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.