672 F.3d 1085 (D.C. Cir. 2012), 10-1400, Monmouth Care Center v. National Labor Relations Bd.

Docket Nº:10-1400, 10-1403.
Citation:672 F.3d 1085
Opinion Judge:GARLAND, Circuit Judge:
Party Name:MONMOUTH CARE CENTER, Milford Manor Nursing and Rehabilitation Center, and Pinebrook Nursing Home, Petitioners v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Attorney:. 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, enter...
Judge Panel:Before: TATEL and GARLAND, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Case Date:March 09, 2012
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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672 F.3d 1085 (D.C. Cir. 2012)

MONMOUTH CARE CENTER, Milford Manor Nursing and Rehabilitation Center, and Pinebrook Nursing Home, Petitioners

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 10-1400, 10-1403.

United States Court of Appeals, District of Columbia Circuit.

March 9, 2012

         Submitted Nov. 17, 2011.

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         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.

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

         OPINION

          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

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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 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.

         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 NLRB 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 NLRB No. 2, at 47.

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          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, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967) (noting that the duty to 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 NLRB No. 2 (Board Op. I). After the Supreme Court held in New Process Steel, L.P. v. NLRB, ---U.S. ----, 130 S.Ct. 2635, 177 L.Ed.2d 162 (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 NLRB 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 NLRB 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, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982). Instead, the employers argued to the Board, and continue to argue here, " only that the [ALJ] erred by rejecting their affirmative defenses" of impasse and bad faith on the part of the union. 354 NLRB No. 2, at 1 n. 2.

         In subpart A, we address the employers' contention...

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