Hunt-Nieboer Concrete Construction, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 17, 2010

07-CA-052950 (N.L.R.B. Dec. 17, 2010)

JD–72–10
Schoolcraft, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HUNT-NIEBOER CONCRETE CONSTRUCTION, INC.
and Case GR–7–CA–52950
LOCAL 16, OPERATIVE PLASTERERS’ AND
CEMENT MASONS’ INTERNATIONAL
ASSOCIATION, (OP&CMIA), AFL–CIO
Dynn Nick, Esq., for the Acting General Counsel.
Kevin McCarthy, Esq., of Portage, Michigan, for
the Respondent.
Amy Bachelder, Esq., of Detroit, Michigan for
the Charging Party Union.
DECISION
Statement of the Case
MARK D. RUBIN, Administrative Law Judge. This case was tried in Kalamazoo, Michigan
on August 30, 2010, based on a charge filed by Local 16, Operative Plasterers’ and Cement
Masons’ International Association, (OP&CMIA), AFL–CIO (Charging Party or Union) on May 25,
2010, and an amended charge filed by the Union on July 16, 2010, against Hunt-Nieboer
Concrete Construction, Inc. (Respondent).
The Regional Director’s complaint, dated July 22, 2010, alleges that the Respondent
violated Section 8(a)(5), and 8(d) of the Act by failing to continue in effect all terms of a current
collective–bargaining agreement in that it failed to remit checked-off union dues to the Union
and failed to submit fringe benefit fund contributions to union benefit funds, and also violated
Section 8(a)(5) by subsequently repudiating the collective-bargaining agreement and
withdrawing recognition from the Union. The Respondent defends by denying that it was bound
to a collective-bargaining agreement with the Union at the time it allegedly failed to make
payments and that, in any case, the allegations are time-barred by Section 10(b).
At the trial, the parties were afforded a full opportunity to examine witnesses, to adduce
competent, relevant, and material evidence, to argue their positions orally, and to file posttrial
briefs.1 Based on the entire record, including my observation of witness demeanor, and after
considering the at-trial arguments of the parties, and the posttrial brief, I make the following

1 However, only counsel for the Acting General Counsel actually filed a brief.
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Findings of Fact
I. Jurisdiction
The Respondent is a Michigan corporation with an office and facility in Schoolcraft
Michigan, where it is engaged as a contractor in residential and commercial concrete
construction. During the calendar year 2009, the Respondent, in conducting its business
operations, derived gross revenues in excess of $500,000, and performed services valued in
excess of $50,000 for Kellogg Company, which annually sells and delivers products valued in
excess of $50,000 from its Michigan facilities directly to customers located outside the State of
Michigan. I find, and the parties stipulated, that the Respondent has been at all material times
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. Labor Organization
I find, and the parties stipulated, that the Union is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the Act.
III. Alleged Unfair Labor Practices
At least since 1995 the Union has been party to a series of collective-bargaining
agreements with the Michigan Chapter, Associated General Contractors of America, Inc. Labor
Relations Division (Association).2 The agreements titled as 1995–1997, 1997–2000, 2000–
2003, 2003–2006, 2006–2009 and 2009–2012, by their respective terms expired on May 31 of
their respective expiration years. Each of the contracts contained provisions providing for the
employers to remit dues deducted from employee paychecks to the Union, and to provide
payments to various union fringe benefit funds (Funds) on behalf of covered employees.
Each of the contracts also contained a termination provision which contained the
following pertinent language: “Should either party desire to amend or terminate this Agreement
at the above expiration date, such party will give the other written notice of such desire at least
sixty (60) days prior to May 31…” “If neither party gives such notice to amend, or terminate, the
agreement shall remain in full force from year to year thereafter, unless sixty (60) days prior to
any annual anniversary date, notice be given in writing by either party to the other indicating a
desire to amend or terminate on said annual anniversary date.”
The Respondent initially entered an agreement with the Union, signing the 1995–1997
and 1997–2000 agreements as a nonmember of the employer association.3 Counsel for the

2 The 1995–1997 contract was styled as between the Union and the “Battle Creek-
Kalamazoo Area Cement Mason Contractors.”
3 These signed documents were entered into evidence with what was purported to be the
signature of Steven Nieboer, who was then vice-president of the Respondent, but is no longer
associated with the Respondent. Nobody contended that the signature was other than that of
Nieboer’s or that the Respondent was not a party to these contracts with the Union. Counsel for
the Acting General Counsel’s brief incorrectly cites the exhibits and transcript page 24 as
evidence that Nieboer signed the 1997–2000 contract. The signature on the 1997–2000
contract is not legible, as was stated on the record, and nobody testified that the signature was,
indeed, Nieboer’s. Nevertheless, no party contended that the Respondent was not a party to
Continued
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Acting General Counsel posits, on brief, that thereafter the Respondent remained party to
successive contracts with the Union, either explicitly, or by its continued adherence to material
terms, or by its failure to timely notify the Union. The parties agree, essentially, that the
Respondent was party to the terms of all of the contracts set forth above except the 2009–2012
contract, which the Respondent argues it was not bound to.4

