Monmouth Care Center v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted November 17, 2011 Decided March 9, 2012

No. 10-1400

MONMOUTH CARE CENTER, MILFORD MANOR NURSING AND
REHABILITATION CENTER, AND PINEBROOK NURSING HOME ,
PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD ,
RESPONDENT

Consolidated with 10-1403

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

David F. Jasinski was on the briefs for petitioners.

John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, Robert J.
Englehart, Supervisory Attorney, and Michael D. Berkheimer,
Attorney, were on the brief for respondent. Jeffrey J. Barham,
Attorney, entered an appearance.
 2

Before: TATEL and GARLAND , Circuit Judges, and
GINSBURG , Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND .

GARLAND , Circuit Judge: Three related companies that
operate New Jersey nursing homes petition for review of a
decision of the National Labor Relations Board (NLRB). The
Board found that the petitioners violated the National Labor
Relations Act by refusing to meet with their employees’ union
for the purpose of collective bargaining, and by refusing to
timely and completely supply information requested by the
union. In this court, the petitioners do not dispute that they
refused to meet and provide information; instead, they press the
affirmative defenses of impasse and bad faith on the part of the
union. Because substantial evidence supports the Board’s
findings that there was no genuine impasse and that the union’s
information requests were not made in bad faith, we deny the
petition for review and grant the Board’s cross-application for
enforcement.1

I

Petitioners Monmouth Care Center, Milford Manor Nursing
Home and Rehabilitation Center, and Pinebrook Nursing Home
are separate companies that share ownership and management.
The companies operate nursing homes and long-term care
facilities in New Jersey. SEIU 1199, New Jersey Health Care
Union, represents the petitioners’ employees, with the exception
of registered nurses, supervisors, and other limited categories of
personnel. All three employers had separate labor contracts with
the union that were due to expire on March 31, 2005, and the

1
This case was considered on the record from the National Labor
Relations Board and on the briefs submitted by the parties. See F ED .
R. A PP . P. 34(a)(2); D.C. C IR . R. 34(j).
 3

parties began to negotiate successor collective bargaining
agreements in early 2005. The employers were represented in
negotiations by their counsel, David Jasinski. The union cycled
through three chief negotiators during the course of bargaining:
Uma Pimplaskar, Justin Foley, and Larry Alcoff.

The issues on the bargaining table included wages,
pensions, and health insurance. Another central point of
contention was the employers’ use of “agency employees” --
employees provided by temporary placement agencies to work
in positions that would otherwise have been occupied by
members of the bargaining unit. The parties’ expiring
agreements permitted the employers to staff up to forty percent
of their positions with agency employees, provided that those
employees were placed in the bargaining unit after working at
one of the facilities for a year. In the successor contracts, the
union hoped to eliminate or reduce the employers’ use of agency
employees, while the employers aimed to retain or increase their
flexibility to hire and use such employees.

Each employer negotiated separately with the union:
Milford bargained three times, Monmouth five times, and
Pinebrook seven times. The parties also met for one
off-the-record meeting at the union’s office in July 2005.
Despite making some initial progress in negotiations at each of
the three facilities, the employers effectively ceased bargaining
with the union by the fall of 2005. Milford presented its
so-called “final offer” at its third and final bargaining session
with the union on August 19, 2005. Pinebrook made its “final
offer” during its fifth bargaining session on September 12, 2005,
and then declared impasse during a subsequent session on
November 3, 2005. Monmouth never submitted a final offer;
instead, bargaining simply concluded after a fifth and final
session on August 12, 2005.
 4

