Gem Management Co.

National Labor Relations Board - Board Decisions

Jun 30, 2003

339 N.L.R.B. 489 (N.L.R.B. 2003)

GEM MANAGEMENT CO. 489
Gem Management Company, Inc. and Local 67, Op-
erative Plasterers’ and Cement Masons’ Inter-
national Association, AFL–CIO and Bricklay-
ers’ and Allied Craftsworkers’ Local Union No.
1, International Union of Bricklayers and Allied
Craftsworkers, AFL–CIO and Bricklayers and
Allied Craftsworkers’ Local Union No. 9, Inter-
national Union of Bricklayers and Allied
Craftsworkers, AFL–CIO. Case 7–CA–44509
June 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On November 1, 2002, Administrative Law Judge Eric
M. Fine issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt his recommended Order as modified.3

1 There are no exceptions to the judge’s unfair labor practice find-
ings and conclusions.
2 The General Counsel has excepted, inter alia, to the judge’s find-
ings that the Respondent was not bound by the June 1999 and Novem-
ber 2000 amendments to (respectively) the 1997 and 2000 collective-
bargaining agreements (the ACT agreements) between the Architec-
tural Contractors Trade Association (ACT) and Charging Party Plaster-
ers Local 67.
We find it unnecessary to pass on whether the Respondent was
bound by the June 1999 amendment to the 1997 ACT agreement, be-
cause resolution of that question would not affect the remedy.
We agree with the judge, for the reasons set forth in fn. 19 of his de-
cision, that the Respondent was not bound by the November 2000
amendment to the 2000 ACT agreement. We find that the judge cor-
rectly interpreted the language in the Respondent’s October 1999
“Agreement for Non-Association Members” (the “me-too” agreement,
set out in full in sec. II of the judge’s decision) as not encompassing the
November 2000 amendment, and we adopt his analysis. By its letter
agreement of October 1999, the Respondent became bound to the then-
extant 1997–2000 contract. However, a reasonable reading of the
language is that it binds the Respondent to changes to the 1997–2000
contract, and to the 2000 contract, but not to changes to the 2000 con-
tract. Contrary to our colleague, we find that the proper inquiry is
whether the language of the me-too agreement clearly established that
non-member signatories were bound to amendments to or modifications
of succeeding ACT agreements. We agree with the judge that it did
not. We disagree with our colleague’s contrary view that the test is
whether a “reasonable inference” can be drawn that the Respondent
bound itself to modifications of later contracts. Nor do we agree with
our colleague’s view that contractual language in the 2000 ACT agree-
ment compels a different result. The 2000 ACT agreement provides
that it “may only be modified, in writing, by the mutual consent of the
parties.” This language merely addresses the mechanism for contract
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, GEM
Management Company, Inc., Clare, Michigan, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(a) and
reletter the subsequent paragraphs accordingly.
“(a) Honor the terms of the 2000 ACT agreement dur-
ing the term of the agreement and any automatic renewal
or extension of it, including by paying contractually re-
quired wages and fringe benefits.
“(b) Make whole, with interest, the unit employees for
any loss of wages and other benefits they may have suf-
fered as a result of its failure to abide by the 2000 ACT
agreement, and any automatic renewal or extension of it,
since May 1, 2001, as set forth in the remedy section of
the judge’s decision.
“(c) Make all contractually required fringe benefit fund
contributions, if any, that have not been made on behalf
of unit employees since May 1, 2001, and reimburse unit
employees for expenses ensuing from its failure to make
the required payments in the manner set forth in the rem-
edy section of the judge’s decision.

modification. It does not address who will be bound by such modifica-
tions or, specifically, whether nonmember signatories to the separate
me-too agreement would be bound by such modifications. In sum, we
agree with the judge that “me too” agreements are to be strictly con-
fined to their precise terms, and that neither the language in that agree-
ment, nor the 2000 ACT agreement, are precise enough for us to con-
clude that Respondent agreed to be bound to modifications (including
the November 2000 amendment) to the 2000 ACT Agreement.
Contrary to his colleagues, Member Walsh finds that the Respondent
was bound by the November 2000 amendment to the 2000 ACT
agreement. He finds a reasonable inference that the parties intended the
language in the October 1999 “me too” agreement binding the Respon-
dent to “any successor agreements negotiated by [ACT and Plasterers
Local 67]” to encompass modifications which they negotiated to those
successor agreements as well. In Member Walsh’s view, that language
more broadly encompasses any future agreements negotiated by ACT
and Plasterers Local 67 in the collective-bargaining context—
specifically here, the negotiated and agreed-upon November 2000
amendment to the 2000 ACT agreement. In fact, the 2000 ACT agree-
ment contains a provision, in Article VI, which expressly contemplates
that such amendments could be negotiated by the parties: “This Agree-
ment may only be modified, in writing, by the mutual consent of the
parties.” Member Walsh finds it more likely that the parties intended
such a construction, rather than one that would bind the Respondent to
the successor 2000 ACT agreement itself, but not to subsequent negoti-
ated amendments to that agreement.
3 We shall modify the judge’s recommended Order to conform to the
remedy section of his decision and to the Board’s standard remedial
language.
339 NLRB No. 71
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 490
“(d) Remit to Plasterers 67 the dues that employees
through signed checkoffs authorized it to deduct from
their wages, together with interest thereon, as provided in
the remedy section of the judge’s decision.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
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 vio-
lated the Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT withdraw recognition from Local 67,
Operative Plasterers’ and Cement Masons’ International
Association, AFL-CIO (Plasterers 67) during the term of
the collective-bargaining agreement between Plasterers
67 and Architectural Contractors Association (ACT),
with effective dates of June 1, 2000, through May 31,
2003 (the 2000 ACT agreement), and during the term of
any other agreement to which we are bound with Plaster-
ers 67, absent timely notice to that union.
WE WILL NOT fail to apply the terms of the 2000 ACT
agreement or refuse to recognize Plasterers 67 as the
employee representative in the following appropriate
unit:

All of our full-time and regular part-time journeymen
and apprentice plasterers doing work described in Arti-
cle IX, Section 2, of the 2000 ACT agreement em-
ployed at jobsites located in Michigan in Wayne, Oak-
land, Lapeer, Macomb, and St. Clair counties.

WE WILL NOT pay fringe benefits to the Bricklayers’
and Allied Craftsworkers’ Local Union No. 9, Interna-
tional Union of Bricklayers and Allied Craftsworkers,
AFL-CIO (Bricklayers 9), contractual benefit funds and
solicit Bricklayers 9 to sign up employees for work at
jobsites covered by Plasterers 67’s collective-bargaining
agreement and where Bricklayers 9 does not have a col-
lective-bargaining agreement.
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 the terms of the 2000 ACT agreement
during the term of the agreement and any automatic re-
newal or extension of it, including by paying contractu-
ally required wages and fringe benefits.
WE WILL make whole, with interest, the unit employ-
ees for any loss of earnings and other benefits they may
have suffered as a result of our failure, since May 1,
2001, to abide by the 2000 ACT agreement and any
automatic renewal or extension of it.
WE WILL make all contractually required fringe benefit
fund contributions, if any, that have not been made on
behalf of unit employees since May 1, 2001, and reim-
burse unit employees for expenses ensuing from our fail-
ure to make the required payments, with interest.
WE WILL remit to Plasterers 67 the dues that employ-
ees through signed checkoffs authorized us to deduct
from their wages, with interest.
WE WILL make all our employees whole for all dues
and fees paid by employees, who performed work for us
at the Extended Stay America jobsite in 2001 in Macomb
County, Michigan, that were paid to Bricklayers 9 for
work falling within the above-described bargaining unit,
except for payments that are shown to have been nonco-
ercive.

GEM MANAGEMENT COMPANY, INC.

