

[amendments to the Act] direct that courts

must now assume more responsibility for the

reasonableness and fairness of Labor Board

decisions than some courts have shown in the

past. Reviewing courts must be influenced

by a feeling that they are not to abdicate the

conventional judicial function. Congress has

imposed on them responsibility for assuring

that the Board keeps within reasonable grounds.

That responsibility is not less real because it

is limited to enforcing the requirement that

evidence appear substantial when viewed, on

the record as a whole, by courts invested with

the authority and enjoying the prestige of the

Courts of Appeals. The Board’s findings are

entitled to respect; but they must nonetheless

be set aside when the record before a Court of

Appeals clearly precludes the Board’s decision

from being justified by a fair estimate of the

worth of the testimony of witnesses or its

informed judgment on matters within its special

competence or both.

Id. (emphasis added). Although the decision did not cause

a seismic shift in judicial review of agency factfinding,

it made clear that courts are not free to abdicate their

16

judicial responsibility for ensuring that the Board’s

conclusions are reasonably supported by substantial

evidence based on the record as a whole, “including the

body of evidence opposed to the Board’s view.” Id. at 488.

Unfortunately, subsequent decisions provided little

clarity as to the outer limits of judicial deference under

substantial evidence review. For example, in Consolo

v. Federal Maritime Commission, the Court ruled

that an appellate court erred by concluding that it was

required to reverse “if ‘substantial evidence’ or ‘the

substantial evidence’ supports a conclusion contrary to

that reached by the [Federal Maritime] Commission.”

383 U.S. 607, 619–21 (1966). Instead, the Court explained

that substantial evidence is “something less than the

weight of the evidence, and the possibility of drawing

two inconsistent conclusions from the evidence does not

prevent an administrative agency’s finding from being

supported by substantial evidence.” Id. at 620. But in

Allentown Mack Sales & Service, Inc. v. NLRB, the

Court ruled that the Board’s factfinding lacked substantial

evidence where the Board failed to credit certain evidence

in the record as a whole:

When the Board purports to be engaged in

simple factfinding, unconstrained by substantive

presumptions or evidentiary rules of exclusion,

it is not free to prescribe what inferences from

the evidence it will accept and reject, but must

draw all those inferences that the evidence fairly

demands. “Substantial evidence” review exists

precisely to ensure that the Board achieves

minimal compliance with this obligation, which

is the foundation of all honest and legitimate

adjudication.

17

522 U.S. 359, 378–89 (1998). The very next year, the Court

likened substantial evidence to the “clearly erroneous”

standard used to review factfinding by the district courts,

while simultaneously suggesting that substantial evidence

is even less exacting and more favorable to agencies. See

Dickinson v. Zurko, 527 U.S. 150, 153 (1999).

Thus, after nearly a century of jurisprudence, the

meaning of “substantial evidence”—and what it requires

of a reviewing court—remains unclear. Sometimes, it

is shorthand for evidence that a reasonable mind might

accept as adequate to support a conclusion. Other times,

it is “more than a mere scintilla of evidence”—a standard

that would seemingly contradict the Court’s holding

in Universal Camera by allowing reviewing courts to

affirm so long as the record contains any support for the

agency’s ultimate conclusion, no matter the countervailing

evidence. And in other cases, it is something less than the

weight of the evidence in the record as a whole, but more

than what would ordinarily be required to reverse under

the clearly erroneous standard of review.

The result is an amorphous legal standard that lacks

consistent application and has permitted courts to revert

to the old practice of reviewing decisions for any evidence

that could conceivably justify the Board’s ruling, instead

of determining whether the Board’s ruling is a reasonable

reflection of the evidence in the record as a whole.

II. The decision below is wrong.

The decision in this case provides a stark example of

how misapplication of the substantial evidence standard

has allowed the Board’s decisions to escape meaningful

judicial review.

18

HRD spent an astounding 14 months attempting

to reach a successor collective bargaining agreement

with the Union.6 That the parties only met seven times

during those 14 months was overwhelmingly the result of

the Union’s dilatory bargaining tactics. Whereas HRD

consistently pushed to schedule negotiations, the Union

rejected over 70 bargaining dates offered by HRD and

caused months of delay at a time. For example:

• The Union spent a month ignoring HRD’s requests

to bargain in April and May of 2019;

• The Union failed to respond to HRD’s requests

to meet in August 2019, and when HRD provided

dates, rejected them without providing alternative

meeting dates;

• The Union refused to schedule bargaining on any

subject for months while comparing health benefits.

6. Indeed, the length of bargaining in this case was far longer

than in cases where the employer was held entitled to implement

changes due to impasse. See, e.g., TruServ Corp. v. NLRB, 254

F.3d 1105, 1110 n.3, 1118 (D.C. Cir. 2001) (impasse after eight

meetings in six weeks); AMF Bowling Co. v. NLRB, 63 F.3d 1293,

1296–97, 1301 (4th Cir. 1995) (impasse after seven meetings in

about six weeks); NLRB v. Gibraltar Industries, Inc., 653 F.2d

1091, 1094–96 (6th Cir. 1981) (impasse after two meetings in eight

weeks); I. Bahcall Industries, Inc., 287 NLRB 1257, 1262 (1988)

(impasse after six meetings in six weeks); Hamady Bros. Food

Markets, Inc., 275 NLRB 1335, 1336–38 (1985) (impasse after

five meetings in nearly nine weeks); McAllister Bros., Inc., 312

NLRB 1121, 1122, 1125–29 (1993) (impasse after eight meetings

in nearly 11 weeks).

19

Even when the Union did agree to meet, it manufactured

significant bargaining delays. When HRD wanted to meet

in April or May of 2019, the Union eventually proposed

dates in June; when HRD wanted to meet in August

2019, the Union eventually proposed late September;

when HRD wanted to meet in December 2019, the Union

proposed January 2020; and when HRD wanted to meet

in February 2020, the Union proposed March 2020.

Hood River Distillers, Inc., 130 F.4th at 220 (Walker, J.,

dissenting). These delays allowed the Union to continue to

enjoy the benefits of its long-expired collective bargaining

agreement, while avoiding the concessions being sought

by HRD.

By Spring of 2020, the Union found a new tool for

avoiding bargaining to impasse: the COVID-19 pandemic.

Despite rejecting HRD’s suggestion to bargain with a

federal mediator in February 2020, in March 2020—

when federal mediators were no longer conducting inperson mediation due to COVID-19 restrictions—the

Union insisted that mediating in person was absolutely

critical. And as of May 1, 2020—the date that HRD set

for implementing its final offer—the Union continued to

refuse to schedule any further bargaining at all, despite

knowing that in-person bargaining with a federal mediator

had been impossible for over a month and remained

impossible, indefinitely.

To summarize, the evidence before the Board

reflected more than six months of delay that is solely

attributable to the Union. When caused by an employer,

significantly shorter delays have been held to violate

the Act. See, e.g., Coreslab Structures (TULSA), Inc. v.

NLRB, 100 F.4th 1123, 1140 (10th Cir. 2024) (upholding

20

Board’s finding that employer failed to bargain in good

faith by refusing to meet with union more than three

times over five months, despite repeated requests from

union); NLRB v. Ingredion Inc., 930 F.3d 509, 517 (D.C.

Cir. 2019) (employer that took 11 weeks to provide pension

information to union violated Section 8(a)(5) of the Act);

Calex Corp. v. NLRB, 144 F.3d 904, 909 (6th Cir. 1998)

(employer violated the Act where the parties held “only

19 bargaining sessions” in the 15 months following union’s

certification due to employer’s cancellation of bargaining

dates and repeated refusal to accept union’s requests to

meet more frequently); Woodland Clinic, 331 NLRB 735,

737 (2000) (employer’s unjustified 7-week delay in providing

information requested by union violated Section 8(a)(5)).

Likewise, had HRD spent three months flatly refusing

to meet based on its desire to focus on a single subject

of mandatory bargaining, it would have committed an

unfair labor practice. See generally Troutbrook Co. LLC

v. NLRB, 107 F.4th 994, 1001 (D.C. Cir. 2024) (employer

violated the Act by refusing to bargain on economic

subjects until non-economic subjects were resolved);

Bundy Corp., 292 NLRB 671, 672 (1989) (employer

violated the Act by conditioning its willingness to meet

on its ability to review union’s proposals in advance of

bargaining, and then proceeding to delay supplying union

with necessary information to prepare those proposals

for 2.5 months). But instead of holding the Union to the

same standards, the Board ruled that it was HRD who

had unlawfully failed to bargain. The Board reached that

conclusion by discounting, in a footnote, uncontroverted

evidence of the Union’s delay tactics and refusals to meet

with HRD. Pet. App. 53a-54a.7

7. The Board’s ruling is inconsistent even with its own prior

decisions, where it applied the dilatory tactics defense in cases

21

The court of appeals affirmed in a split-panel decision.