Throughout the negotiations, the union repeatedly requested
information from the employers, both orally and in writing,
regarding a variety of subjects, including their use of agency
employees. The union first requested that information in a letter
dated January 20, 2005, which asked petitioners to provide,
among other things, “[d]ocuments showing the names of
agencies used . . . to supply temporary employees working in
bargaining unit positions, the amount paid to agencies for
temporary employees, . . . and the hourly compensation paid to
the agency employees.” Letter from Larry Alcoff to David
Jasinski (Jan. 20, 2005) (J.A. 858). During later negotiations,
the union reiterated its request for that information and advised
the employers that the information was needed for bargaining
purposes. See Monmouth Care Ctr., 354 N.L.R.B. No. 2, at 12-
13, 19, 45-46 (ALJ Op.). The union also sent a number of
follow-up letters repeating and supplementing its information
requests and objecting to the employers’ failure to respond.
E.g., Letters from Alcoff to Jasinski (Aug. 30, 2005) (J.A.
1082-85) (requesting a “list of all [agency] employees[,]
including name, job title, shift, date of hire . . . , current wage
rate, [and] any benefits provided”); Letters from Alcoff to
Jasinski (Oct. 10, 2005) (J.A. 1097-99) (repeating the request for
“[a]ll items . . . related to the use of Agency personnel”). The
employers never provided complete responses to those
information requests, particularly those requesting information
regarding the use of agency employees. See 354 N.L.R.B. No.
2, at 47.

In February and May 2006, the union filed unfair labor
practice charges alleging that all three employers had (1) refused
to meet and bargain with the union, and (2) refused to timely
and completely supply relevant information requested by the
union. See 29 U.S.C. § 158(a)(5) (making it an unfair labor
practice for an employer “to refuse to bargain collectively with
the representatives of his employees”); NLRB v. Acme Indus.
Co., 385 U.S. 432, 435-36 (1967) (noting that the duty to
 5

bargain in good faith includes the obligation to provide the
employees’ representative with information relevant to the
collective-bargaining process); see also Brewers & Maltsters,
Local Union No. 6 v. NLRB, 414 F.3d 36, 45-46 (D.C. Cir. 2005)
(noting that an employer “violates the Act not only by refusing
to provide . . . relevant information but also by not providing it
in a timely manner”). The employers defended on the ground
that their refusals were lawful because the parties were at
impasse and because the union had requested the information in
bad faith.

After a hearing, an administrative law judge (ALJ) ruled in
favor of the union on both charges. On April 27, 2009, a
two-member panel of the Board affirmed the ALJ’s decision.
Monmouth Care Ctr., 354 N.L.R.B. No. 2 (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 the
authority to decide cases under the NLRA, a three-member
panel adopted and incorporated the earlier Board decision by
reference. The Board’s final decision and order issued on
November 17, 2010. Monmouth Care Ctr., 356 N.L.R.B. No. 29
(Board Op. II).

II

The employers did not object before the Board to the ALJ’s
findings that they refused to meet and bargain with the union,
and that they refused to provide relevant information to the
union in a complete and timely fashion. 354 N.L.R.B. No. 2, at
1 n.2 (Board. Op. I). Nor do they seriously contest those
findings here, which is appropriate because, except in
extraordinary circumstances, the failure to urge an objection
before the Board bars review of that objection in this court. See
29 U.S.C. § 160(e); Woelke & Romero Framing, Inc. v. NLRB,
456 U.S. 645, 665 (1982). Instead, the employers argued to the
Board, and continue to argue here, “only that the [ALJ] erred by
 6

rejecting their affirmative defenses” of impasse and bad faith on
the part of the union. 354 N.L.R.B. No. 2, at 1 n.2.

In subpart A, we address the employers’ contention that a
genuine bargaining impasse relieved them of their duty to meet
and bargain. In subpart B, we address their claim that they had
no obligation to respond to the union’s information requests
because the union made those requests in bad faith.

A

A genuine bargaining impasse temporarily suspends an
employer’s duty to meet and bargain with a union. See
Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 232 (D.C.
Cir. 1996); Richmond Elec. Servs., 348 N.L.R.B. 1001, 1003-04
(2006). Such an 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
. . . [would be] fruitful,” Am. Fed’n of Television & Radio
Artists v. NLRB, 395 F.2d 622, 628 (D.C. Cir. 1968). The Board
considers a number of factors to determine whether the parties
have reached impasse, including “[t]he 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.” Taft Broad., 163
N.L.R.B. at 478. The burden of proving the affirmative defense
of impasse lies with the party asserting it. Wayneview Care Ctr.
v. NLRB, 664 F.3d 341, 347 (D.C. Cir. 2011); Sage Dev. Co.,
301 N.L.R.B. 1173, 1189 & n.37 (1991).

