Wayneview Care Center v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 17, 2011 Decided December 23, 2011

No. 10-1398

WAYNEVIEW CARE CENTER AND VICTORIA HEALTH CARE
CENTER,
PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

1199 SEIU UNITED HEALTHCARE WORKERS EAST,
INTERVENOR

Consolidated with 10-1404

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

David F. Jasinski argued the cause and filed the briefs for
petitioners.

Zachary R. Henige, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, and Jill A. Griffin,
 2

Supervisory Attorney. Amy H. Ginn, Attorney, entered an
appearance.

Ellen Dichner argued the cause and filed the brief for
intervenor 1199 SEIU United Healthcare Workers East.

Before: ROGERS and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Wayneview Care Center and
Victoria Health Care Center petition for review of a decision and
order of the National Labor Relations Board, and the Board
cross-applies for enforcement. The Board found, among other
things, that the petitioners violated the National Labor Relations
Act by implementing new terms and conditions of employment
before reaching a lawful impasse in collective bargaining
negotiations. Because substantial evidence supports the Board’s
findings, we deny the petition for review and grant the Board’s
cross-application for enforcement.

I

Wayneview and Victoria, separate companies that share
ownership, operate nursing homes in New Jersey. SEIU 1199,
New Jersey Health Care Union, represents the certified nursing
assistants and housekeeping, laundry, and dietary employees at
both facilities. In 2005, Wayneview and Victoria had separate
contracts with the union due to expire on March 31 of that year.
In February 2005, the parties began to negotiate successor
contracts. The union initially negotiated with each employer
separately, but after several meetings, the parties agreed to
consolidate negotiations. Justin Foley was the first chief
negotiator for the union. Vincent Tufariello, the chief operating
 3

officer of both Wayneview and Victoria, was the chief
spokesman for the employers.

The union made its first full economic proposal on May 10,
2005. It called for an annual wage increase of 4% for three
years, more paid days off, and a decrease in work hours at
Victoria. Under the proposal, the employers would participate
in the union’s own health insurance plan, with a contribution
rate of 22.33% set by the plan’s trustees. There was also a new
formula to set the amount of pension contributions. Finally, the
union sought a gradual reduction in the number of “no-frills”
employees (employees who could choose higher wages in lieu
of benefits).

The parties continued to meet and bargain over the
following months. In July, the union assigned Foley to another
position, and Larry Alcoff took over as the union’s lead
negotiator. He met with Tufariello for the first time on August
5, 2005, and presented a new proposal. That proposal contained
some concessions: The union dropped its demand for a reduced
work week, reduced its pension proposal, and delayed the start-
date for participation in the union’s health insurance plan.
Although there was tentative agreement on some items,
including wages for certain classes of employees, other items
remained unresolved. When the parties met again on August 9,
Tufariello told Alcoff that the two principal stumbling blocks in
the way of a collective bargaining agreement were the union’s
proposals regarding no-frills employees and health insurance.

The parties convened on Thursday, August 18 for a
“marathon” bargaining session that lasted until 3 a.m. the
following day. Hr’g Tr. 242 (Sept. 27, 2006) (J.A. 95). At that
session, which two mediators also attended, the union presented
another new proposal containing several significant concessions.
First, its proposal regarding wages no longer had specific dates
 4

and percentages for increases; instead, it had only a general
target to be reached by the end of the contract term. Second, the
union changed its health insurance proposal. For the first time,
it abandoned its demand that the employers participate in the
union’s health plan and agreed that employees could be covered
by the employers’ existing plan. Finally, the union dropped its
proposal to decrease the number of no-frills employees. Thus,
the union softened its position on the specific items that
Tufariello had identified as the major obstacles to an agreement.

The employers’ counterproposal also contained significant
concessions. Alcoff felt that the August 19 session provided “a
roadmap to a deal,” Hr’g Tr. 243 (Sept. 27, 2006) (J.A. 95), and
union president Milly Silva agreed that it was “probably the
most productive” that had taken place, Hr’g Tr. 135 (Sept. 26,
2006) (J.A. 71). Alcoff gave his cell phone number to the
mediator and employers’ counsel so that negotiations could
continue over the weekend. He did not hear back, however,
until Monday evening, August 22. That night, the employers
faxed a regressive proposal -- which they later claimed to be
their “last best offer” -- and refused to bargain further. On
September 6, or soon thereafter, the employers implemented the
terms of that offer. Letter from Dennis Alessi to Larry Alcoff
(Oct. 3, 2005) (J.A. 405).

