and 23-1976 ALARIS HEALTH AT BOULEVARD EAST v. NATIONAL LABOR RELATIONS BOARD Alaris Health at Boulevard East

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 23-1946 and 23-1976
_______________
ALARIS HEALTH AT BOULEVARD EAST
v.
NATIONAL LABOR RELATIONS BOARD
Alaris Health at Boulevard East,
Petitioner in No. 23-1946
NLRB,
Petitioner in No. 23-1976
________________
_______________________
on Petition for Review and Cross Application for
Enforcement of an Order of the National Labor Relations
Board
(NLRB Docket No. 22-CA-268083)
_____________
Argued: April 10, 2024

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Before: CHAGARES, Chief Judge, PORTER, and SCIRICA,
Circuit Judges.
(Filed: December 9, 2024)
Stuart A. Weinberger [ARGUED]
Weinberger & Weinberger
630 Third Avenue
18th Floor
New York, NY 10017
Counsel for Petitioner/Cross-Respondent
Ruth E. Burdick
Milakshmi V. Rajapakse
David A. Seid [ARGUED]
National Labor Relations Board
Appellate and Supreme Court Litigation Branch
1015 Half Street SE
Washington, DC 20570
Counsel for Respondent/Cross-Petitioner
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge
In April 2020, petitioner/cross-respondent Alaris Health

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at Boulevard East (the “Company”), a nursing home, decided
to pay its employees bonuses in recognition of their efforts at
the beginning of the COVID-19 pandemic. The bonuses took
the form of temporary salary increases. Over the next few
months, the Company gradually reduced those raises until
salaries returned to almost original levels. As well-intended as
this gesture may have been, the Company did not give the
union representing its employees notice or an opportunity to
bargain prior to initiating and scaling back the bonus raises.
The National Labor Relations Board (the “Board”)1
determined the COVID-19 bonuses were wages subject to
mandatory bargaining under the Act, and that a management
rights clause in the parties’ collective bargaining agreement
purporting to authorize the Company’s actions did not survive
the agreement’s expiration. Because the Board’s factual
findings were supported by substantial evidence, and because
the Board reached the right answer as to the parties’ collective
bargaining agreement, we will deny the Company’s petition for
review. Moreover, because the Company repeatedly failed to
address the remedy charged by the General Counsel and
ultimately adopted by the Board, we will grant the General
Counsel’s cross-petition for summary enforcement.
1 We refer to the body whose decision we are reviewing
as the “Board,” and the party appearing before us on the
Board’s behalf (i.e., respondent/cross-petitioner) as the
“General Counsel.” In addition, we refer to the National Labor
Relations Act, 29 U.S.C. §§ 151 et seq., as the “Act.”

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I.
A.
The Company owned and operated six nursing
homes/rehabilitation centers providing inpatient medical
services. The facility at issue in this case was in Guttenberg,
New Jersey, and closed on November 15, 2020. Prior to its
closure, 1199 SEIU United Healthcare Workers East (the
“Union”) was the collective-bargaining representative for a
unit of the facility’s employees, including “[a]ll CNAs, dietary,
housekeeping, recreational aides, [and] cooks.” App. 9.2 The
Company and the Union’s relationship was governed by a
collective bargaining agreement (the “CBA”), effective by its
terms from April 1, 2010, through March 31, 2014, and
“automatically renewed for an additional period of four (4)
years unless either party notifies the other in writing.” App.
467. As relevant here, the CBA contains a management rights
clause3 providing that “[n]othing herein contained shall
2 While the Union represented “CNAs” or certified
nursing assistants, it did not represent “registered nurses”
(RNs) or licensed practical nurses (“LPNs”) working at the
facility. App. 435.
3 A management rights clause is a “contractual
provision that authorizes an employer to act unilaterally, in its
discretion, with respect to a mandatory subject of bargaining.”
E.I. Dupont De Nemours, Louisville Works, 355 N.L.R.B.
1084, 1085 (2010), enforcement denied on other grounds, 682
F.3d 65 (D.C. Cir. 2012); see also Chi. Tribune Co. v. NLRB,
974 F.2d 933, 937 (7th Cir. 1992) (“The union had a statutory
right to bargain over the terms of employment, . . . but it gave

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prevent the [Company] from giving merit increases, bonuses,
or other similar payments provided it gives prior notice to the
Union before implementation.” App. 446.
In early 2020, the Company began experiencing
extreme operational difficulties at the onset of the COVID-19
pandemic. As the Company’s former Vice President testified,
[O]nce COVID hit a facility, or a particular
neighborhood, it hit and it hit rapidly. . . . [I]t was
a very chaotic time period. It was a frightening
time period. Facilities and . . . staff in facilities
were really struggling for a number of reasons.
Whether it be keeping up with all of the new
regulations and guidance, that was coming by
rapid fire from various agencies. In addition to
staff fears, staff animus[,] . . . . there was a lot of
information, and a lot of emotions, and also our
patients at the other end of that, that needed to be
taken care of, with dwindling staff resources.
App. 183-84. The pandemic created operational difficulties for
the Union as well. Most notably, New Jersey’s shelter-in-place
mandate prevented the Union’s representatives from accessing
the facility as required by the CBA. In response, the Union
sent a letter to the Company on March 30, 2020, reminding the
Company that “federal labor law prohibits the Facility from
changing wages, hours, benefits, or any other term or condition
of employment without giving the Union prior notice and an
up that right, so far as the subjects comprehended by the
management-rights clause were concerned, by agreeing to the
clause.”).

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opportunity to bargain.” App. 474.
Despite this warning, on April 1, 2020, the Company
issued a memo to its employees announcing that “to [e]nsure
the safety and recognize the commitment and hard work of our
dedicated healthcare workers on the front lines fighting this
pandemic,” the Company would issue “a special COVID19
hourly rate bonus” to all staff. App. 475. Per the memo, the
bonuses would be “equal to 25% of [each employee’s] current
hourly rate,” “effective Thursday, April 2nd and thru at least
April 30th,” and would apply “to all worked hours (excluding
any paid-time-off pay).” Id. On April 7, the Company
published a second memo increasing the bonuses for all
nursing staff to “100% of their current hourly rate.” App. 479.
Once again, the bonuses were to recognize “the challenge of
navigating the ongoing COVID19 Pandemic” and would
“apply to all worked hours (excluding sick or benefit time)”
“effective immediately through April 30th.” Id.
The Company did not directly communicate these
bonus announcements to the Union. Instead, after learning of
the first bonus announcement from an employee, the Union
emailed the Company on April 1 stating it “agree[d]” with the
“proposed . . . 25% wage increase.” App. 476. The Company
responded on April 2, asserting that “[t]he temporary increase
for our employees is well within our management rights” and
“solely to recognize the outstanding efforts of our dedicated
staff.” App. 477. The Company also noted that it “will not be
distracted because there is too much at risk” given that
“[a]dministration and its staff are dealing with and making
critical real-life decisions every minute of every day.” Id. The
Union responded the following day reiterating that it
“promptly accepted, without any fuss, the proposed wage