While there is no evidence that the Respondent signed the 2000–2003 agreement with
the Union, the Respondent acted as bound by the contract by complying with its terms, 5 and
the Respondent does not contest that it was bound to said agreement. There is no evidence
that either party gave notice of contract expiration during the prior contract’s notification period.
Thus, I find that the Respondent was bound to the 2000–2003 contract. No party contends to
the contrary.
On July 22, 2003, representatives of the Respondent and the Union signed the
collective-bargaining agreement for 2003–2006.6 On June 1, 2003, the Respondent’s president,
Donald Hunt, and Business Representative Cyril Wilson for the Union, signed the residential
addendum to the 2003–2006 collective-bargaining agreement. This contract, thus, was binding
on the Union and the Respondent and, by its terms, expired on May 31, 2006. A signed
addendum to the contract entitled “Contract to be Executed by An Employer Who Is Not a
Member Of The Michigan Chapter, Associated General Contractors Of America, Inc …”
provided Section 9(a) recognition to the Union.7
The individual employer addendum to the Association contract also provided as follows
in respect to the contract’s termination provision: “[the undersigned employer] agrees that any
notice given by the Union to the AGC (Association) pursuant to Article XIV [termination clause]
of the 2003–2006 Agreement between the Union and the AGC shall be notice to the Employer
personally and that, unless the Employer or the Union notifies the other party to the contrary by
registered mail at least sixty (60) days, but no more than ninety (90) days prior to May 31, 2006,
_________________________
the 1995–1997 and the 1997–2000 contracts, or that the signatures appearing as the
Respondent’s representative on the contracts were either not authentic or signatures of
nonrepresentatives, and I find that the Respondent entered into both contracts with the Union.
4 The Respondent, in its answer to the complaint, pleading that the Union has been the
designated collective-bargaining representative since 1995, stated: “In response to the
complaint allegation…Respondent states it did execute certain collective-bargaining
agreements with Charging Party, but denies there is a signed or binding collective bargaining
agreement between the parties for the period of July 1, 2009 through May 31, 2012.” The
answer, thus, essentially admits the prior contracts, but places into issue whether the
Respondent was bound to the 2009–2012 contract, as alleged in the complaint.
5 Credited testimony of Cyril Wilson, the Union’s business manager.
6 Here, again, the contract appears as signed by Steven Nieboer for the Respondent. While
no witness was able to identify the actual signature, the name line under the signature has the
name Steven J. Nieboer hand-printed. Nobody contends that the signature is not that of
Nieboer or that Nieboer was not an authorized representative.
7 The complaint alleges that the Union enjoyed Section 9(a) representative status. The
Respondent’s answer did not deny or admit such status, but the Respondent did not contest
such status at trial. Indeed, the Union’s 9(a) status was not litigated at trial either by proofs or
argument. Finally, under Board precedent, the issue of whether parties are bound to a
collective-bargaining agreement by an automatic renewal or extension clause is not controlled
by whether a union occupies 9(a) or 8(f) status. See, Construction Labor Unlimited, Inc., 312
NLRB 364, fn.2 (1993), and SCC Contracting, Inc., 307 NLRB 1519, 1525 (1992).
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or the expiration date of any subsequent agreements, it will adopt and be bound retroactive to
the latest expiration date, by any agreement between the Union and the AGC, following the
giving of such notice.”
The Respondent did not exercise the provision in the termination paragraph of the
2003–2006 agreement, and gave no notice of intent to terminate the agreement or intent not to
be bound by a new agreement between the Union and the Association during the open period
prior to the contract’s expiration.8 Meanwhile the Union and Association negotiated and agreed
to a new 2006–2009 contract, effective by its terms from June 1, 2006 through May 31, 2009.
Under terms of this agreement, employers bound to the agreement were required, as in the
other contracts described above, to remit deducted dues from employee paychecks to the
Union, and make payments to the Union’s fringe benefit funds on behalf of covered employees.
The 2006–2009 contract, like the prior one, also contained a provision granting 9(a)
recognition to the Union. While there is no evidence that the Respondent ever signed this
agreement, or the individual employer agreement, or the residential rider, the Acting General
Counsel posits that the Respondent was nevertheless bound to the 2006–2009 agreement as it
failed to opt out pursuant to the above-described provisions in prior contracts, including the
2003–2006 agreement. The Respondent does not deny that it was bound to the 2006–2009
contract and, in fact, concedes that “about June 1, 2006 through May of 2009, the company did
honor the terms of that agreement.”9
Like the earlier contracts, the 2006–2009 contract contains a termination clause (Article
XIV), which provides as follows:
This Agreement shall continue in effect through May 31,
2009. Should either party desire to amend or terminate this
Agreement at the above expiration date, such party will give
the other written notice of such desire at least sixty (60)
days prior to May 31, 2009. A joint meeting of both parties
shall then be held for the purpose of discussing proposed
changes and the incorporation into this Agreement of such
amendments or alterations as may be agreed upon. If
neither party gives such notice to amend or terminate, the
agreement shall remain in full force from year to year
thereafter, unless sixty (60) days prior to any annual
anniversary date, notice be given in writing by either party to
the other indicating a desire to amend or terminate on said
annual anniversary date. Neither party shall demand any
change in the Agreement, nor shall either be required to
bargain with respect to any changes in the agreement, or
shall any modification, alteration, or amendment of said
agreement be an object of or be stated as a reason for any
strike or lockout or other exercise of economic force or

8 Uncontroverted and credited testimony of Wilson.
9 Quote from the Respondent counsel’s argument, at trial. The Respondent’s counsel, in
said argument, further impliedly concedes that the Respondent was party to the 2006-2009
agreement with the Union as follows: “It is our position that there has not been a contract in
place since May of 2009…”
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threat by either of the parties hereto.
Pages 15 through 20 of the 2006–2009 contract are entitled “Statewide contract to be
executed by an employer who is not a member of The Michigan Chapter, Associated General
Contractors of America, Inc., Labor Relations Division.” Numbered paragraph 3 on page 19 of
the agreement provides as follows:
“…any notice given by the Union to the AGC pursuant to Article
XIV of the 2006-2009 Agreement between the Union and the AGC
shall be notice to the Employer and shall have the same legal
force and effect as though it were served upon the Employer
personally and that, unless the Employer or the Union notifies the
other party to the contrary by registered mail at least sixty (60)
days, but no more than ninety (90) days prior to May 31, 2009, or
the expiration date of any subsequent agreements, it will adopt
and be bound, retroactive to the latest expiration date, by any
agreement between the Union and the AGC, following the giving
of such notice.”
There is no evidence or, even, contention here that the Respondent provided written timely
notice by registered mail, or otherwise, to the Union as set forth in this contractual provision.
Subsequent to the 2006–2009 agreement, the Union and the Association successfully
negotiated the 2009–2012 contract, effective by its terms from July 1, 2009 through May 31,
2012. As with the previous contracts, the terms of the 2009–2012 agreement required bound
employers to remit union dues deducted from employee paychecks, and make contributions to
the Union’s fringe benefit funds. The Respondent, as with the 2006–2009 agreement, did not
sign the 2009–2012 contract. The parties differ as to whether the Respondent gave timely
notice of nonrenewal as required under the 2006–2009 agreement. Wilson, the Union’s
business manager, testified that at no time prior to the expiration of the 2006–2009 contract did
the Respondent notify the Union, “in any way,” that it would not be bound by any subsequent
agreement.
Wilson testified that as far as he or the Union knew, the Respondent, at least initially,
complied with the 2009–2012 contract and remitted the required union dues and fringe benefit
fund payments to the Union, but that Wilson became aware that the Respondent had stopped
remitting employee dues deductions in August during a phone conversation with Hunt.10 Both
Wilson and Hunt testified that sometime in August 2009, Hunt called Wilson.11
According to Wilson, Hunt told him during the August conversation that the contract was
expensive and that he (the Respondent) hadn’t paid the fringes. Wilson responded that he
wasn’t aware that the Respondent hadn’t paid the fringes,12 and Hunt replied that he hadn’t

