 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT




Argued January 17, 2012              Decided March 2, 2012

                       No. 10-1406

                     COMAU, INC.,
                      PETITIONER

                            v.

           NATIONAL LABOR RELATIONS BOARD,
                     RESPONDENT


              Consolidated with No. 10-1409


                On Petition for Review and
            Cross-Application for Enforcement
     of an Order of the National Labor Relations Board


    Thomas G. Kienbaum argued the cause for the petitioner.
Theodore R. Opperwall and Noel D. Massie were on brief.
    David Seid, Attorney, National Labor Relations Board,
argued the cause for the respondent. John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Ruth E. Burdick, Supervisory Attorney,
were on brief.
    Before: HENDERSON, TATEL and GARLAND, Circuit
Judges.
                                 2
    Opinion for the Court filed by Circuit Judge HENDERSON.
     KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner
Comau, Inc. (Comau) seeks review of a decision of the
National Labor Relations Board (NLRB, Board) affirming the
finding of an administrative law judge (ALJ) that Comau
committed an unfair labor practice (ULP) in violation of
section 8(a)(1) and (5) of the National Labor Relations Act
(Act), 29 U.S.C. § 158(a)(1), (5). See Comau, Inc., 356
N.L.R.B. No. 21, 2010 WL 4622509 (Nov. 5, 2010). The
Board filed a cross-application for enforcement. For the
reasons set forth below, we grant Comau’s petition and vacate
the Board’s finding that Comau committed a ULP by
unilaterally changing its employees’ healthcare benefits.
                               I.
     Headquartered outside Detroit, Michigan, Comau designs
and builds automated assembly lines and specialty tools for
the automobile industry. 1 Over 200 of Comau’s employees
are represented by the Automated Systems Workers Local
1123 (Union, ASW). 2 The most recent collective bargaining
agreement between Comau and the Union ran from March 7,
2005 through March 2, 2008. On the expiration date, the
parties had not reached a new agreement but they agreed to
extend the former contract’s terms indefinitely until a
successor contract was agreed to. The extension was
terminable on 14 days’ written notice by either party.
    Between January 2008 and December 2008, Comau and

1
     Unless otherwise noted, all facts are taken from the ALJ’s
decision.
2
     At the time the Union filed the underlying charge in this case,
it was affiliated with the Michigan Regional Council of Carpenters,
a unit of the United Brotherhood of Carpenters and Joiners of
America.
                                3
the Union held more than twenty negotiating sessions over a
new collective bargaining agreement.         Comau General
Counsel Edward Plawecki and Director of Labor Relations
Fred Begle were Comau’s chief negotiators; Peter Reuter was
the Union’s chief negotiator. Early in the negotiations,
Comau stated that it intended to seek economic concessions
from the Union and that any new agreement must either be
cost-neutral or reduce Comau’s costs. In particular, Comau
hoped to reduce its healthcare costs 3 by switching Union
members from a fully paid healthcare plan under which Union
members paid no healthcare costs (Old Plan) to the healthcare
plan Comau used for non-unionized workers under which
workers paid monthly premiums (Company Plan). Comau
wanted a uniform healthcare plan for all of its employees and
it reached agreements with two other unions representing
Comau employees to use the Company Plan. Tr. of Hearing
at 318-19, Comau, Inc., Case No. 7-CA-52106 (NLRB Nov.
17, 2009) (ALJ) (Hearing Transcript).
    The healthcare issue became a sticking point between
Comau and the ASW. In August 2008, the Union offered to
insure Union members through a Union sponsored plan
(Union Plan). 4 Under the Union Plan, Union members would
pay no premiums and Comau would pay a monthly
per-employee contribution for each ASW member enrolled in
the Union Plan. The ASW hoped that the Union Plan would
allow Comau to reduce its healthcare costs without requiring
ASW members to pay premiums. Comau was receptive to the
Union Plan proposal but insisted on a reduction in Comau’s
healthcare costs as compared to its costs under the Old Plan.