Instead of considering the “record in its entirety . . .

including the body of evidence opposed to the Board’s

view” to determine whether the Board had “draw[n] all

those inferences that the evidence fairly demands,” the

majority searched for any possible justifications to support

the Board’s ultimate conclusion. See Hood River Distillers,

Inc., 130 F.4th at 216 (“[T]here are myriad possible

explanations for [the Union’s delays], and we should neither

act as factfinders ourselves nor substitute our judgment

for that of the Board.”); see also id. (“Our precedents

leave no doubt that substantial evidence is a deferential

standard of review.”). It did so despite uncontroverted

evidence of the Union’s extensive delays and refusals to

bargain, and despite the lack of corresponding evidence (as

opposed to mere conjecture and speculation) to justify the

Union’s behavior. The court erred when it concluded that

it was required to defer to the Board and had “no choice

but to affirm” under the substantial evidence standard of

review. Id. at 217.

***

This Court should accept review because the decision

in this case, like in many others, stretches judicial

deference to the Board well past its breaking point. The

question in substantial evidence cases cannot be whether

there are “possible explanations” that are consistent

with the Board’s ultimate conclusion, no matter what

the overwhelming weight of the evidence shows. See

where the employer’s diligent efforts to reach agreement were

met with a union’s steadfast refusals to bargain. See M & M

Contractors, 262 NLRB at 1478; Sw. Portland Cement Co., 289

NLRB at 1275–77; AAA Motor Lines, Inc., 215 NLRB at 794.

22

Hood River Distillers, Inc., 130 F.4th at 216. Instead,

the question should be whether the Board’s conclusion

reasonably flows from the evidence adduced when the

record is considered as a whole, including the body of

evidence weighing against the Board’s finding. In making

that determination, courts cannot abdicate judicial

responsibility for critically examining the record to

independently verify that the Board’s decisions are within

reason. To conclude otherwise would eviscerate the right

to obtain meaningful judicial review.

Moreover, the consequences of this erroneous

decision are significant, both for HRD and for other

employers attempting to understand and satisfy their

obligations under the Act. The upshot is that a union can

delay bargaining for months on end, and when impasse

looms dangerously close, refuse to bargain entirely—

all without violating its obligations under the Act. The

decision eviscerates the dilatory tactics defense and

provides unions with a new tool for avoiding impasse and

enjoying the benefits of long-expired collective bargaining

agreements. Review should be granted because this case

presents an appropriate vehicle for this Court to provide

definitive guidance as to when an employer may lawfully

change the terms and conditions of employment based on

a union’s bargaining misconduct.

III. This Court’s guidance is needed to preserve the

right of employers to obtain meaningful judicial

review of the Board’s labor policies.

Although the availability of meaningful judicial

review is important in all administrative proceedings, it

is especially critical to employers subject to the Act.

23

The Board sets labor policy for the entire country.

Moreover, the Board is unique among its federal

counterparts in that it does so almost exclusively through

case-by-case adjudication, as opposed to rulemaking. See

Allentown, 522 U.S. at 374 (“The [Board], uniquely among

major federal administrative agencies, has chosen to

promulgate virtually all the legal rules in its field through

adjudication rather than rulemaking.”). The availability

of substantive judicial oversight is therefore critical to

ensuring that the Board’s development of labor policy

does not go unchecked.

Absent such review, the fate of employers is effectively

determined by an administrative law judge whose findings

are routinely accepted by the Board with little explication.

And even when the Board departs from those findings,

it almost invariably does so to the disadvantage of the

employer. This is no small matter. As demonstrated by

this case, these findings and decisions serve as the basis

for severe “remedies” including backpay awards, makewhole damages, and the like—remedies that threaten to

shutter a business in its entirety, no matter the lengths to

which it goes to comply with its obligations under the Act.

Judicial review is not, or should not be, a “rubber

stamp.” That is particularly true here, where the agency

acts as both prosecutor and adjudicator in setting policy.

Allowing the Board to continue to do so, effectively with a

thumb on the scale favoring unions over employers, leaves

employers without any meaningful review. Congress has

made clear that the ultimate responsibility for the Board’s

decisions lies with the courts, who must ensure that the

Board keeps within reasonable grounds. See Universal

Camera, 340 U.S. at 490 (“Reviewing courts must be

24

influenced by a feeling that they are not to abdicate the

conventional judicial function. Congress has imposed on

them responsibility for assuring that the Board keeps

within reasonable grounds.”). Unfortunately, the role of

reviewing courts has been diminished over the years by a

lack of clarity and consistency in applying the substantial

evidence standard. This Court should accept review to

correct that departure and reinforce the right to effective

judicial review of the Board’s decisions under the Act.

CONCLUSION

Based on the foregoing, HRD requests that the Court

grant this petition.

Respectfully submitted,

Sasha A. Petrova

Counsel of Record

Steven Wilker

Tonkon Torp LLP

1300 SW Fifth Avenue,

Suite 2400

Portland, OR 97201

(503) 802-2130

sasha.petrova@tonkon.com

Counsel for Petitioner

July 29, 2025

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLU M BI A CIRCUIT,

FILED MARCH 7, 2025 . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — DECISION, ORDER, AND

NO TICE T O SHOW CAUSE OF T HE

NATIONAL LABOR RELATIONS BOARD,

FILED AUGUST 24, 2023 . . . . . . . . . . . . . . . . . . . . . 39a

APPENDIX C — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLU M BI A CIRCUIT,

FILED APRIL 30, 2025 . . . . . . . . . . . . . . . . . . . . . 223a

APPENDIX D — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225a

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT,

FILED MARCH 7, 2025

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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

Argued December 13, 2024

Decided March 7, 2025

Before: Walker, Childs, and Pan, Circuit Judges.

Opinion for the Court filed by Circuit Judge Pan.

Dissenting opinion filed by Circuit Judge Walker.

2a

Appendix A

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 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

3a

Appendix 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

4a

Appendix A

401(k)-match program with no changes. Hood River’s

negotiating team expressed enthusiasm about the Union’s

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

5a

Appendix A

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.

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.

6a

Appendix A

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. Hood River sought to reschedule for midFebruary; 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.

7a

Appendix A

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 fouryear 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 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 healthplan 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.

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, 463 U.S. App. D.C.

413 (D.C. Cir. 2023).

8a

Appendix A

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.

9a

Appendix A

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

10a

Appendix A

the conclusion of the strike, even if the employer has hired

replacements.” Spurlino Materials, LLC v. NLRB, 805

F.3d 1131, 1137, 420 U.S. App. D.C. 77 (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, 293 U.S. App. D.C. 41 (D.C. 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.

11a

Appendix A

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 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

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,

12a

Appendix A

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.

“Ou r rev iew of Boa rd un fa i r labor pract ice

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, 398

U.S. App. D.C. 356 (D.C. Cir. 2011) (cleaned up); see also

29 U.S.C. § 160(e) (directing courts to review the Board’s

factual 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

and (4) ceasing to collect dues from employees’ paychecks under

the expired agreement.

13a

Appendix A

outcome in order to sustain its decisions.” Bally’s Park

Place, Inc. v. NLRB, 646 F.3d 929, 935, 396 U.S. App.

D.C. 205 (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 violates this duty to bargain if” it “unilaterally”

changes employment terms “absent a final agreement or

14a

Appendix A

a bargaining impasse.” TruServ Corp. v. NLRB, 254 F.3d

1105, 1113, 347 U.S. App. D.C. 61 (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, 463 U.S. App. D.C. 413 (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

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.

15a

Appendix A

On healthcare, the Union agreed to switch its members

to the company-sponsored Blue Cross plan. 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.

16a

Appendix A

Hood River’s reliance on Mike-Sell’s Potato Chip

Co. v. NLRB, 807 F.3d 318, 420 U.S. App. D.C. 213 (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 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,’

17a

Appendix A

the other party ‘insists on continually avoiding or

delaying bargaining.’” Serramonte Oldsmobile, Inc. v.

NLRB, 86 F.3d 227, 235, 318 U.S. App. D.C. 153 (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, 341 U.S. App.

D.C. 99 (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 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 goodfaith 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.

18a

Appendix A

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, 372 U.S. App. D.C. 66 (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 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

19a

Appendix A

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

20a

Appendix A

pages to 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, 321 U.S. App. D.C. 274

(D.C. Cir. 1996); cf. Schneider v. Kissinger, 412 F.3d 190,

200 n.1, 366 U.S. App. D.C. 408 (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 prepandemic 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 dilatorytactics exception. See Dissent 10. Instead, our dissenting

colleague points to a different section of Hood River’s

21a

Appendix A

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

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, 357 U.S. App. D.C. 231 (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 prepandemic 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

22a

Appendix A

deferential standard of review. See Island Architectural

Woodwork, Inc. v. NLRB, 892 F.3d 362, 370, 436 U.S.