10 An audit undertaken by the fringe benefit auditors shows that the Respondent stopped
making fringe benefit fund contributions beginning for the month of July 2009.
11 Neither the testimony of Hunt nor Wilson delineates upon which date in August 2009 this
conversation took place.
12 Wilson testified that even though Hunt used the term “fringes,” Wilson assumed that he
also mean union dues, because they both are on the “fringe form.”
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signed the previous contract. Wilson replied that he was aware Hunt hadn’t signed the contract,
but that the Respondent “was still bound by the terms and conditions of the new agreement,
whether he physically signed the previous one or not.” Wilson also testified that at no time
during the conversation did Hunt explicitly say “that he would not be bound by the [2009-2012]
agreement,” but that he (Wilson) became aware, by what Hunt said during the conversation,
that the company was not deducting dues and submitting them to the Respondent, and was not
making fringe benefit payments.13
Hunt testified that he initiated the August 2009 conversation. When asked by the
Respondent’s counsel what the conversation was about, Hunt testified, “That was basically
confirming the fact that there would be no payment…for the start of another contract.” Hunt
testified that in September 2009 he received a copy of the 2009–2012 contract to sign, and that
he did not sign it. When asked by the Respondent’s counsel why he didn’t sign the contract,
Hunt answered, “There was no contract. I told them approximately in December 2008 that I was
not going to continue with another union contract.”14
Hunt testified to an earlier conversation with Wilson that he said occurred in late 2008,
“in the November to December range.” He testified that he spoke to Wilson by telephone and
told him, “We would not move on to the next contract,” and “made it very clear that we would not
be honoring another union contract.” According to Hunt, “I verbally told him that we were done
with the Union contract.” Hunt testified that Wilson responded, “You can’t do that,” and he
(Hunt) responded, “We’re done.”15
As set forth below, Wilson testified to a similar conversation with Hunt, but that it took
place in December 2009, and which followed a December 1, 2009 letter to the Respondent from
the auditors of the Union’s fringe benefit funds requesting a payroll audit. Whether this
conversation occurred in late 2008 “in the November to December range,” as testified to by
Hunt, or in December 2009, as testified to by Wilson, is a significant issue in this case as it
impacts upon the Respondent’s argument that the complaint is Section 10(b) time-barred, as is
discussed infra.

13 On cross-examination by the Respondent’s counsel, Wilson explicitly testified that he
became aware during the August 2009 conversation with Hunt, that the Respondent had
stopped deducting dues from employee paychecks and remitting them to the Union, and had
stopped making fringe benefit payments to the union fringe benefit funds. Counsel for the
Acting General Counsel, on re-direct examination of Wilson, attempted to re-characterize
Wilson’s earlier testimony, by asking Wilson whether it was unusual for a contractor “to miss
payments.” But, in his earlier testimony on cross-examination, Wilson testified that he became
aware that the Respondent had “stopped” submitting dues deductions to the Union, not simply
“missed” payments, and that the Respondent “hadn’t paid any fringes,” not merely “missed”
fringe benefit payments. Indeed, the first in a series of questions asked Wilson by the counsel
for the Acting General Counsel was, “did there come a time when the company stopped making
dues deductions form its employees’ pay and submitting them to the Union?” Wilson answered
that there was such a time, and that he became aware of it during his August conversation with
Hunt. Again, counsel for the Acting General Counsel’s initial question used the word “stopped,”
not “skipped.”
14 For reasons discussed elsewhere herein, I credit Wilson in respect to this conversation,
as opposed to Hunt.
15 Hunt testified that he said, “We’re done.” Hunt was then asked by the Respondent’s
counsel, “Was that done with the conversation or we’re done with the relationship?” Hunt
answered, “We’re done with the Union contract,” but did not testify that’s what he said to Wilson.
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On cross-examination by the counsel for the Union, Hunt admitted, that in his affidavit
provided to the Region during its investigation of the unfair labor practice charge, there is no
mention of the asserted conversation with Wilson occurring in November, December, or at any
time during 2008. In that regard, Hunt admitted that the first conversation mentioned in his
affidavit as to a conversation with Wilson in which he told Wilson that the Respondent was
“done with the contract,” occurred in May 2009, and that he further testified in his affidavit that
subsequent to May 2009 he “had no further contact with Cyril Wilson until late fall of 2009 or
winter of 2009-10.”
Hunt, on further cross-examination by the counsel for the Union, testified that at some
point in 2009 he told Wilson that the union contract was too expensive, and asked Wilson to
meet with him to discuss “possible concessions or why [Hunt] thought the contract was too
expensive.”16 Hunt also testified that he asked the Respondent’s attorney to meet with Wilson
to discuss why the contract was too expensive for the Respondent and to attempt to negotiate
“something else” for the Respondent, and that he [Hunt] knew that his attorney had made
contact with the Union’s attorney.17 The Union’s counsel asked Hunt, “…you are aware, are
you not, that [the Respondent’s attorney] Mr. McCarthy attempted to negotiate with Mr. [George]
Kruszewski on behalf of the Union about the proposed contract; is that correct?” Hunt
answered (verbatim) as follows: “As I stated before, we were looking for closure to the problem
that’s put us in court today.”18
The Respondents attorney, Kevin McCarthy, and the Union’s attorney, George
Kruszewski,19 exchanged email correspondence in February 2010. On February 3, McCarthy
sent an email message to Kruszewski, stating in pertinent part, “I had contacted Cyril [Wilson]
several weeks ago in an effort to arrange a meeting at which we could discuss the relief
necessary from the current terms and conditions of employment at HN. After consultations with
someone, Cyril contacted me to indicate that he could not meet with us and that I needed to be
in touch with you as legal counsel to the Union. On October 11, 2006, HN signed onto a
collective-bargaining agreement negotiated by the Union and the Michigan Chapter of the
Associated General Contractors of America, Inc. That contract expired May 31, 2009 and a
new agreement has not been signed. The economic terms of the former contract are not ones
under which HN can successfully continue to operate. It was our intention to discuss these
issues with the Union; lacking that, we will be left to take unilateral actions to get to the point at
which the company can continue.” There was no mention in the email as to any assertion that
the Respondent had in any manner opted out of the 2009–2012 contract, other than “a new
agreement has not been signed.”
Kruszewski replied to McCarthy by email on February 10, 2010, to the effect that it was
his [Kruszewski’s] understanding that the Respondent signed the AGC contract as an
independent on October 11, 2006, that the contract contained language binding the Union and a
signatory employer to a successor agreement, unless notification to the contrary was delivered
by registered mail during the period 60–90 days prior to contract expiration, and that the

