Coreslab Structures (Tulsa) Inc.

372 NLRB No. 31 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive 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. Coreslab Structures (Tulsa) Inc. and International Union of Operating Engineers, Local 627, AFL– CIO. Cases 14–CA–248354 and 14–CA–248812 December 16, 2022 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS RING AND PROUTY On February 11, 2021, Administrative Law Judge Robert A. Ringler issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the Act- ing General Counsel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions, the motions to reopen the rec- ord, and briefs and has decided to affirm the judge’s rul- ings, findings,1 and conclusions2 only to the extent con- sistent with this decision and Order.3 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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. On April 20, 2021, after filing exceptions to the judge’s decision, the Respondent filed a Motion to Reopen the Record to Admit the Declara- tion of Neil Drews and a Motion to Reopen the Record to Admit or in the Alternative Take Administrative Notice of an Arbitration Award. With the first motion, it seeks to reopen the record to admit a post- hearing statement by its witness, Vice-President and General Manager Neil Drews, who testified at length at the hearing in this case. With the second motion, it seeks to admit a March 2020 arbitration award, dated eight months prior to the hearing. The Respondent does not contend that the evidence or award it seeks to add to the record are newly dis- covered or have become available only since the close of the hearing, nor has it demonstrated other extraordinary circumstances warranting reopening the record. See Sec. 102.48(c)(1) of the Board’s Rules and Regulations. We further note that when the Acting General Counsel sought to introduce evidence of the grievance underlying the arbitration at the hearing, the Respondent objected on relevancy grounds. Accord- ingly, we deny the Respondent’s motions. The Respondent has also requested oral argument. The request is denied as the record and the briefs adequately present the issues and the positions of the parties. 2 We clarify that the Respondent withdrew recognition from the Un- ion on September 30, 2019, upon expiration of the parties’ 2015-2019 collective-bargaining agreement as extended by the parties’ second Memorandum of Understanding, rather than on September 24, 2019, the date the Respondent notified the Union that it would withdraw recognition when the contract expired. 1. The Respondent’s Pension and Profit-Sharing Plans The Respondent produces bridge members and struc- tural commercial products at its facility in Tulsa, Okla- homa. In December 2004, the Respondent voluntarily recognized the Union as the bargaining representative of the Respondent’s production and maintenance employ- ees. In February 2005, the Respondent and the Union executed their first collective-bargaining agreement. The parties’ successive agreements have required the Re- spondent to make pension contributions to the Central Pension Fund (CPF). Under Article XVI of the 2015– 2019 agreement at issue here, the Respondent must pay an hourly stipend to the CPF for “all hours worked” by all unit employees. Since at least 2011, and during successive collective- bargaining agreements through the term of the 2015– In addition, in the absence of exceptions, we adopt the judge’s con- clusion that the Respondent violated Sec. 8(a)(5) and (1) by failing to make contractually-required pension contributions on behalf of all unit employees following its September 30, 2019, withdrawal of recognition from the Union. However, we do not characterize the violation as an unlawful midterm modification of the contract, as the judge did. In- stead, as alleged in the complaint, we find that, since September 30, 2019, the Respondent violated Sec. 8(a)(5) by unilaterally changing the terms and conditions of unit employees’ employment without providing the Union with notice and an opportunity to bargain. We further adopt the judge’s findings that the Respondent violated Sec. 8(a)(1) by prohibiting an employee from talking to the Union during non-working time in a non-working area, and violated Sec. 8(a)(5) and (1) by failing and refusing to provide relevant information the Union requested on September 16, 2019. As to the latter, we clarify that the Respondent furnished the requested start date of its profit- sharing plan on December 12, 2019. Accordingly, we shall only order the Respondent to furnish the remaining information requested on September 16 that has not been produced, including: its 401(k)-plan contact information and prospectus, and “the percentage or monetary number of company profit the profit sharing is based on,” which the Union referred to as the “trigger point” for profit sharing. See Jt. Exh. 10. Finally, we reverse the judge’s sua sponte finding that the Respond- ent violated Sec. 8(a)(5) and (1) by terminating its dues checkoff obli- gations following its withdrawal of recognition from the Union, be- cause it was not alleged in the complaint and because only the General Counsel may amend the complaint. In so doing, we note that we adopt below the judge’s separate finding that the Respondent violated Sec. 8(a)(5) by withdrawing recognition from the Union and his recom- mended remedy requiring the Respondent to restore the status quo ante, which would include, consistent with Valley Hospital Medical Center, 371 NLRB No. 160, slip op. at 2-3, 15-17 (2022), the Respondent’s obligation to continue dues checkoff. 3 We shall amend the judge’s conclusions of law to conform to the violations found. We shall modify the judge's recommended Order to conform to the amended conclusions and to the Board's standard reme- dial language, and in accordance with our recent decisions in Thryv, Inc., 372 NLRB No. 22 (2022), Paragon Systems, Inc., 371 NLRB No. 104 (2022), and Cascades Containerboard Packaging—Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021). We shall also substitute a new notice to conform to the Order as modified. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 2019 collective-bargaining agreement, the Respondent only made the required pension contributions for those unit employees who were dues-paying union members— approximately 25 percent of the unit by the time of the hearing in this case—and excluded the rest of the unit. Also, during this time, the Respondent provided unit employees who were not union members with annual profit-sharing payments; the Respondent did not make similar payments to its employees who were union mem- bers. Although some employees, including former union steward Floyd Prince, were aware since 2011 that the Respondent was providing different benefits to unit em- ployees depending on whether they were union members, the Respondent did not inform Jason Evans, the Union’s President as well as a business agent, of these actions. Nor did the Respondent inform any other members of union leadership, including Business Manager Michael Stark and the two business agents who, along with Ev- ans, negotiated the 2015–2019 collective-bargaining agreement. In 2019, the CPF audited the Respondent’s pension contributions.4 On July 15, it found that the Respondent had underpaid $119,455 for the audited period between 2016 and 2018, which flowed from its exclusion since 2011, of nonunion bargaining unit employees from the pension fund.5 The audit determined, among other things, that the Respondent had “[f]ailed to report em- ployees in covered job classifications” and had omitted payments. It was only on September 6, after the audit revealed the pension deficiency and the parties were bar- gaining for a successor agreement, that the Respondent informed Union President Evans that it had only been contributing to the pension on behalf of union members and had been providing profit sharing to the remaining unit employees. The judge found that Steward Prince’s prior knowledge of the different benefits could not be imputed to the Union and, based in part on credited testimony, further found that the Union did not have actual or con- structive knowledge of the Respondent’s actions regard- ing the pension and profit-sharing plans until September 6. He therefore concluded that the Respondent’s failure to make pension contributions for nonunion members without the consent of the Union resulted in an unlawful midterm modification of the 2015–2019 contract in vio- lation of Section 8(a)(5) and (1) and 8(d), and that the Respondent violated Section 8(a)(5) and (1) by unilater- ally implementing its profit-sharing plan without provid- ing the Union notice and opportunity to bargain, and that 4 All dates are in 2019 unless otherwise indicated. 5 At the time of the audit, the Respondent’s total debt including in- terest for this period was close to $160,000. its discriminatory exclusion of union members from the profit-sharing plan violated Section 8(a)(3) and (1). For the reasons stated below, we adopt these conclusions.6 In addition, the judge found it unnecessary to pass on the allegation that the Respondent’s admitted failure to make pension payments on behalf of unit employees who did not join the Union also violated Section 8(a)(3) and (1). As explained below, contrary to the judge, we consider the merits of this allegation and find the violation as al- leged. The Respondent challenges the judge’s findings, pri- marily asserting that the Union had knowledge of, and acquiesced to, the Respondent’s pension and profit- sharing conduct because Steward Prince knew about the Respondent’s actions and, the Respondent contends, Prince was an agent of the Union. The Respondent al- ternatively argues that the Union had constructive knowledge of its conduct because the Respondent was open about its actions and because Prince knew and told new hires about them. We do not find these arguments persuasive.7 (a) The 8(a)(5) and (1) violations i. The Union Did Not Have Actual Knowledge of the Respondent’s Actions Regarding the Pension and Profit- Sharing Plans and So Cannot Be Found to Have Acquiesced First, we agree with the judge that the Respondent has not met its burden to show that Prince had authority, ei- ther actual or apparent, to act as the Union’s agent to receive notice of midterm modifications to the contract’s pension provision or unilateral changes to unit employ- ees’ benefits and thus to acquiesce on behalf of the Un- 6 Chairman McFerran and Member Prouty form the majority to adopt the judge’s findings that the Respondent violated Sec. 8(a)(5) by modifying the contract midterm without the consent of the Union and by unilaterally changing terms and conditions of employment of its unit employees by offering a profit-sharing plan to only those unit employ- ees who were not union members without notifying the Union and giving it an opportunity to bargain. For the reasons set forth in his separate opinion, Member Ring dissents from the majority’s finding of these violations. 7 The Respondent contends for the first time in its exceptions that the pension and profit-sharing allegations are time barred under Sec. 10(b) of the Act. The Respondent has waived this argument by failing to raise it in its answer to the complaint or at the hearing. EF Interna- tional Language Schools, 363 NLRB 199, 199 fn. 2 (2015), enfd. 673 Fed. Appx. 1 (D.C. Cir. 2017); Atelier Condominium & Cooper Square Realty, 361 NLRB 966, 968 fn. 13, 1001 (2014), enfd. mem. 653 Fed. Appx. 62 (2d Cir. 2016). Although the judge found sua sponte that the complaint was not time-barred, we do not rely on his discussion of the issue as it relates to Sec. 10(b). In addition, we do not rely on the judge’s characterization of the Re- spondent’s unlawful pension and profit-sharing conduct as “secret” and “covert,” insofar as the Respondent openly distributed annual profit- sharing payments. This does not affect our disposition of the case. CORESLAB STRUCTURES (TULSA) INC. 3 ion to the Respondent’s actions. It is well-established as a matter of common law that an individual may be a principal’s agent for one purpose, but not for another. Status as a union steward, standing alone, does not estab- lish agency for the purpose of receiving notices on a un- ion’s behalf about proposed changes in mandatory sub- jects of bargaining. See Colorado Symphony Associa- tion, 366 NLRB No. 122, slip op. at 37 (2018), citing Brimar Corp., 334 NLRB 1035, 1035 fn.1 (2001) (find- ing that a union steward’s knowledge of a unilateral change could not be imputed to the union because the steward had no role in matters relating to bargaining and the employer had no reason to believe otherwise), and Catalina Pacific Concrete Co., 330 NLRB 144, 144 (1999) (rejecting the employer’s Section 10(b) defense in part because the employer did not have a reasonable ba- sis to believe that a union steward had the authority to act as the union’s agent with respect to receiving notice of proposed unilateral changes), enfd. 19 Fed. Appx. 683 (9th Cir. 2001). Here, the Respondent had long- established channels of communication for bargaining matters, and Union President Evans was the person with whom the Respondent historically communicated, and whom the Union held out as having the authority to re- ceive notice of potential changes to mandatory subjects of bargaining. There is no evidence that the Union vest- ed Prince with actual authority in this particular respect or that the Respondent reasonably believed that he was the Union’s agent because the Union held him out to the Respondent as its agent for receiving notice of such mat- ters. To the contrary, Prince was a production employee who volunteered to serve as steward until he resigned from the Union in May 2017. Prince's duties as steward were limited. According to his credited testimony, he only handled minor “bickering” amongst unit employees and distributed information packets to new hires when Evans was unavailable to meet with them. On some oc- casions, Prince informed new hires about the Respond- ent’s benefits practices based on representations made to him by the Respondent.8 He attended bargaining ses- sions in 2011 and 2015 as an observer for unit employees but did not participate in negotiations and never spoke to the Respondent’s representatives during bargaining. As mentioned above, only Evans or members of union lead- ership, none of whom were employees, negotiated with the Respondent’s representatives. In addition, no em- ployees complained about pension or profit-sharing ben- efits to Prince or to the Union, and Prince credibly testi- 8 The Respondent does not specify, nor does the record reflect, the number of times that Prince spoke to new hires about the Respondent. fied that he never brought the Respondent’s actions re- garding the benefits plans to the Union’s attention.9 The Board’s decisions in Courier Journal, 342 NLRB 1093 (2004), and The Baytown Sun, 255 NLRB 154 (1981), relied on by the Respondent, are distinguishable. In Courier Journal, the Board imputed a steward’s knowledge to the union where he was “not only a steward” but a member of the union’s negotiating committee who had himself participated in bargaining. 342 NLRB at 1103 fn. 14. In Baytown Sun, on which the Courier Journal judge relied, the steward, among other duties, directly negotiated with the employer at the bar- gaining table, participated in the union's decision-making process during negotiations, and filed grievances on be- half of unit employees. 255 NLRB at 156–159. The Board considered not only the steward’s attendance at 25–30 negotiating sessions, but that “[s]he was more than a union steward, and her knowledge of [the re- spondent's] actions relating to the shift changes was the Union's knowledge.” Id. at 160.10 In addition to finding that Prince’s overall responsibili- ties are not comparable to the duties of the stewards in these cases, we further reject the Respondent's assertion that its conduct should be excused because Prince should have known that the Respondent's reliance on Oklaho- ma's status as a so-called “right to work” state as grounds for failing to provide pension benefits to non-member unit employees was erroneous. Although Prince distrib- uted the Respondent’s materials, parroting the Respond- 9 To the contrary, Prince testified at the hearing that he thought that the Respondent’s profit-sharing plan was a “nice” way to equalize unit employees’ benefits because, accepting the Respondent’s representa- tions, he believed that only union members were entitled to the pension. Even by the time of the hearing, he did not know whether the nonunion members in the unit should receive pension benefits. 10 Unlike that case, and given Prince’s limited ministerial duties and mute presence in negotiations, our dissenting colleague inflates Prince’s role as an asserted “conduit of information.” Our colleague’s reliance on the cases discussed to imply that the Board has imputed a steward’s knowledge to the union based solely on attendance at bar- gaining sessions is incorrect and contrary to his recognition that the Board considers the totality of the steward’s authority in determining whether he or she is an agent of the Union. His effort to distinguish the facts in Colorado Symphony, Brimar Corp., and Catalina Pacific Con- crete Co., above, is irrelevant: we cite those cases only for the proposi- tion that agency may be imputed to a steward for a particular purpose, not necessarily for all purposes. To illustrate how the totality of the steward’s actual and apparent authority determines the scope of agency, our colleague cites inapposite cases in which actions causing an em- ployer to discharge an employee for dues delinquency were imputed to the union, based on the direct knowledge of the steward responsible for collecting those dues. See, e.g., Carpenters Local 17 (A&M Wall- board), 318 NLRB 196, 196 fn. 3 (1995); Carpenters Local 296 (Acrom Construction), 305 NLRB 822, 822 fn. 1 (1991). Here, by contrast, Prince lacked the knowledge of labor law needed to under- stand the significance of the Respondent’s benefit scheme, as explained below. