192 F.3d 133 (D.C. Cir. 1999)
Alwin Manufacturing Co., Inc.,Petitionerv.National Labor Relations Board, RespondentUnited Steelworkers of America, AFL-CIO/CLC, Intervenor
No. 98-1432
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1999Decided September 28, 1999

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
John R. Cernelich argued the cause for petitioner.  With  him on the briefs was Scott M. Loomis.  William E. Coughlin entered an appearance for petitioner.
Rachel I. Gartner, Attorney, National Labor Relations  Board, argued the cause for respondent.  With her on the  brief were Linda R. Sher, Associate General Counsel, Aileen  A. Armstrong, Deputy Associate General Counsel, and Margaret A. Gaines, Supervisory Attorney.
Craig Becker argued the cause for intervenor.  With him  on the brief were Carl B. Frankel, Daniel M. Kovalik, Larry  Engelstein and James B. Coppess.
Before:  Wald, Silberman and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge:


1
Alwin Manufacturing Co., Inc. ("Alwin" or "the company") unilaterally instituted minimum production standards and changed its vacation scheduling policy  during the pendency of a collective bargaining agreement it  had with the United Steelworkers of America, AFL-CIO/ CLC ("the union").  The National Labor Relations Board  ("the Board") found Alwin's unilateral actions to be unfair  labor practices under the National Labor Relations Act ("the  Act").  The Board's decision, however, did not issue until  after the applicable collective bargaining agreement ("CBA")  had expired.  Before the Board's decision issued, Alwin and  the union engaged in extensive but ultimately unsuccessful  negotiations over a new CBA.  At the expiration of the CBA,  the union went on strike, and Alwin implemented the terms of  its final offer as the conditions of employment at its plant. The Board found in a second proceeding that Alwin violated  the Act by unilaterally implementing its final offer, and by  treating the striking workers as economic strikers, rather  than unfair labor practice strikers.


2
The primary question in this case is whether the Board  properly concluded that the existence of the original unfair  labor practices causally contributed to the parties' inability to  reach a new collective bargaining agreement.  In addition, we  must consider whether there is substantial evidence in the  record to support the Board's conclusion that the workers  were engaged in an unfair labor practice strike, and whether  Alwin sufficiently brought to the attention of the Board its objections to the remedy proposed by the Administrative Law  Judge ("ALJ"), which is a prerequisite to judicial review  under section 10(e) of the Act.


3
We hold that the Board's findings and conclusions are  supported by substantial evidence on the record, and that the  company did not properly take an exception to the remedy  proposed by the ALJ.  Accordingly, we deny Alwin's petition  for review and grant the Board's cross-application for enforcement of its order.

I. Background

4
Alwin is a closely-held corporation located in Green Bay,  Wisconsin that manufactures metal dispensers for paper towels, tissues, and napkins.  The United Steelworkers of America has represented Alwin's employees since the early 1960s;the bargaining unit consists of approximately 123 employees.Alwin and the union were parties to a series of collective  bargaining agreements, one of which covered the period from  March 1, 1991 through February 28, 1994.


5
In June 1992, management informed the union that it  wished to alter the vacation scheduling policy.  Following  some discussion, but without the union's agreement, Alwin  implemented a new policy in which vacation requested more  than three weeks in advance would be scheduled according to  "first come, first served," rather than according to seniority.1


6
On September 21, 1992, management informed the union  that, as of the following day, certain jobs would be subject to  minimum production standards.  On September 23, 1992,  Alwin began disciplining workers for failing to meet the  standards.


7
Shortly thereafter, the union filed unfair labor practice  ("ULP") charges with the Board, alleging that the unilateral implementation of these policies violated sections 8(a)(1) and  (5) of the Act.  An ALJ heard the case in Spring 1993 and  issued a decision on April 27, 1994, finding that Alwin had  committed ULPs.  The Board affirmed the ALJ's decision  and adopted his proposed order on July 28, 1994.  Alwin Mfg.  Co., 314 N.L.R.B. 564 (1994) (Alwin I), enforced, 78 F.3d 1159  (7th Cir. 1996).  The company resisted complying with the  order and the Board petitioned the Seventh Circuit for enforcement.  The court of appeals found that Alwin's arguments against enforcement were frivolous and enforced the  order.  NLRB v. Alwin Mfg. Co., 78 F.3d 1159, 1163 (7th Cir.  1996).2


8
As of Fall 1993, there had been a hearing on the ULP  charges but no decision, and Alwin continued to implement  the new vacation policies and production standards.  The  CBA was scheduled to expire on February 28, 1994.  In  December 1993, the parties began to negotiate over a new  CBA.  There were fourteen sessions held, with the final one  occurring on February 28, 1994.


