Stein Industries Inc.

National Labor Relations Board - Board Decisions

Feb 10, 2017

365 NLRB No. 31 (N.L.R.B. 2017)

365 NLRB No. 31
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Stein Industries, Inc. and New York City and Vicinity
District Council of Carpenters. Case 29–CA–
134711
February 10, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On April 27, 2015, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and Charging Party each filed an answering
brief, and the Respondent filed a reply brief. The Charg-
ing Party filed cross-exceptions and a supporting brief,
the Respondent filed an answering brief, and the Charg-
ing Party filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings,1 and conclusions and to adopt
the recommended Order as modified and set forth in full
below.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We correct two inadvertent errors in the judge’s decision that do not
affect the disposition of this case. First, the judge incorrectly stated that
an independent contractor, Gilbert Displays, Inc., had won an $8 mil-
lion arbitration award against the Union; the Manufacturing Wood-
workers Association won that arbitration award. Second, the judge
failed to mention that, in removing the most-favored-nation provision
from their 2014 agreement, the Union and the Association also deleted
article XXIII, “Conformity of Agreements.”
The judge cited two cases decided by a two-member Board, Laurel
Bay Health & Rehabilitation Center, 353 NLRB 232 (2008), and Mon-
mouth Care Center, 354 NLRB 11 (2009). Although the D.C. Circuit
vacated those decisions pursuant to New Process Steel v. NLRB, 560
U.S. 674 (2010), we rely on them here because, in each case, a three-
member panel of the Board subsequently incorporated the decision by
reference in reaffirming the decision. See Laurel Bay Health & Reha-
bilitation Center, 356 NLRB 3 (2010), enf. denied in relevant part 666
F.3d 1365 (D.C. Cir. 2012), and Monmouth Care Center, 356 NLRB
152 (2010), enfd. 672 F.3d 1085 (D.C. Cir. 2012).
2 While the Respondent excepts to the judge’s finding of an 8(a)(5)
and (1) violation, it does not specifically except to the judge’s recom-
mended affirmative bargaining order. We therefore find it unnecessary
to provide a specific justification for that remedy.
FACTS
The Respondent constructs movie theater concession
stands. For 40 years, the Respondent and the New York
City and Vicinity District Council of Carpenters (the
Union) were parties to a series of Memoranda of Under-
standing (MOUs). The MOUs mirrored the Memoranda
of Agreement (MOAs) negotiated between the multiem-
ployer Manufacturing Woodworkers Association (the
Association) and the Union.3 On April 9, 2012, approx-
imately 2 months before the June 30 expiration of the
then-current MOA, the Respondent, through its repre-
sentative and chief negotiator Mark Portnoy, timely noti-
fied the Union that it desired to negotiate its own sepa-
rate agreement. Union Representative Andrew Mucaria
responded that the Union was currently negotiating a
new MOA with the Association and that upon comple-
tion of those negotiations the Union would contact
Portnoy to negotiate a separate agreement with the Re-
spondent. Because Portnoy also represented several oth-
er union-signatory contractors, he and Mucaria occasion-
ally conversed on a range of topics, including the pend-
ing negotiations with the Respondent. Over the course of
those discussions, Mucaria informed Portnoy that the
Union was still negotiating the MOA and had not forgot-
ten about the Respondent.
On September 13, 2013, Portnoy wrote to Mucaria
about scheduling a negotiation session with the Re-
spondent. On September 18, 2013, Mucaria replied that
the Respondent had always signed an MOU mirroring
the MOA and that the Union would send a copy of the
MOA to the Respondent to review once it was finalized.
Portnoy responded that the Respondent would not be
bound to the MOA and requested dates to begin negotia-
tions for its own agreement. After an exchange of
emails, Portnoy and Mucaria met on November 6, 2013.
Portnoy explained that the Respondent had financial dif-
ficulties and needed concessions from the Union. The
Union agreed to offer the Respondent concessions.
On January 11, 2014,4 the Association and the Union
ratified a new MOA. The Respondent and the Union
held their first bargaining session on March 4. Union
Representative Robert Villalta attended for the Union;
Portnoy and Respondent President Andrew Stein attend-
ed for the Respondent. Initially, Portnoy proposed a

In accordance with AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016), we shall modify the judge’s recommended tax compensa-
tion and Social Security reporting remedy. We shall modify the judge’s
recommended Order and substitute a new notice to reflect this remedial
change and to conform to the Board’s standard remedial language.
3 The Respondent is not a member of the Association.
4 All dates hereinafter are in 2014 unless otherwise indicated.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
freeze of the employees’ current wages of $30 an hour.
Villalta presented Portnoy with a proposal mirroring the
MOA, which included the creation of a two-tier wage
and benefit scale. The proposal called for current em-
ployees to be in Tier I and paid at their existing wage rate
of $30 an hour, with a 1 percent increase in February
2014 and a 2 percent increase in July 2014. New hires
would be paid at a Tier II wage rate of $22 an hour, with
a 2 percent increase in July 2014, and would receive
health care benefits inferior to those in the prior contract,
at a savings to the Respondent of another $10 an hour.
The proposal also capped the fringe benefit contributions
for Tier II employees to provide additional cost savings,
eliminated the restriction on how many employees the
Respondent could send to a job, permitted electronic
timekeeping, modified the deadline for the remission of
benefit contributions, and granted the Union the right to
remove its members from the Respondent’s jobs if the
Respondent defaulted on its benefit contribution pay-
ments. In response, the Respondent rescinded its initial
offer and made a new, less favorable proposal placing all
employees in the Tier II wage and benefit scale (an $8-
per-hour reduction for current employees) and granting
the Respondent the unlimited right to subcontract work
and the right to establish reasonable work standards.
Portnoy testified that, after hearing the Respondent’s
revised proposal, union representative Villalta stated that
there could be “no deviation” from the Union’s proposal
and that “this is where we have to go.”5
Following the March 4 negotiation session, Mucaria
and Villalta reviewed and discussed the Respondent’s
revised proposal and then consulted Union Vice Presi-
dent Michael Cavanaugh. Mucaria and Villalta suggest-
ed to Cavanaugh that the Union “could possibly move
off the independent MOU for the independent shops and
continue to negotiate separately for [the Respondent].”
Cavanaugh responded that he had “absolutely no prob-
lem” with deviating from the MOU and that if the Re-
spondent “claim[s] to be in a financial hardship, feel free
to continue negotiating and we’ll go from there.” Having
determined that it could deviate from the MOA, the Un-
ion expressed its flexibility in bargaining at future nego-
tiation sessions.
On April 4, the parties met for a second time. In addi-
tion to those who were present at the March 4 session,
Union Representative Mucaria attended. Both parties
presented their March 4 proposals. In response to the

5 The judge neither credited nor discredited Portnoy’s testimony on
this point, but found that even if the statement was made, it was contra-
dicted by the events at later bargaining sessions, where the Union indi-
cated willingness to grant further concessions.
Respondent’s request for greater economic assistance,
Mucaria stated that the Union could do so but the Re-
spondent “had to come back with a more realistic pro-
posal in a positive way, not just taking all the conces-
sions [the Union] gave and then asking for additional
concessions.” Mucaria stressed that the Union was
“willing to come off our proposal[,] but you need to
move in the correct direction in order for us to do that.”
According to Portnoy’s negotiating notes, the session
ended when Portnoy told Mucaria and Villalta that he
was “reluctant to impose any terms, but if you have noth-
ing else to offer, I have nothing to offer. Let’s just set
another date.”
On June 25, the parties met again for an hour. The
Union agreed to an addition to the parties’ arbitration
panel, requested by the Respondent. Both parties ex-
pressed their frustration with each other for refusing to
make a second proposal.
The parties held their fourth and final negotiating ses-
sion on July 8. Portnoy again presented the Respond-
ent’s March 4 offer but with an additional provision, that
“new hires shall be paid no less than $20.00 per hour.”
The Union asserted that this was regressive because, on
March 4, the Respondent had offered to pay all employ-
ees $22 per hour. The Union also reiterated its rejection
of the proposal that all employees receive Tier II wages
and benefits. The Union offered, however, to move from
its proposal for a 10-year contract. It also expressed
willingness, if the Respondent moved on wages and ben-
efits, to agree to the Respondent’s request to set reasona-
ble work standards so long as that did not result in the
creation of a production quota. Portnoy then asked if the
Union would change its proposals, and Mucaria indicated
that the Respondent needed to make some positive
movement. At that point, Portnoy declared impasse in
the negotiations. He told Mucaria, “You won’t change
your proposal. You really can’t change your proposal, so
I’m going to give you a final offer.” Portnoy offered to
discuss the terms of the Respondent’s proposal at any
time during the following week but asserted that the Re-
spondent would unilaterally implement them a week lat-
er. Mucaria and Villalta were in “shock” and told
Portnoy, “[W]e’re still making positive movement” and
“we’re not done negotiating.” Portnoy asserted that he
believed the Union had no intention to bargain and only
wanted the Respondent to agree to an MOU binding it to
the Association’s MOA.
By letter dated August 11, the Respondent advised the
employees that work was available “under the terms of
employment recently implemented by the company.
Your hourly rate will be $22.00 and your benefits will be
with the Union’s Tier II Package.” Prior to the Respond-
STEIN INDUSTRIES, INC. 3
ent’s declaration of impasse, the parties had not dis-
cussed many of the Union’s proposals, including the
capping of benefit contributions at 40 hours per week,
adjusting the manning requirement for installations to
increase efficiency, permitting electronic timekeeping,
modifying the time limit for the Respondent’s remission
of benefit contributions, and granting the Union the right
to remove members from the Respondent’s jobs if the
Respondent defaulted on benefit contribution payments.
DISCUSSION
In determining whether impasse has been reached, the
Board considers “[t]he bargaining history, the good faith
of the parties in negotiations, the length of the negotia-
tions, the importance of the issue or issues as to which
there is disagreement, [and] the contemporaneous under-
standing of the parties as to the state of negotiations.”
Taft Broadcasting Co., 163 NLRB 475, 478 (1967), re-
view denied sub nom. Television Artists AFTRA v.
NLRB, 395 F.2d 622 (D.C. Cir. 1968). Applying those
factors, the judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by prematurely declar-
ing impasse on July 8 and unilaterally implementing the
terms and conditions of its “final offer” when no valid
impasse had been reached. For the reasons stated by the
judge, we agree and find that the Respondent failed to
prove that an impasse existed on July 8.6 See PRC Re-
cording Co., 280 NLRB 615, 635 (1986) (discussing
criteria for determining impasse), enfd. 836 F.2d 289
(7th Cir. 1987).
“‘[I]mpasse is … that point at which the parties have
exhausted the prospects of concluding an agreement and
further discussions would be fruitless.’” Laborers
Health & Welfare Trust Fund v. Advance Lightweight
Concrete Co., 484 U.S. 539, 543 fn. 5 (1988); see also
Sacramento Union, 291 NLRB 552, 554 (1988) (“The
Board has long held that an impasse occurs ‘after good
faith negotiations have exhausted the prospects of con-
cluding an agreement.’”) (quoting Taft Broadcasting Co.,
above), enfd. mem. sub nom. Sierra Publishing Co. v.
NLRB, 888 F.2d 1394 (9th Cir. 1989); Carpenter Sprin-
kler Corp. v. NLRB, 605 F.2d 60, 65 (2d Cir. 1979) (ne-
gotiations must be sufficiently exhaustive to find that
impasse had been reached). “Both parties must believe
they are at the end of their rope.” Nexeo Solutions, LLC,
364 NLRB No. 44, slip op. at 12 (2016), (quoting Lars-
dale, Inc., 310 NLRB 1317, 1318 (1993)).
During the course of their four negotiation sessions,
prior to the Respondent’s declaration of impasse at the

6 In finding that the parties had not reached impasse on July 8, we
find it unnecessary to rely on the parties’ conduct after that date.
fourth session, the parties had not even discussed, let
alone fully explored, all the bargaining issues. The par-
ties never bargained over a number of the Union’s pro-
posals, including cost-savings proposals benefiting the
Respondent and significant noneconomic issues, such as
adjusting staffing requirements to increase productivity.
Equally, if not more importantly, the Union’s course of
conduct during the negotiations demonstrated its willing-
ness not only to continue bargaining, but to be flexible in
its demands while urging the Respondent to do the same.
That the Union did not present a revised proposal but
rather attempted to explore a different approach to mov-
ing the negotiations forward, inviting a reciprocal flexi-
bility, does not establish that the parties were at an im-
passe. See Newcor Bay City Division of Newcor, 345
NLRB 1229, 1239 (2005) (no impasse where union of-
fered no specific additional concessions but declared its
intention to be flexible and continue bargaining), enfd.
219 Fed. Appx. 390 (6th Cir. 2007).
Even though it took a firm position on certain issues,
the Union consistently expressed its continued willing-
ness to bargain and never refused to move from its posi-
tion or deem any issue nonnegotiable. At the second
bargaining session on April 4, Union Representative Mu-
caria told the Respondent that the Union was “willing to
come off our proposal; but you need to move in the cor-
rect direction in order for us to do that.” As noted above,
at the prior bargaining session, the Respondent substan-
tially reduced its initial wage proposal. Mucaria also told
the Respondent that the Union would consider the Re-
spondent’s subcontracting proposal.7 During the fourth
and final session on July 8, before the Respondent de-
clared impasse, Mucaria offered concessions on specific
issues of importance to the parties: he told Portnoy that
the Union was willing to move from its proposal regard-
ing the duration of the contract and was amenable to the
Respondent’s request for a reasonable work standard
provision if the Respondent modified its proposed lan-
guage so as not to create a product quota and made a
more generous proposal on wages and benefits.8

