National Labor Relations Board v. Solutia, Inc. ( 2012 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 12-1129
    NATIONAL LABOR RELATIONS BOARD,
    Petitioner,
    v.
    SOLUTIA, INC.,
    Respondent.
    UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, Local
    414C/International Chemical Workers Union Council,
    Intervenor.
    No. 12-1174
    UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, Local
    414C/International Chemical Workers Union Council,
    Petitioner,
    v.
    NATIONAL LABOR RELATIONS BOARD,
    Respondent.
    SOLUTIA, INC.,
    Intervenor.
    APPLICATION FOR ENFORCEMENT AND PETITIONS FOR REVIEW
    OF A FINAL ORDER OF THE NATIONAL LABOR RELATIONS BOARD
    Before
    Lynch, Chief Judge,
    Boudin, Circuit Judge,
    and McConnell,* District Judge.
    Zachary R. Henige, with whom Robert J. Englehart, Supervisor
    Attorney, Lafe E. Solomon, Acting General Counsel, Celeste J.
    Mattina, Deputy General Counsel, John H. Ferguson, Associate
    General Counsel, and Linda Dreeben, Deputy Associate General
    Counsel, were on brief, for the National Labor Relations Board.
    Hugh F. Murray, III, with whom Murtha Cullina, LLP was on
    brief, for Solutia, Inc.
    Randall Vehar, with whom Robert W. Lowrey, David Rome, and
    Pyle Rome Ehrenberg, P.C. were on brief, for United Food &
    Commercial Workers International Union, Local 414C.
    November 2, 2012
    *
    Of the District of Rhode Island, sitting by designation.
    LYNCH, Chief Judge.              This labor case comes from the
    intersection of an employer's desire to become more competitive by
    reducing costs and achieving greater efficiencies by consolidating
    two lab operations into one, and its obligations under national
    labor law to bargain with the union representing the affected
    employees.
    The       National     Labor    Relations         Board   petitions       for
    enforcement of its 2011 order finding that Solutia, Inc. had
    violated sections 8(a)(1) and (5) of the National Labor Relations
    Act ("the Act"), 
    29 U.S.C. § 158
    (a)(1), (5).                     The order required
    Solutia    to    return      to   United        Food   and     Commercial     Workers
    International Union Local 414C certain work that Solutia had
    transferred     in    2009   to   another       part   of    its   worksite    and    to
    employees represented by another union.
    Solutia cross-petitions for review of the Board's order,
    and Local 414C has intervened in support of portions of the Board's
    order.    Local 414C also petitions for review, attacking that part
    of the Board's order finding that Solutia did not violate its
    collective bargaining agreement ("CBA") with Local 414C.                      On this
    point, Solutia has intervened in support of the Board.
    At issue here are the legal consequences of Solutia's
    decision   to    consolidate      two     of    its    product     testing    labs    at
    different locations on its worksite into one lab, which resulted in
    a reduction in positions and in Local 414C losing jurisdiction over
    -3-
    lab testing work that its members had previously performed.
    Solutia   refused    to   bargain   this   decision    with   Local   414C,
    considering it to be a management prerogative.           The Board found
    that the lab work transfer decision involved a mandatory subject of
    bargaining, so that Solutia's refusal to bargain violated the Act.
    It also found that the recognition clause in the CBA between
    Solutia and Local 414C did not, as the Union alleged, prohibit the
    work transfer without Local 414C's consent. Solutia now challenges
    the former finding, while Local 414C challenges the latter.            Both
    parties also allege errors in the Board's remedial order.
    The Board made no error of law in reaching its decision,
    and its findings were supported by substantial evidence in the
    record. We grant the Board's petition for enforcement of its order
    and deny Solutia's cross-petition for review. We deny Local 414C's
    petition for review.       While there are reasons for some concern
    about the remedial order, there are further administrative remedial
    processes through which those concerns may be addressed.
    I.
    A.   Factual Background
    The    facts   giving    rise   to   this   case   are   largely
    undisputed.
    1.    The Indian Orchard Site
    The relevant events took place at the 250-acre industrial
    "Indian Orchard Site" in Springfield, Massachusetts.           A review of
    -4-
    the Site's history is necessary to understanding how this case
    arose.
    Historically, two companies operated two separate plants
    on the Site.   The plant on the west side was known as the Bircham
    Bend Plant,    and   the     one   on    the   east   side was   known     as   the
    Springfield Plant.         The chemical workers' union, Local 414C,
    represented the Bircham Bend Plant employees, while the electrical
    workers'   union,    Local    288,      represented    the   Springfield     Plant
    employees.1    A chain-link fence separated the two sides of the
    Site.
    By 1963, Monsanto had acquired both plants on the Site,
    and it continued to operate them as separate facilities for many
    years, including keeping the fence up. The two unions continued to
    represent employees on their respective sides of the Site.                       In
    1982,    Monsanto    consolidated        certain      salaried   employees      and
    departments onto the east side of the Site, and it took down the
    fence.   This consolidation, however, did not result in job or work
    losses for hourly (union) employees on the west side.                 After the
    consolidation, Local 414C continued to represent west side hourly
    employees and Local 288 continued to represent east side hourly
    employees.
    1
    Each of these unions has undergone various changes in its
    affiliations over the years, but for the purposes of this case it
    is only necessary to know that each side of the Site was
    represented by a different union local.
    -5-
    Also in 1982, Monsanto and Local 414C renegotiated their
    CBA, which resulted in a change to the recognition clause.      The
    1982 clause read:
    A unit comprising of all hourly rated
    employees, excluding executives, office and
    clerical   employees,   guards,   professional
    employees and supervisors as set forth in the
    National Labor Relations Board Certification
    of Representatives dated October 26, 1950, for
    the then existing Bircham Bend Plant.     This
    recognition clause shall be unaffected by any
    future consolidation of the plants at the
    Indian Orchard Site.
    Monsanto had proposed adding the first underlined clause; Local
    414C agreed to that clause on the condition that Monsanto accept
    the second underlined sentence.      This same language remained in
    Local 414C's CBA through the version adopted by Local 414C and
    Solutia in 2006, which was the version in effect when the events at
    issue occurred.2
    In the years after the consolidation, Monsanto bargained
    with the two unions when it made changes that would affect the work
    2
    Local 288's 1982 CBA was not in evidence. Local 288's 2006
    CBA does include a recognition clause with a geographical
    signifier, although its language is somewhat different from Local
    414C's:
    The Company recognizes [Local 288] as the sole collective
    bargaining agent for all production, maintenance, service and
    research employees, excluding [certain positions not at issue
    here]. The terms "employee" and "employees" as used in this
    Agreement shall include only those employees at that portion
    of the Indian Orchard Plant formerly known as the Springfield
    Plant for whom [Local 288] is recognized as collective
    bargaining agent as set forth in this Section.
    -6-
    available to union employees.     For instance, when Monsanto built a
    new building that straddled the line between the east and west
    sides, it negotiated a "Memo of Understanding" signed by both
    unions that designated the building as "geographically neutral" and
    that allowed both unions' employees to work there.          When Monsanto
    built two new buildings on the east side and one on the west side,
    it negotiated another tri-party agreement in which all three
    buildings were also designated "geographically neutral," with the
    maintenance to be performed by union members from the side where
    each building was located.      And in 1994, Monsanto bargained for a
    "Memo of Understanding" with Local 288 that provided for the
    transfer of certain sample testing work from a Local 288 lab to a
    Local 414C lab.3
    In 1997, Monsanto spun off its chemical manufacturing arm
    into a new affiliate, Solutia.     Solutia took charge of the Site and
    maintained CBAs with Local 414C and Local 288.          In 2006, Solutia
    negotiated a new agreement with each union that superseded the
    previous agreement   as   to the    three   newest    buildings.       These
    agreements allowed union employees to "cross lines" and perform
    maintenance,   storage,   and   utility   work   in   any   of   the   three
    3
    The parties dispute whether this 1994 agreement also
    involved management negotiations with Local 414C. One of Local
    414C's former presidents testified that when Monsanto raised the
    issue with the Union, Local 414C agreed to accept any work that
    Monsanto might transfer to the west side, but there was no evidence
    in the record that formal bargaining took place.
    -7-
    buildings, regardless of which union had historically performed
    those functions.         The agreements also required Solutia to allocate
    future staffing for the three buildings evenly among the unions.
    They did not change the allocation of any production or lab work.
