County Concrete Corporation

National Labor Relations Board - Administrative Judge Opinions

Apr 18, 2017

22-CA-171328 (N.L.R.B. Apr. 18, 2017)

JD(NY)-08-17
Kenvil, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
COUNTY CONCRETE CORPORATION
and Case No. 22-CA-171328
LOCAL 863, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Michael P. Silverstein, Esq.
for the General Counsel
Brian P. Shire, Esq.
Jennifer S. Abrams, Esq.
(Sussanin, Widman & Brennan, P.C.
Wayne, PA)
for the Respondent
Kenneth I. Nowak, Esq.
(Zazzali, Fagella, Nowak
Kleinbaum & Friedman, P.C.
Newark, NJ)
for the Charging Party
DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. Based upon charges filed by Local 863,
International Brotherhood of Teamsters (Union), on July 22, 2016, complaint and notice of
hearing (complaint) issued in this matter alleging that County Concrete Corporation
(Respondent or the Employer) violated Section 8(a)(1) and (5) of the Act by making a unilateral
change in the dates for the payment of union dues under a collective-bargaining agreement
entered into by Respondent and the Union, and failing and refusing to remit certain dues
payments. In its answer to the complaint, Respondent denied the material allegations of the
complaint and has raised certain affirmative defenses, as will be discussed below.
A hearing in this matter was held before me on October 28, 2016 in Newark, New Jersey.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Union and the Respondent, I make
the following
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Findings of Fact
I. Jurisdiction
At all material times, Respondent has been a corporation with an office and place of
business in Kenvil, New Jersey, where it is engaged in the provision, sale and transport of
ready-mix concrete and other construction materials from facilities located in Kenvil, Morristown,
Oxford, Sussex, East Orange and Flemington, New Jersey.
During the 12-month period preceding the issuance of the complaint, Respondent has
purchased and received at its facilities listed above goods valued in excess of $50,000 directly
from suppliers located outside the State of New Jersey.
Respondent admits, and I find that at all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
Respondent further admits and I find that at all material times, the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair labor Practices
Background
The Employer’s corporate officers are majority stockholder and President John Crimi and
Vice-President John Scully. Kurt Peters has been, at material times, the Employer’s in-house
counsel.
On May 12, 2009, based upon a card-check, the Employer voluntarily recognized the Union
as the exclusive collective bargaining representative for its drivers, mechanics, laborers and
heavy equipment operators employed at facilities located in Oxford, East Orange, Sussex,
Kenvil, Morristown and Landi, New Jersey.
The parties commenced negotiations for an initial collective-bargaining agreement in June
2009. The parties agreed that they would use, as a template, a prior contract with IBT Local
408, which had previously represented the employees of the Employer. This agreement
resolved a number of issues, one of which was a dues check-off clause. Bargaining focused on
economic issues about which there was disagreement such as wages, pensions and health
insurance. Eventually it was agreed that each of the Employer’s facilities would have its own
contract, with most of the provisions as set forth in the template being the same, and any
differences based upon the nature of the work performed at each facility, would be reflected
therein, In addition, each facility would have its own wage rates.
The template had a dues deduction provision which provided, in pertinent part, that: “during
the life of this agreement the employer agrees to deduct once each month from the employees’
wages and remit to the Union monthly dues.” This language was identical in all the template
agreements for each facility.
At various times throughout the bargaining process, the Employer presented the Union with
so-called final offers, which the Union rejected. After each of these occasions bargaining
resumed.
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The 2015 Collective-Bargaining Agreement(s)
In May 2015, the Employer communicated another “final offer” to the Union. This offer was
submitted to employees and on November 8, 2015, the membership voted to ratify this final
offer. The offer itself did not contain any reference to dues check-off language.
Shortly after the ratification vote, Union Secretary-Treasurer Alphonse Rispoli (who had
represented the Union during bargaining) telephoned Employer counsel Desmond Massey to
inform him that the contract proposal had been ratified. There was agreement that the effective
dates of each of the collective bargaining agreements that had been agreed upon would be
November 8, 2015.
Rispoli testified that he spoke with Massey about distributing dues check off authorization
applications to employees to allow for dues deductions to commence. Massey said that if
Rispoli would bring the applications to his office, he would see to it that the Employer received
and distributed them.
Rispoli further testified he spoke with Crimi at some point during the week of November 9.
Rispoli testified that Crimi agreed to use November 8 as the effective date of the agreements
and that Massey would draft the contracts. The parties agreed that the date when dues
deductions would begin would be January 1, 2016, because of the holidays and the fact that
certain employees were then on layoff status.
On December 22, 2015, Peters sent the following communication to Rispoli:
Enclosed please find two execution copies of each of the collective bargaining
agreements for County Concrete’s five bargaining units.
These agreements are substantially the same as the CBA’s that had previously been
provided to you. As you requested we have deleted the section that had been labeled
“intentionally delete.” We have also added the effective date of November 8, 2015
(which you have told us is the date the members ratified the CBAs) and set January 1,
2016 as the start date for dues. Exhibit B, which sets forth the co-pays, has also been
updated to reflect the current co-pay amounts.
