United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2011 Decided January 20, 2012
No. 10-1340
LAUREL BAY HEALTH & REHABILITATION CENTER,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 10-1405
On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations
Board
David F. Jasinski argued the cause for the petitioner.
Zachary R. Henige, Attorney, National Labor Relations
Board, argued the cause for the respondent. John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, Jill A. Griffin, Supervisory Attorney, and
Richard A. Cohen, Attorney, were on brief.
Before: HENDERSON, BROWN and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner
Laurel Bay Health and Rehabilitation Center (Laurel Bay) seeks
review of a decision of the National Labor Relations Board
(NLRB, Board) affirming the findings of an administrative law
judge (ALJ) that Laurel Bay committed eight unfair labor
practices (ULPs) 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 Laurel Bay Health & Rehab. Ctr., 353 N.L.R.B. 232, 232
n.3, 39 (ALJ) (2008) (Laurel Bay I), incorporated by reference
in Laurel Bay Health & Rehab. Ctr., 356 N.L.R.B. No. 3, 2010
WL 4227855 (2010) (Laurel Bay II). The Board filed a cross-
application for enforcement. We grant Laurel Bay’s petition in
part and set aside the Board’s findings that Laurel Bay
committed ULPs when it prematurely declared impasse and
unilaterally implemented a wage increase on September 1, 20051
for the reasons set forth below. We deny the petition and grant
enforcement as to the remaining ULP findings because Laurel
Bay has forfeited any objection thereto.2
1
Unless otherwise noted all dates cited are in 2005.
2
The remaining six ULPs are based on allegations that Laurel Bay
(1) unilaterally terminated a nursing assistant’s “accommodation
schedule” that allowed her to work a non-standard shift one day each
week to attend a class; (2) unilaterally announced the termination of
all accommodation schedules; (3) unilaterally terminated a
transportation service it provided for certain nurses’ aides; (4) refused
to meet for bargaining after October 4, 2005; (5) unilaterally
implemented merit pay raises; and (6) failed to provide information
requested by the SEIU 1199 New Jersey Health Care Union (Union)
on August 31, 2005 and thereafter. Laurel Bay forfeited its objections
to the first two alleged ULPs because it failed to except to them before
the Board. See Laurel Bay I, 353 N.L.R.B. at 232 n.1; 29 U.S.C.
§ 160(e) (“No objection that has not been urged before the Board . . .
shall be considered by the court, unless the failure or neglect to urge
such objection shall be excused because of extraordinary
3
I.
Laurel Bay operates a nursing home and rehabilitation
center in Keansburg, New Jersey. From 1999 until 2005, SEIU
1199 New Jersey Health Care Union (Union) represented 82
Laurel Bay employees in a collective bargaining unit consisting
of full-time and regular part-time licensed practical nurses,
nurses aides, recreational aides, beauticians, housekeeping aides,
circumstances.”). Laurel Bay forfeited the third through fifth
objections because it did not provide any legal argument in its opening
brief to support overturning either the third and fourth ULPs or the
fifth ULP insofar as the Board based the fifth ULP on McClatchy
Newspapers, Inc., 321 N.L.R.B. 1386, 1391 (1996). See Laurel Bay
I, 353 N.L.R.B. at 248 (ALJ) (assuming impasse occurred, Laurel Bay
could not lawfully implement discretionary merit pay plan under
McClatchy because “[a]llowing the employer to implement upon
impasse a clause that reserved the right to unilaterally exert unlimited
managerial discretion over future pay increases [‘]would be so
inherently destructive of the fundamental principles of collective
bargaining that it could not be sanctioned as part of a doctrine created
to break impasse and restore active collective bargaining.’ ” (quoting
McClatchy Newspapers, 321 N.L.R.B. at 391)) (quotation mark
omitted); id. at 232 n.3 (adopting ALJ’s “contested findings of
violations”); Laurel Bay II, 2010 WL 4227855, at *1 (incorporating
Laurel Bay I); Dunkin’ Donuts Mid-Atlantic Distrib. Ctr., Inc. v.
NLRB, 363 F.3d 437, 441 (D.C. Cir. 2004) (enforcing rule that
“argument portion of an appellant’s opening brief ‘must contain’ the
‘appellant's contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies.’ ”
(quoting Fed. R. App. P. 28(a)(9)(A))). Finally, because the “duty to
provide relevant information needed by a labor union for the proper
performance of its duties as the employees’ bargaining representative”
arises from the “duty to bargain collectively,” U.S. Testing Co. v.