App. D.C. 113 (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, 139 S. Ct. 1148, 203

L. Ed. 2d 504 (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, 456 U.S. App. D.C.

60 (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 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

23a

Appendix A

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 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

24a

Appendix A

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 by the courts.” Woelke &

Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666, 102

S. Ct. 2071, 72 L. Ed. 2d 398 (1982).

Hood River argues that it did not need to seek

reconsideration because it objected before the Board “to

25a

Appendix A

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, 462 U.S. App. D.C. 216 (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.

26a

Appendix A

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

27a

Appendix A

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 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.

28a

Appendix A

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 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

1. JA 883.

29a

Appendix A

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

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

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.

3. 29 U.S.C. § 158(a), (b).

4. Id. § 158(a)(5), (b)(3).

30a

Appendix A

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

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

5. Id. § 158(a), (d).

6. Thrifty Payless, Inc. v. NLRB, 86 F.4th 909, 919, 463 U.S.

App. D.C. 413 (D.C. Cir. 2023).

7. 29 U.S.C. § 160(e), (f).

8. Consolidated Edison Co. of New York v. NLRB, 305 U.S.

197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (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.

31a

Appendix A

finding that the Union resisted the temptation to delay

for the sake of delay.10

III. The NLRB’s Rejection Of Hood River’s DilatoryTactics 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 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

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)).

11. Petitioner Br. 29; see also JA 504, 518, 591, 594-95, 602,

664, 674, 692, 701-02, 884, 889, 891.

32a

Appendix A

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 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

12. See, e.g., TruServ Corp. v. NLRB, 254 F.3d 1105, 1110

n.3, 1118, 347 U.S. App. D.C. 61 (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).

33a

Appendix A

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/CK4DZ3QT.

15. Consolidated Edison, 305 U.S. at 229.

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.

34a

Appendix A

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-toimpossible, 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 eleventhhour 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.

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)).

35a

Appendix A

Therefore, to the extent the NLRB aff irmed

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’

17. Wayneview Care Center v. NLRB, 664 F.3d 341, 349,

398 U.S. App. D.C. 356 (D.C. Cir. 2011) (quoting United Food &

Commercial Workers Union Local 204 v. NLRB, 447 F.3d 821, 824,

371 U.S. App. D.C. 46 (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.

36a

Appendix A

dealings.” 20 That contention, not raised by the NLRB, is

belied by the record. Hood River lodged an 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”;

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”)).

21. JA 334.

22. Id. at 338.

23. Id.

37a

Appendix A

• “[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”;

• “[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

24. Id. at 295-300.

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

413, 419, 321 U.S. App. D.C. 274 (D.C. Cir. 1996).

38a

Appendix A

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.

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

26. 29 U.S.C. § 160(e).

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, 102 S. Ct.

2071, 72 L. Ed. 2d 398 (1982).

39a

B

APPENDIX BAppendix

— DECISION,

ORDER,

AND NOTICE TO SHOW CAUSE OF THE

NATIONAL LABOR RELATIONS BOARD,

FILED AUGUST 24, 2023

NATIONAL LABOR RELATIONS BOARD

372 NLRB No. 126

HOOD RIVER DISTILLERS, INC., AND

TEAMSTERS LOCAL UNION NO. 670 AND

BOARD OF TRUSTEES OF THE OREGON

PROCESSORS EMPLOYEES TRUST FUND.

Cases 19-CA-260013, 19-CA-264083,

19-CA-265595, 19-CA-267920, and 19-CA-268290

August 24, 2023

DECISION, ORDER, AND

NOTICE TO SHOW CAUSE

NOTICE:

This opinion is subject to formal revision before

publication in the bound volumes of NLRB decisions.

Readers are requested to notify the Executive Secretary,

National Labor Relations Board, Washington, D.C.

20570, of any typographical or other formal errors so

that corrections can be included in the bound volumes.

By Chairman McFerran and Members Wilcox and Prouty

On December 10, 2021, Administrative Law Judge

Geoffrey Carter issued the attached decision.1 The

1. We have amended the caption to reflect the administrative

law judge’s severance and remand of Case 19-RD-271944 to the

40a

Appendix B

Respondent filed exceptions and a supporting brief, and

the General Counsel and the Charging Party Union

filed answering briefs. The General Counsel filed crossexceptions and a supporting brief, and the Respondent

filed an answering brief.

The National Labor Relations Board has delegated

its authority in this proceeding to a three-member panel.

Regional Director for Region 19. Following remand, the Regional

Director dismissed the decertification petition based on his finding

of a causal relationship between employee disaffection and the

Respondent’s unfair labor practices discussed herein. In a November

2, 2022 Order, the Board denied the Respondent’s request for review

of the Regional Director’s dismissal of the petition.

On May 26, 2021, the United States District Court for the

District of Oregon issued an amended preliminary injunction

under Sec. 10(j) of the National Labor Relations Act, enjoining the

Respondent from refusing to bargain in good faith with Teamsters

Local Union No. 670 (the Union), threatening unfair labor practice

strikers with permanent replacement while mischaracterizing their

reinstatement rights, refusing to reinstate unfair labor practice

strikers (other than Ismael Marquez and Jaime Viramontes) to

their former positions and status, and unilaterally changing unit

employees’ terms and conditions of employment in the absence of a

valid impasse. Hooks v. Hood River Distillers, Inc., 2021 U.S. Dist.

LEXIS 99749, 2021 WL 2142609 (D.Or. May 26, 2021). Pending our

disposition of these allegations, the court ordered the Respondent,

inter alia, to bargain in good faith with the Union, reinstate all unfair

labor practice strikers except for Marquez and Viramontes, rescind

its unilateral changes at the Union’s request, and read the court’s

order to unit employees. The Respondent appealed. On December

28, 2021, the United States Court of Appeals for the Ninth Circuit

granted the parties’ joint motion to voluntarily dismiss the appeal

with prejudice. Hooks v. Hood River Distillers, Inc., 2021 U.S. App.

LEXIS 40170, 2021 WL 8363432 (9th Cir. Dec. 28, 2021).

41a

Appendix B

The Board has considered the decision and

the record in light of the exceptions and briefs

and has decided to affirm the judge’s rulings, 2

2. We agree with the judge that Sec. 10(b) of the Act did not

bar the General Counsel’s amendment of the complaint on the first

day of the hearing to allege that the Respondent violated Sec. 8(a)

(5) and (1) by unilaterally granting employees four additional paid

holidays in late December 2020 and unilaterally changing its paidtime-off policy in early January 2021. Such amendment has been

allowed under similar circumstances. See, e.g., Roslyn Gardens

Tenants Corp., 294 NLRB 506, 507 (1989) (charge and amended

complaint sufficiently related under Sec. 10(b) where, as here, “all

the allegations . . . allege violations of [Sec. 8(a)(5)], . . . they grow out

of the same factual situation, the [r]espondent’s failure and refusal

to bargain with the [u]nion, and . . . the alleged conduct is directed

at the same object, the circumvention of the collective-bargaining

process”); accord NLRB v. Fant Milling Co., 360 U.S. 301, 79 S.

Ct. 1179, 3 L. Ed. 2d 1243 (1959). We likewise find no merit in the

Respondent’s argument on exception that the amendment denied it

due process under the factors set forth in Rogan Bros. Sanitation,

Inc., 362 NLRB 547, 549 fn. 8 (2015), enfd. sub nom. R & S Waste

Services, LLC v. NLRB, 651 Fed.Appx. 34 (2d Cir. 2016). Applying

those factors, we note that the Respondent has not shown that it was

surprised or lacked notice. Indeed, there has been no showing that

the Respondent lacked the opportunity to defend against the new

allegations, and the Respondent does not argue that it unsuccessfully

requested additional time to prepare. See, e.g., Zurn/N.E.P.C.O.,

345 NLRB 12, 12 fn. 3 (2005) (noting respondent’s failure to

show inadequate opportunity to prepare a defense to the granted

amendments), rev. denied sub nom. Northern Michigan Building &

Construction Trades Council v. NLRB, 243 Fed.Appx. 898 (6th Cir.

2007). Additionally, to the extent there was any delay by the General

Counsel, the delay was excusable because the Union did not receive

notice of the changes until days before the hearing. Finally, the new

allegations were also fully litigated.

42a

Appendix B

Chairman McFerran and Member Prouty also agree that the

judge did not abuse his discretion under Sec. 102.17 of the Board’s

Rules and Regulations by denying the General Counsel’s motion to

amend the complaint to allege that the Respondent violated Sec.

8(a)(5) by eliminating its janitorial position and several Bracket 1

positions during the strike. In each case our dissenting colleague

cites, the matter had been fully litigated, and the amendment

conformed the complaint to the evidence. The Board therefore found

that the judge should have permitted the General Counsel to add an

8(a)(1) allegation. No such circumstances are present in this case.

Unlike her colleagues, Member Wilcox would find the judge’s ruling

to be an abuse of discretion. In support, she notes that the Board has

found denials of motions to amend to be an abuse of discretion where,

as here, the respondent’s counsel elicits testimony establishing the

violation from the respondent’s witnesses and the General Counsel

requests amendment without undue delay. Here, both parties would

have had the opportunity to present relevant evidence and otherwise

fully litigate the issue if the judge had permitted the amendment.