7 We do not rely on the judge’s finding that Mucaria also made this
statement on March 4. Mucaria did not attend the March 4 negotiation
session.
8 The dissent therefore mischaracterizes the Union’s position as “a
bare promise of flexibility.” Moreover, the record disproves the dis-
sent’s suggestion that the Union would not, and could not, deviate from
its initial proposal. As the judge correctly found, the fact that the Un-
ion took a hard position at the outset of negotiations does not mean the
Union would not yield later in the process after the parties had the
opportunity to engage in further bargaining. “Effective bargaining
demands that each side seek out the strengths and weaknesses of the
other’s position. To this end, compromises are usually made cautiously
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In Grinnell Fire Protection System, cited by the judge,
the Board found that the employer prematurely declared
impasse “despite the fact that one party had asserted that
it had reached its final position and the other had not yet
offered specific concessions.” 328 NLRB 585, 585
(1999) (and cases cited), enfd. 236 F.3d 187 (4th Cir.
2000), cert. denied 534 U.S. 818 (2001). The facts of
that case are very similar to those here. The union in
Grinnell negotiated an agreement with a multiemployer
association, but the employer sought to bargain inde-
pendently with the union because it wanted special relief
from nonunion competition. Id. at 589. However, while
it was engaged in bargaining with the union, the employ-
er “chose to assume that the [u]nion was wedded to the
agreement it had signed with the [multiemployer associa-
tion] and refused to listen to the [u]nion’s repeated assur-
ances that such was not the case.” Id. at 586. In finding
that the employer had prematurely declared impasse, the
Board stated:
Where, as here, a party who has already made signifi-
cant concessions indicates a willingness to compromise
further, it would be both erroneous as a matter of law
and unwise as a matter of policy for the Board to find
impasse merely because the party is unwilling to capit-
ulate immediately and settle on the other party's un-
changed terms. Such a doctrine would encourage rigid,
inflexible posturing in place of the give-and-take of
true bargaining.
Id.; see also Newcor Bay City Division, 345 NLRB at
1240–1241 (employer prematurely declared impasse
where it acted “based on its artificial deadline at a time
when a negotiated agreement was still feasible”). Like-
wise, in this case, the Union had already offered signifi-
cant concessions and expressed a willingness to go fur-
ther. Nonetheless, the Respondent assumed that the Un-
ion would not deviate from the MOA and refused to test
Mucaria’s sincerity in seeking to bridge the gap between
the parties’ proposals. In these circumstances, as the
Board stated in Grinnell Fire Protection System, it would
be wrong to find impasse when the Union refused to ac-
cept the Respondent’s proposal but still demonstrated its
flexibility in bargaining.

and late in the process.” Detroit Newspaper Local 13 v. NLRB, 598
F.2d 267, 273 (D.C. Cir. 1979), citing generally F. A. Reynolds Co.,
173 NLRB 418, 424 (1968), enfd. 424 F.2d 1068 (5th Cir. 1970).
Thus, contrary to the dissent’s reliance on “the Respondent’s belief that
the Union would not accept anything other than the MWA Independent
Shop Agreement,” as shown above, by the fourth negotiating session
the Union had made some movement from its original bargaining posi-
tion, and expressed a willingness to explore further compromise.
In sum, at least four of the five Taft factors weigh
against a finding of impasse in this case. Although the
parties had enjoyed a long collective-bargaining relation-
ship prior to their 2014 negotiations (Taft factor 1), this
was the first time that the Respondent had directly partic-
ipated in bargaining with the Union for a separate agree-
ment.9 With respect to Taft factor 2, the judge found, “a
ray of hope presented itself at the last bargaining session
on July 8 before impasse was declared.” See Hayward
Dodge, 292 NLRB 434, 468 (1989) (no impasse where
“there has been movement sufficient ‘to open a ray of
hope with a real potentiality for agreement if explored in
good faith in bargaining sessions’”). The judge found no
credible evidence that union negotiators stated that any
issue was nonnegotiable. He also found that the Union’s
course of conduct demonstrated its willingness to contin-
ue to negotiate and that the Union’s refusal at that mo-
ment to yield did not mean that it never would. Further,
as the judge found, the fact that the parties met for a lim-
ited number of sessions prior to implementation weighs
against accepting the Respondent’s contention that the
parties were at impasse (Taft factor 3). Turning to the
particular matters as to which there was disagreement
between the parties (Taft factor 4), as shown above, the
parties held divergent views on several significant issues
including wages and fringe benefit contributions, size of
work crews, reasonable work standards, and economic
concessions. However, as the judge found, the evidence
fails to establish that, when the Respondent declared im-

9 Our dissenting colleague cites Lou Stecher’s Super Markets, 275
NLRB 475, 476 (1985), and Seattle-First National Bank, 267 NLRB
897, 898 (1983), review denied sub nom. Financial Institution Employ-
ees of America, Local No. 1182 v. NLRB, 738 F.2d 1038 (9th Cir.
1984), to assert that the parties’ 40-year bargaining history weighs in
favor of finding impasse. In Lou Stecher’s Super Markets, the parties’
long bargaining relationship was relevant to interpreting the union’s
failure to contact the respondent after initially promising to meet every
day as an acknowledgment by the parties of the futility of further bar-
gaining. In Seattle-First National Bank, the Board merely noted that
the parties’ negotiation of two 3-year contracts supported a finding of
impasse. Here, however, the parties’ long bargaining history weighs
against a finding of impasse because that history was limited to the
Respondent simply signing the MOU that mirrored the MOA, meaning
the parties were inexperienced in negotiating directly with one another.
As a result, the present case is more analogous to those cases in which
parties are attempting to reach an initial collective-bargaining agree-
ment, which the Board has taken into consideration as a factor militat-
ing against jumping to any conclusions that difficulties in bargaining
signal the existence of a true impasse. See, e.g., Old Man’s Home of
Philadelphia, 265 NLRB 1632, 1634 (1982) (“The parties were negoti-
ating an initial agreement. Thus, the bargaining history does not favor
a finding of impasse. To the contrary, it is the Board’s policy to en-
courage ‘the fullest opportunity’ for parties to effect agreement in ini-
tial contract negotiations’”), enf. denied on other grounds 719 F.2d 683
(3d Cir. 1983), cert. denied 466 U.S. 958 (1984).
STEIN INDUSTRIES, INC. 5
passe at the fourth session on July 8, the parties had ex-
hausted the prospects of reaching agreement on these
admittedly important issues. Indeed, the parties had not
even discussed many of the Union’s proposals, including
the capping of the Respondent’s benefit contributions,
adjusting the manning requirement for installations, per-
mitting electronic timekeeping, modifying the time limit
for remitting benefit contributions, and granting the Un-
ion the right to remove members from the Respondent’s
jobs if the Respondent defaulted on benefit contribution
payments.10 See Taft, 163 NLRB at 478 (impasse where
progress was imperceptible on critical issues discussed
over 23 bargaining sessions). Finally, the record clearly
demonstrates that the parties did not share a contempora-
neous understanding that they were deadlocked on July 8
(Taft factor 5).
As the judge found, the parties’ overall course of con-
duct did not evince a mutual understanding that further
bargaining would not take place or be fruitful. Indeed, as
the judge further found, union officials were not at the
end of their negotiating rope, but were ready and willing
to negotiate further. Thus, although the Union had al-
ready made major concessions, when the Respondent
declared impasse, the Union protested that it had not
completed negotiations, stated that it would make further
concessions and would be flexible upon the Respond-
ent’s making an additional proposal, and offered to con-
tinue to bargain. Significantly, even when it declared
impasse, the Respondent recognized that the parties were
not irreconcilably deadlocked: it agreed to continue bar-
gaining with the Union at any time over the upcoming
week. See Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1186
(5th Cir. 1982) (“[F]or a deadlock to occur, neither party
must be willing to compromise.” (emphasis in original)).
Contrary to our dissenting colleague’s assertions, we
are neither intervening in the parties’ negotiations by
taking a side nor are we making assumptions about the
efficacy of further bargaining. It could be that additional

10 Citing CalMat Co., 331 NLRB 1084, 1097 (2000), our dissenting
colleague claims that there was no need for the parties to discuss none-
conomic matters before the Respondent declared impasse because
“economic issues were of overriding importance.” However, even
assuming that CalMat Co., which involved a claim that one bargaining
subject led to a complete breakdown in the entire negotiations, is rele-
vant here, the Board in CalMat Co. stated that there can be impasse
over a single critical issue only if “there can be no progress on any
aspect of the negotiations until the impasse relating to the critical issue
is resolved.” Id. In this case, the parties’ differences on wages did not
lead to a complete breakdown in the overall negotiations that would
have prevented them from reaching agreement on any number of is-
sues. See text above. However, the parties never had a chance to at-
tempt to find common ground on other issues before the Respondent
declared impasse.
bargaining would not have led to an agreement and that
the parties eventually would have reached impasse.
However, it is imperative that we not be so quick to dis-
miss the productivity of bargaining unless there truly is
“no realistic possibility that continuation of discussion . .
. [would be] fruitful.” Monmouth Care Center v. NLRB,
672 F.3d 1085, 1088 (D.C. Cir. 2012) (internal quotes
omitted). See also Carpenter Sprinkler Corp. v. NLRB,
above. As the Supreme Court stated in NLRB v. Ameri-
can National Insurance Co.,
The theory of the Act is that the making of voluntary
labor agreements is encouraged by protecting employ-
ees’ rights to organize for collective bargaining and by
imposing on labor and management the mutual obliga-
tion to bargain collectively.
Enforcement of the obligation to bargain collectively is
crucial to the statutory scheme. And, as has long been
recognized, performance of the duty to bargain requires
more than a willingness to enter upon a sterile discus-
sion of union-management differences.
343 U.S. 395, 402 (1952).11
There is, in fact, no way to know what would have
happened if the Respondent had not declared impasse on
July 8. But the Union’s consistent expressions of flexi-
bility, which the judge credited, demonstrate that there
was a realistic possibility that the parties could come to
an agreement on economic terms, not to mention the
noneconomic subjects that were never discussed. The
efficacy of the collective-bargaining process is dependent
on it not being curtailed by a premature declaration of
impasse.

11 Nor are we, as the dissent suggests, requiring the parties to reach
an agreement or instructing them to make concessions. Instead, we are
simply finding that, under the Taft Broadcasting factors, the parties had
not reached impasse by the end of their fourth negotiating session on
July 8. We are also not requiring, as claimed by the dissent, that the
parties engage in “fruitless marathon discussions.” For impasse to be
found, it is necessary, as we have long held, that both parties believe
that they are “at the end of their rope” in the negotiations. PRC Re-
cording Co., above, 280 NLRB at 635; see also Huck Mfg. Co. v.
NLRB, 693 F.2d 1176, 1186 (5th Cir. 1982) (“[F]or a deadlock to oc-
cur, neither party must be willing to compromise.” (emphasis in origi-
nal)). This was certainly not the case here, after only four negotiation
sessions.
The dissent cites Betlem Service Corp., 268 NLRB 354 (1983),
where the Board found that impasse was reached after only two bar-
gaining sessions. The union in that case evinced a “take-it-or-leave-it
approach” regarding its proposal and refused to discuss or even consid-
er the employer’s proposal, thereby demonstrating that the union lacked
any intention of engaging in collective bargaining.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The dissent also asserts that it was clear “as early as
April 2012 that the parties would be taking radically dif-
ferent positions” in bargaining. This could not yet have
been clear to the Respondent because the Union did
nothing other than pursue its interest in seeking, as a
starting point, terms similar to the multiemployer agree-
ments that were under negotiation. See, e.g., Teamsters
Local 282 (E.G. Clemente Contracting), 335 NLRB
1253, 1255 (2001). But even if it were true, an underly-
ing principle of collective bargaining is that the parties
“are bound to deal with each other in a serious attempt to
resolve differences and reach a common ground.” NLRB
v. Insurance Agents’ International Union, 361 U.S. 477,
486 (1960). This process of collective bargaining—as
has been shown time and time again—can lead the par-
ties to find unexpected ways of reaching mutually bene-
ficial terms. See Royal Motor Sales, 329 NLRB 760,
772 (1999) (“[T]he very nature of collective bargaining
presumes that, while movement may be slow on some
issues, a full discussion of other issues, which have not
been the subject of agreement or disagreement, may re-
sult in agreement on stalled issues.”), enfd. 2 Fed. Appx.
1 (D.C. Cir. 2001); see also Newcor Bay City Division,
345 NLRB at 1238 (employer required to continue bar-
gaining even when “a wide gap between the parties re-
mains because under such circumstances there is reason
to believe that further bargaining might produce addi-
tional movement”) (internal quotes omitted). However,
when negotiations are stymied by a party prematurely
declaring impasse, as the Respondent has here, it pre-
vents both parties from realizing this essential benefit of
collective bargaining that is firmly rooted in the Act. See
Television Artists v. NLRB, 395 F.2d at 628 (“It is indeed
a fundamental tenet of the [A]ct that even parties who
seem to be in implacable conflict may, b[y] meeting and
discussion, forge first small links and then strong bonds
of agreement.”). Accordingly, by prematurely declaring
impasse on July 8 and implementing changes to employ-
ees’ terms and conditions of employment, the Respond-
ent refused to bargain in good faith with the Union in
violation of Section 8(a)(5) and (1).12 See Atlantic
Queens Bus Corp., 362 NLRB No. 65, slip op. at 3

12 It is undisputed that the Respondent unilaterally ceased remitting
the required benefit payments to the Union’s Benefit Fund and only
sent in payments commensurate with the less costly Hollow Metal
Welfare Fund.
Having found that the Respondent prematurely declared impasse,
we find it unnecessary to pass on the judge’s alternative rationale: that
if impasse had been reached, the Respondent unlawfully implemented
changes that were not encompassed within its final offer.
(2015)); CJC Holdings, Inc., 320 NLRB 1041, 1045
(1996), enfd. mem. 110 F.3d 794 (5th Cir. 1997).
ORDER
The National Labor Relations Board orders that the
Respondent, Stein Industries, Inc., Amityville, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith over
the terms and conditions of a successor collective-
bargaining agreement with New York City and Vicinity
District Council of Carpenters (the Union) as the exclu-
sive collective-bargaining representative of the employ-
ees in the following unit:
All foremen, journeymen mechanics, carpenters, bench
hands, machine men, cabinet makers, model makers,
sprayers, varnishers, wood finishers, wood carvers, and
turners, kalamein men, apprentices, helpers, unskilled
and semi-skilled production workers, metal workers
and all other employees doing production and mainte-
nance work, except a caretaker of a building.
(b) Making unilateral changes in its unit employees'
terms and conditions of employment without first bar-
gaining with the Union to impasse.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All foremen, journeymen mechanics, carpenters, bench
hands, machine men, cabinet makers, model makers,
sprayers, varnishers, wood finishers, wood carvers, and
turners, kalamein men, apprentices, helpers, unskilled
and semi-skilled production workers, metal workers
and all other employees doing production and mainte-
nance work, except a caretaker of a building.
(b) On request, cancel and rescind all terms and condi-
tions of employment which it unlawfully implemented or
unlawfully eliminated on and after July 8, 2014, but
nothing in this Order is to be construed as requiring the
Respondent to cancel any unilateral changes that benefit-
ed the unit employees without a request from the Union.
STEIN INDUSTRIES, INC. 7
(c ) At the Union's request, restore to unit employees
the terms and conditions of employment that were appli-
cable prior to July 8, 2014, and continue them in effect
until the parties either reach an agreement or a good-faith
impasse in bargaining.
(d) Make whole the unit employees for any losses suf-
fered by reason of the unlawful unilateral changes in
terms and conditions of employment, on and after July 8,
2014, with interest, in the manner set forth in the remedy
section of the decision.
(e) Compensate affected employees for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and file with the Regional Director for Re-
gion 29, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
years for each affected employee.
(f) Make all contractually-required contributions to
fringe benefit funds that it has failed to make since about
July 8, 2014, if any, and reimburse affected employees
for any expenses ensuing from its failure to make the
required payments, with interest, as set forth in the reme-
dy section of the decision.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its Amityville, New York facility copies of the attached
notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to

