Opinion for the Court filed by Circuit Judge HENDERSON.
Pеtitioner Laurel Bay Health and Rehabilitation Center (Laurel Bay) seeks review of a decision of the National Labor Relations Board (NLRB, Board) affirming the findings of an administrative law judge (ALJ) that Laurel Bay committed eight unfair labor practices (ULPs) in violation of section 8(a)(1) and (5) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), (5).
See Laurel Bay Health & Rehab. Ctr.,
*1368 I.
Laurel Bay operates a nursing home and rehabilitation center in Keansburg, New Jersey. From 1999 until 2005, SEIU 1199 New Jersey Health Care Union (Union) represented 82 Laurel Bay employees in a collective bargaining unit consisting of full-time and regular part-time licensed practical nurses, nurses aides, recreational aides, beauticians, housekeeping aides, laundry employees and dietary employees. In early 2005, Laurel Bay and the Union began negotiating a successor collective bargaining agreement. Under the previous five-year agreement, in effect from October 1999 through September 2004, unit members were initially covered under Laurel Bay’s health insurance plan. In October 2003, however, the parties entered into an “extension” agreement which extended the contract through March 2005. In addition, the extension agreement transferred the unit employees’ health coverage from Laurel Bay’s employee health insurance plan to the Union’s SEIU 1199 Greater New York Benefit Fund (Benefit Fund) 3 and required Laurel Bay to contribute a percentage of its gross unit payroll to the Benefit Fund. The initial contribution was set at 12%, increasing on February 1 to 16% and on April 1 to 18%. 4
The parties conducted eight bargaining sessions in 2005 in an effort to forge a successor collective bargaining agreement. Laurel Bay was represented primarily by its counsel, David F. Jasinski, with the assistance of Laurel Bay’s finance director, David Dennin, and human resources director, Linda Meehan. The Union was represented by a succession of three individuals: Uma Pimplaskar, Justin Foley and Larry Aleoff.
Pimplaskar represented the Union at the first two bargaining sessions. At the first, which took place in February, she presented Laurel Bay with a contract proposal which, inter alia, provided for in *1369 creased contributions to the Benefit Fund. 5 Under the proposal, beginning May 1, Laurel Bay was to cоntribute 21% of gross unit payroll to the Benefit Fund, with the percentage to be adjusted by the Benefit Fund trustees “as necessary to maintain the level of benefits currently provided or as improved by the Trustees during the life of the Agreement” but “in no event” to exceed 24% of gross unit payroll. 6 Resp’t ex. 1 at 7 (JA 163). According to Jasinski’s uncontradicted testimony, Pimplaskar told him “there were certain provisions in their proposals that would not be negotiable, that she would not even hear any discussions about,” including the Benefit Fund contribution requirement. Hearing Tr. 436 (JA 120). Jasinski also testified she told him the Union was then negotiating 40 to 45 contracts with a group of 20 New Jersey nursing homes represented by lawyer Morris Tuchman (Tuchman Group) and any agreement reached with Laurel Bay would have to be approved by a “master committee” made up of employees at other facilities. Finally, she requested that Laurel Bay provide a list of unit employees, their rates of pay, hours worked and dates of hire.
The parties met for a second session on March 9, at which time Laurel Bay presented a written counter-proposal addressing non-economie issues, including overtime eligibility, part-time employee criteria and grievance and arbitration procedures. According to Jasinski, Pimplaskar informed him then that the Union’s proposal was the “standard сontract” — which Jasinski interpreted to mean the contract then being negotiated with the Tuchman Group — and that it was the contract the Union was “going to negotiate” and was “going to get.” Hearing Tr. 445 (JA 123). On March 21, Alcoff notified Jasinski that Foley was replacing Pimplaskar as chief Union negotiator.
Foley met with the Laurel Bay representatives for the first time in mid-May. He testified at the ALJ hearing that, during the 2^ hour meeting, the parties merely reviewed outstanding information requests and proposals that were already “on the table.” Hearing Tr. 45 (JA 43).
The next meeting, on June 3, lasted about three hours. The parties again addressed information requests and they discussed non-economic contract terms but failed to reach any agreement. They also signed a “memorandum of agreement”— extending the existing contract through June 30 — and scheduled another bargaining session.
On June 17, Foley met again with the Laurel Bay negotiating team and tendered a revised economic proposal on the Union’s behalf. The proposal, inter alia, set a Benefit Fund contribution rate of 22.33% of gross unit payroll and annual wage increases of 4%. 7 According to Jasinski, Fo *1370 ley stated the Union could not “deviate” from or “make any changes” to a number of provisions in the Tuchman “Master Contract,” 8 including the Benefit Fund contribution requirement, because the Tuchman Master Contract included a “most fаvored nations” clause requiring any concession the Union granted Laurel Bay it “would have had to give [] to everyone else.” Hearing Tr. 452 (JA 124). Thus, according to Foley, the Union’s hands were “tied.” Id. 9 According to Dennin’s testimony, Foley said the 22.33% Benefit Fund contribution in particular was “set in stone.” Hearing Tr. 549 (JA 147).