See, e.g., Pincus Elevator & Electric Co., 308 NLRB 684, 684-685

(1992) (finding that “as the matter has been fully litigated and the

amendment conforms the complaint to the evidence, the judge should

have granted the motion”), enfd. mem. 998 F.2d 1004 (3d Cir. 1993);

Citizens National Bank of Willmar, 245 NLRB 389, 390-391 (1979)

(reversing judge’s refusal to allow the General Counsel to amend

the complaint during the hearing after testimony from respondent’s

witness established potential violation), enfd. mem. sub nom. Willmar

Bank Employees Assn. v. NLRB, 644 F.2d 40 (D.C. Cir. 1981).

43a

Appendix B

findings, 3 and conclusions4 only to the extent consistent

with this Decision, Order, and Notice to Show Cause.

This proceeding arose from the parties’ negotiations

for a successor collective-bargaining agreement. In May

2020, 5 the Respondent declared impasse and unilaterally

implemented its final offer. The unit employees went on

strike in response. We affirm the judge’s findings, for the

reasons he states and those set forth herein, that the strike

was an unfair labor practice strike, that the Respondent

violated Section 8(a)(1) of the Act by telling strikers on

June 30 and July 30 that it could or would permanently

replace them,6 and that it violated Section 8(a)(3) and (1)

3. The Respondent has excepted to some of the judge’s

credibility findings. The Board’s established policy is not to overrule

an administrative law judge’s credibility resolutions unless the clear

preponderance of all the relevant evidence convinces us that they are

incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.

188 F.2d 362 (3d Cir. 1951). We have carefully examined the record

and find no basis for reversing the findings. In addition, some of the

Respondent’s exceptions allege that the judge’s rulings, findings, and

conclusions demonstrate bias and prejudice. On careful examination

of the judge’s decision and the entire record, we are satisfied that

the Respondent’s contentions are without merit.

4. We have amended the judge’s conclusions of law and remedy

consistent with our findings herein. We shall modify the judge’s

recommended Order and substitute a new notice to conform to

our findings and the Board’s standard remedial language, and in

accordance with Paragon Systems, Inc., 371 NLRB No. 104 (2022),

and Excel Container, Inc., 325 NLRB 17 (1997).

5. All dates are in 2020 unless otherwise noted.

6. See Redway Carriers, 274 NLRB 1359, 1360 (1985) (“[A]ny

indication to [unfair labor practice strikers] that they could not return

to work at any time they chose violates Sec[.] 8(a)(1).”)

44a

Appendix B

by discharging the strikers on July 307 and subsequently

refusing to reinstate them upon their unconditional offers

to return to work on August 27. We likewise affirm the

judge’s finding that the Respondent violated Section 8(a)(5)

and (1) by unilaterally granting unit employees additional

paid holidays in late December and implementing a new

paid-time-off policy in January 2021. 8 For the reasons

he states and those set forth herein, we also adopt the

judge’s dismissal of allegations that the Respondent

violated Section 8(a)(5) and (1) by unilaterally exempting

the strike replacement employees from introductory

work and wage requirements contained in the expired

collective-bargaining agreement,9 and Section 8(a)(3) by

7. We adopt this finding for the reasons stated by the judge.

Moreover, we note that the Respondent excepted to this finding only

on the mistaken basis that the strike was an economic strike and

that the Respondent therefore had the right to permanently replace

the strikers. We adopt the judge’s finding for this reason as well.

8. The judge incorrectly stated that implementation of these

changes occurred when the Respondent first announced them to unit

employees on September 18. See, e.g., Bemis Co., 370 NLRB No. 7,

slip op. at 1 fn. 3 (2020) (finding announcement of change distinct

from implementation). See also Howard Electrical & Mechanical,

293 NLRB 472, 475 (1989) (finding that “the judge erroneously dated

the actual implementation from the Respondent’s announcement

of an intent to implement”), enfd. 931 F.2d 63 (10th Cir. 1991). We

therefore correct the judge’s error.

9. In dismissing this allegation, we rely only on the judge’s

finding that the Board does not require an employer to bargain

with a union over the terms and conditions of employment for strike

replacements hired during a strike. See Detroit Newspapers, 327

NLRB 871, 871-872 (1999). The judge also noted that the General

Counsel failed to present evidence that the Respondent exempted

strike replacement employees from introductory work and wage

45a

Appendix B

informing unfair labor practice strikers on June 30 that

they had been permanently replaced.10

requirements in an effort to undermine the Union. Because there is

no allegation that the Respondent acted with such intent, we do not

rely on the judge’s consideration of that question. See Beverly Health

& Rehabilitation Services, 335 NLRB 635, 638 (2001) (no basis to

consider respondent’s intent in cases “involv[ing] only a respondent’s

8(a)(5) right to hire and set the terms and conditions of employment

of replacement workers without bargaining with the union”), rev.

denied 317 F.3d 316, 354 U.S. App. D.C. 414 (D.C. Cir. 2003).

Member Prouty agrees with his colleagues in adopting the

judge’s dismissal of this allegation. He observes that no party has

asked the Board to reconsider or overrule Detroit Newspapers,

supra.

10. The General Counsel alleged that the Respondent unlawfully

informed unfair labor practice strikers of their discharges via a

television news segment that aired on June 30. The judge found that

an on-camera statement by Erica Mitchell, the Respondent’s chief

financial officer, did not inform employees that the Respondent had in

fact permanently replaced them. The General Counsel cross-excepts,

arguing that the newscaster’s introduction to the segment showed

that the Respondent told the news station that the strikers had

been permanently replaced, and the Respondent did not dispute the

segment’s accuracy. The introduction stated that “[s]triking workers

at Hood River Distillers likely won’t be getting their jobs back. We

learned that today from management. They say they’ve already

hired 20 workers to replace the 25 Teamsters union employees who

hit the picket line on May 6.” In adopting the judge’s dismissal of this

allegation, we find no merit to the General Counsel’s contention that

this hearsay evidence establishes the truth of the matter asserted

(i.e., that the Respondent said the strikers had been replaced). See,

e.g., Boeing Co., 364 NLRB 158, 158 fn. 3 (2016) (upholding judge’s

admission of statement attributed to employer executive in news

article “to show what is on the face of the article, not to show the truth

of any matter asserted in the article”); Sheet Metal Workers Local

46a

Appendix B

In addition, as discussed in greater detail below, we

agree with the judge that the Respondent violated Section

8(a)(5) and (1) by unilaterally implementing its final offer

in the absence of a good-faith impasse. However, we

reverse his dismissal of the allegation that the Respondent

violated Section 8(a)(5) and (1) by unilaterally ceasing dues

checkoff for unit employees. We shall also sever and retain

the allegations that the Respondent violated Section 8(a)

(3) and (1) by discharging two strikers for alleged picketline misconduct and issue a notice to show cause why

these allegations should not be remanded to the judge for

further proceedings.

15 (Brandon Regional Medical Center), 346 NLRB 199, 201-202

(2006) (CEO’s alleged statement was inadmissible hearsay because

“[a]lthough the statement is attributed to the CEO, the fact remains

that the statement in the document is the statement of the reporter,

attributing it to the CEO”), review granted on other grounds 491

F.3d 429, 377 U.S. App. D.C. 38 (D.C. Cir. 2007). We also find that the

Respondent’s purported failure to contest the on-camera statement

is not sufficient to show that it adopted the statement or otherwise

believed it to be true. See, e.g., Ricciardi v. Children’s Hospital

Medical Center, 811 F.2d 18, 24 (1st Cir. 1987) (party did not show that

accused wrongdoer “manifested his adoption or belief” in the truth of

hearsay statement because there was no evidence of him “seeing the

[document] or his reaction to it”). See generally Fed.R.Evid. 801(d)

(2)(B) (statement offered against an opposing party is not hearsay

where it is “one the [opposing] party manifested that it adopted or

believed to be true”).

47a

Appendix B

I.

THE RESPONDENT’S DECLARATION OF

IMPASSE AND IMPLEMENTATION OF ITS

FINAL OFFER

A.

The facts are set forth in greater detail in the

judge’s decision. Briefly, the Union represents a unit of

approximately 25 employees working at the Respondent’s

distillery in Hood River, Oregon. The Respondent and

the Union began bargaining for a successor collectivebargaining agreement in late February 2019. Much of the

negotiations—and the parties’ resulting disagreement—

stemmed from the Respondent’s desire to cut costs

following its sale of the rights to its best-selling liquor

brand. This entailed the pursuit of changes to unit

employees’ health insurance benefits, along with a wage

freeze. The parties bargained for approximately 14 months

before the Respondent declared impasse on May 1 and

unilaterally implemented its final offer, which included

changes to employees’ wages, health insurance benefits,

the matching contribution formula for employees’ pension

plan, and changes to the conditions under which the union

representatives could access the Respondent’s facility.