Meanwhile, the union was preparing for concerted action at
Wayneview and Victoria. On August 12, the union had sent
statutorily required, ten-day notices to both facilities, see 29
U.S.C. § 158(g), stating that its members would engage in a
“strike, picketing, or other concerted refusal to work” starting on
August 23. Letter from Milly Silva to Margaret Nolan (Aug. 12,
2005) (J.A. 306); Letter from Silva to Michael Del Sordo (Aug.
12, 2005) (J.A. 307). In response, the facilities lined up
potential replacements. But Nolan told the replacements that
 5

they might never work at all and that the permanent employees
could return at any time. Hr’g Tr. 889 (Dec. 4, 2006) (J.A. 200).

At Wayneview, the employees ultimately voted not to
strike. Silva notified Wayneview by fax on August 22 that the
employees would only engage in after-hours informational
picketing, and that they intended to work their regular schedules.
Fax from Silva to Tufariello (Aug. 22, 2005) (J.A. 312).
Wayneview replied through counsel that, since it had already
lined up temporary replacements, “there is no work for your
members at Wayne[v]iew. Please advise your members not to
report to work tomorrow morning.” Fax from Alessi to Silva
(Aug. 22, 2005) (J.A. 313). Employees who showed up on or
after August 23 were not permitted to work. One employee who
attempted to return, Margaly Pierre, was told that if she wanted
to work at Wayneview, she “was to sign” a paper “to vote the
union out.” Hr’g Tr. 506-07 (Oct. 19, 2006) (J.A. 145).

At Victoria, the employees voted to strike for five days.
They went on strike on August 23, and then, in a letter dated
August 26, “unconditionally offer[ed] to return to work” on
August 28. Fax from Alcoff to Del Sordo (Aug. 26, 2005) (J.A.
314). Victoria replied that employees would be allowed to work
only if the union accepted the regressive offer faxed by the
employer on August 22. Fax from Alessi to Alcoff (Aug. 26,
2005) (J.A. 315). Victoria further warned that, starting on
September 6, it would unilaterally implement the August 22
offer and permanently replace striking workers. Id. As at
Wayneview, Victoria did not permit its employees to work on
August 28; instead, a supervisor informed them, “It’s a lock-
out.” Hr’g Tr. 53 (Sept. 26, 2006) (J.A. 54).

The union filed four unfair labor practice charges against
Wayneview and Victoria between July 1, 2005 and April 12,
2006. Thereafter, the NLRB’s General Counsel issued a
 6

consolidated complaint. On July 26, 2007, an administrative
law judge (ALJ) concluded that the employers had committed
several unfair labor practices in violation of the National Labor
Relations Act (NLRA), 29 U.S.C. § 151 et seq. Wayneview
Care Ctr., 352 N.L.R.B. 1089, 1120 (2008) (ALJ Op.). On
August 26, 2008, a two-member panel of the Board largely
affirmed the ALJ’s decision. Id. at 1089-90 (Board Op. I).
After the Supreme Court held in New Process Steel, L.P. v.
NLRB, 130 S. Ct. 2635 (2010), that two-member panels do not
have authority to decide cases, a three-member panel adopted
the earlier Board decision by reference and added additional
analysis. Wayneview Care Ctr., 356 N.L.R.B. No. 30 (Nov. 18,
2010) (Board Op. II).

The Board agreed with the ALJ that the employers failed to
prove the parties had reached a lawful impasse, and that the
employers violated the NLRA by implementing their August 22
offer without first having reached such an impasse. Wayneview,
352 N.L.R.B. at 1089 (Board Op. I). The Board also agreed that
the employers violated the Act by locking out their employees
without a “legitimate and substantial business justification,” by
failing to reinstate employees upon their unconditional offer to
return to work, and by attempting to coerce the union into
accepting the August 22 offer. Id. at 1089 n.3; 356 N.L.R.B.
No. 30, at 1-2 (Board Op. II). It further agreed that Wayneview
violated the Act “[b]y promising employees a return to work and
increased benefits if they signed a petition to decertify the
Union.” 352 N.L.R.B. at 1090 (Board Op. I). We discuss these
violations in detail below. The Board also affirmed the ALJ’s
findings regarding a number of additional violations, which we
address only summarily for the reasons stated in Part II.
 7