9
The parties were far apart on a host of issues, including the  scope of the management rights clause, changes in vacation  policy, use of temporary workers, and wage and benefit  concessions.  However, the company's insistence on the retention of its unilaterally adopted production standards was  one of the primary issues on which the parties disagreed.Alwin had implemented hourly quotas for different jobs in the  plant, and failure to meet those quotas resulted in warnings,  temporary layoffs, and ultimately discharge.3  The company consistently took the position throughout the pre-strike negotiations that, although the process by which new standards  would be adopted might be negotiable, the standards which  were already in place were "proven" and not subject to  negotiation or challenge by the union.4


10
On February 28, 1994, Alwin gave the union its final offer. In that offer, the production standards in effect as of March  1, 1994, would not be subject to challenge or grievance. However, production standards instituted after that day could  be challenged and taken to an arbitrator.  The offer also  contained a $3 per hour pay cut and other changes which,  from the perspective of the union, were detrimental.  At that  meeting, the company also indicated it would rescind all  discipline, including discharge, for failure to comply with the  performance standards prior to March 1, 1994.


11
The union representative indicated that he thought this  offer would not be acceptable to the members of the union. The company's representative declared that they were at an  impasse, and that the company would implement its final  proposal the following day.  The union held a meeting that  same day so its members could consider the company's  proposal.  The union's chief negotiator went through the  company's final proposal with the union members.  Among  the issues he highlighted was the fact that, if the workers  accepted this offer, they would never be able to challenge the  production standards already in place, which had been responsible for dozens of grievances and seven discharges.


12
Following a discussion, the union voted 115-2 to reject the  offer and go on strike as of March 1, 1994.  The first day of  the strike, Alwin's president sent all striking employees a  letter urging them not to strike, and advising them that if  they did strike they were subject to permanent replacement,  with only a preference for future hiring.  Six weeks into the  strike, Alwin sent letters to each of the striking workers who  had been discharged for failure to meet production standards, offering them $10,000 in exchange for a release of all claims  they might have against the company.  Three of the workers  accepted the offer.


13
On April 27, 1994, the ALJ issued his opinion in Alwin I,  finding that the unilateral institution of production standards  and changes in vacation policy were unfair labor practices. Around May 4, 1994, the company indicated that it was not  willing to compromise on any issues.  On July 28, 1994, the  Board adopted the ALJ's findings and proposed order requiring Alwin, inter alia, to rescind the production standards and  discipline issued under them.  Alwin took no steps to comply  with the remedial order.


14
On August 26, 1994, the parties met for a negotiation  session, which was also attended by a federal mediator.  The  company initially rejected a proposal to allow the union to  challenge the production standards that were in effect as of  March 1, 1994, and insisted it would not change the production standard policies it had implemented.  The company then  indicated that it would allow the union to perform a time study of the standards (based on the replacement workers),  and arbitrate their fairness.  The company made no suggestion that it had done or would do anything to comply with the  Board's remedial order.


15
On October 27, 1994, the striking workers made an unconditional offer to return.  Alwin indicated that it would recall  strikers as openings occurred, in order of seniority.  Two  senior workers were recalled, and then disciplined for failure  to meet production standards, with one being discharged and  the other receiving a discharge caution.  The ALJ found that  there was evidence of discrimination against the returning  strikers, including giving them the worst work and encouraging replacement workers to work harder so the company  could recall fewer strikers.