We have recently reiterated the limited role this court plays
in reviewing an NLRB decision, particularly a decision
regarding the existence of impasse:
 7

“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 [Corp. v. NLRB], 254
F.3d [1105,] 1115 [(D.C. Cir. 2001)] (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).

Wayneview, 664 F.3d at 348. Applying this standard, we
conclude that substantial evidence supports the Board’s
determination that the employers fell “far short of meeting their
burden of establishing the existence of an impasse at any of the
three facilities.” 354 N.L.R.B. No. 2, at 47 (ALJ Op.); see 356
N.L.R.B. No. 29, at 1 (Board Op. II).

1. Because the employers refused to bargain jointly despite
the union’s repeated requests, see, e.g., 354 N.L.R.B. No. 2, at
 8

12 (ALJ Op.), we begin by addressing the negotiations between
the union and each employer separately.

At Monmouth, the parties conducted only five negotiating
sessions, with the final session lasting no longer than an hour.
At the time Monmouth ceased negotiating, it had not yet
submitted its own economic proposal despite having promised
to do so, and very little bargaining had taken place regarding the
union’s latest economic proposal, which the union had
submitted during the penultimate negotiation session on July 8,
2005. 354 N.L.R.B. No. 2, at 47-48; see Hr’g Tr. 40-41 (Oct.
23, 2007) (J.A. 81-82) (testimony of Foley); Hr’g Tr. 261-63
(Oct. 24, 2007) (J.A. 124-25) (testimony of Alcoff). Moreover,
the union’s July 8 proposal demonstrated a clear willingness to
compromise by showing movement on economic matters and on
the critical issue of the use of agency employees.2 Perhaps most
significant, Monmouth never made a final offer or declared
impasse during negotiations, and its representatives never made
any contemporaneous assertion that they considered the parties
to be deadlocked. Under these circumstances, the NLRB was
warranted in rejecting Monmouth’s claim of impasse as “totally
without merit.” 354 N.L.R.B. No. 2, at 47 (ALJ Op.); see NLRB
v. Powell Elec. Mfg. Co., 906 F.2d 1007, 1012-13 (5th Cir.
1990) (finding no impasse where “little substantive bargaining

2
For example, the union’s prior proposal, submitted in May 2005,
had asked for pension fund contributions of 2.5 percent of earnings for
each bargaining unit employee. The July 8 proposal scaled back that
request by asking for contributions of 2 percent effective July 15,
2005, and up to 2.5 percent on March 1, 2008. Compare Initial
Proposals for Monmouth Care 2005 Contract Negotiations at 9 (May
11, 2005) (J.A. 868) with Monmouth Care Economic Outline (July 8,
2005) (J.A. 872). The union also modified its proposal regarding
agency employees by eliminating the requirement in its May proposal
that agency employees be made permanent and included in the
bargaining unit after working on a regular basis for ninety days. See
354 N.L.R.B. No. 2, at 48 (ALJ Op.).
 9

had taken place” during the parties’ few negotiation sessions and
the union had made proposals that “obviously were grist for the
collective bargaining mill”); Essex Valley Visiting Nurses Ass’n,
343 N.L.R.B. 817, 841 (2004) (finding the absence of impasse
where “neither party stated that the parties had reached impasse
at the close of the meeting”).