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increase,” but reminding the Company that “[t]he Union is
entitled to notice and an opportunity to bargain before any
changes (including modifications to the already implemented
and agreed to increases) are implemented.” App. 478. Upon
learning of the second bonus memo, the Union sent additional
emails on April 7 and April 8, again agreeing to the increase
but reiterating that it was “entitled to notice and an opportunity
to bargain before any future changes (including modifications
to the agreed to increases) are implemented.” App. 480; see
also App. 481. The Company did not respond.
Beginning April 29, the Company published a series of
memos scaling back the previously announced bonuses.
Specifically, on April 29, the Company announced that
effective May 1 and through May 14, the 100% hourly bonus
for nursing staff would be reduced to 25% for all hours worked.
On May 13, the Company announced that effective May 17
through May 31, the 25% hourly bonus would be limited to
“Direct Nursing Providers” (including RNs, LPNs, and
CNAs), whereas “all other employees will return to their
normal hourly rate.” App. 483. On May 29, the Company
announced that effective May 31 through June 15, the 25%
hourly bonus for RNs and LPNs would be reduced to 10%, and
that after June 15 RNs and LPNs would return to their
“traditional [hourly] rate.” App. 485. And finally, on July 20,
the Company announced that effective July 26, the 25% bonus
payments for all CNAs would be reduced to $1.50 extra per
hour for all hours worked.4 With each new memo, the Union
emailed the Company objecting to the reduction and reminding
4 This $1.50 increase remained in effect until the
Company’s closure in November 2020.

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the Company that it was required to provide the Union with
advanced notice and an opportunity to bargain. The Company
never responded.
Separately, on September 4, 2020, the Union filed a
class action grievance on behalf of its members “for unpaid
medical invoices and the cancellation of their health insurance
benefits” after “unit members had accumulated hospital bills
that were not being covered by their health insurance.” App.
11-12. The Union issued an “Information Request” to the
Company on September 8 for “files that show names and date
of member[s] covered as of March 1, 2020,” “[t]he summary
plan and description for health insurance,” and “[t]he summary
benefit description for health insurance.” App. 12. The Union
never received the requested information.
B.
On August 30, 2021, the General Counsel issued a
complaint, compliance specification, and notice of hearing
alleging violations of sections 8(a)(5) and (1) of the Act, 29
U.S.C. § 158(a)(5) and (1), bypassing the Union and
rescinding, reducing, and discontinuing wage increases
without first notifying the Union or providing the Union with
an opportunity to bargain; and refusing to provide the Union
with requested information relevant to its representation of
bargaining-unit employees. The General Counsel sought
make-whole relief for the employees. App. 294. The
compliance specification contained allegations of specific
amounts owed to each bargaining-unit employee as well as
compensation for any adverse tax consequences of receiving
lump-sum backpay payments.

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The complaint notified the Company that it was
required to file an answer by September 20, 2021, and that such
answer must “state any basis for any disagreement with any
allegations that are within the [Company’s] knowledge” and
“furnish the appropriate supporting figures,” and that “a
general denial is not sufficient.” App. 296-97. Despite this
notice, the Company’s answer to the compliance specification
merely stated that “the allegations set forth were legal
conclusions to which no response was required.” App. 3. On
October 20, 2021, the General Counsel notified the Company
that its answer was deficient because it “contains general
denials and conclusionary statements without setting forth the
basis for such disagreement” and thus “does not comport with
the specificity requirements of . . . the Board’s Rules and
Regulations.” App. 429. The General Counsel further warned
that if the Company did not amend its answer by October 27,
2021, the General Counsel would move for summary judgment
with respect to those allegations. The Company failed to
respond.
The case was tried remotely over three days before an
Administrative Law Judge (“ALJ”) starting on November 1,
2021. The ALJ heard testimony from three witnesses—two
Union employees and the Company’s former vice president.
At the start of the hearing, the General Counsel moved for
partial summary judgment as to the remedy charged in its
compliance specification, arguing the Company’s general
denials failed to comply with Board regulations. The ALJ
invited the Company to file an opposition to the motion, but
the Company failed to do so.
On January 26, 2022, the ALJ issued its decision finding
in relevant part for the Company. The ALJ found “the bonuses

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were for a specific period of time and not conditioned upon
employment-related factors” since such a wage increase
“would have resulted in a significant and substantial windfall
to the unit employees.” App. 14. As such, “[i]t is difficult to
believe,” reasoned the ALJ, that “the Union seriously thought
there was an increase of 100 percent in hourly wages and that
the increase was not in fact a gift in the form of a bonus.” Id.
The ALJ further noted that “[n]one of the monetary increases
were tied to performance, seniority, production, attendance or
dependent on gross profits of the facility,” but rather “[t]he
bonuses were implemented to show appreciation to the staff
when the COVID-19 pandemic started in March 2020[,] and
the bonuses were ended when the pandemic lessen[ed] in
summer 2020.” App. 15. Accordingly, the ALJ determined
the COVID-19 bonuses were gifts rather than wage increases
and thus not subject to mandatory bargaining under the Act.
The ALJ also found the bonuses were authorized by the
management rights clause in the CBA. While noting the CBA
expired in 2014, the ALJ reasoned “an employer has a statutory
duty to maintain the status quo on mandatory subjects of
bargaining” and the “substantive terms of the expired
agreement generally determine the status quo.” App. 13. Even
though the “bonuses were unprecedented,” the ALJ concluded
the Company’s “right under the [CBA] to give out bonuses
upon notice to the Union without having to bargain,” survived
the CBA’s expiration, and that the Union received sufficient
notice of the bonuses. However, the ALJ found the Company
violated the Act by failing to respond to the Union’s
information request and ordered compliance within twenty-one
days. The ALJ did not address the General Counsel’s partial
summary judgment motion.