16 The record does not delineate the date of Hunt’s request to meet with Wilson.
17 The record does not delineate the date of Hunt’s request to the Respondent’s attorney.
18 Hunt’s nonanswer to the Union counsel’s explicit question, is just one example of the
numerous occasions on which he gave such answers during his testimony in response to
questions asked by the Union’s counsel, or the counsel for the Acting General Counsel.
19 Attorney Amy Bachelder, not Kruszewski, represented the Union at the hearing herein.
Kruszewski apparently represented the Union’s funds.
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Respondent did not give the Union the notice required under the 2006–2009 contract.
Kruszewski’s email message to McCarthy then states, “Accordingly, it is the Union’s (and the
Funds’) position that [the Respondent] is bound to the 2009-2012 contract, which is why during
the course of the audit being performed, the Funds have asked for the records for the period
after May 31, 2009.”
At trial, the Respondent called Jeff Cairns, an employee of the Respondent, as a witness
in support of Hunt’s trial testimony as to his asserted 2008 conversation with Wilson. As a
stage-setter to Cairns testimony, Hunt had testified that he engaged in the telephone
conversation with Wilson while on a jobsite with his employees and that “I was working right
along with them, particularly Jeff Cairns is one that was definitely right near me.” The
Respondent’s counsel asked Hunt, “While engaging in that conversation…was Mr. Cairns
within, obviously within clear earshot of your end of the conversation?” Hunt answered, “He
certainly was.” The Respondent’s counsel then asked if Hunt called Union representative Cyril
Wilson by name during the conversation, and Hunt answered that he did. Finally, the
Respondent’s counsel asked whether before or after the conversation Hunt told Cairns who he
was talking to, and Hunt testified that he told Cairns that it “was your buddy, Cyril Wilson.”
Cairns is employed by the Respondent in the bargaining unit. The Respondent’s
counsel asked Cairns if he was present at a conversation Hunt had with Wilson. Cairns
responded, “Yeah, a few times.” Respondent’s counsel then asked (verbatim): “Specifically,
I’m referring to a telephone conversation --.” Cairns answered, “Heibel Greenhouses, yep.”
Respondent’s counsel asked when the conversation took place. Cairns answered “Two winters
ago.” Respondent’s counsel started to ask another question, and Cairns interrupted and added
(verbatim): “Late fall early 2009, early winter, late fall 2009.” Respondent’s counsel then began
to ask another question, and Cairns interrupted again and said, “Or ’08, 2008. I’m - -” (verbatim).
When asked by the Respondent’s counsel on direct examination how he knew that Hunt
was speaking to Wilson, Cairns testified that Hunt, “about four times into the phone during the
conversation,” said “Cyril.” Cairns testified that he heard “just a couple minutes worth” of the
conversation. The Respondent’s counsel asked Hunt if he recalled what “Mr. Hunt said to Mr.
Wilson” in the conversation. Cairns answered, “It was a pretty heated conversation, but the
general gist of it was that we weren’t going to, we didn’t want to be in the Union any more.”
The Respondent’s counsel asked a second time as to what was said. Cairns testified,
“Basically that we didn’t want to be in, we didn’t want to sign, we didn’t want the new contract.
Like I said, it was pretty heated, but the gist of it was that it was our livelihood and no one was
going to take that away from us, and we didn’t want to be in the Union any more. We didn’t
want the contract.” Then asked by the undersigned what he heard Hunt actually say to Wilson,
Cairn answered, “F*** you, Cyril. You’re not going to take my livelihood. We’re not going to
sign. We don’t want the new contract.” On cross-examination by the counsel for the Acting
General Counsel, Cairns testified that the Hunt-Wilson phone call he overheard occurred during
December 2008, and not 2009, that he entered the area after the conversation had already
begun, and that “we had machines running and, yeah, we couldn’t hear the whole thing.”
Finally, Cairns testified at least one person present in the courtroom, Lloyd,20 was also present
during the phone conversation. Lloyd was not called as a witness.
Hunt also testified he had two or three conversations with Wilson between the
November-December 2008 conversation and August 2009, during which, according to Hunt, he

20 There was no indication as to whether “Lloyd” was a first or last name.
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(Hunt) “basically just re-expressed what I had said in late 2008, that we are done,” and “he
[Wilson] restated his position, “No you can’t.” The Respondent’s counsel asked Hunt, “When he
responded…, did you have a response to him?” Hunt answered, “I just repeated what I had
said originally, that we are done with the Union contract.” According to Wilson, prior to
December 2009,21 nobody from the Respondent communicated to the Union that it wasn’t or
wouldn’t be bound by the 2009–2012 contract.
The Respondent’s counsel asked Hunt, “Now what was the basis for the decision that
you’re done with the Union contract?” Hunt testified, “The economy had worsened. There is no
bargaining. We were sent items with raises on them. Even in a recession, we were looking at
rising prices, we are already looking at, you can’t sell a product for $5 if it costs you $8 to make
it. You can’t continue that way.” Hunt testified that during one or more of the conversations with
Wilson, he told Wilson that he “can’t write checks with money you don’t have.”
As noted above, Wilson denied Hunt’s testimony as to a December 2008 conversation,
and instead testified that a similar conversation occurred in December 2009. According to
Wilson, the conversation’s genesis was a December 1, 2009 letter to the Respondent from the
Union’s funds auditors, sent pursuant to Wilson’s request to the auditors, requesting the
Respondent’s cooperation in auditing its payroll for purposes of fund contributions. Wilson
testified that after the letter was sent to the Respondent by the auditor, Wilson received a phone
call from the Respondent’s president, Hunt.22 Wilson testified that Hunt told him that “he was
done with the contract and he was done with the Union,” that Wilson responded that “it didn’t
work like that,” and that the Respondent “was bound to the agreement until 2012.” According to
Wilson, this conversation was the first time that Hunt told him that the Respondent was “done
with the contract,” but that he had another conversation with Hunt in May 2010, in which Hunt
told Wilson that the Respondent was “done with the Union.”
Subsequent to the December 1, 2009, audit request letter, the Respondent cooperated
with the auditors, and two audits were undertaken, the second as to the period on and after
June 2009. Hunt testified that he cooperated with the second audit even though he didn’t
believe the Respondent was bound to the 2009–2012 contract because he felt under legal
duress.
On March 1, 2010, a “withdrawal of union shop authority” (UD) petition was filed by
Robert Polderman, seeking to remove contractual obligations for the Respondent’s unit
employees to pay dues to the Union.23 On March 13, the Union, and on March 16, Hunt and
Polderman, executed a stipulated UD election agreement, which was approved by the Acting
Director of Region 7 on March 17, 2010. The signed election agreement included the following
wording: “The wording on the ballot shall be: ‘Do you wish to withdraw the authority of your
bargaining representative to require, under its agreement with the employer, that employees
make certain lawful payments to the union in order to retain their jobs?” (emphasis supplied).

21 Prior to the December 2009 conversation between Hunt and Wilson, that Wilson testified
to.
22 Wilson initially testified that he had no idea how long after December 1, 2009, that the
phone call took place.
23 The UD box on the petition, which was checked by the UD petitioner, states as follows:
“UD-WITHDRAWAL OF UNION SHOP AUTHORITY (REMOVAL OF OBLIGATION TO PAY
DUES) - Thirty percent (30%) or more of employees in a bargaining unit covered by an
agreement between their employer and a labor organization desire that such authority be
rescinded.”
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Hunt testified that he read the agreement before he signed it, but that he didn’t necessarily
understand every word. Pursuant to the election agreement, the election was conducted on
April 14, 2010, with the Union losing, and the results were certified on April 22, 2010. However,
there is no evidence that any employees of the Respondent revoked their dues authorizations
subsequent to the election.
Hunt testified that despite the wording on the UD petition, the UD stipulated election
agreement, the UD posted notice of election, and the UD ballot that the purpose of the election
was so that unit employees could decide whether they wished to “withdraw the authority of your
bargaining representative to require, under its agreement with the employer, that employees
make certain lawful payments [dues] to the Union in order to retain their jobs,”24 he believed
that, instead, the issue to be decided at the election was whether the Union would be removed
from “our shop.”25 Hunt further testified that at the time of the UD election, he didn’t believe that
there was a contract in force with the Union, despite contrary wording on the petition and the
election agreement, which he signed.26 In support of all of this testimony, Hunt further testified
that although he signed the UD election agreement, and received the other paperwork
associated with the processing of a UD petition, he didn’t “read through” all of the paperwork
associated with the conduct of the UD election.
About May 21, 2010, Wilson sent a letter, by mail and fax, to various asserted signatory
contractors, including the Respondent, enclosing the Union’s yearly updated “wage page,”
which contained new contractual wage rates for the pay period of June 1, 2010, and specifying
wage rates for various geographic areas. Shortly after the Union sent the letter, Hunt called
Wilson and asked why the wage page was sent to the Respondent. Wilson replied that the
Respondent was still bound to the agreement with the Union, and that he (Wilson) sent the new
wage page to all the contractors.
Then, also on May 21, 2010, Wilson received a letter from Hunt dated May 17, 2010.27
Hunt’s letter stated:
“As you know, we have complied with the request of the auditors
to provide information sufficient to permit them to conduct an audit
of contributions to the…Funds. Our provision of the requested
information was made in good faith, despite our continuing belief
that no monies are due from the company to the fund. We also do
not believe there is a binding collective bargaining agreement in
effect, as the signed contract has expired, so the company has no