NLRB, 160 F.3d 14, 19 (D.C. Cir. 1998) (quotation omitted), we find
the seventh ULP forfeited on the same basis as the fourth. In finding
Laurel Bay forfeited its objections, we express no opinion on the
merits of the alleged ULPs.
4
laundry employees and dietary employees. In early 2005,
Laurel Bay and the Union began negotiating a successor
collective bargaining agreement. Under the previous five-year
agreement, in effect from October 1999 through September
2004, unit members were initially covered under Laurel Bay’s
health insurance plan. In October 2003, however, the parties
entered into an “extension” agreement which extended the
contract through March 2005. In addition, the extension
agreement transferred the unit employees’ health coverage from
Laurel Bay’s employee health insurance plan to the Union’s
SEIU 1199 Greater New York Benefit Fund (Benefit Fund)3 and
required Laurel Bay to contribute a percentage of its gross unit
payroll to the Benefit Fund. The initial contribution was set at
12%, increasing on February 1 to 16% and on April 1 to 18% .4
The parties conducted eight bargaining sessions in 2005 in
an effort to forge a successor collective bargaining agreement.
Laurel Bay was represented primarily by its counsel, David F.
Jasinski, with the assistance of Laurel Bay’s finance director,
David Dennin, and human resources director, Linda Meehan.
The Union was represented by a succession of three individuals:
Uma Pimplaskar, Justin Foley and Larry Alcoff.
Pimplaskar represented the Union at the first two bargaining
sessions. At the first, which took place in February, she
presented Laurel Bay with a contract proposal which, inter alia,
3
The Benefit Fund is managed by a Board of Trustees (Trustees),
half of whom are designated by employers and half by the Union.
Atrium at Princeton, LLC, 353 N.L.R.B. No. 60, 2008 WL 5134010,
at *56 n.10 (2008) (ALJ), adopted by Atrium at Princeton, LLC, 356
N.L.R.B. No. 6, 2010 WL 4318370 (Oct. 22, 2010).
4
The extension agreement also authorized Laurel Bay to hire up
to 25 “no frills” or “per diem” employees, i.e., employees who receive
no benefits under the collective bargaining agreement.
5
provided for increased contributions to the Benefit Fund.5
Under the proposal, beginning May 1, Laurel Bay was to
contribute 21% of gross unit payroll to the Benefit Fund, with
the percentage to be adjusted by the Benefit Fund trustees “as
necessary to maintain the level of benefits currently provided or
as improved by the Trustees during the life of the Agreement”
but “in no event” to exceed 24% of gross unit payroll.6 Resp’t
ex. 1 at 7 (JA 163). According to Jasinski’s uncontradicted
testimony, Pimplaskar told him “there were certain provisions
in their proposals that would not be negotiable, that she would
not even hear any discussions about,” including the Benefit
Fund contribution requirement. Hearing Tr. 436 (JA 120).
Jasinski also testified she told him the Union was then
negotiating 40 to 45 contracts with a group of 20 New Jersey
nursing homes represented by lawyer Morris Tuchman
(Tuchman Group) and any agreement reached with Laurel Bay
would have to be approved by a “master committee” made up of
employees at other facilities. Finally, she requested that Laurel
Bay provide a list of unit employees, their rates of pay, hours
worked and dates of hire.
The parties met for a second session on March 9, at which
time Laurel Bay presented a written counter-proposal addressing
5
The proposal was delivered at least in oral form at the first
session. Jasinski testified he was uncertain whether Pimplaskar
presented the written version at the first or the second session.
6
The proposal also provided that Laurel Bay contribute 2½% of
each unit employee’s gross earnings to the Union’s national pension
fund, ½% to its Training and Education Fund and ½% to the New
Jersey Healthcare Workers Alliance for Quality in Long Term Care.
It also contained provisions addressing non-economic subjects such as
Union activities and communications, seniority, layoff and recall,
transfer and promotion, discipline and discharge and
labor-management committees. It did not include a wage proposal.
6
non-economic issues, including overtime eligibility, part-time
employee criteria and grievance and arbitration procedures.
According to Jasinski, Pimplaskar informed him then that the
Union’s proposal was the “standard contract”—which Jasinski
interpreted to mean the contract then being negotiated with the
Tuchman Group—and that it was the contract the Union was
“going to negotiate” and was “going to get.” Hearing Tr. 445
(JA 123). On March 21, Alcoff notified Jasinski that Foley was
replacing Pimplaskar as chief Union negotiator.