T he compla i nt a l leges t hat t he Respondent

implemented its final offer without reaching a valid

impasse in bargaining, thereby failing and refusing to

bargain collectively and in good faith with the Union in

violation of Section 8(a)(5) and (1). In finding the violation,

the judge emphasized that the parties made significant

progress over the course of negotiations on key elements,

including unit employees’ health insurance benefits. He

48a

Appendix B

further found that the Union’s proposals at the final March

30 bargaining session showed that the parties still had

room to negotiate, and that the Union did not bargain

regressively or improperly attempt to delay bargaining.

On exception, the Respondent primarily argues that it

legitimately engaged in hard bargaining over wages and

health insurance benefits due to its financial difficulties.

It maintains that the Union understood the Respondent

would not waver from its final offer on wages and health

insurance benefits and that the Union would not agree

to both wage concessions and the Respondent’s health

insurance proposal. It contends that it validly declared

impasse and therefore had the right to unilaterally

change employees’ health insurance benefits, its matching

contribution formula for employees’ pension plan, and

the conditions for union representatives’ access to the

Respondent’s facility.11

B.

In determining whether parties have reached a

valid impasse, the Board will consider the totality of

11. Pursuant to Sec. 102.46(a)(1)(ii) of the Board’s Rules and

Regulations, Chairman McFerran and Member Wilcox disregard

the Respondent’s bare exception to the judge’s conclusion that the

Respondent violated Sec. 8(a)(5) and (1) by unilaterally changing unit

employees’ wage rates in the absence of a valid bargaining impasse.

See Community Counseling & Mentoring Services, Inc., 371 NLRB

No. 39, slip op. at 1 fn. 1 (2021) (disregarding exception in the absence

of supporting argument). Moreover, even assuming the Respondent

had properly excepted, they would affirm the judge’s finding for the

reasons stated by the judge. Member Prouty would affirm the judge’s

finding for the reasons stated by the judge.

49a

Appendix B

the circumstances, including “[t]he bargaining history,

the good faith of the parties in negotiations, the length

of the negotiations, the importance of the issue or

issues as to which there is disagreement, [and] the

contemporaneous understanding of the parties as to the

state of negotiations.” Taft Broadcasting Co., 163 NLRB

475, 478 (1967), review denied sub nom. Television Artists

AFTRA v. NLRB, 395 F.2d 622, 129 U.S. App. D.C. 399

(D.C. Cir. 1968). “A genuine impasse in negotiations is

synonymous with a deadlock: the parties have discussed

a subject or subjects in good faith, and, despite their best

efforts to achieve agreement with respect to such, neither

party is willing to move from its respective position.” HiWay Billboards, Inc., 206 NLRB 22, 23 (1973) (footnote

omitted), enf. denied on other grounds 500 F.2d 181 (5th

Cir. 1974). The party claiming impasse bears the burden of

showing its existence. Serramonte Oldsmobile, 318 NLRB

80, 97 (1995), enfd. in relevant part 86 F.3d 227, 318 U.S.

App. D.C. 153 (D.C. Cir. 1996). Applying this analysis, we

agree with the judge that the Respondent prematurely

declared impasse and unlawfully unilaterally implemented

its final offer. As we explain below, the record shows that

the Respondent deliberately cut bargaining short at a

time when the parties were not deadlocked.

To begin, there is substantial evidence that the

Respondent was not committed to bargaining for the

time necessary to exhaust the possibility of reaching

agreement. The Respondent was seeking drastic changes

to the status quo and, therefore, potentially protracted

negotiations would have been expected. See NLRB v.

Newcor Bay City Division of Newcor, Inc., 219 Fed.

50a

Appendix B

Appx. 390, 396 (6th Cir. 2007). But rather than allowing

negotiations to run their natural course, the Respondent

repeatedly threatened, in successive bargaining sessions,

that the parties were at impasse, characterizing multiple

bargaining proposals as final offers before withdrawing

those characterizations and continuing to bargain. Such

“repeated premature declarations of impasse belie[] a

good-faith intention to engage in meaningful bargaining

towards a final agreement.” Richfield Hospitality, Inc.,

369 NLRB No. 111, slip op. at 3 (2020); see also Coastal

Cargo Co., 348 NLRB 664, 664 fn. 1 (2006) (“[T]he

[r]espondent demonstrated that further movement was

possible by presenting the [u]nion with multiple final

offers after indicating that it had reached a point where it

could not bargain further.”); D.C. Liquor Wholesalers, 292

NLRB 1234, 1234-1235 (1989) (respondent’s willingness to

continue bargaining after declaring impasse gave union

the impression that respondent’s “final” offers were not

truly final), enfd. sub nom. Teamsters Local 639 v. NLRB,

924 F.2d 1078, 288 U.S. App. D.C. 121 (D.C. Cir. 1991).

Even more telling is the fact that the Respondent

set forth an artificial late April bargaining deadline

prior to the implementation of its final offer on May 1.

As the judge recognized, the Respondent’s timetable

for implementation coincided with the late April open

enrollment period of the Respondent’s preferred health

insurance plan and the new plan year beginning on May 1.

This was no accident. Janene Sumerfield, the Respondent’s

human resources manager, testified that “since May is our

plan renewal month, it made sense for [the Respondent] to

move [employees to the new health plan] May 1,” coinciding

51a

Appendix B

with its nonunion employees’ open enrollment period.

Donna Gaudreault, the Respondent’s operations manager,

confirmed the connection in her hearing testimony.

Cutting off negotiations and implementing its final offer

for its own administrative convenience was completely

at odds with the Respondent’s duty to bargain. See, e.g.,

Times Union, Capital Newspapers, 356 NLRB 1339, 1354

(2011) (impasse invalid in part because it was motivated by

employer’s desire to cut costs by certain date); Newcor Bay

City Division, 345 NLRB 1229, 1241 (2005) (by setting

contract expiration date as bargaining deadline, employer

“refused to permit bargaining to take its natural course”),

enfd. 219 Fed.Appx. 390 (6th Cir. 2007). Although distance

remained between the parties’ respective positions,

“compromises are usually made cautiously and late in the

process.” Royal Motor Sales, 329 NLRB 760, 762 (1999)

(quoting Detroit Newspaper Local 13 v. NLRB, 598 F.2d

267, 273, 194 U.S. App. D.C. 348 (D.C. Cir. 1979)), enfd.

sub nom. Anderson Enterprises v. NLRB, 2 Fed.Appx.

1 (D.C. Cir. 2001). The Respondent’s actions ended any

possibility of such compromise.

The record also shows that the parties were not yet

at the end of their rope when the Respondent declared

impasse. As the judge found, at the final bargaining

session on March 30, the Union expressed its potential

willingness to agree to the Respondent’s health insurance

proposal, and it decreased its wage proposal by 0.25

percent. This movement on key elements under negotiation

was sufficient to forestall impasse. See, e.g., CJC Holdings,

320 NLRB 1041, 1045 (1996) (union’s seemingly minor

but steady movement on wages and benefits precluded

52a

Appendix B

impasse), affd. 110 F.3d 794 (5th Cir. 1997). Indeed, it

indicated the Union’s commitment to trading concessions

with the Respondent in an effort to reach agreement.

See, e.g., Grosvenor Resort, 336 NLRB 613, 616 (2001)

(no impasse as parties showed flexibility by agreeing to

some elements of proposals while rejecting others), enfd.

sub nom. Grosvenor Orlando Associates, Ltd. v. NLRB,

52 Fed.Appx. 486 (11th Cir. 2002).

Finally, the record demonstrates that neither

party understood negotiations to be at a standstill. The

Respondent’s multiple “final” offers, followed by additional

negotiations, demonstrate that it recognized the possibility

of further compromise even as it attempted to sidestep

its bargaining obligations. Its repeated declarations of

impasse also prevented the Union from understanding

when and if the Respondent was truly at the end of its

rope. See, e.g., Chicago Typographical Union No. 16 v.

Chicago Sun-Times, 935 F.2d 1501, 1508 (7th Cir. 1991)

(continuation of bargaining after “final” offer “suggested

that impasse had not been reached and that the so-called

final offer was an interim offer, called ‘final’ merely to

command the union’s attention”). Moreover, when the

Respondent ultimately refused to continue bargaining,

after the last bargaining session on March 30, it

simultaneously informed the Union that it “appreciate[d]

the progress the parties made today on health care,”

further belying its claim that the parties were at impasse.

For its part, the Union’s vigorous protestations against the

Respondent’s declarations of impasse were accompanied

by suggestions that demonstrated further movement on

key issues, thereby clearly conveying the belief that the

53a

Appendix B

parties were not at impasse. See, e.g., NLRB v. Newcor

Bay, supra at 396-397 (relying on similar evidence in

finding no impasse); Ead Motors Eastern Air Devices, 346

NLRB 1060, 1064 (2006) (“Although not determinative,

[the union’s declaration of its intention to continue

bargaining] further support[s] a finding of no impasse.”).