3
    Comau’s healthcare costs included providing benefits for
hospitalization, medical treatment, dental care and vision care.
4
     Blue Cross/Blue Shield was the insurance carrier for all three
plans—the Old Plan, the Company Plan and the Union Plan.
                                4
      One of the cost issues of the Union Plan proposal
involved who would pay so-called “trailing” or “trailer” costs
associated with changing from the Old Plan to the Union
Plan. The Old Plan was a self-insured healthcare plan under
which Comau paid for each claim as it arose. That is, instead
of paying its insurance carrier a fixed monthly premium, it
paid the insurance carrier the cost of healthcare services it in
fact incurred. Under the Union Plan, Comau would instead
make fixed monthly contributions. If Comau transferred
Union members to the Union Plan, Comau would continue to
pay claims for healthcare services provided to Union
members under the Old Plan for approximately three to six
months after the transfer due to the lag time between when the
claim arose and when the insurance carrier sought payment.
Thus, during this period, Comau would continue to pay the
monthly per-employee contribution to the Union Plan and pay
claims under the Old Plan. The latter payments are the
trailing or trailer costs.
      After failing to reach an agreement on healthcare benefits
and other issues, Comau declared impasse on December 3,
2008, and gave notice that same day to the Union and
separately to Union members that it intended to terminate the
extension of the former collective bargaining agreement and
implement its last best offer on December 22, 2008. Comau’s
last best offer expressly stated that its implementation date
was December 22, 2008, and the Company Plan was part of
its terms. 5 Between December 22, 2008 and March 1, 2009,
Comau, in consultation with and with assistance from the
Union, took various steps necessary to roll out the Company
5
      In a two-page letter circulated to Union members on December
8, 2008, Comau detailed the changes it was implementing as part of
its last best offer and noted that the transfer to the Company Plan
would be “effective March 1 of 2009.” Letter from Management to
ASW Employees at 1 (Dec. 8, 2008).
                              5
Plan, including educating Union members about the
enrollment options under the Company Plan, enrolling Union
members and arranging for the appropriate payroll
deductions.
     On the same day it declared impasse, Comau “notifie[d]
the Union that it [was] prepared to continue negotiations in
order to agree upon and reach a successor [collective
bargaining agreement].” Notice of Imposition of Last Best
Offer (Dec. 3, 2008). Comau and the Union resumed
negotiations on December 8, 2008. Between December 8 and
March 1, 2009, the parties met approximately ten times,
generally with subcommittees focused on the healthcare
benefits issue. The meetings involved primarily the amount
Comau would contribute per employee to the proposed Union
Plan. Over the course of these meetings, the parties grew
closer on Comau’s per-employee contribution and, on
February 20, 2009, the Union presented a proposal that
matched Comau’s proposed contribution amount of $835.
The agreement on Comau’s per-employee contribution did
not resolve all differences between the parties regarding
healthcare benefits, however, and the parties remained
divided over whether to break down the contribution amount
into different categories depending on an employee’s family
size, how to adjust Comau’s contribution amount if healthcare
costs increased and the duration of the agreement.
     As set forth in Comau’s last best offer, the Company Plan
went into effect on March 1. Nevertheless, on March 20, the
full bargaining committees of both parties met as they had yet
to agree on a new collective bargaining agreement. At the
meeting, Comau proposed that the Union pay all trailing costs
associated with transitioning to the proposed Union Plan.
Shortly after Comau made its proposal, the parties adjourned
the meeting and held no further negotiating sessions.
    Earlier, on March 5, the Union filed its first ULP charge
                                 6
resulting from Comau’s unilateral implementation of its last
best offer. In a subsequent amendment, the Union amplified
its charge, 6 alleging that on “[a]bout December 22, 2008,
[Comau] unilaterally changed employees’ terms and
conditions of employment by implementing its ‘last best
offer,’ without having reached good-faith impasse.”
Amended Charge Against Employer, Case No. 7-CA-51886
(NLRB Mar. 24, 2009). After an investigation, the Board’s
Regional Director dismissed the charges.       The Union
appealed the dismissal. On August 31, 2009, the Board
General Counsel (General Counsel) denied the appeal, stating
that:
     Regarding the Employer’s December 22, 2008
     implementation of terms and conditions of
     employment for unit employees represented by the
     Union, the evidence established that the parties were
     at a lawful impasse when the implementation
     occurred.
Letter from Ronald Meisburg, General Counsel, NLRB, to
Edward J. Pasternak (Aug. 31, 2009) (General Counsel
Letter).
     On May 19, 2009, the Union filed the ULP charge
against Comau that underlies this case. The second charge
originally alleged only that Comau had bargained in bad faith
by having proposed on March 20 that the Union pay trailing
costs, failed to provide requested financial information and
refused the Union’s request to continue negotiations. It made
no mention of Comau’s implementation of the Company Plan.

