Stein Industries Inc., (2017)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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 Charging Party filed cross-exceptions and a supporting brief, the Respondent filed an answering brief, and the Charging 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 administrative law judge’s credibility resolutions unless the clear preponderance 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 million arbitration award against the Union; the Manufacturing Woodworkers 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 Monmouth 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 threemember panel of the Board subsequently incorporated the decision by reference in reaffirming the decision. See Laurel Bay Health & Rehabilitation 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 recommended 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 Understanding (MOUs). The MOUs mirrored the Memoranda of Agreement (MOAs) negotiated between the multiemployer Manufacturing Woodworkers Association (the Association) and the Union.³ On April 9, 2012, approximately 2 months before the June 30 expiration of the then-current MOA, the Respondent, through its representative and chief negotiator Mark Portnoy, timely notified the Union that it desired to negotiate its own separate agreement. Union Representative Andrew Mucaria responded that the Union was currently negotiating a new MOA with the Association and that upon completion of those negotiations the Union would contact Portnoy to negotiate a separate agreement with the Respondent. Because Portnoy also represented several other union-signatory contractors, he and Mucaria occasionally conversed on a range of topics, including the pending negotiations with the Respondent. Over the course of those discussions, Mucaria informed Portnoy that the Union was still negotiating the MOA and had not forgotten about the Respondent.

On September 13, 2013, Portnoy wrote to Mucaria about scheduling a negotiation session with the Respondent. 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 negotiations for its own agreement. After an exchange of emails, Portnoy and Mucaria met on November 6, 2013. Portnoy explained that the Respondent had financial difficulties 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 attended 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 compensation 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.

365 NLRB No. 31

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 employees 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 payments. 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 President Michael Cavanaugh. Mucaria and Villalta suggested 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 problem” with deviating from the MOU and that if the Respondent “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 Union expressed its flexibility in bargaining at future negotiation sessions.

On April 4, the parties met for a second time. In addition 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 contradicted by the events at later bargaining sessions, where the Union indicated willingness to grant further concessions.

Respondent’s request for greater economic assistance, Mucaria stated that the Union could do so but the Respondent “had to come back with a more realistic proposal in a positive way, not just taking all the concessions [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 nothing 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 expressed their frustration with each other for refusing to make a second proposal.

The parties held their fourth and final negotiating session on July 8. Portnoy again presented the Respondent’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 employees $22 per hour. The Union also reiterated its rejection of the proposal that all employees...