In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
Nos. 22-2674 & 23-3172
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150,
AFL-CIO,
                             Petitioner, Cross-Respondent,

                                 v.

NATIONAL LABOR RELATIONS BOARD,
                             Respondent, Cross-Petitioner,

                                and

TROY GROVE and VERMILION QUARRY,
                                          Intervening Respondents.
                     ____________________

Petition for Review and Cross-Application for Enforcement of an Order
                 of the National Labor Relations Board.
   Nos. 25-CA-234477, 25-CA-242081, 25-CA-244883, 25-CA-246978.
                     ____________________

Nos. 23-1014 & 23-3172
TROY GROVE and VERMILION QUARRY,
                           Petitioners, Cross-Respondents,

                                 v.
2                               Nos. 22-2674, 23-1014, & 23-3172

NATIONAL LABOR RELATIONS BOARD,
                             Respondent, Cross-Appellant,

                                and

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150,
AFL-CIO,
                                 Intervening Respondent.
                ____________________

Petition for Review and Cross-Application for Enforcement of an Order
                 of the National Labor Relations Board.
   Nos. 25-CA-234477, 25-CA-242081, 25-CA-244883, 25-CA-246978.
                     ____________________

       ARGUED MAY 15, 2024 — DECIDED JULY 23, 2024
                ____________________

    Before BRENNAN, KIRSCH, and LEE, Circuit Judges.
    BRENNAN, Circuit Judge. In early 2018, employees repre-
sented by the International Union of Operating Engineers, Lo-
cal 150, went on strike at two quarries. During that strike, the
mining company operating those quarries, RiverStone Group,
Inc., disciplined and discharged a union member, required
another union member to sign a hiring list when he wanted
to return to work, changed a company policy unilaterally, and
removed picket signs. Local 150 believed these actions were
unfair labor practices in violation of the National Labor Rela-
tions Act. So, Local 150 filed charges with the National Labor
Relations Board. The Board issued a complaint against River-
Stone. An administrative law judge ruled that RiverStone
Nos. 22-2674, 23-1014, & 23-3172                                       3

violated the Act as charged. RiverStone appealed to the
Board, and the Board affirmed the ALJ’s decision in part.
   Local 150 and RiverStone ask us to review the Board’s final
decision and order. The Board requests that we enforce its or-
der in full. After review of the administrative record and con-
sideration of the parties’ arguments, we see no error in the
Board’s order. Substantial evidence and applicable labor law
support the Board’s order, so we deny the petitions for review
and grant the Board’s cross-application for enforcement.
                                    I
                                   A
    RiverStone Group, Inc. is a mining corporation that oper-
ates the Troy Grove and Vermillion Quarries, located in north
central Illinois. The International Union of Operating Engi-
neers, Local 150 (“the union” or “Local 150”) represents a bar-
gaining unit of employees who work at both quarries. In May
2016, the collective bargaining agreement between RiverStone
and Local 150 expired. Nearly two years later, Local 150
elected to strike. 1 Local 150 asserts that Riverstone employed
unfair labor practices during the strike, and this case arises
from the National Labor Relations Board’s resolution of those
claims. The union’s allegations concern actions involving in-
dividual employees and decisions affecting the entire bar-
gaining unit. We review those four sets of allegations now.
    Matt Kelly’s Disciplinary Issues, Investigatory Interview, and
Discharge. After Local 150 voted to strike, RiverStone hired re-
placement workers, including Matt Kelly. From when he
started work in May 2018 to his discharge on August 14, 2019,

   1 After nearly five years, the strike ended on February 22, 2023.
4                                Nos. 22-2674, 23-1014, & 23-3172

Kelly committed multiple disciplinary infractions. RiverStone
uses a progressive disciplinary policy for its employees. That
policy defines four infraction types: safety, performance, at-
tendance, and conduct. Safety and conduct violations escalate
in three steps: a written warning, a final warning or suspen-
sion, and then termination. For performance and attendance
infractions, employees receive an additional, initial warning.
Attendance violations are tracked over a twelve-month pe-
riod. And RiverStone prohibits the use of cell phones in areas
outside of workshop or office areas unless there is an emer-
gency.
   Kelly’s disciplinary issues began one year into his employ-
ment on May 2, 2019, when he reported sixteen minutes late
to work at the Vermillion Quarry. Scott Skerston, the Quarry’s
superintendent, issued Kelly a written warning dated May 6.2
On that day, Kelly revealed his union membership when he
wore a Local 150 t-shirt to work. Kelly and Skerston spoke
about the former’s union membership, and Kelly told Sker-
ston he would be quitting his job on May 9.
    On May 7, Skerston observed Kelly recording a video on
his cell phone while driving a company truck. Skerston wrote
a safety infraction warning and discussed the violation with
Kelly. That same day, Skerston wrote Kelly up again, this time
for entering the workshop five times while he was supposed
to be in the quarry pit and for deficient performance.
    The following day, Kelly committed his second attendance
infraction when he punched in for work thirty minutes late.




    2 Kelly acknowledges the incident occurred on May 2, 2019.
Nos. 22-2674, 23-1014, & 23-3172                              5

Skerston wrote up a warning and discussed the infraction
with Kelly.
    On May 9, Skerston wrote up Kelly a fifth time, this time
for dragging a portable welder across the ground. Because
this was Kelly’s second safety violation, Skerston issued a “fi-
nal” safety warning. In the employee signature line, Skerston
wrote that Kelly “quit today.” Kelly would later testify that
he did not sign any of these five written warnings because he
did not see them until August 7.
    Kelly quit on May 9, and he provided Skerston written no-
tice that he was going on strike to protest unfair labor prac-
tices. But Kelly’s strike did not last long. A few weeks later,
Kelly provided Skerston with his unconditional offer to re-
turn to work, and RiverStone reinstated him in early July.
    Upon his reinstatement, Kelly resumed committing infrac-
tions. On July 10, Skerston issued Kelly a final written warn-
ing for a third safety violation—working on a conveyor with-
out the proper safety equipment. This time, Kelly signed the
warning, though he later testified that he “didn’t see that it
was a final warning.” On August 7, Kelly arrived fifty-four
minutes after the start of his shift. This was his third attend-
ance infraction, so Skerston issued him a final written warn-
ing, though he did so without discussing it with Kelly. Kelly
refused to sign this notice, he testified, because “it said final
warning and I hadn’t received any other write-ups.” Then, on
August 14, just before 6 a.m., Kelly called Skerston and told
him his motorcycle had a flat tire, and his friend was taking
him home so he could drive his truck to work. Kelly did not
arrive at the Vermillion Quarry until 11:30 a.m., five-and-a-
half hours into his shift.
6                             Nos. 22-2674, 23-1014, & 23-3172