6
     In its original charge, the Union alleged that Comau “violated
[section] 8(a)(5) of the Act by unilaterally implementing changes in
termination procedures, health benefits and other terms and
conditions of employment prior to impasse.” Charge Against
Employer, Case No. 7-CA-51886 (NLRB Mar. 5, 2009).
                                  7
On July 28, 2009, however, the Union amended the second
charge to include the allegation that Comau “bargained in bad
faith by . . . [u]nilaterally implementing a new health
insurance plan about March 1, 2009, in the absence of bona
fide bargaining impasse.”         Amended Charge Against
Employer, Case No. 7-CA-52016 (NLRB July 28, 2009). The
Regional Director filed a complaint against Comau based on
the ASW’s second ULP charge, including its allegation
regarding the implementation of the Company Plan.
     After conducting a hearing, an ALJ concluded that
Comau’s unilateral implementation of the Company Plan
constituted an unfair labor practice in violation of section
8(a)(1) and (5) of the NLRA. 7 See Comau, Inc., 2010 WL
3285364 (NLRB May 20, 2010) (ALJ). In reaching his
conclusion, the ALJ determined that Comau implemented the
Company Plan on March 1, 2009 and that no impasse existed
on that date. The Board affirmed, adopting the ALJ’s rulings,
findings and order with minor exceptions not relevant here.
See Comau, 356 N.L.R.B. No. 21, 1 & n.5. Comau timely
filed a petition for review and the Board filed a cross-
application for enforcement.
                                II.
     “[Our] review of NLRB decisions is deferential” and we
will vacate a Board decision “only if the Board’s factual
findings are not supported by substantial evidence, or the
Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case.” Pirlott v. NLRB, 522
F.3d 423, 432 (D.C. Cir. 2008) (internal quotation marks and

7
     The ALJ dismissed the charges that Comau had engaged in
unfair bargaining by proposing that the Union pay trailing costs and
by failing to grant its healthcare subcommittee the authority to enter
into a binding agreement. The Board left the dismissal intact and
those charges are not before us.
                                  8
citation omitted). “The Board cannot ‘ignore its own relevant
precedent but must explain why it is not controlling.’ ”
Manhattan Ctr. Studios, Inc. v. NLRB, 452 F.3d 813, 816
(D.C. Cir. 2006) (quoting B B & L, Inc. v. NLRB, 52 F.3d 366,
369 (D.C. Cir. 1995)). “Where an agency departs from
established precedent without a reasoned explanation, its
decision will be vacated as arbitrary and capricious.” Pirlott,
522 F.3d at 432 (internal quotation marks and citation
omitted).
     The Board concluded that Comau violated section 8(a)(5)
and (1) of the Act by unilaterally implementing the Company
Plan on March 1, 2009, at which time Comau and the Union
were not at impasse. 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.” 8 29
U.S.C. § 158(a)(5). An employer violates its duty under
section 8(a)(5) to bargain collectively with the representative
of its employees “if, absent a final agreement or a bargaining
impasse, he unilaterally imposes changes in the terms and
conditions of employment.” 9 TruServ Corp. v. NLRB, 254
F.3d 1105, 1113 (D.C. Cir. 2001).
     If parties reach a bargaining impasse, however, “an