13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since July 8, 2014.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 10, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
ACTING CHAIRMAN MISCIMARRA, dissenting.
My colleagues adopt the judge’s finding that the Re-
spondent declared impasse prematurely and violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act
(NLRA or Act) when it implemented the terms of its
final offer. I disagree. The record in this case compels a
conclusion that the parties reached a lawful impasse.
The Respondent and the Union have a bargaining rela-
tionship spanning at least four decades. Throughout all
those years, neither the Respondent nor the Union exer-
cised its right to have separate negotiations for a collec-
tive-bargaining agreement that might differ from what
the Union negotiated with other employers. Rather, the
Respondent and the Union always signed “me-too”
agreements mirroring the Union’s collective-bargaining
agreement with the Manufacturing Woodworkers Asso-
ciation (MWA or the Association). The Respondent at-
tempted to change this practice in April 2012, when it
requested bargaining for a successor collective-
bargaining agreement. However, for independent em-
ployers like the Respondent, the Union had one proposal
and one proposal only: a me-too agreement adopting the
substance of the MWA agreement. As one of the Un-
ion’s negotiators put it when the Respondent proposed
different terms, the MWA agreement was “where we
have to go,” and there could be “no deviation” from the
MWA agreement. For one-and-one-half years, the Un-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ion refused even to meet with the Respondent in re-
sponse to its requests to bargain for a new agreement.
When the parties met, the Respondent persisted in its
right to engage in bargaining for an agreement specific to
its business. The Union’s position remained intransigent:
the only acceptable terms were those set forth in the
MWA agreement. The record leaves no doubt that a
lawful impasse existed on July 8, 2014, and the Re-
spondent lawfully implemented the terms of its final pre-
impasse offer on August 11, 2014.
Accordingly, I believe the complaint should be dis-
missed in its entirety, and I respectfully dissent from my
colleagues’ decision to the contrary.1
FACTS
The Respondent manufactures and sells concession
stands for movie theaters. For more than 40 years, it has
been party to successive collective-bargaining agree-
ments with the Union. During that span, the Respondent
always signed without bargaining the successive Inde-
pendent Shop Agreements that incorporated the contrac-
tual terms set forth in the then-current agreement be-
tween the Union and the MWA, a multiemployer associ-
ation of which the Respondent was not a member.
As noted above, in 2012 the Respondent attempted to
change this practice. Its Independent Shop Agreement

1 The General Counsel alleged, and the judge found in the alterna-
tive, that even if the parties reached a lawful impasse, the Respondent
violated Sec. 8(a)(5) of the Act when, after declaring impasse, it paid
employee Felix Rodriguez $30 an hour, which allegedly constituted a
wage rate that differed from the terms of its final offer. Having found
that the parties did not reach a valid impasse, my colleagues find it
unnecessary to pass on the judge’s alternative finding. Because I would
find a lawful impasse, I must address the alternative finding. Doing so,
I would reverse it.
When contract negotiations have resulted in an impasse, an employ-
er may lawfully make unilateral changes “reasonably falling within its
pre-impasse proposal.” Grondorf, Field, Black & Co. v. NLRB, 107
F.3d 882, 886 (D.C. Cir. 1997). Thus, assuming negotiations were at
an impasse, the General Counsel can prevail on his allegation that the
Respondent unlawfully changed Rodriguez’ wage rate only if the evi-
dence establishes two things: (i) that the Respondent changed Rodri-
guez’ wage rate, and (ii) that Rodriguez’ postimpasse wage rate dif-
fered from Respondent’s final pre-impasse offer. On the record pre-
sented here, this allegation fails on both counts. First, the judge did not
find, and the record contains no evidence, that the Respondent imple-
mented any postimpasse change in employee Rodriguez’ (or any other
employee’s) wage rate. Evidence establishes that Rodriguez was being
paid $30 an hour several months after the impasse, but there is no rec-
ord evidence whatsoever regarding Rodriguez’s pre-impasse wage rate.
Second, the judge was incorrect in his finding that a post-impasse wage
rate of $30 per hour for Rodriguez was inconsistent with the Respond-
ent’s final preimpasse offer. The offer relevantly stated that “[n]o
current employee shall be paid less than $22.00 per hour.” In other
words, the offer was for current employees to be paid at least $22 per
hour. Rodriguez was paid at least $22 per hour.
was set to expire on June 30, 2012. In an April 9, 2012
letter written by its lead negotiator, Mark Portnoy, the
Respondent requested bargaining for a successor collec-
tive-bargaining agreement. The Union, through negotia-
tors Andrew Mucaria and Robert Villalta, verbally re-
sponded, and repeated conversationally on other occa-
sions, that the Union would not bargain with the Re-
spondent until it was finished negotiating the MWA
agreement.
Seventeen months passed. On September 13, 2013,
Portnoy emailed the Union and again requested that the
Union bargain with the Respondent for a new agreement.
On September 18, Mucaria replied: “[H]istorically [the
Respondent] has always signed an independent agree-
ment that mirrored the other shop agreements. The [Un-
ion] is currently in negotiations with the [MWA] and
should be completed soon. As soon as it is completed we
can send it over for your review . . . .” Minutes later,
Portnoy renewed the Respondent’s request for bargain-
ing. He replied: “We want to negotiate our own terms
and conditions. The [MWA] is not authorized to bargain
on behalf of [the Respondent] and we are not bound by
any terms or conditions they bargain for the employers
they are negotiating with.”
The Union continued to refuse to bargain with the Re-
spondent while negotiations for the MWA agreement
were still in progress. Nonetheless, on November 6,
2013, Portnoy and Mucaria met. At this meeting,
Portnoy explained to Mucaria the challenges the Re-
spondent was confronting in the current business envi-
ronment. Portnoy told Mucaria that the Respondent
faced challenges unlike those facing other signatories to
Independent Shop Agreements because it specialized in
movie-theater concession stands and that niche market
was experiencing decreased demand and greater compe-
tition from overseas. Mucaria stated that the Union
would give concessions. Mucaria did not specify, how-
ever, whether the concessions he referred to would be
limited to those the Union would agree to in negotiations
for the MWA agreement.
On January 11, 2014,2 the Union reached an agreement
with the MWA. On January 23, Portnoy renewed his
request for bargaining. After a quarrelsome series of
emails over the next several days, Mucaria put bargain-
ing off for approximately 1-2 weeks so the Union could
ready “the offer for all independent shops.”
After 3 weeks passed without word from the Union,
Portnoy again asked for bargaining dates. The parties
finally met for their first bargaining session on March 4.

2 All further dates are in 2014 unless otherwise indicated.
STEIN INDUSTRIES, INC. 9
The Union’s offer at that meeting was, as the judge
found, “essentially the agreement reached between the
Union and the [MWA] in January.” This was the only
offer that the Union made to the Respondent at any time.
Villalta, on behalf of the Union, contended that the offer
represented “major concessions.” These concessions
were not, however, any different from what the Union
had already agreed to give the MWA.
At the March 4 bargaining meeting, Portnoy presented
the Respondent’s written counterproposal, which sought
additional concessions, including decreased wages and
benefits and the unlimited right to subcontract work.
Upon hearing this proposal, Villalta said that the Union’s
proposal “is where we have to go” and that there could
be “no deviation” from that proposal.
On April 4, the parties held their second bargaining
meeting. Neither the Respondent nor the Union present-
ed any new proposals. Portnoy reiterated the Respond-
ent’s need for cost savings. Mucaria responded that the
Union could offer more economic assistance, but the
Respondent “had to come back with a more realistic pro-
posal in a positive way, not just taking all the conces-
sions we gave and then asking for additional conces-
sions. . . . [The Union is] willing to come off our pro-
posal; but you need to move in the correct direction in
order for us to do that.” Portnoy said that the Respond-
ent was “reluctant to impose any terms, but if you have
nothing else to offer, I have nothing to offer. Let’s just
set another date.”
The third bargaining meeting on June 25 was more of
the same. Both parties stood by their initial proposals
and expressed frustration that the other side would not
budge.3
The fourth bargaining session, on July 8, started the
same way as the prior two meetings. The Union repeat-
edly conditioned any movement on its part on “some
positive movement” by the Respondent first. However,
the Respondent had already presented its counterpro-
posal, and it indicated that it had no intention of bargain-
ing against itself. Portnoy stated: “[Y]ou are not being
responsive[;] we’re having trouble competing in our in-
dustry. We need help. . . . [W]e’re not making any pro-
gress. You won’t change your proposal. You really
can’t change your proposal, so I’m going to give you a
final offer.”4 Portnoy indicated that he was declaring

3 At the June 25 meeting, the Union agreed to add an individual to
the arbitration panel at the Respondent’s request, but the Union never
opposed that request and it was insignificant to the overall negotiations,
which were fixated on economic terms.
4 Portnoy’s saying “you really can’t change your proposal” referred
to the Respondent’s belief that the Union would not accept anything
impasse and that the Respondent would implement the
terms of the final offer in 1 week.
DISCUSSION
To determine whether a valid bargaining impasse ex-
isted on a particular date—here, July 8, 2014, when the
Respondent declared impasse—the Board considers
whether, under “the totality of the circumstances,” “fur-
ther bargaining would [have] be[en] futile” at that time.
Nexeo Solutions, LLC, 364 NLRB No. 44, slip op. at 12
(2016) (internal quotation marks and citations omitted).
In making an impasse determination, relevant factors
include “[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 dis-
agreement, [and] the contemporaneous understanding of
the parties as to the state of negotiations.” Taft Broad-
casting Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d
622 (D.C. Cir. 1968).
The record evidence establishes that negotiations had
reached an impasse on July 8. The parties never deviated
from their initial positions on critically important eco-
nomic issues. Despite its assertion of flexibility if the
Respondent moved “in the correct direction,” the Union
only offered what the Union has previously agreed to in
the MWA agreement. By comparison, the Respondent
consistently proposed terms that differed from those in
the MWA agreement. And there is no allegation that the
Respondent bargained in bad faith prior to its declaration
of impasse on July 8.
In these circumstances, the Board’s role is not to pass
judgment on which party’s position was more reasona-
ble, but merely to act as a referee of the bargaining pro-

other than the MWA Independent Shop Agreement. That belief was
supported by the union negotiators’ statements during bargaining, about
which Portnoy testified at the hearing. For example, after Portnoy
presented the Respondent’s counterproposal at the parties’ first bargain-
ing meeting on March 4, either Villalta or Mucaria explained that any
contract has to be ratified by the Union’s delegate body, and “[w]e
can’t convince the functions in that body. They won’t want to see the
cuts.” Villalta then said, “I’m sure 99% we can’t deliver anything other
than the Independent Agreement.” Portnoy replied, “This isn’t fair,”
and either Villalta or Mucaria said, “I agree, but it’s not in my control.”
(Tr. 181 (emphasis added).) It was the same story at the parties’ last
bargaining session on July 8. At that meeting, Portnoy went through
the items in the Respondent’s counterproposal, Mucaria and Villalta
rejected each one, and “then I [Portnoy] got my lecture again. 100
Delegate[s] from all Locals have to vote on anything that we agree to.
They’re never going to agree to this. This won’t fly. The Delegates
will vote and even if the Members ratify it, it won’t pass unless the
Delegates agree. And this will never pass.” (Tr. 203.) That was when
Portnoy said, “We’re not making any progress. You won’t change your
proposal. You really can’t change your proposal. So I’m going to give
you a final offer.” (Tr. 204.)
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cess. As the Supreme Court held in H. K. Porter Co.,
Inc. v. NLRB, 397 U.S. 99 (1970):
The object of this Act was not to allow governmental
regulation of the terms and conditions of employment,
but rather to ensure that employers and their employees
could work together to establish mutually satisfactory
conditions. The basic theme of the Act was that
through collective bargaining the passions, arguments,
and struggles of prior years would be channeled into
constructive, open discussions leading, it was hoped, to
mutual agreement. But it was recognized from the be-
ginning that agreement might in some cases be impos-
sible, and it was never intended that the Government
would in such cases step in, become a party to the ne-
gotiations and impose its own views of a desirable set-
tlement.5
Moreover, the Act does not require parties in bargain-
ing to engage in a charade or to pretend they are willing
to offer more than they actually place on the table. As
the Supreme Court stated:
[T]he Act does not encourage a party to engage in
fruitless marathon discussions at the expense of frank
statement and support of his position. And it is equally
clear that the Board may not, either directly or indirect-
ly, compel concessions or otherwise sit in judgment
upon the substantive terms of collective bargaining
agreements.6
Here, the Respondent tried for more than two years to
obtain a proposal from the Union that differed from the
MWA Independent Shop Agreement, and it came up
empty. The Union elected to propose a single offer and
not to vary that offer. In the absence of bad-faith bar-

5 Id. at 103–104 (emphasis added). See also First National Mainte-
nance Corp. v. NLRB, 452 U.S. 666, 680–681 (1981) (The Act “is not
intended to serve either party’s individual interest, but to foster in a
neutral manner a system in which the conflict between these interests
may be resolved.”); NLRB v. Insurance Agents’ International Union,
361 U.S. 477, 497 (1960) (It is not a proper function of the Board to act
“as an arbiter of the sort of economic weapons the parties can use in
seeking to gain acceptance of their bargaining demands.”); American
Ship Building Co. v. NLRB, 380 U.S. 300, 317 (1965) (The Board is not
vested with “general authority to assess the relative economic power of
the adversaries in the bargaining process and to deny weapons to one
party or the other because of its assessment of that party’s bargaining
power.”).
6 NLRB v. American National Insurance Co., 343 U.S. 395, 404
(1952) (emphasis added).
gaining, which has not been alleged here,7 the Board
cannot fault either party. The Respondent was not re-
quired to bid against itself, and the Union clearly condi-
tioned any new or different offer on movement by the
Respondent. This is the stuff that creates an impasse in
bargaining.
Although the parties only had four formal bargaining
meetings in 2014, it was clear as early as April 2012 that
the parties would be taking radically different positions.
This became even more apparent in the exchange be-
tween Portnoy and Mucaria in September 2013, in which
Mucaria expressed the Union’s expectation that the Re-
spondent would sign “an independent agreement that
mirrored the other shop agreements” as it had in the past,
to which Portnoy immediately replied, “We want to ne-
gotiate our own terms and conditions.”
The Board has found a valid impasse after only two
bargaining sessions under circumstances similar to those
presented here. See Betlem Service Corp., 268 NLRB
354, 354 (1983) (finding that the parties reached impasse
even though there had been only two formal bargaining
meetings because the union refused to consider deviating
from a me-too agreement). The parties’ more-than-40-
year history of reaching collective-bargaining agreements
also weighs in favor of a valid impasse finding.8 Moreo-