II

Section 10(e) of the NLRA provides that “[n]o 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 Woelke & Romero Framing, Inc. v. NLRB,
456 U.S. 645, 665 (1982). Because the petitioners concede that
they failed to object to several of the ALJ’s findings, and
because they offer no extraordinary circumstances as an excuse,
we grant the Board’s cross-application for enforcement as to
those findings without further discussion. The findings are: (1)
that Wayneview violated the Act by telling employees to
remove union buttons; by threatening to discharge employees
for striking, wearing buttons, or talking to the union; and by
suspending employee Marjorie Barnett for supporting the union;
(2) that Victoria violated the Act by threatening to discharge
employees for striking and threatening to permanently replace
locked-out employees; by conditioning a contract and
employees’ return to work on the union’s withdrawal of pending
unfair labor practice charges; and by unilaterally withdrawing
benefits from returning strikers because they engaged in a strike;
and (3) that both Wayneview and Victoria violated the Act by
denying the union access to their facilities. See Wayneview, 352
N.L.R.B. at 1089 n.2 (Board Op. I).

In addition, although they apparently did object below, the
petitioners do not contest here that each of them violated the
NLRA by refusing to provide the union with information
relevant to bargaining and by refusing to meet with the union
following the August 22 proposal. The Board is therefore also
entitled to summary enforcement of the portions of its order
relating to those violations. Bally’s Park Place, Inc. v. NLRB,
646 F.3d 929, 935 n.3 (D.C. Cir. 2011).
 8

III

The petitioners do contest the Board’s determination that
they violated section 8(a)(5) and (1) of the NLRA, 29 U.S.C.
§ 158(a)(5) & (1), by unilaterally implementing their August 22
offer in the absence of a lawful 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.” Id. § 158(a)(5). “An employer violates this duty
to bargain if, absent a final agreement or a bargaining impasse,
he unilaterally imposes changes in the terms and conditions of
employment.” TruServ Corp. v. NLRB, 254 F.3d 1105, 1113
(D.C. Cir. 2001); see Litton Fin. Printing Div., Inc. v. NLRB,
501 U.S. 190, 198 (1991).1 A bargaining impasse is reached
when “good faith negotiations have exhausted the prospects of
concluding an agreement,” Taft Broad. Co., 163 N.L.R.B. 475,
478 (1967), and “there [is] no realistic possibility that
continuation of discussion at that time would . . . [be] fruitful,”
Am. Fed’n of Television & Radio Artists v. NLRB, 395 F.2d 622,
628 (D.C. Cir. 1968). The burden of establishing impasse lies
with the party asserting it. PRC Recording Co., 280 N.L.R.B.
615, 635 (1986), enf’d, Richmond Recording Corp. v. NLRB,
836 F.2d 289 (7th Cir. 1987). The Board considers a number of
factors to determine whether impasse exists, including “‘the
bargaining history, the good faith of the parties in negotiations,
the length of the negotiations, the importance of the issue or
issues as to which there is disagreement, [and] the
contemporaneous understanding of the parties as to the state of

1
“An employer who violates section 8(a)(5) also derivatively
violates section 8(a)(1), which makes it unlawful for an employer ‘to
interfere with, restrain, or coerce employees in the exercise of’ their
statutory labor rights.” Regal Cinemas, Inc. v. NLRB, 317 F.3d 300,
309 n.5 (D.C. Cir. 2003) (quoting 29 U.S.C. § 158(a)(1)).
 9

negotiations.’” TruServ, 254 F.3d at 1114 (quoting Taft, 163
N.L.R.B. at 478).

