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.