    Solutia also reached a separate agreement with Local 414C
    in 2006 that gave Local 414C jurisdiction over a new product line
    that       was   being   produced   on   the   west   side.      This    agreement
    specifically stated that Local 414C was being granted jurisdiction
    "[b]ased on the current location of the [production] operation" and
    "only for any period of time in which" Solutia chose to locate
    production on the west side.
    The Bircham Bend Plant historically produced resins, and
    Solutia continues         to   manufacture     resins   at    that   plant.    The
    Springfield Plant historically used these resins to produce Saflex
    (or its equivalent), a strong clear plastic sheet that is used in
    making safety glass.           Solutia continues to produce Saflex at the
    Springfield Plant.         At the relevant times, the Bircham Bend Plant
    included a stand-alone building known as the West Control Lab
    ("WCL"), in which employees performed quality control testing and
    analysis on the resins produced on the west side.4                   WCL employees
    also performed testing on adhesives for an unrelated company,
    4
    Under the 1994 agreement between Monsanto and Local 288, the
    WCL also tested certain east side products.
    -8-
    Cytec, a "guest operation" under contract with Solutia. Local 414C
    represented the employees in the WCL.
    Meanwhile,   on   the   east    side,      the   Springfield   Plant
    included within its main building another lab, the Saflex Control
    Lab ("SCL"), in which employees performed testing on east side
    products.    Employees in the SCL were represented by Local 288.
    2.   The Lab Work Transfer Dispute
    In July 2008, Solutia began to consider consolidating lab
    work on all products produced at the Site into one location, the
    SCL.     Solutia anticipated that consolidating the lab work would
    allow it to reduce staffing levels and thus reduce labor costs by
    $249,000 per year.       It would also provide more work for SCL
    employees, whom the company thought were underutilized.                   Solutia
    also expected that moving its testing operations out of the WCL
    would cause Cytec to become responsible for all of the costs of
    operating that building, or if Cytec chose to move its testing
    operations elsewhere, the building could be shut down and there
    would be no operating costs.        The transition would simply involve
    moving    existing   equipment   from      the   WCL    to   the   SCL,   without
    requiring additional capital purchases.                 Finally, the company
    believed that consolidation would increase the SCL lab workers'
    skills because they would become knowledgeable about all stages of
    the testing process, not just the stage performed on their side of
    the Site.   The company concluded that moving all testing to the SCL
    -9-
    would mean that work formerly performed by Local 414C employees
    would have to be transferred to Local 288 employees.
    On    March   4,   2009,   Solutia   management   presented    the
    consolidation plan to representatives of Local 414C.             The union
    recorder's notes from this meeting reflect that the company stated
    the consolidation was being "put[] on [the] table but needs to be
    worked out."    Joseph Coppola, Solutia's human resources director,
    testified that as of March 4, 2009, the decision to go through with
    the consolidation was already final on the local level but was
    awaiting approval from higher-level management.             He also stated
    that as of this date, Solutia had already determined that it did
    not have to bargain the decision to consolidate with Local 414C.
    The    next   day,   Local   414C    representatives   met    with
    management again and expressed their view that, under the terms of
    Local 414C's CBA, Solutia did not have a right to consolidate the
    lab work without first obtaining Local 414C's consent.
    During March 2009, Coppola met more than once with Robert
    Bellerive, Local 414C's president, to discuss the work transfer,
    but the Union and the company could not agree on whether the CBA
    authorized the transfer without Union consent.           On May 7, 2009,
    Bellerive and Thomas Humiston, the Union's treasurer, sent a letter
    to Coppola requesting that the company provide the Union with the
    CBA language it was relying on to conclude that it had the right to
    transfer unilaterally the lab work.            The letter further stated
    -10-
    that, "[s]hould the union agree with the company's decision to take
    this action after reviewing the information that has been requested
    in this letter, the union demands to bargain this issue with the
    company."     The letter maintained Local 414C's position that the
    unilateral work transfer was a violation of the CBA.
    On   May    27,    2009,     Coppola   met    with     Local   414C
    representatives and reiterated that Solutia had made the decision
    to consolidate the lab work.           He also stated that it was Solutia's
    position that it did not have to bargain that decision.                 Coppola
    informed the representatives that the transfer would result in the
    elimination of four Local 414C unit positions.               He then stated,
    "[f]or the record," that the company had suggested that its lawyers
    and the Union's lawyers meet, but the Union had refused. Bellerive
    testified that he had contacted the international union's president
    about attorneys getting involved and that he was told the union's
    attorneys would only intervene at the arbitration stage, after
    negotiations had taken place between the company and the local.
    Two days later, on May 29, 2009, Coppola sent a letter to
    Local 414C that confirmed his statements from the May 27 meeting
    and informed the Union that all Solutia testing at the WCL would
    cease   by   August     31,    2009.     Coppola    also   stated    that   work
    transferred to the SCL would "necessarily" be performed by Local
    288 employees because of the terms of Solutia's CBA with Local 288.
    He denied that the work transfer violated Local 414C's CBA and
    -11-
    asserted that the decision could be made unilaterally because it
    fell within the CBA's "management rights" provision.             Finally,
    Coppola wrote that Solutia would "discuss . . . any reasonable
    proposals [the Union] may have" with regard to the Local 414C
    workers "affected by" the transfer, though it would not bargain
    over the transfer decision itself.
    On June 16, 2009, Solutia provided formal written notice
    to Local 414C that four positions in the WCL would be eliminated on
    August 2, 2009.      On July 18, 2009, Solutia entered into a new CBA
    with Local 288 that altered the qualifications and job descriptions
    for SCL employees in anticipation of the consolidation.
    The lab consolidation began on August 3, 2009, and was
    completed   within    two   weeks.     The   transition   involved   moving
    equipment from the WCL to the SCL and making some construction
    modifications to enlarge the SCL.
    Although Solutia eliminated the WCL lab positions, it did
    not lay off any Local 414C personnel.            Some of the former WCL
    employees elected retirement; others bid into production jobs
    (which were considered less desirable because they were more
    physically demanding); and others began performing testing work for
    Cytec at another location on the Site. Since the transfer, testing
    work has not been performed in the WCL building.
    On October 1, 2009, Solutia and Local 414C entered into
    a new CBA.      The parties dispute whether the CBA negotiations
    -12-
    included any bargaining over the effects of the lab work transfer
    decision, but it appears undisputed that the CBA negotiations did
    not include bargaining over the decision itself.
    B.   Procedural Background
    On June 2, 2009, after Solutia confirmed by letter that
    it would not bargain the work transfer decision, Local 414C filed
    an unfair labor practice charge with NLRB's regional office,
    alleging    that   Solutia   had   violated   the    Act    by   unilaterally
    modifying the CBA and unilaterally transferring work out of the
    bargaining unit.     The next day, Local 414C also filed a grievance
    with Solutia alleging a violation of the CBA.              On June 19, 2009,
    Solutia denied Local 414C's grievance, for the same reasons as it
    had stated in its May 29 letter.           Local 414C later dropped the
    grievance to pursue relief through its unfair labor practice
    charge.
    On December 31, 2009, NLRB's General Counsel issued a
    complaint    against   Solutia.      The   case     was    tried   before   an
    administrative law judge ("ALJ") on April 8 and 9, 2010.              The ALJ
    issued his decision on July 30, 2010.         His specific findings and
    conclusions will be detailed below as relevant to each issue in the
    present petitions.     In short, however, the ALJ found that Solutia
    (1) did not violate the CBA, but (2) did violate the Act by
    refusing to provide an opportunity to bargain over a mandatory
    subject of bargaining.       As remedies, the ALJ ordered Solutia to
    -13-
    take the following actions: (1) restore the WCL to the status quo
    ante as of August 1, 2009; (2) offer full reinstatement to current
    or former WCL employees who had been reassigned or had retired as
    a result of the consolidation, and "make whole" any such employees
    who   had   lost   earnings    or   benefits       as   a    result;   (3)    remit
    contributions Solutia would have made on such employees' behalf to
    retirement, 401(k), and/or health care funds; (4) reimburse Local
    414C for union dues that would have been deducted from such
    employees'    salaries;       (5)   bargain    with         Local   414C     before
    implementing any similar changes in the future;5 and (6) post
    notice at the Site.