When the negotiators met again on July 8, Jasinski presented Foley with Laurel Bay’s own economic proposal, proposing a Benefit Fund contribution of 16% of gross unit payroll (through the entire contract term), wage increases of 3% in October 2005 and October 2006 and 2% in April 2007 and October 2007 and an annual discretionary “merit bonus or merit pay” plan. 10 Foley testified they did reach agreement оn some non-economic issues but not on the key economic points. According to Dennin, Foley was “adamant” about the 22.33% Benefit Fund contribution because “that is what he [had] gotten at other facilities and that is what he w[ould] get at all of his facilities.” Hearing Tr. 552 (JA 147). According to Dennin, Jasinski responded: “Laurel Bay is Laurel Bay and he didn’t care what [Foley] negotiated with other owners at other facilities.” They scheduled another session for July 16 which Foley subsequently can-celled because by then he had left the local Union’s employ. Foley’s notes written after the July 8 meeting indicated Laurel Bay did not “seem to be making any money” and quoted Jasinski as calling Laurel Bay “brokе” because its resident census was low at only 70%. Resp’t ex. 18 (JA 214).
On August 5, the negotiators convened again after Alcoff replaced Foley as the Union’s chief negotiator. During the session, Alcoff and Jasinski reached a tentative agreement on a number of non-economic issues. In addition, Alcoff presented a written counter offer of economic proposals, which again set a Benefit Fund contribution rate of 22.33% but with the additional proviso that, if 22.33% was insufficient to cover costs, the parties would meet and either adjust benefits or make other revisions (with final and binding arbitration in the event they could not agree). “In no event,” however, could “the contribution rеquirement of the Employer exceed 22.33% of gross payroll ... except by mutual agreement.” Gen. Counsel ex. 7, art. 31, ¶ 31.1 (JA 415). The ALJ found the counter offer’s Benefit Fund provision
*1371
and certain other terms
11
were “identical” or “virtually” so to those in the Tuchman Master Contract.
Laurel Bay I,
The parties held their final bargaining session on August 23. At that time, Laurel Bay orally modified its July 8 proposal, moving the October 1, 2005 3% wage increase up to August 14. Alcoff testified that they had “a back and forth discussion, briefly, on the health insurance, again” during which Dennin stated he “didn’t want to pay any more than he was currently paying for health insurance, and with the raises on the table, 16 percent of a higher gross payroll would equal his сurrent 18 percent of a lower gross payroll pre-raises.” Hearing Tr. 154 (JA 68). Alcoff responded that Dennin’s suggestion was “not going to be possible” and that there was “no way that they were going to be able to stay in the [Benefit Fund] at the rate that they were proposing.” Hearing Tr. 154,186 (JA 68, 76). Alcoff stated that he asked Jasinski what he would do if the Benefit Fund rejected Laurel Bay’s 16% contribution offer and Jasinski replied that “that was [Alcoff s] problem.” Id. at 187 (JA 76). Alcoff added that if Laurel Bay was unwilling to pay any more than the amount it offered, the Union “had to look for other health insurance.” Hearing Tr. 154 (JA 68). According to Alcoff s testimony, Alcoff asked Jasinski: “What do you offer the non-Union employees?” Hearing Tr. 86-87 (JA 76) — and suggested the negotiators “ought to look at other plans.” Hearing Tr. 187 (JA 76).
At Alcoff s suggestion, he and a Laurel Bay unit employee joined Jasinski and Dennin in Laurel Bay’s caucus room for an “off-the-record discussion,” which Alcoff characterized as “very, very unproductive.” Hearing Tr. 155-56 (JA 68). After Alcoff and the employee returned to the bargaining room, Jasinski joined them and declared that Laurel Bay’s outstanding July 8 offer (as orally amended to accelerate the first pay raise) was Laurel Bay’s “last and best final offer.” Hearing Tr. 476 (JA 130);
see also id.
at Tr. 157 (JA 69);
I will tell you that we are not at impasse in this discussion. There’s wiggle room on the proposal. But, clearly, we need to know a lot of answers to these kinds of questions, now that we’re apparently surprisingly at the end of bargaining, out of the blue____[W]e would like to schedule another session. We will need *1372 information, because, frankly, we need to know in real terms what the impact of this will be both on our members and to the employer, so we can cost it out against our proposal and make a сomprehensive counter-proposal.
Hearing Tr. 169 (JA 72). Jasinski responded he did not have his calendar with him to schedule another session but would call the Union local later to do so.