In sum, because the Respondent refused to bargain at

a time when progress was still possible, we find that the

Respondent has not met its burden of showing a legitimate

impasse.12 We therefore adopt the judge’s finding that the

12. The judge also rejected the Respondent’s argument that

even if the parties were not at impasse, it was privileged to implement

its final offer due to the Union’s insistence on in-person mediation

from late March to mid-April 2020 at the beginning of the Covid-19

pandemic. He found that the Board has not recognized such a

defense, but regardless, the Respondent did not show that the Union

engaged in misconduct that prevented the parties from reaching

agreement. The Respondent correctly points out on exception that

the Board has recognized that an employer may make unilateral

changes in the absence of impasse “[w]hen a union, in response to

an employer’s diligent and earnest efforts to engage in bargaining,

insists on continually avoiding or delaying bargaining.” Bottom

Line Enterprises, 302 NLRB 373, 374 (1991) (quoting M & M

Contractors, 262 NLRB 1472, 1472 (1982)), enfd. sub nom. Master

Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994); see also

NLRB v. Auto Fast Freight, Inc., 793 F.2d 1126, 1129 (9th Cir. 1986).

However, we agree with the judge that the Respondent failed to show

that the Union continually engaged in unreasonable or intentional

avoidance or delay before the Respondent implemented its final offer.

The precedent the Respondent relies on is clearly distinguishable,

for the unions in those cases purposely obstructed negotiations

without any defensible justification over longer periods of time. See

Southwestern Portland Cement Co., 289 NLRB 1264, 1273-1276

54a

Appendix B

Respondent violated Section 8(a)(5) and (1) by unilaterally

implementing its final offer.13

II. THE RESPONDENT’S CESSATION OF DUES

CHECKOFF

Prior to unlawfully unilaterally implementing its final

offer, the Respondent unilaterally ceased dues checkoff

for unit employees on April 9. Applying Valley Hospital

Medical Center, 368 NLRB No. 139 (2019) (Valley

(1988) (after filing a “frivolous” unfair labor practice charge, union

leadership intentionally refused to bargain for 3 months by, e.g.,

failing to forward employer proposals to union negotiators, sending

a negotiator with no bargaining authority to meeting, cancelling or

refusing to schedule meetings, and fabricating details regarding the

availability of mediation); M & M Contractors, supra at 1472 (union

refused to provide potential dates for bargaining over 7 months and

“clearly manifested its aversion to bargaining with Respondent”);

AAA Motor Lines, Inc., 215 NLRB 793, 794 (1974) (union refused

to meet with respondent for 2.5 months and misled it about union

negotiators’ availability).

13. We agree with the judge, for the reason he states, that the

Respondent also failed to show that its unilateral implementation

of conditions on union representative access lawfully accorded with

an established past practice.

Member Wilcox notes that the judge cited Raytheon Network

Centric Systems, 365 NLRB No. 161 (2017), and MV Transportation,

Inc., 368 NLRB No. 66 (2019), in his recitation of the general legal

principles applicable to unilateral change allegations but did not

otherwise apply those cases. Member Wilcox did not participate in

those cases and expresses no view as to whether they were correctly

decided.

55a

Appendix B

Hospital I),14 in which the Board held that an employer’s

statutory obligation to check off union dues deductions

expires w ith the collective-bargaining agreement

establishing the dues-checkoff arrangement, the judge

dismissed the allegation that the Respondent’s cessation

of dues checkoff was unlawful. The Board subsequently

issued its decision in Valley Hospital Medical Center,

Inc. d/b/a Valley Hospital Medical Center, 371 NLRB

No. 160 (2022) (Valley Hospital II), reversing Valley

Hospital I and returning to the rule set forth in Lincoln

Lutheran of Racine, 362 NLRB 1655 (2015), prohibiting

an employer from unilaterally ceasing dues checkoff after

the expiration of the applicable collective-bargaining

agreement. The Board determined that it would apply

that decision retroactively in all pending cases. Applying

Valley Hospital II, we reverse the judge’s dismissal of

this allegation and find that the Respondent violated

Section 8(a)(5) and (1) by unilaterally ceasing dues

checkoff after the expiration of the parties’ collectivebargaining agreement. Under this precedent, the

Respondent was obligated to continue honoring the

dues-checkoff arrangement established in the expired

collective-bargaining agreement with the Union until the

parties reached either a successor collective-bargaining

agreement or a legitimate overall impasse in bargaining.

14. Review granted and remanded sub nom. Local Joint

Executive Board of Las Vegas v. NLRB, 840 Fed.Appx. 134 (9th

Cir. 2020).

56a

Appendix B

III. THE RESPONDENT’S DISCHARGE OF TWO

STRIKERS FOR ALLEGED PICKET-LINE

MISCONDUCT

Unit employees Ismael Marquez and Jaime Viramontes

participated in the unfair labor practice strike from

its beginning on May 6 until the Union’s August 27

unconditional offer to return to work. The Respondent

discharged Marquez and Viramontes on September 1 for

purported picket-line misconduct. The complaint alleges

that the discharges were unlawful retaliation against

Marquez and Viramontes for their protected strike

activity.

In General Motors LLC, 369 NLRB No. 127 (2020),

the Board held that allegations of unlawful discipline

or discharge of employees who purportedly engaged in

“abusive conduct” in connection with activity protected

by Section 7 of the Act should be analyzed under the

Wright Line15 burden-shifting framework. In the process,

the Board overruled several setting-specific standards,

including the Clear Pine Mouldings16 standard governing

discipline for alleged picket-line misconduct. In accordance

with General Motors, the judge applied Wright Line and

15. 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),

cert. denied 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982),

approved in NLRB v. Transportation Management Corp., 462 U.S.

393, 399-403, 103 S. Ct. 2469, 76 L. Ed. 2d 667 (1983).

16. 268 NLRB 1044, 1046 (1984), enfd. mem. 765 F.2d 148

(9th Cir. 1985). Under Clear Pine Mouldings, the Board considers

whether, under all of the circumstances, nonstrikers reasonably

would have been coerced or intimidated by the picket-line conduct.

57a

Appendix B

found that the Respondent violated Section 8(a)(3) and (1)

by discharging Marquez and Viramontes.

After the judge issued his decision, the Board in Lion

Elastomers LLC, 372 NLRB No. 83 (2023), overruled

General Motors and restored the previous setting-specific

standards, including Clear Pine Mouldings. The Board

additionally decided to apply those standards retroactively

in all pending cases. We therefore shall sever and retain

the allegations that the Respondent unlawfully discharged

Marquez and Viramontes and issue a notice to show cause

why these allegations should not be remanded to the judge

for further proceedings in light of Lion Elastomers,

including, if necessary, the filing of statements, reopening

the record, and issuance of a supplemental decision.17

AMENDED CONCLUSIONS OF LAW

1. Delete Conclusion of Law 5(c).

2. Insert the following as Conclusion of Law 6(a) and

reletter the subsequent paragraphs accordingly:

“(a) On April 9, 2020, unilaterally ceasing dues

checkoff;”

3. Substitute the follow ing for the relettered

Conclusions of Law 6(f) and 6(g):

17. Member Prouty believes that the better course of action

in these circumstances would be for the Board to remand the case

directly to the judge without the extra step of issuing a notice to

show cause.

58a

Appendix B

“(f) unilaterally changing its paid holidays by granting

four additional paid holidays between December 24-31,

2020; and

(g) unilaterally changing its compensated time off

policy by implementing a new compensated time off policy,

effective on January 1, 2021.”

AMENDED REMEDY

Having found that the Respondent has engaged

in certain unfair labor practices, we shall order the

Respondent to cease and desist from engaging in such

conduct and, as explained in the remedy section of

the judge’s decision, to take certain affirmative action

designed to effectuate the policies of the Act. However,

we amend the remedy in two respects.18

First, having found that the Respondent violated

Section 8(a)(5) and (1) by unilaterally ceasing dues checkoff

after the expiration of the parties’ collective-bargaining

agreement, we shall order the Respondent to make the

Union whole for any dues it would have received but for

the Respondent’s failure to comply with its obligation

18. We note that the Respondent has represented that prior

to the hearing, the parties reached a new collective-bargaining

agreement which was ratified in September 2021. The General

Counsel and the Charging Parties did not dispute the Respondent’s

representation. No party has excepted to the judge’s failure to include

an affirmative bargaining order in the recommended Order. In view

of these circumstances, we find that an affirmative bargaining order

is not warranted here.

59a

Appendix B

to provide notice and an opportunity to bargain before

changing terms and conditions of employment.19 See,

e.g., W.J. Holloway & Son, 307 NLRB 487 (1992); West

Coast Cintas Corp., supra at 156; Creutz Plating Corp.,

172 NLRB 1 (1968). This order requires only that the

Respondent make the Union whole for dues it would have

received from employees who have individually signed

dues-checkoff authorizations. 20 See, e.g., W.J. Holloway,

supra at 487 fn. 3; Creutz Plating Corp., supra at 1. The

make-whole remedy shall be remitted to the Union with

interest at the rate prescribed in New Horizons, 283

NLRB 1173 (1987), compounded daily as prescribed in

Kentucky River Medical Center, 356 NLRB 6 (2010).