Please execute both copies and return them to me so I can have John Crimi sign them
when he returns from his vacation. If you have any questions, please feel free to contact
me.
Rispoli signed the contracts sent to him by the Employer and returned them by express mail
to Peters on January 13, 2016.
The Distribution and Collection of Dues Authorization Forms and Related Communications to
Employees
Rispoli then asked for the Employer’s assistance in getting dues check off applications
signed by employees. Crimi told Rispoli to send the applications to Peters, the Employer’s in-
house counsel, which he did, noting in an accompanying letter that dues deductions would
begin in January 2016.
Crimi testified that following the ratification vote a number of employees spoke with him and
stated that they didn’t know what they needed a union for and did not want to pay union dues.
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After consultation with counsel, the following memorandum (the SWB Memorandum) was
distributed to employees by the Employer:
Teamsters Local 863 and County Concrete recently entered into a Collective Bargaining
Agreement governing the terms and conditions of employment for County’s bargaining
unit employees. One of the provisions contained in the CBA is a “Union Security” clause
that requires all employees to be members of the Union as a condition of employment.
County’s bargaining unit employees can satisfy this requirement by becoming a:
(1) FULL TIME MEMBER of the Union, or
(2) FINANCIAL CORE MEMBER (otherwise called a “dues paying only, nonmember.”)
Teamsters Local 863 must represent the employees whether they are a Full-Member or
a Financial Core Member.
Full Members pay all periodic dues and fees assessed by Teamsters Local 863.
Financial Core Members only pay the periodic dues and fees that relate to negotiating
and administering the collective bargaining agreement. Financial Core Members cannot
attend union meetings, hold union office or vote in a union election.
If County’s employees would like more information regarding their obligation to pay
union dues under the “Union Security” clause of the CBA and/or whether Teamsters
Local 863 is charging the employees the correct amount for dues, you should direct your
employees to contact the following United States Government Agency:
[contact information for Region 22 provided]
In early December, Peters called Rispoli and advised him that upon advice of counsel the
Employer would not be distributing dues check off applications. This telephone call was followed
by a confirmatory letter dated December 4, 2015. In this letter Peters returned the dues check
off applications and told Rispoli that he would, if necessary, provide the Union with contact
information for the unit employees.
The Union then requested an updated seniority list from Peters, which he furnished on
December 16, 2015. The Union then sent two of its business agents, Chuck O’Mara and Lou
Sanchez, to the Employer’s various facilities to distribute dues check off authorizations to the
shop stewards at each facility. Rispoli began receiving reports that the employee census
provided by Peters contained names of supervisors and those no longer working at the facility.
Rispoli questioned Peters about the accuracy of the employee list and Peters agreed to
send to the Union a more accurate list of unit employees. The Union still had difficulties with the
list provided by the Employer but nevertheless collected approximately 100 signed applications
from employees during the month of December 2015. The Union continued to collect cards in
January 2016 as well.
The form distributed by the Union to Respondent’s employees is comprised of two sections.
The first is entitled “Application for Membership” and states:
Desiring to become a member of the above Local of the International Brotherhood of
Teamsters, AFL-CIO, I hereby make application for admission to membership so that the
duly elected officers of said Union may represent me for the purposes of collective
bargaining with my employer in reference to working conditions, hours of labor, rates of
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pay and other terms and conditions of employment.
I hereby authorize my employer to deduct my dues from my wages and pay them to
Local 863 in accordance with any agreement made between my employer and the Union
and this authorization shall be my warrant to my employer for said purposes and shall be
irrevocable for the period of time permitted by law.
I further agree that upon acceptance of this application for membership I will pay the
regularly required dues and assessments and will abide by the rules, regulations,
constitution and by laws of Local 863 and The International Brotherhood of Teamsters,
AFL-CIO.
There is another, separate, section to the document distributed to employees entitled
“Checkoff Authorization and Assignment” which provides as follows:
I _______ [Print Name], hereby authorize my employer to deduct from my wages each
and every month an amount equal to the monthly dues, initiation fees, and uniform
assessments of Local union 863,and direct such amounts so deducted to be turned over
each month to the Secretary-Treasurer of such Local Union for and on my behalf.
This authorization is voluntary and is not conditioned on my present or future
membership in the Union.
This authorization and assignment shall be irrevocable for the term of the applicable
contract between the Union or for one year, whichever is the lesser, and shall
automatically renew itself for successive yearly or applicable contract periods thereafter,
whichever is lesser, unless I give written notice to the company and the union at least
sixty (60) days, but not more than seventy-five (75) days before any periodic renewal
date of this authorization and assignment of my desire to revoke same.1
There is evidence that the foregoing dues check off authorization forms were also
distributed to employees by shop stewards John Hutchings, Jr. and Vinnie Modafferi. Bargaining
unit employee Dean Walgren testified that Modafferi (who is now deceased) provided the form
and spoke with him about it.
Walgren testified as follows:
He gave me an application and he said that I needed to fill it out or I couldn’t work at
County Concrete because it’s now unionized. And I needed to actually fill that out. And
when I took that I was under the impression that we’s – we would be core members.