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The General Counsel filed exceptions to the ALJ’s
decision. In doing so, the General Counsel specifically
challenged the ALJ’s failure to rule on its partial summary
judgment motion. The Company once again failed to address
the partial summary judgment motion in its answering brief.
Nor did the Company object to the ALJ’s decision concerning
the information request.
On November 23, 2022, the Board reversed the ALJ’s
finding of no violation. The Board found the bonuses were
sufficiently tied to “employment-related factors” because
“attendance was a prerequisite,” and “employees would not
receive any hourly rate bonus for hours not worked because of
vacation, sick leave, or any other reason.” App. 2. Moreover,
the bonuses “reflected the reality that working closely with
residents in a nursing home during the early days and months
of the pandemic meant exposure to risk of infection.” Id.; see
also App. 3 n.9 (“In finding that the bonuses were gifts, the
judge appears to have been influenced in part by his view that
they represented a ‘significant and substantial windfall’ to
employees. We disagree with this characterization in light of
the fact that employees earned the bonuses by providing care
to residents of the Respondent’s facility during a pandemic.”).
As such, the bonuses were “a form of hazard pay, which is a
mandatory subject of bargaining.” App. 2.
The Board also rejected the ALJ’s finding that the
management rights clause in the CBA permitted the Company
to unilaterally rescind the bonuses because, according to the
Board, the management rights clause did not survive the
CBA’s expiration. The Board reasoned that “provisions in an
expired collective-bargaining agreement do not cover post-
expiration unilateral changes unless the agreement contained

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language explicitly providing that the relevant provision would
survive contract expiration.” App. 3 n.10 (citation omitted).
And the parties’ management rights clause “does not specify,
either implicitly or explicitly, that it would survive after the
agreement’s expiration.” Id.
Lastly, the Board granted General Counsel’s partial
summary judgment motion and ordered the make-whole
remedy charged in the compliance specification. The Board
reasoned,
It is well settled that a general denial of backpay
calculations is insufficient to comply with [the
Board’s regulations] where the answer fails to
specify the basis for the disagreement with the
backpay computations contained in the
specification, fails to offer any alternative
formula for computing backpay, fails to provide
appropriate supporting figures for amounts
owed, or fails to adequately explain any failure
to do so. Moreover, the gross backpay owed to
employees in this case is clearly within the
[Company]’s knowledge because its payroll
department modified staff bonuses from April to
November 2020.
App. 4. The Board also affirmed the ALJ’s decision with
respect to the Company’s failure to respond to the Information
Request.
After unsuccessfully moving for reconsideration, the
Company petitioned this Court for review of the Board’s
decision. The General Counsel cross-petitioned for

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enforcement.
II.
The Board had jurisdiction over this matter pursuant to
29 U.S.C § 160(a). See New Concepts for Living, Inc. v. NLRB,
94 F.4th 272, 279 (3d Cir. 2024). We have jurisdiction to
consider the Company’s petition and the General Counsel’s
cross-petition under 29 U.S.C. § 160(e) and (f). Id. at 279-80.
We review the Board’s factual findings for substantial
evidence. See, e.g., NLRB v. ImageFIRST Uniform Rental
Serv., Inc., 910 F.3d 725, 732 (3d Cir. 2018). “Substantial
evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” 1621 Route 22 W. Operating Co., LLC
v. NLRB, 825 F.3d 128, 144 (3d Cir. 2016) (citation omitted).
We thus uphold the Board’s conclusions of fact “even if we
would have made a contrary determination had the matter been
before us de novo.” Citizens Publ’g & Printing Co. v. NLRB,
263 F.3d 224, 232 (3d Cir. 2001). Where, as here, the Board
adopts in part the factual findings of an ALJ, we review the
determinations of both the Board and the ALJ. Trafford
Distrib. Ctr. v. NLRB, 478 F.3d 172, 179 (3d Cir. 2007). “But
we owe the Board no deference on matters of contractual
interpretation, even when undertaken in connection with unfair
labor practice proceedings.” PG Publ’g Co. v. NLRB, 83 F.4th
200, 211 n.16 (3d Cir. 2023).
III.
We begin with the Company’s petition for review. The
Company argues the COVID-19 bonuses were gifts rather than

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wage increases and thus not subject to mandatory bargaining
under the Act. But even if the bonuses were wage increases,
the Company posits, they would still be authorized by the
management rights clause in the CBA which survived the
CBA’s expiration. We will address each argument in turn.
A.
Employees have the right under the Act “to bargain
collectively through representatives of their own choosing.”
29 U.S.C. § 157. An employer thus violates subsections
8(a)(5) and (1) of the Act by “refus[ing] to bargain collectively
with the representatives of his employees,” id. § 158(a)(5);
accord N.J. Bell Tel. Co. v. NLRB, 720 F.2d 789, 791 n.2 (3d
Cir. 1983), as well as by enacting “unilateral change[s] in
conditions of employment” because “it is a circumvention of
the duty to negotiate which frustrates the objectives of [the Act]
much as does a flat refusal,” NLRB v. Katz, 369 U.S. 736, 743
(1962). See also Leeds & Northrup Co. v. NLRB, 391 F.2d
874, 877 (3d Cir. 1968) (“The principle at the heart of [the Act]
is that basic terms which are vital to the employees’ economic
interest, such as wages, may not be altered unilaterally by the
employer without bargaining with [union representatives].”).
The mandatory duty to bargain is limited to “wages, hours, and
other terms and conditions of employment.” 29 U.S.C.
§ 158(d). “[A]s to all other matters, each party is free to
bargain or not to bargain.” N. Am. Pipe Corp., 347 N.L.R.B.
836, 837 (2006), enforced sub nom. Unite Here v. NLRB, 546
F.3d 239 (2d Cir. 2008). In particular, “gifts per se—payments
which do not constitute compensation for services—are not
terms and conditions of employment, and an employer can
make or decline to make such payments as he pleases.” NLRB
v. Wonder State Mfg. Co., 344 F.2d 210, 213 (8th Cir. 1965).