    Skerston summoned Kelly for a disciplinary interview.
Also present was Tom Becker, superintendent at the Troy
Grove Quarry. Kelly requested that Lyle Calkins, Local 150’s
steward, attend. Skerston declined Kelly’s request because
Calkins was 25 minutes away at the Troy Grove Quarry, “too
far away” in Skerston’s estimation. Instead, Skerston sug-
gested that Bob Gibson, another Vermillion Quarry employee,
join, though Gibson held no leadership position in Local 150.
Kelly agreed. But when Gibson arrived, he also asked for Cal-
kins to be there.
    Skerston and Becker interviewed Kelly without Calkins,
asking about Kelly’s tardiness. Skerston issued Kelly a notice
of suspension. Kelly signed the notice but then crossed out his
signature because he was not provided the previous warning
referred to in the notice. Later that day, Skerston sent Kelly a
notice of termination, citing his attendance infractions on May
6 and 8 and August 7 and 14.
    Before the events between May 2 and August 15, 2019,
Kelly received only one other write-up. In the two years be-
fore Kelly’s termination, RiverStone discharged no other em-
ployees, though it issued warnings to six different employees
for twelve different safety, attendance, and cell phone use in-
fractions.
    Joe Ellena’s Strike and Offer to Return to Work. RiverStone
also hired Joe Ellena as a replacement worker at the Troy
Grove Quarry. After working nearly a year, Ellena, a Local 150
member, went on strike to protest unfair labor practices. Less
than two months into his strike, though, Ellena submitted a
letter to Skerston with his unconditional offer to return to
work. Skerston replied, informing Ellena that no jobs were
available at that time. Skerston also instructed Ellena to sign
Nos. 22-2674, 23-1014, & 23-3172                              7

a preferential hiring list located at the Vermillion Quarry. The
list stated, “[b]y signing … you unconditionally offer to return
to work … . Employees will be recalled to work based on the
date and time of their offer to return to work.” Ellena did not
sign the list.
    January 2019 Punch-In Policy. At the Troy Grove Quarry,
employees work a ten-hour shift from 6 a.m. to 4 p.m., Mon-
day through Thursday. Before January 2019, RiverStone had
no policy regarding punching-in to work before the official
shift start time. The expired collective bargaining agreement
governed shift times and pay rates, but it did not speak to pre-
shift punch-ins. It stated only that, if RiverStone adopted a
work week of “four (4) days at ten (10) hours[,] … overtime
[would] be paid after ten (10) hours in any one work day.”
    Numerous employees took advantage of this language,
punching in anywhere between 5:35 a.m. and 6:00 a.m. Nota-
bly, six of RiverStone’s fourteen employees commonly
punched in up to twenty-five minutes early, with at least one
having done so since 2001. Some employees did this “every
day.” These employees received overtime pay—time-and-a-
half—for punching in early. RiverStone knew of this practice;
its superintendents checked employee timecards.
    In January 2019, one employee decided to test the limits of
this practice. Despite not doing so previously, the employee
punched in thirty minutes early on three consecutive days
and received overtime pay. A week later, RiverStone posted a
notice near the timeclock stating, “there is to be no punching
in earlier than 5 minutes prior to normal start time without
superintendent authorization.” RiverStone did not notify Lo-
cal 150 before posting the notice, and Local 150 was not of-
fered the opportunity to bargain about the notice’s terms.
8                             Nos. 22-2674, 23-1014, & 23-3172

    Picket Sign Removal. As part of Local 150’s strike, its mem-
bers manned picket lines at the quarries, often with printed
signs that they were on strike. In January 2019, two Local 150
members were working the Troy Grove Quarry picket line.
The quarry had two driveways for entry and exit, and Local
150 found these driveways to be good locations for their
picket signs. So, they placed the signs—four total measuring
15 inches by 24 inches—on each side of both driveways. To
anchor the signs in the ground, the strikers placed ten-inch-
long pieces of PVC pipe into the ground. The signs were
placed into the pipes each morning and removed every even-
ing.
    One afternoon, the two strikers observed James Misercola,
a RiverStone employee known as a “persuader”—someone
who communicated with other employees to secure “no”
votes in union elections—depart from the other side of the
quarry in a truck. Before leaving, the truck drove back and
forth a few times in the driveway, stopped, and then exited
the quarry. When the vehicle left, a sign was gone. The two
strikers later testified that the sign could not have blown away
because it had been placed in a PVC pipe holder. Misercola
testified that he did not remove the sign.
                               B
    Local 150 filed several charges with the Board against
RiverStone alleging that these various incidents constituted
unfair labor practices in violation of the National Labor Rela-
tions Act. In response, the Board’s General Counsel issued an
unfair labor practices complaint against RiverStone. The com-
plaint alleged that RiverStone violated various provisions of
the Act by: (1) interviewing Kelly after denying his request for
the presence of the Local 150 steward, Calkins; (2) disciplining
Nos. 22-2674, 23-1014, & 23-3172                                              9

and discharging Kelly for his union activity; (3) requiring El-
lena to sign the preferential hiring list as part of his uncondi-
tional offer to return to work; (4) removing a picket sign from
public property via its agent, Misercola; and (5) unilaterally
implementing a new punch-in policy.
    After briefing, an ALJ held a two-day hearing. The ALJ
then issued a written decision, ruling that RiverStone violated
the Act as alleged in the complaint. Specifically, the ALJ found
that Kelly’s union activity was a motivating factor for his dis-
cipline and discharge. The ALJ made the additional finding
that RiverStone’s discipline of Kelly demonstrated pretext,
such that RiverStone could not show that it would have disci-
plined and terminated Kelly regardless of his union activity.
RiverStone appealed the ALJ’s decision to the Board.
    The Board upheld the ALJ’s decision in part. It agreed that
RiverStone violated Section 8(a)(1) of the Act by removing the
picket sign, requiring Ellena to sign the preferential hiring list
as part of his unconditional offer to return to work, and con-
tinuing Kelly’s interview after denying his request for the
presence of a Local 150 representative. 3 The Board also con-
curred that RiverStone violated Section 8(a)(5) of the Act by
implementing a new punch-in policy without notifying Local
150 or providing an opportunity to bargain. However, past
Board decisions did not extend this violation to strike replace-
ments.