24 Language quoted from the UD ballot.
25 Hunt also testified that after the UD petition was filed, the Board Agent assigned to the
case explained to him what a deauthorization petition was, but that he didn’t remember the
Agent’s words. Nevertheless, Hunt testified that “my assumption was that it was my employees
voting the Union out.
26 From numbered paragraph 10 of the signed election agreement: “The wording on the
ballot shall be: ‘Do you wish to withdraw the authority of your bargaining representative to
require, under its agreement with the employer, that employees make certain lawful payments
to the union in order to retain their jobs’.” (emphasis supplied)
27 The letter, addressed to Wilson and the Funds, contains the typed date of May 17. Hunt’s
signature on the letter is also dated May 17, but is hand-printed. However, Wilson credibly
testified that he received the letter on May 21, and the printed fax machine inscription at the top
of the letter also states May 21, 2010.
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contractual obligations to contribute to the fund. In the absence of
a response from you, I will assume that the union is in agreement
with this analysis, particularly in light of the recent NLRB election.”
Hunt testified that he sent the letter to Wilson “to try and trigger a response and get some type
of action moving.” Hunt also testified that this letter is the first written notice given by the
Respondent to the Union indicating the Respondent “was done with the Union.”

Robert Polderman, a witness called by the Acting General Counsel, has been employed
by the Respondent for 11 years in the bargaining unit,28 but also performs other work including
accounts payable, account receivable, and estimating.29 In respect to payables, Polderman
testified that he signs and sends the checks, but that Hunt approves the payments before they
are sent. Polderman testified that while he had regularly sent monthly payments to the Union to
cover fringe benefit fund payments and union dues, he stopped doing such in June 2009.30
Counsel for the Acting General Counsel asked Polderman whether “he had any
conversation with anyone regarding stopping the payment of the fringe benefits and the dues?”
Polderman answered, “I talked to Don Hunt about the accounts receivable and payables
balance.” Counsel for the Acting General Counsel then asked, “And did he respond to you.”
Polderman answered, “He responded that we don’t have any money right now.” Finally,
counsel for the General Counsel asked Polderman “Did Mr. Hunt ever tell you to stop making
the monthly payments to the fringe benefit fund because Hunt-Niebor was no longer bound to
the Union contract?” Polderman answered, “I never had that conversation with him.” Hunt
testified that at some point he told Polderman not to send any more checks to the Union, and
the reason he gave Polderman was that “we were not starting a new contract.”
Analysis and Conclusions
The complaint alleges that the Respondent violated Section 8(a)(5) and (d) by, since
November 25, 2009, failing to continue in effect all the terms and conditions of the 2009–2012
contract with the Union, i.e. remitting checked-off union dues and fringe benefit payments, and
Section 8(a)(5) of the Act by, on about May 21, 2010, repudiating said contract and withdrawing
recognition from the Union. A threshold issue here, thus, is whether, in fact, the Respondent
was ever bound to the 2009–2012 agreement.
Because the complaint allegations are premised on the theory that the Respondent is a
party to the 2009–2012 contract, the substantive allegations would be meritless if the
Respondent is not so bound. Inasmuch as all the parties agree that the Respondent never
formally executed the 2009–2012 contract, whether the Respondent is/was bound to the
contract is dependent on the operation of the 2006–2009 contract’s successor
agreement/notification clause. If, in fact, the Respondent gave the contractually required timely,

28 No party contends that Polderman is a supervisor or is not in the bargaining unit.
29 Polderman was also the UD petitioner.
30 According to union fringe benefit fund records introduced at the hearing, the Respondent
made the fund payment for the “work month” of June 2009, but not thereafter. As to such
payment, Hunt testified, “If Hunt-Nieboer paid fringe benefits…past the time of May 31st, it was
a clerical error.” As set forth in the fund records, the Respondent’s payments for the work
month of June 2009, totaled $956.82, which included $129.53 for dues.
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proper, written notice, then it is not so bound.
In its answer to the complaint, the Respondent stated that it “specifically denies the
existence of a binding collective bargaining agreement for the period of July 1, 2009, through
May 31, 2012.” Respondent’s counsel, in opening argument at the trial, admitted that the
Respondent “did honor the terms” of the 2006–2009 contract, but argued that it was not bound
to the 2009–2012 agreement because “months before the expiration of that agreement, the
company gave verbal notice to the Union that it was done with participation and recognition of
the Union and that it was not going to sign the upcoming agreement,” that such “was done in a
telephone conversation,” and “a similar conversation occurred in May of 2009 (emphasis
supplied).”
Respondent, however, does not argue that it provided any timely written notice to the
Union, pursuant to the 2006–2009 contract, that it was opting out of the contract or was
choosing not to be bound by a future agreement negotiated between the Association and the
Union, and presented no evidence that such written notice was, indeed, ever provided.
Inasmuch as the 2006–2009 contract required such timely written notice, and the Respondent
neither provided proofs nor argument that the Respondent so complied with the contract’s
provisions, I find that the Respondent never fulfilled its contractual mandate in order to opt out of
a successor agreement and, thus, is bound to the 2009–2012 contract. Under these
circumstances, I conclude that the Respondent was, at least initially, bound by the 2009–2012
agreement between the Association and the Union. See, Twin City Garage Door, Co., 297
NLRB 119 fn. 2 (1989).31
However, the Respondent argues that even if it was initially so bound to the 2009–2012
agreement, it, nevertheless, by word and by deed, gave the Union notice outside the Section
10(b) period that it was not honoring and had no intention of honoring the contract. The
Respondent argues that since the Union filed no unfair labor practice charges within 6 months
of, assertedly, being so advised, the instant complaint is precluded by Section 10(b). Inasmuch
as it is uncontested that on May 21, 2010, Hunt, on behalf of the Respondent, sent a fax to the
Union which contained an unequivocal repudiation of the 2009–2012 contract, such action
would violate Section 8(a)(5) of the Act, in view of my conclusion that the Respondent was
bound to the 2009–2012 contract, absent the Respondent prevailing in respect to its10(b)
argument.
It is settled law that a party asserting 10(b) bears the burden of establishing said
affirmative defense. Broadway Volkswagen, 342 NLRB 1244, 1246 (2004). Further, in order
for a charging party to avoid the Section 10(b) timebar, it must file a charge “within six months of
the receipt of clear and unequivocal notice of total contract repudiation.” A & L Underground,
302 NLRB 467, 468 (1991). A “union must file its charge within six months of receiving clear
and unequivocal notice of the repudiation or a complaint based on that conduct will be time-
barred, even with regard to contract violations within the 10(b) period.” Vallow Floor Coverings,