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 ent’s explanations, he had no knowledge of the legal re- percussions of treating employees differently based on their membership in the Union, or of the interplay be- tween federal law and right-to-work state laws. See In- gram Book Co., 315 NLRB 515, 516 fn. 2 (1994) (ob- serving that “employees do not generally carry lawbooks to work or apply legal analysis . . . as do lawyers”). In- deed, if the Respondent can claim that it did not under- stand the law, as it does on exception – asserting that it “was under the impression that those employees who were not dues-paying members of the Union were ineli- gible for the Union’s pension plan” --then it can hardly expect a rank-and-file employee to have superior knowledge, sufficient to recognize the Respondent’s un- usual and unlawful actions regarding the benefits plans. Lacking understanding of these complex issues, Prince reasonably did not communicate the Respondent’s binary benefit plan to the Union. Our dissenting colleague maintains that Prince’s au- thority to file grievances gave him expertise in bargain- ing subjects, and thus the Union had constructive knowledge of the Respondent’s benefit practices. How- ever, while Prince was authorized to file grievances, no grievances were filed, nor would Prince have had reason to file one himself: Union members were receiving their contractual pension benefits, and the nonunion employ- ees (comprising 75 percent of the bargaining unit) would not have been likely to complain to the Union (which they had chosen not to join) about a profit-sharing bene- fit they found favorable. Nor was either category of em- ployee likely to express concern, to the point of filing a grievance, that they were not receiving the benefits that went to employees in the other category.11 And as the Respondent’s own labor counsel believed that its client’s conduct was required by Oklahoma’s right-to-work law, we reject our dissenting colleague’s position, which ef- fectively requires stewards to know more than labor counsel when “policing” a collective-bargaining agree- ment. ii. The Union Did Not Have Constructive Knowledge of the Respondent’s Actions Regarding the Pension and Profit-Sharing Plans and So Cannot Be Found to Have Acquiesced Second, we find no merit in the Respondent’s conten- tion that the Union had constructive knowledge of the Respondent’s actions regarding its pension and profit- 11 See Broadway Volkswagen, 342 NLRB 1244, 1246 (2004) (find- ing the circumstances under which an employer implemented unilateral changes insufficient to impute constructive knowledge to the union where it was unlikely that employees would complain about personally benefiting from changes that were not offered to other employees), enfd. 483 F.3d 628 (9th Cir. 2007). sharing plans because the Union failed to exercise rea- sonable diligence to uncover how unit employees “re- ceived benefits” from the Respondent and so effectively acquiesced. In so arguing, the Respondent relies on Moeller Bros. Body Shop, Inc., 306 NLRB 191, 192 (1992), where the Board stated that, “[w]hile a union is not required to aggressively police its contracts [] in or- der to meet the reasonable diligence standard, it cannot with [impunity] ignore an employer or a unit . . . and then rely on its ignorance of events occurring at the shop to argue that it was not on notice of an employer’s” un- lawful conduct. Although the Respondent and our dis- senting colleague contend that Moeller supports the Re- spondent’s position, the facts of that case are clearly dis- tinguishable. There, the Board found that the union had constructive knowledge of the respondent employer’s failure to pay fringe benefits and contractual wages, where a single visit to the workplace would have re- vealed through “[m]ere observation” that the respondent had hired twice as many employees into the unit as the four it was reporting to the union. The union in Moeller should have been alerted to the uncertain status of some employees in the unit following the deletion of appren- ticeship provisions in a prior contract, but it made no effort to ascertain their status, and only visited the work- place approximately once every 3 years. Id. at 191–192. Here, in contrast, Union President Evans regularly vis- ited the facility to meet new hires; provided employees with updates during contract negotiations; and was in direct communication with Drews about unit issues, in- cluding those pertaining to new hires, discipline, and terminations. Knowing that Evans was the officer in charge of bargaining issues, and therefore the appointed agent of the Union for bargaining matters, the Respond- ent, through Drews, should have given Evans notice of its changes to its benefits plans. Colorado Symphony, above, slip op. at 37. Neither Evans nor any other union official had any apparent reason to suspect the Respond- ent’s unlawful conduct or to launch an unprompted in- vestigation into the Respondent’s benefits plan admin- istration, particularly as no unit employees had com- plained to the Union, or even the steward, about not re- ceiving benefits. In addition, unlike in Moeller, above, where the employer openly flaunted its underreporting of unit employees, contrary to the contract, by submitting fringe benefit reports that did not match the number of employees readily observable by the union at work, here, neither the Respondent nor the CPF provided infor- mation to the Union about the number of employees en- rolled in the CPF. Rather, the Respondent reports unit- employee information directly to the CPF, including when it adds or deletes names of employees for whom it CORESLAB STRUCTURES (TULSA) INC. 5 will make contributions. The CPF does not report this information back to the local unions, but only contacts a union if and when it issues a delinquency demand letter to an employer. Here, the Union did not learn of the Re- spondent’s practices until after the CPF’s 2019 audit, which was the first and only time the Respondent was found delinquent. Our dissenting colleague maintains that “[r]outine in- formation requests in preparation for collective bargain- ing would have uncovered the Respondent’s unlawful practices,” which had been going on since 2011, as al- leged in the complaint, and possibly longer according to testimony. But this hypothesis is at odds with the Re- spondent’s own actions. We find unanimously in this decision that the Respondent unlawfully failed to re- spond to the Union’s requests for information about the profit-sharing plan, even as it proposed to eliminate the pension plan and to expand profit-sharing to cover all employees. Moreover, there is no evidence that earlier bargaining sessions had triggered a need for information requests, particularly on benefits practices about which there were no employee complaints.12 And even if the Union had sought information from the Respondent, it is unlikely that the Respondent would have disclosed its discriminatory practices, which it believed to be lawful. In any event, there is no basis for the dissent’s implicit contention that a union has, not only a right—but a du- ty—to make information requests to police the collec- tive-bargaining agreement or in preparation for bargain- ing. iii. The Respondent’s Contract Modification and Unilateral Changes Because the Union did not have knowledge of the Re- spondent’s actions regarding the pension and profit- sharing plans until September 2019, we cannot find that the Union acquiesced. Rather, we agree with the judge that the Respondent violated Section 8(a)(5) and (1) of the Act by modifying Article XVI (Pensions) of the par- ties’ 2015–2019 collective-bargaining agreement by fail- ing to make pension contributions on behalf of unit em- ployees who were not union members. Section 8(a)(5) and (1) and Section 8(d) of the Act prohibit an employer from modifying terms and condi- tions of employment established by a collective- bargaining agreement during the agreement's term with- out the union's consent. See Knollwood Country Club, 12 Our dissenting colleague implies that information requests could have been made during negotiations for prior agreements, however, Drews testified that the topic of limiting pension payments to only union members was never brought up during negotiations from 2011 until the Respondent’s disclosure in September 2019. 365 NLRB No. 22, slip op. at 2 (2017). Given the Un- ion’s lack of knowledge, there was no consent here. When an employer defends against a midterm modifi- cation allegation by arguing that the contract did not pro- hibit its challenged conduct, the Board will not ordinarily find a violation if the employer's contractual interpreta- tion has a “sound arguable basis.” Id., slip op. at 2-3. (citing Bath Iron Works Corp., 345 NLRB 499, 501–502 (2005), enfd. sub nom. Bath Marine Draftsmen's Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007)).13 There was clearly no “sound arguable basis” here. Rather, the Respondent implausibly professes to have believed that state law prohibited it from contributing to the CPF on behalf of employees who did not join the Union because Oklaho- ma is a so-called “right to work” state. This is not a mat- ter of contract interpretation, but rather a claim that a contractual requirement violated state law. In any case, the Respondent does not cite to specific contract lan- guage or to any provision of state law that would support its position, much less explain how its view could be reconciled with the Act and the doctrine of federal preemption. It is telling, too, the Respondent never in- formed the Union of its professed concern that the con- tract conflicted with state law—even during the parties' negotiations for a successor agreement. Nor does it as- sert that it consulted legal counsel about its concerns in advance of its decision to stop making the pension pay- ments for non-member employees. We have no difficul- ty, then, finding that the Respondent had lacked a sound arguable basis for assertedly interpreting the contract to permit it to exclude employees who were not union members from the pension and to give them profit shar- ing instead. Accordingly, we find that the Respondent modified the 2015–2019 contract midterm in violation of Section 8(a)(5) and (1).14 We also agree with the judge, for the reasons he stated, that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing terms and conditions of employ- ment of its unit employees in 2011 by offering a profit- sharing plan to only those unit employees who were not union members, without notifying the Union and giving 13 No party contests the application of the legal standard set forth in Bath Iron Works Corp., supra, to assess the lawfulness of the allegation that the Respondent violated Sec. 8(a)(5) by modifying Article XVI (Pensions) during the term of the parties’ collective-bargaining agree- ment. 14 Insofar as the Respondent claims a mistake of law as a defense to its interpretation of its contractual obligation, a mistake of law is no defense to its refusal to bargain. See Artcraft Mantel & Fireplace Co., 174 NLRB 737, 740 (1969). The Respondent’s claim is particularly unavailing here because the Respondent never raised its professed concerns about Oklahoma law to the Union. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 it an opportunity to bargain.15 As with its pension prac- tice, the Respondent did not disclose its profit-sharing practices—a mandatory subject of bargaining—to the Union until September 6 and did not provide an oppor- tunity to bargain about its conduct.16 (b) The 8(a)(3) and (1) violations We further find that the Respondent violated Section 8(a)(3) and (1) both by failing to make pension contribu- tions for unit employees who were not union members and by excluding those who were from its profit-sharing plan.17 The Respondent’s pension and profit-sharing practices were facially discriminatory, providing separate benefits for unit employees depending on whether they joined the Union, and would reasonably tend to be coer- cive to employees deciding whether to join the Union.18 In fact, Drews admitted that two employees told him that they declined to join the Union because of the annual profit-sharing benefits. Although the Respondent con- tends that it was not motivated by union animus, we find that the unilateral decision to distribute benefits to unit employees based solely on whether or not they joined the Union “bears its own indicia of intent” to discourage or encourage membership in the Union. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967).19 Further, the Respondent has provided no legitimate justification for its discriminatory actions, as it states that it imple- mented the profit-sharing plan to offset the effects of 15 Although the Respondent excepts to the judge’s findings that its actions regarding the profit-sharing plan were unlawful, there are no specific exceptions to the judge’s finding that the violations began with the annual benefits for 2011, as alleged in the complaint. Accordingly, we adopt the judge’s finding that the profit-sharing violations began January 1, 2011. 16 Cascades Containerboard Packaging—Niagara, 370 NLRB No. 76, slip op. at 18 (2021) (“profit-sharing, as a matter of law, is a manda- tory subject of bargaining.”) 17 The judge found it was unnecessary to pass on the allegation in- volving whether the Respondent violated Sec. 8(a)(3) by ceasing pay- ment of contractual pension benefits to nonunion members, and the Acting General Counsel did not except to the judge’s finding in that regard. We nevertheless address the Sec. 8(a)(3) allegation related to the Respondent’s pension plan actions. The Board may address an issue even in the absence of exceptions. See, e.g., MCPC, Inc. v. NLRB, 813 F.3d 475, 490 & fn. 12 (3d Cir. 2016). Here, of course, the violation was alleged in the complaint and was fully and fairly litigated. See Pergament United Sales, Inc., 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). 18 See, e.g., Laborers Local 135 (Bechtel Corp.), 271 NLRB 777, 778–779 (1984), enfd. mem. 782 F.2d 1030 (3d Cir. 1986) (Sec. 8(a)(3) applies to conduct that may “encourage or discourage” membership in a union). 19 We do not rely on the judge’s analysis under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). This is not a dual-motive case, and the Respondent admits that union membership was the only factor it considered in enrolling unit employees in its pension or profit-sharing plan. what we find to be its unlawful pension practices. Ac- cordingly, we conclude that the Respondent’s discrimi- natory pension and profit-sharing practices each violated Section 8(a)(3) and (1) of the Act.20 2. Bargaining for a Successor Agreement Anticipating the April 30 expiration of the 2015–2019 collective-bargaining agreement, the parties met on April 10 to begin bargaining for a successor agreement. The Union offered a comprehensive proposal and the record establishes that the Respondent made a couple of verbal proposals, but no agreement was reached. The Respond- ent’s General Manager Neil Drews informed Union Pres- ident and Business Agent Justin Evans of the impending audit by the CPF, and stated that there could be no bar- gaining until after the audit was completed.21 Evans, who knew neither the reason for the audit nor the infor- 20 Having found that the Respondent violated Sec. 8(a)(3) by dis- criminatorily failing to make pension contributions for unit employees who were not union members since 2011, we remedy this violation dating back to 2011 on that basis. In so doing, we note, as discussed above, that we also adopt the judge’s finding that the Respondent’s pension plan-related actions separately violated Sec. 8(a)(5) as midterm modifications of the parties’ 2015–2019 collective-bargaining agree- ment. The judge found that this violation extended back to 2011. Because we have found the Sec. 8(a)(3) violation related to the Re- spondent’s pension plan actions, and have fully remedied that violation dating back to 2011, Chairman McFerran finds it unnecessary to re- solve the question of the appropriate length of the remedial period for the Sec. 8(a)(5) midterm contract modifications regarding the pension plan, as doing so would not materially affect the remedy provided for these violations. Member Prouty agrees with the Chairman that, as found above in the text of this decision, the Respondent modified the 2015–2019 contract midterm in violation of Sec. 8(a)(5) and (1), and further, he acknowledges that in light of our finding of the Sec. 8(a)(3) violation and remedy back to 2011, to also find a Sec. 8(a)(5) violation starting in 2011, would not materially affect the remedy in this matter. Nevertheless, for the sake of completeness and also because the 8(a)(5) issue might be presented in a future case where it would affect the remedy, Member Prouty would also find that the Respondent’s pension plan-related actions constituted a separate 8(a)(5) midterm modification violation under the 2011–2015 agreement. The 2011–2015 agreement contained the same pension contribution provision requirements “on all hours worked” as the 2015–2019 agreement, varying only by the dollar amount of contribution required during each year of the contract. As found by the judge, “since 2011” the Respondent unlawfully ceased making pension payments required by the agreement for unit employ- ees who were not Union members. In Member Prouty's view, the Re- spondent unlawfully modified the 2011–2015 contract, and then, once the 2015–2019 contract took effect, unlawfully modified that agree- ment as well. Thus, he would find that the remedy for the Respondent’s midterm modification violations extends back to 2011, as found by the judge. 21 During the audit, which took place in mid-April, Drews was alert- ed to the prospect that the Respondent would owe money based on its contractual pension obligations to all employees. Evans testified that the parties had scheduled a meeting on April 19, but that Drews told him they would have to cancel it on account of the pending audit. Although the judge did not specifically find that a meeting was can- celled, he found that Evans’ testimony was “highly credible.” CORESLAB STRUCTURES (TULSA) INC. 7 mation it would soon uncover, agreed to extend the col- lective-bargaining agreement through July 31 and to re- sume negotiations in June or July. The record reflects that beginning in May and throughout June, Evans con- tacted the Respondent in person, by email, or by phone at least once a week, trying to schedule additional bargain- ing sessions. Drews informed Evans that he was not authorized to bargain until the audit of the pension was finalized. Evans continued to request negotiation dates in early and mid-July, starting with a call on July 1. Drews said that he could not proceed until permitted to by the Respondent’s corporate office. On July 15, the auditor informed the Respondent that its pension delin- quency for the period between 2016 and 2018 would amount to $158,996.76, including interest, liquidated damages, and expenses. Evans was not informed of the amount or the fact that the Respondent had been exclud- ing nonunionized employees from the pension fund since at least 2011. On July 22, after receiving these prelimi- nary results, Drews informed Evans that he was permit- ted to negotiate, but did not have authority to sign an agreement until the audit was final. In sum, the record reflects that the Respondent cancelled one meeting and delayed bargaining on at least six occasions, claiming that bargaining would be “on hold” pending the final results of the audit. The parties met again for bargaining on July 26. The Union requested that the Respondent provide a full pro- posal covering all economic and non-economic issues, and the Respondent provided the Union with a proposal listing six items, including one to eliminate pension ben- efits. Drews did not, however, mention the fact that the Respondent was already withholding pension benefits from its nonunion bargaining unit employees. The ses- sion ended after a few hours without any agreement other than to extend the contract a second time to September 30.22 Evans sought to resume negotiations in August. Meanwhile, in a late August meeting with employees, Drews updated the unit on the status of bargaining, blam- ing the Union and the CPF for delaying bargaining and impeding the Respondent’s ability to give raises. Drews explained that one of the subjects of bargaining was the pension fund, and that the CPF’s audit found “that con- tributions should have been made for employees who are not in the pension fund.” Drews also explained that “[a]ny money that the company may owe …, will be paid to the pension fund and not the employees. If employees are members of the pension fund, … [they] may benefit from the company making the contribution. If you are 22 The two extensions of the collective-bargaining agreement were memorialized in Memoranda of Understanding (MOU). not a member … you will not benefit from the extra con- tribution. The uncertainty of the … audit has made nego- tiations difficult because the audit could cost … signifi- cant . . . money.” On September 4, Drews told