16
In a second proceeding, the Board found that the unremedied ULPs, i.e., the unilateral implementation of performance  standards and new vacation policy, contributed to the parties'  failure to reach an agreement.  Alwin Mfg. Co., 326 N.L.R.B.  No. 63 (August 27, 1998) (Alwin II).  As a result, the Board concluded that the parties did not reach a good-faith impasse,  and Alwin was not entitled to unilaterally impose its final  offer.  The Board also concluded that the employees' strike  was an unfair labor practice strike, and that the company had  committed additional violations of the Act, in treating the  workers as economic strikers subject to permanent replacement and in bypassing the union to deal directly with employees.  Finally, the Board found that the company had engaged  in bad-faith conduct in negotiations with the union and in the  agency proceeding.  Thus, the Board ordered the company  not only to pay make-whole damages to the workers, but also  to pay the union's costs of negotiating, striking, and litigating  these issues, as well as the General Counsel's litigation costs.

II. Discussion

17
A. The Board's Conclusions that Alwin Violated the Act


18
Section 8(a)(5) of the Act makes it an unfair labor practice  for an employer to "refuse to bargain collectively with the  representatives of his employees."  29 U.S.C. § 158(a)(5).  It  is a violation of section 8(a)(5) for an employer to make  changes in terms and conditions of employment without either reaching an agreement with the union or bargaining in  good faith until impasse is reached.  See Litton Fin. Printing  Div. v. NLRB, 501 U.S. 190, 198 (1991);  NLRB v. Katz, 369  U.S. 736, 743 (1962);  Daily News v. NLRB, 73 F.3d 406, 41011 (D.C. Cir. 1996).  In this case, there is no question that the  changes in vacation policy and production standards unilaterally instituted during the prior collective bargaining agreement were unfair labor practices.  The central question is  whether the existence of those unfair labor practices had a  negative impact on the negotiations over a new CBA that  contributed to the deadlock.  If not, then Alwin may have  been entitled to implement its final offer at the end of  negotiations.  See American Fed'n of Television & Radio  Artists v. NLRB, 395 F.2d 622, 624 (D.C. Cir. 1968) (where  parties reach good-faith impasse, employer entitled to unilaterally institute terms reasonably comprehended within its  pre-impasse proposals);  see also NLRB v. Cauthorne, 691


19
F.2d 1023, 1025-26 (D.C. Cir. 1982) (no presumption that  existence of ULPs prevents the parties from reaching a valid  impasse).  On the other hand, if the existence of the unremedied ULPs did contribute to the lack of an agreement, then  there was no good-faith impasse.  Intermountain Rural Elec.  Ass'n v. NLRB, 984 F.2d 1562, 1569-70 (10th Cir. 1993);  J.D.  Lunsford Plumbing, 254 N.L.R.B. 1360, 1366 (1981), enforced  without opinion sub nom. Sheet Metal Workers, Local 9 v.  NLRB, 684 F.2d 1033 (D.C. Cir. 1982);  see also Wayne's  Dairy, 223 N.L.R.B. 260, 265 (1976) ("A party cannot parlay  an impasse resulting from its own misconduct into a license to  make unilateral changes.").5  If there was no good-faith impasse, Alwin was not entitled to make any changes in the  terms of employment, even after the prior CBA had expired. See Litton, 501 U.S. at 198;  Cauthorne, 691 F.2d at 1025.


20
Alwin's primary contention is that the Board did not consider whether the ULPs contributed to the deadlock, but  rather that the Board applied a per se rule that the existence  of the ULPs necessarily meant that good-faith bargaining  could not occur.  This argument, however, is entirely belied  by the record.  The Board specifically cited the ALJ's finding  that "the Respondent's insistence on maintaining these unlawful employment terms through the entire negotiating process  resulted in continued friction and disagreement at the bargaining table and ultimately was responsible, in material  part, for the breakdown in negotiations."  Alwin II, slip  opinion ("slip op.") at 3 (emphasis added);  see also id. at 44  (ALJ's analysis and conclusions) ("Since the breakdown in  negotiations, in material part, was a proximate result of the  Respondent's unyielding adherence to its unremedied unfair  labor practices, I find that the Respondent was not entitled to  declare impasse....").


21
Alwin points to one sentence in the Board's opinion and one  sentence in the ALJ's opinion to confirm its view that a per se  rule was applied in this case.  We find that neither of the  sentences suffices to establish that the Board used a per se  rule.


22
Near the beginning of its decision, the Board stated that it  was adopting the ALJ's finding that Alwin was not entitled to  implement its final contract proposal, adding "[i]n so doing,  we rely on the first rationale set forth in the judge's decision; i.e., no valid impasse had been reached ... because [Alwin]  had not remedied its prior unfair labor practices."  Alwin II,  slip op. at 1.  The Board then went on to state that it was not  relying on the ALJ's alternative ground for finding violations  of the Act, namely that Alwin engaged in surface bargaining. Id.