    Solutia   filed    exceptions     to    the     ALJ's   decision    and
    remedies with the Board, and NLRB's General Counsel and Local 414C
    filed cross-exceptions.       On July 15, 2011, a three-member panel of
    the Board issued its decision and order adopting the ALJ's decision
    in all relevant respects.6
    On January 23, 2012, NLRB petitioned this court for
    enforcement of its July 15, 2011 order.             Solutia cross-petitioned
    for review of the order on February 2, 2012.                That same day, Local
    5
    This element appears in the ALJ's "Remedy" section, but it
    does not appear in the "Order" section. The Order does require
    Solutia to cease and desist from "[f]ailing and refusing to
    bargain" with Local 414C over the lab transfer decision and its
    effects.
    6
    The panel made only two minor changes: it revised the ALJ's
    ordered method for computing interest, and it revised some
    specifics in the order for posting notice.
    -14-
    414C moved to intervene on the Board's behalf; that motion was
    granted on February 16, 2012.
    Meanwhile, also on February 2, 2012, Local 414C filed its
    petition for review of the July 15, 2011 order.             Solutia moved to
    intervene on the Board's behalf on February 22, 2012, and that
    motion was granted on March 7, 2012.
    On March 14, 2012, this court granted NLRB's motion to
    consolidate the two cases.
    II.
    We begin by addressing the Board's finding that Solutia
    violated    sections     8(a)(1)   and    (5)   of    the   Act,   
    29 U.S.C. § 158
    (a)(1), (5), which is the subject of the Board's petition for
    enforcement and Solutia's cross-petition for review.               We conclude
    that the Board did not err in the standard it applied in reaching
    its decision and that its findings were supported by substantial
    evidence.
    A.   Standard of Review
    The Board's factual findings are conclusive on this court
    if they are "supported by substantial evidence on the record
    considered as a whole."        
    29 U.S.C. § 160
    (e).          This court will
    uphold   the   Board's    construction     of   the   Act   so   long   as   the
    interpretation is "reasonably defensible."            Pan Am. Grain Co. v.
    NLRB, 
    558 F.3d 22
    , 26 (1st Cir. 2009) (quoting Ford Motor Co. v.
    NLRB, 
    441 U.S. 488
    , 497 (1979)) (internal quotation marks omitted).
    -15-
    B.   Mandatory Subject of Bargaining
    Solutia first seeks to prevent enforcement of the Board's
    order by arguing that the Board's determination that Solutia failed
    to provide an opportunity to bargain over a mandatory subject of
    bargaining was reached using an incorrect legal standard and that
    it was not supported by substantial evidence.        The applicable
    standard turns on the nature of Solutia's decision and whether it
    was about a "term or condition of employment" subject to mandatory
    bargaining.
    Section 8(a)(5) of the Act makes it an unfair labor
    practice for an employer to refuse to bargain collectively with its
    employees' representatives, see 
    29 U.S.C. § 158
    (a)(5), and section
    8(a)(1) makes it an unfair labor practice for an employer to
    interfere with any of an employee's rights under the Act, see 
    id.
    § 158(a)(1).   The duty to bargain collectively comprises, in part,
    "the performance of the mutual obligation of the employer and the
    representative of the employees to meet at reasonable times and
    confer in good faith with respect to wages, hours, and other terms
    and conditions of employment."    Id. § 158(d).   Under the Act, an
    employer's decisions about "wages, hours, and other terms and
    conditions of employment" are mandatory subjects of bargaining.
    NLRB v. Wooster Div. of Borg-Warner Corp., 
    356 U.S. 342
    , 349
    (1958).   An employer violates section 8(a)(5) when it makes a
    unilateral change to a term or condition of employment without
    -16-
    first bargaining to impasse with the union.      Litton Fin. Printing
    Div. v. NLRB, 
    501 U.S. 190
    , 198 (1991).              The Board receives
    "considerable deference" in its determinations of what constitutes
    a "term or condition" of employment.     Ford Motor Co., 
    441 U.S. at 495
    .
    Solutia contends that transferring the lab work was a
    change in the scope or direction of its business and that the Board
    should have used the tests set forth in First National Maintenance
    Corp. v. NLRB, 
    452 U.S. 666
     (1981), and Dubuque Packing Co., 
    303 N.L.R.B. 386
     (1991), enforced sub nom. United Food & Commercial
    Workers Int'l Union, Local No. 150-A v. NLRB, 
    1 F.3d 24
     (D.C. Cir.
    1993).   In contrast, the Board found that the transfer was not a
    change in direction or scope of the enterprise, but a movement of
    the same unit work to different employees within the same facility,
    which is not covered by Dubuque and which is a mandatory subject of
    bargaining.
    In First National, the Supreme Court identified three
    categories    of   management   decisions:   those    that   are   "almost
    exclusively" about an aspect of the employment relationship, such
    as decisions affecting work rules and production quotas; those that
    "have only an indirect and attenuated impact on the employment
    relationship," such as decisions about advertising and product
    design; and those that have a "direct impact on employment" but
    "ha[ve] as [their] focus only the economic profitability" of the
    -17-
    company.   
    452 U.S. at 677
    .    This third type of decision includes
    those that involve "a change in the scope and direction of the
    enterprise."    
    Id.
       When it comes to decisions in the third
    category, the Court stated that bargaining should be mandatory
    "only if the benefit, for labor-management relations and the
    collective-bargaining process, outweighs the burden placed on the
    conduct of the business."     
    Id. at 679
    .
    In Dubuque, the Board established a test for deciding
    "whether a decision to relocate unit work is a mandatory subject of
    bargaining," holding that such a decision was within the third
    First National category.    303 N.L.R.B. at 390.   The Board held that
    the initial burden in a relocation case rests with NLRB's General
    Counsel, who must "establish that the employer's decision involved
    a relocation of unit work unaccompanied by a basic change in the
    nature of the employer's operation."     Id. at 391.   If the General
    Counsel meets that burden, a prima facie case has been established
    that the relocation is a mandatory subject of bargaining.     Id.   The
    employer can then make out a defense to the prima facie case by
    showing that (1) "labor costs (direct and/or indirect) were not a
    factor in the decision"; or (2) "even if labor costs were a factor
    . . . , the union could not have offered labor cost concessions
    that could have changed the employer's decision to relocate."       Id.
    However, if an employer's transfer of work outside the
    bargaining unit is in the nature of an "allocation" rather than a
    -18-
    "relocation," the Board has held that the decision is subject to
    mandatory bargaining regardless of whether it focuses on the
    company's profitability.    See, e.g., Westinghouse Elec. Corp., 
    313 N.L.R.B. 452
    , 453 (1993).     The Board derives this principle from
    the Supreme Court's decision in Fibreboard Paper Products Corp. v.
    NLRB, 
    379 U.S. 203
     (1964), in which Justice Stewart's influential
    concurrence7   identified   "assignment   of    work   among   potentially
    eligible groups within the plant" as a matter "recognized as [a]
    subject[] of compulsory bargaining."       
    Id. at 224
     (Stewart, J.,
    concurring).
    The Board has interpreted this rule in a case that bears
    a striking resemblance to Solutia's.           In Westinghouse Electric
    Corp., 
    313 N.L.R.B. 452
    , the employer made a unilateral decision to
    close a laboratory on the west side of its facility and consolidate
    the work in a more modern and efficient laboratory on the east
    side, whose workers were represented by a different bargaining
    unit.    
    Id. at 452
    .   The Board in Westinghouse concluded that "a
    shift of work from a group of employees in one building on an
    employer's corporate premises to a group of employees in another
    employer-owned building at the same site is not the kind of
    7
    The Court relied in significant part on Justice Stewart's
    Fibreboard concurrence when it formulated its rule in First
    National. See 
    452 U.S. at 676-79
    .
    -19-
    relocation which we dealt with in Dubuque."8              Id. at 453.    Rather,
    in this situation -- where there was no change in the scope or
    direction of the business, the type of work being performed, or the
    site where the work was performed -- the decision was necessarily
    a mandatory subject of bargaining.            Id.   Relying on Westinghouse,
    the Board in this case concluded that Solutia's work transfer was
    an allocation decision subject to mandatory bargaining.9
    Solutia argues that it was error for the Board to apply
    the Westinghouse rule because, as a factual matter, the lab work
    transfer did constitute a change in the scope or direction of
    Solutia's business.       This difference, it argues, should have
    triggered the Dubuque burden-shifting analysis.                   The argument
    fails.   There is substantial evidence to support the Board's
    conclusion   that   the   lab    work   transfer     at    the   Site    did   not
    constitute   a   change   in    the   scope    or   direction    of     Solutia's
    8
    In Dubuque, the employer had relocated work from a facility
    in Iowa to a facility in Illinois. 303 N.L.R.B. at 387.