And I had talked to him about that. And he says that really was not an option, because it
wasn’t. That core members weren’t really a member.
When Walgren was asked whether he approached County Concrete management that he
wanted to be, or was electing to be a financial core member, Walgren stated that these
conversations occurred later –“quite a ways down the road.” He stated that such discussions
might have occurred in January of February of “this year.” Walgren also testified that he had
discussions with Scully about core or membership dues. All in all, it’s not entirely clear from the

1 As Respondent notes, this document does not provide employees with their right to elect
financial-core status.
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record whether his discussions regarding this matter took place in January or February of 2016
or 2017.
Relevant Contract Terms
On December 22, 2015, Peters mailed to Rispoli copies of 5 collective-bargaining
agreements for his signature. In a cover letter Peters wrote: “these agreements are substantially
the same as the CBA’s that had previously been provided to you. We have also added the
effective date of November 8, 2015 (which you have told us is the date the members ratified the
CBAs) and set January 1, 2016 as the start date for dues. Please execute both copies and
return them to me so I can have John Crimi sign them when he returns from his vacation.”
Article 2 of the proposed collective-bargaining agreements each contain an identical “union
security clause” as follows:
Any present or future employee who is or hereafter becomes a member of the Union
shall remain a member of the Union during the terms of this Agreement as a condition of
his employment and condition of his employment and continued employment. New
employees may be hired by the Employer on the open labor market, but each new
employee shall be required to join and remain a member of the Union upon the
expiration of the Probationary Period (as defined in Article 20)2. Such employees shall
be acceptable as members in good standing upon payment of the customary initiation
fee and current monthly dues to the Union. Customary initiation fees shall be waived for
all covered employees that were employed by County Concrete as of the date of this
Agreement. The Employer agrees that it will not discriminate in any manner against any
employee because of his membership or activity in or on behalf of the Union.
Article 3 of each CBA contains the dues check off language, and provides as follows:
This Article 3 is effective January 1, 2016. Thereafter and during the remainder of the life
of this Agreement (commencing after the Probationary Period set forth in Article 20) the
Employer agrees to deduct once each month from the employees’ wages and remit to
the proper officers of the Union monthly dues and imitation fees as membership dues
uniformly levied by the International Union or by the Local Union in accordance with the
Constitution and By-Laws of the Union, of such members of the Union as individually
and voluntarily certifying in writing, in form required by law, that they authorize such
deductions. An abstract of such deductions showing the name and amounts deducted
from each employee will accompany the monthly remittance to the Secretary-Treasurer
of the Union or a duly designated representative.
The Alleged Failure to Remit Dues
The Employer failed to remit dues money to the Union for the month of January, 2016. In a
telephone discussion held among Rispoli, Peters and Scully, the Respondent said they wanted
to get the seniority list straightened out first. Peters and Scully stated that the Employer would
collect dues authorization forms from employees. There was also a discussion of the dues
amount. Rispoli informed Employer representatives that the applicable formula was 2.5 percent
of the employee’s hourly rate plus $1.00. Rispoli later spoke with Crimi later in January 2016. At

2 The “probationary period’ is defined as: “the first ninety (90) days of employment for all new
employees, excluding absences on work days, and as may be otherwise be mutually extended.”
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this time, Crimi suggested that it would be a good idea to waive the January 2016 dues. In this
regard, Crimi testified as follows:
Q: [by Respondent’s counsel]: Okay. Did you have any conversations with Al Rispoli in
January 2016 regarding the dues obligations of County’s employees?
A: A number of conversations.
Q: Can you please tell us what those conversations entailed?
A: Well, Al was concerned about collecting his dues and I told him we don’t know what dues
to take out, because we don’t know what’s going on. There -- did not have a proper census.
There were no dues signed. And the financial core membership had thrown everything
lopsided, where they didn’t know what to do, the men. In the meantime the Union hadn’t
given us the information of what dues to take out.
Q: When you say the Union didn’t give you the information as to what dues to take out, what
do you mean by that?
A: Well, the Union sends you a schedule to take the dues out. So we had no ability to take
anything out. We didn’t know what they were to be paid or who we were to take the dues
from.
Q: And that was in January –
A; It was –
Q: 2016?
A: In January, that’s correct.
Q: Okay. Did you have any other conversations with Mr. Rispoli?
A: That’s the same situation that came about in February.
Q: Let’s stick with January 2016.
A: Stick with January. Al had said to me that he’s wave [sic] the January dues.
Q: When did he say this to you?
A: Sometime in January. I don’t remember the date.
Q: Did he say why he was waiving the January dues?
A: Well, everything was in flux. We didn’t even know what dues to take out. So how could
you take dues out of a member’s thing if you don’t know what to take or who – or if they’re
financial core or they [are a ] full member.
Crimi then went on to testify that he could not recall whether the conversation where
Rispoli said he would be waiving dues took place before or after Respondent received
signed authorization cards from the Union. As he stated: “I don’t recall. It was in the course
of our – a number of conversations Al and I had.”