23
As already noted, the ALJ explicitly found, on the basis of  the factual record in the case, a causal connection between  the unilateral changes and the failure to reach an agreement. Had the Board said nothing more on the subject, we might  worry whether the Board's unfortunately abbreviated description of the ALJ's rationale does suggest a kind of per se  rule. However, that is not this case, for the ALJ himself did  not apply a per se rule, and other parts of the Board's  opinion, i.e., its description of the ALJ's finding that "insistence on maintaining the unlawfully implemented employment  terms ... was responsible, in material part, for the breakdown in negotiations," id. at 3, show that the Board understood that the ALJ's analysis rested securely on a finding  that the ULPs contributed to the deadlock.  Read in the  context of the full opinion then, the Board merely seems to be  using a shorthand description of the ALJ's invalid impasse  rationale up front to distinguish it from the ALJ's alternative,  and rejected, surface bargaining rationale.


24
Alwin's other indication in support of a per se rule is the  ALJ's statement that "until remedied, [the establishment of  production standards and changes to vacation policy] cannot  serve as valid grounds for deadlock during contract negotiations."  Alwin II, slip op. at 45.  It appears that the ALJ made this statement in the course of finding that Alwin  engaged in surface bargaining.  Since the Board declined to  adopt the ALJ's finding of surface bargaining, and explicitly  cited the separate finding of the ALJ that the existence of the  ULPs "was responsible, in material part, for the breakdown  in negotiations," this language is not in the end evidence that  the Board applied a per se rule at all.


25
Alwin makes a secondary argument that the Board erred in  finding that the existence of the ULPs contributed to the lack  of an agreement.  The Board's factual findings are conclusive  in this court if supported by substantial evidence on the  record considered as a whole.  29 U.S.C. § 160(e);  Universal  Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).  We find  that the Board's conclusion that the unremedied ULPs contributed to the parties' inability to reach an agreement is  supported by substantial evidence in the record.


26
It may not always be easy to distinguish between an  unremedied ULP which contributes to deadlock and one that  does not.  This is a quintessential question of fact which is  appropriately left to the Board to resolve in each case in light  of its expertise.  See American Fed'n of Television & Radio  Artists v. NLRB, 395 F.2d 622, 627 (D.C. Cir. 1968) ("In the  whole complex of industrial relations few issues are less  suited to appellate judicial appraisal than evaluation of bargaining processes or better suited to the expert experience of  [the Board].") (quoting Dallas Gen'l Drivers v. NLRB, 355  F.2d 842, 844-45 (D.C. Cir. 1966)).  There is certainly evidence in this record, however, to support the Board's conclusion in this case.


27
There are at least two ways in which an unremedied ULP  can contribute to the parties' inability to reach an agreement. First, a ULP can increase friction at the bargaining table. Second, by changing the status quo, a unilateral change may  move the baseline for negotiations and alter the parties'  expectations about what they can achieve, making it harder  for the parties to come to an agreement.  Evidence that both  of these things occurred is ample in this record.


28
The record evidence supports the ALJ's finding that the  ULPs increased friction at the bargaining table, which in turn  contributed to the parties' deadlock.  At one point, the union  representative told management that the unilateral changes  were reducing the trust between the parties, and that it  looked to the union as though the company would do whatever it wanted, regardless of the parties' agreement.  See Alwin  II, slip op. at 24;  Joint Appendix ("J.A.") at 1619-20.  At  another point, the union representative stated he was willing  to work on productivity standards, but the company was  "shafting" its employees.  Alwin II, slip op. at 22.  There was  testimony that there were 60-70 grievances pending, and  seven discharges, as a result of employees' inability to meet  the performance standards.  The existence of a large number  of grievances attributable to a ULP could be expected to  contribute tothe friction at the bargaining table.  See also id.  at 19 (management representative suggested that employee  who was discharged for failure to meet production standards  had not wanted to meet standards).6


29
Apart from the question of friction, however, there is also  evidence in the record that Alwin attempted to use the ULPs  to gain an advantage in the bargaining process.  As the ALJ  stated, one reason why Alwin was obligated to rescind its  unilateral changes was "to enable the Union, when required  to address these issues at the bargaining table, to negotiate  their every aspect, including initial implementation.  It was  not intended that the Union be reduced, as here, to picking  over the detail of accomplished facts only to the extent  permitted by [Alwin]...."  Alwin II, slip op. at 44.