As we have noted many times before, our role in reviewing
an NLRB decision is limited. “We must uphold the judgment of
the Board unless, upon reviewing the record as a whole, we
conclude that the Board’s findings are not supported by
substantial evidence, or that the Board acted arbitrarily or
otherwise erred in applying established law to the facts of the
case.” Mohave Elec. Coop., Inc. v. NLRB, 206 F.3d 1183, 1188
(D.C. Cir. 2000) (internal quotation marks and citation omitted).
Of particular relevance here -- because the existence of impasse
is a question of fact -- is the statutory admonition that “[t]he
findings of the Board with respect to questions of fact if
supported by substantial evidence on the record considered as a
whole shall be conclusive.” 29 U.S.C. § 160(e). Moreover, as
we have previously noted, “‘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 a board which deals constantly with
such problems.’” TruServ, 254 F.3d at 1115 (quoting Am.
Fed’n, 395 F.2d at 627). Accordingly, this “court ordinarily
defers to the Board’s fact-finding as to the existence of a
bargaining impasse,” id. at 1115, “unless the finding is irrational
or unsupported by substantial evidence,” Teamsters Local Union
No. 175 v. NLRB, 788 F. 2d 27, 30 (D.C. Cir. 1986).

The Board’s determination that the petitioners failed to
prove that the parties had reached impasse easily satisfies our
deferential standard of review. The petitioners declared impasse
soon after the marathon bargaining session of August 18-19.
See Wayneview, 352 N.L.R.B. at 1114 n.60 (ALJ Op.). The ALJ
found, however, that “[s]ignificant movement on major
economic items of importance to both sides took place” during
that session. Id. at 1113. “Both employer[s] and the Union
 10

made major concessions and both made new and important
changes to their basic approach to the bargaining.” Id. More
specifically, “[t]he Union’s willingness to agree to continue the
employer’s health insurance plan and its willingness to abandon
its previous insistence on phasing out no-frills employees met
[the employers’] most important goals as expressed by
Tufariello.” Id. at 1113-14. On this basis, the ALJ concluded
that “the parties were coming closer together on the major items
about which they had disagreed in the past.” Id. at 1114. The
ALJ also noted that, after the August 18-19 session, Alcoff made
efforts to contact the employers to negotiate further. Based on
this fact, and the progress made at the marathon session, the ALJ
found that “[t]he parties’ contemporaneous understanding of the
negotiations was that further bargaining would be fruitful.” Id.;
see Taft, 163 N.L.R.B. at 478 (noting that the parties’
“contemporaneous understanding” is a relevant factor in
evaluating the existence of impasse). All of these findings were
themselves supported by substantial evidence, and together they
support the Board’s determination that the petitioners “failed to
prove that the parties reached impasse,” Wayneview, 352
N.L.R.B. at 1089 (Board Op. I).

The petitioners argue that, appearances aside, the union
bargained in bad faith because it adhered rigidly to the terms of
another contract -- known as the “Tuchman Agreement” -- that
it had recently negotiated with other nursing facilities. The
Tuchman Agreement contained a “most-favored nations” clause,
and the petitioners contend the union regarded itself as bound to
the terms of that agreement. Although it is true that some of the
terms of the union’s initial proposal resembled those of the
Tuchman Agreement, that proposal also differed in several
respects, including with regard to wages and paid time off. 352
N.L.R.B. at 1099 (ALJ Op.). Moreover, the Board reasonably
concluded that the “most-favored-nations clause was not a bar
to further movement.” Id. at 1089 (Board Op. I). As noted
 11

above, at the bargaining session immediately preceding the
employers’ declaration of impasse, the union made significant
concessions on the very issues that the employers had identified
as the most important obstacles to agreement.

The principal support for the employers’ contention that the
union acted in bad faith is the testimony of three witnesses, who
claimed that the union was unwilling to negotiate variances from
the Tuchman Agreement. But the ALJ expressly discredited all
three of those witnesses. “‘[W]e do not reverse the Board’s
adoption of an ALJ’s credibility determinations unless . . . those
determinations are hopelessly incredible, self-contradictory, or
patently unsupportable.’” United Food & Commercial Workers
Union Local 204 v. NLRB, 447 F.3d 821, 824 (D.C. Cir. 2006)
(quoting Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 28
(D.C. Cir. 1998)). Because the petitioners offer no reason to
overturn the ALJ’s credibility determinations, we have no basis
for doing so.2

The petitioners also contend that Foley, the union’s first
negotiator and a witness whom the ALJ did credit, admitted in
his testimony that his superior, Alcoff, “surreptitiously
controlled the negotiations and would not allow the Union’s
bargaining representatives to unilaterally accept any terms that