Foley met with the Laurel Bay representatives for the first
time in mid-May. He testified at the ALJ hearing that, during the
2½ hour meeting, the parties merely reviewed outstanding
information requests and proposals that were already “on the
table.” Hearing Tr. 45 (JA 43).
The next meeting, on June 3, lasted about three hours. The
parties again addressed information requests and they discussed
non-economic contract terms but failed to reach any agreement.
They also signed a “memorandum of agreement”—extending
the existing contract through June 30—and scheduled another
bargaining session.
On June 17, Foley met again with the Laurel Bay
negotiating team and tendered a revised economic proposal on
the Union’s behalf. The proposal, inter alia, set a Benefit Fund
contribution rate of 22.33% of gross unit payroll and annual
wage increases of 4%.7 According to Jasinski, Foley stated the
Union could not “deviate” from or “make any changes” to a
7
In addition, the proposal set contribution rates for the other
Union funds, prohibited hiring new “no frills” employees and
established minimum “parity” pay for lower paid employees—
housekeeping and dietary workers, in particular—intended to bring
their pay up to “industry” levels by the contract’s end date. See Resp’t
Br. 8, 14-15.
7
number of provisions in the Tuchman “Master Contract,”8
including the Benefit Fund contribution requirement, because
the Tuchman Master Contract included a “most favored nations”
clause requiring any concession the Union granted Laurel Bay
it “would have had to give [] to everyone else.” Hearing Tr. 452
(JA 124). Thus, according to Foley, the Union’s hands were
“tied.” Id.9 According to Dennin’s testimony, Foley said the
22.33% Benefit Fund contribution in particular was “set in
stone.” Hearing Tr. 549 (JA 147).
When the negotiators met again on July 8, Jasinski
presented Foley with Laurel Bay’s own economic proposal,
proposing a Benefit Fund contribution of 16% of gross unit
payroll (through the entire contract term), wage increases of 3%
in October 2005 and October 2006 and 2% in April 2007 and
October 2007 and an annual discretionary “merit bonus or merit
8
The Tuchman Master Contract was the final negotiated three-
year contract agreed to by the Union and the 20 facilities in the
Tuchman Group. It took effect on June 15, 2005.
9
The Tuchman Master Contract contained the following relevant
most favored nations language:
In the event the Union enters into any collective bargaining
agreement . . . on or after April 1, 2005 with a proprietary
nursing home in New Jersey which provides for more
favorable economic terms and conditions to the employer
than those contained herein, such more favorable terms and
conditions shall automatically be applicable to the
Employers [signatory to the Tuchman Master Contract] . . . .
Resp’t ex. 23 at 29, art. 35, ¶ 35.2 (JA 251) (agreement between SEIU
1199 New Jersey Health Care Union and Arnold Walter Nursing
Home et al.).
8
pay” plan.10 Foley testified they did reach agreement on some
non-economic issues but not on the key economic points.
According to Dennin, Foley was “adamant” about the 22.33%
Benefit Fund contribution because “that is what he [had] gotten
at other facilities and that is what he w[ould] get at all of his
facilities.” Hearing Tr. 552 (JA 147). According to Dennin,
Jasinski responded: “Laurel Bay is Laurel Bay and he didn’t
care what [Foley] negotiated with other owners at other
facilities.” They scheduled another session for July 16 which
Foley subsequently cancelled because by then he had left the
local Union’s employ. Foley’s notes written after the July 8
meeting indicated Laurel Bay did not “seem to be making any
money” and quoted Jasinski as calling Laurel Bay “broke”
because its resident census was low at only 70%. Resp’t ex. 18
(JA 214).
On August 5, the negotiators convened again after Alcoff
replaced Foley as the Union’s chief negotiator. During the
session, Alcoff and Jasinski reached a tentative agreement on a
number of non-economic issues. In addition, Alcoff presented
a written counter offer of economic proposals, which again set
a Benefit Fund contribution rate of 22.33% but with the
additional proviso that, if 22.33% was insufficient to cover
costs, the parties would meet and either adjust benefits or make
other revisions (with final and binding arbitration in the event
they could not agree). “In no event,” however, could “the
contribution requirement of the Employer exceed 22.33% of
gross payroll . . . except by mutual agreement.” Gen. Counsel
ex. 7, art. 31, ¶ 31.1 (JA 415). The ALJ found the counter
10
Laurel Bay also proposed new criteria for setting new hires’
wages, new hourly rates for no-frills employees and little or no change
in sick/holiday/vacation days.