At Milford, the parties bargained only three times before the
employer submitted its so-called “final offer.” That proposal
was in fact Milford’s first offer, and no substantive negotiations
had taken place regarding that offer before Milford’s
representative characterized it as “final.” 354 N.L.R.B. No. 2,
at 48 (ALJ Op.); see H’rg Tr. 253-54 (Oct. 24, 2007) (J.A. 122)
(testimony of Alcoff). Nor is there evidence of any
contemporaneous understanding that the parties were at genuine
impasse; indeed, at the conclusion of the third and final
bargaining session on August 19, 2005, Milford’s negotiator
“did not object to or dispute the need for more meetings,” but
merely stated that he did not have his calendar with him and
would have to contact the union’s representative to schedule
another session. 354 N.L.R.B. No. 2, at 48. Although the union
requested additional meetings, Milford never responded to
schedule them. Id. at 53. Moreover, at the third and final
session, the union submitted a modified proposal that, like the
proposal at Monmouth, demonstrated movement in several key
areas of disagreement, including the use of agency employees.
See Proposal Submitted by SEIU (J.A. 970-71). Taken together,
this evidence amply supports the Board’s finding that there was
no genuine impasse at Milford. See Cotter & Co., 331 N.L.R.B.
787, 787-88 (2000) (rejecting a defense of impasse where the
employer “abruptly claimed that its ‘last, best and final offer’
was on the table,” despite the fact that “the Union had
demonstrated considerable flexibility and willingness to
compromise” and “the parties did not have a contemporaneous
understanding that they were at impasse”).
 10

At the third facility, Pinebrook, the parties bargained five
times before the employer submitted its “final offer” on
September 12, 2005; an additional time on November 3, 2005
during which the employer formally declared impasse; and one
final time over a year later, on January 24, 2007. Despite these
seven sessions, bargaining had only begun in earnest when
Pinebrook declared impasse. See 354 N.L.R.B. No. 2, at 49
(ALJ Op.). Moreover, as at Milford, the union had made several
significant concessions in its proposals that demonstrated
flexibility in its bargaining positions. In particular, the union
showed a willingness to compromise on the key issue of agency
employees: although its initial proposal had been to
immediately eliminate the use of all such employees except
where necessary to “fill[] in for absent bargaining unit
employees” or “to meet temporary staffing needs,” Initial
Proposals for Pinebrook 2005 Contract Negotiations at 11 (J.A.
926), its subsequent proposals modified that position to permit
Pinebrook to continue using up to forty percent agency
employees for the first year of the contract, with a gradual
reduction in that percentage over the remaining years, see
Proposal Submitted by SEIU (J.A. 970-71). Indeed, on
November 3, 2005, the union suggested that the parties operate
under the status quo, including the forty percent agency
employee cap, during a probationary period while continuing to
bargain toward a final agreement. 354 N.L.R.B. No. 2, at 20;
Hr’g Tr. 324-25 (Oct. 24, 2007) (J.A. 138) (testimony of
Alcoff). This demonstrated flexibility, coupled with the
relatively short bargaining timeline, provides substantial
evidence for the Board’s determination that -- as at Monmouth
and Milford -- there was no genuine impasse at Pinebrook.

2. The employers argue that, appearances aside, the union
bargained in bad faith with all three of them by rigidly adhering
to certain fixed demands. This, they maintain, supports the
proposition that the parties were at impasse. Pet’r Br. 40 (citing
Taft Broad., 163 N.L.R.B. at 478); see also Indus. Elec. Reels,
 11

Inc., 310 N.L.R.B. 1069, 1071-72 (1993) (holding that “entering
negotiations with a predetermined resolve not to budge from an
initial position betrays an attitude inconsistent with good-faith
bargaining” (internal quotation marks omitted)). But the
Board’s rejection of this claim is well supported by the record.
Although the employers stress and the ALJ assumed without
deciding that the union’s original negotiator, Uma Pimplaskar,
initially characterized certain bargaining items as
“non-negotiable,” 354 N.L.R.B. No. 2, at 51,3 the ALJ
reasonably concluded that any such statements were cured by
later negotiations in which the union’s successor representatives
demonstrated a willingness to compromise on precisely those
issues, see id. at 52 (finding that “with respect to the two areas
that Pimplaskar had allegedly stated were nonnegotiable, benefit
contributions and agency usage, the Union made modifications
in their proposals”).