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In distinguishing between wages and gifts, we ask
whether the award is “so tied to the remuneration which
employees received for their work that it was in fact part of it.”
Unite Here, 546 F.3d at 243 (quotation marks and brackets
omitted). A sufficient relationship to remuneration may exist
if the payment is tied to various “employment-related factors.”
Benchmark Indus., 270 N.L.R.B. 22, 22 (1984), enforced sub
nom. Amalgamated Clothing v. NLRB, 760 F.2d 267 (5th Cir.
1985). Those factors include “work performance, wages,
hours worked, seniority, and production.” Unite Here, 546
F.3d at 243; see also Radio Television Tech. Sch., Inc. v. NLRB,
488 F.2d 457, 460 (3d Cir. 1973) (considering “(1) the
consistency or regularity of the payments; (2) the uniformity in
the amount of the payments; (3) the relationship between the
amount of the bonus and the remuneration of the recipient; (4)
the taxability of the payment as income; and (5) the financial
condition and ability of the employer” as relevant factors to the
gift or wage determination). “An award that is sufficiently tied
to these work-related factors is considered part of the overall
compensation that an employee receives and is therefore
mandatorily bargainable.” Unite Here, 546 F.3d at 243.
In this case, the Board’s determination that the COVID-
19 bonuses were so tied to remuneration that they were in fact
part of it was supported by substantial evidence. See id. at 244
(reviewing for substantial evidence the question of “whether
the stock award is so tied to remuneration that it is in fact a part
of it”). The bonuses were tied to relevant “employment-related
factors.” Benchmark Indus., 270 N.L.R.B. at 22. For example,
the Board determined that “attendance was a prerequisite to
receiving any hourly rate bonus” based on the Company’s
memos on April 1 and April 7 announcing the bonuses. App.
2; see, e.g., Sykel Enters., Inc., 324 N.L.R.B. 1123, 1124

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(1997) (finding Christmas bonuses were wages because the
company “looked at the attendance and performance of
the . . . employees in determining how much of a Christmas
bonus to give each employee”); Woonsocket Spinning Co., 252
N.L.R.B. 1170, 1172 (1980) (finding holiday bonuses that
were calculated by multiplying the number of hours worked by
years of employment could not be unilaterally rescinded).
Those memos explicitly limited the bonuses to “all hours
worked,” and made clear that employees would not “receive
any hourly rate bonus for hours not worked because of
vacation, sick leave, or any other reason.” App. 1, 2, 126; see
App. 475 (April 1 memo “excluding [from the bonuses] any
paid time-off pay”); 479 (April 7 memo “excluding sick or
benefit time”).
In addition, the bonuses were not paid equally to each
employee, but instead were calculated based on job type and
current hourly rate. While the April 1 memo announced an
equal 25% salary bump for all employees, the April 7 memo
increased the bonuses to 100% just for nursing staff, while the
remaining employees remained at 25%. Then, after reducing
the nurses’ bonuses back to 25% on April 29, the Company
limited the bonus to “Direct Nursing Providers only” on May
13 whereas all other employees returned to their normal hourly
rate as of May 17. And finally, on May 29, the Company cut
bonuses for RNs and LPNs from 25% to 10% until June 10,
after which time they returned to normal salary levels, while
the CANs remained at 25% until July 26, after which they
received a permanent increase of $1.50 per hour. Thus, the
availability and amount of bonus each employee received
depended on his or her position and hourly rate. See, e.g.,
Radio Television Tech. Sch., Inc., 488 F.2d at 460 (Christmas
bonuses considered gifts when they were “based upon the

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employees’ length of service and the nature and scope of their
employment responsibilities”).
And finally, while the memos claimed that each salary
change was temporary and subject to reevaluation, the Board
acknowledged this factor, but concluded that it was
outweighed by other considerations. See App. 2 n.7 (“The
judge correctly observed that the Board also considers the
regularity of a bonus in determining whether it is a term and
condition of employment, but this factor is neither necessary
nor sufficient in the analysis.”); see also Unite Here, 546 F.3d
at 244 (finding substantial evidence to uphold the Board’s
decision when the Board “majority acknowledged that [an
employment-related] factor might cut against treatment of the
stock award as non-bargainable, but concluded that this factor
was outweighed by other considerations”). And regardless, as
the Board pointed out, the Company’s final change—an
increase in $1.50 per hour for all CNAs—remained in effect
until the facility closed in November 2020. App. 1 & 2 n.7.
As such, “[t]he permanence of that pay increase further
supports the conclusion that the bonuses were a mandatory
subject of bargaining.” App. 2 n.7.
The Company’s reliance on Unite Here v. NLRB is
unpersuasive. In fact, Unite Here better supports the General
Counsel, not the Company. In that case, the Second Circuit
denied a petition for review of the Board’s decision holding
that a one-time stock issuance to all employees was a gift rather
than a wage increase because “[t]he stock award . . . was a one-
time event, given to each employee, regardless of rank, in an
equal amount.” 546 F.3d at 244. In contrast, the COVID-19
bonuses were distributed over the course of several months and
varied in amount based on the employee’s hourly salary and

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job title. Accordingly, the Board’s finding that the bonuses
were tied to employment-related factors is supported by
substantial evidence.
The Board also determined the bonuses were “a form of
hazard pay, which is a mandatory subject of bargaining.” App.
2. No decision of the Board to our knowledge has ever
recognized “hazard pay” as part of the “terms and conditions
of employment” under the Act.5 “We recognize that
classification of bargaining subjects as terms and conditions of
employment is a matter concerning which the Board has
special expertise.” Allied Chem. & Alkali Workers of Am. v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 182 (1971)
5 The Board’s citation to Hospital Menonita De
Guayama, Inc., 371 N.L.R.B. No. 108, 2022 WL 2355898
(June 28, 2022), enforced, 94 F.4th 1 (D.C. Cir. 2024), is
unconvincing. While true the Board in that case adopted the
ALJ’s finding that a Company violated the Act by unilaterally
giving $150 bonus checks to employees who worked during a
hurricane, it failed to provide any reasoning except that “[g]ifts
or bonuses tied to the remuneration that employees receive for
their work constitute compensation for services and are in
reality wages falling within the Statute.” 2022 WL 2355898,
at *16. Moreover, that case involved more obviously illegal
conduct from the employer—most notably, the recission of
benefits and unilateral modification of health care policies, id.
at *9, and dealt primarily with a legal issue not presented
here—the fate of the successor bar rule. Id. at *8. Neither the
ALJ nor the Board in their decisions nor our sister circuit in its
enforcement order discussed the concept of or even used the
words “hazard pay.”