9
offer’s Benefit Fund provision and certain other terms11 were
“identical” or “virtually” so to those in the Tuchman Master
Contract. Laurel Bay I, 353 N.L.R.B. at 237. According to
Jasinski, Alcoff told him the Union was “going to get the
Tuc[h]man contract” and relied on that contract’s most favored
nations clause to justify the Union’s refusal to consider other
proposals. Hearing Tr. 469 (JA 129); see also id. at 474 (JA
130) (Alcoff “kept on referring to [the Union’s] desires to
negotiate the standard agreement”). Alcoff acknowledged that,
although there were some facility-specific variations in the
Tuchman Master Contract, all 20 of the signatory employers
were required to make a Benefit Fund contribution of 22.33%.
According to Dennin, both he and Jasinski responded that the
proposed rates were “too much” and “too high” because of
Laurel Bay’s “very low” census, with 23 of its 123 beds then
empty. Hearing Tr. 553-54 (JA 148).
The parties held their final bargaining session on August 23.
At that time, Laurel Bay orally modified its July 8 proposal,
moving the October 1, 2005 3% wage increase up to August 14.
Alcoff testified that they had “a back and forth discussion,
briefly, on the health insurance, again” during which Dennin
stated he “didn’t want to pay any more than he was currently
paying for health insurance, and with the raises on the table, 16
percent of a higher gross payroll would equal his current 18
percent of a lower gross payroll pre-raises.” Hearing Tr. 154
(JA 68). Alcoff responded that Dennin’s suggestion was “not
going to be possible” and that there was “no way that they were
going to be able to stay in the [Benefit Fund] at the rate that they
were proposing.” Hearing Tr. 154, 186 (JA 68, 76). Alcoff
stated that he asked Jasinski what he would do if the Benefit
Fund rejected Laurel Bay’s 16% contribution offer and Jasinski
11
These included the proposal’s no-frills employee and wage
increase terms.
10
replied that “that was [Alcoff’s] problem.” Id. at 187 (JA 76).
Alcoff added that if Laurel Bay was unwilling to pay any more
than the amount it offered, the Union “had to look for other
health insurance.” Hearing Tr. 154 (JA 68). According to
Alcoff’s testimony, Alcoff asked Jasinski: “What do you offer
the non-Union employees?” Hearing Tr. 86-87 (JA 76)—and
suggested the negotiators “ought to look at other plans.”
Hearing Tr. 187 (JA 76).
At Alcoff’s suggestion, he and a Laurel Bay unit employee
joined Jasinski and Dennin in Laurel Bay’s caucus room for an
“off-the-record discussion,” which Alcoff characterized as
“very, very unproductive.” Hearing Tr. 155-56 (JA 68). After
Alcoff and the employee returned to the bargaining room,
Jasinski joined them and declared that Laurel Bay’s outstanding
July 8 offer (as orally amended to accelerate the first pay raise)
was Laurel Bay’s “last and best final offer.” Hearing Tr. 476
(JA 130); see also id. at Tr. 157 (JA 69); 353 N.L.R.B. at 239,
241. Alcoff testified he expressed surprise because they had had
“virtually no discussion on economic issues.” Hearing Tr. 158
(JA 69). He then questioned Jasinski at length about Laurel
Bay’s other contract proposals—how they might be applied and
how much money they would save Laurel Bay. In conclusion,
Alcoff testified, he said to Jasinski:
I will tell you that we are not at impasse in this
discussion. There’s wiggle room on the proposal. But,
clearly, we need to know a lot of answers to these
kinds of questions, now that we’re apparently
surprisingly at the end of bargaining, out of the blue.
. . . [W]e would like to schedule another session. We
will need information, because, frankly, we need to
know in real terms what the impact of this will be both
on our members and to the employer, so we can cost it
out against our proposal and make a comprehensive
counter-proposal.
11
Hearing Tr. 169 (JA 72). Jasinski responded he did not have his
calendar with him to schedule another session but would call the
Union local later to do so.
On August 31, Alcoff wrote Jasinski that he was “preparing
a comprehensive counterproposal on the remaining open issues”
and requested information, including the summary plan
descriptions of Laurel Bay’s non-unit employee health plans and
the amounts of their premiums (for employer and employee).