    3 The ALJ also decided that requiring Ellena to sign the preferential

hiring list violated 

(a)(3) (Section 8(a)(3) of the Act), but the
Board declined to address this finding, “as doing so would not materially
affect the remedy.”
10                                Nos. 22-2674, 23-1014, & 23-3172

    The Board disagreed with the ALJ’s determination that
RiverStone violated Sections 8(a)(1) and (a)(3) by disciplining
and ultimately discharging Kelly. In the Board’s view, the rec-
ord demonstrated that RiverStone acted consistently with its
progressive discipline policy. The Board was also uncon-
vinced that RiverStone’s failure to provide Kelly with copies
of his disciplinary warnings sufficiently demonstrated pre-
text. Therefore, RiverStone “met its burden of proving, by a
preponderance of the evidence, that it would have disciplined
and ultimately discharged Kelly even absent his union activ-
ity.” 4 The Board ordered RiverStone to cease and desist from
the found violations and to perform certain remedial actions.
    Local 150 filed a petition for review in our court, and
RiverStone filed its petition in the D.C. Circuit. RiverStone’s
petition was transferred to us, and the Board filed a cross-ap-
plication for enforcement of its order. We have jurisdiction to
review the Board’s determinations under 

(e).
We now turn to those decisions.
                                   II
   The parties ask us to review five issues. Two pertain to
Matt Kelly: (A) RiverStone challenges the Board’s decision
that it violated the Act by denying Kelly the presence of a un-
ion steward at his disciplinary interview; and (B) Local 150
asserts the Board incorrectly concluded that RiverStone did
not violate the Act by disciplining and discharging Kelly. Riv-
erStone also objects to the Board’s conclusion that the com-
pany violated the Act by (C) requiring Joe Ellena to sign the
preferential hiring list, (D) removing a Local 150 picket sign

     4 One Board member agreed with the ALJ’s finding that RiverStone

unlawfully disciplined and discharged Kelly, issuing a written dissent.
Nos. 22-2674, 23-1014, & 23-3172                                 11

from public property, and (E) unilaterally implementing a
new punch-in policy. On the punch-in policy issue, the union
offers arguments as well, contending the Board erred in find-
ing that the violation did not extend to replacement workers.
    Before digging in, we keep in mind our standard of re-
view. “[W]e assess ‘whether substantial evidence supports
the Board’s factual findings and whether legal conclusions
have a reasonable basis in law.’” Mondelez Glob., LLC v.
N.L.R.B., 

, 768–69 (7th Cir. 2021) (quoting Constella-
tion Brands U.S. Operations, Inc. v. N.L.R.B., 

, 646
(7th Cir. 2021)). That standard “is not arduous.” N.L.R.B. v.
Jam Prods., Ltd., 

 (7th Cir. 2023). Our review
of the Board’s decisions is deferential and “circumscribed.”
SCA Tissue N.A. LLC v. N.L.R.B., 

 (7th Cir.
2004).
    For factual findings, we examine the “existing administra-
tive record,” Biestek v. Berryhill, 

 (2019), looking
to “such relevant evidence that a reasonable mind might ac-
cept as adequate to support the conclusions of the Board.”
N.L.R.B. v. Teamsters Gen. Local Union No. 200, 

 (7th Cir. 2013) (internal quotation marks omitted). Taking
that look, we do not flirt with fact-finding or quibble with the
Board’s reasonable conclusions as we would on de novo re-
view. See SCA Tissue, 

; see also Universal Camera
Corp. v. N.L.R.B., 

 (1951). Additionally, we do
not question an agency’s credibility determinations, and we
“disturb [them] only in extraordinary circumstances.”
N.L.R.B. v. KSM Indus., Inc., 

 (7th Cir. 2012)
(internal quotation marks omitted). It is not our place to “re-
weigh the evidence, and the presence of contrary evidence
does not compel us to reverse the Board’s order.” Jam Prods.,
12                            Nos. 22-2674, 23-1014, & 23-3172

 (cleaned up). “Where … the Board adopts the
ALJ’s findings of fact and conclusions of law, our review fo-
cuses on the ALJ’s order.” Constellation Brands, 992 F.3d at 646.
    For legal conclusions, our scrutiny of the Board’s decision
is deferential out of respect for Congress’s broad delegation
of responsibility for developing national labor policy to the
Board. See N.L.R.B. v. Erie Brush & Mfg. Corp., 

 (7th Cir. 2005). Therefore, “we accept the Board’s legal
conclusions unless they are irrational or inconsistent with the
Act.” Jam Prods., 

 (cleaned up).
                                A
    First up is the Board’s conclusion that RiverStone’s denial
of Matt Kelly’s request for the presence of Local 150 steward
Lyle Calkins at his investigatory interview violated Section
8(a)(1) of the Act.
     “Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection … .” 

.
It is “an unfair labor practice for an employer to interfere with,
restrain, or coerce employees” in the exercise of those rights.

 § 158(a)(1) (Section 8(a)(1)).
   The Board has held, and the Supreme Court has affirmed,
that union employees have the right under § 157 to the pres-
ence of a union representative at investigatory interviews that
could lead to the employee’s discipline. N.L.R.B. v.
Weingarten, 

, 260–61 (1975). An employer violates
an employee’s Weingarten rights when the employer refuses
the employee’s request for a union representative at such an
Nos. 22-2674, 23-1014, & 23-3172                                 13

investigatory interview. 