Judith A. Schulz, Esq., for the General Counsel.
Thomas H. Weiss, Esq., of Mount Pleasant, Michigan, for the
Respondent.
Frederick B. Gold, Labor Relations Consultant, of Farmington
Hills, Michigan, for the Charging Party union.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was
tried in Detroit, Michigan, on June 5, 2002. The charge and
amended charge were filed by Local 67, Operative Plasterers’
and Cement Masons’ International Association, AFL–CIO
(Plasterers 67) resulting in the complaint which issued February
28, 2002, against Gem Management Company, Inc. (Respon-
dent). Bricklayers’ and Allied Craftsworkers’ Local Union No.
1, International Union of Bricklayers and Allied Craftsworkers,
AFL–CIO (Bricklayers 1) and Bricklayers’ and Allied Crafts-
workers’ Local Union No. 9, International Union of Bricklayers
and Allied Craftsworkers, AFL–CIO (Bricklayers 9) were each
named as parties at interest in the complaint. However, neither
of the Bricklayers locals made an appearance in these proceed-
ings. The complaint alleges that Respondent, an employer
GEM MANAGEMENT CO. 491
engaged in the building and construction industry, signed an
agreement with Plasterers 67 on October 2, 1999, granting rec-
ognition to that union as the exclusive collective-bargaining
representative of a unit appropriate for collective bargaining,
and thereby entered a collective-bargaining agreement with
Plasterers 67 for the period of June 1, 1997, to March 31, 2000,
without regard to the majority status of that union being estab-
lished under Section 9(a) of the Act. It is alleged that the rec-
ognition required that Respondent be bound to subsequent
agreements, the most recent covering the period of June 1,
2000, to May 31, 2003. It is alleged that since October 2, 1999,
under Section 9(a) of the Act, Plasterers 67 has been the exclu-
sive collective-bargaining representative of the employees in
bargaining unit set forth in the complaint and that Respondent
failed to apply the collective-bargaining agreement for all the
bargaining unit work described in that agreement and failed to
pay benefits required by the agreement to Plasterers 67 and to
the bargaining unit employees in violation of Section 8(a)(1)
and (5) of the Act. It is alleged that on June 2, 2000, Respon-
dent entered into a collective-bargaining agreement with Brick-
layers 1, containing a union-security clause and that Respon-
dent has applied the collective-bargaining agreement entered
into with Bricklayers 1 to Plasterers 67’s unit work and is pay-
ing the benefits provided for in that agreement. It is also as-
serted that Respondent has paid money to Bricklayers 9 to
cover fringe benefits for employees covered by its agreement
with Plasterers 67. It is alleged that by this conduct Respon-
dent has been rendering unlawful assistance to labor organiza-
tions in violation of Section 8(a)(1) and (2) of the Act.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Plasterers 67, and Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, engages in construction with
a facility in Clare, Michigan, where during the preceding 12
months of the filing of the charge, Respondent purchased goods
and materials valued in excess of $50,000 from Midwest Build-
ing Supply which purchased those materials from out-of-state
suppliers. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that Plasterers 67, Bricklayers 1, and
Bricklayers 9 are each labor organizations within the meaning
of Section 2(5) of the Act.

1 On June 10, 2002, following the close of the hearing, Respondent
tendered as Jt. Exh. 8 a Michigan Department of Transportation map of
Michigan for admission into evidence. No party having objected Jt.
Exh. 8 is received into evidence.
II. ALLEGED UNFAIR LABOR PRACTICES2
George Moore is the president and sole shareholder of Re-
spondent, which came into existence as a corporation in 1999.
Respondent is primarily engaged in the installation of a syn-
thetic form of plaster. Respondent performs work throughout
the State of Michigan. Respondent’s work force fluctuates
from 1 to 50 employees, with an average of 6 to 8 on staff.
Respondent’s plasterers apply the synthetic plaster and Re-
spondent consistently employs at least a couple of employees
performing this work.
Moore signed an agreement on February 9, 1999, agreeing to
be bound to the Michigan Council of Employers’ 1997 to 2000
agreement with Bricklayers 9 (the 1997 MCE agreement).3
Moore testified that, based on his signing the 1997 MCE
agreement, he later became bound to Bricklayers 9’s agreement
with the MCE running from the period of June 22, 2000, to
August 1, 2003 (the 2000 MCE agreement). The 2000 MCE
agreement states in article II, that “[t]his Agreement shall be in
effect within the boundaries of the State of Michigan, excluding
all the counties in the Upper Peninsula and excluding the coun-
ties of Wayne, Oakland, Macomb, and Monroe in the Lower
Peninsula. All other Michigan counties are included.”
Former Plasterers 67 Business Manager Charles Novak was
a member of Plasterers 67’s bargaining committee for the nego-
tiation of collective-bargaining agreements with the Architec-
tural Contractors Association (ACT).4 Novak, on behalf of
Plasterers’ 67, executed a collective-bargaining agreement with
ACT with effective dates of June 1, 1997, through May 31,
2000 (the 1997 ACT agreement). The agreement states that
ACT was formerly known as the Detroit Association of Wall
and Ceiling Contractors. The 1997 ACT agreement contains a
union-security clause requiring employees who are union mem-
bers on the effective date of the agreement to remain members
as a condition of employment. New employees were required
to become union members following the 8th day of their
employment as defined in the agreement. The 1997 ACT
agreement provides, in pertinent part:

Article IX entitled “Jurisdiction” Section 12. “Detroit
Trade Area”:
The area in which these working rules apply is all of
Wayne County and those parts of Macomb and Oakland
counties which lie south of Thirteen Mile Road.

2 In making the findings below, I have reviewed the complete record,
considered established and admitted facts, the inherent probabilities,
and have considered the testimony and demeanor of all witnesses.
Testimony in contradiction to that which my factual findings are based
has been considered but discredited. My failure to credit certain as-
pects of a witness’s testimony does not mean that I have rejected all of
their testimony. See NLRB v. Universal Camera Corp., 179 F.2d 749,
754 (2d Cir. 1950). As necessary, specific credibility resolutions will
be discussed in more detail in the body of this decision.
3 Bricklayers 9 maintains a location in Saginaw, Michigan. A copy
of the 1997 MCE agreement was not placed in evidence.
4 Plasterers 67 employed Novak until he retired in January 2001.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 492
On June 30, 1999, Novak and a representative of ACT signed
off on an amendment to the 1997 ACT agreement which ex-
panded Plasterers 67’s territorial jurisdiction. The amendment
provides as to article IX, section 12 that “[t]he geographic terri-
tory governed by this agreement consists of Wayne, Oakland,
Lapeer, Macomb and St. Clair Counties.”
Novak testified that, toward the latter part of 1999, he met
with some of Respondent’s employees at one of its jobsites.5
This prompted Novak to call Moore and state Moore would
have to enter into an agreement with Plasterers 67 in order to
work in the area. Moore told Novak that he had a collective-
bargaining agreement with Bricklayers 9 in Saginaw, Michi-
gan.6
Novak testified that he mailed Moore a copy of the 1997
ACT agreement, the June 30, 1999 amendment to the 1997
ACT agreement, and the agreement’s signature page for nonas-
sociation members.7 However, when Novak was shown a copy
of the nonassociation member signature page with Moore’s
signature dated October 2, 1999, he was unable to explain why
the document contained fax transmission identification for both
Respondent and Plasterers 67. On review of the document,
Novak testified that it was possible that he faxed rather than
mailed Moore the signature page, which Moore signed and
faxed back to him. Nevertheless, Novak maintained that he
was sure that he mailed the 1997 ACT agreement and its June
30, 1999 amendment to Moore.
The document Moore signed on October 2, 1999, and faxed
to Novak on October 8, 1999, is entitled, “AGREEMENT FOR
NON-ASSOCIATION MEMBERS.” It reads as follows:

This is to certify that I have read the Agreement be-
tween the Detroit Association of Wall and Ceiling Con-
tractors and Plasterers’ Local Union No. 67 and I agree to
be bound by all provisions contained in this Agreement
and any changes that may be made in the future by mutual
consent of said parties for the life of this Agreement and
any successor agreements negotiated by them.
I hereby specifically submit to the jurisdiction of the
joint Negotiating Committee and further agree that, with
regard to the provisions of the Agreement relating to the
settlement of grievances, the Association Representatives
shall be deemed my Representative.