    9
    The Board also argues before this court that the work
    transfer was a mandatory subject of bargaining under two other
    theories. First, it argues that when labor costs are a factor in
    a mixed-motive layoff decision, that decision is a mandatory
    subject of bargaining. See Pan Am. Grain Co. v. NLRB, 
    558 F.3d 22
    ,
    27-28 (1st Cir. 2009) (citing NLRB precedent to this effect and
    affirming Board's decision that employer was required to bargain
    over layoffs motivated in part by labor costs and in part by
    modernization).    Second, it asserts that where an employer's
    economic motives for layoffs are separable from any change in the
    scope of the business's operation, the decision to make layoffs is
    a mandatory subject of bargaining. Because these theories were not
    part of the ALJ's or Board's decisions, we do not review them.
    -20-
    business, and thus that the Westinghouse rule, rather than the
    Dubuque analysis, was the applicable standard.
    Solutia's    scope-or-direction   argument    rests    on   its
    factual assertion that consolidating the lab work in the SCL was a
    fundamental change to the way in which its products would be tested
    at the Site.     Solutia's evidence before the Board does not come
    close to compelling this conclusion, and largely undercuts it. The
    evidence shows that the company did not plan for SCL employees to
    perform more or different tests than those formerly performed in
    the WCL; rather, Solutia expected that having SCL employees test
    both west side and east side products would improve their ability
    to "troubleshoot and respond to problems," and a primary motivation
    was a reduction in the number of jobs needed to perform the tests.
    The Board could easily conclude that this sort of skill improvement
    does   not    represent    a   fundamental   change   in   the    company's
    operations.
    Additionally, Solutia's documents, as well as testimony
    from its plant manager, David Lahr, showed that employees in the
    consolidated SCL would use the same equipment that had been used in
    the WCL.     In fact, a WCL employee trained the people who were to
    instruct the SCL employees on how to perform the tests, suggesting
    that there was no substantive difference between how the WCL
    employees had tested resins before the consolidation and how the
    SCL employees were expected to test them afterward.              Solutia is
    -21-
    still producing all of the same products at the Site as it did
    before August 2009.     Now it merely has different (and fewer)
    employees performing the quality and safety testing on those
    products.
    The Board did not err in applying the Westinghouse rule
    in this case.10
    10
    The Board also concluded that even if the Dubuque analysis
    had applied, the outcome of the case would have been the same.
    Solutia argues that, under a properly applied Dubuque analysis,
    there would not have been substantial evidence to support a finding
    of statutory violation.     Solutia asserts that it made out the
    Dubuque defense because the kinds of labor savings it anticipated
    from the work transfer were not of the kind properly considered
    under First National, and thus "labor costs" as such were not a
    factor in its decision. And even if labor costs were a factor, it
    argues, the Union could not have offered any concessions to change
    Solutia's decision.    Although we hold that the Board was not
    required to apply the Dubuque analysis, we agree with the Board's
    conclusion that Solutia would fare no better under Dubuque.
    There is substantial evidence to support a finding that the
    General Counsel made out a prima facie case for mandatory
    bargaining under Dubuque.     As described in the text, the Board
    could have found that Solutia's work transfer did not involve a
    change in the scope or direction of its business, and the company
    did "relocate" work out of the bargaining unit. See Dubuque, 303
    N.L.R.B. at 391.
    Solutia's argument that labor costs were not a factor in its
    decision is contradicted by the record.       Coppola specifically
    testified that labor costs played a role in the consolidation
    decision. Solutia expected to save almost $250,000 in salaries
    from eliminating WCL positions. Solutia also anticipated that the
    work transfer would remedy the underutilization of the SCL workers,
    which the company considered a labor cost issue. First National
    contemplated that "labor costs" would include not just per-person
    costs such as wages but also elements such as "size of workforce
    and production goals." Furniture Rentors of Am., Inc. v. NLRB, 
    36 F.3d 1240
    , 1249 (3d Cir. 1994).
    Solutia does not point to any specific evidence supporting its
    contention that there were no possible concessions Local 414C could
    have offered to change its decision, relying instead on its own
    asserted reasons for why it decided to consolidate work in the SCL.
    -22-
    Solutia   then   argues    that   the   Board,    by    relying   on
    Westinghouse, incorrectly created a "virtual per se rule" for work
    consolidation   cases   that   is   incompatible     with   the    balancing
    approach of First National. Solutia relies on Furniture Rentors of
    America, Inc. v. NLRB, 
    36 F.3d 1240
     (3d Cir. 1994), and NLRB v.
    Wehr Constructors, Inc., 
    159 F.3d 946
     (6th Cir. 1998), for the
    proposition that the Board cannot rely on Westinghouse here because
    it must perform the First National balancing anew in every case
    that involves a third-category decision.          We disagree.     Solutia's
    reading of these cases is inaccurate.         Both involved employers'
    decisions to subcontract, and both denied enforcement of NLRB
    orders that broadly applied Fibreboard to such decisions without
    looking to the business circumstances that attended them.                   See
    Furniture Rentors, 
    36 F.3d at 1247-50
    ; Wehr Constructors, 
    159 F.3d at 951-55
    .   Neither case implied that the Board could not look to
    its own precedent in determining whether a specific type of factual
    situation had previously resulted in a finding of a mandatory duty
    to bargain. The Board's reliance on Westinghouse in Solutia's case
    The Board rightly pointed out that Solutia bore the burden on this
    issue, and the evidence does not compel a finding that the Board
    was wrong to conclude that Solutia failed to meet its burden. See
    Comar, Inc., 
    349 N.L.R.B. 342
    , 359 (2007) (finding that employer's
    "self-serving and conclusory testimony" that decision could not
    have been altered by bargaining was "insufficient to establish"
    that changes at issue were not a mandatory subject of bargaining,
    and citing cases).
    -23-
    was much narrower than the Board's reliance on Fibreboard in either
    of the cases that Solutia cites.
    Here, the Board did attend to the facts of Solutia's
    case, and based on the record, it concluded that Solutia's actions
    fell within the category of reallocation decisions subject to the
    mandatory duty to bargain. See, e.g., Regal Cinemas, Inc. v. NLRB,
    
    317 F.3d 300
    , 310-12 (D.C. Cir. 2003) (approving application of
    Westinghouse analysis to work allocation decision that did not
    involve a change in the nature of the work, and rejecting argument
    that   Board's   use   of   Westinghouse   created   a   per   se   rule);
    Westinghouse, 313 N.L.R.B. at 453; Holmes & Narver, 
    309 N.L.R.B. 146
    , 147 (1992) ("[O]ur decision here does not purport to establish
    a rule as to all layoffs.       We are dealing with layoffs that are
    made in connection with a decision to continue doing the same work
    with essentially the same technology, but to do it with fewer
    employees by virtue of giving some of the employees more work
    assignments.").    The findings underlying this determination were
    supported by the record, and the Westinghouse interpretation of the
    mandatory duty to bargain is reasonably defensible.            See Regal
    Cinemas, 
    317 F.3d at 312
    .
    C.   Purported Waiver by the Union of the Right to Bargain and
    Adequacy of Opportunity to Bargain
    Solutia next argues that it cannot be liable under the
    Act because Local 414C waived its right to bargain the work
    -24-
    transfer decision and Solutia fulfilled its statutory obligation to
    bargain the effects of that decision.       We conclude that there is
    substantial evidence to support the Board's findings that Local
    414C had not waived its right to bargain and that Solutia had
    failed to provide an adequate opportunity to bargain the effects.
    1.   Bargaining the Decision
    "If an employer gives a union advance notice of its
    intention to make a change to a term or condition of employment,
    'it is incumbent upon the [u]nion to act with due diligence in
    requesting bargaining' in order to avoid waiving any of its claims
    under the NLRA."     Regal Cinemas, 
    317 F.3d at 314
     (alteration in
    original) (quoting Golden Bay Freight Lines, 
    267 N.L.R.B. 1073
    ,
    1080 (1983)).     However, "[a] union is 'not required to go through
    the motions of requesting bargaining[]' . . . if it is clear that
    an employer has made its decision and will not negotiate."         
    Id.
    (quoting Gratiot Cmty. Hosp., 
    312 N.L.R.B. 1075
    , 1080 (1993)).
    Neither party contests these basic principles; their disagreements
    are about whether Local 414C met the first standard and/or falls
    into the exception stated by the second standard.