. Our court has consistently
recognized the existence of such a right. Spurlino Materials,
LLC v. N.L.R.B., 

, 881–82 (7th Cir. 2011); N.L.R.B.
v. Ill. Bell Tel. Co., 

 (7th Cir. 1982) (“[A] union
employee has a right to the presence of a union officer at an
investigatory interview.”).
    An employer has three options when a union employee
requests the presence of a representative. The employer may
grant the request, discontinue the interview, or offer a choice
between continuing the interview without representation or
having no interview at all. Washoe Med. Ctr. Inc., 

, 367 (2006). The employer also must allow reasonable time
for the representative to become available once the employee
requests union representation. Manhattan Beer Distribs. LLC,

, 1732 (2005).
    Substantial evidence supports the Board’s conclusion that
RiverStone violated the Act when it denied Matt Kelly’s re-
quest for the presence of Lyle Calkins. The Board recognized
the facts discussed above: Kelly was summoned for an inves-
tigatory interview; Kelly asked for Calkins’ presence; Sker-
ston denied the request because Calkins was 25 minutes away
but offered the presence of another employee with no union
leadership position; that employee also asked for Calkins
when he arrived; and Skerston and Becker continued the in-
terview without Calkins, culminating in Kelly’s suspension
and termination. The Board noted that this record showed
RiverStone failed to comply with any of the three permissible
options. Therefore, RiverStone violated Section 8(a)(1) by
denying Kelly his Weingarten rights.
   On appeal, RiverStone neither contests these facts nor ar-
gues that they do not amount to a violation of an employee’s
14                             Nos. 22-2674, 23-1014, & 23-3172

rights under the Act. Rather, the company’s only argument is
the same it raised to the Board—Weingarten does not apply to
permanent replacement workers. In support, RiverStone of-
fers three rationales: (1) it is a conflict of interest for a union
to represent both permanent replacement workers and
economic strikers; (2) union representation does not alter the
imbalance between employers and replacement workers
because employers may unilaterally set the terms and condi-
tions of employment for replacement workers without bar-
gaining; and (3) Weingarten rights for replacement workers
undermine the benefits provided by workplace investiga-
tions. For authority, RiverStone relies on IBM Corp., 

, 1289 (2004) and E.I. DuPont & Co., 

, 629–30 (1988), two decisions in which the Board pro-
nounced that unrepresented employees have no right to un-
ion representation at an investigatory interview.
    Three problems arise with RiverStone’s positions. First, as
a matter of the record and applicable labor law, both those
Board decisions are inapplicable—Kelly was a Local 150
member. Second, RiverStone’s analogy of replacement work-
ers as unrepresented employees in a non-union setting is un-
helpful. As RiverStone sees it, putting aside the fact that Kelly
is a union member, Kelly signed a Notification of Employ-
ment with terms different than the expired CBA. So, the com-
pany asserts, there is no basis for it to accede to Kelly’s request
for representation at an interview regarding matters over
which the union possessed no bargaining rights. But, as the
Board recognized, Weingarten rights are rooted in statute and
personal to the union employee, see 420 U.S. at 260–61. Those
rights are not a term and condition of employment about
which an employer and union may bargain. Third, the Board
provided adequate legal support for rejecting RiverStone’s
Nos. 22-2674, 23-1014, & 23-3172                               15

contention that strikers and replacement workers lack com-
mon interests that require denying Weingarten rights to re-
placement workers. “[R]eplacements may in some circum-
stances desire union representation despite their willingness
to cross the picket line.” N.L.R.B. v. Curtin Matheson Sci., Inc.,

 (1990). That is, they are “capable of looking
past the strike in considering whether or not they desire rep-
resentation by the union.” 

.
    Substantial evidence supports the Board’s conclusion,
which is rationally based in the law. Kelly was a union-repre-
sented employee who asked for the presence of a union rep-
resentative at his investigatory interview. RiverStone’s refusal
without selecting any of the other lawful options was contrary
to Kelly’s rights and violated Section 8(a)(1).
                                B
    Next up is Local 150’s assertion that Kelly’s discipline and
ultimate discharge violated Sections 8(a)(1) and (a)(3) of the
Act. Section 8(a)(3) prohibits “discrimination in regard to hire
or tenure of employment or any term or condition of
employment … to discourage membership in any labor or-
ganization.” 

(a)(3). Simplified, it is unlawful to
discipline an employee because of his union activity. N.L.R.B.
v. Transp. Mgmt. Corp., 

 (1983), abrogated on
other grounds in Director, Off. of Workers’ Comp. Program, Dept.
of Labor v. Greenwich Collieries, 

 (1994). When an
employer violates Section 8(a)(3), it also violates Section
8(a)(1). Metro. Edison Co. v. N.L.R.B., 

, 698 n.4
(1983).
  “We apply the two-part Wright Line burden shifting frame-
work to examine an employer’s motivation in discharging a
16                             Nos. 22-2674, 23-1014, & 23-3172

union member.” Mondelez Glob., 5 F.4th at 769 (citations omit-
ted). At step one, “we assess whether the General Counsel [of
the Board] ‘has shown that antiunion animus was a substan-
tial or motivating factor in the discharge.’” Id. (quoting Big
Ridge, Inc. v. N.L.R.B., 

 (7th Cir. 2015)). To sat-
isfy this burden, the General Counsel must show that: “(1) the
employee engaged in a protected activity; (2) the
decisionmaker knew it; and (3) the employer acted because of
antiunion animus.” 

 (quotation marks omitted). “[T]he evi-
dence must be sufficient to establish that a causal relationship
exists between the employee’s protected activity and the em-
ployer’s adverse action against the employee.” 

 (citation
omitted).
    If the General Counsel meets the step one burden, we go
to step two—the burden shifts to the employer to show that it
would have discharged the employee even “in the absence of
protected conduct.” Wright Line, 

, 1089
(1980); see Mondelez Glob., 5 F.4th at 769. “At either step of
Wright Line, the Board may infer discriminatory motive based
on direct or circumstantial evidence.” Mondelez Glob., 5 F.4th
at 770 (citing Loparex LLC v. N.L.R.B., 