Rispoli, who was in the courtroom when Crimi offered the foregoing testimony testified
on rebuttal and acknowledged that Crimi had suggested waiving the dues for January 2016.
According to Rispoli, his response was, “No fucking way.”
On January 20, 2016, Lorraine Graziano, one of the Union’s administrative assistants, sent
via email copies of the approximately 122 cards the Union had collected by that point. On
January 26, Scully responded requesting information about how many workers were full-time
members and how many were financial core members. He also asked for the dues calculation
for each category.
On February 3, Graziano wrote to Scully that she would be sending the monthly dues check
off for February 2016, which would list the amount of member dues and asked for the social
security numbers of certain employees
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Additional cards were sent by the Union and on or about February 3, 2016, the Employer
acknowledged in writing that it had received 125 cards, but since there were 146 employees at
the time, they could not deduct dues for the remaining 21 employees. Peters, writing on behalf
of the Employer requested the names of employees who had selected financial member status
and the amount of the dues to be collected from these employees. The Union received this
communication on February 8.
On February 6, 2016 the Union sent to the Employer a complete remittance form for dues,
listing each person for whom they had a card, their wage rate and the dues owed.
By mid-February 2016, the Employer had not yet provided the Union with a signed copy of the
collective-bargaining agreements, nor had they remitted any dues payments to the Union.
Rispoli called Peters and asked where the contracts were and Peters replied he was working on
it. Rispoli asked when the Union would be receiving the dues payments and Peters replied that
he was attempting to get the rest of the applications and Scully was working on it.
Crimi testified that he had a number of conversations with Rispoli during the month of
February regarding the dues payment obligations:
The most particular one is I talked to Al about the fact that again, God rest his soul, Vinnie
was going around to all the employees in the sand plant at Kenvil telling them that if they’re
a financial core member that they’re not going to be represented by the Union. They can’t go
on Union jobs, they can’t do this, they can’t do that. And now the whole company in the area
is up in flame again. And I talked to Al.
I said you have to have Vinnie stop that. He can’t keep doing that, because first of all it’s
untrue. And so that’s the conversation I had with him. And Al said I’ll have him stop it.
I then took the paper we received from your law firm and had John Scully sit down with
every single employee with that form in front of him with their rights and declare what they
wanted. Yes, full member or financial core member. So now there was no question in
anyone’s mind because they had to sign.
They read it, they signed it and we submit it to Al. And now we knew exactly what it was
without [coercion] No one pushing them one way or the other and that’s how it happened.
The Alleged Unilateral Change
On February 26, 2016, Peters sent a letter to Rispoli as follows:
As discussed, John Scully of County Concrete is collecting the signatures of your
members on the Check Off Authorization and Assignment cards to enable us to
withhold monthly union dues. We are expecting to have all of your members sign
by the end of February 2016.
Given this fact, the date in Article III (the date dues will be initially collected) of
the Collective Bargaining Agreements must be changed in all of the CBA’s to
March 1, 2016. Mr. Crimi will initial this change in the CBA’s and we ask you to
do the same.
Many of your members have questioned us as to the amount of the monthly dues
paid by a Full-Member versus a Financial Member. You had previously provided
us with the monthly amount for a Full Member of two times the hourly rate plus
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$1.00,3 and for a Financial Member the rate is unknown.
After receiving this letter, Rispoli called Peters. As Rispoli testified, Peters told him he had
not been able to get ready for February 2016 and would change the dues deduction to start in
March 2016. Rispoli testified that he challenged Respondent’s authority to change the contract
and maintained that the agreement was for dues to be taken out and remitted as of January 1
and that the Union would not agree to any change in the date.
Rispoli then called Crimi, who expressed surprise that the Union had not yet received the
contracts because he had signed them. Shortly thereafter Rispoli did receive the contracts. The
version submitted to the Union by Respondent had the January date crossed out in Article 3 and
in its place there was a handwritten notation: “March.” In the cover letter accompanying the
signed contracts, Scully wrote that, “[a] small change has been made on page Two (2) Article 3.
Mr. Crimi has changed the dues check off date from January 1, 2016 to March 1, 2016 to reflect
the date of the initial execution of the CBAs by both parties. Mr. Crimi has initialed next to the
hand written changes. Please initial the changes in your set of the CBAs and forward us a copy
of page two (2) so that we can update our copies of the CBAs.”
Rispoli returned the contracts to Respondent but had his assistant write the word “January”
back into Article 3.
On March 9, 2016, the Union emailed Scully its check off spreadsheet outlining dues
payments owed for March 2016. This spreadsheet contained separate ledgers for those
employees who selected financial core status and those employees who selected full member
status. Financial core status employees paid anywhere between $37 and $42 per month for
dues whereas full members paid between $46 and $52 per month in dues.
It is undisputed that by the end of January 2016, Respondent had in its possession 125
dues authorization check off cards and did not remit dues for any employee for either January or
February 2016. Dues for the month of March were remitted in April.
Crimi testified that he directed Scully to show every bargaining unit employee the SWB
memorandum and have them confirm on their check off authorization card whether he or she
elected full membership or financial-core status.