The employers’ assertion that the union refused to vary
from the terms of a prior agreement known as the “Tuchman
Agreement” is likewise unpersuasive. The Tuchman Agreement
was a contract containing a “most-favored-nations” clause that
the union had recently negotiated with other nursing home
employers. The petitioners contend that the union “insist[ed]”
in its negotiations with each of the three facilities “that it could
not and would not deviate” from the Tuchman Agreement’s
terms, and that this rigid bargaining position led to an overall
impasse. Pet’r Br. 40. But the Board affirmed the ALJ’s
findings that the union never invoked the most-favored-nations
clause as a barrier to reaching a different bargain with the

3
The ALJ said: “[W]hile I do find it unlikely that Pimplaskar
would make such statements, it is not impossible, particularly in view
of the evidence in the record of her inexperience as a negotiator.
Therefore, for the purposes of this decision, I shall assume without
deciding that Pimplaskar made the comments attributed to her by” the
employers’ negotiators. 354 N.L.R.B. No. 2, at 51.
 12

petitioners, and that it never stated it was bound by the Tuchman
Agreement’s specific terms. See 356 N.L.R.B. No. 29, at 1
(Board Op. II); 354 N.L.R.B. No. 2, at 52 (ALJ Op.). In
particular, the ALJ credited the testimony of the union’s
negotiator over that of the petitioners’ representatives on this
issue, based on a combination of testimonial demeanor and a
lack of specificity and internal corroboration for the petitioners’
claims. 354 N.L.R.B. No. 2, at 50. The petitioners do not
challenge those credibility determinations, and we find no basis
for overturning them under the highly deferential standard that
we must apply. See United Food & Commercial Workers Union
Local 204 v. NLRB, 447 F.3d 821, 824 (D.C. Cir. 2006) (“‘[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.’”
(quoting Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 28
(D.C. Cir. 1998))).

Moreover, the evidence shows that the union’s proposals
deviated from the terms of the Tuchman Agreement in some
significant respects. The ALJ noted “several differences
between the union’s proposal and the Tuchman Agreement[,]
including provisions regarding parity increases, shift
differential, and time-and-half for [licensed practical nurses]
working two floors.” 354 N.L.R.B. No. 2, at 17-18. The ALJ
further noted that, “while there are some similarities in the
proposals of the Union and [the] Tuchman Agreement,” the
contract terms varied in other important ways as well,
“particularly in the crucial agency usage provisions, as well as
in the effective date of the Health Plan contributions.” Id. at 53.
Compare Tuchman Master Agreement at 18 (J.A. 743), with
Proposal Submitted by SEIU at 1-2 (J.A. 970-71). As such,
substantial evidence supports the Board’s finding that the
Tuchman Agreement was not an impediment to further
bargaining.
 13

3. Our recent decision in Laurel Bay Health &
Rehabilitation Center v. NLRB, -- F.3d --, 2012 WL 164051
(D.C. Cir. Jan. 20, 2012), does not undermine the Board’s
finding that there was no impasse or bad faith bargaining here.
In a post-argument letter, the petitioners call attention to our
conclusion in that case that “the Board erred in upholding the
ALJ’s finding that the parties were not at impasse” at the time
the employer presented its “last and best final offer.” Laurel
Bay, 2012 WL 164051, at *6. But Laurel Bay is not this case.
To be sure, it involved similar legal issues, the same union,
some of the same negotiators on each side of the table, and
similar arguments about the role the Tuchman Agreement
played during negotiations. But it also involved a different
employer, facility, and course of negotiations. At the time the
employer declared impasse at Laurel Bay, for example, “the
parties remained steadfastly fixed in their respective positions,”
with “neither party [having] budged” on the critical terms of its
proposals, and with “the Union adhering to the Tuchman
agreement terms.” Id. at *6-7. Indeed, “after six months of
negotiation[,] the parties . . . remained as far apart . . . as they
were when talks began,” id. at *7, and they “had not once come
even close to accord on the major sticking point” in their
negotiations: the amount of Laurel Bay’s contributions to the
employees’ health insurance plan, id. at *8 n.16. Here, by
contrast, substantial evidence supports the Board’s findings that
the union did not rigidly adhere to the Tuchman Agreement, that
it made significant concessions in the key areas of disagreement,
and that the employers abruptly cut off bargaining at each
facility before further negotiations could occur.