    Solutia contends that Local 414C waived its right to
    bargain the work transfer decision because the Union did not
    request decision bargaining.          Solutia argues that Local 414C
    insisted,    from   the   time   it    learned   about   the   proposed
    consolidation, that the work transfer would violate the CBA, and
    -25-
    thus the Union did not even attempt to bargain the decision.
    Solutia also maintains that there was insufficient evidence to
    support the Board's conclusion that Local 414C did not have to
    demand    bargaining   because   Solutia   presented   the   decision   as
    non-negotiable.
    The Board's conclusion that Local 414C timely requested
    to bargain the work transfer decision rests primarily on Local
    414C's letter of May 7, 2009.11      The Union's letter maintains its
    previously stated position that the work transfer would violate the
    CBA, but it also states that in the event Local 414C "agree[s] with
    the company's decision to take this action," the Union "demands to
    bargain this issue."     This language is fairly susceptible of two
    readings: (1) if the Union agrees that the transfer would not
    violate the CBA, then it demands to bargain the entire "issue"
    (both decision and effects); or (2) if the Union agrees that
    management has authority to make the decision unilaterally, then it
    demands to bargain the effects.      Solutia assumes that this second
    reading is required and supports its argument.         We do not address
    that because the Board's reading is adequately grounded in the
    record.
    11
    The Board found that the record was unclear as to whether
    the Union, via Bellerive's meetings with Coppola, had requested
    bargaining before that date.
    -26-
    The Board apparently adopted the first meaning, and
    Solutia has not pointed to evidence showing that the second meaning
    is the only correct one.       Bellerive testified that at the March 5,
    2009 meeting with management and in his meetings with Coppola
    before the May 7 letter, he repeatedly told Coppola that the work
    transfer decision was a "negotiable item" that should be addressed
    in upcoming CBA negotiations.        While the position that Bellerive
    communicated to Coppola relied on CBA bargaining rather than on a
    separate statutory duty to bargain, it was clear that Local 414C
    was   asking   to    bargain   regarding   the   decision.   Bellerive's
    testimony supports the Board's conclusion that the May 7 letter
    meant that the Union was demanding to bargain the decision in the
    event it agreed that the CBA did not otherwise prohibit the
    transfer.
    To support its argument, Solutia highlights a line in the
    notes from the May 27, 2009 meeting, in which Bellerive stated that
    he did not "want the company to tell employees the Union is
    negotiating."       But this statement does not shed light on the issue
    of whether the Union had demanded decision or effects bargaining,
    or both, or neither.        In fact, it would be reasonable to infer
    that, given the Union's insistence that Solutia could not make the
    decision unilaterally, the Union did not want the company to
    suggest to employees that the Union had acquiesced in the decision
    and was already bargaining the effects.
    -27-
    The authorities relied on by both Solutia and the Board
    do not address a situation in which one reason for a union's
    purported failure to request decision bargaining is the union's
    clearly communicated position that the decision is prohibited
    regardless of bargaining.   At least one court has held that under
    somewhat similar circumstances, there was no waiver.   See Patent
    Office Prof'l Ass'n v. Fed. Labor Relations Auth., 
    872 F.2d 451
    ,
    455-56 (D.C. Cir. 1989) (holding that federal employee union's
    request to employer agency that agency halt decision pending a
    determination of its lawfulness "did not waive [the union's] right
    to bargain, as much as initiate it").       Based on Bellerive's
    testimony and the text of the May 7 letter, there was substantial
    evidence for the Board to conclude that Local 414C requested
    decision bargaining.12
    12
    There is some authority to suggest that, even if the May 7
    letter were not by itself considered a demand for decision
    bargaining, Local 414C's unfair labor practice charge of June 2,
    2009 could constitute a bargaining demand, to the extent it
    clarified the letter. See RC Aluminum Indus., Inc. v. NLRB, 
    326 F.3d 235
    , 243 (D.C. Cir. 2003) (noting that "[a] line of Board
    cases holds that the filing of an unfair labor practice charge may
    cure an inadequate request and give rise to a valid bargaining
    demand"); cf. Patent Office Prof'l Ass'n v. Fed. Labor Relations
    Auth., 
    872 F.2d 451
    , 455-56 (D.C. Cir. 1989) (holding that union's
    filing of an unfair labor practice charge after informing employer
    that it believed employer's action to be contrary to law put
    employer on notice that union would seek to bargain the action).
    The Board's decision in this case adverted briefly to this
    possibility, stating that Local 414C had requested decision
    bargaining "both by its May 7 letter to [Solutia] and by its
    subsequent unfair labor practice charge and grievance." The Board
    does not pursue this line of argument in its petition for
    enforcement.
    -28-
    Moreover, even if Solutia were correct that the May 7
    letter cannot be read as a demand for decision bargaining, there is
    ample evidence to support the Board's conclusion that Local 414C
    did not need to request decision bargaining because the decision
    was presented as a "fait accompli."   See Regal Cinemas, 
    317 F.3d at 314
     (quoting Int'l Ladies' Garment Workers Union v. NLRB, 
    463 F.2d 907
    , 919 (D.C. Cir. 1972)). Coppola testified that the company had
    decided before March 2009 that it had no duty to, and would not,
    bargain the work transfer decision with Local 414C.       Lahr also
    testified that the decision was final at least as of May 7, 2009.
    During the May 27, 2009 meeting, Solutia announced to the Union
    that it did not believe it had an obligation to bargain the
    decision, but both Bellerive's and Coppola's testimony suggests
    that Coppola had already communicated to Bellerive during their
    meetings in March that the company believed the CBA authorized a
    unilateral work transfer.   This evidence supports the conclusion
    that any request to bargain the decision would have been futile.
    Solutia counters that, although it had determined that it
    had no duty to bargain even before informing the Union of the plan,
    it did not confirm this position with the Union until late May, and
    Local 414C had not requested decision bargaining before then.    It
    is true that in order for a situation to fall within the "fait
    accompli" exception, it must be "clear" to the union that the
    employer will not negotiate.   
    Id.
        Substantial evidence supports
    -29-
    the Board's conclusion that Solutia's position was clear to Local
    414C before the May 29 letter.            Coppola himself testified that in
    March     2009    he   and     Bellerive    "basically   confirmed     [their]
    disagreement, as to the company's right to move the work."
    Furthermore, even if Solutia's position had not been confirmed
    before May 29, 2009, we do not accept its proposition that the
    period between March 4, 2009 (when Local 414C first learned of the
    work transfer plan) and May 29, 2009 (when it definitively learned
    that the plan was a fait accompli) was so long as to cause the
    Union to waive its right to bargain the decision.           Cf. G. Heileman
    Brewing Co. v. NLRB, 
    879 F.2d 1526
    , 1532 (7th Cir. 1989) (union's
    delay     of     one   month     before    requesting    bargaining,     while
    "unnecessar[y]," did not trigger waiver).
    Finally, Solutia argues that the "management rights"
    clause in its CBA with Local 414C waived the Union's right to
    bargain the decision.13         That provision reads:
    The Union recognizes that subject to the
    provisions of this Agreement, the operation of
    the plant, including but not limited to the
    right to employ, promote, lay-off, discipline
    or discharge for just cause, and to judge the
    qualifications    and   competency    of   all
    employees, are reserved by and vested in the
    Company.
    13
    Solutia refers to this argument in only one paragraph of its
    brief before this court. We bypass whether Solutia's brief has
    waived the issue and deal with it on the merits.
    -30-
    This was a primary argument Solutia advanced before the ALJ and
    Board, but a secondary argument in its petition to this court.           The
    Board concluded that the management rights clause did not cover the
    type of decision at issue here and thus could not preclude the
    Union's right to bargain the decision.
    It is difficult, from our perspective, to know why
    Solutia acted with such assurance that it had no obligation to
    bargain the decision.      Coppola's belief that Solutia did not have
    to bargain the decision was based on consulting Local 414C's and
    Local 288's CBAs.      The CBA language was cited in Solutia's May 29,
    2009 letter to Local 414C and in Solutia's denial of Local 414C's
    grievance.   Just as the Union relied on the CBA for its insistence
    that Solutia could not transfer the work, Solutia relied on the CBA
    for its insistence that it could.14
    Under the rule in this circuit set forth in Bath Marine
    Draftsmen's Ass'n v. NLRB, 
    475 F.3d 14
    , 25 (1st Cir. 2007), the
    standard for evaluating a CBA-based defense to a section 8(a)(5)
    claim is the "contract coverage" test.       That test looks to whether
    the   parties   have   negotiated    a   provision   in   their   CBA   that
    14
    In its brief to this court, Solutia makes the confusing
    suggestion that the management rights clause "combine[s]" with
    Local 414C's actions to result in a waiver of the right to bargain
    the decision. But see NLRB v. U.S. Postal Serv., 
    8 F.3d 832
    , 836
    (D.C. Cir. 1993) (noting that contract coverage and waiver are
    "analytically distinct" because, if a subject is covered by a CBA,
    the union is deemed to have exercised its right to bargain that
    subject and thus cannot be said to have waived the right).