See Space Needle, LLC, 362 NLRB 35, 39 (2015), enfd.

19. To prevent double recovery by the Union, payment by

the Respondent to the Union shall be offset by any dues the Union

collected during the relevant period on behalf of employees covered

by the dues payment order. See A.W. Farrell & Son, Inc., 361 NLRB

1487, 1487 fn. 3 (2014).

In addition, in ordering this remedy, we make clear that the

Respondent is prohibited from seeking to recoup from the employees

any dues amount the Respondent is required to reimburse to the

Union. See Alamo Rent-A-Car, 362 NLRB 1091, 1091 fn. 1 (2015)

(quoting West Coast Cintas Corp., 291 NLRB 152, 156 fn. 6 (1988))

(“[T]he financial responsibility for making the [u]nion whole for dues

it would have received but for [r]espondent’s unlawful conduct rests

entirely on the [r]espondent and not the employees.”), enfd. 831 F.3d

534, 425 U.S. App. D.C. 65 (D.C. Cir. 2016).

20. A showing of valid dues-checkoff authorizations can be made

at the compliance stage of this proceeding. See O’Neill, Ltd., 288

NLRB 1354, 1357 fn. 20 (1988), enfd. 965 F.2d 1522 (9th Cir. 1992),

cert. denied 509 U.S. 904, 113 S. Ct. 2995, 125 L. Ed. 2d 689 (1993).

60a

Appendix B

on other grounds 692 Fed.Appx. 462 (9th Cir. 2017); W.J.

Holloway, supra at 491.

Second, in accordance with our decision in Thryv,

Inc., 372 NLRB No. 22 (2022), the Respondent shall also

compensate employees for any other direct or foreseeable

pecuniary harms incurred as a result of its unlawful

actions, including reasonable search-for-work and interim

employment expenses, if any, regardless of whether these

expenses exceed interim earnings. Compensation for

these harms shall be calculated separately from taxable

net backpay, with interest at the rate prescribed in New

Horizons, supra, compounded daily as prescribed in

Kentucky River Medical Center, supra. 21

21. Unlike his colleagues, Member Prouty would order a noticereading remedy. In particular, he notes that the Respondent’s unfair

labor practices were extensive and affected all unit employees: the

Respondent implemented its final contract offer in the absence of

a valid impasse and cut off negotiations and discharged all unit

employees who went on to a strike to protest its unfair labor practice.

Accordingly, he would find that a remedial reading of the notice is

appropriate “to dissipate as much as possible any lingering effects

of the Respondent’s unfair labor practices,” Homer D. Bronson

Co., 349 NLRB 512, 515 (2007), enfd. mem. 273 Fed.Appx. 32 (2d

Cir. 2008), and will allow the employees to “fully perceive that the

Respondent and its managers are bound by the requirements of

the Act.” Federated Logistics & Operations, 340 NLRB 255, 258

(2003), enfd. 400 F.3d 920, 929-930, 365 U.S. App. D.C. 164 (D.C.

Cir. 2005). He would also require the Board agent to distribute the

notice to employees at the meeting before the reading. See, e.g.,

Gavilon Grain, LLC, 371 NLRB No. 79, slip op at 2 fn. 5 (2022)

(Member Prouty, concurring). Such distribution will facilitate

employee comprehension as employees will be able to follow along as

the notice is read aloud. Distribution also offers employees a chance

61a

Appendix B

ORDER

The National Labor Relations Board orders that the

Respondent, Hood River Distillers, Inc., Hood River,

Oregon, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Threatening employees with discharge if they

engage in an unfair labor practice strike.

(b) Discharging or otherwise discriminating against

employees for engaging in an unfair labor practice strike.

(c) Unilaterally changing the terms and conditions of

employment of its unit employees.

(d) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Within 14 days from the date of this Order,

offer unfair labor practice strikers Kelli Bell, Susan G.

to retain the documents for future reference and to review them

in private free from their employer’s possible observation should

they choose to do so. A copy of the notice distributed by the Board

agent to all attendees is a neutral method of providing them with the

information they need to understand their rights and the offending

party’s obligations.

62a

Appendix B

Bell, James Brown, Aron Butler, Jorge Caldera, Jason

Cameron, Maria R. Elisea, Roshanda Halliday, Joshua

M. Harbert, Ulises Hernandez-Beltran, Kelly L. Holmes,

Angelica Lara, Disenia Lara, Eliseo Lara-Aguila, Britt O.

Lee, Michele M. Leonard, Nick Malone, Tracey Morrison,

Mark A. Nelson, Wendell M. Russell, Isaac O. Sosa, Jose

M. Verduzco, and Matthew Webber full reinstatement

to their former jobs or, if those jobs no longer exist, to

substantially equivalent positions, without prejudice to

their seniority or any other rights or privileges previously

enjoyed, discharging, if necessary, any replacement

employees occupying those positions.

(b) Make unfair labor practice strikers Kelli Bell,

Susan G. Bell, James Brown, Aron Butler, Jorge Caldera,

Jason Cameron, Maria R. Elisea, Roshanda Halliday,

Joshua M. Harbert, Ulises Hernandez-Beltran, Kelly

L. Holmes, Angelica Lara, Disenia Lara, Eliseo LaraAguila, Britt O. Lee, Michele M. Leonard, Nick Malone,

Tracey Morrison, Mark A. Nelson, Wendell M. Russell,

Isaac O. Sosa, Jose M. Verduzco, and Matthew Webber

whole for any loss of earnings and other benefits, and for

any other direct or foreseeable pecuniary harms, suffered

as a result of their unlawful discharges, in the manner

set forth in the remedy section of the judge’s decision as

amended in this decision.

(c) Compensate affected employees for the adverse

tax consequences, if any, of receiving lump-sum backpay

awards, and file with the Regional Director for Region 19,

within 21 days of the date the amount of backpay is fixed,

either by agreement or Board order, a report allocating

63a

Appendix B

the backpay awards to the appropriate calendar years for

each employee.

(d) File with the Regional Director for Region 19,

within 21 days of the date the amount of backpay is fixed

either by agreement or Board order, or such additional

time as the Regional Director may allow for good cause

shown, a copy of each backpay recipient’s corresponding

W-2 form(s) reflecting the backpay award.

(e) Within 14 days from the date of this Order, remove

from its files any reference to the unlawful discharges of

unfair labor practice strikers Kelli Bell, Susan

G. Bell, James Brown, Aron Butler, Jorge Caldera,

Jason Cameron, Maria R. Elisea, Roshanda Halliday,

Joshua M. Harbert, Ulises Hernandez-Beltran, Kelly

L. Holmes, Angelica Lara, Disenia Lara, Eliseo LaraAguila, Britt O. Lee, Michele M. Leonard, Nick Malone,

Tracey Morrison, Mark A. Nelson, Wendell M. Russell,

Isaac O. Sosa, Jose M. Verduzco, and Matthew Webber,

and within 3 days thereafter, notify the employees in

writing that this has been done and that the discharges

will not be used against them in any way.

(f) Preserve and, within 14 days of a request, or

such additional time as the Regional Director may allow

for good cause shown, provide at a reasonable place

designated by the Board or its agents, all payroll records,

social security payment records, timecards, personnel

records and reports, and all other records, including an

electronic copy of such records if stored in electronic form,

64a

Appendix B

necessary to analyze the amounts due under the terms

of this Order.

(g) Before implementing any changes in wages, hours,

or other terms and conditions of employment of unit

employees, notify and, on request, bargain with the Union

as the exclusive collective-bargaining representative of

employees in the following bargaining unit:

All employees, excluding office and clerical

employees, casual employees hired for no more

than thirty (30) calendar days and supervisors

as defined in the Labor Management Relations

Act.

(h) On request by the Union, rescind the changes in the

terms and conditions of employment for the Respondent’s

unit employees that were unilaterally implemented from

April 2020 to January 2021, including those pertaining

to dues checkoff, wages, health insurance benefits,

pension benefits, restrictions on facility access for union

representatives, paid holidays, and paid time off.

(i) Make affected employees whole for any loss of

earnings and other benefits, and for any other direct or

foreseeable pecuniary harms, suffered as a result of the

Respondent’s unlawful unilateral changes, in the manner

set forth in the remedy section of the judge’s decision as

amended in this decision.

(j) Remit to the Union, at no cost to employees,

dues payments required by the parties’ collective-

65a

Appendix B

bargaining agreement for employees who executed

checkoff authorizations prior to and during the period of

the Respondent’s unlawful conduct, as described in the

remedy section of the judge’s decision as amended in this

decision.