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(quotation marks and parentheses omitted). Accordingly, we
have traditionally deferred to the Board’s interpretations of the
Act so long as they are “reasonable.” See, e.g., MCPC, Inc. v.
NLRB, 813 F.3d 475, 482 (3d Cir. 2016); see also Ford Motor
Co. v. NLRB, 441 U.S. 488, 497 (1979) (holding the Board’s
interpretation of the Act should be enforced so long as it is
“reasonably defensible,” and refusing to enforce the Board’s
interpretation only when it has “no reasonable basis in law,” is
“fundamentally inconsistent with the structure of the Act and
an attempt to usurp major policy decisions properly made by
Congress,” or “mov[es] into a new area of regulation which
Congress has not committed to it” (citations and quotation
marks omitted)).
Whether this deference survives the Supreme Court’s
recent decision in Loper Bright Enterprises v. Raimondo, 144
S. Ct. 2244 (2024), which overruled Chevron deference, is
somewhat of an open question. It would appear to us, however,
that judicial deference to the Board’s classifications of the
“terms and conditions of employment” under the Act is distinct
from Chevron deference, as the Supreme Court’s decisions
developing that deference to the Board predate Chevron v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
See, e.g., Ford Motor Co., 441 U.S. at 496-97 (collecting
cases). In fact, the Court in Loper Bright distinguished
Chevron deference from prior cases where it deferred to the
Board’s interpretation of the Act, reasoning “[t]he Act had, in
the Court’s judgment, assigned primarily to the Board the task
of marking a definitive limitation around the [relevant
statutory] term” and so “application of [the] statutory term was
sufficiently intertwined with the agency’s factfinding” that
deference to the Board’s interpretation was warranted. 144 S.
Ct. at 2259-60 (citations and quotation marks omitted); see

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also Ford Motor Co., 441 U.S. at 496 (noting “Congress made
a conscious decision to continue its delegation to the Board of
the primary responsibility of marking out the scope of the
statutory language and the statutory duty to bargain”). But see,
e.g., Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167, 174-75
(3d Cir. 2002) (reciting our deferential standard to the Board’s
interpretations of the Act but noting “[o]ur standard is
governed by the test articulated in Chevron”); Stardyne, Inc. v.
NLRB, 41 F.3d 141, 147 (3d Cir. 1994) (Alito, J.) (similar).
Ultimately, we need not decide whether deference to the
Board’s designation of mandatory bargaining subjects under
the Act survives the Supreme Court’s rejection of Chevron
deference in Loper Bright. Even on de novo review, we reach
the same conclusion as the Board—that hazard pay is
appropriately considered the “terms and conditions of
employment” and thus subject to mandatory bargaining under
the Act. The Department of Labor defines hazard pay as
“additional pay for performing hazardous duty or work
involving physical hardship.” Hazard Pay, U.S. Dep’t of Labor
(last visited Aug. 14, 2024),
https://www.dol.gov/general/topic/wages/hazardpay. And in
the federal employee context, Congress has authorized the
Office of Personnel Management “to provide additional
compensation at fixed rates (pay differentials) to salaried,
General Schedule employees for duty involving unusual
physical hardship or hazard,” or “for duty involving unusually
severe working conditions or unusually severe hazards.”
Adams v. United States, 59 F.4th 1349, 1351-52 (Fed. Cir.
2023) (en banc) (quotation marks omitted); see 5 U.S.C.
§§ 5543(c)(4), 5545(d). The purpose of these programs is “to
serve as a gap-filling measure to provide additional
remuneration to an employee asked to take unusual risks not

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normally associated with their occupation and for which added
compensation is not otherwise provided.” Adams, 59 F.4th at
1352 (quotation marks omitted). Given that hazard pay is
simply a subset of one’s salary or “remuneration,” it clearly
falls under “wages” or “other terms and conditions of
employment” as used in the Act and therefore subject to
mandatory bargaining. Thus, the Board’s conclusion that
“hazard pay . . . is a mandatory subject of bargaining” was not
erroneous. App. 2. See also NLRB v. Metro Man IV, LLC, 113
F.4th 692, 697-700 (6th Cir. 2024) (assuming without deciding
that hazard pay is subject to mandatory bargaining under the
Act).
In addition, the Board’s factual finding that the COVID-
19 bonuses were properly “considered a form of hazard pay”
is supported by substantial evidence. Id. At the hearing, the
Company’s former Vice President described the situation at the
facility at the onset of the COVID-19 pandemic as “chaotic”
and “frightening.” App. 183. She said the facility was
“struggling” to “keep[] up with all of the new regulations and
guidance[] that w[ere] coming by rapid fire” and that there was
“a lot of emotions” and “dwindling staff resources.” Id. at 183-
84. The Company further recognized the difficulty of this time
in its communications regarding the bonuses. In the April 1
memo, the Company alluded to the “challenges surrounding
the COVID19” and described the pandemic as a “medical
crisis.” App. 475. In its April 2 email to the Union, the
Company referred to the pandemic as an unprecedented
“global emergency.” App. 477 (stating the facility “is in the
epicenter of the Covid-19 pandemic — the likes of which no
one has ever experienced” (emphasis added)). And on April 7,
the Company again described the pandemic as “most
challenging times.” App. 479. Moreover, that nursing staff

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received larger bonuses and for longer periods of times is
consistent with the Board’s hazard pay finding because nurses
would have had the most direct exposure to the risks
surrounding COVID-19. Thus, substantial evidence supports
the Board’s factual finding that the bonuses were a form of
hazard pay meant to compensate for the “reality that working
closely with residents in a nursing home during the early days
and months of the pandemic meant exposure to risk of
infection.” App. 2.
In sum, the Board’s factual findings that the COVID-19
bonuses were tied to employment-related factors and
represented a form of hazard pay such that they were properly
considered wages or other terms and conditions of employment
were supported by substantial evidence. The bonuses were
therefore subject to the mandatory duty to bargain under the
Act.
Lastly, relying on the Sixth Circuit’s recent decision in
Metro Man IV, the Company argues it was excused from any
duty to bargain under the Act even if the bonuses were hazard
pay because of “exigent circumstances” created by the
pandemic. Dkt. 44 (Sept. 9, 2024 Letter); 113 F.4th 692 (6th
Cir. 2024). At no point did the Company raise the doctrine of
economic exigency before the Board or ALJ. But even if this
argument were properly before us, there is no substantial
evidence that the pandemic created “exigent economic
circumstances” for the Company such as mass staffing
shortages or a mass outbreak of COVID-19 at the facility. Cf.
Metro Man IV, 113 F.4th at 695, 699-700 (emphasis added)
(holding “exigent economic circumstances” excused employer
from its duty to bargain over hazard pay when
“[a]pproximately 75% of . . . unionized staff, including nurses,