8
     Mandatory areas of collective bargaining include “wages,
hours, and other terms and conditions of employment.” 29 U.S.C.
§ 158(d). Comau acknowledges that the healthcare benefits at issue
are a mandatory area of collective bargaining under the Act. See
Comau, 356 N.L.R.B. No. 21, 8 n.18.
9
     Section 8(a)(1) prohibits an employer from “ ‘interfer[ing]
with, restrain[ing], or coerc[ing] employees in the exercise’ of their
statutory right to bargain collectively.” S. Nuclear Operating Co. v.
NLRB, 524 F.3d 1350, 1356 n.6 (D.C. Cir. 2008) (quoting 29
U.S.C. § 158(a)(1)) (brackets added). “A violation of [s]ection
8(a)(5) is also a violation of [s]ection 8(a)(1).” Id.
                                 9
employer does not violate the [Act] by making unilateral
changes that are reasonably comprehended within his pre-
impasse proposals.” 10 Serramonte Oldsmobile, Inc. v. NLRB,
86 F.3d 227, 232 (D.C. Cir. 1996) (quoting Am. Fed’n of
Television & Radio Artists v. NLRB, 395 F.2d 622, 624 (D.C.
Cir. 1968)). “The rationale for this rule is that the employer’s
unilateral imposition of the final offer breaks the impasse and
therefore encourages future collective bargaining. It moves
the process forward by giving one party, the employer,
economic leverage.” 11 Mail Contractors of Am. v. NLRB, 514
F.3d 27, 32 (D.C. Cir. 2008) (internal quotation marks and
citation omitted). An impasse must exist at the time an
employer implements a unilateral change. See Richmond
Elec. Servs., 348 N.L.R.B. 1001, 1004 (2006) (“if the Union
broke the bargaining impasse after [the employer declared
impasse],” employer’s subsequent “unilateral implementation
of its bargaining proposals would have been unlawful”); Jano
Graphics Inc., 339 N.L.R.B. 251, 251 (2003) (unilateral
change violates section 8(a)(5) and (1) unless “there was . . .
impasse on . . . the date of . . . unilateral implementation”).
    The issue here is not whether an impasse existed: the
Board does not dispute that an impasse existed on December