30
There is ample evidence from which the Board could conclude that Alwin used the implementation of the production  standards to move the baseline for negotiations.7  Alwin consistently took the position that the production standards  which had been implemented unilaterally in September 1993  had been "proven" and were not subject to negotiation or the  grievance procedure.  By contrast, Alwin proposed that if it  wanted to establish a new production standard, that standard  would be subject to grievance when first implemented, and  that the union could take the issue to arbitration.8  There is  ample record evidence that the company treated the standards which were in place on February 28, 1994, not as  proposals for new standards, but as established standards not  subject to negotiation.9


31
Finally, the fact that the company made repeated efforts to  settle the pending grievances concerning production standards as part of the negotiations is also evidence that the  ULP made it harder for the parties to reach agreement. The company did not propose rescinding all disciplinary  actions, including discharge, until February 28, 1994.  If  Alwin had any doubts about whether the unilateral implementation of production standards constituted a ULP, and  wanted to encourage good-faith negotiations over those standards, a more appropriate path would have been to rescind  disciplinary actions, and probably the production standards, at the beginning of negotiations.10  See Porta-King Bldg Sys.  v. NLRB, 14 F.3d 1258, 1263 (9th Cir. 1994) ("An employer's  offer to bargain after unlawful, unilateral layoffs have occurred, and after an unfair labor practice charge has been  filed, does not satisfy its duty to bargain in good faith");  cf.  Storer Communications, Inc., 297 N.L.R.B. 296, 298 (1989)  (while a unilateral change does not necessarily preclude good faith negotiations, "there are circumstances where the nature  of an employer's unilateral change, unless rescinded, will  preclude post implementation good-faith bargaining").


32
Accordingly, we find the Board's conclusion that the parties' inability to reach an agreement was due in part to the  existence of the unremedied ULPs to be supported by substantial evidence on the record.  It follows that the parties  did not reach a good-faith impasse and Alwin was not entitled  to implement its final offer altering terms and conditions of  employment.  See Litton, 501 U.S. at 198;  Inter mountain,  984 F.2d at 1570;  Cauthorne, 691 F.2d at 1025.


33
In addition to finding that the parties failed to reach a  good-faith impasse, so that Alwin violated section 8(a)(5) when  it unilaterally implemented its final offer, the Board also  found that the employees' strike was an unfair labor practices  strike, so that the company violated section 8(a)(1) by replacing the striking workers, and otherwise treating them as  economic strikers.  See NLRB v. International Van Lines,  409 U.S. 48, 50-51 (1972) (economic strikers subject to permanent replacement;  unfair labor strikers generally entitled to  reinstatement).  A strike is an unfair labor practice strike "if  the employer's violations of the labor laws are a 'contributing  cause' of the strike."  General Indus. Employees Union, Local 42 v. NLRB, 951 F.2d 1308, 1311 (D.C. Cir. 1991).11


34
The Board concluded that the decision to strike was motivated, at least in part, by Alwin's "insistence to impasse on its  final offer, which included the two employment terms found  to be unlawfully implemented in Alwin I."  Alwin II, slip op.  at 1.  The Board also concluded that Alwin's unlawful behavior prolonged the strike.


35
Alwin contends that the terms of its last offer, which were  implemented after the impasse, were significantly different  from the employment terms which were unilaterally implemented two years earlier.  Alwin views the strike as a  rejection of the proposed concessionary contract, and argues  there is not substantial evidence to support a finding that the  strike was motivated in part by the prior unilateral implementation of the production standards.


36
Alwin's argument appears to be premised largely on the  idea that, because the company had made some concessions  on contract language concerning production standards, the  employment term implemented on March 1, 1994, as part of  Alwin's final offer, was not the same employment term that  existed on February 28, 1994, as an unfair labor practice. The reality is that the substance of the performance standards did not change on March 1, 1994.12  Thus, as long as  there is substantial evidence that Alwin's continued use of  production standards, and discipline issued pursuant to them,  contributed to the decision to strike, the Board was correct in  characterizing the strike as an unfair labor practices strike.