 (7th
Cir. 2009)).
    The Board’s conclusion that RiverStone did not violate
Sections 8(a)(1) and 8(a)(3) by disciplining and discharging
Kelly is supported by substantial evidence and rationally
based in the law. The Board assumed, as the ALJ found, that
the General Counsel met its burden at step one. But the Board
disagreed with the ALJ’s finding that RiverStone could not
meet its burden to show it would have disciplined and dis-
charged Kelly absent his union activity. That was because be-
tween May 2 to August 14 of 2019, Kelly committed eight
Nos. 22-2674, 23-1014, & 23-3172                               17

different infractions, including four attendance infractions
(on May 2, May 8, August 7, and August 14), and four perfor-
mance or safety infractions (two on May 7, one on May 9, and
one on July 10). Moreover, RiverStone disciplined Kelly for
these infractions consistent with its progressive discipline
policy, ultimately discharging him for the four attendance in-
fractions. Though the ALJ and dissenting Board panelist dis-
agreed, the Board highlighted the record evidence showing
that RiverStone, through Skerston, “counseled Kelly … on the
spot or shortly thereafter,” making it safe to conclude “that
Kelly was aware of, and repeatedly counseled about, his nu-
merous … infractions.”
    To counter the Board’s decision, Local 150 asserts that
RiverStone’s stated reason for Kelly’s discipline and dis-
charge—the four attendance infractions—is pretextual. Proof
of pretext, the union asserts, is in the “suspicious timing of the
adverse actions; RiverStone’s failure to follow its disciplinary
policies; RiverStone’s acceptance of similar behavior from
other employees; the shifting defenses; [and] the failure to
provide the discipline [warnings] to Kelly.”
    The Board sufficiently addressed these contentions, and its
conclusion was adequately supported by the applicable law
and record evidence. It recognized that an employer’s Wright
Line defense may be doomed where it fails to issue discipline
in a timely manner. But in cases supporting that principle, the
Board noted, the untimely provision of disciplinary notice
was accompanied by other manipulation of the employer’s
disciplinary policies. Though the Board examined the record
for such manipulation here, it found none: RiverStone acted
consistent with its disciplinary policy. The company also
acted consistent with that policy as to other employees,
18                            Nos. 22-2674, 23-1014, & 23-3172

disciplining six different employees for twelve different in-
fractions—including for safety, attendance, and cell phone
use—in the two years prior to Kelly’s discharge.
    Local 150 cites no authority to support its assertion that
the Board erred when it ruled that RiverStone did not act with
pretext. Instead, the union asks us to see the record evidence
in a different light, as the ALJ did. For example, Local 150
urges us to see evidence of manipulation in RiverStone’s fail-
ure to issue the first two disciplinary notices until August 2019
and in RiverStone meting out most of its discipline after Kelly
revealed his union support. But the Board considered all this
and decided that the failure to issue the notices was not pre-
textual as RiverStone informed and counseled Kelly about his
repeated infractions. Nor could the timing display pretextual
action where RiverStone disciplined Kelly and other employ-
ees in a similar manner for similar violations.
    The same is true of Local 150’s assertion that RiverStone
“shifted defenses” in its explanation for Kelly’s discharge.
The Board found “that [RiverStone] consistently asserted that
it discharged Kelly under its progressive discipline policy for
his multiple, undisputed attendance infractions.” Local 150
argues the Board improperly considered the other infractions,
but the Board was clear, after its review of the record, that
RiverStone terminated Kelly based on the attendance infrac-
tions.
     At bottom, Local 150 asks us to reweigh the evidence,
which we cannot do. Additionally, Local 150 points to no con-
trary law. So, we hold that the Board did not err in concluding
that RiverStone’s discipline and discharge of Kelly was law-
ful.
Nos. 22-2674, 23-1014, & 23-3172                              19

                               C
   We turn now to the Board’s conclusion that RiverStone vi-
olated Section 8(a)(1) by requiring Joe Ellena to sign a prefer-
ential hiring list after he submitted his unconditional offer to
return to work.
    An individual who strikes remains an employee so long as
he does not “obtain[] regular and substantially equivalent em-
ployment.” N.L.R.B. v. Fleetwood Trailer Co., 

(1967). An employer’s refusal to reinstate strikers constitutes
an unfair labor practice, “unless the employer who refuses to
reinstate strikers can show that his action was due to ‘legiti-
mate and substantial business justifications.’” 

 (quoting
N.L.R.B. v. Great Dane Trailers, 

 (1967)); see
Laidlaw Corp., 

, 1368–69 (1968) (discussing
Fleetwood Trailer). Laidlaw requires employers, upon an em-
ployee’s unconditional offer to return to work, to reinstate the
employee “or, if no vacancy then exist[s], to place them on a
nondiscriminatory recall list until a vacancy occur[s].” Peerless
Pump Co., 

, 375 (2005). An employer violates
Laidlaw when it imposes any further affirmative obligation on
the employee, unless legitimate and substantial business jus-
tifications exist to support such an imposition. Id.; Giddings &
Lewis, Inc. v. N.L.R.B., 

, 1286–88 (7th Cir. 1983)
(denying enforcement of Board order where legitimate
business justification supported employer’s requirement that
formerly striking employees provide periodic notice of their
intent to remain on preferential hiring list).
     The Board has previously ruled that requiring former
strikers to come to the workplace to sign a preferential hiring
list unlawfully infringes on those employees’ Laidlaw rights.
Peerless Pump Co., 345 N.L.R.B. at 375. There, the employer
20                            Nos. 22-2674, 23-1014, & 23-3172

responded to a union’s unconditional offer to return to work
with a letter requesting that employees “come to the plant and
sign the preferential rehire list.” Id. at 372. The employer’s as-
serted business justification was that the list served to identify
the individuals who remained available and interested in re-
call and to compile contact information. Id. “By requiring for-
mer strikers to take steps beyond their unconditional offer to
return to work, the [employer] interfered with their unrelin-
quished right to be recalled to work upon the conclusion of
the strike.” Id. at 375. So, the employer interfered with the em-
ployees’ Laidlaw rights “by initially establishing and announc-
ing a signup requirement,” and violated Sections 8(a)(3) and
(a)(1) of the Act. Id.
     The ALJ concluded that Riverstone violated the Act when
it required Ellena—after he made his unconditional offer to
return to work—to come to Vermillion Quarry and sign a
preferential hiring list. The Board agreed, and substantial ev-
idence supports that conclusion. When Ellena made his offer,
RiverStone was unequivocal: “There are no job openings at
this time. The Company has established a preferential hiring
list which you are welcome to sign if you wish to do so. The
preferential hiring list is located at Vermillion.” The “import
of this statement,” the ALJ found, “was that, in the absence of
job openings, Ellena should get his name on the list in order
to be recalled.” The list was unambiguous too, stating, “By
signing this list, you unconditionally offer to return to work
at Troy Grove Quarry/Vermillion Quarry, divisions of River-
Stone Group, Inc.”
   But Ellena had already provided his offer to return to
work. And RiverStone proffered no legitimate business justi-
fication for this additional obligation. The ALJ thus properly
Nos. 22-2674, 23-1014, & 23-3172                               21