Moore testified that in October 1999, Novak told him that
Plasterers 67’s jurisdiction was Wayne, Macomb, Oakland, and
Monroe Counties south of 13 Mile Road and that Bricklayers 1
has jurisdiction north of 13 Mile Road. Moore testified that he
received a copy of the signature page for “Agreement for Non-
Association Members” of the 1997 ACT agreement from No-

5 Novak’s testimony, due to the lack of specificity of his recollec-
tion, vacillated as to the time and location of this meeting.
6 Novak testified that, at that time, Plasterers 67’s jurisdiction did not
include Saginaw. When shown a copy of the 2000 MCE agreement,
during his testimony, Novak testified that the scope of Bricklayer 9’s
jurisdiction set forth in the agreement surprised him.
7 Novak initially testified that he thought that he mailed two amend-
ments to Moore, but then stated that the second amendment was entered
into at a later date. Novak could not recall whether he sent a cover
letter to Moore with the documents.
vak by fax, that he signed it and faxed it back to Novak. He
testified that Novak did not mail him a copy of the 1997 ACT
agreement until 4 months after Moore signed the “Agreement
for Non-Association Members” in October 1999.8 Moore testi-
fied that Novak never provided him with a copy of the June 30,
1999 amendment to the 1997 ACT agreement.
The forgoing reveals certain variances between the testimony
of Novak and Moore. Considering their demeanor, the content
of their testimony, and the documentary evidence, I have cred-
ited Moore that Novak faxed rather than mailed him a copy of
the signature page for the 1997 ACT agreement. Moore signed
the document on October 2, 1999, and faxed it back to Novak
on October 8, 1999. I find little else of Moore’s testimony
about this transaction to be worthy of belief. The document
Moore signed on October 2, 1999, specifically states he had
read Plasterers 67’s collective-bargaining agreement. How-
ever, despite this written acknowledgement, Moore testified
that he did not receive the document until 4 months later.9
Moreover, Novak signed an amendment to the 1997 ACT
agreement on June 30, 1999, expanding Plasterer 67’s jurisdic-
tion to all of “Wayne, Oakland, Lapeer, Macomb and St. Clair
Counties,” and I do not believe that Novak, in these circum-
stances would have purposely mislead Moore by telling him in
October 1999 that Plasterers 67’s jurisdiction was limited to
those counties south of 13 Mile Road as Moore testified. I also
do not credit Moore’s claim that they discussed Bricklayers 1’s
jurisdiction. First, Respondent did not have a contract with
Bricklayers 1 at the time of this conversation. Second, the terri-
tory of Bricklayers 1 that Moore claims Novak related to him
varies from the territorial jurisdiction contained in the contract
that Moore subsequently signed with Bricklayers 1.
On the other hand, Novak’s testimony because of poor recol-
lection was not as precise as it might have been. He was cor-
rected as to the location of the jobsite on which he initially saw
Respondent’s employees working, and he belatedly admitted
that he may have faxed Moore the signature page for the 1997
ACT agreement rather than mailing it to Moore with two other
documents as he initially testified. He failed to testify that he
informed Moore that there was a June 30, 1999, amendment to
the 1997 ACT agreement during their conversation and his
record keeping was poor in that he was not aware of whether he
sent Moore a cover letter which would have shown the date and
description of any documents he sent to Moore. In these cir-
cumstances, and in the face of Moore’s denial, I do not find that
8 Moore testified that he reviewed the 1997 ACT agreement when he
received it, but that he did not really read it for its jurisdictional lan-
guage.
9 While the nonassociation members agreement Moore signed on
October 2, 1999, references the Detroit Association of Wall and Ceiling
Contractors which was the prior name of ACT, Respondent does not
dispute that Moore’s signature bound Respondent to the 1997 ACT
agreement. In this regard, Moore did not protest the name change to
the union when he received the 1997 ACT agreement and he testified
that he followed the agreement for a period of time. Moreover, by
letter dated November 30, 2001, to the Regional Office, Respondent’s
attorney, Thomas Weiss, acknowledged that Respondent had an agree-
ment with Plasterers 67, and on March 12, 2002, Moore signed off on a
letter to Plasterers 67 providing for Respondent’s termination of the
1997 ACT agreement with that union.
GEM MANAGEMENT CO. 493
the General Counsel has established that Novak mailed a copy
of the June 30, 1999 amendment to the 1997 ACT agreement to
Moore.
On May 31, 2000, Novak signed off on a new collective-
bargaining agreement between Plasterers 67 and ACT (the
2000 ACT agreement). The 2000 ACT agreement has a June 1,
2000 effective date and a May 31, 2003 expiration date. The
2000 ACT agreement provides that, “[t]he geographic territory
governed by this agreement consists of Wayne, Oakland,
Lapeer, Macomb and St. Clair Counties.”
In November 2000, Novak and ACT President George Stripp
signed off on an amendment to the 2000 ACT agreement. The
amendment, has an effective date of November 21, 2000, and
changed article IX, section 12, to read as follows:

Section 12. Territorial Coverage of the Agreement

The geographic territory governed by this Collective
Bargaining Agreement consists of Wayne, Oakland,
Lapeer, Macomb, St. Clair, Washtenaw, Sanilac and
Livingston Counties excluding in Livingston County the
townships of Conway, Cohoctah, Deerfield, Handy, Hart-
land, Osceola, Tyrone and Howell and the City of Howell.

Novak testified that he mailed all signatory contractors, in-
cluding Respondent, a copy of: the 2000 ACT agreement, a 2-
page summary of the agreement, and the November 2000
amendment to the agreement. However, Moore denied receiv-
ing these documents in the mail.10 I do not find that the Gen-
eral Counsel, in the face of Moore’s denial, has established that
Novak mailed Moore these documents. In this regard, Novak
had no specific recollection of mailing them to Moore other
than his testimony that he mailed these documents to all signa-
tory contractors based on a list Novak maintained at the union
hall. However, Novak’s list of contractors was not produced at
the hearing, nor were any cover letters produced verifying that
the documents were mailed to individual contractors. More-
over, I was not impressed with the quality of Plasterers 67’s
record keeping in that a list of signatory contractors maintained
by Novak’s successor in 2002 inexplicably omitted Respon-
dent’s name as well as the names of other contractors.
Novak testified that Plasterers 67 does not operate an exclu-
sive hiring hall. Rather, signatory employers can call Plaster-
ers’ 67 for referrals of employees, or they can hire employees
off the street, who are required to become union members un-
der the collective-bargaining agreement’s union-security provi-
sion.
On June 2, 2000, Moore signed off on a collective-
bargaining agreement with Bricklayers 1. Article II, section 1
of the agreement provides that Respondent recognizes Brick-
layers 1 for all persons employed performing plasterers’ work:

. . . on all present future jobsites within the geographic area of
Wayne, Oakland, Macomb, and Monroe Counties, Michigan,
based upon the fact, acknowledged by the Employer to be

10 Moore testified that he first saw the 2000 ACT agreement in Re-
spondent Attorney Thomas Weiss’ office 6 or 7 months before the June
5, 2002 unfair labor practice trial, and that he did not see the November
21, 2000 amendment until around a month or two before the trial.
true, that the Union has represented and continues to represent
a majority of those employees within the meaning of Section
9(a) of the National Labor Relations Act. The Employer fur-
ther agrees that any dispute concerning its obligation to rec-
ognize the Union as sole and exclusive bargaining representa-
tive will be resolved solely under Article XIV, Grievances.
The Employer expressly waives any right to abrogate or repu-
diate this agreement during it effective term or to seek a Na-
tional Labor Relations Board election during the term of this
Agreement.11