37
There is substantial evidence in the record to support the  Board's finding that the existence of the production standards  in part motivated the union members' decision to strike. There is no doubt that the production standards, as they were in effect on February 28, 1994, were one of the core issues in  the negotiations.  Before the union voted to reject the company's offer and go on strike, the union's chief negotiator  specifically pointed out that accepting the offer meant that  the union could not challenge any of the production standards  which had been implemented prior to March 1, 1994, and  which had already caused seven employees to lose their jobs. Giving up any possibility of changing those standards was a  major issue for the employees.  See J.A. at 442-43 (testimony  that inability to challenge standards was important because  workers "were scared to death because they didn't know if  they were going to be the next one on the chopping block").In addition, a striking worker told a local newspaper that one  of the reasons for the strike was the fact that Alwin was  discharging workers for failing to meet performance standards.  This evidence is sufficient to support the Board's  finding that the unilateral implementation of the production  standards was one of the motivating factors for the strike.


38
Alwin also objects to the Board's finding that the company  violated the Act in its treatment of striking workers Sheldon  Anderson and John Tilly, by not giving them their former  positions back immediately when they made an unconditional  offer to return, and by putting them on one of the most  difficult jobs and then disciplining them for failing to meet the  performance standards.  Alwin's objections to this finding are  largely dependent on its contentions that the impasse was  valid and the strike was economic.


39
Given our conclusion that it was a ULP to maintain the  performance standards after March 1, 1994, Alwin must  concede that the Board properly required it to rescind the  discipline issued under the performance standards.  See, e.g.,  NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346-47 (1953);Cauthorne, 691 F.2d at 1025.  Likewise, given our conclusion  that the Board was justified in finding that the strike was  motivated in part by the unfair labor practices, Alwin must  concede that Anderson and Tilly were entitled to return to  their former positions when they asked to do so, and not  when Alwin had need of them.  See International Van Lines,  409 U.S. at 50-51;  General Indus. Employees Union, Local  42 v. NLRB, 951 F.2d at 1311.  Although the issue is somewhat cumulative, we also note that there is substantial evidence in the record as a whole to support the Board's finding  that Alwin's treatment of Anderson and Tilly was due in part  to their participation in the strike.


40
We uphold the Board's other findings either because Alwin  did not challenge them, see International Union of Petroleum & Indus. Workers v. NLRB, 980 F.2d 774, 778 n.1 (D.C.  Cir. 1992), or because Alwin only challenged them on the  ground that they were dependent on a finding that the strike  was an unfair labor practices strike.  Accordingly, we conclude that all of the Board's findings are supported by  substantial evidence in the record.

B. Alwin's Objection to the Remedy

41
The Board endorsed the ALJ's finding that Alwin had  engaged in "egregious" conduct, and adopted the ALJ's proposed remedy requiring Alwin to reimburse the union for the  costs and expenses the union incurred in negotiating the new  CBA, in undertaking the strike, and in litigating Alwin II  before the Board.  The Board likewise required Alwin to  reimburse the General Counsel for his costs of litigating this  matter.  In this court, Alwin contends that the remedy is not  justified and is beyond the Board's authority.


42
The Board noted in its decision that Alwin had not excepted to the remedy, and thus would be barred from seeking  review of it in a court of appeals.  Nonetheless, the Board  discussed its rationale for the remedy and its authority for  ordering it.  The Board cited the ALJ's finding that Alwin's  conduct frustrated the bargaining process and depleted the  Union's resources, so that extraordinary remedies to restore  the status quo ante were warranted. The Board also found  that Alwin's bad faith in negotiations, by insisting on its  terms even after they were found to be unlawful in Alwin I,  and in litigating Alwin II, justified an award of litigation  costs to the union and the General Counsel.  In ordering  these remedies, the Board relied on section 10(c) of the Act  and its inherent authority to control its own proceedings.


43
Member Brame dissented from this portion of the Board's  decision, suggesting that an award of strike costs was unprecedented and insufficiently justified, and that Alwin did not  engage in "unusually aggravated misconduct" until the Board  decided Alwin I and the company still refused to change its  negotiating position significantly.  Thus, Member Brame indicated he would only award the union its costs for the August  1994 negotiating session.