10
     “A bargaining impasse . . . occurs when good faith
negotiations have exhausted the prospects of concluding an
agreement” and “the parties . . . have reached that point of time in
negotiations when [they] are warranted in assuming that further
bargaining would be futile.” TruServ Corp., 254 F.3d at 1114
(internal quotation marks and citation omitted).
11
      Once an employer unilaterally implements changes after
reaching impasse, the changes “become terms and conditions of
employment that the employer may not unilaterally change without
first bargaining with the union to impasse.” Cox Ohio Publishing,
354 N.L.R.B. No. 32, 3 (June 5, 2009).
                              10
22, 2008, 12 and Comau does not contest the Board’s finding
that no impasse existed on March 1, 2009. Instead, the issue
is the date on which Comau unilaterally implemented the
Company Plan: on December 22—when an impasse existed—
or on March 1—when no impasse existed. We think it is
clear that Comau implemented its last best offer on December
22. In notices dated December 3, 2008, Comau announced to
the Union and to the Union members its decision to
implement its last best offer on December 22. It informed the
Union that “[Comau] shall impose its last best offer effective
at 12:02 a.m. on December 22, 2008,” Notice of Imposition of
Last Best Offer (Dec. 3, 2008), and it also informed ASW
members that “[e]ffective at 12:02 a.m. on December 22,
2008, the terms and conditions [of the last best offer] will be
imposed and will be part of the terms and conditions under
which you work,” Notice to ASW-Represented Employees
(Dec. 3, 2008). Moreover, the copy of the last best offer that
Comau provided the Union and its members expressly recited
that the offer’s “Implementation Date” was “December 22,
2008.” 13 Imposed Last Best Offer, Automated Systems
Workers (ASW) (Dec. 3, 2008) (Imposed Last Best Offer).
    The Company Plan was also unquestionably one of the
terms and conditions implemented pursuant to Comau’s last
best offer. Article 10 of the offer specifically addressed
“Hospitalization, Medical, Dental, and Vision Care” and it
12
     In explaining his rejection of the Union’s first ULP charge
against Comau, the General Counsel stated that “the evidence
established that the parties were at a lawful impasse when the
implementation occurred [on December 22, 2008].” General
Counsel Letter.
13
    Regarding the Union’s first ULP charge filed on March 5, the
General Counsel had likewise noted Comau’s “December 22, 2008
implementation of terms and conditions of employment for [ASW
members].” General Counsel Letter.
                             11
provided details about the Company Plan such as premium
amounts and available coverage for dependents. Imposed
Last Best Offer at 21-28. Article 10.09 was entitled “Blue
Cross Medical Coverage Plans (Effective March 1, 2009)”
and it provided that “[a]ll regular full time ASW employees
who have been with [Comau] ninety (90) days or more will be
eligible to elect medical coverage under the plans [available
pursuant to Company Plan].” Id. at 23-24.
     In its notice to ASW members dated December 8, Comau
informed them that, while some changes in its last best offer
were “effective December 22, 2008,” “the effective date of
[the] change [to the Company Plan] will be March 1 of 2009.”
Letter from Management to ASW Employees at 1 (Dec. 8,
2008). Despite the different “effective” dates, Comau was
clear that the changes were “being implemented” as part of its
last best offer, which, as noted above, expressly provided for
implementation on December 22, 2008. Id. The different
“effective” dates merely reflected the fact that the mechanics
of transferring ASW members from the Old Plan to the
Company Plan required extensive preparation. As the ALJ
found, between December 2008 and March 1, 2009, Comau
was required to take “a number of steps to make it possible to
switch the unit employees from [the Old Plan] to the
[Company Plan].” See Comau, 356 N.L.R.B. No. 21, 4.
Despite the required additional steps and the parties’
continued negotiations after December 22, Comau was
explicit that it was implementing the Company Plan—along
with the other terms contained in its last best offer—on
December 22.         Even Peter Reuter, the Union’s chief
negotiator, recognized that the required delay in the Company
Plan’s effective date did not alter the implementation date of
the change. At the hearing before the ALJ, he testified that
because “the health insurance changes contained in Comau’s
12/22/08 implemented offer had an effective date of 3/1/09,”
Comau and the Union continued bargaining on healthcare
                               12
changes “between implementation and 3/1/09.”            Hearing
Transcript at 193-94.
     Based on these facts, we conclude that the change to the
Company Plan was “reasonably comprehended” in Comau’s
last best offer and that Comau unilaterally implemented the
offer—including the change to the Company Plan—on
December 22, 2008. See Brooks Bros., 261 N.L.R.B. 876,
881-83 (1982) (employer “implement[ed] . . . a program of
dental insurance immediately before [a] November 21 [union]
election” even though program was not “effective [until]
January 1”); cf. NLRB v. Plainville Ready Mix Concrete Co.,
44 F.3d 1320, 1333-34 & n.11 (6th Cir. 1995) (if employer
presents negotiating proposal “as a comprehensive, integrated
whole,” it is “reasonably comprehended” proposal “[will] be
implemented in its entirety”) (internal quotation marks
omitted). Accordingly, the Board’s finding that Comau
committed a ULP when it unilaterally implemented the
Company Plan was “arbitrary and capricious” because all
parties agree that Comau and the Union were at impasse on
December 22. Mail Contractors of Am., 514 F.3d at 34-36
(Board’s finding that employer committed ULP by
unilaterally implementing change after impasse “was arbitrary
and capricious”). “[A]n employer does not violate the [Act]
by making unilateral changes that are reasonably
comprehended within his pre-impasse proposals” once the
parties reach impasse. Serramonte Oldsmobile, 86 F.3d at
232; see also Cox Ohio Publishing, 354 N.L.R.B. No. 32, 3
(“It is well settled that after bargaining to an impasse . . . an
employer does not violate the Act by making unilateral
changes that are reasonably comprehended within his pre-
impasse proposals.” (internal quotation marks and citation
omitted; ellipsis in original)).
     The Board’s contrary conclusion results from its finding
that Comau did not “implement” the Company Plan until it
                              13
“became effective” on March 1, 2009. The Board adopted the
ALJ’s reasoning, including his “point of no return”
phraseology that “[a] change in terms of employment cannot
reasonably be viewed as ‘implemented’ for unit employees at
a time when that change is not being applied to a single one of
those employees and the employer has not passed a ‘point of
no return’ committing it to making the change at all.”
Comau, 356 N.L.R.B. No. 21, 10. According to the ALJ,
“what [Comau] did in December 2008 regarding healthcare
amounted to an announcement of intent to implement the
[Company] [P]lan on March 1—not the implementation of
such a plan.” Id. The Board takes the same position before
us. See Respondent’s Br. 29. Earlier Board decisions,
however, recognize that an employer can implement a change
in employment terms and conditions before the change is
effective or otherwise “being applied to a single one of [its]
employees.” See ABC Auto. Prods., Corp., 307 N.L.R.B. 248,
249-50 (1992) (“the unilateral change was effectively
implemented when it was announced” even though
announcement occurred four days before change became
effective); Brooks Bros., 261 N.L.R.B. at 881-83; cf. Daily
News of L.A., 315 N.L.R.B. 1236, 1237-38 (1994)
(“[W]henever the employer by promises or by a course of
conduct has made a particular benefit part of the established
wage or compensation system, then he is not at liberty
unilaterally to change this benefit either for better or worse
during . . . the period of collective bargaining.” (emphasis
added)).
     The ALJ, whose reasoning and supporting authority the
Board adopted without amplification, relied on two cases—
Bryant & Stratton Business Institute, 327 N.L.R.B. 1135
(1999), and PRC Recording Co., 280 N.L.R.B. 615 (1986)—
to support his “point of no return” theory but neither does so.
In PRC Recording Co., the Board found that assuming
arguendo an impasse existed, it was “instantaneously broken
                                 14
by the continuation of further bargaining” and therefore did
not justify the employer’s “initiation” of a change that it kept
secret both from the union and from its employees. 280
N.L.R.B. at 640 (emphasis added). In Bryant & Stratton, the
ALJ concluded that an employer “stat[ing] that it ‘intends’ to
implement [a change]” at a future date is different from the
employer “say[ing] that the [change] was implemented
immediately.” 327 N.L.R.B. at 1149 (emphasis added).
Neither case suggests that a unilateral change can be
“implemented” only when it becomes “effective.” And,
importantly, neither suggests that a change not entirely
effective on implementation must pass through stages of
implementation until it reaches a stage of irreversibility before
the Board will sanction it. And as the Board’s counsel
conceded at oral argument, “no . . . specific case” supports the
ALJ’s “point of no return” articulation. See Oral Argument
Tr. at 24-25. 14
     Moreover, the Board’s application of the “point of no
return” test would lead to an arbitrary outcome at odds with
the purpose of the Act. For example, as Comau points out, if
an employer implemented a last best offer providing for wage
increases at set future intervals, the “point of no return”
analysis, carried to its logical conclusion, would suggest that
the employer could later rescind the promised wage increases
if bargaining resumed in the interim. After all, wage
increases due to take place in the future are no more “past the
point of no return” than a new health insurance plan set to
take effect at some future date.