Gen. Counsel ex. 8 (JA 417). The next day, September 1, Laurel
Bay implemented a 3% pay raise in accord with its July 8,
economic proposal, as amended on August 23 (accelerating the
date of the raise). Alcoff immediately sent a fax to Jasinski
expressing “shock[]” that Laurel Bay unilaterally implemented
the increase, asking if Laurel Bay had implemented any other
provisions in its proposal and declaring: “We are clearly not at
impasse.” Gen. Counsel ex. 9 (JA 418). The two exchanged
correspondence regarding possible meeting dates until January
2007 but did not meet again. In his final letter, dated January
10, 2007, Alcoff complained that Laurel Bay “unilaterally
implemented a ‘merit bonus’ for bargaining unit employees in
December 2006,” which it apparently had done. Gen. Counsel
ex. 24 at 1 (JA 434).
The Union filed a series of unfair labor practice charges
against Laurel Bay from November 2005 to May 2006. On
February 2, 2007, the Board’s General Counsel filed a Third
Amended Consolidated Complaint alleging Laurel Bay violated
section 8(a)(5) and (1) of the Act by failing to provide the Union
with requested information, refusing to meet for bargaining at
reasonable times and unilaterally implementing changes in terms
of employment without first bargaining to impasse.12 The ALJ
conducted a hearing in February-March 2007.
12
For a list of the unilateral changes other than the wage increase,
see supra p. 2 note 2.
12
In his June 8, 2007 decision, the ALJ concluded Laurel Bay
violated section 8(a)(1) and (5) in all respects alleged based on
two alternate rationales. First, the ALJ concluded that there was
no impasse, relying on Alcoff’s conduct at the final bargaining
session both before Jasinski declared Laurel Bay’s latest offer to
be its “last and best final offer”—when Alcoff mentioned “other
health insurance” and Laurel Bay’s “non-Union employees,”
Hearing Tr. 154, 186-87 (JA 68, 76); and after Jasinski’s
declaration—when Alcoff questioned him about the terms of
Laurel Bay’s offer, denied there was an impasse, claimed there
was “wiggle room on the proposal” and expressed a desire to
schedule another bargaining session so the Union could make
“a comprehensive counter-proposal,” id. at 169 (JA 72). Laurel
Bay I, 353 N.L.R.B. at 245. Alternatively, the ALJ reasoned
that if there was an impasse, it was broken by the discourse
following Jasinski’s declaration, id. at 247. In either event, he
concluded, Laurel Bay violated the Act when it unilaterally
implemented the various changes in the absence of an impasse.
He further concluded Laurel Bay unlawfully refused to supply
requested information after the last session or to meet for further
bargaining.
In a decision filed September 30, 2008, a two-member panel
of the NLRB upheld the ALJ, finding that “the parties had not
reached an impasse in bargaining, and that [Laurel Bay] violated
Section 8(a)(5) when it unilaterally implemented various
changes in the employees’ terms and conditions of
employment.” 353 N.L.R.B. at 233. The Board explained:
Rather than evincing the existence of a bona fide
impasse over health insurance as of August 23, the
record shows that the parties had agreed to meet again,
that the Union would be preparing counterproposals,
and that there was at least professed flexibility on
health insurance alternatives.
13
Id. Laurel Bay petitioned for review. We held the case in
abeyance pending the United States Supreme Court’s decision
in New Process Steel, L.P. v. NLRB, cert. granted, 130 S. Ct.
488 (2009). On June 17, 2010, the Supreme Court issued its
decision in New Process Steel, 130 S. Ct. 2635 (2010), holding
that a two-member panel of the Board lacks statutory authority
to act on the Board’s behalf. Accordingly, on September 20,
2010, we granted the petition for review, vacated the Board’s
decision and “remanded for further proceedings before the
Board.” Laurel Bay Health & Rehab. Ctr. v. NLRB, No. 08-
1337 (D.C. Cir. Sept. 20, 2010).
On remand, a three-member panel of the Board succinctly
decided:
The Board has considered the judge’s decision and
the record in light of the exceptions and brief and has
decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order to
the extent and for the reasons stated in the decision
reported at 353 NLRB 232, which is incorporated
herein by reference.
Laurel Bay II, 2010 WL 4227855, at *1 (Oct. 15, 2010). Laurel
Bay filed a timely petition for review and the Board filed a
cross-application for enforcement.
II.