As both the Board and this court have repeatedly
emphasized, determining whether impasse or bad faith
bargaining occurred involves multiple, highly fact-dependent
 14

considerations.4 Indeed, the petitioners stressed precisely that
point in fending off the NLRB’s own post-argument letter,
which called our attention to another recent decision of this
court, Wayneview Care Ctr. v. NLRB, 664 F.3d 341 (D.C. Cir.
2011). In that case -- which also involved similar legal issues,
the same union, some of the same negotiators, and the Tuchman
Agreement, but yet a different employer and facility -- we
affirmed a no-impasse finding by the Board. See id. at 348; see
also id. at 349 (affirming the Board’s finding that “the ‘most-
favored-nations clause [of the Tuchman Agreement] was not a
bar to further movement’” in that case). As the petitioners
rightly emphasized in their response to the NLRB’s letter, the
facts of each case must be evaluated on their own, and the court
must “base its decision on the record and briefs submitted by the
parties” in the case before it. Pet’r Letter Opposing NLRB’s
Rule 28(j) Letter at 2 (filed Jan. 6, 2012).

4. Finally, the NLRB’s finding that Monmouth, Milford,
and Pinebrook all failed to provide the union with relevant
information concerning the critical bargaining issue of agency
employees provides still further support for its determination
that there was no genuine impasse at any of the three facilities.
See 354 N.L.R.B. No. 2, at 48-49 (ALJ Op.); 356 N.L.R.B. No.
29, at 1 (Board Op. II). As this court has recognized, the duty
to provide information relevant to bargaining is a “fundamental
obligation” that is crucial to the proper functioning of the
collective bargaining process. Oil, Chem. & Atomic Workers
Local Union No. 6-418 v. NLRB, 711 F.2d 348, 358 (D.C. Cir.

4
See United Steelworkers of Am. Local 14534 v. NLRB, 983 F.2d
240, 245-46 (D.C. Cir. 1993); Teamsters Local Union No. 175, 788
F.2d at 30 & n.7; Dallas Gen. Drivers Local 745 v. NLRB, 355 F.2d
842, 844-45 (D.C. Cir. 1966); AMF Bowling Co., 314 N.L.R.B. 969,
973 (1994), enforcement denied on other grounds, 63 F.3d 1293 (4th
Cir. 1995); Dust-Tex Serv., Inc., 214 N.L.R.B. 398 (1974), enf’d, 521
F.2d 1404 (8th Cir. 1975); Taft Broad., 163 N.L.R.B. at 478.
 15

1983). Accordingly, “‘impasse cannot exist where the employer
has failed to satisfy its statutory obligation to provide
information needed by the bargaining agent to engage in
meaningful negotiations.’” E.I. Du Pont de Nemours & Co. v.
NLRB, 489 F.3d 1310, 1315 (D.C. Cir. 2007) (quoting Decker
Coal Co., 301 N.L.R.B. 729, 740 (1991)).

In this case, the union repeatedly requested information
from each employer regarding a number of relevant topics,
including the employer’s use of agency employees. None of the
facilities provided timely and complete responses to those
inquiries. See 354 N.L.R.B. No. 2, at 47 (ALJ Op.) (finding that
“a large amount of information, particularly with respect to
agency usage,” was not “produced at all” or “was incomplete”).
It was therefore reasonable for the Board to conclude that the
petitioners’ failure to provide information concerning a central
point of contention between the parties -- indeed, regarding an
issue that the petitioners themselves characterize as a “key
bargaining issue,” Pet’r Br. 36, 39 -- frustrated the parties’
efforts to reach an agreement and precluded a finding of genuine
impasse. See 354 N.L.R.B. No. 2, at 49 (finding that the union’s
representative specifically stated during the Pinebrook
negotiations that the union was “‘trying to show movement,’ but
needed the information requested on agency usage, which had
not been provided, in order to do so”); see also E.I. Du Pont de
Nemours, 489 F.3d at 1315.