7 Because there is no allegation of bad-faith bargaining by any party,
I do not pass on whether the Union’s refusal to meet with the Respond-
ent for roughly 18 months or to offer anything other than its initial
proposal—the MWA Independent Shop Agreement—constituted a
failure to bargaining in good faith in violation of Sec. 8(b)(3). Howev-
er, it is well established that the Board may find a violation of Sec.
8(b)(3) or Sec. 8(a)(5) if a union or employer, respectively, refuses to
deviate from a single offer or fails to meet at reasonable times to nego-
tiate a collective-bargaining agreement. See, e.g., Sec. 8(d) (defining
the duty to bargain collectively as “the performance of the mutual obli-
gation of the employer and the representative of the employees to meet
at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the negotia-
tion of an agreement or any question arising thereunder, and the execu-
tion of a written contract incorporating any agreement reached if re-
quested by either party, but such obligation does not compel either
party to agree to a proposal or require the making of a concession”);
General Electric Co., 150 NLRB 192, 193 (1964) (violation where a
party “enters into bargaining negotiations with a desire not to reach an
agreement”), enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S.
965 (1970); NLRB v. Montgomery Ward & Co., 133 F.2d 676, 686 (9th
Cir. 1943) (duty to bargain in good faith requires “an open mind and a
sincere desire to reach an agreement” and “a sincere effort . . . to reach
a common ground”) (internal quotations omitted); NLRB v. Griswold
Mfg. Co., 106 F.2d 713, 723 (3d Cir. 1939) (violation if a party “enters
into negotiations . . . with his mind hermetically sealed against even the
thought of entering into an agreement”).
8 See Lou Stecher’s Super Markets, 275 NLRB 475, 476 (1985); Se-
attle-First National Bank, 267 NLRB 897, 898 (1983), review denied
sub nom. Financial Institution Employees of America, Local No. 1182
v. NLRB, 738 F.2d 1038 (9th Cir. 1984). My colleagues acknowledge
STEIN INDUSTRIES, INC. 11
ver, even Union Representative Mucaria understood that
further bargaining would be futile. As the judge
acknowledged, Mucaria testified that he “did not think
that he would likely reach an agreement with the Em-
ployer.”9
In my view, the majority and the judge erroneously
conclude that no impasse existed because the Union stat-
ed that it could be flexible if the Respondent moved first.
After the Respondent attempted in vain for more than
two years to secure from the Union a concrete proposal
that differed from the MWA Independent Shop Agree-
ment, I believe my colleagues and the judge mistakenly
equate a bare promise of flexibility with an actual offered
compromise or counterproposal. Based on the record
presented here, I believe the Union’s reference to poten-
tial flexibility is no different than an attempt to avoid a
lawful impasse merely by stating that no impasse exists.
The existence or nonexistence of an impasse depends on
the parties’ actual conduct, not merely their words. Here,
by July 8, the Respondent had made an offer that includ-
ed terms different from the MWA Independent Shop
Agreement; the Union had refused to propose anything
other than a “me-too” MWA Independent Shop Agree-
ment; the Union had conditioned any flexibility on its
part on further movement by the Respondent; and the
Respondent had lawfully refused to engage in further
movement. Given this state of affairs, even if the Union
had some potential willingness to exhibit flexibility if the
Respondent moved first, the parties were deadlocked. As
of July 8, the parties’ respective positions were no differ-
ent than they were at the first bargaining session on
March 4, when Union Negotiator Villalta greeted the
Respondent’s counterproposal by stating that the MWA
agreement “is where we have to go” and that there could
be “no deviation” from that agreement. Indeed, the Un-

that the parties “had enjoyed a long collective-bargaining relationship,”
but they find this weighs against the existence of an impasse. I disa-
gree. The parties’ long and productive bargaining relationship over the
course of more than 40 years shows a solid track record of being able to
work together. That the parties could not work past their differences
this time supports a finding that the deadlock reached on July 8 was
genuine.
9 My colleagues base their no-impasse finding in part on the fact that
the parties did not discuss some of the Union’s proposals, mostly in-
volving noneconomic matters. However, economic issues were of
overriding importance, and negotiations broke down over the Union’s
adamant refusal to move from its position on those issues unless the
Respondent moved first. Cf. CalMat Co., 331 NLRB 1084, 1097
(2000) (finding that parties can reach a valid impasse on a single issue
if a good-faith impasse existed on that issue, the issue was of “overrid-
ing importance,” and the impasse on that issue “led to a breakdown in
overall negotiations”). Under the circumstances, it is fanciful to believe
that discussing noneconomic matters would have made any difference.
ion’s position on July 8 was no different from what it
was more than two years earlier in April 2012, when
Mucaria and Villalta advised that the Union would not
even meet with the Respondent until the MWA agree-
ment negotiations were complete, or from what it was in
September 2013, when the Union stated it would send the
Respondent the MWA agreement after it became availa-
ble.10
By finding that the parties were not at an impasse on
July 8, my colleagues and the judge make three mistakes.
First, they disregard what the Union itself made clear on
July 8, which was that no flexibility was forthcoming
unless the Respondent moved from its position. Second,
to the extent the Union meant what it said (that it would
not offer anything new or different until the Respondent
moved “in the correct direction”), my colleagues and the
judge take the Union’s side by requiring that the Re-
spondent engage in further bargaining until it made fur-
ther concessions.11 Third, if my colleagues and the judge
acknowledge that (i) the Union would not make any dif-
ferent proposals unless the Respondent moved first, and
(ii) the Respondent lawfully refused to bid against itself,
then they are finding that our statute does require parties
to engage in “fruitless marathon discussions,” which is
contradicted by the Supreme Court’s statement in Ameri-
can National Insurance that such “marathon discussions”
are not required.12
Moreover, even if the Union might have been willing
to offer different terms (provided that the Respondent did
so first), and even if the Respondent at some future point
might have decided to modify its proposals, this possibil-
ity does not preclude the existence of an impasse on July
8. Rather, this merely means that after the impasse was
created, it remained possible that changed circumstances
could subsequently cause the impasse to be broken.13

10 My colleagues find a “ray of hope” at the July 8 bargaining ses-
sion on the basis that the Union “offered concessions on specific issues
of importance to the parties,” namely, the duration of the contract and
work standards. In fact, the Union did not propose concessions. As to
the contract term, the Union merely professed a willingness to move
from its proposal for a 10-year contract term if the Respondent made “a
more favorable proposal on wages and benefits.” As to work stand-
ards, the Union claimed it would agree to some undefined revised ver-
sion of a work-standard proposal if the Respondent came “back with a
better proposal on wages and benefits.” In short, the Union professed
only unspecified flexibility conditioned on the Respondent’s moving
from its position first.
11 To the extent that my colleagues or the judge effectively find that
the Respondent was required to continue bargaining until it made fur-
ther concessions, this would be directly contrary to Sec. 8(d) of the Act
(quoted in fn. 8, supra).
12 See text accompanying fn. 7, supra.
13 See, e.g., Jano Graphics, Inc., 339 NLRB 251, 251 (2003)
(“[A]ny impasse on July 29 was broken on August 4, when the Union
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The possibility that circumstances might change some-
time after July 8 and that those changed circumstances
might break the impasse is irrelevant to determining
whether an impasse existed on July 8 to begin with. As
shown above, the parties were unwilling to change their
positions on July 8, and communications between the
parties dating back to April 2012 serve only to confirm
that the parties were “warranted in assuming that further
bargaining would be futile.” Nexeo Solutions, LLC, 364
NLRB No. 44, slip op. at 12 (internal quotations omit-
ted).
For all of these reasons, I would find that on July 8, the
parties had reached a valid bargaining impasse. Accord-
ingly, I would conclude that the Respondent did not vio-
late Section 8(a)(5) of the Act when it implemented its
final pre-impasse offer on August 11.14