    -31-
    establishes the parties' rights regarding an otherwise mandatory
    bargaining subject.15     Id.; see NLRB v. U.S. Postal Serv., 
    8 F.3d 832
    , 836 (D.C. Cir. 1993).         The Board, applying the contract
    coverage test, found that the plain language of the clause and the
    parties' bargaining history demonstrated that the lab work transfer
    was not within the coverage of the management rights clause.             It
    determined that there was no sound arguable basis for Solutia's
    interpretation of the clause.
    The   parties    have   not   briefed   the   question   of   what
    standard of review we should apply to the question of contract
    coverage and the Board's interpretation of the CBA.16          Regardless
    of whether we interpret Solutia and Local 414C's CBA de novo17            or
    15
    The Board noted that Solutia's defense would also fail under
    NLRB's more stringent "clear and unmistakable" waiver test, Provena
    Hosps., 
    350 N.L.R.B. 808
     (2007), but we do not address that finding
    because it does not apply the controlling test in this circuit.
    16
    The Board has limited authority to interpret a CBA in order
    to resolve a section 8(a)(5) defense. See Bath Marine, 
    475 F.3d at 25
    ; U.S. Postal Serv., 
    8 F.3d at 837
    . However, federal labor laws
    establish that courts and arbitrators generally are the primary
    interpreters of labor contracts. See U.S. Postal Serv., 
    8 F.3d at 837
    . This court has implied that the Board's interpretation of a
    CBA in the section 8(a)(5) context should be subject to de novo
    review. See Bath Marine, 
    475 F.3d at 25
    . But see 
    id. at 29-30
    (Lynch, J., concurring in the judgment) (noting that Bath Marine
    did not actually involve a section 8(a)(5) claim and disputing that
    the imposition of de novo review was justified in that case).
    17
    We have stated elsewhere that our interpretation of a labor
    contract under the Labor Management Relations Act, 
    29 U.S.C. § 141
    et seq., is de novo. Coffin v. Bowater Inc., 
    501 F.3d 80
    , 97 (1st
    Cir. 2007). However, that case arose from an appeal in a putative
    class action suit, 
    id. at 83
    , and did not involve any question of
    administrative deference.
    -32-
    apply some form of deference to the Board's decision,18 we reach the
    same conclusion in this case. The management rights clause did not
    authorize Solutia's unilateral work transfer.
    "In determining whether a subject is covered by a CBA,
    . . . we will consider whether the parties bargained over the
    mandatory subject at issue."     Bath Marine, 
    475 F.3d at 25
    .       The
    plain language of the management rights clause would not suggest to
    any reader that the geographical allocation of work had been one of
    the bargaining topics when Solutia and Local 414C negotiated this
    clause.     As   the   Board   noted,   the   illustrative   list    of
    "operation[s]" reserved to management under the clause describes
    decisions of only one type: "routine employment actions" concerning
    individual employees, such as promotions and discipline. See Regal
    Cinemas, 
    317 F.3d at 312-13
     (management rights clause that reserved
    employer's right to "introduce new or improved work methods . . .
    processes and procedures" and "change or eliminate existing . . .
    procedures or work," 
    id. at 312
     (alterations in original), did not
    cover employer's decision to remove work from bargaining unit
    employees and reassign it to managers).         The language of the
    management rights clause clearly does not encompass cross-plant
    18
    The Board's conclusion that the management rights clause did
    not cover the lab work transfer was not based solely on the
    contract language.     It also took into account the parties'
    bargaining history.    The Board's findings in this regard were
    supported by substantial evidence.     So the question of whether
    there should be any deference may depend on the justification for
    the Board's decision.
    -33-
    work consolidation and elimination of unit positions. Compare U.S.
    Postal Serv., 
    8 F.3d at 838
     (management rights clause reserved to
    employer the right "[t]o determine the methods, means and personnel
    by which [its] operations are to be conducted" (second alteration
    in original)).
    Further, the bargaining history shows that Solutia (and
    its predecessor, Monsanto19) had previously bargained similar issues
    under the same management rights language.             Solutia's bargained
    2006 agreement with Local 414C regarding the new product line
    included an explicit provision addressing Solutia's future right to
    remove work assigned to the west side, which Solutia would not have
    needed to include if it believed that such a move were already
    authorized by the CBA.        The series of agreements between Monsanto
    and both unions regarding work in the new buildings, as well as the
    agreements between Solutia and the unions regarding the ability to
    "cross    lines,"   provide    additional   evidence   of   the   employer's
    beliefs about the scope of the management rights clause.20              See
    19
    The management rights clause has been part of Local 414C's
    CBA since at least 1979.
    20
    The 1994 agreement between Monsanto and Local 288 represents
    an instance of bargaining over the precise type of action at issue
    here: removing work from one unit and transferring it to the other
    unit. This agreement was, of course, governed by Local 288's CBA
    rather than Local 414C's. Nonetheless, the 1994 agreement provides
    evidence of the employer's historical understanding that cross-Site
    work allocation was a subject of negotiation with the unions.
    Bellerive's testimony indicates that, although Monsanto did not
    formally bargain the 1994 work transfer decision with Local 414C,
    Monsanto did discuss the decision with the Union and the Union
    -34-
    Regal Cinemas, 
    317 F.3d at 313
     (noting that bargaining history did
    not support employer's interpretation of management rights clause
    and concluding that, in light of language and history, it would not
    "conclude that a union would knowingly agree to a clause that would
    effectively permit the employer to unilaterally extinguish the
    bargaining unit altogether").
    In sum, neither the language of the clause nor the
    bargaining history support the conclusion that the employer and the
    Union had already bargained to give the company unilateral control
    over the mandatory subject of allocation of work to different units
    within the plant.       Solutia has failed to make out a contractual
    defense to its violation of the statutory duty to bargain the work
    transfer decision.
    2.   Adequate Opportunity for Bargaining the Effects
    Solutia next argues that the Board's determination that
    Solutia failed to provide Local 414C with an adequate opportunity
    to   bargain     the   effects   of   the    work   transfer   decision   was
    unsupported by substantial evidence. Solutia agrees that it had an
    obligation under the Act to bargain the effects, but it denies that
    it failed to offer an opportunity to do so.               This is a closer
    question.
    expressed its willingness to take on additional work provided that
    the company would supply additional help if needed.
    -35-
    The Board's finding that Solutia had not satisfied its
    statutory duty to bargain the effects was largely based on the
    finding that Solutia had not satisfied its duty to bargain the
    decision.   The Board argues to us that, in the absence of an offer
    to bargain the decision, any offer to bargain the effects would
    have been insufficient, because an employer cannot satisfy the
    latter obligation without first satisfying the former.     It cites
    its own precedent in Dan Dee West Virginia Corp., 
    180 N.L.R.B. 534
    (1970), which stands for a different proposition: that an employer
    cannot use a union's refusal to bargain effects as a defense when
    there is an ongoing dispute about the employer's obligation to
    bargain the decision.     See 
    id. at 539
    .   The Supreme Court has
    recognized that the duty to bargain a decision and the duty to
    bargain its effects are two separate obligations under the Act.
    See First National, 
    452 U.S. at
    677 n.15, 686 (holding that
    employer had no obligation to bargain decision but did have an
    obligation to bargain the effects of the decision).
    We are far from convinced that a per se rule, operating
    regardless of the underlying facts, as argued by the Board, is
    defensible.   We also disagree with the Board's assertion that this
    circuit has previously adopted such a rule.21   Nevertheless, on the
    21
    The Board cites Soule Glass & Glazing Co. v. NLRB, 
    652 F.2d 1055
    , 1088 (1st Cir. 1981), abrogated on other grounds by NLRB v.
    Curtin Matheson Scientific, Inc., 
    494 U.S. 775
     (1990), for our
    purported adoption of a per se rule. The Board far overreads the
    case. Soule Glass merely states the basic proposition that "[t]he
    -36-
    particular facts of this case, there was substantial evidence to
    support the conclusion that Solutia failed to provide Local 414C
    with a meaningful opportunity to bargain the effects, apart from
    any proposed per se rule.