31 Twin City Garage Door, Co., supra, is a Section 8(f) case. Here the complaint alleges
Section 9(a) representative status, which the Respondent, in its answer, neither admits nor
denies. The issue of the Union’s representative status was not litigated, but collective-
bargaining agreements explicitly provided for 9(a) recognition. Regardless of whether the
Union’s representative status is 9(a) or 8(f), any required timely contractual notice of termination
must be provided in order to preclude enforcement of contractual provisions providing for
automatic renewal or extension, I found, consistent with the proofs, that no such timely written
notice was provided by the Respondent.
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Inc., 335 NLRB 20 (2001). A “respondent’s failure to comply fully with some of the provisions of
the contract does not, standing alone, establish that the contract was repudiated.” Adobe Walls,
Inc., 305 NLRB 25, fn.1 (1991). The original charge here was filed on May 25, 2010, and, for
Section 10(b) purposes could, generally, only take cognizance of unfair labor practices
occurring from November 25, 2009 onward.
The Respondent argues that the conversation that Hunt testified occurred in November-
December 2008,32 served as notice to the Union that the Respondent was repudiating the
collective–bargaining agreement.33 The Respondent also argues that an assertedly similar
conversation in May 2009, together with the Respondent’s discontinuance of the contractually
required payments to the Union’s fringe benefit funds constituted further notice to the Union of
the Respondent’s contract repudiation. Thus, the Respondent argues, the Union, assertedly,
had notice in November or December of 2008, and May of 2009, that the Union was repudiating
the contract and that, thus, the complaint herein is time-barred as the charge wasn’t filed until
May 25, 2010.
As to the asserted November-December 2008 conversation, I find that the Respondent
has not carried its burden of demonstrating that the conversation, in fact, occurred prior to
November 25, 2009, and hence, outside the 10(b) period. In this regard, I fully credit Wilson,
the Union’s business manager, that no such conversation occurred in the time period testified to
by Hunt, but instead occurred in December 2009, within 6 months of the Union’s filing of the
initial charge herein.34