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stopped coming to work” after nursing home residents began
contracting COVID). Furthermore, Metro Man IV does not
cover, let alone declare lawful, the type of unilateral action that
the Company took here—announcing, repeatedly altering, and
ultimately terminating bonuses without any reference to
previous announcements or “terms.” Rather, the employer in
Metro Man IV had expressly time-limited its temporary hazard
pay policy at the outset by noting that it would only apply until
the employer’s facility had “treated its last COVID patient.”
Id. at 698. Here, the Company did not attach any limitations
to the bonuses at the outset, nor in subsequent alterations. And
whereas in Metro Man IV, the termination of the hazard pay
policy before the union even learned of it meant, effectively,
that “nothing remained to bargain about,” id. at 700, here, the
union was aware of the Company’s changes to the COVID-19
bonuses at every step. Accordingly, we conclude the Company
was obligated to bargain at every step of the Company’s
implementation of and changes to the bonuses. In sum, the
facts and issues presented in Metro Man IV are wholly distinct
from those we consider here.
B.
We next consider whether the management rights clause
in the parties’ CBA authorizes unilateral payment of the
COVID-19 bonuses notwithstanding the Act. “When a union
and an employer enter into a collective bargaining agreement,
each party may waive certain rights they otherwise would
possess under the [Act] . . . .” Verizon New England Inc. v.
NLRB, 826 F.3d 480, 482 (D.C. Cir. 2016) (Kavanaugh, J.);
see also, e.g., Engelhard Corp. v. NLRB, 437 F.3d 374, 378 (3d
Cir. 2006) (noting “the statutory right to strike may be waived
in a collective bargaining agreement,” and collecting cases).

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The CBA in this case contains a management rights
clause which states that “[n]othing herein contained shall
prevent the Employer from giving merit increases, bonuses, or
other similar payments provided it gives prior notice to the
Union before implementation.” App. 446. The parties do not
dispute this clause provides the Company unilateral authority
with respect to the bonuses, provided it gives the Union prior
notice. But the Board found the CBA expired in 2014, long
before the Company implemented its COVID-19 bonus
program in 2020. The critical question therefore is whether the
management rights clause survives the CBA’s expiration and
forms part of the post-expiration status quo.6
In general, “contractual obligations will cease, in the
ordinary course, upon termination of [a collective] bargaining
agreement.” Litton Fin. Printing Div. v. NLRB, 501 U.S. 190,
207 (1991). But “terms and conditions continue in effect by
operation of the [Act]. They are no longer agreed-upon terms;
they are terms imposed by law, at least so far as there is no
unilateral right to change them.” Id. at 206. In this way,
subsections 8(a)(1) and (5) require “continuation of the status
quo” during negotiations over a successor CBA. Katz, 369
U.S. at 746. And so “an employer commits an unfair labor
practice . . . when, after the expiration of a CBA and during
negotiations for a successor CBA, the employer alters the post-
expiration status quo regarding the terms and conditions of
employment without first negotiating with its employees to an
6 We review de novo the question of whether a provision
in a collective bargaining agreement forms part of the post-
expiration status quo. See, e.g., PG Publ’g, 83 F.4th at 211-12
& n.16.

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overall impasse on the successor CBA.” PG Publ’g, 83 F.4th
at 205.
We recently discussed the framework for analyzing
whether a CBA provision forms part of the post-expiration
status quo in PG Publishing. There, a provision guaranteeing
employees five work shifts per week did not form part of the
post-expiration status quo. In so holding, we rejected the
Board dissent’s “sweeping proposition” that “terms in an
expired CBA form part of the post-expiration status quo only
where there is some explicit statement by the parties.” Id. at
217. We also declined to adopt the Board majority’s view that
“any provision touching on subjects of mandatory bargaining
is by law included in the post-expiration status quo.” Id. at
214. Instead, the proper analysis examines “the language of
the CBA in question” using “ordinary principles of contract
interpretation”:
If the language of the CBA does not indicate that
the term in question persists as part of the status
quo, the inquiry ends. If, but only if, the contract
indicates in some fashion that the term does form
part of the post-expiration status quo – and
therefore continues to govern the parties by
operation of the [Act] – then the employer must
meet the clear-and-unmistakable-waiver
standard if it wishes to assert that its employees
have waived their statutory right to the benefits
of the contested term.
Id. at 212-13.
The Company urges that under the standard announced

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in PG Publishing,7 the management rights clause survives the
CBA’s expiration because “[t]he facts found in the PG
Publishing case mirror the facts in the instant case.”
Company’s Br. 23. To the contrary, while both this case and
PG Publishing involve the general question of whether a
provision in an expired CBA survives contract expiration, their
7 The Board’s decision predates PG Publishing. As
such, the Board did not have opportunity to apply our “ordinary
principles of contract law” approach to the instant case.
Rather, it looked to its own decision in Nexstar Broadcasting,
Inc. for the proposition that “provisions in an expired
collective-bargaining agreement do not cover post-expiration
unilateral changes unless the agreement contained language
explicitly providing that the relevant provision would survive
contract expiration.” App. 3 n.10 (quoting Nexstar Broad. Inc.,
369 N.L.R.B. No. 61, 2020 WL 1986474, at *3 (Apr. 21,
2020), enforced, 4 F.4th 801 (9th Cir. 2021)). Our decision in
PG Publishing of course rejected the “clear and unmistakable
language” rule endorsed by the Board and our sister circuit in
Nexstar. See PG Publ’g, 83 F.4th at 217; accord Nexstar, 4
F.4th at 809 (holding “contract rights only survive expiration
if the CBA explicitly so provides”). Thus we ordinarily would
grant the petition for review and remand for further
consideration in light of PG Publishing. See, e.g., NLRB v. A.
Duie Pyle, Inc., 730 F.2d 119, 128 (3d Cir. 1984) (“We have
made it crystal clear that a Board’s decision ignoring our
precedents will not be enforced.”). But because we review
issues of contract interpretation de novo, and because, as
explained infra, we reach the same decision as the Board under
our ordinary principles of contract law approach, we will deny
the petition for review.