44
Section 10(e) of the Act requires the Board to seek enforcement of its order in a court of appeals, but provides that "no  objection that has not been urged before the Board ... shall  be considered by the court, unless the failure or neglect to  urge such objection shall be excused because of extraordinary  circumstances."  29 U.S.C. § 160(e);  see also 29 C.F.R  § 102.46 (1998) (specifying how to except properly to an ALJ  decision).  The Supreme Court has indicated that section  10(e) bars review of any issue not presented to the Board,  even where the Board has discussed and decided the issue.A court of appeals altogether "lacks jurisdiction to review  objections that were not urged before the Board."  Woelke &  Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982)  (where Board raises issue sua sponte, aggrieved party must  seek reconsideration by Board before seeking judicial review);International Ladies' Garment Workers' Union v. Quality  Mfg. Co., 420 U.S. 276, 281 n.3 (1975) (same);  see also Local  900, IUE v. NLRB, 727 F.2d 1184, 1191 (D.C. Cir. 1984)  ("[T]he statute requires objection to the Board, and not  discussion by the Board, before an issue may be presented in  court.").


45
We find no extraordinary circumstances present here, so  the question is whether Alwin properly presented its objection to the remedy to the Board.13  Our cases suggest that the critical question in satisfying section 10(e) is whether the  Board received adequate notice of the basis for the objection. See Parsippany Hotel Management Co. v. NLRB, 99 F.3d  413, 417 (D.C. Cir. 1996) (ground for exception must be  evident if not explicit);  Consolidated Freightways v. NLRB,  669 F.2d 790, 793 (D.C. Cir. 1981) ("Cases interpreting section 10(e) look to whether a party's exceptions are sufficiently  specific to apprise the Board that an issue might be pursued  on appeal.").


46
Alwin's exceptions to the decision and order of the ALJ do  not mention the remedy proposed by the ALJ.  In the  introduction to its brief in support of exceptions, Alwin included the following language:


47
Despite the weight of record evidence to the contrary and applicable law inconsistent with the ALJ's Decision, the Judge incorrectly concluded that Respondent violated Sections 8(a)(1), (3), (4) and (5) of the Act.  As a result, the Judge proposed extraordinary and unduly burden-someremedies against Respondent.  It is from these findings and conclusions that Respondent excepts, offering the instant Brief in Support .


48
J. A. at 38.  In the remaining 48 pages of the brief, Alwin  does not mention the remedy.


49
This language clearly states that Alwin objects to the ALJ's  allegedly incorrect "findings and conclusions."  However, it  would be a strain to read that sentence as stating a separate  objection to the remedy, in the event the Board agreed with  the ALJ that Alwin violated the Act.  More importantly, even  if a separate objection to the remedy could be located in that  language, the language does not provide any hint as to the  basis for Alwin's objection to the remedy.


50
Where a party explicitly excepts to a remedy, and offers  some explanation for its objection in its brief, we have held  that there is sufficient notice to the Board to satisfy section  10(e).  See Capital Cleaning Contractors, Inc. v. NLRB, 147  F.3d 999, 1009 (D.C. Cir. 1998).  We have also held that an  exception to an issue can be sufficient to preserve an issue,  even without briefing, if the exception sufficiently highlights  the specific issue being contested.  See Davis Supermarkets,  Inc. v. NLRB, 2 F.3d 1162, 1174-75 (D.C. Cir. 1993).  Where,  however, a party excepts to the entire remedy, and provides  no indication of the basis for its objection, the exception alone  provides insufficient notice to the Board of the party's particular arguments to satisfy section 10(e).  See Quazite v.  NLRB, 87 F.3d 493, 497 (D.C. Cir. 1996).  It follows, a  fortiori, that where a passing objection to the remedy is made  in the introduction to a brief, and not in the exceptions, the  Board has not received sufficient notice of the party's arguments to satisfy section 10(e).14  Accordingly, we conclude  that we lack jurisdiction to consider Alwin's objections to the  Board's remedy.

III. Conclusion

51
We conclude that the Board properly considered the impact  Alwin's unfair labor practices had on the negotiations over a  new collective bargaining agreement, and there is sufficient  evidence in the record as a whole to support the Board's  findings and conclusions.  We hold that under 29 U.S.C.  § 160(e) we lack jurisdiction to hear Alwin's objection to the  Board's remedy.  Accordingly, we deny Alwin's petition for  review and grant the Board's cross-application for enforcement of its order.