Terry Van Allen replaced Novak as the business manager for
Plasterers 67 in January 2001. In early June 2001, Van Allen
came across one of Respondent’s jobsites in Lapeer County for
work being performed at the Lapeer Vocational Technical
School (the LVTS jobsite). The plasterers on the job told Van
Allen they were not being paid Plasterers 67’s contract rates.
Van Allen threatened the superintendent of the general contrac-
tor with a picket line. However, Van Allen did not picket the
jobsite. Van Allen testified Plasterers Local 67 did not receive
contractual fringe benefits or dues from Respondent for work
performed at this jobsite.12
Moore wrote Van Allen a letter, dated June 25, 2001, which
reads as follows: “Attention Local 67: As of June 25, 2001,
GEM Management no longer wishes to have an agreement with
your local.” On July 20, 2001, Van Allen wrote Moore and
referenced Moore’s June 25, 2001, letter while stating that
“[a]ccording to the termination language in the Collective Bar-
gaining Agreement we did not receive your letter in a timely
fashion. Therefore Gem Management is still bound by the
agreement.”
Around August 2001, Van Allen found a jobsite located just
south of 13 Mile Road in Macomb County where Respondent
was performing work at an Extended Stay America Hotel (the
ESA jobsite). Van Allen testified that the project lasted around
3 months and that there were employees on the site performing
work covered by Plasterers 67’s contract. However, Plasterers
67 did not receive dues or fringe benefits for this project. Van
Allen testified that he met Respondent’s attorney, Thomas
Weiss, at the ESA jobsite around October 14, 2001. Van Allen
testified that, “I threatened for a picket line and nobody wanted
a picket line on a project. I said well, I will not picket the job if
you give me a copy of the contract.” Van Allen testified that,
when he met Weiss at the ESA jobsite, Bricklayers 9 represen-
tatives may have been there and Van Allen was aware that
Bricklayers 9 members were performing work at the site.
Weiss faxed Van Allen a letter dated October 16, 2001. The
letter states that Respondent’s contract with Bricklayers 1 is
dated June 2, 2000, and that jurisdiction clause covers Wayne,
11 While Moore did not sign off on Bricklayers 1’s agreement until
June 2, 2000, the agreement by its terms expired on May 31, 2000. The
agreement does contain an automatic renewal provision absent 60 days
written notice prior to the expiration date. It also contains a provision,
absent proper notice, binding an employer to any subsequent agreement
reached between that union and management committee named in the
contract.
12 Moore testified that it was his opinion that Lapeer County was
covered by Bricklayers 9’s agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 494
Oakland, Macomb, and Monroe Counties. The letter had two
pages of the Bricklayers 1 agreement attached. Van Allen testi-
fied that prior to receiving Weiss’ October 16 letter, he had no
knowledge that Respondent had entered into an agreement with
Bricklayers 1.
Weiss testified as a witness for Respondent.13 Weiss testi-
fied Moore called him in October 2001, told him there was a
labor dispute at the ESA jobsite and asked Weiss to go to the
jobsite and meet with business agents of Bricklayers 9. Weiss
met Bricklayers 9 officials in the ESA hotel lobby and Van
Allen was there. Weiss testified an argument ensued and he
then conversed with Van Allen in an empty guest room. Van
Allen asked Weiss to furnish him with some documents from
other unions, which Weiss faxed to Van Allen. Weiss testified
that, during the conversation, Van Allen told him that Plasterers
67’s jurisdiction “covered the area South of 13 Mile Road.”
Weiss testified that the ESA jobsite was just south of 13 Mile
Road. At that time, Van Allen provided Weiss with a copy of
the 2000 ACT agreement. Weiss testified that that was the first
time that he received any documentation concerning this mat-
ter.14
Moore testified that he is aware that there were two of Re-
spondent’s projects for which Plasterers 67 asserted jurisdiction
and for which there was a dispute. He testified that the Lapeer
County job was outside of Plasterers’ 67’s jurisdiction as de-
fined in the preamended 1997 ACT contract. Moore initially
equivocated as to the location of the ESA project saying it was
on 13 Mile Road in Macomb County and that it was between
the jurisdiction of Bricklayers 1 and Plasterers 67. When
pressed, however, Moore admitted that the ESA jobsite was
south of 13 Mile Road and that it was within Plasterers 67’s
jurisdiction under his view of the preamended 1997 ACT con-
tract.15
Moore testified that Bricklayers 9 is the primary supplier of
Respondent’s plasterers and that all of Respondent’s employees
performing plasterer’s work at the ESA jobsite save one were
assigned to Bricklayers 9, even though the project was not in
Bricklayers 9’s jurisdiction. He testified that all of Respon-
dent’s employees were performing plasterers work at the ESA
site. Moore testified three of Respondent’s ESA jobsite em-
ployees were Bricklayers 9 members who transferred to the
ESA jobsite from another of Respondent’s locations. Moore
testified that five or six employees who worked at the ESA
jobsite were hired off the street by Respondent and then signed

13 Weiss also served as Respondent’s representative during the hear-
ing.
14 Weiss testified that he obtained a copy of the June 30, 1999
amendment to the 1997 ACT agreement, which contained an indication
that it was faxed from ACT’s office on September 24, 2001. Weiss
denied that he had any communication with ACT and he testified that
the document was not faxed to him. Weiss could not explain how or
from whom he received this document. Moore testified the first time
he saw the June 30, 1999 amendment to the 1997 ACT agreement was
in Weiss’ office in the year 2001 right at the time the labor controversy
began.
15 It is Moore’s contention that, despite what is stated in their con-
tracts, Plasterers 67 has jurisdiction for the area south of 13 Mile Road
and Bricklayers 1 has jurisdiction for the area north of 13 Mile Road.
up by Bricklayers 9. Moore notified Bricklayers 9 about these
employees so that they could sign them up. Moore testified
that members of Bricklayers 9 performing work on this job had
their fringe benefits paid to funds under that Union’s contract.
He testified that there was one member of Plasterers 67 per-
forming work on that job, and that Union’s funds were paid for
the employee’s fringe benefits.16 Moore testified that there
were no Bricklayers 1 members who performed work at the
ESA jobsite.
Moore explained that he had Bricklayers 9 sign up the new
employees at the ESA jobsite because that union works in Re-
spondent’s area. He testified that if Plasterers 67 signed these
employees up they would not have transferred north to Respon-
dent’s area when the ESA project was finished because they
would have received lower wages when they transferred.
Moore testified that Plasterers 67’s contractual wages are about
$2 to $3 an hour higher than that of Bricklayers 9. Moore testi-
fied that he was not aware of any agreement between Bricklay-
ers 1 and Bricklayers 9 where Respondent could use Bricklay-
ers 9 members in an area covered by Bricklayers 1’s contract.
On November 30, 2001, Weiss wrote a letter to NLRB Re-
gion 7 Investigator Carolyn Van Ness. In the letter, Weiss
asserts that Plasterers 67 committed unfair labor practices in
violation of Section 8(b)(4)(D) of the Act and requests a 10(k)
hearing to determine the work jurisdiction of Plasterers 67 and
Bricklayers 1. Weiss states in the letter that:

2. GEM is a signatory and party to agreements with
two labor unions which assert jurisdiction in Macomb
County, Michigan:
A. Local #67 of the Operative Plasterers; and
B. Local #1 of Michigan, Bricklayers and Allied
Craftsworkers International Union of North America,
AFL–CIO.
. . . .
4. GEM utilized plasterers at a job located in Macomb
County, Michigan, specifically on 13-Mile Road at I-94;
. . . .
5. GEM depended and relied upon both Local #67 and
Local #1 to provide those plasterers;
6. It is the employer’s, GEM’s preference that em-
ployees represented by Local 1 perform the disputed work,
in accordance with GEM’s previous assignment[.]

The following exchange occurred when the November 30,
2001, letter was introduced into evidence:

JUDGE FINE: Was an unfair labor practice Charge ever
filed?
MR. WEISS: That is the only document that was filed
with the Court.
JUDGE FINE: For the Board or the Region?
MR. WEISS: With the Region. I am sorry. With the
Region and—
16 Moore testified that the Plasterers 67 member approached Moore
directly and that Moore did not contact that union’s hiring hall about
referring this employee.
GEM MANAGEMENT CO. 495
JUDGE FINE: You had already filled out a Charge form
and filed it with the Region.
MR. WEISS: I was dissuaded from doing so because
the explanation that was given to me is that this matter was
inappropriate for the Charge being made and the 10-K
Hearing request.
JUDGE FINE: All right but you never took it on your
own initiative after that to file a Charge.
MR. WEISS: I was relying upon the statement of the
investigator.
JUDGE FINE: But you did not file a Charge?
MR. WEISS: We simply filed that letter.
JUDGE FINE: Right.
MR. WEISS: There is no separate Charge form filed.
JUDGE FINE: Right. Okay. So, there was never any
investigation on the 10-K.
MR. WEISS: That is correct, Your Honor.
JUDGE FINE: By the Region.17

Moore testified that he directed Weiss to write the November
30, 2001 letter after the dispute arose at the ESA project. De-
spite the representations in the letter, Moore testified as fol-
lows:

Q. You believed—did you believe, at that time, that
Bricklayers’ Local 1 had jurisdiction on that job?
A. No.
Q. Did you believe that Local 67 had jurisdiction on
that job?
A. Yes.
Q. Did you believe that Local 9 had jurisdiction on
that job?
A. No.

On March 12, 2002, Moore signed off on a detailed letter to
Van Allen, drafted by Weiss, notifying the Union that Respon-
dent was terminating its contractual relationship with Plasterers
67 under the 1997 ACT agreement. Respondent argued in the
letter that it was not bound by the 2000 ACT agreement and
therefore was providing timely notice of termination under
article VIII of the 1997 ACT agreement, which Respondent
contended had automatically renewed itself on an annual basis.
By letter dated March 14, 2002, Plasterers 67 Representative
Frederick Gold wrote Weiss stating it was the Union’s position
that the attempted termination was untimely because, pursuant
to the nonassociation employer agreement Moore had signed,
Respondent was bound by the 2000 ACT agreement.
A. Analysis
In NLRB v. Strong Roofing & Insulating, 393 U.S. 357
(1969), an employer tried to escape its contractual obligations
when it untimely attempted to withdraw from an employer
association that had negotiated a collective-bargaining agree-

17 While Weiss conceded that he never filed a charge on the Board’s
form, he went on to state at the hearing that the Board’s policy is that a
charge can be filed in an informal fashion and that a standardized
charge form is not required. Weiss contended that his November 30,
2001 letter was sufficient to constitute the filing of a unfair labor prac-
tice charge and a request for a 10(K) hearing. Weiss did not continue
this argument in Respondent’s posthearing brief.
ment. The Court found the employer’s refusal to execute the
collective-bargaining agreement violated Section 8(a)(1) and
(5) of the Act. The Court, in reversing the court of appeals,
also affirmed the Board’s order that the employer “‘pay to the
appropriate source any fringe benefits’” required by the con-
tract. Id. at 358. The Court held at 361–362 that:

. . . the business of the Board, among other things, is to adju-
dicate and remedy unfair labor practices. Its authority to do
so is not “affected by any other means of adjustment or pre-
vention that has been or may be established by agreement,
law, or otherwise. . . .” Section 10(a), 61 Stat. 146, 29 U.S.C.
Section 160(a).
. . . .
. . . the Board may proscribe conduct which is an unfair labor
practice even though it is also a breach of contract remediable
as such by arbitration and in the courts. Smith v. Evening
News Assn., 397 U.S. 195, 197–198 (1962). It may also, if
necessary to adjudicate an unfair labor practice, interpret and
give effect to the terms of a collective bargaining contract.
NLRB v. C & C Plywood Corp., 385 U.S. 421 (1967).