Section 8(a)(5) makes it an ULP for an employer “to refuse
to bargain collectively with the representatives of his
employees.” 29 U.S.C. § 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). In this case, we believe the Board
erred in upholding the ALJ’s finding that the parties were not at
impasse when Jasinski presented Laurel Bay’s “last and best
14
final offer” on August 23. Further, we conclude the Board also
erred in finding Laurel Bay committed an ULP when it
subsequently implemented its proposed 3% pay raise on
September 1.
“A bargaining impasse—which justifies an employer’s
unilateral implementation of new terms and conditions of
employment—occurs when ‘good faith negotiations have
exhausted the prospects of concluding an agreement’ leading
both parties to believe that they are ‘at the end of their rope.’ ”
Id. at 1114 (quoting Taft Broad. Co., 163 N.L.R.B. 475, 478
(1967); PRC Recording Co., 280 N.L.R.B. 615, 635 (1986)).
“Among the factors that the Board considers in evaluating the
existence of an impasse are ‘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 negotiations.’ ” Id. (quoting Taft, 163
N.L.R.B. at 478). “After weighing these factors, the Board will
find an impasse if there is ‘no realistic possibility that
continuation of discussions . . . would have been fruitful.’ ” Id.
(quoting Am. Fed’n of Television & Radio Artists v. NLRB, 395
F.2d 622, 628 (D.C. Cir. 1968)). Such is the case here.
From start to finish, the parties were at loggerheads over the
amount of Laurel Bay’s contribution to the Benefit Fund. As the
ALJ found, their “course of bargaining demonstrates that the
Union never proposed a Benefit Fund increase which was lower
than the raise ultimately agreed to in the Tuchman
agreement—22.33%, and [Laurel Bay] consistently insisted that
it would not agree to a higher rate than its offer of 16%.” 353
N.L.R.B. at 245 (footnote omitted). Thus, as the ALJ
acknowledged, when the parties entered the final bargaining
session on August 23, “all the elements of a genuine impasse in
bargaining were in place.” Id. at 246. And so it played out.
Dennin and Jasinski repeated their insistence on a contribution
15
rate of 16% and Alcoff responded it was “not going to be
possible” and there was “no way” Laurel Bay could remain in
the Union’s Benefit Fund at that rate. Hearing Tr. 154, 186 (JA
68, 76). And neither party budged before Jasinski, upon his
return from the caucus room, unequivocally declared Laurel
Bay’s existing proposal—including the 16% contribution
rate—to be its last, best and final offer. At this point, the seeds
of impasse had come to fruition.
On review, the NLRB acknowledged that “[i]mpasse over
a single issue may create an overall bargaining impasse that
privileges unilateral action if the issue is ‘of such overriding
importance’ that it frustrates the progress of further
negotiations” and that “the Benefit Fund contributions clearly
constituted such an issue.” 353 N.L.R.B. at 232-33 (quoting
CalMat Co., 331 N.L.R.B. 1084, 1097 (2000)). The Board
further recognized that “throughout most of the negotiation
sessions, the parties remained steadfastly fixed in their
respective positions: the Union adhering to the Tuchman
agreement terms, and the Respondent refusing to contribute
more than 16 percent of payroll” and that “[h]ad that status quo
persisted, an overall impasse might well have been achieved.”
Id. at 233. But the Board found that the status quo “did not
persist,” id.—a finding we cannot uphold because it is not
supported by substantial evidence. See TruServ, 254 F.3d at
1115 (“court ordinarily defers to the Board’s fact-finding as to
the existence of a bargaining impasse,” but “court must be
satisfied that the Board’s findings are supported by substantial
evidence on the record considered as a whole”).
In TruServ, the employer too made a “last, best and final
offer” but the Board concluded “the parties had not bargained to
impasse before the [employer] unilaterally implemented changes
in the unit employees’ terms and conditions of employment”
because “until the [employer] abruptly claimed that its ‘last, best
and final offer’ was on the table and would be implemented
16
unilaterally if not accepted, both the [employer] and the Union
had demonstrated considerable flexibility and willingness to
compromise their positions.” 254 F.3d at 1114 (quotation marks
omitted). The employer petitioned the court for review and we
granted the petition as to the impasse finding. We concluded
that “nothing in the record negate[d] [the employer’s]
classification of its [] proposal as its ‘last, best, and final
offer.’ ” Id. at 1115. Similarly here—after six months of
negotiation—the parties in August 2005 remained as far apart on
the Benefit Fund contribution issue as they were when talks
began in February.