Evans that the Respondent was comfortable proceeding with negotiations because Drews had learned the Respondent would not face withdrawal liability if it left the CPF. On September 6, when the parties met for their third bargaining session, Drews informed Evans for the first time that, for a number of years, the Respondent had not made pension contributions for the nonunion bargaining unit members. Despite an exchange of proposals and tentative agreements reached on topics including vaca- tions, shift differentials, and updating minimum wage rates, the parties did not reach a final agreement. The sticking point was the Respondent’s proposal to discon- tinue the pension plan and replace it with profit sharing, particularly after the Union learned that the Respondent had been permitting unit employees who were not union members to participate in the profit-sharing plan. The parties did not schedule another bargaining session. On September 9, the Union emailed Drews a request for information relating to the Respondent’s profit- sharing plan, to which the Respondent provided a partial response. On September 11, Drews received a disaffec- tion petition, dated September 9, that was signed by 18 of the 26 unit employees. On September 12, Drews told Evans that given their ongoing disagreement over the pension and profit-sharing changes and liability, he was withdrawing the parties' tentative agreements. On September 16, the Union sent the Respondent a second information request, seeking additional infor- mation on the Respondent’s 401(k) and profit-sharing plans, which the Respondent denied on the same date. Drews emailed Evans that “[t]his information you are asking for is pertaining to the profit-sharing vs pension during the negotiations. That offer was taken off the table when you were in my office on Thursday, September 12, 2019 … there is no offer on the table at the current time.” On September 24, Drews informed the Union that he had received a disaffection petition and that the Respondent would withdraw recognition from the Union upon the contract’s September 30 expiration. Evans attempted to set another date to negotiate, but Drews declined to schedule further bargaining sessions. Beginning October 1, the Respondent no longer recognized the Union. The judge found, based on the totality of the circum- stances, that the Respondent violated Section 8(a)(5) and (1) by failing to bargain in good faith over the successor collective-bargaining agreement. He found that several factors demonstrated bad faith during negotiations: the Respondent’s postponement, delays, and cancellation of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 meetings with the Union, its withdrawal of prior agree- ments reached during bargaining, its failure to provide information requested by the Union, its unilateral chang- es (apparently referring to the Respondent’s pen- sion/profit-sharing system), and its refusal to bargain after it withdrew recognition from the Union.23 The Re- spondent excepts to the judge’s violation finding, claim- ing that he examined only single occurrences during the 4-month period of negotiations without considering Drews’ sincere effort to find common ground, and point- ing to the parties’ agreement to twice extend the collec- tive-bargaining agreement as evidence of mutuality. Admitting that Drews delayed bargaining pending the outcome of the audit results, the Respondent asserts that the Union rejected its proposal to delete the contractual pension provision, and that it was justified in refusing to bargain after it received the employees’ disaffection peti- tion on September 11. It is the Board’s role “to oversee the [bargaining] pro- cess to ascertain that the parties are making a sincere effort to reach agreement,” the hallmark of the parties’ duty to bargain as set forth in Section 8(d) of the Act. Altura Communication Solutions, LLC, 369 NLRB No. 85, slip op. at 1 (2020), enfd. mem. 848 Fed. Appx. 344 (9th Cir. 2021). The Board has found the following con- duct to be indicative of a lack of good faith in bargain- ing: “delaying tactics, unreasonable bargaining demands, unilateral changes in mandatory subjects of bargaining, efforts to bypass the union, failure to designate an agent with sufficient bargaining authority, withdrawal of al- ready agreed-upon provisions, and arbitrary scheduling of meetings.” Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984). But these factors are only one aspect of the standard: “[i]t is necessary to scrutinize an employer's overall conduct to determine whether it has bargained in good faith. ‘From the context of an employer's total con- duct, it must be decided whether the employer is lawfully engaging in hard bargaining to achieve a contract that it considers desirable or is unlawfully endeavoring to frus- trate the possibility of arriving at any agreement.’” Id. at 1603; see also New Concepts for Living, Inc., 371 NLRB No. 157, slip op. at 9 (2022) (Board examines the totality of the employer’s conduct, both at and away from the bargaining table); Regency Service Carts, Inc., 345 NLRB 671, 671 (2005) (same). We agree with the judge’s conclusion that the Re- spondent failed to bargain in good faith, under Atlanta Hilton. We further clarify the context and the totality of the circumstances against which the Respondent’s ac- 23 We do not rely on the judge’s finding that the Respondent failed to offer counterproposals, as the record reflects that both parties ex- changed proposals during bargaining. tions surrounding the parties’ three short bargaining ses- sions should be evaluated. The violations that we have unanimously affirmed in this case form an integral part of that context—the Respondent since 2011 had unlaw- fully ceased paying contractual pension benefits to its nonunion unit employees and instead offered them a profit-sharing plan without bargaining with the Union. But it did not divulge its actions to the Union until the third and final bargaining session on September 6, even though its objective during negotiations was to eliminate the pension provision. After having revealed its profit- sharing plan, which it had been offering only to employ- ees who were not Union members, it unlawfully failed to respond to the Union’s request for information on the profit-sharing which had just been disclosed. Then, in- stead of continuing to bargain based on full disclosure, the Respondent unlawfully withdrew recognition from the Union, relying on a disaffection petition tainted by those longstanding pension and profit-sharing plan viola- tions, and subsequently ceased paying contractual pen- sion benefits to all of its employees. Against this backdrop, the Respondent delayed bar- gaining on six or more occasions over a 5-month period, claiming that Corporate prohibited further negotiation pending the CPF audit, with no explanation as to why that should halt all bargaining. From the first bargaining session forward, the Respondent delayed meeting with the Union, citing the pending audit as a reason. It re- ceived the audit results around July 17 and the second negotiating session was held on July 26. Despite Evans’ persistent scheduling attempts, however, the Respondent did not increase the frequency of negotiations after July 17 when it received the audit results. It was not until the final session, held on September 6 – over 7 weeks after learning of the audit results – that the Respondent finally informed the Union for the first time of its pension and profit-sharing system. The Respondent had withheld this information from the Union even after the CPF’s audit had revealed its delinquency, and even while it proposed to eliminate the contractual pension provision (Article XVI).24 The Respondent’s repeated rationalizations for its dila- tory behavior, based on the pending CPF audit, was fol- lowed by further delay while it sought to determine whether it would face liability if it withdrew from the 24 The judge found that the Respondent proposed eliminating the ar- ticle in the collective-bargaining agreement providing for pension bene- fits at the parties’ second bargaining session on July 26. While the record indicates that the Respondent may have introduced that proposal in the first bargaining session, the relevant fact is that it did not reveal to the Union until the third bargaining session that since at least 2011 it had not applied the pension provision to 75 percent of its bargaining unit employees. CORESLAB STRUCTURES (TULSA) INC. 9 CPF. Such rationalizations, while failing to divulge its ongoing conduct in violation of its contractual and statu- tory obligations, reveal an intent to frustrate bargaining over the pension provision.25 Moreover, when the Re- spondent finally revealed to the Union for the first time the existence of its profit-sharing plan, with which it wished to replace the pension provision, it failed to re- spond to the Union’s information requests on that man- datory subject of bargaining, which would have allowed negotiations to proceed in a new direction. See, e.g., Cascades Containerboard Packaging—Niagara, 370 NLRB No. 76, slip op. at 18 (2021) (affirming that prof- it-sharing, as a matter of law, is a mandatory subject of bargaining). We also agree with the judge that removing all issues from the bargaining table prior to any claim that the par- ties had reached impasse while the Union’s information requests were still pending, and withdrawing proposals already agreed to during bargaining, frustrated any pos- sibility of arriving at an agreement. See Regency Service Carts, above at 675 (delay in providing relevant infor- mation evinces a failure to bargain in good faith). In New Concepts, above, the Board examined conduct at the bargaining table, including the suspension of bargaining after the respondent received a tainted decertification petition and its replacement of tentative agreements with regressive proposals, and conduct away from the bar- gaining table, such as soliciting employees to withdraw from the union and later distributing authorization cards to rejoin the union, to find that the respondent bargained in bad faith with the intent to undermine the union. Here, the Respondent’s conduct at the table was to rely on a tainted decertification petition to take all issues “off 25 Our dissenting colleague claims that the Respondent’s proposals “on all 27 provisions of the existing agreement” preclude a finding of bad-faith bargaining, and that bargaining delay is not per se evidence of bad faith. But the determination of bad faith must be made “[f]rom the context of an employer’s total conduct,” and not from any one set of actions. Public Service Co. of Oklahoma (PSO), 334 NLRB 487, 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003). While the Board did not find bad-faith bargaining in the respondent’s failure to meet more fre- quently after the first 20 bargaining sessions in Garden Ridge Man- agement, 347 NLRB 131, 131–133 (2006), this was, in part, because the Board found the substance of the sole proposal analyzed by the judge to find bad-faith bargaining to be permissible under Board law, and thus did not show an unlawful intent to frustrate agreement. In this case, by contrast, although the Respondent had made proposals on every provision in the collective-bargaining agreement by the third and final bargaining session, it waited until that final session to divulge the most crucial fact to the Union—that it had for years administered its benefit plans contrary to the collective-bargaining agreement in a man- ner that our colleague agrees was discriminatory, and which, unlike the Board’s violation finding in Garden Ridge Management, tainted the employees’ disaffection petition, as further analyzed below. the table” prior to impasse and without fully responding to the Union’s information requests.26 Away from the table, the Respondent’s conduct was, most notably, its longstanding imposition of the very profit-sharing bene- fits terms it was seeking to negotiate with the Union in bargaining, in a manner that undermined the Union, and the Respondent’s misrepresentation of the Union’s bar- gaining positions and the CPF’s audit to employees. In these circumstances, we conclude that the totality of the Respondent’s actions demonstrates an intent to frustrate the collective-bargaining process and that the Respond- ent therefore violated Section 8(a)(5) and (1) by failing to bargain in good faith with the Union. 3. The Respondent’s Withdrawal of Recognition from the Union As stated above, Drews received a disaffection petition signed by a majority of unit employees on September 11, and the Respondent informed the Union on September 24, that it would withdraw recognition from the Union upon the contract’s expiration on September 30. Apply- ing the four-part test set forth in Master Slack Corp., 271 NLRB 78, 84 (1984), the judge found that the Respond- ent’s unfair labor practices tended to undermine the Un- ion in the eyes of the bargaining unit employees and tainted the disaffection petition that the Respondent re- lied on to withdraw recognition. In adopting the judge’s conclusion that the Respondent’s withdrawal of recogni- tion from the Union violated Section 8(a)(5) and (1), we rely solely on the causal connection between the disaf- fection petition and the Respondent’s unlawful actions regarding the pension and profit-sharing plans. The Board has held that an employer may not withdraw recognition from a union while there are unremedied unfair labor practices that would tend to cause employees to become disaffected from the union. Id. To determine whether there is a causal connection between an employ- er's unlawful conduct and employees' disaffection, the Board considers the following factors: (1) The length of time between the unfair labor practic- es and the withdrawal of recognition; (2) the nature of the illegal acts, including the possibility of their detri- mental or lasting effect on employees; (3) any possible 26 Our dissenting colleague contends that the Respondent’s with- drawal of proposals and cessation of bargaining were justified—and were not indicative of bad-faith bargaining—because the Respondent “believed, based on the petition, that it was required to stop bargaining as a matter of law.” (Original emphasis.) We do not agree. The Re- spondent’s unfair labor practices tainted the petition and as a result the Respondent was not only not required but also not permitted to rely on the tainted petition to cease bargaining. In fact, and in law, the Re- spondent abrogated its statutory obligation to bargain in good faith when it took these actions. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 tendency to cause employee disaffection from the un- ion; and (4) the effect of the unlawful conduct on em- ployee morale, organizational activities, and member- ship in the union. Master Slack, supra at 84. As to the first factor, we find a close temporal proximi- ty between the Respondent’s unfair labor practices and its withdrawal of recognition. The unlawful pension and profit-sharing practices were ongoing at the time em- ployees signed the disaffection petition and demonstrated to the unit that the Respondent could act freely without regard for the contract or the Union. At the time the peti- tion was being circulated, about 75 percent of unit em- ployees were not members of the Union and were eligi- ble for profit sharing instead of their contractual benefits. At an August 1 meeting about six weeks before Drews received the disaffection petition, Drews told employees about the CPF audit and blamed the Union for a loss of profit-sharing that would result from it. He told employ- ees that the Respondent would have to pay the money it owed to the pension fund, but misleadingly stated that only employees who were enrolled in the pension would benefit and that “[i]f you are not a member of this pen- sion fund you will not benefit from the extra contribu- tion.”27 Drews further stated that the unit employees who had not joined the Union “will be forfeiting the Profit Sharing that you would have earned this year” and that these employees would instead be enrolled in the pension. Under these circumstances we find that the Respondent’s ongoing, unremedied unfair labor practices and employees’ resulting concern about their benefits reasonably would have been at the forefront of employ- ees’ minds at the time the petition was circulating.28 As to the second and third factors, the entire unit was affected by the Respondent’s unlawful actions regarding the benefits plans. By ignoring the contract and unilater- ally changing the employees' terms and conditions of employment by offering the profit-sharing plan as an alternative to the contractual pension benefits, the Re- spondent “minimize[d] the influence of organized bar- gaining” and “emphasiz[ed] to the employees that there 27 In fact, the audit documents as well as communications between Drews and the CPF establish that Drews knew that the Respondent had failed to report and make contributions for certain employees in the bargaining unit. Further, Drews was aware that the extra contributions he referred to would in fact be on behalf of those employees the Re- spondent had been excluding—precisely the employees who Drews said would not benefit. 28 Because the complaint did not allege that the statements made by Drews on August 1 violated the Act, we do not rely on the judge’s characterization of these statements as unlawful. The statements do, however, establish a connection between the Respondent’s unlawful pension and profit-sharing practices and employee disaffection with the Union. is no necessity for a collective-bargaining agent.” Penn Tank Lines, Inc., 336 NLRB 1066, 1068 (2001) (citing May Department Stores Co. v. NLRB, 326 U.S. 376, 385 (1945)). For the unit employees who opted not to join the Union and to accept the Respondent’s alternative of annual profit-sharing payments, the possibility of losing profit sharing due to the pension audit reasonably would have led them to believe that the Union was not acting in their interests. As for the final factor, although the Mas- ter Slack test is an objective one,29 Drews admitted that, after the meeting, two employees informed him that they did not join the Union because of the Respondent’s prof- it-sharing plan, which is consistent with our finding that the unfair labor practices reasonably would cause hostili- ty toward the Union. In sum, we find that the Respond- ent’s discriminatory and unilateral replacement of the pension with profit sharing would reasonably cause em- ployees to lose faith in the Union’s ability to protect their benefits and effectively represent them. For all these reasons, we affirm the judge’s finding that a causal relationship existed between the Respond- ent’s unfair labor practices and the disaffection petition, and that the withdrawal of recognition violated Section 8(a)(5) and (1). AMENDED CONCLUSIONS OF LAW 1. The Respondent, Coreslab Structures (Tulsa) Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, International Union of Operating Engi- neers, Local 627, AFL–CIO, is a labor organization with- in the meaning of Section 2(5) of the Act that is, and at all material times was, the exclusive collective- bargaining representative of the following appropriate unit of the Respondent’s employees:30 All production and maintenance employees, employed by the Company at its plant located at 3206 North 129th East Avenue in Tulsa, Oklahoma, excluding building maintenance employees, janitorial employees, office and clerical employees and supervisors as de- fined in the NLRA, as amended, and guards. 