    Solutia's argument that it did provide a meaningful
    opportunity first relies on Local 414C's alleged failure to request
    effects bargaining and its failure to respond to Solutia's letter
    of May 29, 2009, which stated that Solutia would "discuss . . . any
    reasonable proposals [Local 414C] may have" with regard to the
    Local 414C workers "affected by" the transfer.             However, this
    argument overlooks the Union's May 7, 2009 letter, which stated
    that, should the Union "agree with the company's decision to take
    this action," the Union "demands to bargain this issue." The Board
    could reasonably find that this statement referred to bargaining
    both the decision and the effects or to bargaining the effects
    only.   Under   either   interpretation,   the   May   7   letter   would
    establish a demand for effects bargaining, at least once the CBA
    issue was resolved.   As it happened, the CBA issue was not resolved
    until the parties litigated it before the Board.
    employer must bargain with respect to the decision to remove work
    from bargaining unit employees, not merely its effects on the
    employees." 
    Id.
     (citing Fibreboard, 
    379 U.S. at 209
    ). It says
    nothing about the order in which the employer must perform the
    bargaining, nor does it suggest that a violation of the duty to
    bargain a decision automatically precludes an employer from
    fulfilling the duty to bargain effects. It simply recognizes the
    fact that decision bargaining and effects bargaining are two
    separate duties.
    -37-
    Solutia    falls    back    to      an   argument     that     certain
    negotiations in September 2009, which occurred in connection with
    Solutia and Local 414C's new CBA, actually constituted effects
    bargaining as to the work transfer of August 2009.                 The evidence
    supports a conclusion that the CBA-related negotiations were not in
    the nature of effects bargaining.
    For    instance,   during     the     CBA    negotiations      Solutia
    proposed to "make whole" the employees who had been forced to take
    a temporary pay cut while training for the new positions into which
    they had transferred after the WCL closure.                 But Lahr testified
    that the purpose of this proposal was to encourage the bargaining
    committee to recommend ratification of the new CBA, and that the
    Union made clear that its acceptance of this proposal was not meant
    to resolve the unfair labor practice charge then pending on the
    work   transfer    issue.      Gary    Bordeau,      a   former   WCL    employee,
    testified that he had filed a grievance regarding these training
    wages and that the grievance was resolved through negotiations,
    suggesting that the "make whole" proposal was linked to this
    separate dispute.       Finally, neither party suggested that the
    September   2009    negotiations      touched    upon     the   remedial   issues
    ultimately addressed by the Board, such as the treatment of WCL
    employees who had retired rather than transferred.                      There was
    substantial evidence that the CBA transactions were part of a
    -38-
    separate set of negotiations that did not constitute effects
    bargaining specifically as to the lab work transfer dispute.
    Finally, Solutia contends that the effects of the work
    transfer decision were largely determined by the CBA, and so no
    additional effects bargaining was necessary.    This is essentially
    a "contract coverage" defense.     But because Solutia's unilateral
    movement of Local 414C unit work across the geographic boundary was
    not authorized by the management rights provision, the general
    provisions of the CBA regarding the job bidding process could not
    have constituted ex ante bargaining over the effects of this type
    of decision.
    III.
    Local 414C petitions for review of that part of the
    Board's order finding that Solutia did not violate the CBA, as
    opposed to its bargaining obligations under the Act.     The Union
    seeks review of this aspect of the decision despite the finding
    against Solutia on the statutory ground because, if there were a
    CBA violation, Local 414C would have to give its consent in order
    for Solutia to keep the lab work at the SCL, instead of the Union
    merely receiving the opportunity to bargain.    We find no error in
    the Board's conclusion and deny Local 414C's petition.
    -39-
    A.   Unit Modification
    Local 414C argues that the lab work transfer constituted
    an   impermissible   midterm   modification    of   the   scope    of   the
    bargaining unit. Unit modification is a permissive, not mandatory,
    subject of bargaining.     Local 666, Int'l Alliance of Theatrical
    Stage Emps. & Moving Pictures Mach. Operators v. NLRB, 
    904 F.2d 47
    ,
    50 (D.C. Cir. 1990).     Permissive subjects cannot be bargained to
    impasse or unilaterally implemented; the consent of the other party
    is required to alter agreements on these subjects.                See id.;
    Wackenhut Corp., 
    345 N.L.R.B. 850
    , 852 (2005).
    Local 414C's argument rests largely on the word "for" in
    its CBA's recognition clause: "A unit comprising of all hourly
    rated employees . . . for the then existing, Bircham Bend Plant."
    Local 414C argues that "for" must mean that its unit is not defined
    solely by geography (i.e., all employees who perform work on the
    west side of the Site) but also by function (i.e., all employees
    who perform work that contributes to the items produced on the west
    side of the Site).     It argues that the work transfer necessarily
    modified the scope of its bargaining unit because the transfer took
    work under Local 414C's jurisdiction -- that is, quality and safety
    testing "for" resin products produced at the Bircham Bend Plant --
    and reassigned that work to Local 288.        The Union maintains that
    the resin testing was still "for" the Bircham Bend Plant despite
    being moved to the Springfield Plant location.
    -40-
    The Board found that Solutia's decision to transfer the
    work to Local 288 employees in the SCL did not modify the scope of
    the bargaining unit because the unit was geographically defined:
    the recognition clause says nothing about the type of work to be
    performed by Local 414C employees and refers only to the location
    where the work will be performed.        The Board characterizes Local
    414C's reliance on the difference between "for" and "at" as a
    "distinction without difference."
    In applying CBAs to work transfer disputes, courts and
    NLRB have    distinguished   between    "jurisdictional"   clauses   that
    define the assignment of work to union members and "scope" clauses
    that define who is included in the bargaining unit. Local 666, 904
    F.2d at 50.     The former type of clause addresses a mandatory
    subject of bargaining, while the latter addresses a permissive
    subject. Id.    If a work transfer affects a unit's jurisdiction but
    not its scope, then the transfer does not constitute a unit
    modification.   In such a case, the union's consent is not required
    and the parties may bargain to impasse over the transfer.        Id.
    There was substantial evidence, based on the CBA itself
    and on the history of the Site, to support the Board's conclusion
    that the transfer of work to the SCL did not modify the scope of
    Local 414C's unit.   The wording and structure of the clause did not
    require the Board to give the word "for" the construction on which
    -41-
    Local 414C insists.       In fact, the Union puts more weight on this
    one word than it can bear.
    The    word    "for"   does     not     itself    substitute     for   a
    definition of particular tasks assigned to the Local 414C unit.22
    If the parties had intended in the CBA to define the unit by the
    types of tasks it performs, they could have done so.                      Instead,
    reading the recognition clause against the background of how the
    Site had been operated since the 1960s, it is far more reasonable
    to   conclude    that    the   clause    defined    the     scope   of    the   unit
    geographically, since the two unions at the Site had always been
    separated primarily by their location rather than by the nature of
    their work.
    The    2006    agreement      between    Local    414C   and    Solutia
    regarding the new product line reinforces this understanding, as it
    described the grant of jurisdiction in purely geographic terms.
    Local 414C would have jurisdiction over the new production work
    "[b]ased on the current location of the [production] operation" and
    "only for any period of time in which" Solutia chose to locate
    production on the west side.              The emphasis on the west side
    location in this agreement undercuts the argument that the parties
    22
    Indeed, to the extent that the resins produced on the west
    side are used to manufacture Saflex on the east side, it could be
    argued that all work at the Site (other than the Cytec contract
    work) is "for" the Springfield Plant, not "for" the Bircham Bend
    Plant.
    -42-
    understood the unit's scope in functional terms.                 Additionally,
    Bellerive   testified     that   Local    414C     employees    had    only   ever
    performed work on the east side under the terms of specific
    agreements with the employer.            These agreements, bargained with
    Monsanto and Solutia at various points since 1982, demonstrate a
    pattern of work allocation negotiations that were based on the
    geography of the Site.      The evidence does not show that the Union
    had ever before claimed jurisdiction over work located on the east
    side based on that work being "for" the Bircham Bend Plant.23
    The Board supportably found that the lab work transfer
    did not make any change to the geographical scope of the unit, and
    thus that the transfer at issue here was not of the type that
    constitutes a unit modification.
    B.   Contract Modification
    The   Union   also   argues     that    the   lab   work    transfer
    effectively modified the "consolidation" language that was added to
    the recognition clause in 1982: "This recognition clause shall be
    unaffected by any future consolidation of the plants at the Indian
    23
    The fact that Local 288's recognition clause contains the
    word "at" instead of "for" ("The term[] 'employee' . . . shall
    include only those employees at that portion of the Indian Orchard
    Plant formerly known as the Springfield Plant") is of no moment.