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underlying facts are materially different. The provision in PG
Publishing guaranteed five shifts per week, which the
employees were not otherwise entitled to by default under the
Act. In contrast, the provision here waives the employees’
right to bargain over certain wage increases—a right
guaranteed under the Act. Thus, while both provisions touch
on subjects of mandatory bargaining, one creates a right
whereas the other waives a right, and we did not suggest in PG
Publishing that these two different types of provisions must be
analyzed and treated the same way under the Act. Moreover,
the contract provision in PG Publishing was “drafted with
precision” and contained “clear and unambiguous” durational
language. 83 F.4th at 217-18 (reading the participial phrase
“ending March 31, 2017” to modify the five-shift guarantee
and demonstrate the parties’ unambiguous intent that the five-
shift guaranteed would expire with the CBA). In contrast, the
management rights clause here is silent concerning its duration.
Nor do we discern any durational clues from the other
provisions in the CBA.
We did not provide any guidance in PG Publishing on
how to address such silence, except to say “the inquiry ends.”
Id. at 213. Thus, per ordinary principles of contract law, the
durational silence in the management rights clause suggests it
did not survive the CBA’s expiration to form part of the post-
expiration status quo. See Pittsburgh Mailers Union Loc. 22 v.
PG Publ’g Co. Inc., 30 F.4th 184, 188 (3d Cir. 2022)
(“According to [ordinary contract] principles, if a specific
provision does not have its own durational clause, the general
durational clause of the CBA applies.” (citing CNH Indus. N.V.
v. Reese, 538 U.S. 133, 140-41 (2018) (per curiam))); see also
M&G Polymers USA, LLC v. Tackett, 574 U.S. 427, 441
(2015) (“[C]ourts should not construe ambiguous writings [in

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28
contracts] to create lifetime promises.” (citing 3A Corbin,
Corbin on Contracts § 553, p. 216 (1960))). But we may also
seek guidance from federal labor policy in interpreting
ambiguous contract provisions, for federal labor policy
illustrates the parties’ understanding at the time they formed
the CBA. Cf. PG Publ’g, 83 F.4th at 216 (“[W]e interpret
collective-bargaining agreements according to ordinary
principles of contract law, at least when those principles are
not inconsistent with federal labor policy.” (brackets and
ellipses omitted) (emphasis added) (quoting Finley Hosp. v.
NLRB, 827 F.3d 720, 725 (8th Cir. 2016))); see also Tackett,
574 U.S. at 435 (same). We have long espoused the Board’s
policy that “waivers of statutorily protected rights must be
clearly and unmistakably articulated” and absent some clear
statement to the contrary, a “management rights clause does
not survive the expiration of the CBA.” Furniture Rentors of
Am., Inc. v. NLRB, 36 F.3d 1240, 1245 (3d Cir. 1994) (first
citing Metro. Edison Co. v. NLRB, 460 U.S. 693, 708 (1983),
then citing Control Servs., Inc., 303 N.L.R.B. 481, 484 (1991),
enforced, 961 F.2d 1568 (3d Cir. 1992) (unpublished table
decision)).8 Indeed, requiring clear waivers in management
8 While we did not address it in PG Publishing,
Furniture Rentors remains good law as it post-dates Litton, the
case upon which we primarily relied in PG Publishing for the
proposition that collective bargaining agreements should be
interpreted pursuant to ordinary principles of contract law. See
PG Publ’g, 83 F.4th at 212-13; accord Garcia v. Att’y Gen.,
553 F.3d 724, 727 (3d Cir. 2009) (“We are bound by
precedential opinions of our Court unless they have been
reversed by an en banc proceeding or have been adversely
affected by an opinion of the Supreme Court.”).

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29
rights clauses ensures fair footing for bargaining of the next
CBA. See Katz, 369 U.S. at 746-47. And continued
reservation of a carve-out to subjects of mandatory bargaining
would likely slow rather than accelerate future labor
negotiations.
* * *
In sum, when analyzed using ordinary contract
principles, we find the management rights clause does not
survive the CBA’s expiration. Moreover, this conclusion is
consistent with federal labor policy. Because the Board
reached the same conclusion (albeit for different reasons), we
will deny the petition for review.
IV.
We now turn to the General Counsel’s cross-petition for
enforcement. In addition to finding a violation of the Act, the
Board granted the General Counsel’s partial summary
judgment motion, given the Company’s failure to properly
respond to the allegations in the compliance specification. As
a remedy for violating the Act, the Board ordered the Company
to “make the affected employees whole by paying them the
amounts set forth [in the compliance specification]” as well as
“to compensate affected employees for any adverse tax
consequences of receiving lump-sum backpay awards.” App.
5. The Company argues this remedy is excessive and that it
was denied due process when the Board granted the General
Counsel’s partial summary judgment motion without giving
the Company an opportunity to contest the backpay
calculations. The General Counsel disagrees, and also
contends we lack jurisdiction to consider the Company’s

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challenges to the remedy.
We begin, as we must, with our jurisdiction. Under
section 10(e) of the Act, “[n]o objection that has not been urged
before the Board . . . shall be considered by the court, unless
the failure . . . to urge such objection shall be excused because
of extraordinary circumstances.” 29 U.S.C. § 160(e).
Application of this section is mandatory and jurisdictional. See
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-
66 (1982); see also New Concepts for Living, Inc., 94 F.4th at
280 (“Section 10(e) is a jurisdictional administrative
exhaustion requirement designed to ensure that any issue
raised on appeal was first presented to the Board.”); Oldwick
Materials, Inc. v. NLRB, 732 F.2d 339, 341 (3d Cir. 1984). The
Board has also promulgated regulations to flesh out section
10(e)’s requirements. See 29 C.F.R. § 102.46. Any party may
file “exceptions” to an ALJ’s decision. Id. § 102.46(a). The
opposing party may then file an answering brief to those
exceptions and/or cross-exceptions to the ALJ’s decision. Id.
§ 102.46(b), (c). “Matters not included in exceptions or cross-
exceptions may not therefore be urged before the Board, or in
any further proceeding.” Id. § 102.46(f). Ultimately, “[t]he
crucial question in a section 160(e) analysis is whether the
Board received adequate notice of the basis for the objection.”
NLRB v. FedEx Freight, Inc., 832 F.3d 432, 437 (3d Cir. 2016)
(quotation marks omitted).
In this case, we conclude, without hesitation, that our
jurisdiction to review the Company’s challenges to the remedy
is proper. The General Counsel raised the issue of the ALJ’s
“fail[ure] to rule on . . . the General Counsel’s Motion for
Partial Summary Judgment regarding the Compliance
Specification” in its exceptions to the ALJ’s decision. App.