3. The Respondent violated Section 8(a)(1) by prohib- iting an employee from talking to the Union during non- working time in a non-working area. 4. The Respondent has violated Section 8(a)(3) and (1) since January 1, 2011, by discriminatorily failing to 29 Denton County Electric Cooperative, Inc. d/b/a CoServ Electric, 366 NLRB No. 103, slip op. at 3, fn. 10 (2018), enfd. in relevant part 962 F.3d 161 (5th Cir. 2020). 30 We use the unit description from the parties’ 2015–2019 contract rather than as set forth in the judge’s decision. CORESLAB STRUCTURES (TULSA) INC. 11 make pension contributions on behalf of unit employees because they were not members of the Union. 5. The Respondent has violated Section 8(a)(3) and (1) since January 1, 2011, by discriminatorily excluding unit employees who were members of the Union from its profit-sharing plan because of their membership in the Union. 6. The Respondent has violated Section 8(a)(5) and (1) since September 16, 2019, by failing and refusing to furnish the Union with requested relevant information. 7. The Respondent has violated Section 8(a)(5) and (1) and 8(d) since at least May 1, 2015, by modifying the 2015–2019 collective-bargaining agreement by failing to make required pension contributions on behalf of unit employees who were not union members, without the Union’s consent. 8. The Respondent has violated Section 8(a)(5) and (1) since January 1, 2011, by unilaterally changing the terms and conditions of employment of unit employees by offering profit sharing to unit employees who were not union members without providing the Union notice or opportunity to bargain. 9. The Respondent has violated Section 8(a)(5) and (1) by failing and refusing to bargain in good faith with the Union as the exclusive collective-bargaining repre- sentative of the unit employees. 10. The Respondent violated Section 8(a)(5) and (1) on September 30, 2019, by withdrawing recognition from the Union as the exclusive collective-bargaining representative of its unit employees. 11. The Respondent has violated Section 8(a)(5) and (1) since September 30, 2019, by failing to make re- quired pension contributions on behalf of all unit em- ployees. 12. The above unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. AMENDED REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall order it to cease and de- sist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, we amend the judge’s remedy in the following respects. Having found that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with re- quested relevant information, we shall order it to furnish to the Union the information it requested on September 16, 2019, to the extent it has not already done so. With regard to pension contributions, having found that the Respondent violated Section 8(a)(3) and (1) since January 1, 2011, by discriminatorily failing to make contractually required pension contributions to the CPF on behalf of unit employees who were not union members, and violated Section 8(a)(5) and (1) since at least May 1, 2015, by modifying the 2015–2019 collec- tive-bargaining agreement which required such pay- ments, and since September 30, 2019, by failing to make contractually required pension contributions to the CPF on behalf of all unit employees, we shall order the Re- spondent to make whole the affected employees by mak- ing all such delinquent contributions from January 1, 2011, to the present, including any additional amounts due the CPF in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). Further, in accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall also compensate these affected employees for any other direct or foresee- able pecuniary harms incurred as a result of the unlawful failure to make contractually required pension contribu- tions. Moreover, the Respondent shall be required to reimburse affected unit employees for any expenses en- suing from its failure to make the required pension con- tributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981).31 Such amounts should be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in- terest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010). Further, with regard to profit-sharing, having found that the Respondent has violated Section 8(a)(5), (3), and (1) since January 1, 2011, by unilaterally and discrimina- torily changing the terms and conditions of employment of its unit employees by only offering a profit-sharing plan to those unit employees who were not union mem- bers without giving the Union notice or an opportunity to bargain, we shall also order the Respondent to, on re- quest from the Union, rescind the unlawful change, pro- vided that absent any such request, continuation of profit sharing shall be subject to compliance with paragraph 1(c) of our Order.32 The Respondent shall also make the affected employees whole for any loss of earnings and 31 To the extent that a current or former employee has made person- al contributions to the CPF that are accepted by the CPF in lieu of the Respondent’s delinquent contributions during the period of the delin- quency, the Respondent will reimburse the employee, but the amount of such reimbursement will constitute a setoff to the amount that the Re- spondent otherwise owes the CPF. 32 The Respondent does not claim, nor could it, that the judge erred in ordering profit-sharing benefits and pension contributions to unit employees without an offset for the benefits they were already receiv- ing. See, e.g., Harding Glass Co., 337 NLRB 1116, 1118 (2002) (find- ing that a wrongdoing employer “cannot complain of the extra cost of improperly created, substitute fringe benefits”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 other benefits attributable to its unlawful conduct. In accordance with our decision in Thryv, Inc., supra, the Respondent shall also compensate these affected em- ployees for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful conduct. The make-whole remedy shall be computed in accordance with Ogle Protection Service, supra, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Cen- ter, supra. In addition, we shall order the Respondent to compen- sate the affected employees for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and to file with the Regional Director for Region 14, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar year(s) for each employee. AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016). Further, we shall order the Respondent to file with the Regional Director for Region 14 a copy of the affected employees' corresponding W-2 forms reflecting the backpay awards. Having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain with the Union in good faith during its negotiations for a succes- sor contract and then by withdrawing recognition from the Union, we adopt the judge’s recommendation that the Respondent must recognize and, upon request, bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate bargaining unit and embody any understanding reached in a signed agreement. We shall order the Respondent to rescind any unilateral changes made after the unlawful with- drawal of recognition. The Board has previously held that an affirmative bar- gaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective- bargaining representative of an appropriate unit of em- ployees.” Caterair International, 322 NLRB 64, 68 (1996). In several cases, however, the U.S. Court of Ap- peals for the District of Columbia Circuit has required the Board to justify, on the facts of each case, the imposi- tion of an affirmative bargaining order. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727, 738-739 (D.C. Cir. 2000); Lee Lumber & Building Material Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent, supra at 738, the court summarized its requirement that an affirmative bargain- ing order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees’ [Section] 7 rights; (2) whether other pur- poses of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the viola- tions of the Act.” Although we respectfully disagree with the court's requirement for the reasons set forth in Caterair, supra, we have examined the particular facts of this case and find that a balancing of the three factors warrants an affirmative bargaining order. (1) An affirmative bargaining order in this case vindi- cates the employees’ Section 7 rights by providing the unit employees who were denied the benefits of collec- tive bargaining by the Respondent's unlawful withdrawal of recognition and resulting refusal to bargain with the Union, with the opportunity to negotiate and execute a successor collective-bargaining agreement. At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Union's continu- ing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation because the dura- tion of the order is no longer than is reasonably necessary to remedy the ill effects of the violation. Moreover, in addition to unlawfully withdrawing recognition, the Respondent discriminatorily allocated its pension and profit-sharing benefits based on whether or not unit employees were union members. This conduct signaled to the employees the Respondent’s disregard for their collective-bargaining representative and the negoti- ated contract, with the ill effects most acute when the consequences of the Respondent’s conduct became known in August 2019, particularly the perceived loss of the profit-sharing payments that nonunion unit employ- ees were receiving due to the Respondent’s unilateral and unlawful conduct. This conduct would likely have a long-lasting negative effect on employee support for the Union. (2) An affirmative bargaining order also serves the important policies of the Act by fostering meaningful collective bargaining and industrial peace. That is, it removes the Respondent's incentive to delay bargaining to further discourage support for the Union and gives the parties a reasonable period of time to resume negotia- tions and to execute a collective-bargaining agreement if those negotiations are successful. It also ensures that the Union will not be pressured by the possibility of a decer- tification petition or by the Respondent’s withdrawal of recognition to achieve immediate results at the bargain- ing table following the Board's resolution of its unfair labor practice charges and issuance of a cease-and-desist order. Providing this temporary period of insulated bar- gaining will also afford employees a fair opportunity to CORESLAB STRUCTURES (TULSA) INC. 13 assess the Union's performance in an atmosphere free of the Respondent's unlawful conduct. (3) A cease-and-desist order, alone, would be inade- quate to remedy the Respondent's violations in these cir- cumstances, because it would permit a decertification petition to be filed before the taint of the Respondent's unlawful withdrawal of recognition has dissipated, and before the employees have had a reasonable time to re- group and bargain through their representative in an ef- fort to reach a successor collective-bargaining agree- ment. Such a result would be particularly unjust in cir- cumstances such as those here, where the nature of the Respondent’s unfair labor practices likely created a last- ing negative impression of the Union in the bargaining unit, thereby tainting any employee disaffection from the Union arising during the period of the Respondent’s withdrawal of recognition or immediately thereafter. We find that these circumstances outweigh the temporary impact the affirmative bargaining order will have on the rights of employees who oppose continued union repre- sentation. In order to provide employees with the oppor- tunity to fairly assess for themselves the Union's effec- tiveness as a bargaining representative, the bargaining order requires the Respondent to bargain with the Union for a reasonable period of time. For all the foregoing reasons, we find that an affirma- tive bargaining order with its temporary decertification bar is necessary to fully remedy the violations in this case. ORDER The National Labor Relations Board orders that the Respondent, Coreslab Structures (Tulsa) Inc., Tulsa, Ok- lahoma, its officers, agents, and representatives, shall 1. Cease and desist from (a) Prohibiting employees from talking to union repre- sentatives during non-working times in non-working areas. (b) Failing to make contractually required contribu- tions to the Central Pension Fund on behalf of unit em- ployees because they are not members of the Union, and on behalf of all unit employees since the Respondent discontinued such payments on September 30, 2019. (c) Excluding unit employees who are members of the Union from its profit-sharing plan because of their sup- port for, activities on behalf of, and membership in the Union. (d) Failing and refusing to bargain in good faith with the Union as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit. (e) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested infor- mation that is relevant and necessary to the Union’s per- formance of its functions as the collective-bargaining representative of the Respondent’s unit employees. (f) Making midterm modifications to the 2015–2019 collective-bargaining agreement with the Union without the Union’s consent by failing to make contractually re- quired contributions to the Central Pension Fund on be- half of unit employees who were not members of the Union. (g) Unilaterally changing the terms and conditions of employment of its unit employees without first notifying the Union and giving it an opportunity to bargain. (h) Withdrawing recognition from the Union and fail- ing and refusing to bargain with the Union as the exclu- sive collective-bargaining representative of unit employ- ees. (i) In any like or related manner interfering with, re- straining, 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) Furnish to the Union in a timely manner the infor- mation requested by the Union on September 16, 2019, to the extent it has not already done so. (b) Make all delinquent payments to the Central Pen- sion Fund on behalf of unit employees who were exclud- ed from the pension since January 1, 2011, because they were not members of the Union, and on behalf of all unit employees since the Respondent discontinued such pay- ments on September 30, 2019; and make employees whole for any loss of earnings and other benefits suffered as a result of the Respondent’s failure to make pension contributions on their behalf, and for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful failure to make pension contributions on their behalf, in the manner set forth in the amended remedy section of this decision. (c) Make all current and former unit employees who were excluded from its profit-sharing plan because of their membership in the Union whole for any loss of earnings and other benefits suffered as a result of their exclusion since January 1, 2011, and for any other direct or foreseeable pecuniary harms suffered as a result of their unlawful exclusion from the profit-sharing plan, in the manner set forth in the amended remedy section of this decision. (d) On request by the Union, rescind the unilateral changes to the terms and conditions of employment of its unit employees, subject to the requirements in the amended remedy section of this decision. (e) On request, bargain with the Union as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit concerning terms DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: All production and maintenance employees, employed by the Company at its plant located at 3206 North 129th East Avenue in Tulsa, Oklahoma, excluding building maintenance employees, janitorial employees, office and clerical employees and supervisors as de- fined in the NLRA, as amended, and guards. (f) Compensate current and former unit employees for the adverse tax consequences, if any, of receiving lump- sum backpay awards, and file with the Regional Director for Region 14, 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. (g) File with the Regional Director for Region 14, within 21 days of the date the amount of backpay is fixed 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 reflecting the backpay award. (h) 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 desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (i) Post at its Tulsa, Oklahoma facility copies of the attached notice marked “Appendix.”33 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent’s au- 33 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) pan- demic, the notice must be posted within 14 days after the facility reo- pens 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 judg- ment of a United States court of appeals, the words in the notice read- ing “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.” thorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. If the Respond- ent has gone out of business or closed the facility in- volved in these proceedings, the Respondent shall dupli- cate 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 January 1, 2011. (j) Within 21 days after service by the Region, file with the Regional Director for Region 14 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps the Respondent has taken to comply. Dated, Washington, D.C. December 16, 2022 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER RING, dissenting in part. For as many as 14 years—nearly a decade and a half— the Respondent contributed to the union pension fund for employees who were members of the union and provided a profit-sharing plan for employees who were not union members. It did so even though a series of collective- bargaining agreements dating back to 2005 required con- tributions to the union pension fund on behalf of all unit employees. As my colleagues rightly observe, there was nothing covert about these practices. It was all out in the open. Regularly, at meetings attended by all unit em- ployees, the Respondent distributed forms for the profit- sharing plan to the nonmember unit employees only. At other meetings, also attended by all unit employees, prof- it-sharing checks were handed out, again only to the nonmember unit employees. Union steward Floyd Prince was present at these meetings. In fact, he ex- plained the whole arrangement when he met with new hires as the Union’s representative. At those meetings, CORESLAB STRUCTURES (TULSA) INC. 15 Prince handed out dues-checkoff authorization cards, copies of the collective-bargaining agreement, a booklet describing the union pension plan—and he explained that employees could take their pick: join the Union and get the pension, but no profit sharing; don’t join the Union and get profit sharing, but no pension. Prince knew what the Respondent was doing. Every- one knew what the Respondent was doing. Everyone, apparently, except Local 627 President Jason Evans. Evans testified that he learned about these practices from the Respondent’s general manager in September 2019. The judge believed him. I accept the judge’s credibility determination, but I cannot ignore reality. Evans might have lacked actual knowledge of the Respondent’s practices, but the Union knew what the Respondent was doing because Prince knew what it was doing. As a union steward, Prince was the Union’s agent, and contrary to my colleagues, the scope of his agency was broad enough to warrant imput- ing his knowledge of the Respondent’s benefits practices to the Union. The Union authorized Prince to act as a conduit of information between the Union and the bar- gaining unit. Prince was authorized to meet with new hires and distribute union-related materials, including information specifically about the union pension plan, and he did meet with them to distribute those materials. He was also contractually authorized to file and present