5. In sum, because substantial evidence supports the
Board’s rejection of the employers’ affirmative defense of
impasse, there is no ground for overturning the Board’s
conclusion that the employers violated their statutory duty to
meet and bargain with the union.
 16

B

In addition to supporting the Board’s conclusion that no
genuine impasse existed at any of the three facilities, the
employers’ failure to respond to the union’s information
requests also formed the basis for the Board’s finding of a
separate violation of the National Labor Relations Act. An
employer charged with failing to provide requested information
may argue as an affirmative defense that the request was made
in bad faith, see, e.g., NLRB v. Hawkins Constr. Co., 857 F.2d
1224, 1227 & n.3 (8th Cir. 1988), and the petitioners did so
here. But the employer bears the burden of persuasion on that
defense, id., and substantial evidence on the record supports the
NLRB’s determination that the petitioners failed to satisfy that
burden.

The petitioners’ principal contention is that the union acted
in bad faith by “making irrelevant information requests prior to
and after the declaration of impasse in a deliberate attempt to try
to stave off impasse.” Pet’r Br. 40. The Board, however,
affirmed the ALJ’s finding that the requested information was
in fact relevant to bargaining. See 354 N.L.R.B. No. 2, at 1
(Board Op. I); 354 N.L.R.B. No. 2, at 45-46 (ALJ Op.). In so
doing, the Board noted that the employers had failed to file any
exceptions to the ALJ’s finding on that point. 354 N.L.R.B. No.
2, at 1 n.2 (Board Op. I). The employers’ waiver of their
relevance argument before the Board deprives this court of
authority to consider the issue. See 29 U.S.C. § 160(e); Woelke
& Romero Framing, 456 U.S. at 665.

The petitioners also assert that the union “failed to raise any
objections to Petitioners’ response to its initial information
requests and did not make any new information requests until
after Petitioners had declared that the parties were at impasse.”
Pet’r Br. 44. Although this argument does not appear to have
been waived, it is flatly contradicted by the record evidence.
 17

That evidence shows that the union requested information
concerning the use of agency employees, among other things, as
early as January 20, 2005, before bargaining even began. Letter
from Alcoff to Jasinski (Jan. 20, 2005) (J.A. 856-58). The union
reiterated its information requests throughout 2005, sending
numerous follow-up letters and frequently opening its
negotiation sessions by objecting to the employers’ failure to
provide the information in a complete and timely fashion. See,
e.g., 354 N.L.R.B. No. 2, at 11-13, 16, 43-45 (ALJ Op.); Hr’g
Tr. 66 (Oct. 23, 2007) (J.A. 88) (testimony of Foley); Hr’g Tr.
290-91 (Oct. 24, 2007) (J.A. 131-32) (testimony of Alcoff).
Indeed, the union repeatedly informed the employers, both
orally and in writing, that responses to the outstanding
information requests were necessary to develop its bargaining
positions, and that significant compromises would be difficult
until that information was received.5 Finally, although the union
did agree to engage in several bargaining sessions in mid- to late
2005 without receiving the requested information, the ALJ
credited a union representative’s assertion that the lack of
complete information regarding the critical issue of agency
employees hampered the union’s ability to show further
movement and put forth counter-proposals. 354 N.L.R.B. No.
2, at 49; see Hr’g Tr. 294 (Oct. 24, 2007) (J.A. 132) (testimony
of Alcoff). Accordingly, substantial evidence supports the
NLRB’s determination that the petitioners failed to satisfy their
burden of showing that the union requested information in bad
faith.

5
For example, in a letter dated September 12, 2005, the union
reiterated its information requests, stated that it could “only make
modest changes . . . until we receive the remaining information,” and
averred that “[u]pon receipt of the information, the Union is prepared
to modify its proposal.” Letter from Alcoff to Jasinski (Sept. 12,
2005) (J.A. 1093).
 18

III

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

So ordered.