Crimi further testified that he did not execute the collective-bargaining agreement until the
end of February 2016 for the following reasons:
I was very upset that I’m the one who brought my company back home to 863 and we
couldn’t get to the point to agree on the dues thing. And it got really upsetting to me and I
wasn’t going to go forward with this Local in a peaceful manner. It wasn’t fair to my men and
women.
Contentions of the Parties
As an initial matter, Counsel for the General Counsel argues that a collective-bargaining
agreement is formed where there is a meeting of the minds on all substantive issues and
material terms of the contract, and the General Counsel bears this burden of proof. Counsel
argued that the Union and Employer reached a meeting of the minds on the dues check-off

3 The applicable wage rate as cited by the Employer in its letter was apparently incorrect.
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clause (Article 3) and the remaining elements of the CBA where both parties agreed the
effective date of contract was November 8, 2015, the Employer drafted 5 CBAs in accordance
with the agreed-upon terms, forwarded the contracts to the Union for execution, and the cover
letter specified that the Employer inserted January 1, 2016 into the dues check-off clause as the
start date for dues collection (reflecting the agreement of the parties, as set forth above). Thus,
General Counsel argues that the drafts reflected agreement on all substantive issues and the
Employer was not authorized to change any agreed upon terms without first obtaining approval
of the Union.
General Counsel further argues that the Employer should have retroactively remitted
requested dues to the Union because by the beginning of February 2016, the Employer already
received 125 dues deduction authorization cards. Counsel for the General Counsel relies upon
two Board cases4 where the Board held employers “were obligated to remit dues even when the
union did not timely present dues cards,” and argued that in the present case the Union did
timely present the cards. Thus, this unilateral refusal to remit dues violated Section 8(a)(5) of
the Act.
General Counsel additionally contends that, for the remaining unit employees, it was the
Employer’s tactics that delayed the authorization card collection. These involved: refusing to
assist in the collection of cards where they first agreed to distribute them, purposely providing
an inaccurate seniority list, and deciding at last that it will, in fact, collect authorization forms
from all employees.
Finally, Counsel for the General Counsel has anticipated that the Employer will argue
that Section 302(c)(4) of the Act privileged its refusal to remit the January 2016 and February
2016 dues. Although Section 302(c)(4) requires a written authorization before dues are
deducted, the Board in Gadsden Tool, supra, has stated that this section of the Act “cannot be
used as a shield when the Employer’s 8(a)(5) violations necessitate a remedy for this unlawful
conduct.” General Counsel has argued even it were to be found that Section 302(c)(4) is
persuasive, “the record is clear that the Employer received in January approximately 100
applications that were signed in December 2015,” thus the January 2016 and February 2016
dues should have been deducted as had been previously authorized by these employees.
General Counsel contends that, just as the Employer retroactively made payments for March
2016 in April 2016, they could have made the January 2016 and February 2016 dues payments.
For the 82 employees who signed applications in December 2015, the Union’s March 6, 2016
dues spreadsheet quoted the exact amount of monthly dues owed as initially requested in the
February 6, 2016 spreadsheet for these respective employees.
The Union has argued that dues deductions are a mandatory subject of bargaining and
an employer may not make a unilateral change in the contract, during the term thereof, without
first negotiating with the union representing its employees and obtaining its consent. It is argued
that such consent was never given to changing the applicable term of the agreement. In
particular, the Union argues, contrary to the testimony of Crimi, that Rispoli never waived the
collection and remittance of dues for January. No such written evidence of any such waiver was
presented and even in the February 26, 2017 letter when Respondent informed the Union in
writing that it was making a change, it did not refer to any purported waiver of dues in January.
In support of their argument, Respondent relies upon cases which stand for the proposition that,
“a waiver will not readily be inferred and there must be a ‘clear and unmistakable showing that

4 See e.g., Gadsden Tool, Inc., 340 NLRB 29 (2003); Williams Pipeline Co., 315 NLRB 630
(1994).
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the waiver occurred.”5
Further, the Union points out that an employer violates section 8(a)(1) and (5) by
ceasing to deduct and remit dues during an existing contract.6 As a remedy, the Board in
Bulkmatic Transport Co.7 found, prospectively, the company is to deduct dues from the
employee; however, for the period of the violation the company must reimburse the union for its
failure to do so with interest.
The Union further points to Shen-Mar Food Products, Inc.8, where the Board found a
violation of the Act where a “company improperly injected itself into the relationship between the
employees and the [u]nion” and wrongly “threw its weight” against the union, thereby
undermining the union. There the Board found, unilaterally refusing to cease to deduct and remit
dues to the union during the term of the contract even where there is confusion about
employees’ union or dues status, violates the Act. Thus, the Union has argued that the
Employer here has improperly injected itself and threw its weight behind one choice, where they
issued memos about core dues and met with employees to advise them of their choices, which
is an issue between a union and its bargaining unit employees.
Respondent argues, as an initial matter, that the collective-bargaining agreement was
not executed between the parties until February 26, 2016. Respondent maintains that the Board
has long held that the date of the contract’s execution and not any previous effective dates
govern the union security clause.9 Therefore, the Union would be entitled to assess and collect
dues in March 2016, which would be the first paycheck following February 26, 2016.