    Again, such a small word cannot support such a broad
    interpretation, particularly in the historical context of the Site.
    Local 288's CBA is only relevant in that it provides additional
    evidence of a Site-wide system in which union jurisdiction was
    defined by geography rather than by the nature of the work.
    -43-
    Orchard Site."      Local 414C insists that this clause is "work
    preservation" or "protection" language that prevents the employer
    from moving work from the west side to the east side without Local
    414C's consent. Solutia, on the other hand, interpreted the clause
    as permitting the transfer of work across sides of the Site so long
    as the transfer did not involve a modification of Local 414C's
    unit.   On Solutia's understanding, the import of the consolidation
    clause was to prevent work at the Bircham Bend Plant from being
    performed by anyone other than Local 414C employees, not to prevent
    the employer from moving particular tasks from one side of the Site
    to the other.
    Once an employer and a union agree on a CBA, one party
    may not unilaterally modify that CBA without the other's consent
    during the term of the CBA.    
    29 U.S.C. § 158
    (d); Bath Marine, 
    475 F.3d at 20
    .   In   determining    whether   an   employer's   action
    constitutes a prohibited midterm modification of a CBA, the Board
    must ask whether the employer had a "sound arguable basis" for
    interpreting the CBA as it did.       Bath Marine, 
    475 F.3d at 22
    .
    Local 414C argues that Solutia's interpretation of the
    clause lacked a sound arguable basis because it was contrary to the
    plain language of the clause as well as the parties' bargaining
    history, and it would render the clause meaningless because it
    would be duplicative of the "for the then existing Bircham Bend
    Plant" language.
    -44-
    The Board found that Solutia had a sound arguable basis
    for its interpretation, based on both the CBA's language and past
    practice.    The Board took a different lesson from the parties'
    bargaining history than the one advocated by the Union.          It
    reasoned that previous issues regarding "crossing lines" (most
    often involving employees rather than tasks crossing over) had been
    addressed by bargaining, so Solutia at most would have inferred
    that it had an obligation under the CBA to bargain, not an
    obligation to get Local 414C's consent. The Board also denied that
    Solutia's reading would render the clause meaningless, because if
    Solutia were to make a work transfer decision that did in fact
    modify the scope of the unit, then the consolidation language would
    prohibit the transfer unless the Union consented.      The Board's
    finding is well supported in the record.
    As the Board found, the history of negotiations over
    cross-Site work would not have required Solutia to conclude that
    the CBA prohibited the transfer of tasks from one unit to another
    without Local 414C's consent.    If anything, the history suggests
    that Solutia had an obligation to bargain over changes to work
    allocation -- as the Board in fact found when it determined that
    Solutia had violated section 8(a)(5) of the Act.    The historical
    understanding that Local 414C was the "west side" union and Local
    288 was the "east side" union would have supported a reasonable
    interpretation that moving a task from west to east, without moving
    -45-
    any employees, would be a subject of bargaining with the Union,
    since    it   would   maintain   each   union's    representation   of   all
    employees on its respective side.
    As to the redundancy argument, while Local 414C did show
    that Solutia's interpretation was not the only possible one, the
    Board correctly found that the Union's evidence was not enough to
    overcome the deferential "sound arguable basis" standard.
    IV.
    Finally, we address both Solutia's and Local 414C's
    attacks on the Board's remedial order.            We conclude that many of
    these challenges are premature and the remaining ones are without
    merit.
    Section 10(c) of the Act empowers the Board to issue "an
    order requiring [an entity found to be in violation of the Act] to
    cease and desist from such unfair labor practice" and to "take such
    affirmative action . . . as will effectuate the policies" of the
    Act.     
    29 U.S.C. § 160
    (c).      The Board has "wide discretion" in
    selecting remedies, Pan Am. Grain, 558 F.3d at 26 (quoting NLRB v.
    Mount Desert Island Hosp., 
    695 F.2d 634
    , 642 (1st Cir. 1982)), and
    this court will enforce the Board's chosen remedies "unless it can
    be shown that the order is a patent attempt to achieve ends other
    than those which can fairly be said to effectuate the policies of
    -46-
    the Act," 
    id.
     (quoting NLRB v. Otis Hosp., 
    545 F.2d 252
    , 257 (1st
    Cir. 1976)) (internal quotation marks omitted).
    Solutia alleges the following errors in the Board's
    remedies: (1) the Board stated an improper standard for determining
    whether former WCL employees who retired after the work transfer
    would be entitled to reinstatement and back pay; (2) the order to
    make payments to "health care funds" could result in a windfall to
    some employees; and (3) it was improper to order Solutia to
    reimburse Local 414C for lost union dues.
    Local 414C challenges the Board's denial of the following
    cross-exceptions that the Union filed to the ALJ's recommended
    remedies24:         (1)   the   make-whole    remedy   should   have    included    a
    requirement that retired employees who are reinstated need not pay
    back        their    lump-sum     pension     distributions,    or     at   least   a
    requirement that Solutia assume any adverse tax consequences of
    such paybacks; (2) the ALJ should have held that Solutia waived its
    right to present any evidence at the compliance stage regarding
    whether it would be unduly burdensome to re-open the WCL; and (3)
    the remedies should have included an affirmative order for Solutia
    24
    Although Local 414C initially frames its remedy argument as
    a procedural challenge based on insufficient explanations under the
    Administrative Procedure Act, 
    5 U.S.C. § 557
    (c)(3)(A), the Union in
    fact argues that the remedy was substantively incorrect for the
    three reasons stated.
    -47-
    to bargain any future proposal to again close the WCL or transfer
    the WCL lab work to the SCL.
    Solutia's objections (1) and (2), as well as Local 414C's
    objection   (1), are   premature.     The    Board   may   reserve   issues
    regarding individual employees' entitlements to certain remedies,
    such as back pay, until a post-enforcement compliance proceeding.
    See Holyoke Visiting Nurses Ass'n v. NLRB, 
    11 F.3d 302
    , 308 (1st
    Cir. 1993).    In this case, the Board specifically noted that "all
    parties agreed to defer fully litigating" the specifics of the
    reinstatement and make-whole remedies until the compliance stage.
    Because the parties "rested with the understanding that full
    litigation of the reinstatement and make whole issues would be
    deferred to compliance," the record is incomplete with regard to
    these issues, and as such, this court will not decide them.
    The remaining three objections may be addressed at this
    stage, although they can be dispatched quickly.
    First,   Solutia's   objection    (3)    is    without   merit.
    Reimbursement of lost union dues is an accepted form of remedy.
    See, e.g., Baltimore Sun Co., 
    335 N.L.R.B. 163
    , 170 (2001); Ogle
    Protection Serv., Inc., 
    183 N.L.R.B. 682
    , 682-83 (1970), enforced
    sub nom. NLRB v. Ogle Prot. Serv., Inc., 
    444 F.2d 502
     (6th Cir.
    1971).   Under NLRB precedent, such an order is interpreted as
    requiring the employer to subtract the union dues reimbursement
    from the back pay otherwise owed to affected workers, not as
    -48-
    requiring the employer to pay the union out of its own funds.                See
    Ogle Protection, 183 N.L.R.B. at 683.               This obviates Solutia's
    argument that it cannot legally pay money to a union.
    Next, Local 414C's objection (2) also fails.             The Board
    noted that Solutia had not presented evidence of undue hardship at
    the complaint hearing and limited any undue hardship evidence at
    the compliance hearing to that which was unknown or unavailable at
    the complaint stage.           This limitation already addresses Local
    414C's apparent fear that Solutia will get a second bite at the
    undue hardship apple, and it was not inconsistent with the purposes
    of the Act for the Board to leave the door open to newly discovered
    evidence on this important topic.
    Finally, Local 414C's objection (3) is unnecessary.            The
    Board's finding that transferring the lab work is a mandatory
    subject of bargaining means that Solutia will already have an
    obligation to bargain any further attempt to transfer the work,
    with or without a specific bargaining order.                A bargaining order
    would   not    change   Solutia's   obligations,      nor    prevent    it   from
    eventually bargaining to impasse and implementing the transfer.
    V.
    The   National   Labor    Relations    Board's     petition    for
    enforcement is granted.         Solutia's cross-petition for review is
    denied.   Local 414C's petition for review is denied.
    -49-