32 Of course, Wilson testified that the conversation occurred in December 2009.
33 It, obviously, could not serve as the notice required under the contract, because the
contract required timely written notice. The conversation failed on both accounts.
34 Wilson generally testified in a straightforward manner, answering the questions of all
counsel, including on cross-examination, in a nonargumentative fashion, and demonstrated
good recall of significant events. Wilson’s testimony to the effect that the conversation was
generated by a December 1, 2009 letter to the Respondent from the Union’s fringe benefit fund
auditors requesting an audit of the Respondent’s payroll makes sense and places the
conversation in the context of other events.
I was less impressed with Hunt’s testimony, particularly in respect to questions asked by
counsel for the Acting General Counsel and counsel for the Union. On a number of such
occasions, Hunt gave nonresponsive answers that conveyed the impression of being more
interested in providing answers favorable to the Respondent’s legal position than in simply
providing honest answers to straightforward questions. For example, when asked by counsel
for the Union the straightforward question as to whether or not he was aware that the
Respondent’s attorney attempted to negotiate with the Union’s attorney about the proposed
2009–2012 contract, Hunt nonresponsively answered “As I stated before, we were looking for
closure to the problem that’s put us in court today.” Later during his testimony, counsel for the
Acting General Counsel straightforwardly asked whether, at the time the UD petition was filed,
Hunt had legal counsel. Hunt answered that there “was no use of… legal counsel.” Upon being
instructed to answer the question that was asked, Hunt testified, “I had legal counsel.” Further,
Hunt’s failure to have mentioned the alleged 2008 conversation in his affidavit provided to the
Region during its investigation of the underlying charge, and his testimony that despite signing
the “UD” election agreement and receiving the election materials from the Region, he believed
the issue to be decided by the election was the removal of the Union from the shop, lends
further doubt to his credibility.
Further, while the Respondent’s employee Jeff Cairns was called by the Respondent in
support of Hunt’s testimony, I am troubled by his answers to questions as to when the alleged
Continued
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However, even if the conversation had occurred in December 2008, Hunt testified that
during said conversation he merely told Wilson that the Union would “not move on to the next
contract,” and that “we were done with the Union contract.” Based on this testimony, I construe
Hunt’s asserted comments to Wilson to be directed to whether or not the Respondent would
choose to opt out of the next contract, which it never did. Inasmuch as there is no evidence that
the Respondent had failed in any of its contractual commitments at the time of the conversation,
I find that even if I had concluded that the conversation took place in December 2008, as
testified to by Hunt, nothing in the conversation constituted clear and unequivocal notice to the
Union of total contract repudiation, such as would serve as a bar to the instant complaint.
The Respondent also argues that a conversation between Hunt and Wilson, similar to
the alleged November-December 2008 conversation, occurred in May 2009, and “constituted
clear and unequivocal notice(s) to the Union that the company was no longer recognizing it and
would not be signing a new collective bargaining agreement.”35 This argument is apparently a
reference to Hunt’s testimony that he had two or three conversations with Wilson between the
alleged November-December 2008 conversation and August 2009. Wilson testified that such
conversations occurred in August 2009 and May 2010. For reasons set forth above in my
credibility assessment, I credit Wilson’s testimony as to when the conversations occurred.
But even notwithstanding my crediting of Wilson as to the dates of the conversations,
Hunt’s testimony as to what was said during these alleged two or three conversations with
Wilson does not constitute unequivocal notice of total contract repudiation any more than did the
alleged November-December 2008 conversation. In this respect, Hunt merely testified that he
again told Wilson that he was “done” with the union contract, and that Wilson repeated to him
that the Respondent couldn’t do that.
Nevertheless, Wilson admitted, and I find, that during the August 2009 conversation with
Hunt, Wilson (and the Union) became aware that the Respondent was not making fringe benefit
and dues deduction payments to the Union.36 However, these violations are a discrete failure to
honor certain terms of the collective-bargaining agreement, rather than an outright repudiation
of the contract itself. See the discussion at Vallow Floor Coverings, Inc., supra at 20.37
_________________________
November-December 2008 conversation actually took place. Upon being initially asked by the
Respondent’s counsel when the conversation took place, Cairns answered “two winters ago.”
When counsel moved on and began to ask another question, Cairns interrupted and said, “Late
fall early 2009, early winter, late fall 2009. The Respondent’s counsel then began to ask
another question, and Cairns interrupted again and said, “Or ’08, 2008. I’m - -“. Then, on
cross-examination by the counsel for the Acting General Counsel, Cairns testified that the
conversation occurred in December 2008 (as testified to by Hunt). In view of these inconsistent
answers, I conclude that I cannot rely on Cairns’ testimony as to when the conversation took
place.
35 Quoted from the opening argument of the Respondent’s counsel.
36 This is consistent with Hunt’s testimony that he told Polderman in August 2009 not to
make payments to the Union. Counsel for the Acting General Counsel’s brief, apparently
inadvertently, refers to the Hunt-Polderman conversation as occurring in August 2010.
Polderman testified that he stopped sending checks to the Union, on behalf of the Respondent,
in June 2009.
37 “the distinction the Board drew…between a simple failure to abide by the terms of a
collective-bargaining agreement and an outright repudiation of the agreement itself.”
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During this entire period of time, in which the Respondent argued that it gave the Union
such unequivocal notice of contract repudiation as to time-bar the instant complaint, it engaged
in a series of actions inconsistent with such total contract repudiation. Including allowing the
Union’s fringe benefit funds to audit its books. See, Farmingdale Iron Works, Inc., 249 NLRB 98
(1980). These inconsistent actions also include Hunt’s conversation with Wilson sometime in
2009, during which, Hunt testified, he told Wilson that the contract was too expensive and asked
Wilson to meet with him to discuss possible concessions. Hunt’s request conveys
Respondent’s belief that it was bound to the contract with the Union, and wanted to negotiate as
to obtaining economic concessions from the Union. Absent a belief by Hunt that the
Respondent was bound to the contract, his request of Wilson would have been superfluous.
Similarly, the Respondent’s attorney also sought, on behalf of the Respondent, to
negotiate economic concessions from the Union in 2010. I found that in early 2010, the
Respondent’s attorney contacted Wilson “in an effort to arrange a meeting at which we could
discuss the relief necessary from the current terms and conditions…”, and also wrote to the
Union’s attorney in February 2010 seeking relief from the contractual terms and conditions and
threatening unilateral changes if it couldn’t obtain such relief. These contacts with Wilson and
the Union’s attorney during the effective period of the 2009–2012 contract, are plainly
inconsistent with the Respondent’s position that it had previously given the Union unequivocal
notice of total contract repudiation.
Further, the Respondent again engaged in actions inconsistent with its position that it
had totally repudiated the contract, by the manner in which Hunt dealt with the UD petition filed
with the Board on March 1, 2010. As found, Hunt, on behalf of the Respondent, signed a
stipulated election agreement for the conduct of the election, an agreement which contained
affirmative language referring to the Union’s agreement with the Respondent. Similar language
was contained in the petition itself, the notice of election which the Respondent posted, and the
UD election ballot. Whether or not Hunt utilized legal counsel in reviewing the Board documents
and signing the agreement, he admittedly had such opportunity, and the plain language of all
these Board documents referenced the existence of an agreement between the Union and the
Respondent.38
In applying the law to the above factual conclusions and legal analysis, the Board’s
decision and reasoning set forth in Vallow Floor Coverings, Inc., supra at 20, is instructive. In
reaching its decision, the Board outlined the relevant law as follows: “Although Section 10(b)
bars a complaint based on unlawful conduct occurring more than 6 months before the filing and
service of the charge, the Board has consistently held that the 10(b) period does not commence
until the party has ‘clear and unequivocal notice’ of the violation.” The Board cites A & L
Underground, supra at 469, for this proposition. The Vallow decision continues as follows:
Central to our assessment…is the distinction the Board drew in
A&L Underground between a simple failure to abide by the terms
of a collective-bargaining agreement and an outright repudiation of
the agreement itself. The Board held that when an employer
completely repudiates the contract, the unfair labor practice is
committed at the moment of the repudiation, and the 10(b) period
begins to run when the union has clear and unequivocal notice of

38 Hunt testified that at the time of the UD petition, he had retained legal counsel, but that he
didn’t use the legal counsel to review the Board documents.
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the repudiation. Any subsequent failures or refusals to honor the
terms of the contract do not constitute unfair labor practices
themselves, but are simply the effect or result of the repudiation.
Accordingly, the union must file its charge within 6 months after
receiving clear and unequivocal notice of the repudiation or a
complaint based on that conduct will be time-barred, even with
regard to contract violations within the 10(b) period. Id.
By contrast, the Board in A&L Underground held that if the
employer does not repudiate the contract, but only breaches its
provisions, each successive breach constitutes a separate unfair
labor practice unrelated to previous breaches. Consequently, the
fact that one or more of the breaches occurred outside the 10(b)
period does not bar a complaint alleging contract violations within
the 10(b) period. Id.
Under A&L Underground, then, if the Union had clear and
unequivocal notice, outside the 10(b) period, that the Respondent
was repudiating the contract, the complaint would be time-barred.
If, on the other hand, the Union had clear and unequivocal notice,
outside the 10(b) period, that the Respondent was simply failing to
observe certain terms of the contract, the complaint would not be
time-barred, but the only relief that could be provided would be for
the contract violations that occurred during the 10(b) period.
For the reasons set forth above, I agree with the Acting General Counsel’s argument
that the Union did not have clear and unambiguous notice of the Respondent’s total repudiation
of the contract outside the 10(b) period and, thus, the complaint herein is not time-barred by
Section 10(b).39 However, I further concluded, based on the testimony of Wilson, that the
Union, admittedly, received clear and unambiguous notice from Hunt that it had ceased
submitting dues deductions to the Union and fringe benefit payments to the Union’s fringe
benefit funds outside the 10(b) period. This is not a case where the Union simply noticed that
some payments due from the Respondent were skipped. Here, the Union’s business manager
explicitly, and credibly, testified “Yes”, in response to this question: “So you became aware in
August of 2009 through that conversation with Mr. Hunt that the company was not deducting