Respondent has also argued that the Union never provided the employees with notice of
their rights under General Motors10 and Beck11 until March 2016. The Supreme Court in Beck
and General Motors found, prior to collecting union fees and dues, a union must notify the
employee that he or she has the right to be or remain a nonmember, and notify them of their
rights as a nonmember12. The Respondent further argued that nowhere on the application for
membership or on the authorization cards did the Union notify the employees of their right to
elect financial-core status or challenge their dues under this status, or provide any other rights
under Beck. Moreover, Respondent has argued that the Board has repeatedly held absent
notice of his or her Beck rights “an employee’s decision to elect full membership status with the
union is not knowing or voluntary and the union is prohibited from assessing and collecting dues
form such employees.”
Respondent has argued that an employer is justified in refusing to deduct dues where
check-off authorizations that are not freely and voluntarily obtained are unenforceable, and

5 See e.g., Beacon Piece Dyeing & Finishing Co., 121 NLRB 955, 956 (1958); Metropolitan
Edison Co. NLRB, 460 U.S. 693, 708 (1983).
6 See e.g., Shen-Mar Food Products, 221 NLRB 1329 (1976).
7 See e.g., Bulkmatic Transport Co., 340 NLRB 621 (2003).
8 Shen-Mar Food Products, 221 NLRB 1329 (1976).
9 See e.g., M.J. Santulli Mail Services, Inc., 281 NLRB 1288, 1294 (1986).
10 NLRB v. General Motors, 373 U.S. 734 (1963).
11 Communication Workers v. Beck, 487 U.S. 735 (1988).
12 Rights include: (1) to object to paying for union activities not germane to the union’s duties as
bargaining agent and to obtain a reduction in fees for such activities; (2) to be given sufficient
information to enable the employee to intelligibly decide whether to object; and (3) to be
appraised of any internal union procedures for filing objections.
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maintains this was the case for January and February 2016. Authorizations are not free and
voluntary where a union threatens employees with discharge if they refuse to sign dues check
off authorization cards. The Respondent further argues that the Union violated the Act where
agents of the Union told the employees while handing out the Union’s membership applications
that the “employees could not pay financial-core dues and could only be full members of the
union or else they couldn’t work.” Therefore, the Respondent argued that they were justified in
waiting until the cards were freely and voluntarily obtained, which was not until February 26,
2016.
Respondent has also argued it genuinely believed some (if not all) of the check off cards
it received from the Union were not freely, knowingly, and voluntarily made by its employees.
Therefore, the Respondent’s decision to withhold dues deductions until they knew which
authorization cards were unenforceable and or valid was justified. In their reasoning, the
Respondent argued that the employee list that was submitted by the Union stated all employees
elected full-membership status, however, the Respondent personally knew of a few employees
who expressed interest in being financial-core members. Therefore, the Employer conducted its
own investigation and confirmed with each employee of their desired status, and rectified 18
misclassified check off authorizations. Thus, pursuant to Section 302(c)(4) of the Taft-Hartley
Act, the Respondent could not deduct dues until February 26, 2016, where they received valid
and accurate express authorization cards.
Finally, the Respondent argues with respect to whether the Union verbally waived any
dues obligation that may have existed for the employees in January 2016, Crimi’s testimony
should be credited and Rispoli’s testimony should be rejected. The Respondent further argues
that Crimi’s testimony is corroborated by direct evidence: (1) the absence of a remittance
spreadsheet submitted by the Union for January 2016 strongly suggests that the union did not
intend to collect dues for that month, where it is their practice to send the spreadsheet to the
employer; and (2) the February 2016 spreadsheet contains three separate categories of data:
“LAST PYMT” “MONTHS OWED” and “PAID THROUGH.” The box under “PAID THROUGH,”
states “2016-01” and when asked what the numbers referred to, Rispoli testified that the
notation “2016-01” meant that the employee had satisfied his or her dues obligation for January
2016.13
III. Analysis and Conclusions
There are certain undisputed facts here:
The parties agreed that the effective date of the collective-bargaining agreements would
be November 8, 2015, but that under Article 3 of the contracts, dues deductions would
commence on January 1, 2016. In December 2015, the Employer prepared, and sent to the
Union for signature, five collective-bargaining agreements. All contained the agreed-upon date
of January 1 for the commencement of dues deductions and the Union signed these contracts
and returned the contracts with that provision.
By the beginning of February, the Union had provided the Employer with dual purpose
membership and dues authorization cards for 125 employees, many of which had been
collected and forwarded to the Employer in January. Cards for an additional 21 employees

13 The transcript reflects that although, Mr. Rispoli initially stated “right” with respect to the
question of whether 2016-01 meant the member paid through January 2016, he then corrected
himself and stated “No, I’m sorry. It’s says owed or through.”
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remained outstanding.
The Employer failed to sign its counterpart to the agreements until the end of February,
at which time it notified the Union stating that it was changing the commencement date for the
deduction of dues to March.