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515. The issue is therefore properly before us. Full stop. See
New Concepts for Living, Inc., 94 F.4th at 280 (“A matter
which is ‘included in exceptions or cross-exceptions’ is
thereby preserved.” (emphasis added) (quoting 29 C.F.R.
§ 102.46(f))). Neither the Act nor the Board’s implementing
regulation requires the party pursuing an issue on appeal to
have been the one to raise it before the Board. What matters is
whether “the Board was clearly on notice of the key issues in
the case before us.” Id. at 281. Here, not only did the General
Counsel raise the issue of its partial summary judgment
motion, but the Board actually addressed and ruled on it,
thereby demonstrating its awareness of the issue. Accordingly,
our jurisdiction is proper. See also id. at 289-90 (Krause, J.,
concurring) (admonishing the General Counsel for its repeated
invocation of this jurisdictional argument which “exposes a
troubling gap between Section 10(e) of the [Act], and the
Board’s regulation . . . that purports to interpret it”).
That said, we agree with the General Counsel that the
Board’s remedy was an appropriate consequence of the
Company’s deficient answer to the compliance specification.
When the General Counsel issues a compliance specification
alleging specific amounts owed to various employees, 29
C.F.R. § 102.55, the respondent is required to file an answer,
id. § 102.56(a). That answer must contain “highly specific
information, going well beyond the requirements for answers
in civil actions in federal courts.” NLRB v. Harding Glass Co.,
500 F.3d 1, 3 (1st Cir. 2007). Specifically,
The answer must specifically admit, deny, or
explain each allegation of the specification,
unless the Respondent is without knowledge, in
which case the Respondent must so state, such

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statement operating as a denial. Denials must
fairly meet the substance of the allegations of the
specification at issue. When a Respondent
intends to deny only a part of an allegation, the
Respondent must specify so much of it as is true
and deny only the remainder. As to all matters
within the knowledge of the Respondent,
including but not limited to the various factors
entering into the computation of gross backpay,
a general denial will not suffice. As to such
matters, if the Respondent disputes either the
accuracy of the figures in the specification or the
premises on which they are based, the answer
must specifically state the basis for such
disagreement, setting forth in detail the
Respondent's position and furnishing the
appropriate supporting figures.
29 C.F.R. § 102.56(b) (emphasis added). Moreover, “when a
respondent fails to deny allegations with the required
specificity, those allegations are ‘deemed to be admitted true,
and may be so found by the Board without the taking of
evidence supporting such allegation[s], and the respondent
shall be precluded from introducing any evidence
controverting the allegation[s].’” Harding Glass Co., 500 F.3d
at 7 (alterations in original) (quoting 29 C.F.R. § 102.56(c)).
Here, the Company’s answers to the paragraphs in the
compliance specification were “general denials” within the
meaning of the Board’s regulation. For each paragraph, the
Company repeated that it “[d]enies the allegations set forth in
Paragraph [] of the Complaint” without providing any
additional detail. See App. 552-55 (repeating the same answer

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33
in response to paragraphs 16-86). These denials fail to
“specifically state the basis for such disagreement, setting forth
in detail the [Company’s] position and furnishing the
appropriate supporting figures.” 29 C.F.R. § 102.56(b). Nor
can the Company claim it lacks knowledge as to those
allegations since, as the Board noted, “gross backpay owed to
employees in this case is clearly within the Respondent’s
knowledge because its payroll department modified staff
bonuses from April to November 2020.” App. 4. Because the
Company’s denials were clearly deficient under the Board’s
regulations, “[t]he Board was justified in . . . awarding partial
summary judgment based on the allegations that were deemed
admitted to be true.” Harding Glass Co., 500 F.3d at 7.
The Company claims it was not given the opportunity
to address the partial summary judgment motion prior to the
Board ruling on it because the motion was mooted by the ALJ’s
finding of no liability. This is plainly inaccurate. First, the
compliance specification itself clearly alerted the Company of
its “answer requirement” that “a general denial is not
sufficient” and that “if an answer fails to deny
allegations . . . in the manner required under [the Board’s
regulations] . . . the Board may find those allegations in the
Second Amended Complaint and Compliance Specification
are true and preclude [the Company] from introducing any
evidence controverting those allegations.” App. 295-97; see
Harding Glass Co., 500 F.3d at 7 (enforcing the Board’s grant
of partial summary judgment because “Harding had fair notice
of the costs of its evasiveness”). Second, the General Counsel
gave the Company the opportunity to correct its clearly
deficient answer prior to filing its partial summary judgment
motion, but the Company declined to do so. Third, the ALJ
explicitly invited the Company to oppose the General

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Counsel’s partial summary judgment motion and/or correct its
deficient answer at the conclusion of the hearing, but the
Company declined to do so. And fourth, the General Counsel
explicitly renewed its partial summary judgment motion in its
exceptions to the ALJ’s decision, but once again, the Company
declined to do so. The Company was therefore given four
opportunities to address its deficient answer, yet it failed to do
so. Any due process challenge is therefore meritless.9
But even if we were to reach the merits, we would not
find the Board’s remedy excessive. The Act gives the Board
the power to “take such affirmative action . . . as will effectuate
the policies of [the Act.]” 29 U.S.C. § 160©. And we accord
broad deference to the Board to fashion make-whole remedies.
See Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203,
216 (1964) (the Board’s authority to issue remedies is a “broad
discretionary one, subject to limited judicial review”); see also
1621 Route 22 W. Operating Co., 825 F.3d at 147 (“In
reviewing the Board’s [remedy] determination, . . . our
‘judicial role is narrow,’ and an order of the Board ‘must be
enforced’ if it is rationally ‘consistent[t] with the Act’ and
‘supported by substantial evidence on the record as a whole.’”
(alteration in original) (quoting Beth Israel Hosp. v. NLRB, 437
U.S. 483, 501 (1978))).
9 See Harding Glass Co., 500 F.3d at 3 (“This case has
cautionary lessons for counsel about the costs of minimalist
responses to [the General Counsel’s] allegations. Here, the
company failed to comply with the Board’s rules for answering
compliance specifications. . . . We [therefore] reject the
company’s arguments and enforce the Board’s order.”).

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Finally, we will enforce the Board’s order with respect
to the Company’s failure to respond to the information request.
The ALJ found the Company failed to provide the requested
information, that the information was “presumptively relevant
and may be necessary for the Union to advocate [for] its
represented members at the pending grievance,” App. 17, and
that the Company therefore violated the Act by failing to
provide the information. Neither party raised the issue of the
information request before the Board. Nor does the Company
address the issue in its petition for review or its reply to the
General Counsel’s cross-petition. The issue is therefore
forfeited.
V.
For the reasons set forth above, we will deny the
Company’s petition for review and grant the General
Counsel’s cross-petition for enforcement.

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