In NLRB v. C & C Plywood Corp., supra, the Court approved
the Board’s finding that the employer’s institution of a pre-
mium pay plan during the term of a collective-bargaining
agreement violated Section 8(a)(1) and (5) of the Act. The
Board, in construing the terms of the collective-bargaining
agreement, concluded that the union had not ceded power to the
employer to unilaterally change the wage system during the
term of the agreement.
In the Wightman Center for Nursing & Rehabilitation, 301
NLRB 573, 575 (1991), the administrative law judge, with
approval of the Board, concluded that:

An employer’s unilateral change of unit employees wage
rates during the term of a collective-bargaining agreement
amounts to a repudiation of the agreement which is not
merely a breach of contract but “amounts, as a practical mat-
ter, to the striking of a death blow to the contract as a whole,
and is, thus, in reality, a basic repudiation of the bargaining re-
lationship.” Oak Cliff-Golman Baking Co., 207 NLRB 1063,
1064 (1973), enfd. mem. 505 F.2d 1302 (5th Cir. 1974), cert.
denied 423 U.S. 826 (1975).

See also Nittany Manor Care Associates, 337 NLRB 432
(2002), where a unilateral increase in rates of pay during the
term of a collective-bargaining agreement was held to violate
Section 8(a)(1) and (5) of the Act; and Scapino Steel Erectors,
Inc., 337 NLRB 992 (2002), where the Board found that an
employer violated Section 8(a)(1) and (5) of the Act by failing
to pay the wage rates set forth in a union’s contract and by re-
fusing to make the contractually mandated fringe benefit con-
tributions. In Scapino, the Board majority concluded that the
respondent employer had no intention of applying the collec-
tive-bargaining agreement at any of the jobsites in question,
and that the respondent’s actions were violative of Section
8(a)(5) of the Act because “it goes to the heart of the collective-
bargaining relationship.” Id. at 993 fn. 3.
In Oklahoma Fixture Co., 333 NLRB 804, 807 (2001), the
following principles were set forth:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 496
Under Section 8(f) of the Act, employers and unions in the
construction industry are permitted to enter into collective-
bargaining agreements before the union has established its
majority status. Either party is free to repudiate the collective-
bargaining relationship once an 8(f) contract expires by its
terms. John Deklewa & Sons, 282 NLRB 1375 (1987), enfd.
sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d
Cir. 1988), cert. denied 488 U.S. 889 (1988). However, an
automatic renewal clause in an 8(f) agreement will be given
effect and operates to bind the parties to a continuation of the
agreement. Cedar Valley Corp., 302 NLRB 823 (1991), enfd.
977 F.2d 1211 (8th Cir. 1992), cert. denied 508 U.S. 907
(1993); Fortney & Weygandt, 298 NLRB 863 (1990). When
an employer repudiates a collective-bargaining agreement
during its term, it violates Section 8(a)(5) and (1) of the Act.
See John Deklewa, supra, 282 NLRB at 1385.

It is a relatively common practice in the construction indus-
try for an employer, which is not a member of an employer
association, to bind itself to agreements negotiated between an
employer association and a union. These employers will do so
by signing what is referred to as a “me too” or “short form”
agreement. These “me too” agreements often bind employers
to successor master contracts negotiated between the employer
association and union and are enforced by the Board. See W. J.
Holloway & Son, 307 NLRB 487, 489 (1992), where an accep-
tance agreement bound an employer to a master agreement and
successor agreements; Construction Labor Unlimited, 312
NLRB 364, 367 (1993), enfd. 41 F.3d 1501 (2d Cir. 1994),
where an acceptance agreement bound an employer to the cur-
rent master agreement and “any successor agreement(s)”; Neo-
sho Construction Co., 305 NLRB 100 (1991), where a stipula-
tion bound an employer to “all future master agreements;” and
Z-Bro, Inc., 300 NLRB 87, 89 (1990), enfd. 950 F.2d 726 (8th
Cir. 1991), where an agreement bound an employer to the cur-
rent master agreement and to “any renewals, additions, modifi-
cations, extensions and subsequent [master] agreements.”
In determining a party’s obligation under a “me too” agree-
ment the Board will look to the language of the agreement itself
as well as to the underlying master agreement where applicable.
For example, in Oklahoma Fixture Co., supra at 807–808, an
employer was found by the language of its “me too” agreement
to be bound to a master labor agreement then in effect and to
the 1975 to 1978 successor agreement subsequently negotiated
by the union and employer association. The Board majority
held that:

By entering the me-too agreement, OFC unequivocally
accepted the as-yet unknown results of the negotiations
underway in July 1975 between the NTCA and the Union.
That acceptance demonstrated OFC’s intent to enter into a
collective-bargaining relationship with the Union on the
basis of the 1975–1978 agreement, regardless of the terms
of that agreement ultimately reached by the parties to the
master contract negotiations.
. . . .
In finding that OFC was bound to a series of year-to-
year renewals of the 1975–1978 master agreement, we
necessarily disagree with the General Counsel’s conten-
tion that OFC was bound to a series of successor master
agreements negotiated by NTCA and the Union. As stated
above, in the me-too agreement, OFC agreed to be bound
to “the terms and conditions of [the 1975–1978] agree-
ment.” Significantly, the me-too agreement contained no
terms indicating that OFC was consenting to be bound to
any successors to the 1975–1978 master agreement.

In the instant case, on October 2, 1999, Moore signed an
agreement with Plasterers 67 for nonassociation members,
which reads, in pertinent part, as follows:

This is to certify that I have read the Agreement between the
Detroit Association of Wall and Ceiling Contractors18 and
Plasterers’ Local Union No. 67 and I agree to be bound by all
provisions contained in this Agreement and any changes that
may be made in the future by mutual consent of said parties
for the life of this Agreement and any successor agreements
negotiated by them.

On June 25, 2001, Moore wrote Van Allen a letter seeking to
terminate Respondent’s collective-bargaining agreement with
Plasterers 67. Van Allen wrote back stating that “[a]ccording
to the termination language in the Collective Bargaining Agree-
ment we did not receive your letter in a timely fashion.
Therefore Gem Management is still bound by the agreement.”
Van Allen testified that Moore missed the March 2000 window
period for terminating the contract. Van Allen was clearly
referencing article VIII of the 1997 ACT agreement, entitled
“Term of Contract,” which reads as follows:

It is mutually agreed that this Agreement and the provisions
herein contained shall be in force and effect until May 31,
2000 and that unless notice of change is given not less than
sixty (60) days nor more than ninety (90) prior to the date of
such expiration of this Agreement, by either party to the other,
the Agreement shall automatically renew itself from year to
year after such expiration of this Agreement, or until a new
Agreement is mutually agreed to by the parties.

