Wayneview Care Ctr. v. Nat'l Labor Relations Bd., s. 10–1398

• Decision Date: 23 December 2011
• Docket Number: 10–1404.,Nos. 10–1398,s. 10–1398
• Citation: 664 F.3d 341,398 U.S.App.D.C. 356,192 L.R.R.M. (BNA) 2357,161 Lab.Cas. P 10434
• Parties: WAYNEVIEW CARE CENTER and Victoria Health Care Center, Petitioners v. NATIONAL LABOR RELATIONS BOARD, Respondent1199 SEIU United Healthcare Workers East, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

161 Lab.Cas. P 10,434

192 L.R.R.M. (BNA) 2357

398 U.S.App.D.C. 356

664 F.3d 341

WAYNEVIEW CARE CENTER and Victoria Health Care Center, Petitioners

v.NATIONAL LABOR RELATIONS BOARD, Respondent1199 SEIU United Healthcare Workers East, Intervenor.

Nos. 10–1398

10–1404.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 17, 2011.Decided Dec. 23, 2011.

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, 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 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 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 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 lockout.” 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 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 NLRB 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, ––– U.S. ––––, 130 S.Ct. 2635, 177 L.Ed.2d 162 (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 NLRB 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 NLRB 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 NLRB 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.

II

Section 10(e) of the NLRA provides that “[n]o objection that has not been urged before the Board ... shall...