In early March 2016, the Employer sent to the Union a signed contract with a
handwritten change in the date for dues from January to March 1, 2016. The Union did not
agree and reinstated the January 1 date and returned the collective-bargaining agreements to
the Employer.
It is also undisputed that the Employer failed to deduct and remit dues until sometime in
April.
It is well-established that a collective bargaining agreement is formed after a meeting of
minds on substantive issues and material terms. See Sunrise Nursing Home, Inc., 325 NLRB
380, 389 (1998). This is measured “not by parties’ subjective inclinations, but by their intent as
objectively manifested in what whey said to each other.” Crittendon Hospital, 343 NLRB 717,
718 (2004). Under Section 8(d) of the Act, either party to a collective-bargaining agreement is
obligated to execute, or assist in executing, a memorialized version of the agreement, if
requested to do so by the other party. H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941).
Here, there is no doubt that such a meeting of the minds regarding the terms and
conditions of a collective-bargaining agreement had been reached. The Employer cannot
reasonably dispute this, as they agreed to draft the agreements with an effective date of
November 8, 2015 and a date for dues deductions and remittances to commence on January 1,
2016. These agreements were sent to the Union in December 2015 and thereafter, in January
2016, executed and returned to the Employer by the Union.
I agree with the General Counsel and the Union that once these agreements were
signed and returned to the Employer, neither party was privileged to change any of the agreed-
upon terms without the consent of the other party.
I do not credit Crimi’s testimony to the effect that Rispoli agreed to waive the January
dues. In this regard, I find Crimi’s testimony on this issue to be vague and otherwise
unsubstantiated. If this was such a critical issue, I conclude that he would have a more concrete
recollection of how and when this conversation took place, and would have memorialized it in
some fashion. Further, I note that in its February letter to the Union, Respondent failed to
mention any such agreement, which it surely would have done had such an amendment to the
collective-bargaining agreement been reached. Moreover, any purported agreement for January
fails to take into account Respondent’s failure to remit dues for the month of February (or those
of March until April).
Respondent attempts to defend its actions by asserting coercion on the part of the Union
in obtaining the membership and dues authorization forms. The evidence regarding this is
unavailing. The record, as discussed above, demonstrates that several shop stewards were
involved in obtaining signed authorizations from employees. One employee offered testimony
that a shop steward told him that he would not be able to become a financial core member.
However, he also offered contradictory testimony that the issue did not come up until the
following year. Taking this evidence in the light most favorable to the Respondent, I cannot find
this to be sufficient evidence of employee coercion to invalidate the well over 100 dues
authorization cards obtained by the Union in January 2016. Moreover, I note that there was no
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unfair labor charge filed against the Union relating to any such conduct and cannot appropriately
make such a finding here.
Respondent further attempts to defend its conduct by raising the Beck issue. While it is
the case generally that the Board has found that notice to employee nonmembers of a union
must be given at the time the union first seeks to collect dues and fees,14 again, no such charge
was filed and the issue of any unfair labor practice on the part of the Union here is not properly
before me. Moreover in this instance the record reflects that employees were advised of their
option to become core rather than full members of the Union. Further, it is worth noting that an
employee’s right with regard to union membership, full or otherwise, is separate and distinct as
to whether they authorize the deduction of moneys owed to a union, regardless of status,
through their payroll, as is reflected in the dual purpose cards which were distributed to
employees.
Respondent further defends its conduct by referring to certain cases which assert that
any dues obligation under a union security clause starts to accrue from the date of contract
execution and not the date to which the contract was retroactively made. In Peoria Newspaper
Guild, Local 86, 248 NLRB 88, 91 (1980), the Board noted that the Act does not sanction the
retroactive application of a union security clause. There the union was found to have unlawfully
threatened with discharge and sought the discharge of an employee who had resigned his
membership in the union at a time when a contract binding him to continued membership was
not in force.
In that case, where the differences in factual circumstances to those here are apparent,
the Board made note of looking to the language of the union security clause in question which
did not support the contention made by the respondent therein that the contract’s retroactive
date, rather than its execution date was controlling. Here, there is no evidence to support the
conclusion that Respondent could properly rely upon the contract’s execution date (which was
in its exclusive control), rather than its agreed-to effective date to give the clause effect. The
language at issue in the union security clause here refers to membership during the “terms of
this Agreement.” It is apparent from the letter sent by Peters to the Union that there was a
meeting of the minds regarding such terms.
Respondent further relies upon Local 32B-J, SEIU, 266 NLRB 137 (1983), where it was
found that the respondent union violated the Act by causing the employer to deduct and transmit
dues of employees for a period prior to 30 days after the execution of their collective-bargaining
agreement. In that case, after a certification of representative, there was a negotiated
agreement between the employer and the union, which was finalized in a letter of acceptance
on March 27, 1981. During the months of March and April, most of the employees in the
bargaining unit signed dual purpose cards for the union. The employer maintained that pursuant
to an agreement with the union, dues deductions were to commence on March 1, 1981;
however, the union alleged that dues were to commence retroactively to July 1, 1980. In finding
an unfair labor practice, the Board noted that while an employee may voluntarily pay dues for a
period prior to the execution of a collective-bargaining agreement, such freedom of choice had
not been afforded to the employees in that instance. Inasmuch as no contract had existed prior
to March 27, 1981, when the employer and the union executed the agreement, no obligation to
pay or remit dues existed.