While the “Agreement for Non-Association Members”
Moore signed on October 2, 1999, contains no provisions on
the manner in which Respondent and Plasterers 67 were to
terminate their contractual relations, the parties are in apparent
agreement that the procedures are governed by article VIII of
the 1997 ACT agreement for which there is identical language
in the 2000 ACT agreement. In this regard, Respondent does
not claim that Moore’s June 25, 2001 letter ended the parties’
contractual relationship. In fact, by letter dated November 30,
2001, Respondent Attorney Weiss wrote Region 7 that Respon-
dent is signatory to a contract with Plasterers 67. By letter
dated, March 12, 2002, Moore wrote Van Allen that Respon-
dent was providing timely termination notice pursuant to article
VIII of the 1997 ACT agreement. It was Respondent’s position
therein that it was not bound by the 2000 ACT agreement and
that its notice of termination was timely under the automatic

18 As set forth above, the name of the employer association refer-
enced in the agreement had changed to ACT and there is no dispute
between the parties here that the October 1999 agreement Moore signed
was referencing the 1997 ACT agreement.
GEM MANAGEMENT CO. 497
renewal provisions in article VIII of the 1997 ACT agreement.
Plasterers 67 responded that this notice of termination was un-
timely because Respondent was bound by the 2000 ACT
agreement since Respondent had not filed a timely notice dur-
ing the window period of the 1997 ACT agreement. Plasterers
67’s letter went on to state that, unless a timely notice is filed,
Respondent would be bound to any successor collective-
bargaining agreement negotiated between Plasterers 67 and
ACT. Thus, here again Plasterers 67 did not take issue with the
assertion that article VIII governed the time requirements for
rescinding the parties’ contractual relationship. Rather, the
Union argued that Respondent had not met the time require-
ments of that article. See Fortney & Weygandt, 298 NLRB 863
(1990), and C.E.K. Industrial Mechanical Contractors, 295
NLRB 635 (1989), where employers that signed letters of as-
sent were found to be governed by termination notification
requirements in the underlying master labor agreements be-
tween a union and an employer association.
Respondent cites language contained at page 23 of the 1997
ACT agreement which it contends should be read in conjunc-
tion with article VIII in support of its argument that it was
never bound to the 2000 ACT agreement. The language reads:

IT IS HEREBY MUTUALLY UNDERSTOOD AND AGREED by and be-
tween the undersigned and Local Union No. 67 . . . for and in
consideration of services performed and to be performed by
plasterers for the undersigned and that the undersigned em-
ployer agrees to be bound by all terms and conditions includ-
ing the payment of all WAGES AND fringe benefits, wher-
ever the work is performed.

Respondent contends that this language when read in combina-
tion with article VIII supports a finding that Respondent, as an
employer, was a party to the 1997 ACT agreement within the
meaning of article VIII. Respondent contends that it is not
bound by the 2000 ACT agreement unless it was “mutually
agreed to by the parties” as required by article VIII. Respon-
dent argues, that as a party under article VIII it never agreed to
be bound to the 2000 ACT agreement, it therefore remained a
party to the 1997 ACT agreement when it automatically re-
newed itself on an annual basis under the provisions of Article
VIII. Respondent asserts that its March 2002 notice of termina-
tion was timely pursuant to article VIII of the 1997 ACT
agreement.
I do not find Respondent’s argument to be persuasive. As-
suming Respondent, as it contends, was a party to the 1997
ACT agreement within the meaning of article VIII, I find that
Respondent “mutually agreed” to be bound to the 2000 ACT
successor agreement when Moore agreed to the language con-
tained in the nonassociation members agreement stating that
Moore had read the 1997 ACT agreement between Plasterers
67 and the employer association and agreed to be bound by its
provisions and “any changes that may be made in the future by
mutual consent of said parties for the life of this Agreement and
any successor agreements negotiated by them.” The language
in the nonassociation member agreement is clearly is referring
to ACT and Plasterers 67 as the parties who negotiated the
underlying master agreement and was committing Respondent
to successor agreements negotiated by ACT and Plasterers 67.
Since the Board has repeatedly held that an employer can bind
itself to agreements negotiated in the future between an em-
ployer association and a union, the General Counsel has estab-
lished that any mutuality requirements of article VIII have been
met by Moore’s signature on the “non-association members
agreement.”
I therefore find that, by the terms of the nonassociation
member agreement Moore signed in October 1999, Respondent
was bound to the 1997 Act agreement and then became bound
to the successor 2000 ACT agreement negotiated between Plas-
terers 67 and ACT. Since both Plasterers 67 and Respondent
acknowledge that the provisions of article VIII govern termina-
tion of those agreements, I find that Respondent’s June 25,
2001, and March 12, 2002 letters did not constitute timely no-
tice of termination of either of those agreements.19
Respondent contends that it should not be bound by the 1997
or 2000 ACT agreements because when Plasterers 67 and ACT
expanded the Union’s jurisdiction either by amendments or the
successor agreement itself this constitutes a material change in
the agreement and thereby terminates Respondent’s contractual
obligations. However, Seymour v. Coughlin Co., 609 F.2d 346
(9th Cir. 1979), and Operating Engineers Pension Trust v. Ce-
cil Backhoe Services, 795 F.2d 1501, 1506 (9th Cir. 1986),
cited by Respondent do not support this contention and are
clearly distinguishable from the facts presented here. In Sey-
mour v. Coughlin Co., supra at 349–350, the court found that an
employer was not bound by a successor master collective-
bargaining agreement where the short form agreement the em-
ployer signed contained a provision that the agreement “shall
continue in effect for the same term as the applicable multiple-
employer labor agreements and for any renewals or extensions
thereof.” The court concluded that the effect of this language
was that parties’ agreement was “to terminate if the original
MLA was not renewed or extended, and instead was modified.”
In fact, the court distinguished that case from it prior decision
in Calhoun v. Bernard, 333 F.2d 739 (9th Cir. 1964), on appeal
from remand 359 F.2d 400 (9th Cir. 1966). In Calhoun the
court found that an employer was bound to amendments to a
master agreement where the short form agreement it signed
provided, after the elimination of a typographical error, “that

19 I do not, however, find that Respondent was bound by the June 30,
1999 amendment to the 1997 ACT agreement or to the November 2000
amendment to the 2000 ACT agreement. The “me too” agreement
Moore signed on October 2, 1999, certified that Moore had read the
master labor agreement then in effect, and he agreed that Respondent
was to be bound to “any changes that may be made in the future by
mutual consent of said parties for the life of this Agreement and any
successor agreements negotiated by them.” Since Moore had only
agreed to bind Respondent to future changes in the 1997 ACT agree-
ment, Respondent was not bound to the June 30, 1999 amendment
which was negotiated in the past. For similar reasons, although I find
that Respondent is bound by the successor 2000 ACT agreement, the
“me too” agreement Moore signed did not provide that Respondent
would be bound by any amendments to the successor agreement. Ac-
cordingly, I do not find that Respondent is bound to the November 21,
2000 amendment to the 2000 ACT agreement. In this regard, the Board
has demonstrated it will strictly construe “me too” agreements and limit
them to the precise terms of what a party has actually agreed to. See
Oklahoma Fixture Co., 333 NLRB 804, 807–808 (2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 498
the employer would be bound by the master agreement and
‘any modification or changes’ therein.” See also Construction
Teamsters Health & Welfare v. CFCC, 657 F.2d 1101, 1103
(9th Cir. 1981), where in finding, based on the signing of a
short form agreement, that the employer there was bound to
successive master labor agreements the court held that, “It is
clear that a signatory to a Short Form Agreement can agree to
be bound by future modifications, extensions and renewals of
an MLA.” Operating Engineers v. Cecil Backhoe Services,
supra at 1506, cited by Respondent, also does not require a
different result. There the court held, citing Con Form Const.
Corp, “‘that a case by case analysis of the agreements involved
provides the best evidence of the parties intent.’”20 Thus, the
Ninth Circuit, as has the Board, has found that depending on
the language in the agreement a party signs it can bind itself to
future master agreements or amendments thereto. Considering
the language of the October 1999 agreement Moore signed, I do
not find that modifications contained in the 2000 ACT agree-
ment extinguished Respondent’s bargaining obligation with
Plasterers 67.21
Respondent also contends, in its brief, that Plasterers 67
seeks to have the Board validate territorial jurisdiction that
would place Respondent in breach of its agreements with
Bricklayers 1 and 9, thereby “subjecting the employer to double
or triple liability for the payment of dues and fringes. This
inequitable result cannot stand.” (R. Br. at 8.) There are several
aspects of this case which serve to undercut Respondent’s posi-
tion. First, I have discredited Moore’s testimony that, at the
time, he entered the agreement with Plasterers 67 that Novak
informed him that that Union’s jurisdiction was limited to work
south of 13 Mile Road. Moreover, while Moore signed off on
the agreement with Plasterers 67 in October 1999, he did not
sign off on an agreement with Bricklayers 1 until June 2, 2000,
or 8 months after he signed on to the 1997 ACT agreement.
The jurisdictional language of the contract Moore signed with
Bricklayers 1 contains territorial conflicts with the preamended
1997 ACT agreement. Thus, Moore willingly entered into a
subsequent agreement with Bricklayers 1 which conflicted with
the area which even he conceded was covered by the 1997 ACT
agreement with Plasterers 67. I do not find Moore’s claim that
he failed to read either agreement in detail as particularly per-
suasive when Respondent relies on equities as an argument to