At oral argument, the Board’s counsel argued at length that
the “context” of the final August 23 meeting—i.e., the entire
course of the parties’ bargaining—reinforced that the parties
were not at impasse. This argument runs contrary to both the
ALJ’s and the Board’s characterizations of the parties’ consistent
adherence to their respective positions on the Benefit Fund
contribution up to the August 23 session, when, as both the ALJ
and the Board acknowledged, the parties were poised for
impasse. See 353 N.L.R.B. at 233 (Board); id. at 245 (ALJ). In
finding no impasse, the Board largely ignored the parties’
bargaining history and focused instead on their post-impasse
conduct—what the Union did and what Laurel Bay did not.13 On
13
The Board largely ignored the four Taft factors, supra p. 14,
relying on only one—the contemporaneous understanding of the
parties—and that only briefly. See 353 N.L.R.B. at 245-46. Yet
Jasinski’s declaration of Laurel Bay’s last, best and final offer and
Alcoff’s rejection of the offer show that their contemporaneous
understanding practically shouted impasse. TruServ, 254 F.3d at 1117.
Nor does Alcoff’s denial of impasse belie such an understanding. See
id. (“[A] bald statement of disagreement by one party to the
negotiations is insufficient to defeat an impasse. A contrary result
would render the ‘contemporaneous understanding’ Taft factor
meaningless.”).
17
the Union’s part, the Board pointed to Alcoff’s statements that
“the Union was prepared to consider alternative medical
insurance proposals, including the health care plan covering
[Laurel Bay]’s nonunion employees” and that “the Union would
be preparing a counterproposal.” 353 N.L.R.B. at 233. To the
extent a proposal may be inferred from Alcoff’s vague comments
before Jasinski declared Laurel Bay’s “last and best final offer,”
—suggesting the parties might have to “look for other health
insurance” and asking about health plans offered “non-Union
employees,” Hearing Tr. 154, 186-87 (JA 68, 76)—it was
emphatically rejected by Jasinski’s declaration. And his post-
declaration statements simply came too late, after impasse had
already been reached.14 In any event, “ ‘[t]he Board itself has
indicated that a party’s “bare assertions of flexibility on open
issues and its generalized promises of new proposals [do not
clearly establish] any change, much less a substantial change” in
that party’s negotiation position.’ ” TruServ, 254 F.3d at 1117
(quoting Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 233
(D.C. Cir. 1996) (quoting Civic Motor Inns, 300 N.L.R.B. 774,
776 (1990))) (brackets in TruServ). Here, Alcoff’s twelfth-hour
protestations and posturing did nothing to negate the culmination
in impasse of 6 months’ fruitless bargaining. See id.
(“Furthermore, the Union’s ‘conduct’ on which the Board
relies—the Union’s self-serving statement . . . that the parties
were not at impasse and the Union’s vacuous request . . . for
14
Although the ALJ found that if there was an impasse, it was
subsequently broken by Alcoff’s near-soliloquy, Laurel Bay I, 353
N.L.R.B. at 245, the Board appears not to have adopted the finding.
See id. at 232 (“For the reasons set forth below, we agree with the
judge that [Laurel Bay] violated Section 8(a)(5) and (1) of the Act by
prematurely declaring impasse and unilaterally implementing certain
changes to its employees’ terms and conditions of employment.”
(emphasis added)). In any event, the Board does not rely on the
broken impasse rationale now.
18
additional meetings—is insufficient to demonstrate the Union’s
desire to pursue further negotiations.”). They did not “actually
commit[] the Union to a new position or contain[] any specific
proposals.” Serramonte, 86 F.3d at 233. In total, they “offer
about as much as a handful of air” to support the Board’s finding
of no impasse. Id. There is no suggestion in the record that
Laurel Bay was willing to retreat from its consistent insistence
on a 16% contribution rate or that the Union would move toward
it. See TruServ, 254 F.3d at 1116 (“In short, the parties remain
in control of their negotiations, and each party, not the Board,
determines at what point it ceases to be willing to
compromise.”). There was no movement at all here—merely the
persisting status quo.15
As for Laurel Bay, the Board faults it for failing to “test the
Union’s stated willingness to move, consider a union
counterproposal, or follow through with an additional negotiation
session” and the “sincerity” of its “professed flexibility on health
insurance alternatives.” 353 N.L.R.B. at 233. We rejected just
such a requirement, however, in Serramonte. There, the ALJ
“placed the burden on [the employer] to ‘contemplate whether
the Union was reconsidering’ ” by “probing [its] frankness.” 86
F.3d at 233 (quoting Serramonte Oldsmobile, Inc., 318 N.L.R.B.