grievances, which means he had authority to enforce the terms of the collective-bargaining agreement on the Un- ion’s behalf. Significantly, in 2011 and again in 2015, Prince attended negotiations for successor collective- bargaining agreements. In addition to these representational duties that point to Prince’s broad actual authority to act on behalf of the Union, the Union also cloaked Prince with apparent au- thority to police the contract, at least with respect to the Respondent’s contractual obligation to pay into the union pension fund. It did so by virtue of Evans’ and other union officials’ hands-off posture towards the Respond- ent’s benefits practices. Their detachment in this regard was so complete that they remained utterly unaware of the Respondent’s open noncompliance with a fundamen- tal contractual requirement for as many as 14 years. Ev- ans knew or should have known that his indifference would cause the Respondent to believe that the Union had authorized the agent who was aware of the Respond- ent’s practices—its steward, Prince—to act for it. Under these circumstances, I would find that the Union’s disen- gagement regarding enforcement of a key term of the collective-bargaining agreement manifested to the Re- spondent that the Union authorized Prince to act on its behalf, at least with respect to the retirement-benefits issue. See Tyson Fresh Meats, Inc., 343 NLRB 1335, 1337–1338 (2004) (finding that stewards were acting as agents of the union based on apparent authority where the union knew or should have known that its stewards would be perceived to be acting as its agents). The majority suggests that a steward’s agency status turns to a significant degree on his level of participation in collective bargaining. And although Prince attended the last two rounds of successor-contract negotiations, the majority finds Prince’s participation was not active enough. In this regard, they distinguish cases on which the Respondent relies, Courier-Journal, 342 NLRB 1093 (2004), and The Baytown Sun, 255 NLRB 154 (1981), on the basis that—according to my colleagues—the stew- ards in those cases participated actively in collective bar- gaining, and the steward in Courier-Journal was a mem- ber of the union’s bargaining committee. But the Board’s agency findings in those cases did not rely on any such facts. To the contrary, the Board imputed the knowledge of those stewards to the union based on their attendance at bargaining sessions. See Courier-Journal, 342 NLRB at 1103 (imputing steward’s knowledge of employer’s conduct to the union where the steward “at- tended all of the . . . bargaining sessions for a new con- tract”); The Baytown Sun, 255 NLRB at 160 (imputing steward’s knowledge of employer’s conduct to the union where the steward “worked closely with the [u]nion, and attended all the . . . negotiation sessions”). Like the stewards in Courier-Journal and Baytown Sun, Prince attended all the bargaining sessions, so those cases can- not be persuasively distinguished.1 1 In finding that Prince’s knowledge of the Respondent’s benefits practices is not imputable to the Union, my colleagues rely on three cases: Colorado Symphony Association, 366 NLRB No. 122 (2018), enfd. mem. per curiam 798 Fed. Appx. 669 (D.C. Cir. 2020); Brimar Corp., 334 NLRB 1035 (2001); and Catalina Pacific Concrete Co., 330 NLRB 144 (1999), enfd. mem. sub nom. California Portland Cement Co. v. NLRB, 19 Fed. Appx. 683 (9th Cir. 2001). None of these cases compels the majority’s finding. Despite its complicated facts, Colora- do Symphony Association is easily distinguished. The issue there was whether the knowledge of the members of a musicians’ committee who bargained with the orchestra on behalf one union could be imputed to a second union. Those circumstances bear no resemblance to the instant case, which involves one union—Operating Engineers Local 627—and where union steward Prince was the agent of that union, not some other union. In Brimar, the Board found that notice to union steward McCaskill was not notice to the union because McCaskill had “no role in matters relating to bargaining subjects.” 334 NLRB at 1039. Prince did have such a role. He was contractually authorized to file grievanc- es, which necessarily concern “matters relating to bargaining subjects.” He was also authorized to, and did, communicate information “relating to bargaining subjects” to new hires. And he attended collective- bargaining sessions, which was sufficient to impute knowledge in Cou- rier-Journal and The Baytown Sun. As for Catalina Pacific Concrete, one-time union steward Davis was already regarded as a statutory su- pervisor at the time the employer made certain unilateral changes, and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 More importantly, the role a steward plays in collec- tive bargaining receives no special emphasis in our stew- ard-agency precedent. To the contrary, in determining the scope of a union steward’s agency. the Board consid- ers the totality of the steward’s authority, both actual and apparent. The Board then assigns responsibility (based on apparent authority) “if, applying the ordinary law of agency, it is made to appear the union agent was acting in his capacity as such.” Teamsters, Local Union No. 886 (Lee Way Motor Freight), 229 NLRB 832, 832 (1977) (internal quotation marks omitted), enfd. mem. 586 F.2d 835 (3d Cir. 1978). While the steward’s role in bargaining may be probative of agency status, the Board has considered, among other things, whether the steward has authority to handle workplace matters arising be- tween employees and the employer, to file and process grievances, and to communicate with employees on be- half of the union. See Carpenters Local 17 (A&M Wall- board), 318 NLRB 196, 196 fn. 3 (1995) (finding stew- ards were acting as agents of the union where they “have regular responsibility for insuring an employer’s compli- ance with the collective-bargaining agreement, for main- taining the [u]nion’s records of employees on a jobsite, for informing those employees about their dues obliga- tions (and occasionally receiving dues from them), and for insisting that all employees have current workcards as a condition to working on the jobsite”); Carpenters Local 296 (Acrom Construction), 305 NLRB 822, 822 fn. 1 (1991) (finding steward was acting as agent of the union where he “was on the jobsite to ensure employer compli- ance with the terms and conditions of the collective- bargaining agreement, had authority to handle problems arising between the employees and their foreman ‘if it’s something small,’ transmitted messages and information from and authorized by the [r]espondent [u]nion to its members, maintained employee work dates and hours and with the job foreman verified this information for the [r]espondent [u]nion, and additionally collected dues payments from members and informed them of this obli- gation”); Teamsters Local 886 (Lee Way Motor Freight), supra at 833 (finding steward was acting as agent of the union where stewards were given “the responsibility and power to investigate and present grievances” to ensure compliance with the collective-bargaining agreement and the power to transmit messages from the union to mem- bers). Prince was empowered by the collective- the Board concluded that the employer “could hardly have reasonably believed that notice of unilateral changes to someone it was claiming as one of its supervisor[s] was an acceptable method of communicating with the [u]nion about those changes.” 330 NLRB at 144. At all rele- vant times, Prince neither was, nor was regarded as, a supervisor. bargaining agreement to file and present grievances,2 which means monitoring compliance with the collective- bargaining agreement. And he communicated to mem- bers on behalf of the Union about dues and dues check- off, the collective-bargaining agreement, and employ- ment benefits. In addition to having actual knowledge of the Re- spondent’s benefits practices through union steward Prince, the Union had constructive knowledge of those practices. Even where actual knowledge cannot be prov- en, the Board will infer knowledge constructively when a party “should have become aware of a violation in the exercise of reasonable diligence.” CAB Associates, 340 NLRB 1391, 1392 (2003). As the Board explained in Moeller Bros. Body Shop, 306 NLRB 191, 193 (1992): We conclude that the Union is chargeable with con- structive knowledge by its failure to exercise reasona- ble diligence by which it could have much earlier learned of the [employer’s] contractual noncompliance. While a union is not required to aggressively police its contract aggressively [sic] in order to meet the reasona- ble diligence standard, it cannot with impunity ignore an employer or a unit, as the Union in this case did, and then rely on its ignorance of events occurring at the shop to argue that it was not on notice of the employ- er’s unilateral changes. Unlike my colleagues, I believe the Union failed to ex- ercise reasonable diligence here. These practices had been going on for as long as 14 years. They were en- gaged in openly. They involved a key economic term of the collective-bargaining agreement. The union steward not only knew about them, he told new hires about them. Evans visited the facility to orient new hires and to up- date unit employees regarding contract negotiations. Evans would have learned what was happening if he had exercised reasonable diligence during these visits. In addition, collective-bargaining agreements were negoti- ated while the practices were in place. Routine infor- mation requests in preparation for collective bargaining would have uncovered the Respondent’s unlawful prac- 2 While the judge found that stewards “file and present grievances,” JD fn. 12, he relied on the fact that Prince did not file any grievances to support a lack of union agency. But it is not the actual filing of griev- ances that is relevant to determining the scope of a steward’s agency. Rather, it is the steward’s actual or apparent authority to handle griev- ances, as Teamsters Local 886 makes clear. See 229 NLRB at 833 (basing agency finding on stewards’ authorization, by the parties’ con- tract and/or the union’s bylaws, to process grievances and transmit messages from the union to members). Here, as noted, the parties’ collective-bargaining agreement provided Prince such actual authority. The fact that he did not exercise that authority might be relevant where the question was one of apparent authority, but his failure to enforce the contract did not deprive him of his actual authority to do so. CORESLAB STRUCTURES (TULSA) INC. 17 tices.3 Moreover, it is difficult to conceive of a greater lapse of reasonable diligence than Evans and his bargain- ing committee negotiating at least two successive collec- tive-bargaining agreements with no understanding of how retirement-benefit terms were being implemented— and worse, completely ignorant during bargaining that more than half of the unit employees were not receiving negotiated benefits. I cannot find that the Union was not on notice of violations where it ignored such uncon- cealed contract noncompliance. Circumstances the Board has relied on to find no con- structive notice were absent here. The Board has found that a union lacks constructive notice where the employer is refusing to bargain, and the union has no steward in the shop. St. George Warehouse, Inc., 341 NLRB 904, 905 (2004), enfd. 420 F.3d 294 (3rd Cir. 2005). The Respondent did not refuse to bargain—the parties nego- tiated multiple contracts while the unlawful arrangement was being openly practiced—and not only did the Union have a steward in the shop, it authorized that steward to meet with new hires on its behalf, and at those meetings the steward actually explained the unlawful arrangement. Finding constructive notice in Moeller Bros. Body Shop, the Board stated: “This is not a case where information regarding misconduct is only in the hands of the employ- er, where an employer has concealed its misconduct, or where the size of an employer's operation prevents ready discovery of the misconduct.” 306 NLRB at 193 (foot- notes omitted). So also here. My colleagues distinguish Moeller Bros. Body Shop on the basis that there, the employer’s violation would have been visible had union agents ever visited the shop. But the failure to exercise reasonable diligence certainly is not limited to contract noncompliance that is visible to the naked eye. Nor can it be that noncompliance must be sufficiently apparent to be observable in a single visit. I trust my colleagues are not suggesting that we would be more likely to find constructive knowledge here if Evans had visited the facility even less. Thus, while Moeller Bros. involved observable noncompliance, the Board’s holding—that “[h]ad the union made any effort to en- force the [collective-bargaining agreement provision at issue], it would have become aware that the [employer] was [not in compliance],” 306 NLRB at 193—is no less applicable where, as here, there was open noncompli- ance with a core economic term that would have been 3 My colleagues reject this argument, noting that the Respondent unlawfully failed to provide the Union with requested information about its profit-sharing plan. But that happened during the parties’ 2019 negotiations, and the pension and profit-sharing practices were in place long before that, including during collective bargaining in 2011 and 2015. apparent to the Union if it had exercised reasonable dili- gence. In the end, the majority ignores reality. They cannot deny that Prince was authorized by the Union to file grievances and therefore possessed the authority to en- force the terms of the collective-bargaining agreement, yet they find that his knowledge of the Respondent’s noncompliance with its contractual obligations did not bind the Union because Evans was responsible for those matters. Yet Evans did not act like he had responsibility for contract noncompliance, remaining unaware for as many as 14 years and over the course of two collective- bargaining negotiations that there was significant, un- concealed contract noncompliance. Putting aside the lack of effective representation for the employees here, I do not think the Union can have it both ways. For all these reasons, I would dismiss the allegations that the Respondent violated Section 8(a)(5) by modifying the 2015-2019 collective-bargaining agreement and by uni- laterally implementing profit-sharing payments. I there- fore respectfully dissent in relevant part from my col- leagues’ contrary findings.4 4 I join the majority’s decision in other respects, with the following qualifications and exceptions. I agree with my colleagues that the Respondent’s withdrawal of recognition from the Union was unlawful because it was based on a tainted disaffection petition. I also agree, for the reasons stated by my colleagues in their balancing of relevant considerations, that an affirma- tive bargaining order is necessary to remedy that unlawful withdrawal of recognition and subsequent refusal to bargain. Because I agree, however, with the Court of Appeals for the District of Columbia Circuit that the Board must balance those considerations, I do not join the majority in their disagreement with the Court in that regard. Moreover, in finding that the unit employees’ disaffection petition was tainted, I do not join the majority’s analysis to the extent it relies on their findings that the Respondent violated Sec. 8(a)(5) in connec- tion with its pension and profit-sharing practices. Instead, I rely on our unanimous finding that those practices were discriminatory on their face in violation of Sec. 8(a)(3), and particularly on remarks made by General Manager Neil Drews shortly before the petition was signed. On August 1, Drews met with unit employees, told them about the audit by the pension fund, and said that the Respondent would have to pay the money it owed to the pension fund. But then he added that (a) only employees who were enrolled in the pension would benefit, (b) “[i]f you are not a member of this pension fund you will not benefit from the extra contribution,” and (c) 75 percent of the unit (the nonmember unit employees) “will be forfeiting the Profit Sharing that you would have earned this year.” The disaffection petition followed a little over a month later. I agree with my colleagues that “the possibility of losing profit sharing due to the pension audit reasonably would have led” the nonmember unit employees “to believe that the Union was not acting in their interests.” I do not join my colleagues in ordering the Respondent to compen- sate affected employees “for any other direct or foreseeable pecuniary harms incurred as a result of” its discriminatory pension and profit- sharing practices. I would require the Respondent to compensate af- fected employees for other pecuniary harms only insofar as the losses were directly caused by the discriminatory practices or were indirectly DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 Dated, Washington, D.C. December 16, 2022 ______________________________________ John F. Ring, Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TOEMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government caused by those practices where the causal link between the loss and the unfair labor practice is sufficiently clear, consistent with my partial dissent in Thryv, Inc., 372 NLRB No. 22, slip op. at 16-21 (2022). After the Respondent unlawfully withdrew recognition from the Un- ion, it stopped making contributions to the pension fund and ceased dues checkoff. I agree with my colleagues that the Respondent must restore the status quo ante, but I disagree that this should include restor- ing dues checkoff. The parties’ last collective-bargaining agreement, as extended by memoranda of understanding, expired on September 30, 2019, and I adhere to the view that an employer’s statutory obligation to check off union dues ends when an agreement containing a checkoff clause expires. See Valley Hospital Medical Center, 371 NLRB No. 160, slip op. at 18–23 (2022) (Members Kaplan and Ring, dissenting). Finally, I disagree that the Respondent bargained in bad faith. One simple fact contradicts the majority’s contrary conclusion: by the par- ties’ third bargaining session, the Respondent had provided proposals on all 27 provisions of the existing agreement. This was not the con- duct of a party that was “endeavoring to frustrate the possibility of arriving at any agreement.” Public Service Co. of Oklahoma (PSO), 334 NLRB 487, 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003). Before that session, General Manager Drews did delay negotiations because, as he explained, the Respondent was waiting for the outcome of the ongoing Union pension-fund audit, something that was a critical factor in the negotiations. Moreover, bargaining delay is not evidence of bad faith per se. See, e.g., Garden Ridge Management, Inc., 347 NLRB 131, 131–133 (2006) (affirming finding that the respondent did not meet at reasonable times but declining to infer an intent to avoid reaching agreement). The Respondent subsequently withdrew its pro- posals and ceased bargaining, but that was after it had received a disaf- fection petition signed by an overwhelming majority of the bargaining unit. While I agree with my colleagues that the petition was tainted, the Respondent reasonably believed, based on the petition, that it was required to stop bargaining as a matter of law. My colleagues’ bad- faith finding relies heavily on Drews’ “failure” to disclose the pension and profit-sharing practices to the Union, but I have found that the Union was on actual and constructive notice of those practices. The majority also relies on New Concepts for Living, Inc., 371 NLRB No. 157 (2022), but I adhere to the view that the Board’s analysis of the bad-faith bargaining allegation in that case was deeply flawed. See id., slip op. at 29–33 (Member Ring, dissenting). To determine whether a party has bargained in bad faith, the Board “looks to the totality of the circumstances in which the bargaining took place.” Overnite Transpor- tation Co., 296 NLRB 669, 671 (1989), enfd. 938 F.2d 815 (7th Cir. 1991). Having done so here, I must respectfully dissent from the ma- jority’s conclusion that the Respondent bargained in bad faith. 