found that requiring Ellena to complete additional paper-
work at the Vermillion Quarry violated Sections 8(a)(3) and
(a)(1) of the Act.
    RiverStone raises two counter arguments. First, it con-
tends “[t]he preferential hiring list did not negatively affect
Ellena” because he was the only employee seeking a return to
work. That fact, RiverStone argues, distinguishes the matter
from Peerless Pump, where a large number of former strikers
sought reinstatement. But neither an employee’s Laidlaw
rights nor the application of Peerless Pump hinges on the num-
ber of workers seeking a return to work. The Board was clear
in Peerless Pump: the “imposition of an affirmative obligation
on former strikers to come to the plant to sign the list itself is
an unlawful infringement” on an employee’s Laidlaw rights,
“absent a legitimate and substantial business justification.”
345 N.L.R.B. at 375. RiverStone points to no precedent or
Board decision supporting this numerical argument.
    Second, RiverStone argues that the ALJ erred in finding
that the company committed Section 8(a)(3) discrimination by
imposing the signing obligation on Ellena. But recall, supra
note 3, the Board found it unnecessary to address the ALJ’s
Section 8(a)(3) determination because “doing so would not af-
fect the remedy” and concluded only that RiverStone violated
Section 8(a)(1). Section 8(a)(1) is violated by “[e]mployer con-
duct that reasonably tends to interfere with, restrain, or coerce
employees in the free exercise of their protected rights.”
Contemp. Cars, Inc. v. N.L.R.B., 

 (7th Cir. 2016)
(quotation marks omitted); 

(a)(1). No discrimi-
nation is necessary, unlike Section 8(a)(3) violations. See 

(a)(3) (it is an unfair labor practice for an employer
“by discrimination in regard to hire … to encourage or
22                            Nos. 22-2674, 23-1014, & 23-3172

discourage membership in any labor organization.”). Con-
trary to RiverStone’s assertion, it does not matter that “Ellena
was not treated less favorably than other employees who have
offered to return to work when there were no vacancies be-
cause there are no such other employees.” What matters is
that RiverStone imposed an additional obligation on Ellena
without a legitimate and substantial business justification.
Such action violates the Act, as the Board concluded.
                               D
    Next, we review whether the Board correctly decided that
RiverStone violated Section 8(a)(1) by removing a Local 150
picket sign from public property. An employer who removes,
or causes the removal of, picket signs violates Section 8(a)(1)
because such conduct “impermissibly interfere[s] with the
Section 7 rights of [] employees to place picket signs in sup-
port of the strike.” St. Louis Auto Parts Co., 

,
720 (1994); Fla. Wire & Cable, Inc., 

, 382 (2001)
(“Confiscation of picket signs, like outright prohibition of
picketing, deprives employees of their Section 7 rights.”).
    The Board concluded that RiverStone violated Section
8(a)(1) when RiverStone’s “persuader” James Misercola re-
moved a Local 150 picket sign. We see substantial evidence in
the administrative record of the theft. Two strikers testified
they saw Misercola drive by the sign and shortly thereafter,
the sign was gone. Misercola testified he did not take it. The
ALJ did not err in crediting the testimony of those two strikers
and discrediting Misercola because of his “general and hedg-
ing denial.”
  RiverStone does not directly challenge the Board’s agree-
ment with the ALJ on this point. Instead, it takes issue with
Nos. 22-2674, 23-1014, & 23-3172                               23

the ALJ’s determination that RiverStone’s employment of
Misercola is proof of animus towards the union. To River-
Stone, the animus conclusion taints the ALJ’s finding about
the picket sign. But the animus conclusion did not follow from
the ALJ’s examination of the removed picket sign. Rather, it
went to the ALJ’s step one inquiry to evaluate whether Matt
Kelly’s union activity was a motivating factor in his discharge
under Wright Line. The Board’s discussion of Matt Kelly’s dis-
charge did not adopt this particular finding of the ALJ. In-
stead, the Board assumed the General Counsel met its burden
under Wright Line step one and decided the question solely on
step two.
    RiverStone essentially asks us to reconsider the ALJ’s cred-
ibility findings. But we owe those determinations “great def-
erence” in the absence of “extraordinary circumstances.”
Mondelez Glob., 5 F.4th at 769. Though not characterized as
such, RiverStone offers one possible extraordinary circum-
stance—that the ALJ’s reasoning runs headlong into Section
8(c) of the Act. That provision states:
       The expressing of any views, argument, or opin-
       ion, or the dissemination thereof, whether in
       written, printed, graphic, or visual form, shall
       not constitute or be evidence of an unfair labor
       practice under any of the provisions of this sub-
       chapter, if such expression contains no threat of
       reprisal or force or promise of benefit.

(c). As RiverStone points out, Section 8(c) cod-
ifies the protection of noncoercive employer speech to em-
ployees. See N.L.R.B. v. Gissel Packing, 

 (1969).
Part of that noncoercive speech is the ability to hire
24                            Nos. 22-2674, 23-1014, & 23-3172

“persuaders” like Misercola to communicate RiverStone’s po-
sitions regarding union activity and elections.
    But RiverStone misses the point. First, neither the ALJ nor
the Board acted contrary to RiverStone’s Section 8(c) rights by
finding that it violated the Act through Misercola’s removal
of a sign. Though hiring Misercola as a “persuader” is a pro-
tected employer activity, Misercola’s removal of a picket sign
is not. See St. Louis Autoparts Co., 315 N.L.R.B. at 720. Second,
the ALJ’s credibility conclusion as to Misercola was not an-
chored to any determination regarding antiunion animus. In-
stead, the ALJ found Misercola’s testimony to be “equivocal
and indirect,” as evidenced by his “refus[al] to answer even
[the] most basic questions,” his “quibbl[ing] with the Union’s
counsel on cross-examination,” and “his limited recall of the
events at issue.” It was reasonable for the ALJ to make this
call, and we do not question it.
                               E
    RiverStone’s last challenge is to the Board’s decision that
the Company violated Sections 8(a)(5) and (a)(1) of the Act by
implementing a new punch-in policy without first notifying
the union or offering the opportunity to bargain. Local 150
also disputes the Board’s conclusion that the violation does
not extend to replacement workers.
                               1
    Section 8(a)(5) makes it an unfair labor practice “to refuse
to bargain collectively with the representatives of [] employ-
ees.” 