2
The ALJ found one witness unreliable because she “often
contradicted herself[,] . . . could not recall various subjects relating to
the bargaining,” and was “not truthful” about her attempts to replace
SEIU 1199 with a rival union. Wayneview, 352 N.L.R.B. at 1097
(ALJ Op.). The ALJ did not credit the second witness because her
testimony was “contrary to the documentary evidence.” Id. And the
ALJ declined to credit the third’s testimony regarding the course of
negotiations because he “did not recall many details and had a very
vague recollection of the specific offers, their costs and the timing of
the discussions.” Id. at 1103; see also id. at 1112 n.56.
 12

deviated from the standard Union proposals set forth in the
[Tuchman] Agreement.” Pet’r Reply Br. 6. But nothing in
Foley’s testimony supports this contention. Foley did say that
Silva (the union’s president) “was working with . . . Larry
Alcoff in coordinating most of how the overall contract
negotiations were going,” Hr’g Tr. 1099 (Dec. 6, 2005) (J.A.
233), but he did not suggest that Alcoff or Silva told him not to
deviate from the Tuchman Agreement. In fact, when Foley was
expressly asked during cross-examination whether “there [was]
any requirement that . . . the contracts for Victoria or
Wayneview needed to mimic the language or terms of the
Tuchman Agreement,” or whether “anyone ever suggest[ed]”
that they should, Foley replied, “No.” Id. at 1115-16 (J.A. 237).

Finally, the petitioners assert that, notwithstanding progress
on other issues, the parties ultimately deadlocked over the single
critical issue of health insurance, which led to a complete
impasse. Although under certain circumstances deadlock on a
single issue can justify an overall finding of impasse, see Dallas
Gen. Drivers v. NLRB, 355 F.2d 842, 845 (D.C. Cir. 1966),
“[t]he Board has long distinguished between an impasse on a
single issue that would not ordinarily suspend the duty to
bargain on other issues and the situation in which impasse on a
single or critical issue creates a complete breakdown in the
entire negotiations.” Sacramento Union, 291 N.L.R.B. 552, 554
(1988), enf’d sub nom. Sierra Publ’g Co. v. NLRB, 888 F.2d
1394 (9th Cir. 1989). “Only in th[e] latter context when there
has been a complete breakdown in the entire negotiations, is the
employer free to implement its last, best, and final offer.” Id.
The party asserting impasse bears the burden of proving not only
that the deadlocked issue is critical, but that “there can be no
progress on any aspect of the negotiations until the impasse
relating to the critical issue is resolved.” CalMat Co., 331
N.L.R.B. 1084, 1097 (2000).
 13

The petitioners have not made that showing here. Although
they claim that the parties were deadlocked over the employers’
participation in the union’s health insurance plan, that claim
fails for two reasons. First, the petitioners have not shown that
the asserted deadlock over health insurance inhibited progress
on any other aspect of the negotiations. And second, the
evidence is that there was no deadlock: In the final bargaining
session before the petitioners declared impasse, the union let go
of its demand that the employer participate in the union’s health
insurance plan -- the precise issue that the petitioners claim
created the impasse.

An employer violates section 8(a)(5) and (1) of the NLRA
if it “unilaterally imposes changes in the terms and conditions of
employment” before either final agreement or bargaining
impasse. TruServ, 254 F.3d at 1113; see Litton, 501 U.S. at 198.
Because substantial evidence supports the Board’s finding that
the parties had not reached impasse, we uphold the Board’s
ruling that the petitioners violated the NLRA by unilaterally
implementing their August 22 offer.

IV

The petitioners also challenge the Board’s determination
that they violated section 8(a)(3), (5), and (1) of the NLRA by
unlawfully locking out their employees without a “legitimate
and substantial business justification,” in an attempt to coerce
the union into accepting the employers’ so-called “last best
offer” of August 22. Wayneview, 356 N.L.R.B. No. 30, at 1-2
(Board Op. II).3 “When an employer locks out its employees for

3
Section 8(a)(3) states that it is an unfair labor practice for an
employer “by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage
membership in any labor organization.” 29 U.S.C. § 158(a)(3).
 14

the purpose of evading its duty to negotiate with the employees’
bargaining representative,” or to “coerce the [u]nion to accept
the [employer’s] unilaterally implemented final offer,” the
employer violates the Act. Teamsters Local Union No. 639 v.
NLRB, 924 F.2d 1078, 1085 (D.C. Cir. 1991); see also Anderson
Enters., 329 N.L.R.B. 760, 766 (1999) (holding a lockout
unlawful when “utilized to enable [the employer] to implement
its own bargaining position without . . . genuine impasse”), enf’d
2 Fed. App’x 1 (D.C. Cir. 2001).4