informed the Respondent that it had new proposals and was seeking
further bargaining.”).
14 The cases my colleagues and the judge rely on do not warrant a
different finding. In Serramonte Oldsmobile, 318 NLRB 80 (1995),
enf. denied in relevant part 86 F.3d 227 (D.C. Cir. 1996), the Board
found that the employer prematurely declared impasse where the union
significantly changed its position at the last bargaining session by stat-
ing that it “would accept many of [the employer’s] proposed contractu-
al provisions,” and where the employer delayed in providing infor-
mation relevant to an important issue under negotiation. Id. at 97-98.
Here, the Union never expressed a willingness to accept the Respond-
ent’s proposals—only vague assurances of economic assistance if the
Respondent changed position first—and the Union was not hampered
in its ability to formulate new proposals by any delay in receiving re-
quested information.
In Newcor Bay City Division, 345 NLRB 1229 (2005), the Board
found that the employer prematurely declared impasse where (i) the
union had recently made substantial concessions that narrowed the
differences between the parties, (ii) the employer was determined to
declare impasse on the date the current collective-bargaining agreement
expired, and (iii) the employer failed to provide requested information.
Id. at 1238-1241. In addition, the Board cited the union’s stated will-
ingness to “negotiate on any subject.” Id. at 1238. But unlike here,
where the Union merely professed flexibility, the union in Newcor
demonstrated flexibility by actually making concessions. And the other
reasons the Board relied on in Newcor to find no impasse are absent
here.
Of the cases my colleagues rely on, the facts in Grinnell Fire Pro-
tection Systems Co., 328 NLRB 585 (1999), enfd. 236 F.3d 187 (4th
Cir. 2000), most closely resemble those in this case, and I agree with
the dissenting views expressed in Grinnell Fire Protection by former
Member Hurtgen, who would have found that the union’s eleventh-
hour claims of flexibility to “make it appear that bargaining progress is
just around the corner” were insufficient to preclude a valid impasse.
328 NLRB at 589 (Member Hurtgen, dissenting in part). Yet even in
Grinnell Fire Protection, the union signaled potential movement on its
part that was not contingent on the employer changing position first.
See id. at 585–586. Thus, although I agree with Member Hurtgen that
bargaining reached an impasse in Grinnell Fire Protection, not even the
majority’s decision in that case supports a no-impasse finding here,
where the Union never signaled potential movement unless the Re-
spondent changed its position first.
CONCLUSION
Accordingly, for the reasons set forth above, I respect-
fully dissent.
Dated, Washington, D.C. February 10, 2017
__________________________________
Philip A. Miscimarra, Acting Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain in good faith
over the terms and conditions of a successor collective-
bargaining agreement with New York City and Vicinity
District Council of Carpenters (the Union) as the exclu-
sive collective-bargaining representative of the employ-
ees in the following unit:
All foremen, journeymen mechanics, carpenters, bench
hands, machine men, cabinet makers, model makers,
sprayers, varnishers, wood finishers, wood carvers, and
turners, kalamein men, apprentices, helpers, unskilled
and semi-skilled production workers, metal workers
and all other employees doing production and mainte-
nance work, except a caretaker of a building.
WE WILL NOT make unilateral changes in your terms
and conditions of employment without first bargaining
with the Union to impasse.
STEIN INDUSTRIES, INC. 13
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
described above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All foremen, journeymen mechanics, carpenters, bench
hands, machine men, cabinet makers, model makers,
sprayers, varnishers, wood finishers, wood carvers, and
turners, kalamein men, apprentices, helpers, unskilled
and semi-skilled production workers, metal workers
and all other employees doing production and mainte-
nance work, except a caretaker of a building.
WE WILL, on request, cancel and rescind all terms and
conditions of employment which we unlawfully imple-
mented or unlawfully eliminated on and after July 8,
2014, but nothing in this Order is to be construed as re-
quiring us to cancel any unilateral changes that benefited
you without a request from the Union.
WE WILL, at the Union's request, restore to unit em-
ployees the terms and conditions of employment that
were applicable prior to July 8, 2014, and continue them
in effect until the parties either reach an agreement or a
good-faith impasse in bargaining.
WE WILL make you whole for any losses suffered by
reason of the unlawful unilateral changes in terms and
conditions of employment, on and after July 8, 2014,
with interest.
WE WILL compensate you for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and WE WILL file with the Regional Director for Region
29, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years for each affected employee.
WE WILL make all contractually-required contributions
to fringe benefit funds that we have failed to make since
about July 8, 2014, if any, and reimburse you, with inter-
est, for any expenses ensuing from our failure to make
the required payments.
STEIN INDUSTRIES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29-CA-134711 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Erin E. Schaefer, Esq., for the General Counsel.
Alan B. Pearl and Brian J. Shenker, Esqs. (Alan B. Pearl &
Associates, PC), of Syosset, New York, for the Respondent.
Lydia Sigelakis, Esq. (Spivak Lipton, LLP), of New York, New
York, for the Union.
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed on April 14, 2014, by the New York City and Vi-
cinity District Council of Carpenters (the Union), a complaint
was issued against Stein Industries Inc. (the Respondent or the
Employer) on October 30, 2014.
The complaint alleges and the Respondent admits that on Ju-
ly 8, 2014, following meetings for the purpose of negotiating a
successor collective-bargaining agreement, the Respondent
provided the Union with its final contract proposal and declared
an impasse in bargaining.
The complaint also alleges but the Respondent denies that (a)
its declaration of impasse was premature; (b) it implemented
changes in the contract which differed from the final proposal
made to the Union; and (c) it implemented those changes with-
out first bargaining with the Union to a good-faith impasse.
Finally, the complaint alleges and the Respondent admits
that the subjects contained in the final proposal and in the im-
plemented changes relate to wages, hours, and other terms and
conditions of employment of the collective-bargaining unit and
were mandatory subjects for the purposes of collective bargain-
ing.
The Respondent’s answer denied the material allegations of
the complaint and asserted certain affirmative defenses which
will be discussed below. On January 14 and 15, 2015, a hearing
was held before me in Brooklyn, New York. On the entire rec-
ord, including my observation of the demeanor of the witness-
es, and after considering the briefs filed by all parties, I make
the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent, a domestic corporation, having an office
and place of business in Amityville, New York, has been en-
gaged in the manufacture and nonretail sale of concession
stands. In the course of its operations during the year ending
December 31, 2013, the Respondent purchased and received
goods and materials at its Amityville facility valued in excess
of $50,000 directly from points located outside New York
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
State. The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the National Labor Relations Act (the Act).
The Respondent also admits and I find that the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Respondent currently employs between four and six
employees. It has been a party to agreements with the Union for
40 years. Its last contract, which ran from July 1, 2007, to June
30, 2012, set forth the appropriate unit as follows:
All foremen, journeymen mechanics, carpenters, bench hands,
machine men, cabinet makers, model makers, sprayers, var-
nishers, wood finishers, wood carvers, and turners, kalamein
men, apprentices, helpers, unskilled and semi-skilled produc-
tion workers, metal workers and all other employees doing
production and maintenance work, except a caretaker of a
building.
The Union has two types of agreements with employers. The
first is a Memorandum of Agreement (MOA) with the Manu-
facturing Woodworkers Association (the Association) for 12
employers who are members of that Association. That contract
is negotiated and executed by the Association and the Union.
The Respondent is not a member of the Association.
The second is an Independent Shop Agreement called the
Memorandum of Understanding (MOU) executed by independ-
ent employers who are not members of the Association. The
MOU has the same terms as the MOA. Typically, the inde-
pendent shops are presented with the “me-too” MOU and are
asked to sign it.
For the past 40 years the Respondent has signed the Inde-
pendent Shop Agreement, apparently without any negotiation
or re-negotiation of its terms, and it did so in the last contract
which expired in June 2012. Although the union agent expected
the Employer to sign it following the expiration of that contract,
it did not.
2. The negotiations
Andrew Mucaria and Robert Villalta negotiated for the Un-
ion. The Respondent’s representative was Mark Portnoy. He
was occasionally joined by his client, the Employer president,
Andrew Stein.
On April 9, 2012, Portnoy wrote to Mucaria, advising that he
sought to negotiate a new agreement and asking that meetings
be scheduled.
One and one-half years later, in September 2013, Portnoy
wrote again, asking Mucaria to contact him so that negotiations
could begin. Mucaria replied, advising that “historically, Stein
has always signed an independent agreement that mirrored the
other shop agreements. The [Union] is currently in negotiations
with the [Association] and should be completed soon. As soon
as it is completed we can send it over for your review. . . .”
Portnoy replied that “we want to negotiate our own terms
and conditions. The Association is not authorized to bargain on
behalf of [the Employer] and we are not bound by any terms or
conditions they bargain for with the employers they are negoti-
ating with. Please advise me of dates we can meet to enter into
negotiations.”
Portnoy wrote in October 2013, suggesting specific negotia-
tion meetings on five dates in early November. Mucaria replied
that two of those dates were available. On December 4, Portnoy
asked for a date to negotiate in the next 2 weeks.
a. The November meeting
Portnoy testified that he met with Mucaria on November 6,
2013. He explained that the Employer is a small company per-
forming work in a specialized area – the construction of movie
theater displays and counters. He complained of great world-
wide competition and a smaller market for his work which is
not similar to other Independent Shop Agreement signatories.
Portnoy asked for concessions and Mucaria replied that conces-
sions would be given.
Mucaria conceded that he met with Stein in November 2013,
but that meeting did not concern negotiations. He supported
that statement by noting that the Association agreement had not
been finalized until January, and he was waiting for that agree-
ment to be executed before beginning negotiations with the
Employer.
b. Events in 2014
On January 23, 2014, Portnoy wrote to the two union agents,
asking that they set a date for negotiations. The following day,
Villalta replied that the Union can meet on “February 13, we
can meet to discuss the Independent Agreement but not to ne-
gotiate.” At the time of the hearing, Villalta was employed by
the Union and available to testify but did not.
On January 29, Mucaria wrote that “we should have the offer
for all independent shops ready in approx. 1-2 weeks. As soon
as it is ready I will contact you.”
One and one-half years passed between the time the contract
with the Respondent expired in June 2012 and the Association
contract was signed in January 2014. It was only then that Mu-
caria “decided that negotiations could go forward with Stein.”
He stated that he was “not inclined to meet with the Employer”
until the Association contract was executed, and told the Re-
spondent that he was not prepared to negotiate with it until
agreement was reached on the Association contract. Further, he
stated that the Union was “not prepared to negotiate until we
completed the [Association] negotiations in January, 2014. . . .
Our position was when we finished the Association negotia-
tions is when we were going to start with Stein.”
On February 19, 2014, Portnoy wrote that “it is now three
more weeks without a meeting.” He asked for meeting dates.
Mucaria wrote that day that he was “working diligently to put
together a fair and equitable proposal for you” and was availa-
ble on February 27 or 28, or on March 3 or 4.
Given the dates suggested by Mucaria, I cannot credit his
testimony that a negotiation session took place on February 24.
The above emails indicate that a meeting was not contemplated
by him until February 27 at the earliest. Portnoy denied that
there was a February meeting. Further, given the amount of
STEIN INDUSTRIES, INC. 15
time between meetings, it is doubtful that two substantive meet-
ings would have occurred 1 week apart, on February 24 and
March 4.
I accordingly find that the first negotiation meeting took
place on March 4.
c. The March 4 meeting
At the time of this meeting, nearly all the independent shops
had signed the MOU or did so shortly after March 4. The Union
was represented by Villalta. Mucaria was not present. Portnoy
expressed his concerns regarding the Employer’s ability to
compete in the current market.
The Union presented the Independent Shop MOU which was
essentially the agreement reached between the Union and the
Association in January. He explained that the MOU contained
“major concessions” – reductions in terms and conditions of
employment from the Respondent’s expired contract.
The Union’s proposed agreement set forth the following
terms:
1. All new hires will be paid at the Tier II rates for wages
($22.00 per hour) and benefits ($10.94). Benefits will be pro-
vided pursuant to the Hollow Metal Welfare Fund.
[Mucaria testified that these rates represented a $10 wage cut
and about a $10 benefit reduction for new employees as com-
pared to the expiring contract, and that this proposal helped
the Employer by hiring new employees at a lower rate, there-
by lowering its costs. He further stated that the cost of the
benefits from the Hollow Metal Benefit Fund are less costly
to the employer than the Union’s Benefit (Big) Fund which
was the current carrier for the Union. Mucaria also testified
that the Tier II employees would have no prescription drug
coverage, and fewer physicians to choose from]
2. All fringe benefit contributions for all hours paid at the Ti-
er II rate are capped at 40 hours per week.
[The prior contract required contributions for all hours
worked]
3. Ten year contract.
4. Tier I employees receive a 1% increase in February, 2014
and a 2% increase in July, 2014. Tier II employees receive a
2% increase in July, 2014.
5. The Employer had the ability to send more than 2 employ-
ees on a job which had been the limitation imposed by the ex-
pired contract.
In addition, the MOU provided for disputes to be arbitrated
before Martin Scheinman.
The Union made no proposal to change the benefits for Tier I
employees.
Portnoy testified that the Union never made any other pro-
posal, and Mucaria conceded that the Union did not submit
another MOU to the Employer during negotiations.
Portnoy presented the Employer’s proposal, as follows:
1. All employees’ wage and fringe package shall be the Un-
ion’s described Tier II package for the duration of the con-
tract. No one shall be designated Tier I during the term.
2. Add Ira Cure to the Arbitration Panel with Roger Maher.
3. The Employer shall have the unlimited right to subcontract
work.
4. The Employer shall have the right to establish reasonable
work standards.
5. Three year agreement.
The Employer’s first, but unwritten, wage proposal was for a
wage freeze at the current $30-per-hour level. Then, apparently
seizing on the Union’s proposal to pay new hires at a Tier II
level, the Respondent proposed that all its workers, current and
new hires, receive compensation at that level, which was $22
per hour.
Portnoy conceded that that was a regressive proposal, since
his original proposal was that wages be frozen at the then cur-
rent rate of $30 per hour. However, he stated that it was a “pro-
posal, it was not meant to be a settlement. It was meant to get
talking going.”
Thus, the Employer applied the Union’s lower Tier II rates to
all its employees, and eliminated the higher paid, Tier I catego-
ry. The Union regarded the proposal as “counterproductive” to
its concessions, and considered proposals 1, 3, and 4, above,
“completely offensive.”
Mucaria testified that as to the subcontracting provision, the
union agents considered it be contrary to the Union’s standards,
adding that no other union shops had a contractual provision
permitting unlimited subcontracting. Nevertheless, he stated
that he would have taken that proposal “into consideration”
since he had the authority to approve or disapprove that clause,
but he would not consider the Employer’s demand for unlim-
ited subcontracting until the Employer made other, positive,
progressive proposals.
Regarding the reasonable work standards clause, Mucaria
testified that such a proposal created a quota for employees
which was contrary to the Union’s standard of a “fair day’s
work for a fair day’s pay,” but that he would agree to that pro-
posal, if the Employer made a better proposal on wages and
benefits.” Mucaria also stated that the Union was receptive to
reviewing language drafted by the Employer which did not
involve imposing quotas on the employees. As noted above,
Mucaria was not present at this bargaining session.
Portnoy testified that after presenting the Employer’s pro-
posal, Villalta said that there could be “no deviation” from the
Union’s proposal - “this is where we have to go.”
Portnoy stated that after discussing the proposals, he made
the identical proposal as he had before, with the exception that
instead of eliminating Arbitrator Roger Maher from the arbitra-
tion panel, he proposed adding Ira Cure to the panel with Ma-
her. However, it should be noted that the Respondent’s first
written proposal that day states “add Ira Cure to the arbitration
panel with Roger Maher.”
After the meeting, Mucaria and Villalta discussed with Un-
ion Vice President Michael Cavanaugh whether they should
make a counterproposal or ask the Respondent to make another
offer. They told Cavanaugh that “although traditionally Stein
has always signed on to the independent shop agreement with
no negotiations, we do feel that we could possibly move off the
independent MOU for the independent shops and continue to
negotiate separately for Mr. Stein.” Cavanaugh was not happy
with the Employer’s proposal but told the men that he had “ab-
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
solutely no problem. If the employer claims to be in a financial
hardship feel free to continue negotiating and we’ll go from
there.”
d. The April 4 meeting
The Employer presented the same proposal as at the prior
meeting. Portnoy told the Union that the Respondent needed
economic assistance in the Union’s proposals. Mucaria said that
the Union could do so but that he first “had to come back with a
more realistic proposal in a positive way, not just taking all the
concessions we gave and then asking for additional conces-
sions.”
At that point, according to Mucaria, the Employer president,
Andrew Stein, became irate, stood up, said that this is “ridicu-
lous,” he did not “need this,” and would leave. Mucaria re-
sponded that although the Union had no official counterpro-
posal it was “willing to come off our proposal; but you need to
move in the correct direction in order for us to do that.”
Portnoy stressed the fact that the Respondent was “still expe-
riencing financial difficulties, and trying to help himself stay in
business,” and that it would not survive without economic help
from the Union.
Stein left the room and Portnoy asked the union agents to
give him some time to speak with his client. According to Mu-
caria, Portnoy told the representatives that the Union made
“great concessions and a great deal of movement with the ini-
tial proposal” but the Employer needed more. Portnoy purport-
edly commented that the Union’s proposal was “fair” and that
Stein was being “totally unreasonable, greedy and wanting
more” in refusing to agree to it.
In contrast, Portnoy testified that the Union’s proposal was
“horrible”—it was not a great cost-savings opportunity for the
Employer and “we weren’t going to accept it.”
Portnoy stated that he reiterated the Employer’s need to sub-
contract work and Mucaria said that he was “hesitant” to agree
to that proposal. Portnoy wanted all employees to receive com-
pensation in Tier II and Mucaria replied “absolutely not.”
Portnoy said that he was “reluctant to impose any terms, but
if you have nothing else to offer, I have nothing to offer. Let’s
just set another date.” Mucaria stated that he was prepared to
make a counteroffer to the Respondent’s proposals but did not.
e. The June 25 meeting
No proposals were made at this 1-hour meeting. Portnoy tes-
tified that he asked the Union for a proposal and it did not pro-
duce one, with Mucaria replying, “[W]e don’t need another
proposal. The Tier II savings was of great value to the Employ-
er and that we had to focus on it.”
Portnoy replied that the Union’s proposal was increasing the
Respondent’s cost. He was frustrated by the Union’s refusal to
make a second proposal. He said that Mucaria rejected his pro-
posals that were still pending from the prior meeting. The Un-
ion agreed to add Ira Cure as an arbitrator and “explicitly” re-
jected the Employer’s economic proposals but failed to make a
counterproposal on economic terms.
f. The July 8 meeting
Portnoy testified that he asked the Union if it had a proposal.
It did not, and he advised the Union that “we are not moving
because you won’t negotiate.”
The Employer again presented its offer:
1. All employees wage and fringe package shall be the Un-
ion’s described Tier II package for the duration of the con-
tract. No current employee shall be paid less than $22.00 per
hour. Tier I category is removed from the contract. New
hires shall be paid no less than $20.00 per hour.
2. Add Ira Cure to the Arbitration Panel with Roger Maher.
3. The Employer shall have the unlimited right to subcontract
work.
4. The Employer shall have the right to establish reasonable
work standards.
5. Three year agreement. Other terms remain in effect.
6. These terms will be in effect on 7/15/14. The company is
available to discuss these terms at any time between now and
then.
This was the same proposal as previously made, with the ad-
dition in proposal number one that “new hires shall be paid no
less than $20.00 per hour.” This represented a reduction in the
prior offer since the proposal made on March 4 was that all
employees would be paid at the Tier II rate, which was $22 per
hour.
According to the Respondent, proposal number 6 was omit-
ted from a first draft given at this meeting, but was added later
during the meeting. Mucaria denied that proposal 6 was on the
paper given to him, conceding, however, that Portnoy advised
him orally that the Employer was available to discuss the terms
within the next week.
Mucaria testified that he rejected the offer of Tier II wages
and benefits for all employees because he believed that he had a
responsibility to the Union and its members to obtain the best
deal possible and not go backwards. He believed that the Un-
ion’s delegates were likely to reject that proposal. Portnoy
quoted Mucaria as saying the proposal for Tier II wages and
benefits for all employees “will never happen. One hundred
delegates from all locals have to vote on anything we agree to.
They’re never going to agree to this. This won’t fly. The dele-
gates will vote and even if the members ratify it, it won’t pass
unless the delegates agree and this will never pass. You have
mirrored the group all of these years.”
Mucaria agreed that Ira Cure be added as an arbitrator,
Portnoy testified that he told Mucaria that “we are not mov-
ing because you won’t negotiate.” He specifically asked if the
Union would agree to a 3-year contract as proposed by the Em-
ployer. Mucaria said, “[N]o, we’re looking for a 10 year
agreement.” Portnoy’s notes state, “[S]o you won’t agree to
three years?” and Mucaria said, “[N]o.”
However, Mucaria testified that he told Portnoy that he
would agree to a contract term other than 10 years. Mucaria
denied saying that the Union was “bound” to a 10-year con-
tract. Mucaria testified that he was willing to move down in the