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 bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT prohibit you from talking to union repre- sentatives during non-working times in non-working areas. WE WILL NOT fail to make pension contributions on behalf of unit employees because they are not members of the Union, and on behalf of all unit employees since we discontinued such payments on September 30, 2019. WE WILL NOT exclude unit employees who are mem- bers of the Union from our profit-sharing plan because of their support for, activities on behalf of, and membership in the Union. WE WILL NOT fail and refuse to bargain in good faith with the Union as the exclusive collective-bargaining representative of our employees in the bargaining unit. WE WILL NOT refuse to bargain collectively with the Union by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of our unit employees. WE WILL NOT make midterm modifications to our col- lective-bargaining agreement with the Union without the Union’s consent, including by failing to make contractu- ally required contributions to the Central Pension Fund on behalf of unit employees who are not members of the Union. WE WILL NOT change your terms and conditions of employment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT withdraw recognition from the Union and fail and refuse to bargain with the Union as your exclusive collective-bargaining representative. 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 furnish to the Union in a timely manner the information requested by the Union on September 16, 2019, insofar as this has not been done. WE WILL make all delinquent payments to the Central Pension Fund on behalf of the unit employees we ex- CORESLAB STRUCTURES (TULSA) INC. 19 cluded from the pension since January 1, 2011, because they were not members of the Union, and on behalf of all unit employees since we discontinued such payments on September 30, 2019; and WE WILL make you whole for any loss of earnings and benefits suffered as a result of our failure to make pension contributions on your behalf with interest, and WE WILL also make you whole for any other direct or foreseeable pecuniary harms suffered as a result of our unlawful failure to make pension contribu- tions on your behalf, plus interest. WE WILL make current and former unit employees who were members of the Union whole for any loss of earn- ings and other benefits suffered since January 1, 2011, as a result of our exclusion of union members from our profit-sharing plan, with interest, and WE WILL also make you whole for any other direct or foreseeable pecuniary harms suffered as a result of your unlawful exclusion from the profit-sharing plan, plus interest. WE WILL, on request by the Union, rescind the changes to your terms and conditions of employment that we uni- laterally implemented. WE WILL, on request, bargain with the Union as the exclusive collective-bargaining representative of our employees in the following appropriate unit concerning terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement: All production and maintenance employees, employed by the Company at its plant located at 3206 North 129th East Avenue in Tulsa, Oklahoma, excluding building maintenance employees, janitorial employees, office and clerical employees and supervisors as de- fined in the NLRA, as amended, and guards. WE WILL compensate current and former unit employ- ees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 14, 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 year(s) for each employee. WE WILL file with the Regional Director for Region 14, within 21 days of the date the amount of backpay is fixed 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. CORESLAB STRUCTURES The Board’s decision can be found at www.nlrb.gov/case/14-CA-248354 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. William F. LeMaster, Esq., for the General Counsel. Tony G. Puckett, Esq. (McAfee & Taft, PC), for the Respond- ent. George M. Miles, Esq. (Frazier, Frazier & Hickman, LLP), for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT A. RINGLER, Administrative Law Judge. This case was heard via videoconference on November 9, 10, and 12, 2020. The complaint alleged that Coreslab Structures, Inc. (Coreslab or the Respondent) violated §§8(a)(1), (3), and (5), and 8(d) of the National Labor Relations Act (the Act) by, inter alia, engaging in the following unfair labor practices (the ULPs): barring employees from speaking to the International Union of Operating Engineers, Local 627, AFL–CIO (the Un- ion) during non-working time in non-working areas; unilateral- ly and discriminatorily terminating contractual pension plan benefits for certain employees; unilaterally and discriminatorily providing profit sharing benefits to certain employees; failing to provide relevant requested information to the Union; failing to bargain in good faith with the Union over a successor collec- tive bargaining agreement; and withdrawing its recognition of the Union as the exclusive collective bargaining representative of its employees.1 On the record, I make the following FINDINGS OF FACT2 I. JURISDICTION Coreslab, a corporation with a plant in Tulsa, Oklahoma, manufactures concrete roadway beams. Annually, it sells and ships from its plant goods valued over $50,000 directly to points outside of Oklahoma. It is, as a result, an employer en- gaged in commerce, within the meaning of §2(2), (6), and (7) of the Act. The Union is similarly a §2(5) labor organization. 1 The General Counsel (the GC) amended the complaint at the hear- ing. See (GC Exh. 26(a)). 2 Unless otherwise stated, factual findings arise from joint exhibits, stipulations, and undisputed evidence. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 II. ULPS A. Introduction Coreslab owns 17 plants in North America, including its un- ionized Tulsa plant, which is the focus of this litigation. The collective-bargaining agreement at the Tulsa plant ran from May 1, 2015, to April 30, 2019 (the CBA), and covered these employees (the Unit):3 All production and maintenance employees, employed by the Company …. excluding building maintenance employees, janitorial employees, office and clerical employees and super- visors … and guards. (Jt. Exh. 1). Coreslab abruptly ended its bargaining relationship with the Union on September 24, 2019.4 The termination of this bargaining relationship as well as various unilateral changes in profit sharing and pension benefits prompted this litigation. 1. Pension Benefits Under CBA, Article XVI, Pension, Coreslab was required to pay an hourly stipend to the Union’s Central Pension Fund (the CPF) for “all hours worked” by Unit employees.5 (Jt. Exh. 1 at 15-16). In 2011, Coreslab inexplicably stopped paying these pension monies on behalf of those Unit employees, who were not Union members. This end run around the CBA was secretly undertaken without notice or bargaining. 2. Profit Sharing Benefits Although the CBA is silent on profit sharing, Coreslab uni- laterally decided in 2011 to provide profit sharing monies to the same Unit members that were secretly excluded from the pen- sion (i.e., those Unit employees, who were not Union mem- bers). This second end run around the Union was covertly un- dertaken, in the same manner as the unilateral pension change. B. C PF Audit In 2019, Coreslab was randomly audited by the CPF. This audit triggered a domino effect of sorts that eventually led to the exposure of Coreslab’s pension and profit sharing changes. On July 15, the first domino fell, with the CPF discovering that Coreslab had underpaid in a whopping $119,455.28 between 2016 and 2018.6 (GC Exh. 14). Unsurprisingly, this underpay- ment flowed from its 2011 exclusion of certain Unit employees from the pension.7 C. April 10—Bargaining Session 1 In anticipation of the CBA’s April 30 expiration, Union Business Agent Justin Evans met with Coreslab General Man- 3 There are roughly 26 Unit employees. (JT Exh. 9). 4 All dates occurred in 2019, unless otherwise stated. 5 In 2019, for instance, it was required to pay “$1.40 … per hour on all hours worked” by Unit employees. 6 Including interest, liquidated damages and expenses, Coreslab’s debt totaled $158,996.76. (GC Exh. 14). 7 The CPF’s failure to previously identify the unilateral pension change was plausible, inasmuch as it generally relies on employer’s self-reporting pension data, without cross-checking these assertions with local unions. ager Neil Drews to bargain. Although the Union made a com- prehensive proposal, the parties failed to reach any agreement and the meeting only lasted a few hours. Drews, thereafter, advised Evans about the CPF audit and told him that Coreslab could not resolve bargaining until the audit was completed. Evans, who had yet to realize that the audit would significant liability or uncover the unilateral changes at issue herein, ac- commodated Drews’ request and agreed to extend the CBA to July 31. (Jt. Exh. 4). D. July 26—Bargaining Session 2 On July 15, Evans contacted Drews, advised him that the au- dit had been completed, and sought bargaining. The parties then met on July 26 and Coreslab proposed eliminating all pension benefits. (Jt. Exh. 15). This session only lasted a few hours and failed to result in a meeting of the minds. The parties, again, extended the CBA to September 30. (Jt. Exh. 6). Evans, at this point, remained ignorant about Coreslab’s pension and profit sharing violations. E. Late July – Plant Manager Danny Johnson’s Union Admon- ition In late-July, while Evans met with a worker in the break- room, Plant Manager Danny Johnson intervened and instructed the worker not to talk to the Union. Johnson admitted the ex- change, but, contended that he interfered because the worker was temporary and not covered by the CBA. He said that, once Evans protested his actions, he retreated. F. Late-August—Drews’ Bargaining Update During an August meeting, Drews updated the Unit on the status of bargaining. His update mostly blamed the Union and CPF for delaying bargaining and impeding Coreslab’s ability to provide raises. His talking points are outlined below:8 1. … [E]mployees [are] wondering why there were no raises on May 1, 2019. The reason is that this is a renewal year for the collective bargaining agreement …. We [also] had to ex- tend this date back to August 1 due to an unexpected audit from the Central Pension Fund on April 16, 2019. 2. …. 3. We have met a few times trying to get [bargaining] … re- solved …. 4. One of the subjects … ha[s] been the pension …. 5. [T]he Central Pension Fund performed an audit … [and found] that contributions should have been made for employ- ees who are not in the pension fund. The company does not agree …. [nor] know where any of Any money that the com- pany may owe …, will be paid to the pension fund and not the employees. If employees are members of the pension fund, … [they] may benefit from the company making the contribu- tion. If you are not a member … you will not benefit from the extra contribution. 6. The uncertainty of the … audit has made negotiations dif- ficult because the audit could cost … significant … money. 7. Coreslab [will] … continue bargaining … to reach a new 8 Drews testified that, while he did not read these points verbatim, they were all covered in his own words. CORESLAB STRUCTURES (TULSA) INC. 21 agreement. 8. Those in the pension … will be forfeiting the profit sharing … [and will] instead …. receiv[e] weekly [pension] contribu- tion[s] …. 9. this money will go. (GC Exh. 15.) At the time of this meeting, only a quarter of the Unit consisted of Union members who were receiving pension contributions, while three-quarters of the Unit consisted of employees who were not Union members who were not receiv- ing pension contributions.9 This meant the 75% of the audience was left with the strong message that the Union was acting against their interests by, inter alia, blocking their raises, ending a valuable profit sharing program, and seeking to place them in a pension plan that would not offer them a direct benefit. (Id.). This message, clearly, triggered outrage and disillusion amongst at least 75% of the Unit. G. September 6—Bargaining Session 3 At this meeting, Drews brought Evans up to speed and, at long last, revealed that Coreslab had been covertly offering profit sharing to Unit members that were non-members for several years. Evans described this revelation in the following way: [T]hey finally told us that they weren’t paying … pension [contributions for] … the non-union members … [of] the bar- gaining unit, and that people that … didn’t join … got the profit-sharing …. [The Union now] underst[ood] why there [was] … an audit and … [how they] … ow[ed] so much.10 (Tr. 89–90.)11 Although it is unrebutted that September 6 was the first time that Evans learned about the unilateral pension and profit shar- ing changes, Coreslab contends that the Union was construc- tively aware before September 6. To this end, it demonstrated that Unit employees learned at prior safety meetings that Union members received the pension and non-members received prof- it sharing. It also showed that Union stewards previously knew about these practices.12 Prince, a Steward from 2007 to May 2019, agreed that he was aware of these policies, but, never filed a grievance. He acknowledged, however, that he did not 9 See (Jt. Exh. 9)(September 2019 seniority and Union membership list). 10 Drews testified that Coreslab has not made pension contributions for Unit members, who were not members of the Union, since 2011. (Tr. 330–331); see also (GC Exhs. 8–9). He reported that it alternative- ly granted profit sharing to non-Union members since 2011, while excluding Union members from this benefit. (Id.). 11 His testimony was highly credible. First, he was a strong and be- lievable witness. Second, Union Steward Floyd Prince credibly testified that he did not know whether Coreslab had ever told the Union about its pension and profit sharing practices. (Tr. 548 (“I don’t know if they ever talked to the Union.”)). Finally, this testimony was buttressed by the absence of any contradictory evidence from a Coreslab witness regarding earlier notice. 12 Stewards are voluntary, working Unit members, who do not pos- sess any specialized training in labor law. They only file and present grievances. report these issues to Union management. (Tr. 527-28, 547). He stated that Merill, another Steward, also knew about this ar- rangement, but, was unaware of him reporting it to the Union. (Tr. 528–530.) H. September 12—Coreslab’s Revocation of Prior Agreements On this date, Drews told Evans that, given the parties’ ongo- ing disagreement on the pension and profit sharing changes and liability, all matters that were previously agreed to during bar- gaining were “off of the table.” This included a de minimis agreement to rephrase certain contract provisions more concise- ly, and a more important accord to increase shift differential. I. Information Requests 1. September 9—First Written Information Request The Union, in an effort to better understand the facets of the previously unknown profit sharing policy, emailed this request to Drews and asked for these pieces of information:13 1. Seniority list of bargaining unit members with the terms of so called “profit sharing” and equations to figure such calcula- tion. 2. Approximate start date of “profit sharing” at the Tulsa fa- cility. 3. List of employees who receive and who [are]... excluded from “profit sharing” 4. Rules of “profit sharing” 5. All information on the company 401K [plan]. 6. List of employees [who are] eligible and ineligible for [the] 401K [plan]…. (Jt. Exh. 8). 2. September 12—Profit Sharing Grievance and Information Response Evans presented the Union’s profit sharing grievance, which sought equal access to profit sharing for Union members. Drews denied the grievance, and partially replied to its pending information request. (Jt. Exh. 9). 3. September 16—Second Written Information Request The Union then sought the following additional items re- garding profit sharing: [I]nformation on the start date of the Profit Sharing Plan at the Tulsa facility … [C]ontact information [for the 401K plan] along with the 401K prospectus …. [D]ata on the last 10 years of profit/loss margins, along with the company’s 5 year profit/loss forecast [regarding the profit sharing plan] …. [and] [W]hat percentage … of company profit … the Profit Sharing Plan is based on …. (Jt. Exh. 10). 13 Evans also orally sought some of the same information at the Sep- tember 6 bargaining session. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 J. September 24—Withdrawal of Recognition Predictably, Unit employees eventually sought to oust the Union, with a majority of the Unit signing a petition to this effect. On September 24, Coreslab consequently withdrew its recognition of the Union as the Unit’s bargaining representa- tive. (Jt. Exhs. 11, 16). Coreslab then cancelled further bargain- ing, failed to supply the requested information, and ceased making any pension payments to the CPF and dues remittances to the Union. III. ANALYSIS §8(a)(1) Allegation14 Coreslab violated §8(a)(1), when, in mid-July, Johnson barred a temporary employee from talking to Evans during non- working time in the breakroom. See, e.g., Kuhmo Tires Geor- gia, 370 NLRB No. 32, slip op. at fn. 3. (2020) (unlawful to direct employees not to discuss the Union); Jerry Ryce Build- ers, Inc., 352 NLRB 1262 (2008).15 B. §8(a)(5) Allegations 1. Unilateral Change Allegations16 a. Partial Termination of Unit Pension Benefits In 2011, Coreslab unlawfully and covertly ceased making pension payments required by the CBA for Unit employees, who were not Union members. The Union learned about this unilateral change on September 6 (i.e., eight years after imple- mentation). Under §§8(a)(5) and 8(d), an employer cannot modify a con- tract during its term without the union’s consent. Rapid Fur Dressing, 278 NLRB 905, 906 (1986). An employer may, how- ever, justify a mid-term change, if it has a “sound arguable basis” for construing the contract to allow the change. Bath Iron Works Corp., 345 NLRB 499, 501–502 (2005), enforced sub nom. Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007).17 Coreslab unlawfully failed to make pension contributions for Unit employees, who were not Union members. The CBA ex- pressly required, without contradiction, that pension payments be made to the CPF for “all” Unit employees. Coreslab, as a result, lacked a “sound arguable basis” for its position that CBA’s requirement that pension monies be paid for “all” Unit members somehow really meant that non-members should be carved out. This construction is inconsistent with the commonly understood definition of “all,” and lacks any additional contrac- 14 This allegation is pled under complaint pars. 5 and 12. 