Substantial evidence supports the Board’s conclusion that
the petitioners did just that. During the strike at Victoria, the
petitioners’ lawyer sent a fax to Alcoff advising that employees
would not be allowed to return to work unless the union
accepted the employers’ August 22 offer. Fax from Alessi to
Alcoff (Aug. 26, 2005) (J.A. 315). The ALJ reasonably
determined that this “refusal to reinstate the strikers after their
unconditional offer to return . . . constituted a lockout,” that
Victoria expressly conditioned the end of its lockout on the
union’s acceptance of the August 22 offer, and that “the
employer was not entitled to impose a final offer because there
was no valid impasse.” Wayneview, 352 N.L.R.B. at 1119 (ALJ
Op.).5 Similarly, Margaret Nolan, Wayneview’s administrator,

4
Although the Supreme Court has held that an employer may lock
out its employees “for the sole purpose of bringing economic pressure
to bear in support of its legitimate bargaining position,” Am. Ship
Bldg. Co. v. NLRB, 380 U.S. 300, 318 (1965), the petitioners do not
assert that they had such a purpose, see Wayneview, 356 N.L.R.B. No.
30, at 1 (Board Op. II).
5
There is no merit to the petitioners’ contention that the offer to
return was not “unconditional” because the strikers refused to accept
the terms of the August 22 offer. As the ALJ noted, the terms of the
expired contract were still in place when the union went on strike, and
the strikers were prepared to return to work on those terms. 352
 15

sent a fax to Silva during the lockout announcing that
Wayneview would also implement its August 22 offer during
the lockout of its employees. Fax from Nolan to Silva (Aug. 31,
2005) (J.A. 322). And both employers ultimately did
unilaterally implement the August 22 offer as threatened. Letter
from Alessi to Alcoff (Oct. 3, 2005) (J.A. 405). Accordingly,
the Board had substantial support on the record to rule that the
lockouts violated the NLRA. 356 N.L.R.B. No. 30, at 1-2
(Board Op. II).

The petitioners counter that the lockouts were “‘defensive’
lockout[s] reasonably necessary to ensure continued patient
care,” id., and therefore lawful under Sociedad Española de
Auxilio Mutuo y Beneficiencia, 342 N.L.R.B. 458 (2004), enf’d,
414 F.3d 158 (1st Cir. 2005). In Sociedad, the union notified a
hospital that it intended to strike from December 22-24 and from
December 31-January 2. Id. at 460. The facility decided to
engage in a lockout between those two planned work stoppages.
Although the union canceled its first strike at 8:15 p.m. on
December 21 (the night before it was scheduled to occur), the
employer moved the lockout up to December 22. The Board
held that “continuity of patient care” was the lockout’s
“operative purpose,” and that “this operative purpose . . .
provide[d] the legitimate and substantial business justification”
required to render it lawful. Id. at 461-62. In support, the
Board noted that: the employer “could reasonably be concerned
that the ‘11th hour’ cancellation [of the first strike] would not be
true and effective”; “replacements had already been hired” and
thirty “were already sleeping in the hospital”; the employer “was
still faced with a [second planned] strike for December 31”; and

N.L.R.B. at 1119 (ALJ Op.). It was the employers, not the union, that
tried to impose a new condition: acceptance of the August 22 offer.
Under these circumstances, the ALJ reasonably determined that the
union had made a “a valid unconditional offer.” Id.
 16

recruiting personnel to work only during the holiday would be
“difficult.” Id. at 462.

None of those circumstances exists in this case. The ALJ
noted that administrator Nolan’s “unreliable and shifting”
testimony did not evidence any firm commitment to the
replacement workers at Wayneview, or any practical difficulties
in notifying them of the union’s decision not to strike. 352
N.L.R.B. at 1117 (ALJ Op.). There was no evidence that
Wayneview would be financially liable if the replacement
workers were turned away. And at Victoria, there was no
testimony at all concerning a business justification for the
lockout. Id. at 1119. Nor was there “evidence that the Union
was planning another strike or further picketing at Victoria or
that the Union would not adhere to its decision to limit
concerted activity at Wayneview to 1 day of informational
picketing during employees’ nonworking time.” 356 N.L.R.B.
No. 30, at 1 (Board Op. II). In short, the ALJ persuasively
distinguished Sociedad, and on that basis, the Board reasonably
agreed that the employers had failed to show that the lockouts
were “lawful ‘defensive’ lockout[s] reasonably necessary to
ensure continued patient care.” Id.