20 See also Kennis v. McGoldrick, 767 F.2d 594 (9th Cir. 1985).
21 Respondent argues that both the 1997 and 2000 ACT agreements
recognize Michigan law. Respondent then cites Michigan case law for
the proposition that “A material alteration of a contract after its execu-
tion without the consent of the complaining party bars an action on it
against the party not consenting to the change.” Anderson v. Donato,
193 N.W. 805 (1923) (R. Br. at 5). I do not find these principles serve
to prevent Respondent from being bound by the 1997 ACT agreement
or its successor the 2000 ACT agreement. In this regard, the short form
agreement Moore signed acknowledged that he had read the master
labor agreement then in effect, that that he agreed to be bound by all of
its provisions and any future changes made thereto by mutual assent of
Plasterers 67 and the employer association, and any successor agree-
ments negotiated by them. Respondent’s commitment is clear and
unambiguous and the fact that the union and association negotiated a
new master agreement does not constitute a material alteration to the
contract to which Respondent originally assented.
limit its contractual obligations.22 Moore, by his own admis-
sion, had a copy of the 1997 ACT agreement at the time he
signed on with Bricklayers 1.
Respondent also asserts, as a defense, that under Van Allen’s
leadership Plasterers 67 engaged in “bad faith in picketing the
jobs outside of its territory, sending unqualified people to the
job site, and publishing a ‘contractors list’ of approved contrac-
tors that omitted the name of the Respondent evidences bad
faith and is a breach of the contract.” (R. Br. at 13.) Respon-
dent cites no contractual provisions in support of its breach of
contract theory. Moreover, while he threatened to picket at the
LTVS and ESA jobs, there is no evidence that Van Allen
caused any of Respondent’s jobs to be picketed and article V of
the 1997 and 2000 ACT agreements specifically excludes dis-
putes over wages and fringe benefits from the protection of
their no strike provisions. Therefore, I cannot find that Van
Allen acted in bad faith by attempting to enforce the provisions
of the 2000 ACT agreement for the LTVS and ESA locations.
While Respondent’s name was omitted from a list of contrac-
tors that the Plasterers 67 circulated to general contractors in
2002, Respondent cites no contractual provision that Van Allen
breached by this omission. I also do not credit Moore’s testi-
mony that Plasterers 67 sent Respondent substandard workers.
Moore testified that he used 11 or 12 referrals from that union
who exhibited poor workmanship, but never informed the union
officials of these employees’ performance problems. I find this
self-serving declaration by Moore to be pretextual, and part of
an effort to escape his obligations under the contract. See Shat-
tuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966).
1. The LTVS jobsite
Van Allen’s credited testimony reveals that in early June
2001, he discovered that Respondent was performing plaster-
ers’ work on the LTVS jobsite located in Lapeer County. Van
Allen testified that Plasterers 67 did not receive payment into
the union’s contractual fringe benefit funds or dues payments
for this project, and the plasterers on the job informed him that
they were not being paid at the contractual rates. Van Allen
threatened the superintendent of the general contractor with a
22 Of note, pertaining to Moore’s penchant for signing contracts
which he later claims not to have read, the court in Cecil Backhoe,
supra at 1505 held that, “A party who signs a contract is bound by its
terms regardless of whether he reads it or considers the legal conse-
quences.” The court also held that “It is not a defense to claim that a
union representative misrepresented the effect of signing an agree-
ment.” Similarly, Stark v. Kent Products, Inc., 233 NW2d 643 (1975),
cited by Respondent, provides that, “One who signs a contract will not
be heard to say, when enforcement is sought, that he did not read it, or
that he supposed it was different in terms.” See also W. J. Holloway &
Son, 307 NLRB 487, 489 (2002), where it was not a defense for an
employer’s failure to follow a master labor agreement when the em-
ployer was not shown a copy of the master agreement at the time it
entered into a nonassociation member agreement with a union. The
Board also approved the administrative law judge’s conclusion that the
employer was bound to the agreement he signed rather than the repre-
sentations made by a union representative at the time of the signing. It
was stated that, if the employer official had not read the agreement
before he signed it, “he should have.”
GEM MANAGEMENT CO. 499
picket line before leaving the jobsite. Moore acknowledged
that Respondent had a jobsite in Lapeer County for which there
was a dispute with Plasterers 67. Moreover, I have concluded
that Moore reacted to Van Allen’s visit to this jobsite when he
wrote Van Allen on June 25, 2001, that Respondent wanted to
terminate its contract with Plasterers 67. Noticeably absent
from Moore’s letter was any claim that the Lapeer County job-
site was outside of Plasterers 67’s jurisdiction. While Moore
testified that he believed that Bricklayers 9 had jurisdiction
over this jobsite, it was not established on this record that pay-
ments for the work performed there were made to that Union’s
benefit funds.23
Lapeer County is not covered by the territorial jurisdiction
set forth in the 1997 ACT agreement.24 However, I have con-
cluded that Respondent is bound by the 2000 ACT agreement,
which has an effective date of June 1, 2000, by the terms of the
nonassociation member agreement Moore signed binding Re-
spondent to successor agreements between ACT and Plasterers
67. The 2000 ACT agreement states that Plasterers 67’s
jurisdiction includes Lapeer County, as well as other areas not
specified in the 1997 ACT agreement. While I have concluded
that the General Counsel has failed to establish that Plasterers
67 provided Respondent with a copy of the 2000 ACT agree-
ment until Van Allen presented Weiss with a copy on about
October 14, 2001, at the ESA project, I nevertheless find that
Respondent was bound by the 2000 ACT agreement during the
term of its work at LTVS jobsite. It was stated in Cedar Valley
Corp., 302 NLRB 823, 830 (1991), enfd. 977 F.2d 1211 (8th
Cir. 1992):

When the 8(f) agreement expires and the employer
served timely notice of contract termination, nevertheless,
the Board has held the designation of bargaining authority
continues. That is, the Board has held that an employer is
bound to successive agreements negotiated by the associa-
tion until the employer withdraws bargaining authority
from the association in a timely manner. [Citations omit-
ted.]
The effect of the decisions cited above is clear. Here,
Respondent signed collective-bargaining agreements with
Operating Engineers 537 and with Laborers 309, and each
contract contained an express commitment to abide by the
terms of successor association agreements. Respondent
never terminated this delegation of bargaining rights in the
contractually prescribed manner. Under the cases cited
above, Respondent’s obligation to be bound by successor
agreements continued to the present.

Similarly in Twin City Garage Door Co., 297 NLRB 119 fn. 2
(1989), the Board held that since the respondent had signed an
independent agreement binding itself to the current and succes-
sor association contracts “it could not repudiate its 8(f) relation-
ship with the union until it provided timely notice of termina-