On August 31, Alcoff wrote Jasinski that he was “preparing a comprehensive counterproposal on the remaining open issues” and requested information, including the summary plan descriptions of Laurel Bay’s non-unit employee health plans and the amounts of their premiums (for employer and employee). Gen. Counsel ex. 8 (JA 417). The next day, September 1, Laurel Bay implemented a 3% pay raise in accord with its July 8, economic proposal, as amended on August 23 (accеlerating the date of the raise). Alcoff immediately sent a fax to Jasinski expressing “shock[ ]” that Laurel Bay unilaterally implemented the increase, asking if Laurel Bay had implemented any other provisions in its proposal and declaring: “We are clearly not at impasse.” Gen. Counsel ex. 9 (JA 418). The two exchanged correspondence regarding possible meeting dates until January 2007 but did not meet again. In his final letter, dated January 10, 2007, Alcoff complained that Laurel Bay “unilaterally implemented a ‘merit bonus’ for bargaining unit employees in December 2006,” which it apparently had done. Gen. Counsel ex. 24 at 1 (JA 434).
The Union filed a series of unfair labor practice charges against Laurel Bay from November 2005 to May 2006. On February 2, 2007, the Board’s General Counsel filed a Third Amended Consolidated Complaint alleging Laurel Bay violated section 8(a)(5) and (1) of the Act by failing to provide the Union with requested information, refusing to meet for bargaining at reasonable times and unilaterally implementing changes in terms of employment without first bargaining to impasse. 12 The ALJ conducted a hearing in FebruaryMareh 2007.
In his June 8, 2007 decision, the ALJ concluded Laurel Bay violated section 8(a)(1) and (5) in all respects alleged based on two alternate rationales. First, the ALJ concluded that there was no impasse, relying on Alcoffs conduct at the final bargaining session both
before
Jasinski declared Laurel Bay’s latest offer tо be its “last and best final offer” — when Alcoff mentioned “other health insurance” and Laurel Bay’s “non-Union employees,” Hearing Tr. 154, 186-87 (JA 68, 76); and
after
Jasinski’s declaration — when Alcoff questioned him about the terms of Laurel Bay’s offer, denied there was an impasse, claimed there was “wiggle room on the proposal” and expressed a desire to schedule another bargaining session so the Union could make “a comprehensive counter-proposal,”
id.
at 169 (JA 72).
Laurel Bay I,
In a decision filed September 30, 2008, a two-member panel of the NLRB upheld
*1373
the ALJ, finding that “the parties had not reached an impasse in bargaining, and that [Laurel Bay] violated Section 8(a)(5) when it unilaterally implemented various changes in the employees’ terms and conditions of employment.”
Rather than evincing the existence of a bona fide impasse over health insurance as of August 23, the record shows that the parties had agreed to meet again, that the Union would be preparing counterproposals, and that there was at least professed flexibility on health insurance alternatives.
Id.
Laurel Bay petitioned for review. We held the case in abeyance pending the United States Supreme Court’s decision in
New Process Steel, L.P. v. NLRB, cert. granted,
— U.S. -,
On remand, a three-member panel of the Board succinctly decided:
The Board has considerеd the judge’s decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order to the extent and for the reasons stated in the decision reported at353 NLRB 232 , which is incorporated herein by reference.
Laurel Bay II,
II.
Section 8(a)(5) makes it an ULP for an employer “to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 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,
“A bargaining impasse — which justifies an employer’s unilateral implementation of new terms and conditions of employment — occurs when ‘good faith negotiations have exhausted the prospects of concluding an agreement’ leading both parties to believe that they are ‘at the end of their rope.’ ”
Id.
at 1114 (quoting
Taft Broad. Co.,
From start to finish, the parties were at loggerheads over the amount of Laurel Bay’s contribution to the Benefit Fund. As the ALJ found, their “course of bargaining demonstrates that the Union never proposed a Benefit Fund incrеase which was lower than the raise ultimately agreed to in the Tuchman agreement— 22.33%, and [Laurel Bay] consistently insisted that it would not agree to a higher rate than its offer of 16%.”
On review, the NLRB acknowledged that “[i]mpasse over a single issue may create an overall bargaining impasse that privileges unilateral action if the issue is ‘of such overriding importance’ that it frustrates the progress of further negotiations” and that “the Benefit Fund contributions clearly constituted such an issue.”
In
TruServ,
the employer too made a “last, best and final offer” but the Board concluded “the parties had not bargained to impasse before thе [employer] unilaterally implemented changes in the unit employees’ terms and conditions of employment” because “until the [employer] abruptly claimed that its ‘last, best and final offer’ was on the table and would be implemented unilaterally if not accepted, both the [employer] and the Union had demonstrated considerable flexibility and willingness to compromise their positions.”