14 Paperworkers Local 1033 (Weyerhauser Paper Co.), 320 NLRB 349 (1995), rev’d on other
grounds, Buzenius v. NLRB, 124 F.3d 788 (6th Cir 1997), vacated, United Paperworkers Int’l
Union v. Buzenius, 119 S. Ct. 442 (1998).
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Here, however, whatever limited support such authority might offer to Respondent is
obviated by the fact that it was the Respondent’s dilatory tactics which delayed the execution of
the collective-bargaining agreement at issue. After all, it was Respondent who sent the
contracts at issue to the Union in December 2015 for execution – with the jointly agreed upon
date of January 1, 2016 for the commencement of properly authorized employee dues
deduction and transmission. The Employer then delayed its own execution of the agreement
and incorporated a unilateral change. And, it is the unilateral change of the agreed-upon
contract term which is the sole issue in these proceedings. Respondent’s unlawful unilateral
change is not condoned by the fact that certain employees may not have submitted properly
executed dues check off forms by the date the relevant contract term was to have taken effect
or by other conduct as has been alleged. See e.g. Gadsen Tool, Inc., 340 NLRB 29, 30 (2003).
Rather, the only question goes to the scope of the financial remedy: i.e. when the dues
authorization forms were executed and submitted, thereby triggering Respondent’s obligations
under the collective-bargaining agreement.15
Accordingly, I conclude that the Respondent has violated the Act, as alleged in the
complaint.
Conclusions of Law
1. By making a unilateral change to agreed-upon collective bargaining agreements
covering bargaining unit employees in its Oxford, East Orange, Sussex, Kenvil, Morristown and
Landi, New Jersey facilities, by modifying the effective date of a dues check off authorization
provisions contained therein, Respondent has violated Section 8(a)(5) and (1) of the Act.
2.By, for the period from January 1, 2016 through March 1, 2016, failing and refusing to
collect properly authorized dues from employees in the bargaining units represented by the
Union in the facilities noted above and by failing to remit such dues to the Union, Respondent
has violated Section 8(a)(5) and (1) of the Act.
3. The unfair labor practices described above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I recommend that Respondent be ordered to reimburse the
Union, with interest as prescribed in New Horizons, 283 NLRB 1173 (1987) for dues that the
Respondent was required to but failed to collect and remit under the terms of the collective-
bargaining agreements for each facility at issue herein.

15 It is apparent from the record that such forms were submitted to Respondent on a rolling basis. To the
extent certain employees had not authorized payroll deductions in January and February (or not at all);
such matters regarding Respondent’s financial obligations to the Union are appropriately left to the
compliance stage of these proceedings. Similarly, I find that any issue regarding Respondent’s financial
obligations relating to employee choice of financial core status is appropriately deferred to that stage of
these proceedings as well.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended16
ORDER
The Respondent, County Concrete Corporation, Kenvil, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Making unilateral changes to agreed-upon collective bargaining agreements covering
bargaining unit employees in its Oxford, East Orange, Sussex, Kenvil, Morristown and
Landi, New Jersey facilities,
(b) Failing and refusing to collect properly authorized dues from employees in the
bargaining units represented by the Union in the facilities noted above and by failing to
remit such dues to the Union.
(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 effectuate the policies of the Act
(a) Reimburse the Union, with interest as prescribed in the remedy portion of this decision
for dues that the Respondent was required to but failed to collect and remit under the
terms of the collective-bargaining agreements for each facility at issue herein.
(b) Within 14 days after service by the Region, post at its facilities in Oxford, East Orange,
Sussex, Kenvil, Morristown and Landi, New Jersey, copies of the attached notice
marked “Appendix.”17 Copies of the notices, on forms provided by the Regional Director
for Region 22, after being signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted. In
addition to the posting of paper notices, the 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 customarily communicates with their employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, 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 January 1, 2016.

16 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
purposes.
17 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice readj35ing “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.”
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(c) 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 18, 2017

Mindy E. Landow
Administrative Law Judge
JD(NY)-08-17
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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT make unilateral changes to agreed-upon collective bargaining agreements
covering bargaining unit employees in our Oxford, East Orange, Sussex, Kenvil, Morristown
and Landi, New Jersey facilities,
WE WILL NOT fail and refusing to collect properly authorized dues from employees in the
bargaining units represented by the Union in the facilities noted above and WE WILL NOT fail to
remit such dues to the Union,
WE WILL NOT In any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL reimburse the Union, with interest, for properly authorized dues that we were required
to but failed to collect and remit under the terms of the collective-bargaining agreements for
each facility as described above.
COUNTY CONCRETE CORPORATION
(Employer)
Dated 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.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
973-645-2100, Hours: 8:30 a.m. to 5 p.m.
JD(NY)-08-17
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/22-CA-171328 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.
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, (862) 229-7055.