15
Nor is the Board’s finding of no impasse supported, as it claims,
by “evidence at the hearing establish[ing] that the Union, in fact,
agreed to contracts with six other nursing homes in New Jersey that
did not include the Benefit Fund as the insurance plan for unit
employees.” Laurel Bay I, 353 N.L.R.B. at 233; see, e.g., Resp’t ex.
23 at 67 (JA 289) (arbitral award in New Vista Nursing & Rehab.
Ctr.). Such post hoc evidence sheds no light on the
“ ‘contemporaneous understanding of the parties as to the state of
negotiations’ ” at the August 23, 2005 bargaining session. Taft, 163
N.L.R.B. at 478 (emphasis added). Moreover, the parties here never
agreed to consider other plans nor was there any movement on the
contribution rate.
19
80, 97 (1995)). We found the Board’s approach “reflect[ed] a
clear misunderstanding of the relevant inquiry” because “there
is absolutely no basis for requiring a negotiating party to probe
the sincerity of another party’s contentless statements after an
impasse has already been reached.” Id. Yet this is exactly the
burden the Board once again imposed in this case. And just as
wrongly. Once Jasinski made his declaration and impasse was
reached, the burden lay on the Union to show “changed
circumstances.” See id. at 233 (“[I]t is incumbent on the party
asserting that the impasse has been broken to point to the
changed circumstances that would justify such a finding.”). The
Union did not meet its burden when it failed to produce
substantial evidence of such a change.16
16
In a post-argument letter submitted pursuant to District of
Columbia Circuit Rule 28(j), the Board asserts its impasse finding is
supported by the court’s recent decision in Wayneview Care Center v.
NLRB, Nos. 10-1398 et seq. (D.C. Cir. Dec. 23, 2011). The Board
contends that here, as in Wayneview, “the Union . . . let go of its
demand that the employer[] participate in the Union’s health insurance
plan” and the court should therefore uphold the Board’s finding that,
like the employers in Wayneview, Laurel Bay “did not bargain to a
good-faith impasse.” Rule 28(j) letter at 1 (filed Dec. 28, 2011). The
parties’ bargaining posture in Wayneview, however, was manifestly
different. At the time of the alleged impasse in Wayneview, the union
had made “major concessions” on what the employers asserted were
the “two principal stumbling blocks in the way of a collective
bargaining agreement”: the union’s proposal to reduce the number of
“no-frills” employees and its insistence on a 22.33% contribution to
the Benefit Fund. Wayneview, slip op. at 10, 3. The union had, as we
observed, “softened its position on the specific items that [the
employers] had identified as the major obstacles to an agreement.” Id.
at 4. The employers had likewise made “significant concessions”
before they abruptly, with no explanation, presented “a regressive
proposal—which they later claimed to be their ‘last best offer.’ ” Id.
Under these facts, we upheld the Board’s determination that “[t]he
parties’ contemporaneous understanding of the negotiations was that
20
For the foregoing reasons, we conclude the record
establishes the parties reached an impasse during the August 23,
2005 bargaining session. Accordingly, we grant Laurel Bay’s
petition for review regarding the Board’s findings that Laurel
Bay committed unfair labor practices in violation of section
8(a)(1) and (5) of the National Labor Relations Act when it
declared impasse and when it subsequently implemented the
proposed wage increase; accordingly, we vacate the Board’s
order insofar as it found Laurel Bay’s implementation of the pay
raise constituted an unfair labor practice. In all other respects,
the petition is denied and the cross-application for enforcement
is granted.17
So ordered.
further bargaining would be fruitful” and that the employers therefore
“ ‘failed to prove that the parties reached impasse.’ ” Id. at 10
(quoting Wayneview Care Ctr., 352 N.L.R.B. 1089, 1089 (2008)).
Here, by contrast, when Jasinski declared on August 23 that Laurel
Bay’s outstanding July 8 offer was its “last and best final offer,” the
parties had not once come even close to accord on the major sticking
point—the contribution rate—nor did Laurel Bay renege on any of the
agreed upon terms much less make a regressive offer. The parties’
“contemporaneous understanding” was, in short, one of impasse. See
supra p. 16 note 13.
17
See supra p. 2 note 2.