15 Coreslab failed to cure this violation, even though Johnson relent- ed after Evans protested his actions. In order to adequately cure this violation, it was minimally obligated to advise employees about their §7 rights to discuss wages, hours and working conditions, which was not done. It similarly failed to remain “free from other proscribed ille- gal conduct,” or publish a repudiation. Passavant Memorial Area Hos- pital, 237 NLRB 138 (1978). 16 This allegation is pled under complaint pars. 8, 14 and 15. 17 In evaluating whether an employer had a “sound arguable basis,” the Board considers contractual language, past practice and bargaining history. Resco Products, Inc., 331 NLRB 1546, 1548 (2000). tual support. Coreslab, as a result, violated §§8(a)(5) and 8(d). M&C Vending Co., 278 NLRB 320, 324 (1986); American Needle & Novelty Co., 206 NLRB 534, 545 (1973). b. Partial Implementation of Profit Sharing In 2011, Coreslab violated §8(a)(5), when it unilaterally granted profit sharing to those Unit members, who were not Union members. An employer must bargain with the union representing its employees over wages, hours, and other terms and conditions of employment. NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958). This duty continues during a con- tract’s term over such mandatory topics, which are not regulat- ed by the agreement. Jacobs Mfg. Co., 94 NLRB 1214, 1217- 1218 (1951), enfd. 196 F.2d 680 (2d Cir. 1952). An employer, as a result, violates the Act, when it makes a material, substan- tial and significant change regarding a mandatory subject with- out first giving the union notice and a valid chance to bargain to agreement or impasse. NLRB v. Katz, 369 U.S. 736, 747 (1962); Litton Financial Printing Division v. NLRB, 501 U.S. 190, 198 (1991). Coreslab violated §8(a)(5), when it unilaterally offered profit sharing to those Unit members, who were not Union members. It is undisputed that this action was effectuated without notice or bargaining. c. §10(b) Defense Even though the pension and profit sharing changes occurred in 2011, these violations are not time-barred by the general §10(b) requirement that a charge is to be filed within 6 months of the occurrence (i.e., the instant charge was filed on Septem- ber 17, 2019, which was 8 years after implementation). Specifi- cally, the §10(b) clock only begins to run only, when a party receives direct or constructive notice of a violation.18 Carrier Corp., 319 NLRB 184, 190 (1995). A party raising this affirma- tive defense has the burden of proving notice. Leach Corp., 312 NLRB 990, 991 (1993), enfd. 54 F.3d 802 (D.C. Cir. 1995). Although employees and stewards learned about the pension and profit sharing changes in 2011, the record reveals that Ev- ans and the Union’s management did not know until September 6, which was within 6 months of the charge filing. Union Stew- ard Prince agreed that he never told the Union and there is no evidence demonstrating knowledge from an alternative source. There is also no evidence showing that the CPF shared pension remittance data with the Union before September 6.19 On these bases, I find that the unilateral change allegations are timely, inasmuch as the Union was never placed on direct or construc- tive notice before September 6.20 18 Constructive notice means that, with reasonable diligence, a party should become aware of a violation. 19 Such evidence might, arguably, establish constructive notice, in- asmuch it could show that the Union held the ability to become aware of these policies with the exercise of due diligence by cross-checking its Unit seniority list against a CPF pension remittance list. 20 Steward knowledge cannot be attributed to the Union because they only held the narrow authority to address low-level grievances. See, e.g., Brimar Corp., 334 NLRB 1035, 1035 fn. 1 (2001) (steward’s knowledge of a unilateral change could not be imputed to the union because the steward had no role in bargaining matters bargaining and the employer had no reason to believe otherwise); Catalina Pacific CORESLAB STRUCTURES (TULSA) INC. 23 2. Information Request Allegations21 Coreslab violated the Act, when it failed to respond to the Union’s September 16 information request seeking records regarding: “the start date of the Profit Sharing Plan at the Tulsa facility,” “Contact information [for the 401K plan] along with the 401K prospectus,” and “[the formula or] percentage … of company profit … the Profit Sharing Plan is based on.” (Jt. Exh. 9).22 An employer must provide request- ed information to the union, whenever there is a probability that such information is necessary and relevant to its representation- al duties. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). This duty encompasses relevant grievance-processing materi- als. Postal Service, 337 NLRB 820, 822 (2002). Information, which concerns unit terms and conditions of employment, is considered presumptively relevant. U.S. Information Services, 341 NLRB 988 (2004). Coreslab was required to provide the pension and profit shar- ing information. Its request involved Unit benefits and was, as a result, presumptively relevant. It was also relevant to the sever- al ULPs at issue herein. 3. Failure to Bargain in Good Faith over Successor Agreement23 Coreslab unlawfully failed to bargain in good faith with the Union over a successor agreement. Under §8(d), an employer is obligated to “meet at reasonable times with the representative of its employees and confer in good faith with respect to wages, hours and other terms and conditions of employment. Although good faith bargaining does not require concession or capitula- tion, it still requires a sincere desire to enter into “good faith negotiation with an intent to settle differences and arrive at an agreement” NLRB v. Wonder State Mfg. Co., 344 F.2d 210 (8th Cir. 1965). The “mere pretense at negotiations with a complete- ly closed mind and without a spirit of cooperation does not satisfy the requirements of the Act.” Id. A violation will, as a Concrete Co., 330 NLRB 144, 144 (1999) (rejecting a §10(b) defense because the employer did not have a reasonable basis to believe that a steward had the authority to act as the union’s agent with respect to receiving notice of proposed unilateral changes), enfd. 19 Fed. Appx. 683 (9th Cir. 2001); Brimar Corp., 334 NLRB 1035 n.1 (2001) (shop steward knowledge of alleged unilateral change not imputed to Union for §10(b) purposes). Employee knowledge is similarly insufficient to establish notice. See, e.g., St. George Warehouse, 341 NLRB 904, 905 (2004); Nursing Center at Vineland, 318 NLRB 337, 339 (1995) (union lacked constructive notice, even though employees were previously aware of unilateral change); Fire Tech Systems, 319 NLRB 302, 305 (1995)(employee awareness outside the §10(b) period insufficient to establish clear and unequivocal notice to the Union); Patsy Trucking Inc., 297 NLRB 860, 862-863 (1990) (knowledge by union members insufficient to trigger statute of limitations). 21 This allegation is pled under complaint pars. 9 and 14. 22 Although the complaint alleges that the Union requested previous- ly requested this information orally on September 6 and in writing on September 9, the record is somewhat ambiguous regarding the sub- stance of these earlier requests. Given that the complaint appears to mirror the Union’s written September 16 information request, a remedy has solely been found on this request. This clarification was solely raised to avoid confusion, and does not impact the overall remedy. 23 This allegation is pled under complaint pars. 11 and 14. result, be found where the employer will only reach an agree- ment on its own terms. Pease Co., 237 NLRB 1067, 1079 (1978). In gauging bad faith, the Board reviews the totality of the circumstances and considers: unreasonable bargaining de- mands, delays, bypassing the union, failing to provide relevant information, unlawful conduct away from the table, unilateral changes, failing to designate an agent with bargaining authori- ty, withdrawing prior agreements and arbitrary scheduling. Atlanta Hilton & Tower, 271 NLRB 1600 (1974). Several factors demonstrate bad faith. First, Drews repeated- ly postponed bargaining. Between the April 10 and September 24, he solely participated in 3 short sessions, frequently de- layed, and cancelled meetings. Atlanta Hilton & Tower, supra (delaying tactics); Regency Service Carts, Inc., 345 NLRB 671, 673 (2005) (delaying and cancellation); Mid-Continent Con- crete, 336 NLRB 258, 260-61 (2001), enfd. sub nom. NLRB v. Hardesty Co., 308 F.3d 859 (8th Cir. 2002). Second, Coreslab’s unilateral changes demonstrate bad faith. See, e.g., Atlanta Hilton & Tower, supra; Litton Systems, 300 NLRB 324, 330 (1990), enfd. 949 F.2d 249 (8th Cir. 1991). Third, Coreslab’s withdrawal of prior agreements demonstrates bad faith. On September 12, Drews rescinded all earlier agreements and started bargaining from scratch. Atlanta Hilton & Tower, supra. Fourth, Coreslab’s failure to provide information request ad- duces bad faith. Id. Finally, Coreslab’s general failure to offer counterproposals demonstrates bad faith. See generally Bryant & Stratton Business Institute, 321 NLRB 1007, 1042 (1996), enfd. 140 F.3d 169 (2nd Cir. 1998) (lack of exchange of coun- terproposals). In sum, the totality of the circumstances demon- strates bad faith. Public Service Co. of Oklahoma, 334 NLRB 487, 488–490 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003); Mid-Continent Concrete, supra at 261 (relying upon the several bad faith factors present herein). 4. Withdrawal of Recognition24 Coreslab unlawfully withdrew Union recognition. Several unremedied ULPs prompted the disaffection that led to the petition, and precluded withdrawal of recognition. The Board evaluates several factors in determining whether unremedied ULPs were sufficient to cause employee disaffec- tion and bar withdrawal of recognition. In United Site Services of California, 369 NLRB No. 137 (2020), it explained that: [A]n employer may not withdraw recognition from a union while there are unremedied unfair labor practices tending to cause employees to become disaffected from the union. To determine whether there is a causal connection between an employer’s unfair labor practices and employees’ disaffec- tion, the Board considers the following factors: (1) The length of time between the unfair labor practices and the withdrawal of recognition; (2) the nature of the illegal acts, including the possibility of their detrimental or lasting effect on employees; 24 This allegation is pled under complaint pars. 10 and 14. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24 (3) any possible tendency to cause employee disaffection from the union; and (4) the effect of the unlawful conduct on employee mo- rale, organizational activities, and membership in the un- ion. Id. at 19 (footnotes omitted); Master Slack, 271 NLRB 78, 84 (1984). Coreslab’s several unremedied ULPs caused the instant dis- affection. Each of the Master Slack factors are present and strongly demonstrate “a causal connection between … [the] unfair labor practices and employees’ disaffection.” United Site Services, supra. Regarding factor one, there was only short span between the unremedied ULPs and the disaffection petition. Bad faith bar- gaining, failure to provide information and unlawful statements all occurred within close proximity to the disaffection petition. Concerning factors two through four, Coreslab’s illegal acts had a lasting effect, which prompted disaffection, diminished morale, and undercut organizational activities. In a somewhat Machiavellian way, Coreslab marketed its own unfair labor practices to disenfranchise the Union and cultivate contempt. First, it undermined the Union, when it told employees that their raises were delayed by an audit and associated liability, which was created by its own illegal actions. (GC Exh. 15.) Second, it undercut the Union, when Drews falsely told em- ployees that they, “will be forfeiting the profit sharing” because of the Union, even though the Union’s sole goal was for Coreslab to provide profit sharing in an equal and non- discriminatory way. (Id.). Third, it damaged the Union, when Drews falsely claimed that the audit was only aimed at benefit- ing Union members in a Unit that was 75 percent non- members, even though the Union’s actions actually sought to benefit non-members by advancing their pension interests. (Id. (“[i]f you are not a [Union] member … [employees] will not benefit.”)). Fourth, it fraudulently accused the Union of dis- honesty, when Drews told employees, “[t]he company does not …. know where any of this money will go,” even though it understood that delinquent pension monies would go back to the CPF and eventually fund pension distributions for non- members. (Id.) Finally, it further diminished the Union by en- gaging in regressive bargaining, failing to respond to their in- formation requests, and threatening employees. These actions prompted the extensive disaffection, which logically led to the petition to oust the Union. The clear mes- sage behind this chicanery was that employees would be vastly better off without a Union that arbitrarily impedes raises, rele- gates them to a pension that solely benefits members, and hap- hazardly tries to eliminate profit sharing. Simply said, Coreslab fraudulently caused employees to reasonably ask, “with friends like this [Union], who needs enemies?” In sum, there is a clear nexus between the ULPs and the disaffection. The withdrawal of recognition was a predictable result, and was, thus, unlaw- ful.25 C. §8(a)(3) Allegations26 Coreslab unlawfully failed to provide profit sharing to Unit employees, who were Union members. The GC satisfied his initial Wright Line burden. Coreslab failed to show that it would have excluded members from profit sharing absent their protected activity. Under Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the GC must demonstrate by a preponderance of the evidence that protected conduct was a motivating factor in the employer's adverse action. The GC satisfies his initial burden by showing: (1) protected activity; (2) the employer's knowledge of that activity; and (3) animus. If the General Counsel meets his initial burden, the burden shifts to the em- ployer to prove that it would have taken the adverse action, absent the employee's protected activity. See, e.g., Mesker Door, 357 NLRB 591, 592 (2011). The employer cannot meet its burden merely by showing that it had a legitimate reason for its action; rather, it must demonstrate that it would have taken the same action in the absence of the protected conduct. Bruce Packing Co., 357 NLRB 1084, 1086-1087 (2011); Roure Ber- trand Dupont, Inc., 271 NLRB 443, 443 (1984). If the employ- er's proffered reasons are pretextual, i.e., either false or not actually relied on, it fails by definition to show that it would have taken the same action for those reasons regardless of the protected conduct. Metropolitan Transportation Services, 351 NLRB 657, 659 (2007); Golden State Foods Corp., 340 NLRB 382, 385 (2003). The GC satisfied his initial burden of showing that Unit em- ployees who were excluded from profit sharing engaged in protected activity (i.e., the policy was detrimental to Union members, and beneficial to non-members), and that Coreslab was aware of their membership (i.e., such knowledge flowed from its dues deduction and pension remittance obligations under the CBA). The GC also established animus. First, it was demonstrated by Johnson’s unlawful directive to not discuss the Union. Sec- ond, it was adduced by the several unpled anti-Union com- ments made by Drews at the August meeting. He blamed the audit for Coreslab’s inability to offer raises, while neglecting to clarify that the audit flowed from its unlawful breach of the CBA. He also falsely labeled the Union’s actions as suspect because Coreslab did not “know where any of this money will 25 It follows that any unilateral changes made to the Unit’s wages, hours and other terms and conditions of employment after withdrawal violated the Act. AMF Bowling Co., 303 NLRB 167 (1991). The record shows that it minimally terminated the pension for everyone and ceased applying dues checkoff. As explained in the remedy section, it must, upon request by the Union, restore the status quo ante. The details of any other changes can be gauged during the compliance phase. Alt- hough the pension allegation is pled under complaint par. 8, the dues allegation is not. However, given that it was fully litigated and covered by the underlying charges, the complaint is hereby amended to reflect it. See Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d. Cir. 1990). 26 This allegation is pled under complaint pars. 6 and 13. CORESLAB STRUCTURES (TULSA) INC. 25 go,” and then fraudulently told workers that the Union’s objec- tive was to benefit members, when its actual goal was to fund the pension for non-members. He also deceptively accused the Union of striving to eliminate profit sharing, even though its goal was to have it applied evenhandedly. These statements abundantly demonstrate animus. See, e.g., Mammoth Coal Co., 354 NLRB No. 83, slip op. at 19 fn. 27 (2009) (animus may be based on unalleged conduct and conduct that is not necessarily violative of the Act); Stoody Co., 312 NLRB 1175, 1182 (1993) (same); Gencorp, 294 NLRB 717 fn. 1 (1989) (“Board has consistently held that conduct that may not be found violative of the Act may still be used to show antiunion animus.”). Last- ly, bad faith bargaining demonstrates animus, which includes Coreslab’s repudiation of the CBA’s pension provisions, uni- lateral change in profit sharing, regressive bargaining during contract negotiations, refusal to provide information, and with- drawal of Union recognition. See, e.g., CJC Holdings, 320 NLRB 1041 (1996) (bad-faith tactics during negotiations demonstrate animus); Union-Tribune Publishing Co., 307 NLRB 25 (1992); U.S. Marine Corp., 293 NLRB 669, 669-671 (1989) (animus demonstrated by, inter alia, “numerous 8(a)(5) violations,” including the failure to provide information and bad-faith bargaining), enfd. 944 F.2d 1305 (7th Cir. 1991), cert. denied 503 U.S. 936 (1992). Regarding its affirmative defense, Coreslab wholly failed to show that it would have excluded Union members from profit sharing, even absent their protected activities. Simply put, it excluded Union members from profit sharing solely because of their union affiliation; there was simply no other reason for differentiating amongst Unit employees on profit sharing. CONCLUSIONS OF LAW27 1. Coreslab is an employer engaged in commerce within the meaning of §2(2), (6), and (7) of the Act. 2. The Union is a §2(5) labor organization. 3. At all times material herein, the Union has been the des- ignated bargaining representative of Coreslab’s employees in the following appropriate unit: All production and maintenance employees employed at its Tulsa, Oklahoma facility, but excluding building maintenance employees, janitorial employees, office and clerical profes- sional employees, and supervisors as defined in the Act, as amended, and guards. 27 Under pars. 6 and 13, the complaint also alleged that Coreslab’s unilateral pension change violated §8(a)(3). Given that this change was found to violate §8(a)(5) and rescission and backpay has been recom- mended, it is unnecessary to pass on the same §8(a)(3) allegation, given that it would not materially affect the remedy. See, e.g., Viejas Casino & Resort, 366 NLRB No. 113 fn. 1 (2018); Alamo Rent-A-Car, 362 NLRB 1091, 1093 fn. 8 (2015); Bryant & Stratton Business Institute, 321 NLRB 1007, 1007 fn. 4 (1996); Martech Corp., 169 NLRB 479 (1968). However, the profit sharing allegation was analyzed separately as a §8(a)(3) violation because it involved a remedy beyond the restora- tion of the status quo ante (i.e., the §8(a)(3) remedy requires that profit sharing be newly afforded to Union members and that they be made whole, which is does not reflect the status quo ante). 