The petitioners insist that “substantial record evidence
established that [they] lawfully locked out their employees for
legitimate business reasons.” Pet’r Br. 54. Even if this were a
correct assessment of the record, its premise inverts the
appropriate standard of review. The question before us is not
whether substantial evidence supports the petitioners’ view, but
whether it supports the Board’s. See 29 U.S.C. § 160(e) (“The
findings of the Board with respect to questions of fact if
supported by substantial evidence on the record considered as a
whole shall be conclusive.”). Because it does, our inquiry with
respect to this violation is concluded.
 17

V

Finally, the petitioners dispute the Board’s finding that,
“[b]y promising employees a return to work and increased
benefits if they signed a petition to decertify the Union, . . .
Wayneview assisted employees in the solicitation of signatures
on a petition to decertify the Union in violation of Section
8(a)(1) of the Act.” Wayneview, 352 N.L.R.B. at 1090 (Board
Op. I). An employer’s “conduct violates § 8(a)(1) if it
‘interfere[s] with, restrain[s], or coerce[s] employees’ in their
decision whether to decertify the union.” Exxel/Atmos, Inc. v.
NLRB, 147 F.3d 972, 974 (D.C. Cir. 1998) (quoting 29 U.S.C.
§ 158(a)(1)).

The Board’s finding arose out of two separate allegations in
the General Counsel’s complaint. The first involved employee
Margaly Pierre, who attempted to return to work at Wayneview
during the lockout. According to Pierre’s testimony -- which the
ALJ credited and no witness contradicted -- director of nursing
Nancy Ziccone asked her if she wanted to “work with
Wayneview” or “work with the Union.” Hr’g Tr. 504-05 (Oct.
19, 2006) (J.A. 145). Pierre replied that she was a single mother
who needed a job and would choose to work. Id. at 505.
Another supervisor told her that if she agreed to work without
the union, she would get “free health benefits, health insurance,
free paid vacation, free personal days, and free sick days.” Id.
at 506. Ziccone then gave Pierre a piece of paper with language
to “vote the Union out,” and told her that “if [she] were to work
with Wayneview [she] was to sign the paper.” Id. at 506-07.
She did. The General Counsel’s second allegation involved
staffing coordinator Christopher Irizarry, whom the ALJ found
had assisted in gathering signatures of locked-out employees on
a decertification petition. Wayneview, 352 N.L.R.B. at 1115
(ALJ Op.).
 18

The petitioners’ opening brief does not address Ziccone’s
treatment of Pierre at all. Instead, its entire discussion concerns
the allegation of misconduct by Irizarry. But that attack is
misdirected, because the Board rested its affirmance of the
ALJ’s finding solely on the incident involving Pierre. It was
“unnecessary to rely on the conduct of Wayneview’s staffing
coordinator, Christopher Irizarry,” the Board said, because “[a]n
additional violation based on Irizarry’s conduct would be
essentially cumulative and would not materially affect the
remedy.” 352 N.L.R.B. at 1089 n.3 (Board Op. I). Although the
petitioners do finally address the Pierre incident in their reply
brief, that argument comes too late. See N.Y. Rehab. Care
Mgmt. v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007) (“[W]e
have generally held that issues not raised until the reply brief are
waived.” (citation and internal quotation marks omitted)). It is
also wholly unpersuasive. “There is no question” that an
employer “promising better economic benefits” to employees or
“threatening [them] with the loss of their jobs” to induce them
to sign a decertification petition constitutes “ample grounds for
a violation of section 8(a)(1) of the Act.” NLRB v. Maywood
Plant of Grede Plastics, 628 F.2d 1, 3 (D.C. Cir. 1980); see
Exxel/Atmos, 147 F.3d at 974.

VI

For the foregoing reasons, we deny the petition for review
and grant the Board’s cross-application for enforcement.

So ordered.