39 It could be argued that the Union had clear and unambiguous notice of a total contract
repudiation as of the conversation between Hunt and Wilson that, I found, occurred in
December 2009. Thus, Wilson admittedly learned during his August 2009 conversation with
Hunt that the Respondent had stopped making payments to the fringe benefit funds and
remitting deducted union dues to the Union. During the December 2009 conversation Hunt told
Wilson, according to the credited testimony of Wilson, that the Respondent was done with the
contract and done with the Union. Thus, as of December 2009, the Union knew that the
Respondent had stopped complying with at least two provisions of the contract and the Union
was informed by the Respondent’s owner that the Respondent was done with the contract.
However, even if I had found that such constituted unequivocal notice to the Union of total
contract repudiation, it would not change the result herein as the charge was filed on May 25,
2010, and the entire month of December 2009 was within the 10(b) period. Thus, regardless of
whether the unambiguous notice of total contract repudiation occurred some time in December
2009 or, as found, May 21, 2010, the complaint was not barred by Section 10(b).
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dues and was not making fringe [benefit payments]?”40
Applying the Board’s reasoning in Vallow to my factual findings herein, I conclude that
while the complaint is not time-barred, relief may only be provided for the contract violations that
occurred during the 10(b) period. Accordingly, inasmuch as the Union received clear and
unambiguous notice from the Respondent in August 2009 that it had stopped transmitting
payments to the Union for dues deductions, and to the Union’s fringe benefit funds, I am
precluded from ordering a remedy therefor outside the 10(b) period.41 Inasmuch as the original
charge herein was filed on May 25, 2010, I will only order relief as to the fringe payment and
union dues allegations from November 25, 2009, onward. See, American Thoro-Clean, 283
NLRB 1107, fn. 11 (1987), and Judge Robert Giannasi’s discussion at 1118–1119.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Sections 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. The following employees of the Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act: All
full-time and regular part time cement masons/finishers and concrete laborers,
employed by the Respondent at and out of its 112 South 14th Street, Schoolcraft,
Michigan facility, but excluding all guards and supervisors as defined in the Act, and
all other employees.
4. By failing to remit checked-off union dues to the Union and failing to submit fringe
benefit fund contributions to the Outstate Michigan Trowel Trades Fringe Benefits
Funds since about July 2009 as required by its collective-bargaining agreement with
the Union, the Respondent has failed and refused to bargain in good faith with the
Union, in violation of Section 8(a)(1) and (5) of the Act, and within the meaning of
Section 8(d) of the Act, in violation of Section 8(a)(1) and (5) of the Act.
5. By repudiating its collective–bargaining agreement with the Union about May 21,
2010, and by withdrawing recognition of the Union as the exclusive collective-
bargaining representative of its bargaining unit employees about May 21, 2010, the
Respondent has failed and refused to bargain in good faith with the Union in violation
of Section 8(a)(1) and (5) of the Act.
6. The above violations are unfair labor practices within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated Section 8(a)(1) and (5) of the Act, I shall
recommend that it be ordered to cease and desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act, including complying with the terms of the current
collective–bargaining agreement with the Union, making whole the Union for checked-off union

40 As the last two words of the question were interrupted by the answer, they are supplied by
the undersigned based on context.
41 Again, Wilson credibly testified that he learned this from Hunt in an August 2009
conversation. The original charge herein was not filed until May 25, 2010, about 9 months later.
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dues since November 25, 2009,42 and making whole the Union’s fringe benefit funds for losses
suffered as a result of the Respondent’s failure to make contractually required payments since
November 25, 2009. While the Respondent initially stopped making said payments in July
2009, I will only impose a remedy for such occurrence within the 10(b) period, hence beginning
November 25, 2009. See, A & L Underground, supra at 469. The make whole remedy shall be
computed in accordance with F . W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
It will also be ordered that the Respondent post a remedial notice.
On these findings and conclusions of law, and on the entire record, including my
credibility resolutions, I issue the following recommended43
ORDER
The Respondent, Hunt-Nieboer Concrete Construction, Inc. its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union, in an appropriate unit, by refusing
to apply the terms of its collective-bargaining agreement, including making fringe
benefits contributions to the Union’s fringe benefit funds and remitting checked-off
union dues to the Union.
(b) Refusing to bargain collectively with the Union, in an appropriate unit, by
repudiating its collective-bargaining agreement with the Union or withdrawing
recognition from the Union as the exclusive bargaining representative of its
employees in the bargaining unit.
(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, in violation of
Section 8(a)(1) of the Act.
(d) In any like or related manner refusing to bargain collectively in good faith with the
Union, in violation of Section 8(a)(5) of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) Reinstate and abide by the terms and conditions of the 2009–2012 collective-
bargaining agreement with the Union.
(b) Make whole the Union’s fringe benefit funds for losses suffered as a result of the

42 As noted above, there is no evidence that any of the employees revoked their dues
authorizations pursuant to the affirmative deauthorization vote and, hence, the Respondent has
not been relieved of its contractual authorization to remit such checked-off dues to the Union.
See, Sunshine Biscuits, Inc., 165 NLRB 167, 168 (1967).
43 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the Board shall, as provided in Sec. 102.48 of the Rules, adopt the findings,
conclusions, and recommended Order and all objections to them shall be deemed waived for all
purposes.
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Respondent’s failure to make contractually required payments since November
25, 2009, with interest compounded on a daily basis as set forth in the Remedy
section.
(c) Make whole the Union for losses suffered as a result of the Respondent’s failure to
remit to the Union checked-off union dues since November 25, 2009, with interest
compounded on a daily basis, as set forth in the Remedy section.
(d) Recognize, and bargain collectively in good faith with the Union as the exclusive
collective-bargaining representative of employees in the bargaining unit.
(e) 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
designated by the Regional Director, all payroll records, Social Security payment
records, timecards, personnel records, and reports, and all other records, including
electronic copy of the records if stored in electronic form, necessary to analyze the
amount of backpay due under terms of this Order.
(f) Within 14 days after service by the Region, post at its Schoolcraft, Michigan facility
copies of the attached notice marked “Appendix.”44 Copies of the notice, on forms
provided by the Regional Director of Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other materials. 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. In
the event that, during the pendency of the proceedings, the Respondent has gone
out of business or closed the facility involved in this proceeding, the Respondent
shall duplicate and mail, at its expense, copies of the notice to all employees and
former employees of the Respondent at any time since November 25, 2009.
Dated, Washington D.C. December 17, 2010
_____________________
Mark D. Rubin
Administrative Law Judge

44 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–72–10
Schoolcraft, MI
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 on your behalf.
Act together with other employees for your benefit and protection.
Choose not to engage in any of these activities.
WE WILL NOT repudiate our collective-bargaining agreement with Local 16, Operative
Plasterers’ and Cement Masons’ International Association (OP&CMIA), AFL–CIO (Union),
during the term of that agreement.
WE WILL NOT fail to make contractually required contributions to fringe benefit funds on behalf
of all our employees covered by a collective-bargaining agreement between us and the Union.
WE WILL NOT fail to remit to the Union the dues we have checked off from your wages
pursuant to a valid dues check-off authorization, unless you have revoked your check-off
authorization.
WE WILL NOT refuse to recognize and bargain collectively in good faith with the Union as your
representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL honor all terms of the collective-bargaining agreement with the Union, which expires
May 31, 2012.
WE WILL make whole the Union, and the Union’s fringe benefit funds, with interest
compounded daily, for any losses they may have suffered as a result of our failure to comply
with our collective-bargaining agreement with the Union, by failing to remit your checked-off
union dues and payments due the Union’s fringe benefit funds, since November 25, 2009.
WE WILL recognize and bargain in good faith with the Union, as your collective–bargaining
representative.
JD–72–10
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Hunt-Nieboer Concrete Construction Inc.
(Employer)
Date________________ By:___________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.