(k) Post at its Hood River, Oregon facility copies of the

attached notice marked “Appendix.”22 Copies of the notice,

on forms provided by the Regional Director for Region

19, after being signed by the Respondent’s authorized

representative, shall be posted by the Respondent and

maintained for 60 consecutive days in conspicuous places,

including all places where notices to employees are

22. If the facility involved in these proceedings is open and

staffed by a substantial complement of employees, the notice must

be posted within 14 days after service by the Region. If the facility

involved in these proceedings is closed or not staffed by a substantial

complement of employees due to the Coronavirus Disease 2019

(COVID-19) pandemic, the notice must be posted within 14 days

after the facility reopens and a substantial complement of employees

have returned to work. If, while closed or not staffed by a substantial

complement of employees due to the pandemic, the Respondent is

communicating with its employees by electronic means, the notice

must also be posted by such electronic means within 14 days after

service by the Region. If the notice to be physically posted was

posted electronically more than 60 days before physical posting of

the notice, the notice shall state at the bottom that “This notice is

the same notice previously [sent or posted] electronically on [date].”

If this Order is enforced by a judgment of a United States court of

appeals, the words in the notice reading “Posted by Order of the

National Labor Relations Board” shall read “Posted Pursuant to a

Judgment of the United States Court of Appeals Enforcing an Order

of the National Labor Relations Board.”

66a

Appendix B

customarily posted. In addition to physical posting of paper

notices, notices shall be distributed electronically, such as

by email, posting on an intranet or an internet site, and/

or other electronic means, if the Respondent customarily

communicates with its employees by such means. The

Respondent shall take reasonable steps to ensure that

the notices are not altered, defaced, or covered by any

other material. If the Respondent has gone out of business

or closed the facility involved in these proceedings, the

Respondent shall duplicate and mail, at its own expense,

a copy of the notice to all current employees and former

employees employed by the Respondent at any time since

April 9, 2020.

(l) Within 21 days after service by the Region, file with

the Regional Director for Region 19 a sworn certification

of a responsible official on a form provided by the Region

attesting to the steps that the Respondent has taken to

comply.

Further, NOTICE IS GIVEN that cause be shown, in

writing, filed with the Board in Washington, D.C., on or

before September 7, 2023 (with affidavit of service on the

parties to this proceeding), why the complaint allegations

that the Respondent unlawfully discharged employees

Ismael Marquez and Jaime Viramontes should not be

remanded to the administrative law judge for further

proceedings consistent with the Board’s decision in Lion

Elastomers LLC, 372 NLRB No. 83 (2023), including, if

necessary, the filing of statements, reopening the record,

and issuance of a supplemental decision. Any briefs or

statements in support of the response shall be filed on

the same date.

67a

Appendix B

IT IS FURTHER ORDERED that the complaint is

dismissed insofar as it alleges violations of the Act not

specifically found.

Dated, Washington, D.C. August 24, 2023

/s/

Lauren McFerran

Chairman

/s/

Gwynne A. Wilcox

Member

/s/

David M. Prouty

Member

(SEAL)

National Labor Relations Board

68a

Appendix B

APPENDIX

Notice to Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we

violated Federal labor law and has ordered us to post and

obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us

on your behalf

Act together with other employees for your

benefit and protection

Choose not to engage in any of these

protected activities.

We will not threaten you with discharge if you

engage in an unfair labor practice strike.

We will not discharge or otherwise discriminate

against you for engaging in an unfair labor practice strike.

We will not unilaterally change your terms and

conditions of employment.

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Appendix B

We will not in any like or related manner interfere

with, restrain, or coerce you in the exercise of the rights

listed above.

We will, within 14 days from the date of the Board’s

Order, offer unfair labor practice strikers Kelli Bell, Susan

G. Bell, James Brown, Aron Butler, Jorge Caldera, Jason

Cameron, Maria R. Elisea, Roshanda Halliday, Joshua

M. Harbert, Ulises Hernandez-Beltran, Kelly L. Holmes,

Angelica Lara, Disenia Lara, Eliseo Lara-Aguila, Britt O.

Lee, Michele M. Leonard, Nick Malone, Tracey Morrison,

Mark A. Nelson, Wendell M. Russell, Isaac O. Sosa, Jose

M. Verduzco, and Matthew Webber full reinstatement

to their former jobs or, if those jobs no longer exist, to

substantially equivalent positions, without prejudice to

their seniority or any other rights or privileges previously

enjoyed, discharging, if necessary, any replacement

employees occupying those positions.

We will make unfair labor practice strikers Kelli Bell,

Susan G. Bell, James Brown, Aron Butler, Jorge Caldera,

Jason Cameron, Maria R. Elisea, Roshanda Halliday,

Joshua M. Harbert, Ulises Hernandez-Beltran, Kelly L.

Holmes, Angelica Lara, Disenia Lara, Eliseo Lara-Aguila,

Britt O. Lee, Michele M. Leonard, Nick Malone, Tracey

Morrison, Mark A. Nelson, Wendell M. Russell, Isaac O.

Sosa, Jose M. Verduzco, and Matthew Webber whole for

any loss of earnings and other benefits resulting from

their unlawful discharges, less any net interim earnings,

plus interest, and we will also make them whole for any

other direct or foreseeable pecuniary harms suffered as

a result of the unlawful discharges, including reasonable

70a

Appendix B

search-for-work and interim employment expenses, plus

interest.

We will compensate affected employees for the

adverse tax consequences, if any, of receiving lump-sum

backpay awards, and we will file with the Regional

Director for Region 19, within 21 days of the date the

amount of backpay is fixed, either by agreement or Board

order, a report allocating the backpay awards to the

appropriate calendar years for each employee.

We will file with the Regional Director for Region 19,

within 21 days of the date the amount of backpay is fixed

either by agreement or Board order, or such additional

time as the Regional Director may allow for good cause

shown, a copy of each backpay recipient’s corresponding

W-2 form(s) reflecting the backpay award.

We will, within 14 days from the date of the Board’s

Order, remove from our files any reference to the unlawful

discharges of unfair labor practice strikers Kelli Bell,

Susan G. Bell, James Brown, Aron Butler, Jorge Caldera,

Jason Cameron, Maria R. Elisea, Roshanda Halliday,

Joshua M. Harbert, Ulises Hernandez-Beltran, Kelly

L. Holmes, Angelica Lara, Disenia Lara, Eliseo LaraAguila, Britt O. Lee, Michele M. Leonard, Nick Malone,

Tracey Morrison, Mark A. Nelson, Wendell M. Russell,

Isaac O. Sosa, Jose M. Verduzco, and Matthew Webber,

and we will, within 3 days thereafter, notify each of them

in writing that this has been done and that the discharges

will not be used against them in any way.

71a

Appendix B

We will, before implementing any changes in wages,

hours, or other terms and conditions of employment of unit

employees, notify and, on request, bargain with the Union

as the exclusive collective-bargaining representative of

our employees in the following bargaining unit:

All employees, excluding office and clerical

employees, casual employees hired for no more

than thirty (30) calendar days and supervisors

as defined in the Labor Management Relations

Act.

We will, on request by the Union, rescind the changes

in the terms and conditions of employment for our unit

employees that were unilaterally implemented from April

2020 to January 2021, including those pertaining to duescheckoff deductions, wages, health insurance benefits,

pension benefits, restrictions on facility access for union

representatives, paid holidays, and paid time off.

We will make affected employees whole for any loss

of earnings and other benefits suffered as a result of our

unlawful unilateral changes, plus interest, and we will

also make them whole for any other direct or foreseeable

pecuniary harms suffered as a result of the unlawful

changes, plus interest.

We will remit to the Union, at no cost to employees,

dues payments required by the parties’ collectivebargaining agreement for employees who executed

checkoff authorizations prior to and during the period of

our unlawful conduct, plus interest.

72a

Appendix B

Hood River Distillers, Inc.

The Board’s decision can be found at www.nlrb.

gov/case/19-CA-260013 or by using the QR code below.

Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board,

1015 Half Street, S.E., Washington, D.C. 20570, or by

calling (202) 273-1940.

[QR CODE OMITTED]

73a

Appendix B

DECISION

G eoffrey Ca rter , Administrative Law Judge.

The General Counsel asserts that in 2020, Hood River

Distillers (Respondent) violated the National Labor

Relations Act (the Act) by unilaterally changing employee

terms and conditions of employment without the consent

of the Teamsters Local Union No. 670 (Union) and

without bargaining to a good-faith impasse. In addition,

the General Counsel asserts that when 25 bargaining

unit members went on strike, Respondent unlawfully

discharged them and/or failed to immediately reinstate

them after the strikers made an unconditional offer to

return to work. For the reasons explained below, I have

found that Respondent committed most of the alleged

violations in the complaint (I found two of the unilateral

changes to be lawful).

In Case 19-RD-271944, I have recommended that the

Regional Director dismiss a January 2021 decertification

petition because Respondent’s unfair labor practices,

in 2020, have a causal relationship to the employee

disaffection. I have also recommended that the Reg

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