52
So ordered.



Notes:


1
 In addition, the company would set a maximum of people who  could take vacation on any given day, and employees would only be  eligible to schedule on the "first come, first served" basis if they  had already made a financial commitment to the vacation when they  requested the time off.


2
 The Seventh Circuit also noted that the ULP charges should not  have been a surprise to Alwin, since "[f]ew topics are more central  to the relationship between an employer and its union-represented  employees than vacation policy and performance expectations."  78  F.3d at 1160.  The court of appeals subsequently awarded the  Board double costs pursuant to Rule 38 of the Federal Rules of  Appellate Procedure.


3
 There was testimony before the ALJ that by February 28, 1994,  there were 60-70 grievances pending on production standards and  seven employees had been discharged for failure to meet the  standards.


4
 The company maintained this position consistently until August  26, 1994, over five months into the strike and a month after the  Board issued its decision in Alwin I.


5
 Although a valid impasse is described as a good-faith impasse, in  this context the question is not only the subjective good faith of the  parties, but also whether the employer's unilateral actions harmed  the negotiations, regardless of its subjective good faith.  See Katz,  369 U.S. at 747;  Intermountain, 984 F.2d at 1570.


6
 It is worth noting that historically, prior to 1992, the union and  Alwin had had a harmonious relationship.


7
 We focus only on the production standards for convenience. The changes in vacation policy could serve to illustrate a similar  point, if perhaps on a less critical issue in the negotiations.  But cf.  Intermountain, 984 F.2d at 1570 (unilateral change which is not a  major subject of bargaining can still harm bargaining process so as  to prevent a good faith impasse).


8
 During negotiations, the union expressed concern about limiting  the time to grieve standards, but did not reject the idea of arbitrating performance standards.


9
 In August 1994, the company did propose allowing the union to  challenge all production standards.  At that point, however, the  Board had issued its opinion in Alwin I, ordering Alwin to rescind  the production standards.  In light of Alwin's failure to indicate at  that session that it would take any steps to comply with the Board's  order, it is hardly evidence of good-faith negotiation that it offered  to let the union go to arbitration on those standards.  Cf. Alwin II,  slip op. at 5-6 (Member Brame, dissenting in part from Board's  order, finding that Alwin engaged in "unusually aggravated misconduct" when it failed to alter materially its bargaining position after  the Alwin I decision).


10
 Rescinding the production standards for the period dating from  December 1993 until February 1994 would not have prevented the  parties from litigating a ULP charge based on the unilateral  implementation of the standards in September 1992, although it  could have affected the remedy to which the union would be  entitled.  See Cauthorne, 691 F.2d at 1026 (ongoing liability for  ULP ends when parties reach agreement or good-faith impasse).


11
 An economic strike can also be converted to an unfair labor  practice strike if the strike is prolonged by the employer's later,  unlawful conduct.  General Indus. Employees Union, Local 42, 951  F.2d at 1311.


12
 There was testimony that the most controversial performance  standard, for the drive roller job, did not change from when it was  unilaterally implemented in 1992 until at least December 1994.


13
 We could review the remedy if we believed it was "patently in  excess of [the Board's] authority."  Detroit Edison Co. v. NLRB,  440 U.S. 301, 311 n.10 (1979);  see also NLRB v. Cheney California  Lumber Co., 327 U.S. 385, 388 (1946);  Local 900, IUE, 727 F.2d at  1191 n.5.  Without deciding whether the Board has authority to  award strike-related costs under section 10(c) and litigation costs  under its inherent authority, we do not find this order to be  obviously ultra vires.  See Unbelievable, Inc. v. NLRB, 118 F.3d 795, 799 (D.C. Cir. 1997) (Board has authority to order compensation for negotiation expenses if traditional remedies not sufficient to  eliminate effects of aggravated misconduct);  id. at 800 n.* (declining to decide whether Board has inherent authority to order  payment of litigation expenses under "bad faith" exception to the  American Rule).


14
 We also note that the failure to except specifically to the  remedy constitutes waiver of the issue under the Board's regulations.  See 29 C.F.R. § 102.46(b)(2) (1998).