direction of a 3-year contract, and would “work out something
other than a 3 year contract, but it did not have to be a 10 year
deal.”
He told Portnoy that he did not understand why the Employ-
er would not want a long-term contract “but it that’s what the
STEIN INDUSTRIES, INC. 17
company is looking for, we’re willing to do that,” meaning that
the Union would entertain some term less than 10 years. He
told Portnoy that the Union would be willing to move off its
10-year proposal toward his 3-year proposal “upon a more fa-
vorable proposal on wages and benefits.” In this regard, Mu-
caria testified that he did not propose a 3-year contract. His
proposal was that he would “come off” the 10-year proposal
but set no firm figure.
Mucaria also said that the Respondent’s request for reasona-
ble work standards was “too broad, unacceptable and totally
against everything we ever stood for.” However, he was willing
to “work something out” if that clause was modified, but that
the Employer still “needed to come back with a better proposal
on wages and benefits.” He added that he could include the
work standards proposal in the agreement if it was “cut and
dry” and would not create a quota of products an employee had
to produce.
Portnoy then asked if the Union would change its proposals.
Mucaria said that he wanted “some positive movement by
you.” Portnoy told Mucaria, “[Y]ou are not being responsive
we’re having trouble competing in our industry. We need help,”
and testified that Mucaria refused to make a counterproposal.
Portnoy then said, “[W]e’re not making any progress. You
won’t’ change your proposal. You really can’t change your
proposal, so I’m going to give you a final offer,” adding that he
would be prepared to discuss the offer any time during the next
week, but that the terms would be imposed 1-week later.
Then Portnoy presented a “final proposal” which consisted
of the same terms he last made, with the addition that the Em-
ployer agreed to discuss its terms with the Union for 1 week
before they were implemented. Portnoy conceded that there
was nothing new in this final offer that he did not present to the
Union in previous meetings.
Mucaria testified that the two agents were in “shock.” He
asked Portnoy, “[H]ow are you giving us your final offer? First
of all we’re still making positive movement, we just need you
to also participate in the positive movement . . . we’re not done
negotiating.” Portnoy replied that this was the Employer’s final
offer which would be implemented the following week.
Mucaria testified that he told Portnoy that it was “highly un-
likely” that the Employer’s proposal would be approved by the
delegates, and that it must be modified and needs to be a more
positive proposal. He noted that if he had a “decent” wage and
benefit proposal it would be “easier” for the delegates to ap-
prove it.
Portnoy stated that he did not expect that his initial proposal
would be accepted immediately without any quid pro quo, but
that the Union believed its initial proposal would be accepted
immediately. Accordingly, Portnoy believed that the Union had
no intention to bargain. Mucaria’s assessment of the negotia-
tions was that he “did not think that he would likely reach an
agreement with the Employer.” He termed the Employer’s pro-
posals concerning wages, benefits, and the unlimited right to
subcontract work “unfair and unrealistic.” In addition, he stated
that he had “no intentions of agreeing to anything until I had an
entire MOU to agree on.”
Mucaria testified that, as of July 8, no tentative agreement
had been reached, and accordingly he did not refer any of the
proposals to higher levels of the Union for approval.
g. Events following July 8
On August 5, Portnoy sent a letter to the Union advising that
the Employer “presented its final offer on July 8, 2014, when
we reached an impasse. No meetings or requests for further
discussions have occurred since we last spoke on July 14. Ac-
cordingly, the company will implement that final offer on
Monday. Employees, as needed, will be told that work is avail-
able under the implemented terms.”
Mucaria called Portnoy, expressing surprise that he imple-
mented his last offer. Mucaria offered to “sit down again, let’s
try and make some movement. I don’t feel that we’ve reached
impasse.”
On August 11, the Employer sent a letter to employees ad-
vising that work was available “under the terms of employment
recently implemented by the company. Your hourly rate will be
$22.00 and your benefits will be with the Union’s Tier II Pack-
age.”
On August 13, the Union’s attorney wrote, denying that an
impasse had been reached, and said that the Union “fully in-
tends to continue bargaining.” The Union proposed two dates to
meet to bargain, one being August 28. Portnoy conceded that
following his declaration of impasse on July 8, Mucaria con-
tacted him “on more than one occasion to set up successive
meetings.”
h. The August 28 meeting
Mucaria asked Portnoy to make another proposal. Portnoy
replied that there was “no point” in doing so. Portnoy quoted
Mucaria as saying that the Union had “room to move, but you
have to come close enough to convince us that it’s worth going
to ask whether we can deviate from the agreement.” Portnoy
testified that he responded that he was “never going to get that
close. Give me something that can be the savings that we’re
looking for and let’s bargain.”
The union agents told Portnoy and Stein that they would be
“more than happy to move from our proposals but we couldn’t
do it in good conscience before [you] made a proposal that
went forward instead of backward like [your] previous pro-
posal.”
The Employer stated that it was having economic hardships
and difficulty competing in the market. Mucaria offered to help
“but we needed to be realistic in the way that we did it.”
According to Mucaria, he asked for a proposal from the Em-
ployer and, in turn, the Employer asked the Union for another
proposal. Nothing was forthcoming from either party.
Portnoy suggested having a mediator enter the negotiations.
Mucaria agreed with that suggestion but proposed that the Re-
spondent “open up their financials to us to prove that they’re
having such financial difficulties.” Mucaria suggested that,
after the financial documents were reviewed, each party could
make another proposal, and then the mediator could enter the
negotiations.
Portnoy testified that Mucaria said, “[W]e have room to
move but I need a better proposal from you. We offered con-
cessions. We want the proposal from you.” Portnoy replied,
“[N]othing I propose can come close to your level. Give us a
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
package. There’s no point in making small moves. Show us
something.”
Portnoy added, “[Y]ou showed us that we can be in the Hol-
low Metal Fund. If you can live with the wage and fringe pack-
age it would be a big help here. If you can live with this wage
and fringe package is the goal here. We can’t compete. Our
competition is nonunion. Your benefits are too high. No one
has the structure. Show us how to get the savings we are look-
ing for.”
Mucaria replied, [H]how do I know you aren't going to reject
our next package?” Portnoy said, “[W]e’ll review concessions
that you show us. We used your package and just applied it to
everybody. Give us another proposal to save money.” Mucaria
said, “[W]e gave you our proposal from the District Council.
We’re too far apart. The Council might let us move if you show
movement . . . something more realistic . . . otherwise not.”
Portnoy said that the $35-wage and fringe payments were too
high. “There’s no point in changing our position. Give us an
offer. Maybe through a mediator we can protect our positions.”
Portnoy again described the extreme financial distress the
Employer was facing – wages and its cost of doing business
were too high. Portnoy testified that he was frustrated. “They
wouldn’t make a proposal. I was not going to come in with a
proposal.” He told Mucaria, “[T]here’s no point in going back
and forth. This has gotten too far.” Mucaria replied, “We don’t
want to make a proposal to you that you’re going to reject and
that is not going to make any progress.” Portnoy answered,
“[I]f you want to protect your position and you don’t want to do
it publicly, do it through a mediator. There’s lots of ways to
make proposals, but if you’re not willing to move from your
proposal, we’re never going to make an agreement.”
No meetings were held after the August 28 meeting. Mucaria
stated that he intended to meet with the mediator once he re-
ceived the financial records, noting that “I conditioned the next
meeting on getting the financials.” However, inasmuch as no
complete financial documentation was sent to him, as described
below, he saw no need to request another meeting.
Mucaria testified that certain of the Union’s proposals were
not discussed during bargaining. They included the capping of
benefit contributions at 40 hours per week; special arrange-
ments for manning which permitted the Employer to use addi-
tional employees for installations; and the proposal that once an
employee was promoted from Tier II to Tier I he or she could
not be reverted to Tier II; electronic recording of time worked
by employees; the time limit for the Employer to make benefit
contributions; and withdrawal of members from work if such
payments are not made. There were minimal discussions con-
cerning the proposed increases in wages.
Portnoy conceded not discussing union proposals concerning
the electronic recording of time, and the time period for the
payment of benefit contributions. As to the latter proposal,
Portnoy testified that he assumed that the Employer is subject
to the terms of the trust agreement, and that is an issue that is
usually discussed on the last day of bargaining, and is not a
matter to bargain about. He further stated that the Employer
accepted, as part of the Tier II proposal, the capping of benefit
contributions at 40 hours.
i. Later events
On September 9, Mucaria wrote to Portnoy “if the company
is going to request that we give another proposal with further
concessions I will need to see proof to his claim that the com-
pany is experiencing extreme financial hardship.”
On September 11, Respondent Attorney Alan Pearl wrote to
Board Attorney Erin Schaefer. The letter stated that the Em-
ployer was supplying letters from the Employer’s accountant
who filed U.S. Income Tax Returns and New York State Tax
Returns for 2011, 2012, and 2013.
Pearl’s letter, which was sent to the Union 1 week later on
September 18, contained Pearl’s analysis of the tax returns and
his discussion with the firm’s accountant in which Pearl con-
cluded that in those 3 years, the Employer lost a total of
$716,848, and that Stein contributed $484,000 to the Employer.
The letter did not contain the accountant’s letters.
Mucaria received Pearl’s letter but did not receive any of the
letters presumably supplied to Schaefer. Nor did he receive any
other financial statements or supporting documentation from
the Employer. The Employer concedes that Pearl’s letter was
the only document sent to the Union.
3. Pay received by employees
A pay stub from current employee Felix Rodriguez was re-
ceived in evidence. It shows a pay rate of $30 per hour during
the months of September through December 2014.
The Employer sent payments for Rodriguez to the Carpen-
ters Benefit (Big) fund for fringe benefits at the lower rate pro-
vided by the Hollow Metal Fund. The checks were returned to
the Employer with the notation that the Employer “does not
have a signed current collective-bargaining agreement with the
New York City District Council of Carpenters.”
The Respondent was not eligible to participate in the Hollow
Metal Fund because it had not signed a collective-bargaining
agreement with the Union providing for coverage by that Fund.
Accordingly, neither Rodriguez nor other Respondent’s em-
ployees were covered by the Hollow Metal Fund.
The Respondent’s Affirmative Defenses
The Respondent claims that the Union’s negotiators, Mu-
caria and Villalta, were “only authorized to propose and agree
to the terms bargained with the Association.”
In contrast, Mucaria testified that he and Villalta had full au-
thority to negotiate an agreement that they believe is fair for the
employees and the Employer. He further testified that he had
authority to “approve or decide not to approve prior to moving
forward with negotiations.” He had the authority to make deci-
sions at the bargaining table and then the Union has “checks
and balances” because of its democratic process requiring the
negotiators to seek approval of the agreement at higher levels.
He does not submit individual proposals to the Union until
negotiations have been completed, resulting in a tentative
agreement.
Mucaria testified that neither he nor Villalta spoke to Joseph
Geiger, the Union’s executive secretary-treasurer, regarding
these negotiations. Nor did Geiger instruct them in tactics when
he bargained with the members of the Independent Shop Asso-
ciation.
STEIN INDUSTRIES, INC. 19
He stated that during the negotiations he told the Respondent
that he had to obtain the Union’s approval of the agreement,
and gave his opinion whether certain proposals would or would
not be approved by the Union, often saying, “[T]his will never
get approved and will never pass,” adding that they should
“keep moving” until they agree on a term that is “more realistic
that will get passed.”
However, Mucaria stressed that the above procedure does
not inhibit his ability to make a proposal, or negotiate, or reach
agreement, although it does cause him to consider whether the
agreement reached will be approved by the delegate body.
Following agreement with the Employer, the contract is pre-
sented to the Union’s executive committee which is comprised
of the president and vice president, and the executive delegate
from each local. After they approve the agreement and recom-
mend that it be ratified, it is presented to the delegate body
comprised of 100 delegates which then votes to approve or
disapprove.
Mucaria stated that the Respondent had the ability to negoti-
ate independently, without being bound to the MOA of the
Association, and the Union was willing to bargain a contract
with it which differed from the MOU.
Indeed, Mucaria testified that the Respondent was the only
independent shop which had not signed the Memorandum of
Understanding as of July 8, 2014, noting that as the contracts
were sent to the independent shop employers they would sign
them and return them immediately. The Respondent was the
only shop that did not do so.
Portnoy quoted Villalta, who did not testify, as saying that
“I’m sure 99% we can’t deliver anything other than the inde-
pendent agreement.” Portnoy protested that that was not fair,
and Villalta replied that he agreed, but that it is “not in my con-
trol.”
The expired MOA between the Association and the Union,
and the expired Independent Shop Agreement between the
Employer and the Union contains the following clause in article
I, section 7:
The Union shall utilize its best efforts to monitor all wood-
work installed within its jurisdiction and confirm that said
woodwork was manufactured by a shop, which either is a sig-
natory to this agreement or in the alternative manufactured by
a shop that is paying equal to or better than the wages and
fringe benefits provided for in this agreement. The Union
shall not allow the installation by any of its members of any
woodwork, which is identified as not being furnished and/or
manufactured by a signatory to this agreement or in the alter-
native which is not furnished and/or manufactured by a shop
that is paying equal to or better than the wages and fringe
benefits provided for in this agreement subject to applicable
law.
When the MOU was renegotiated and executed in January
2014, the second sentence, above, was deleted. Thereafter, the
MOU presented by the Union to the Respondent as its offer
provides that that sentence “shall be deleted.”
The apparent reason for the deletion of the second (most fa-
vored nation) sentence is that a grievance was filed by the As-
sociation against the Union claiming that the Union had entered
into a contract with Gilbert Displays, Inc. which provided for
better wages and benefits than those set forth in the Association
contract.
An arbitrator sustained the grievance, and an award of $8
million to Gilbert was paid by the Union. The Respondent ar-
gues that the Union was precluded from granting more favora-
ble terms to Stein than those in the Association contract be-
cause it feared another grievance and huge award. The Em-
ployer concludes, therefore, that the Union was unable to modi-
fy the terms of the Association contract and therefore had no
choice but to refuse to change its original proposal.
The Respondent concludes from this that, despite its good-
faith effort to bargain and reach agreement, the Union would
not, and could not change its original offer which mirrored the
Association (MOA) agreement.
Mucaria testified that neither he nor Villalta gave any assur-
ance to Association members that members of the Independent
Shops would receive more favorable terms and conditions in
any renewal agreement.
Mucaria testified that if the Employer received better terms
in these negotiations than other Independent shops, he would
not expect that an arbitration matter would be filed against the
Union by the Association because there is no most-favored-
nation clause in the other contracts in force nor in the proposal
offered to the Respondent. Indeed, because the second sentence
of that clause has been deleted from the Association contact
and the Independent Shop Agreement, the Union would have
no liability if it deviated from the terms of those agreements.
The Respondent further asserts that although the second sen-
tence was deleted, the first sentence remains in the MOU. The
first sentence requires the Union to “utilize its best efforts to
monitor” work performed by shops within its jurisdiction and
“confirm” that such work is performed by employers who pay
equal to or better than the wages and benefits set forth in the
Association contract.
Accordingly, the Union now simply “monitors” and “con-
firms” that shops pay equal or better terms. There is no lan-
guage in the new Association or Independent shop contracts
which provide that the Union “shall not allow” the installation
by its members of products which were manufactured in a shop
paying terms more favorable than those provided in the Associ-
ation contract.
Portnoy’s notes added that Mucaria stated that the Union
would take a strike vote.
Mucaria stated that he did not threaten to strike the Employ-
er. However, he stated that in later meetings with Portnoy, in an
effort to restart negotiations, Portnoy suggested that Mucaria
take a strike vote to put pressure on the Employer to bring it
back to the bargaining table.
The Respondent argues that it raised its wage offer. Its first
position was a wage freeze. However, that is not set forth in its
first written offer of March 4. It then modified its wage offer to
adopt the Union’s Tier II rate of $22 for all employees. Accord-
ingly, its July 8 offer stated that no current employees shall be
paid less than $22 per hour.
Portnoy stated that he needed a rate for new hires. Since he
did not want to start new employees at the rate of experienced
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
workers, he established a rate for new hires at “no less than
$20.00 per hour.” That is set forth in the two offers dated July 8
at 1 p.m.
Portnoy stated that the Union did not make a counteroffer to
any of the Employer’s proposals during the entire course of
negotiations, except its agreement that Ira Cure be added as an
arbitrator.
Analysis and Discussion
The complaint alleges that the Respondent prematurely de-
clared impasse in negotiations and that it implemented changes
in the contract which differed from the final proposal made to
the Union without first bargaining with the Union to a good-
faith impasse.
I. THE ALLEGED IMPASSE
Section 8(a)(5) and (1) prohibits an employer from unilater-
ally instituting changes regarding wages, hours, and other terms
and conditions of employment before reaching a good-faith
impasse in bargaining.
It is well settled that the party asserting the existence of a
bargaining impasse bears the burden of proof that impasse has
occurred. CalMat Co., 331 NLRB 1084, 1097–1098 (2000).
The question of whether a valid impasse has been reached is
a “matter of judgment” and among the relevant factors are 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 why there is disagreement, and the contemporane-
ous understanding of the parties as to the state of negotiations.
Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395
F.2d 622 (D.C. Cir. 1968).
“As a recurring feature in the bargaining process, impasse is
only a temporary deadlock or hiatus in negotiations which, in
almost all cases is eventually broken, either through a change of
mind or the application of economic force.” Charles D. Bon-
nano Linen Service v. NLRB, 454 U.S. 404, 412 (1982).
The Board will find that an impasse existed at a given time
only if there is “no realistic possibility that continuation of
discussion at the time would have been fruitful, and only if both
parties believe that they are at the end of their rope.” Cotter &
Co., 331 NLRB 787, 787 (2000); PRC Recording Co., 280
NLRB 615, 635 (1986).
When interposed as a defense to allegedly unlawful unilat-
eral changes, the evidence must demonstrate that impasse exist-
ed at the time the disputed changes were implemented. North-
west Graphics, Inc., 343 NLRB 84, 90–92 (2004).
In order to prove the existence of an impasse, the Respond-
ent must prove that there was a contemporaneous understand-
ing by both sides that they had reached impasse. Essex Valley
Visiting Nurses Assn., 343 NLRB 817, 841(2004). Here, the
Respondent failed to establish that the Union believed that im-
passe had been reached when the Respondent implemented its
proposals. See Laurel Bay Health & Rehabilitation Center, 353
NLRB 232, 233 (2008), where the Board found no impasse
where the union stated that it was willing to consider an alterna-
tive medical plan proposals and would begin preparing a coun-
terproposal of its own.
The Board has recognized that a bargaining stance where
both sides merely maintain hard positions and each indicates to
the other that it is standing pat is the rule in bargaining and not
the exception. PRC Recording Co., above at 635.
The Union's position was that it would consider making ad-
ditional proposals and move closer to the Employer’s proposals
if the Respondent made a further proposal. Thus, the Union
expressed its flexibility on all the Employer’s proposals, if the
Respondent responded in kind, is strongly indicative that fur-
ther bargaining could be useful and that no impasse existed. In
Cotter & Co., 331 NLRB at 788, in finding that no impasse
had taken place, the Board noted that prior to the employer's
declaration of impasse, there had been movement on important
issues and the union had demonstrated flexibility. Here, too, the
Union expressed its flexibility in considering the Respondent’s
proposals, but only if it presented another proposal. The Un-
ion’s insistence that the Employer make a further proposal does
not require a finding that the Union was intransigent. Rather, it
shows that the Union agreed to modify its proposal if the Em-
ployer acted in the same manner.
The limited number of sessions which took place prior to
implementation belies a contention that the parties were at im-
passe at the time. Monmouth Care Center, 354 NLRB 11, 58
(2009); PRC Recording Co., above at 635, where the Board
stated, “while . . . the number of negotiating sessions is not
controlling, generally, the more meetings, the better the chance
of finding an impasse.” and NLRB v. Powell Electrical Mfg.
Co., 906 F.2d 1007, 1012 (5th Cir. 1990), where the court stat-
ed:
Little substantive bargaining had taken place before the time
of the purported impasse. The parties only had met five times
. . . . The existence of so few substantive sessions cannot
alone lead to the conclusion that there was no impasse. But it
certainly constitutes an important factor to be weighed in
evaluating the Board’s decision.
An employer has a “basic duty of allowing adequate time
and opportunity for reasonable discussion of the essential de-
tails of its offer.” Firch Baking Co. v. NLRB, 479 F.2d 732, 736
(2d Cir. 1973).
In Betlem Service Corp., 268 NLRB 354, 354 (1983), it was
stated that “generally, the Board will not find that an impasse
has occurred unless the negotiations between the parties have
been exhaustive.” Here, after only four negotiation sessions, it
cannot be said that a “full discussion” of all the issues in dis-
pute has taken place.
The Respondent argues that the Union was determined that it
sign the master agreement and would not consider any changes
thereto. The Employer cites the Union’s refusal to make coun-
terproposals following its initial offer of the Independent Em-
ployers Agreement as proof that the Union bargained in bad
faith with no intention to reach agreement on any terms other
than the master agreement.
The Respondent first cites Villalta’s email message that the
Union was prepared to meet “to discuss the Independent