At oral argument, the Board’s counsel argued at length that the “context” of the final August 23 meeting—i.e.,
*1375
the entire course of the parties’ bargaining — reinforced that the parties were not at impasse. This argument runs contrary to both the ALJ’s and the Board’s characterizations of the parties’ consistent adherence to their respective positions on the Benefit Fund contribution up to the August 23 session, when, as both the ALJ and the Board acknowledged, the parties were poised for impasse.
See
As for Laurel Bay, the Board faults it for failing to “test the Union’s stated willingness to move, consider a union counterproposal, or follow through with an additional negotiation session” and the “sincerity” of its “professed flexibility on health insurance alternatives.”
*1377 For the foregoing reasons, we conclude the record establishes the parties reached an impasse during the August 23, 2005 bargaining session. Accordingly, we grant Laurel Bay’s petition for review regarding the Board’s findings that Laurel Bay committed unfair labor practices in violation of section 8(a)(1) and (5) of the National Labor Relations Act when it declared impasse and when it subsequently implemented the proposed wage increase; accordingly, we vacate the Board’s order insofar as it found Laurel Bay’s implementation of the pay raise constituted an unfair labor practice. In all other respects, the petition is denied and the cross-application for enforcement is granted. 17
So ordered.
Notes
. Unless otherwise noted all dates cited are in 2005.
. The remaining six ULPs are based on allegations that Laurel Bay (1) unilaterally terminated a nursing assistant’s “accommodation schedule” that allowed her to work a nonstandard shift one day each week to attend a class; (2) unilaterally announced the termination of all accommodation schedules; (3) unilaterally terminated a transportation service it provided for certain nurses’ aides; (4) refused to meet for bargaining after October 4, 2005; (5) unilaterally implemented merit pay raises; and (6) failed to provide information requested by the SEIU 1199 New Jersey Health Care Union (Union) on August 31, 2005 and thereafter. Laurel Bay forfeited its objections to the first two alleged ULPs because it failed to except to them befоre the Board.
See Laurel Bay I,
. The Benefit Fund is managed by a Board of Trustees (Trustees), half of whom are designated by employers and half by the Union.
Atrium at Princeton, LLC,
. The extension agreement also authorized Laurel Bay to hire up to 25 "no frills” or "per diem” employees, i.e., employees who receive no benefits under the сollective bargaining agreement.
. The proposal was delivered at least in oral form at the first session. Jasinski testified he was uncertain whether Pimplaskar presented the written version at the first or the second session.
. The proposal also provided that Laurel Bay contribute 2 Wo of each unit employee's gross earnings to the Union’s national pension fund, Wo to its Training and Education Fund and Wo to the New Jersey Healthcare Workers Alliance for Quality in Long Term Care. It also contained provisions addressing non-economic subjects such as Union activities and communications, seniority, layoff and recall, transfer and promotion, discipline and discharge and labor-management committees. It did not include a wage proposal.
.In addition, the proposal set contribution rates for the other Union funds, prohibited hiring new “no frills” employees and established minimum "parity” pay for lower paid employees — housekeeping and dietary workers, in particular — intended to bring their pay up to “industry” levels by the contract's end date. See Resp’t Br. 8, 14-15.
. The Tuchman Master Contract was the final negotiated three-year contract agreed to by the Union and the 20 facilities in the Tuchman Group. It took effect on June 15, 2005.
. The Tuchman Master Contract contained the following relevant most favored nations language:
In the event the Union enters into any collective bargaining agreement ... on or after April 1, 2005 with a рroprietary nursing home in New Jersey which provides for more favorable economic terms and conditions to the employer than those contained herein, such more favorable terms and conditions shall automatically be applicable to the Employers [signatory to the Tuchman Master Contract]....
Resp't ex. 23 at 29, art. 35, ¶ 35.2 (JA 251) (agreement between SEIU 1199 New Jersey Health Care Union and Arnold Walter Nursing Home et al.).
.Laurel Bay also proposed new criteria for setting new hires' wages, new hourly rates for no-frills employees and little or no change in sick/holiday/vacation days.
. These included the proposal’s no-frills employee and wage increаse terms.
. For a list of the unilateral changes other than the wage increase, see supra p. 1367 note 2.
. The Board largely ignored the four
Taft
factors,
supra
pp. 1373-74, relying on only one — the contemporaneous understanding of the parties — and that only briefly.
See
. Although the ALJ found that if there was an impasse, it was subsequently brokеn by Alcoffs near-soliloquy,
Laurel Bay I,
. Nor is the Board’s finding of no impasse supported, as it claims, by "evidence at the hearing establishing] that the Union, in fact, agreed to contracts with six other nursing homes in New Jersey that did not include the Benefit Fund as the insurance plan for unit employees.”
Laurel Bay I,
. In a post-argument letter submitted pursuant to District of Columbia Circuit Rule 28(j), the Board asserts its impasse finding is supported by the court's recent decision in
Wayneview Care Center v. NLRB,
. See supra p. 1367 note 2.