4. Coreslab violated §8(a)(1) by barring an employee from talking to the Union during non-working time in a non-working area. 5. Coreslab violated §8(a)(3) by excluding certain bargain- ing unit employees from the profit sharing plan because of their support for and activities on behalf of the Union. 6. Coreslab violated §8(a)(5) by: (a) Failing and refusing to provide relevant information, which responded to the Union’s September 16, 2019 request. (b) Unilaterally changing established terms and conditions of employment of its employees by offering a profit sharing plan since 2011 to those members of the bargaining unit, who were not Union members, without providing the Union prior notice or an opportunity to bargain to an agreement or impasse. (c) By failing and refusing to bargain in good faith with the Union during collective bargaining over a successor agreement. (d) Withdrawing recognition from the Union as the bargain- ing representative of its employees at its Tulsa, Oklahoma facil- ity on September 24, 2019. 7. Coreslab violated §8(a)(5), within the meaning of §8(d), by modifying the parties’ May 1, 2015 to April 30, 2019 collec- tive bargaining agreement without the Union’s consent by: (a) Failing to make required contributions to the Central Pension Fund on behalf of those bargaining unit members, who were not Union members since 2011. (b) Failing to make required contributions to the Central Pension Fund on behalf of all bargaining unit members follow- ing its withdrawal of recognition from the Union on September 24, 2019. (c) Terminating its due checkoff obligations following its withdrawal of recognition from the Union on September 24, 2019. 8. These ULPs practices affect commerce within the mean- ing of §2(6) and (7). REMEDY Having found that Coreslab committed unfair labor practic- es, it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that it violated §8(a)(3) by withholding profit sharing from employees in the bargaining unit who were mem- bers of the Union, it shall, upon Union request, retroactively grant these profit sharing benefit to the current and former bar- gaining unit members who were excluded. See, e.g., Kitsap Tenant Support Services, 366 NLRB No. 98 (2018). This make whole remedy shall be made in accordance with Ogle Protec- tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010). Having found that it violated §8(a)(5) by unilaterally grant- ing profit sharing benefits to members of the Unit who were not Union members, it shall, upon request by the Union, rescind the unilateral change and bargain over this matter to an agreement or valid impasse. Having found that it violated §8(a)(5) by failing to provide relevant and necessary information requested by the Union on DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26 September 16, 2019, it shall, to the extent that it has not already done so, tender the requested information to the Union. Having found that it violated §8(a)(5) by engaging in sur- face, bad faith and regressive bargaining during its negotiation for a successor contract and then by withdrawing recognition from the Union, it shall recognize and upon request bargain with the Union as the exclusive collective-bargaining repre- sentative of its production and maintenance employees em- ployed its Tulsa, Oklahoma facility for a period of not less than six months. It shall also, if an understanding is reached, sign an agreement concerning the bargaining unit’s terms and condi- tions of employment. It shall also, upon request by the Union, rescind any unilateral changes in wages, benefits, and condi- tions of employment implemented since its withdraw- al of recognition on September 24, 2019. Nothing in this Order, however, shall be construed to require the Respondent to with- draw any benefit previously granted unless requested by the Union. See Taft Broadcasting Co., 264 NLRB 185 fn. 6 (1982). An affirmative bargaining order is warranted herein. The Board has previously held that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining representative of an appropriate unit of employees.” Caterair International, 322 NLRB 64, 68 (1996). In several cases, however, the United States Court of Appeals for the District of Columbia Circuit has required that the Board justify, on the facts of each case, the imposition of such an order. See, e.g., Vincent Industrial Plas- tics, Inc. v. NLRB, 209 F.3d 727, 738-739 (D.C. Cir. 2000); Lee Lumber & Building Material Corp., 117 F.3d 1454, 1461-1462 (D.C. Cir. 1997). In Vincent, supra, the court summarized its requirement that an affirmative bargaining order “must be justi- fied by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees' [Section] 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the viola- tions of the Act.” Id. at 738. An affirmative bargaining order is warranted in this case for the following reasons. First, it will vindicate the §7 rights of Unit employees who have been denied the benefits of collective bargaining since September 24, 2019. It is only by restoring the status quo and requiring Coreslab to bargain with the Union for a reasonable period of time, i.e., six months, employees will be able to fairly assess the effectiveness of the Union in an atmos- phere free of unlawful conduct. Second, it also serves the poli- cies of the Act by fostering meaningful collective bargaining and industrial peace. It removes Coreslab’s incentive to delay bargaining and further erode Union support. It similarly lessens the chance that the Union might be pressured to quickly capitu- late at the bargaining table in order stave off a prompt decertifi- cation petition or avoid a renewed effort to withdraw recogni- tion. Finally, a cease and desist order without a temporary de- certification bar might prove inadequate to remedy Coreslab’s withdrawal of recognition and refusal to bargain. Moreover, it would permit another challenge to the Union's majority status before the taint of Coreslab’s previous unlawful withdrawal of recognition has dissipated. Allowing another challenge to the Union's majority status without a reasonable period for bargain- ing would be unjust, inasmuch as the Union needs some time to reestablish its relationship with bargaining unit employees, who have already been without the benefits of union representation for almost a year and half. Permitting another decertification petition will likely allow Coreslab to profit from its unlawful conduct. In sum, these circumstances outweigh the temporary impact the affirmative bargaining order will have on the rights of bargaining unit employees, who may still continue to oppose Union representation. Having found that it violated §8(a)(5), within the meaning of §8(d), by failing to make contractually-required payments to the Central Pension Fund since 2011 for Unit employees who were not Union members in accordance with the May 1, 2015 to April 30, 2019 collective-bargaining agreement and by sub- sequently failing to make such payments on behalf of all Unit members since its withdrawal of recognition, it shall make such current and former bargaining Unit employees whole by mak- ing all payments that have not been made and that would have been made but for its unlawful failure to make them, including any additional amounts applicable to such delinquent payments as determined in accordance with the criteria set forth in Mer- ryweather Optical Co., 240 NLRB 1213 (1979). In addition, it shall reimburse such Unit employees for any expenses ensuing from its failure to make such required payments, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir.1981), such amounts to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) compounded daily as pre- scribed in Kentucky River Medical Center, 356 NLRB 6 (2010). To the extent that an employee has made personal contribu- tions to the Central Pension Fund, which were accepted by the fund in lieu of Coreslab’s contributions, Coreslab will reim- burse those employees. The amount of such reimbursement, however, will constitute a setoff to the amount that Coreslab otherwise owes the fund. It shall also reimburse the Union, with interest, for any dues it was required to withhold and transmit to it under the May 1, 2015 to April 30, 2019 collective bargaining agreement follow- ing its withdrawal of recognition. Such sums shall be calculated in the manner set forth in Ogle Protection Service, supra. Inter- est on all such sums shall be computed as prescribed in accord- ance with New Horizons for the Retarded, supra, compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). It shall also a notice to all employees in accordance with J. Picini Flooring, 356 NLRB 8 (2010). Furthermore, it shall compensate affected current and former bargaining unit em- ployees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director a report allocating the backpay awards to the appropriate calen- dar years for each employee. AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016). On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended28 28 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended CORESLAB STRUCTURES (TULSA) INC. 27 ORDER29 Coreslab Structures (Tulsa) Inc., its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Barring employees from talking to the Union during non-working time in non-working areas. (b) Discriminatorily excluding employees in the bargaining unit from profit sharing since 2011 because of their support for, activities on behalf of, and membership in, the Union. (c) Withdrawing recognition from the Union and failing and refusing to bargain with it in good faith as the collective bar- gaining representative of its employees in the following appro- priate unit: All production and maintenance employees employed at its Tulsa, Oklahoma facility, but excluding building maintenance employees, janitorial employees, office and clerical profes- sional employees, and supervisors as defined in the Act, as amended, and guards. (d) Failing and refusing to bargain collectively with the Un- ion in the Unit described above by not providing it with rele- vant information in reply to its September 16, 2019 request. (e) Failing and refusing to bargain with the Union in the Unit described above by failing and refusing to make contrac- tually required payments since 2011 to the Central Pension Fund on behalf of Unit employees who were not Union mem- bers. (f) Failing and refusing to bargain with the Union in the Unit described above by changing established terms and condi- tions of employment of its employees by providing a profit sharing plan since 2011 to only those members of the bargain- ing unit who were not Union members, without affording the Union prior notice or an opportunity to bargain to an agreement or impasse. (g) Failing and refusing to bargain with the Union in the Unit described above by failing and refusing to make contrac- tually required payments to the Central Pension Fund on behalf of all Unit employees since its September 24, 2019 withdrawal of recognition. (h) Failing and refusing to bargain with the Union in the Unit described above by failing and refusing to make contrac- tually required dues checkoff payments to the Union since its September 24, 2019 withdrawal of recognition. (i) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by §7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the Act’s policies (a) Retroactively restore annual profit sharing benefits to those current and former bargaining unit members who were excluded because of their support for, activities on behalf of, Order shall, as provided in §102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 29 The GC’s Motion to Correct Transcript and Exhibits dated De- cember 30, 2020 is GRANTED. and membership in the Union. (b) Make whole current and former Unit employees who were discriminatorily excluded from profit sharing because of their support for, activities on behalf of, and membership in the Union in the manner set forth in the remedy section above. (c) Furnish to the Union in a timely manner the relevant in- formation sought by it its September 16, 2019 information re- quest to the extent that this has not already been done. (d) Recognize and, upon request, bargain with the Union as the exclusive collective-bargaining representative of the em- ployees in the Unit described above and, if an understanding is reached, embody the understanding in a signed agreement. (e) Upon request by the Union, rescind any changes in its Unit employees’ terms and conditions of employment that were unilaterally implemented since it withdrew recognition on Sep- tember 24, 2019, including its failure to make contractually required payments to the Central Pension Fund on behalf of all Unit employees and tender dues checkoff payments to the Un- ion, and make these contractually required payments. (f) Upon request by the Union, rescind its unilateral grant of profit sharing benefits to members of the Unit who were not union members and, thereafter, bargain to an agreement or valid impasse on this matter. (g) Make whole current and former Unit employees, who were not Union members, by making delinquent payments to the Central Fund on their behalf and by reimbursing them for any expenses ensuing from its unlawful refusal to make such payments, in the manner set forth in the remedy section above. (h) Compensate affected current and former Unit employees for the adverse tax consequences, if any, of receiving a lump- sum award associated with its withholding of profit sharing because of their Union membership, and file with the Regional Director for Region 14, within 21 days of the date the amount of profit sharing liability is fixed, either by agreement or Board order, a report allocating the profit sharing award to the appro- priate calendar year. (i) Preserve and, within 14 days of a request, or such addi- tional 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 rec- ords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of the Board’s order. (j) Within 14 days after service by the Region, post at its Tulsa, Oklahoma facility and other facilities where the unit performs work copies of the attached notice marked “Appen- dix.”30 Copies of the notice, on forms provided by the Regional Director for Region 14, 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 customarily 30 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28 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. Reasonable steps shall be taken by the Re- spondent 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 employ- ees employed by the Respondent at any time since March 17, 2019. (k) Within 21 days after service by the Region, file with the Regional Director for Region 14 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps the Respondent has taken to comply. Dated Washington, D.C., February 11, 2021 APPENDIX NOTICE TOEMPLOYEES 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 no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT prohibit our employees from talking to the Un- ion during non-working time in our non-working areas. WE WILL NOT discriminatorily refuse to provide profit shar- ing benefits to employees represented by the Union because they joined the Union or otherwise support it or any other un- ion. WE WILL NOT withdraw recognition from the Union and fail and refuse to bargain with it as the collective bargaining repre- sentative of our in the following appropriate unit: All production and maintenance employees employed by us at our Tulsa, Oklahoma facility, but excluding building maintenance employees, janitorial employees, office and cler- ical professional employees, and supervisors as defined in the Act, as amended, and guards. WE WILL NOT fail and refuse to bargain collectively with the Union in the Unit described above by not providing it with information in response to its September 16, 2019 request, which is relevant and necessary to its performance of its func- tions as your collective-bargaining representative regarding wages, hours, and other terms and conditions of employment. WE WILL NOT fail and refuse to bargain with the Union in the Unit described above by failing and refusing to make contrac- tually required payments to the Central Pension Fund on behalf of our Unit employees who are not members of the Union. WE WILL NOT fail and refuse to bargain with the Union in the Unit described above by unilaterally providing profit sharing to only those members of the bargaining unit, who were not Union members, without first affording the Union prior notice or an opportunity to bargain to an agreement or impasse over this matter. WE WILL NOT fail and refuse to bargain with the Union in the Unit described above by failing and refusing to make contrac- tually required payments to the Central Pension Fund on behalf of all Unit employees since our unlawful September 24, 2019 withdrawal of recognition. WE WILL NOT fail and refuse to bargain with the Union in the Unit described above by failing and refusing to make contrac- tually required dues checkoff payments to the Union since our unlawful September 24, 2019 withdrawal of recognition. WE WILL NOT in any like or related manner interfere with, re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL retroactively restore the annual profit sharing bene- fit to those current and former employees in the bargaining unit described above who were excluded because of their support for, activities on behalf of, and membership in the Union. WE WILL make whole current and former Unit employees who were discriminatorily excluded from profit sharing be- cause of their support for, activities on behalf of, and member- ship in the Union. WE WILL furnish to the Union in a timely manner the infor- mation requested by it in its September 16, 2019 request to the extent that this has not already been done. WE WILL recognize and, upon request, bargain in good faith with the Union as the exclusive collective-bargaining repre- sentative of the employees in the Unit described above and, if an understanding is reached, embody the understanding in a signed agreement. WE WILL upon request by the Union, rescind any changes in your terms and conditions of employment that were unilaterally implemented since we withdrew recognition on September 24, 2019, including our failure to make contractually required payments to the Central Pension Fund on behalf of all employ- ees in the Unit described and tender dues checkoff payments to the Union. WE WILL upon request by the Union, rescind our unilateral grant of profit sharing benefits to members of the Unit who were not Union members and, thereafter, bargain to an agree- ment or valid impasse on this matter. WE WILL make whole current and former Unit employees by making delinquent payments to the Central Pension Fund and by reimbursing them for any expenses ensuing from our unlaw- ful refusal to make such payments. WE WILL remit union dues to the Union pursuant to the terms of the collective-bargaining agreement. WE WILL compensate affected current and former employees in the Unit described above for the adverse tax consequences, if CORESLAB STRUCTURES (TULSA) INC. 29 any, of receiving a lumpsum award associated with our with- holding of profit sharing, and file with the Regional Director for Region 14 a report allocating the profit sharing award to the appropriate calendar year. CORESLAB STRUCTURES (TUSLA) INC. The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/14-CA-248354 by using the QR code be- low. 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.