Agreement but not to negotiate.” Villalta did not testify. The
Respondent argues that the email message supports its position
that the Union refused to deviate from the master agreement. I
do not agree. Villalta’s message was brief, vague, and ambigu-
ous. I further find that Villalta’s uncontradicted statement to
STEIN INDUSTRIES, INC. 21
Portnoy that “there could be no deviation from the Union’s
proposal—this is where we have to go,” even if it was made,
was uttered at the first negotiation session. It could be expected
that the Union’s position would change at later sessions, and it
did. Moreover, it was contradicted by his and Mucaria’s subse-
quent meetings and negotiations with the Employer.
The Respondent further argues that the Union was locked in-
to insisting on the same economic terms as it negotiated in the
Association and Independent Employer agreement, and con-
cludes that impasse was inevitable because the Union refused to
grant the Respondent more favorable terms than those master
contracts. There is some support for this position. Mucaria testi-
fied that he expected the Employer to sign the me-too industry
agreement as it had for the past 40 years. However, this expec-
tation did not harden into a fixed resolve not to accept terms
different than the master agreement. There is no credible evi-
dence that the union negotiators stated that any issue was
nonnegotiable.
In addition, the Respondent is correct that the Union made
no counteroffers other than the MOU it originally proposed.
Further, even according to Mucaria’s testimony, on July 8 he
rejected the Employer’s wage proposal and believed that the
Union’s delegates would likely not approve it. Further, Mucaria
termed the Respondent’s work standards proposal unacceptable
and contrary to what the Union “ever stood for.”
In agreeing with the Employer that the Union took a hard po-
sition on these issues, “the mere fact that the Union now refuses
to yield does not mean that it never will. Parties commonly
change their position during the course of bargaining notwith-
standing the adamance with which they refuse to accede at the
outset. Effective bargaining demands that each side seek out the
strengths and weaknesses of the other's position. To this end,
compromises are usually made cautiously and late in the pro-
cess.” Detroit Newspaper Local 13 v. NLRB, 598 F.2d 267, 273
(D.C. Cir. 1979).
The Union's course of conduct, on the whole, demonstrates
that it was willing to continue negotiations with the Respond-
ent. While the Respondent may have been impatient with the
Union's pace in agreeing to its proposals or even making pro-
posals of its own, its frustration is not the equivalent of a valid
impasse nor did it mean that a negotiated settlement was not
within reach. Newcor Bay Division of Newcor, 345 NLRB
1229, 1240 (2005);Grinnell Fire Systems, Co., 328 NLRB 585
(1999); Futility, not some lesser level of discouragement or
apparent gamesmanship is necessary to establish impasse.
Moreover, Mucaria’s statements do not compel or even sug-
gest a finding that impasse had been reached. The Union’s posi-
tion at all times was that its agents would make further pro-
posals and would move closer to an agreement if the Respond-
ent made another proposal.
Thus, as set forth above, the Union’s initial proposal repre-
sented a marked departure, in favor of the Employer, from that
of the recently expired Independent Employers Agreement.
Thus, the Union offered a Tier II category with significantly
lower wages than the Tier I category which was the only cate-
gory available in the prior, expired contract, and also reduced
benefit contribution rates and proposed a 40-hour cap on bene-
fit contributions for new employees. In addition, the Union
accepted Ira Cure as an additional arbitrator. Further, at the
March 4 and April 4 meetings, Mucaria told Portnoy that he
would consider the Respondent’s subcontracting proposal, and,
in fact, agree to its work standards proposal if it made other,
positive, progressive proposals on wages and benefits. At the
July 8 meeting, Mucaria told Portnoy that he would be willing
to consider less than a 10-year contract if he received a “more
favorable proposal on wages and benefits.” Further, Mucaria
told Portnoy that if the Employer made a “decent” wage and
benefit proposal the Union’s delegates would find it easier to
approve.
In Serramonte Oldsmobile, 318 NLRB 80, 98 (1995), the
Board found that, although at the final bargaining session “all
the elements of a genuine impasse in bargaining were in place”
the Union’s offer to alter its proposal if the Respondent did so,
represented “serious movement—a substantial effort” to bridge
the gap in positions. This case is stronger than Serramonte
because here, at the final bargaining session, not all the ele-
ments of a genuine impasse were in place. Accordingly, Mu-
caria’s offer, identical to that of the union in Serramonte, sig-
naled that movement was possible. That does not mean that the
Union could be expected to change its position, but it is “realis-
tically possible” that continued discussion would have been
fruitful. The Board found that no impasse had occurred in Ser-
ramonte.
In finding that no impasse occurred, the Board in Newcor
Bay, above, observed that when the employer asserted that the
parties were at impasse, the union agent asked to continue bar-
gaining and assured the employer that it was prepared to nego-
tiate. It was expected that the union would make concessions
depending on what information the employer provided. The
Board found that no impasse occurred even though the union
“had not yet offered specific additional concessions, but only
declared its intention to be flexible and continue bargaining.”
The Board also noted that although a “wide gap” existed be-
tween the parties' positions, no impasse occurred where there
was a possibility of further movement on important issues. 345
NLRB at 1238–1240.
Here, the Union remained flexible and expressed a willing-
ness to offer another proposal if the Employer did so. It must be
emphasized that the Union’s approach was in marked contrast
to the Respondent’s regressive proposals. Thus, the Employer’s
first wage offer was a wage freeze at $31 per hour for Tier I
employees. Its next offer was that wages for those employees
be reduced to $22 per hour. Finally, it offered to reduce the new
hire rate from $22 per hour to $20 per hour.
There thus appeared to be prospects for future discussions
even at the time the Respondent declared impasse even accord-
ing to the Employer. Thus, on July 8, Portnoy offered to speak
about the terms during the following week, before they were
implemented on July 15. Such an offer to discuss the terms of
the Respondent’s “final offer” may be seen as the Employer’s
invitation to continue bargaining—surely an indication that
impasse had not taken place.
In addition, on July 8, Mucaria expressed shock at the decla-
ration of impasse, and told Portnoy that “we are not done nego-
tiating” and offered to continue discussions. Accordingly, there
was no contemporaneous understanding by both parties that
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they had reached impasse.
Indeed, the evidence clearly shows that the union officials
were not at the end of their negotiating rope, but were ready
and willing to negotiate further. When the Employer declared
impasse, the Union protested that it had not completed negotia-
tions, and it could be expected, as the Union stated, that it
would make further concessions and would be flexible upon the
Employer’s making an additional proposal. In addition, it of-
fered to continue to bargain.
In addition, following the declaration of impasse, Mucaria
contacted Portnoy several times to arrange further negotiations.
Indeed, the Union’s attorney wrote to Portnoy, denying that
impasse had been reached, and suggested dates to bargain.
In fact, the parties met on August 28, nearly 2 months fol-
lowing the declaration of impasse. Mucaria told Portnoy at that
time that the Union had “room to move” but asked him to come
closer to what the Union sought. Portnoy asked that the Union
make a proposal which would provide the Employer the sav-
ings it sought and, indeed, said, “[L]et’s bargain.”
Here, the Union’s offer to modify its proposal if the Employ-
er did the same, and the Respondent’s suggestion that a media-
tor enter the discussion, certainly created a “new possibility of
fruitful discussion.” However, Mucaria asked for financial rec-
ords which would prove the Respondent’s claimed financial
hardship. The Union agreed to meet with the mediator once
those records were received. However, no detailed records were
produced and a further meeting did not take place.
Accordingly, the Union sought additional bargaining ses-
sions, and the Employer committed to doing so as well. Under
these circumstances where the Union expressed flexibility, the
Respondent “might reasonably be required to recognize that
negotiating sessions might produce other or more extended
concessions.” Royal Motor Sales, 329 NLRB 760, 772 (1999),
Moreover, the parties had not discussed certain terms of the
Union’s proposal including proposals to cap the benefit contri-
butions at 40 hours per week, arrangements for manning, elec-
tronic recording of time worked by employees, the time limit
for the Employer to make benefit contributions, and the with-
drawal of members from work if such payments were not made.
Portnoy’s testimony that discussion of these items is usually
reserved for the last day of negotiations, and that it accepted the
capping of benefits as part of its implementation of Tier II ben-
efits does not ring true. The last day of bargaining took place
without such discussion and the Employer did not inform the
Union that it accepted the capping of benefits proposal.
In light of the Union's willingness to continue bargaining at
the time of the declaration of impasse and thereafter, I cannot
find that the parties had reached a deadlock on all the issues set
forth in the proposals.
Whether the parties could be expected to resolve their differ-
ences is unknown. What is known is that the Union offered to
modify its proposals if the Respondent made a new proposal.
Although the Respondent believed that there was an impasse
the Union did not. Accordingly, there was no contemporaneous
understanding by both parties that they had reached impasse.
In Newcor, above at 1239, the union advised the employer
that it “was prepared to make further concessions on central
issues, and that more extreme movement would be possible in
the future, depending in part on what information the respond-
ent provided.” Here, as in Newcor, the union agents never stat-
ed that the Union would “not make further movement towards
the Respondent’s position on any issue, or even foreclosed the
possibility that the union would eventually accept the Respond-
ent’s initial proposal.” This is true even though the Union had
not yet offered specific additional concessions, but only de-
clared its intention to be flexible and continue bargaining.
Similar to the instant case, in Grinnell Fire Protection Sys-
tems Co., 328 NLRB at 586, the Board found that no impasse
had occurred where the union had not yet offered specific con-
cessions, but on the last day of negotiations had declared its
intention to be flexible, and sought another bargaining session.
The Board stated that “even assuming arguendo that the re-
spondent has demonstrated it was unwilling to compromise any
further, we find that it has fallen short of demonstrating that the
union was unwilling to do so.”
“The essential question is whether there has been movement
sufficient ‘to open a ray of hope with a real potentiality for
agreement if explored in good faith in bargaining sessions.’”
Hayward Dodge, 292 NLRB 434, 468 (1989). I find that such
ray of hope presented itself at the last bargaining session on
July 8 before impasse was declared.
Moreover, there was no “most-favored nations” clause in the
Union’s proposed agreement. The Union therefore was not
prohibited from deviating from the master agreement. The Un-
ion was accordingly able to be flexible in its proposals.
Nevertheless, the Respondent argues that the proposal re-
quires the Union to insist on obtaining the same terms as the
industry agreement. I do not agree. The proposal merely re-
quires the Union to “utilize its best efforts to monitor” work
performed by shops within its jurisdiction and “confirm” that
such work is performed by employers who pay equal to or bet-
ter than the wages and benefits set forth in the Association con-
tract. Such language does not require the Union to refuse to
allow the installation by its members of products which were
manufactured in a shop paying terms more favorable than those
provided in the Association contract.
Further, even if the Union was determined that the Employer
sign the master contract, it has been recognized that a union has
the legitimate right to seek for its members the same or similar
terms and conditions of employment that have been negotiated
with other employers. Teamsters Local 282 (E. G. Clemente
Contracting), 335 NLRB 1253, 1255 (2001); Mine Workers v.
Pennington, 381 U.S. 657, 665 (1965). “A union may adopt a
uniform wage policy and seek vigorously to implement it”
among several employers. 381 U.S. at 665 fn. 2.
I reject the Respondent’s argument that the two union nego-
tiators could not independently negotiate the contract because
they had to obtain the approval of union officials. The Union’s
internal procedure required such approval, and there is nothing
improper with that procedure. Mucaria testified that the Un-
ion’s bylaws were written by a review officer and that he was
bound by that document. Its purpose was to ensure fairness and
honest dealing by the union representatives with the Union’s
membership and oversight by the review officer. Moreover,
Mucaria credibly testified that neither he nor Villalta was given
any limitations by union officials on their ability to bargain
STEIN INDUSTRIES, INC. 23
with the Employer.
Here, the overall course and conduct of the parties does not
evince a mutual understanding that further bargaining would
not take place or be fruitful. Based upon the foregoing, I con-
clude that the evidence is insufficient for me to find that the
Respondent has met its burden of proof that, at the time of the
promulgation or implementation of the final offer, the parties
were of a contemporaneous mutual understanding that further
bargaining would be futile.
The Respondent’s reliance on ACF Industries, LLC, 347
NLRB 1040, 1040–1042 (2006), is misplaced as the facts there-
in are clearly distinguishable from the instant matter. There, the
union's membership had twice voted to reject respondent's of-
fers, after which respondent stated that it had nothing further to
offer and would implement its last offer. The union stated that
it had additional proposals to make but did not divulge what the
proposals would be and did not request any further negotia-
tions.
In ACF, the employer submitted several proposals during the
course of 12 bargaining sessions, but here the Respondent sub-
mitted only 2, nearly identical proposals in only 4 sessions
before it declared impasse. Here, the Union said that it was
willing to make new proposals but expected the Respondent to
do the same. In addition, unlike ACF, the Union offered to
continue negotiations and did not exhibit an intransigent posi-
tion. Rather, it asserted that it was flexible and would offer
further proposals if the Employer did so.
The Respondent also relies on E. I. du Pont & Co., 268
NLRB 1075 (1984). In that case, the Board finding that im-
passe had occurred, emphasized that the parties bargained “long
and hard” in 17 sessions over a specific issue during which the
parties had “adequate opportunity to discuss their difference”
but could not reach agreement on that matter. The Board also
based its holding on the fact that the union “gave no indication
that it would concede on [that issue] in return for a favorable
trade-off in another area or otherwise that its positions on this
and other matters were interchangeable.”
In contrast, here, the negotiations comprised only four ses-
sions during which the Union indicated that it would make
further proposals, coming closer to agreement on the Respond-
ent’s offers, if the Employer made a better offer on wages and
benefits. Thus, the parties did not have an “adequate opportuni-
ty to discuss their differences” and the Union offered to reach
an accommodation on the contract’s term and manning pro-
posals in exchange for the Respondent’s making a better offer
concerning wages and benefits.
The Respondent also relies on H & H Pretzel Co., 277
NLRB 1327 (1985). In that case, the Board held that impasse
had been reached, basing its finding on the facts that the em-
ployer provided financial data supporting its position that it
suffered economic distress. Significantly, the union did not
review such data and remained adamant in not reducing labor
costs.
Here, of course, the Respondent did not provide the Union
with detailed financial records. It submitted only a summary of
such records with no supporting documentation. The Union
correctly argues that without precise records it could not assess
the degree of economic hardship the Employer claimed. Indeed,
the Union suggested that following its receipt of back-up finan-
cial data, each party could then make additional proposals and
meet with the mediator.
The Respondent further argues that the length of time prior
to the start of bargaining is evidence of the Union’s bad faith. I
cannot agree. The Union had a legitimate reason to delay the
start of bargaining until the master contract was executed. The
Union expected that the Employer would sign it and according-
ly was justified in waiting until the master contract was pro-
duced. The more important consideration is the length of time
between bargaining sessions. It does not appear that an inordi-
nate amount of time elapsed between sessions once they began,
nor that the Union was responsible for any delay in meeting
once bargaining began.
The Implementation of Changes by the Respondent
During negotiations for a collective-bargaining agreement an
employer may not make unilateral changes in mandatory sub-
jects of bargaining without first bargaining to a valid impasse.
NLRB v. Katz, 369 U.S. 736 (1962). While such negotiations
are ongoing, “an employer's obligation to refrain from unilat-
eral changes extends beyond the mere duty to give notice and
an opportunity to bargain; it encompasses a duty to refrain from
implementation at all, unless and until an overall impasse has
been reached on bargaining for the agreement as a whole.”
Bottom Line Enterprises, 302 NLRB 373, 374 (1991).
As discussed above, I have found that the parties had not
reached an impasse in bargaining. Accordingly, the Respondent
was not entitled to make any changes in its employees’ terms
and conditions of employment, and, as set forth below in the
remedy part of this decision, the Respondent shall be ordered to
restore the terms of the expired contract until it bargains in
good faith to impasse.
In the interest of completion, and assuming, arguendo, that
impasse was reached, I will relate the changes that the Re-
spondent made to its employees’ wages and benefits. The Re-
spondent’s first oral proposal was for a wage freeze at the cur-
rent wage rate of $31 per hour. Its first written offer was for a
wage rate for all employees, current and new hires, of $22 per
hour. Its next offer was that current employees be paid no less
than $22 per hour and new hires paid no less than $20 per hour.
Following the declaration of impasse, the Respondent sent
employees a letter advising that work was available “under the
terms of employment recently implemented by the company”
and that their hourly rate will be $22 per hour. Nevertheless,
current employee Rodriguez was paid at a rate of $30 per hour
from September through December 2014.
“Although impasse is one of the generally recognized excep-
tions permitting unilateral changes, the law is clear that an em-
ployer's post-impasse changes cannot be substantially different
from the terms of its prior offers.” See, e.g., Grondorf, Field,
Black & Co. v. NLRB, 107 F.3d 882, 886 (D.C. Cir. 1997)
(“When impasse occurs, an employer may implement only
those changes reasonably falling within its pre-impasse pro-
posal.”); and Atlas Tack Corp., 226 NLRB 222, 227 (1976),
enfd. 559 F.2d 1201 (1st Cir. 1977) (impasse enables an em-
ployer to make unilateral changes that are “not substantially
different or greater than any which the employer … proposed
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
during the negotiations.” Church Square Supermarket, 356
NLRB 1357, 1361 (2011).
Here, the payment to employee Rodriguez, and perhaps other
employees of a wage rate of $30 per hour is “substantially dif-
ferent” than that set forth in its last offer. The Respondent’s last
offer was that they would be paid not less than $20 per hour.
Concededly, a rate of $30 is not less than $20 per hour. How-
ever, such a rate is much different than the rate provided in its
last offer. Moreover, the $30-per-hour wage rate substantially
differed and was greater than the wage rate of $22 which the
Employer’s letter said they would be paid.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By prematurely declaring impasse in bargaining, the Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.
4. By implementing terms and conditions of employment
upon its employees when a valid impasse has not been reached,
the Respondent has violated Section 8(a)(5) and (1) of the Act.
5. By failing and refusing to bargain with the Union in the
following appropriate collective-bargaining unit, the Respond-
ent has violated Section 8(a)(5) and (1) of the Act:
All foremen, journeymen mechanics, carpenters, bench hands,
machine men, cabinet makers, model makers, sprayers, var-
nishers, wood finishers, wood carvers, and turners, kalamein
men, apprentices, helpers, unskilled and semi-skilled produc-
tion workers, metal workers and all other employees doing
production and maintenance work, except a caretaker of a
building.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Inasmuch as the Respondent unlawfully failed and refused to
bargain with the Union for a successor contract by unlawfully
declaring that impasse had taken place and unlawfully imple-
menting the terms of its last offer, the Respondent shall be or-
dered to bargain with the Union, and, if an understanding is
reached, to embody the understanding in a signed agreement.
The Respondent shall immediately put into effect all terms
and conditions of employment set forth in its contract which
expired on June 30, 2012, and shall maintain those terms in
effect until the parties have bargained to agreement or a valid
impasse, or the Union has agreed to changes.
The Respondent shall also be ordered to rescind any changes
to the terms and conditions of employment of its employees,
and to make whole those employees for any loss of earnings
and other benefits they may have suffered as a result of the
Respondent's unlawful actions. In addition, the Respondent
must make its employees whole for any loss of earnings and
other benefits that resulted from its unilateral and unlawful
decision to, on or about July 15, 2014, implement its final offer.
Backpay for this violation shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010). This includes reimbursing unit employees for any ex-
penses resulting from the Respondent's unlawful changes to
their contractual benefits, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), affd. 661 F.2d 940 (9th
Cir. 1981), with interest as set forth in New Horizons and Ken-
tucky River Medical Center, supra. I further recommend that
the Respondent be ordered to make all contributions to any
fund established by the collective-bargaining agreements with
the Union which were in existence on June 30, 2012, and which
contributions the Respondent would have made but for the
unlawful unilateral changes, in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 (1979).
In accordance with Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014), the Respondent shall com-
pensate affected employees for the adverse tax consequences, if
any, of receiving lump-sum backpay awards, and file a report
with the Social Security Administration allocating backpay
awards to the appropriate calendar quarters for each employee.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Stein Industries Inc., Amityville, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to follow the terms and conditions of the collec-
tive-bargaining agreement with the Union that expired on June
30, 2012, until a new contract is concluded or good-faith bar-
gaining leads to a valid impasse, or the Union agrees to chang-
es.
(b) Implementing terms and conditions of employment that
are different than those in the collective-bargaining agreement
that expired on June 30, 2012, before a new contract is con-
cluded or good-faith bargaining leads to a valid impasse, or the
Union agrees to changes.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union for a new contract for
the employees in the following unit and, if an understanding is