(a)(5). “As part of this duty to bargain, an
employer must maintain the status quo after the expiration of
a collective bargaining agreement until a new agreement is
reached or until the parties bargain in good faith to impasse.”
Nos. 22-2674, 23-1014, & 23-3172                                 25

RiverStone Grp., Inc. v. Midwest Operating Eng’rs Fringe Benefit
Funds, 

 (7th Cir. 2022) (quotation marks omit-
ted). RiverStone and the Board agree, “[a]n employer violates
Section 8(a)(5) and (1) if it makes a material, substantial, and
significant change regarding a mandatory subject of bargain-
ing without first providing the union notice and a meaningful
opportunity to bargain about the change to agreement or im-
passe, absent a valid defense.” MV Transp., Inc., 368 N.L.R.B.
No. 66, slip op. at 3 (Sept. 10, 2019) (citing N.L.R.B. v. Katz, 

 (1962)). Those mandatory subjects “includ[e]
‘wages, hours, and other terms and conditions of employ-
ment.’” Mondelez Glob., 5 F.4th at 772 (citation omitted). In fact,
Section 8(a)(5) extends to an employer’s “regular and
longstanding” practices that are neither “random” nor “inter-
mittent.” Sunoco, Inc., 

, 244 (2007).
    We hold that substantial evidence supports the Board’s
conclusion that RiverStone violated Sections 8(a)(5) and (a)(1)
when it began requiring that employees punch in no earlier
than five minutes before a scheduled shift start without noti-
fying Local 150 or offering the opportunity to bargain. The ex-
pired collective bargaining agreement did not discuss early
punch-ins. It only provided that “[s]tarting time is optional
upon mutual agreement of employees and Employer,” and
that if RiverStone elected a work week of “four (4) days at ten
(10) hours … overtime [would] be paid after ten (10) hours in
any one work day.” However, it was a “regular and
longstanding practice” for RiverStone to permit early punch-
ins. Numerous employees punched in up to 25 minutes before
shift start times, with at least one having done so since 2001.
Some employees did this “every day.” RiverStone was aware
of this practice. When it posted the January 2019 punch-in
26                              Nos. 22-2674, 23-1014, & 23-3172

notice, RiverStone did so without notifying the union or offer-
ing the chance to bargain. So, RiverStone violated the Act.
    RiverStone offers two rejoinders. First, it argues the Janu-
ary 2019 notice was not a change in policy requiring notice or
the opportunity to bargain. Rather, it was just an act to enforce
the existing and agreed upon work schedule contained in the
expired CBA.
    This first argument ignores the record, which shows that
it was a longstanding and permissible practice for employees
at the quarries to punch in up to 25 minutes before a sched-
uled shift start. A change to that practice therefore required
notice and an opportunity to bargain. The failure to provide
as much breached the Act.
    Second, RiverStone asserts that the January 2019 notice
was not unlawful because it “was not a material, substantial,
and significant change.” The Board rejected this same chal-
lenge raised previously before it, concluding that schedule
changes, like the change to the punch-in policy here, consti-
tute material changes. See, e.g., Pepsi-Cola Bottling Co. of Fayette-
ville, 

, 902 (2000). RiverStone again urges that
it did not enact a new punch-in policy but only enforced the
existing one. Therefore, RiverStone’s actions distinguish it
from employer actions at issue in decisions like Pepsi-Cola.
    This second argument does not sufficiently address mate-
riality. As explained above, the January 2019 punch-in notice
constituted a detour from a practice RiverStone long toler-
ated. RiverStone’s attempt to characterize the January 2019
notice as an enforcement action to avoid the applicability of
prior Board decisions is unconvincing. Moreover, River-
Stone’s own briefing reveals the material nature of the
Nos. 22-2674, 23-1014, & 23-3172                              27

change. The mining company recognizes that “[e]arly punch-
ins are problematic … because … they result in unscheduled,
unauthorized overtime paid at time-and-a-half.” Put another
way, early punch-ins increase RiverStone’s overhead because
it must then compensate employees for overtime. Just as the
unilateral change to the punch-in practice significantly affects
RiverStone’s costs, it significantly affects the corresponding
benefit to the employees.
    In sum, RiverStone’s January 2019 notice constituted a ma-
terial change to a longstanding practice that affected the
wages and hours of its employees. Because RiverStone offered
neither notice nor the opportunity to bargain, it violated Sec-
tions 8(a)(5) and (a)(1) of the Act.
                               2
    Local 150 also challenges the Board’s punch-in policy find-
ing. Recall, the Board declined to extend this violation to
strike replacements. That decision, Local 150 says, has no rea-
sonable basis in the law.
    As a preliminary matter, the Board asserts that Local 150
waived this argument. The Board faults the union for failing
to assert anything more in its answering brief before the Board
than a statement that “the [January 2019 Notice] applied to all
workers.” The Board also argued that once it issued its deci-
sion, Local 150 waived its argument by failing to file a motion
for reconsideration.
    We cannot consider any “objection that has not been urged
before the Board, its member, agent, or agency.” 

(e). “[A] party which fails to raise an exception before the
Board is jurisdictionally barred from raising that exception in
28                            Nos. 22-2674, 23-1014, & 23-3172

an enforcement proceeding before the court of appeals.”
N.L.R.B. v. Howard Immel, Inc., 

 (7th Cir. 1996).
    But Local 150 did not waive its argument. This circuit has
recognized that “Section [160(e)] operates to ensure that the
Board has a chance to review any issues that may arise in a
subsequent review of its decision” so that the Board can con-
sider the merits of an issue. Howard Immel, 

.
RiverStone raised in its exceptions to the Board that the ALJ
incorrectly found that the violation extended to replacement
workers. Local 150 touched on this argument in its answering
brief. And the Board was able to address the merits of River-
Stone’s exception. As for the Board’s assertion that Local 150
should have filed a petition for reconsideration, this court has
rejected the notion that such action is necessary. Local 65-B,
Graphic Comms. Conf. of Int’l Broth. of Teamsters v. N.L.R.B., 

 (7th Cir. 2009) (citing U.S. Marine Corp v.
N.L.R.B., 

, 1319 n.17 (7th Cir. 1991)).
    Turning to the merits, the Board’s decision not to extend
the punch-in policy violation to replacement workers was
based on prior Board decisions. It has previously held that
“an employer need not bargain with a union regarding the
terms and conditions of employment for strike replacements
hired during a strike.” Specifically, the Board looked to its de-
cision in Detroit Newspaper Agency, 

 (1999).
Two “major reasons” buttress that holding: (1) employers
have a right to hire replacements, and in a strike situation
where “the employer does not have the luxury of postponing
the hiring for that indefinite period,” imposing a duty to bar-
gain would nullify that right; and (2) requiring bargaining
with strike replacements would sidetrack employer bargain-
ing efforts with the union concerning its striking workers. 