14
     Indeed, once implementation is announced, imposing a “point
of no return” condition could undermine the purpose of impasse by
negating the employer’s “economic leverage” during the time
needed to effect the change and thus inhibit its ability to “break[]
the impasse and . . . encourage[] future collective bargaining.” Mail
Contractors of Am., 514 F.3d at 31-32.
                               15
     The ALJ, however, attempted to distinguish the two
situations but we find his reasoning wholly unpersuasive. He
cited Daily News to support his proposition that “if [an]
employer has implemented [a] new wage plan” under which
“raises . . . will not be triggered until later dates,” “it has
passed the point of no return and cannot simply choose to
ignore its obligation to provide the raises when the triggering
dates arrive.” Comau, 356 N.L.R.B. No. 21, 10 n.21
(emphasis added). The ALJ is of course correct that if an
employer implements such a plan, it cannot withhold future
pay raises. But he assumes the answer to the underlying
question at the heart of this case: namely, when does an
employer implement a change? If a change is considered
implemented only when it becomes effective, then promised
wage increases would never be safe from future rescission—a
result the ALJ refused to countenance. If, on the other hand,
the new wage plan can be considered “implemented” even if
specific pay raises “will not be triggered” until some future
date, id., then there is no reason for treating the Company
Plan at issue in this case any differently. In other words, the
ALJ’s own reasoning with respect to the wage-plan
hypothetical compels the conclusion that Comau’s healthcare
plan was fully “implemented” on December 22, 2008,
nothwithstanding the later “triggering date[]” for its specific
healthcare changes. Id.
     For the foregoing reasons, we grant Comau’s petition for
review and deny the Board’s cross-application for
enforcement. 15
                                                     So ordered.


15
     Given our decision, we do not reach Comau’s other claims
regarding the binding effect of the General Counsel’s findings and
the scope of the Board’s remedy.