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
STEIN INDUSTRIES, INC. 25
reached, embody the understanding in a signed agreement.
All foremen, journeymen mechanics, carpenters, bench hands,
machine men, cabinet makers, model makers, sprayers, var-
nishers, wood finishers, wood carvers, and turners, kalamein
men, apprentices, helpers, unskilled and semi-skilled produc-
tion workers, metal workers and all other employees doing
production and maintenance work, except a caretaker of a
building.
(b) Restore, honor, and continue the terms and conditions of
the contract with the Union which expired on June 30, 2012,
before a new contract is concluded or good-faith bargaining
leads to a valid impasse, or the Union agrees to changes.
(c) Rescind the unilateral changes to the terms and condi-
tions of employment of the employees until such time as the
parties have bargained in good faith to an agreement or impasse
on the terms and conditions of employment of such employees.
(d) Make employees whole for any loss of earnings and other
benefits they may have suffered as a result of the Respondent's
unlawful actions, with interest, as set forth in the remedy sec-
tion of this decision.
(e) Make all contractually-required benefit fund contribu-
tions, if any, that have not been made to the fringe benefit funds
on behalf of the employees and reimburse those employees for
any expenses ensuing from its failure to make the required
payments, with interest, as set forth in the remedy section of
this decision.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its fa-
cilities nationwide copies of the attached notice marked “Ap-
pendix.”2 Copies of the notice, on forms provided by the Re-
gional Director for Region 28, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
and members are customarily posted. In addition to physical
posting of paper notices, the notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an inter-
net site, and/or other electronic means, if the Respondent cus-
tomarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since June 8, 2013.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. April 27, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail to follow the terms and conditions of the
collective-bargaining agreement with the Union that expired on
June 30, 2012, until a new contract is concluded or good-faith
bargaining leads to a valid impasse, or the Union agrees to
changes.
WE WILL NOT implement terms and conditions of employ-
ment that are different than those in the collective-bargaining
agreement that expired on June 30, 2012, before a new contract
is concluded or good-faith bargaining leads to a valid impasse,
or the union agrees to changes.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL on request, bargain with the Union for a new con-
tract for you in the following unit and, if an understanding is
reached, embody the understanding in a signed agreement.
All foremen, journeymen mechanics, carpenters, bench hands,
machine men, cabinet makers, model makers, sprayers, var-
nishers, wood finishers, wood carvers, and turners, kalamein
men, apprentices, helpers, unskilled and semi-skilled produc-
tion workers, metal workers and all other employees doing
production and maintenance work, except a caretaker of a
building.
WE WILL restore, honor, and continue the terms and condi-
tions of the contract with the Union which expired on June 30,
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2012, before a new contract is concluded or good-faith bargain-
ing leads to a valid impasse, or the Union agrees to changes.
WE WILL rescind the unilateral changes to your terms and
conditions of employment until such time as we and the Union
have bargained in good faith to an agreement or impasse on
your terms and conditions of employment.
WE WILL make you whole for any loss of earnings and other
benefits you may have suffered as a result of our unlawful ac-
tions, with interest.
WE WILL make all contractually-required benefit fund contri-
butions, if any, that have not been made to fringe benefit funds
on your behalf and reimburse you for any expenses ensuing
from our failure to make the required payments, with interest.
STEIN INDUSTRIES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29-CA-134711 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.