Nos. 22-2674, 23-1014, & 23-3172                              29

    Local 150 does not dispute Detroit Newspaper’s general
principle. Instead, it argues that the Board’s conclusion “is
contrary to policies advanced by the Supreme Court” and
“adhere[s] to the myth that there exists a conflict of interest
between representing strikers and their replacements.” We
disagree. Both the Board and the courts have recognized that
replacement workers become part of the bargaining unit
when hired, obligating unions to represent both those work-
ers and strikers. See Capitol-Husting Co., Inc. v. N.L.R.B., 

 (7th Cir. 1982). Necessarily then, the interests of
strikers and striker replacements are not always in conflict.
See Curtin Matheson Sci., Inc., 494 U.S. at 790–91 (upholding
the Board’s decision to not adopt a presumption that strike
replacements oppose the union). Simultaneously though, the
Supreme Court is unpersuaded that such a theory—that there
is no conflict between represented strikers and represented re-
placement workers—“is irreconcilable with the Board’s deci-
sions holding that employers have no duty to bargain with a
striking union over replacements’ employment terms.” Id. at
790.
    Local 150 requests us to heed the conclusion in Curtin
Matheson: “Because the circumstances of each strike and the
leverage of each union will vary greatly, it was not irrational
for the Board to reject the antiunion presumption and adopt a
case-by-case approach in determining replacements’ union
sentiments.” Id. at 791. This strikes us as a call to reweigh the
evidence. While certainly permissible for the Board to apply
a case-by-case approach, it is not our place to usurp the
Board’s conclusion by reweighing the evidence. See Jam
Prods., 

.
30                             Nos. 22-2674, 23-1014, & 23-3172

    The union also asserts that the existence of other rights—
such as Weingarten rights—held by replacement workers indi-
cates that RiverStone’s violation must extend to replacement
workers as well. But the Board recognizes “that the ability to
set employment terms for replacements is a necessary inci-
dent of the very right to hire them in the first place.” Serv. Elec.
Co., 

, 641 (1986)
    Local 150 also contends that the Board’s conclusion was
error because it extended overtime opportunities to striker re-
placements not available to other employees, relying on
N.L.R.B. v. Great Dane Trailers, Inc., 

 (1967). In Great
Dane, the Supreme Court reasoned that “[t]he act of paying
accrued benefits to one group of employees while announcing
the extinction of the same benefits for another group of em-
ployees who are distinguishable only by their participation in
protected concerted activity surely may have a discouraging
effect on either present or future concerted activity.” 

.
But Great Dane concerned Section 8(a)(3) discrimination vio-
lations, not bargaining violations under Section 8(a)(5) rele-
vant to the unilateral punch-in policy change.
    Substantial evidence supports the Board’s decision that
RiverStone violated Sections 8(a)(5) and (a)(1) by unilaterally
implementing a new punch-in policy, and that such a viola-
tion did not extend to replacement workers was reasonably
based in the law.
                         *      *       *
   One last matter requires our attention. Before oral argu-
ment, Local 150 moved for sanctions against the Board and its
counsel, arguing that the Board’s waiver argument (discussed
Nos. 22-2674, 23-1014, & 23-3172                               31

above) is impermissibly frivolous. The union’s motion relies
on Federal Rule of Civil Procedure 11 and 

.
    Sanctions are not warranted here. As a reminder, because
“this court has not incorporated Rule 11 into its own
rules, … the rule does not apply directly to proceedings in
this court.” Hill v. Norfolk and W. Ry. Co., 

(7th Cir. 1987); see also FED. R. CIV. P. 1 (“These rules govern
the procedure in all civil actions and proceedings in the
United States district courts.”). Rule 11 does provide guidance
in our interpretation of similar rules that are applicable to ap-
pellate proceedings, like 

. Hill, 

. So “we look to principles that have evolved in the inter-
pretation of Rule 11.” Sparks v. N.L.R.B., 

, 707 (7th
Cir. 1987).
   “Rule 11(b) requires attorneys to certify to the best of their
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances, that their filings have
adequate foundation in fact and law and lack an improper
purpose.” Mullen v. Butler, 

 (7th Cir. 2024)
(quotation marks omitted). Motions under Rule 11 should not
“be prepared to emphasize the merits of a party’s position” or
“to intimidate an adversary into withdrawing contentions
that are fairly debatable.” FED. R. CIV. P. 11(b) advisory com-
mittee’s note to 1993 amendment.
    Section 1927 opens litigants up to liability for the costs and
fees of conduct that “so multiplies the proceedings in any case
unreasonably and vexatiously.” 

. That statute
“permits courts to levy sanctions against an attorney … if the
attorney has ‘acted in an objectively unreasonable manner by
engaging in a serious and studied disregard for the orderly
process of justice’ or where a claim is ‘without a plausible
32                            Nos. 22-2674, 23-1014, & 23-3172

legal or factual basis and lacking in justification.’” Mullen, 

 (7th Cir. 2024) (quoting Lightspeed Media Corp. v.
Smith, 

 (7th Cir. 2014)).
    Neither the Board nor its counsel have acted in such an
egregious manner. The Board’s waiver argument had a plau-
sible (though unsuccessful) legal and factual basis. Disagree-
ment with the Board’s position is not sanctionable.
                                III
    Substantial evidence supports the Board’s conclusions, all
of which were reasonably based in substantive labor law.
Therefore, we DENY both RiverStone and Local 150’s petitions
for review and GRANT the Board’s cross-application for en-
forcement. Additionally, we DENY Local 150’s motion for
sanctions.