23 Respondent’s initial contract with Bricklayers 9 was also not put
into evidence and therefore it is unclear whether that Union’s territory
changed over time as had Plasterers 67’s.
24 The June 30, 1999 amendment to the 1997 ACT agreement for the
first time extended Plasterers 67’s territorial jurisdiction to Lapeer
County.
tion.” See also Carthage Sheet Metal Co., 286 NLRB 1249,
1251 (1987), where pursuant to a settlement agreement it had
signed an employer was found bound to a contract as well as its
successor agreement.
I therefore find that the October 2, 1999, nonassociation
member agreement Moore signed bound Respondent to the
2000 ACT agreement which covered plasterers work performed
in Lapeer County and that by failing to apply the 2000 ACT
agreement to the work performed at the LTVS jobsite Respon-
dent violated Section 8(a)(1)(5) and (d) of the Act. In this re-
gard, Respondent failed to give timely notice to sufficient to
terminate its collective-bargaining relationship with Plasterers
67 prior to the time that the 2000 ACT agreement came into
effect. See Cedar Valley Corp., supra; Twin City Garage Door
Co., supra; and Carthage Sheet Metal Co., supra. While I have
concluded that the General Counsel has failed to establish that
Respondent was presented with a copy of the 2000 ACT
agreement until mid-October 1991, the agreement Moore
signed in October 1999 with Plasterers 67 does not create a
condition precedent for the union to provide Respondent with a
copy of the successor agreement in order for Respondent to be
bound by its terms. See W. J. Holloway & Son, 307 NLRB 487,
489 (2002), where an employer was found to be bound by his
signature to a letter of assent to an association master agree-
ment, although he had not been presented with a copy of the
master agreement at the time of his signature. It was held there
that, “the circumstances that obtained at the time of the agree-
ment’s execution by the Respondent are altogether common-
place in the building and construction industries, as are the
terms of the agreement.”25
2. The ESA jobsite
Around August 2001, Van Allen discovered the ESA jobsite,
which Moore testified was located South of 13 Mile Road in
Macomb County. Moore admitted that all of Respondent’s
employees who worked at the jobsite performed plasterers’
work. Van Allen met Weiss at the jobsite around October 14,
25 While there was insufficient evidence to establish that Novak
mailed the 2000 ACT agreement to Respondent, I have concluded that
Moore knew more or should have known more than he was willing to
admit concerning the implementation of that agreement. The 1997
ACT agreement, of which Moore was admittedly provided a copy,
contains a May 31, 2000 expiration date as well as an automatic re-
newal clause absent the negotiation of a successor agreement. This
information was sufficient to place Respondent on notice of the possi-
bility of a change in its contractual obligations following the May 31,
2000 termination date. Moreover, although Weiss admitted to posses-
sion of a copy of the June 30, 1999 amendment to the 1997 ACT
agreement, and Moore testified that he reviewed a copy of that docu-
ment in Weiss’ office around the time of the labor dispute with Plaster-
ers 67, neither individual could explain how Weiss obtained a copy of
the document suggesting that Moore had more information at his dis-
posal than he was willing to reveal at the hearing. I would also note
that, whether Novak presented Moore with a copy of the 2000 ACT
agreement, it is highly unlikely that Moore, as a contractor in the indus-
try, would not have heard that a successor agreement to the 1997 ACT
agreement had been negotiated. In any event for the reasons set forth
above, I have concluded that it was not a condition precedent for Plas-
terers 67 to present Respondent with a copy of the 2000 ACT agree-
ment in order for Respondent to be bound by its terms.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 500
2001. At the time, Weiss was meeting with Bricklayers 9 offi-
cials, and Moore testified that, with the exception of one indi-
vidual, employees who were members of Bricklayers 9 staffed
the job. Moore testified that there were no Bricklayers 1 mem-
bers working on the job. Despite meeting with Bricklayers 9
officials and the job being staffed by Bricklayers 9 members,
when Van Allen asked Weiss for a copy of the contract cover-
ing the job, Weiss faxed Van Allen a few pages from the of
Bricklayers 1 contract, including the territorial page, rather than
pages from Bricklayers 9 contract. Weiss’ action here was
clearly misleading because although Bricklayers 9’s members
were working at this jobsite, that Union’s jurisdiction did not
cover the site, while Bricklayers 1’s contract did. Moore also
testified that he was aware of no understanding between Brick-
layers 1 and Bricklayers 9 were the latter union was permitted
to perform work in Bricklayers 1’s territory.
On November 30, 2001, Weiss wrote a letter to NLRB Re-
gion 7 asserting that Plasterers 67 committed unfair labor prac-
tices in violation of Section 8(b)(4)(D) of the Act and request-
ing a 10(k) hearing to determine the work jurisdiction of Plas-
terers 67 and Bricklayers 1. Moore testified that the letter was
referencing the work performed at the ESA jobsite. In the let-
ter, Weiss stated that Respondent had separate collective-
bargaining agreements with Plasterers 67 and Bricklayers 1
each for plasterers worked performed in Macomb County.
Weiss went on to state that Respondent relied on both Plaster-
ers 67 and Bricklayers 1 to provide plasterers to perform work
for a jobsite specifically on 13 Mile Road.
Weiss’ representations in the November 30, 2001 letter to
the Region were undercut by Moore and Weiss’ testimony at
the hearing.26 Moore testified that Plasterers 67 did not supply
Respondent with any employees for this job. Rather, Moore
hired one employee directly who told Moore that he was a
member of Plasterers 67.27 Moore also testified that no Brick-
layers 1 members performed any work on this job. Rather,
members of Bricklayers 9 members performed the work; a
union which Respondent has never claimed had any contractual
claims for this worksite. Finally, Moore testified that it was his
understanding that Bricklayers 1’s jurisdiction was north of 13
Mile Road and Plasterers 67’s jurisdiction was south of 13 Mile
Road. Moore also testified that the ESA project was south of
13 Mile Road and under Plasterers 67’s jurisdiction not that of
Bricklayers 1. Yet, Weiss represented in his November 30,
2001 letter that there was a jurisdictional dispute between
Bricklayers 1 and Plasterers 67 over the work performed at the
ESA project and requested a 10(k) hearing.28 Respondent’s

26 Weiss testified he met Bricklayers 9 officials, not those of Brick-
layers 1, at the jobsite.
27 Contrary to Moore, Van Allen testified that Plasterers 67’s fringe
benefit funds received no payments for work performed on the ESA
jobsite, and that the union received no dues payments for this work.
28 Weiss testified that when he met Van Allen at the jobsite in Octo-
ber 2001, Van Allen told him that Plasterers 67’s jurisdiction was south
of 13 Mile Road. I place no weight on this statement in determining
the scope of Plasterers 67’s territory. First, the jobsite in dispute was
south of 13 Mile Road so Van Allen had no reason to go into detail as
to the total scope of Plasterers 67’s jurisdiction. Second, Van Allen
provided Weiss with a copy of the 2000 ACT agreement, during their
shifting positions create an air of pretext in its efforts to defeat
the unfair labor practice complaint.
I find that Respondent violated Section 8(a)(1)(5) and (d) of
the Act by its failure to apply to the 2000 ACT agreement to the
work performed at the ESA jobsite. Moore’s admission reveals
that this jobsite came within Plasterers 67’s territory even as
described by the 1997 ACT agreement. Moreover, he testified
that it was his belief that Plasterers 67, not Bricklayers 1 or 9
had jurisdiction over this jobsite. He also testified that he used
Bricklayers 9 members due to the fact that its collective-
bargaining agreement called for lower rates of pay than that
required by Plasterers 67’s contract. I do not find that this con-
stitutes a valid basis for his failure to apply the 2000 ACT
agreement, and I have previously discredited Moore’s claim
that Plasterers 67 had furnished Respondent with poor workers.
Moreover, Novak’s testimony is undisputed that Plasterers 67
did not operate an exclusive hiring hall and therefore Moore
could have hired employees off the street and still applied the
provisions of the 2000 ACT agreement.29

conversation, clearly displaying to Weiss that Plasterers 67’s jurisdic-
tion was not limited to an area south of 13 Mile Road. Finally, in his
November 30, 2001 letter, Weiss represented that Plasterers 67’s was
asserting jurisdiction over Macomb County and that there was a dispute
between two unions over a jobsite on 13 Mile Road. In other words,
Weiss did not assert that Plasterers 67’s claim of jurisdiction was lim-
ited to areas south of 13 Mile Road, nor do I find that he thought it was
so limited since he had requested and received a copy of the 2000 ACT
agreement. Weiss stated, at the hearing, that Respondent never filed an
8(b)(4)(D) unfair labor practice charge based on the advice of a Board
agent that the matter was not appropriate for a charge. However, Weiss
argued at the hearing that his November 30, 2001 letter is sufficient to
constitute a charge in an apparent effort to argue that filing the letter
constitutes a defense to Plasterers 67’s unfair labor practice charge.
Regardless of any statements alleged on the part of the Board agent,
Weiss admitted that it was Respondent’s decision not to file a charge.
Moreover, the Board has held that a respondent is not entitled to rely on
the advice of Board agents as a defense to unfair labor practice allega-
tions. See Aroostook County Regional Ophthalmology Center, 332
NLRB 1616 (2001), and Martel Construction, Inc., 311 NLRB 921,
927 (1993), enfd. 35 F.3d 571 (9th Cir. 1994). Finally, most of the
representations in Weiss’ November 30, 2001, were not born out by
Moore’s testimony. Accordingly, I do not find the Region’s failure to
initiate 10(k) proceedings based on Weiss’ November 30, 2001, serves
as a defense to unfair labor practice allegations set forth in the com-
plaint.
29 I find that it was Respondent’s intent to repudiate its collective-
bargaining agreement with Plasterers 67. In June 2001, Moore failed to
apply the 2000 ACT agreement to the LTVS jobsite. Van Allen pro-
tested Moore’s action and on June 25, 2001, Moore wrote Plasterers 67
seeking to terminate Respondent’s contract. Van Allen replied that the
letter was untimely. Nevertheless, Respondent subsequently failed to
apply Plasterers 67’s contract to the ESA jobsite, although Moore testi-
fied that he thought the jobsite was within that union’s jurisdiction. On
November 30, 2001, Weiss wrote the Region that it was Respondent’s
preference that Bricklayers 1 perform the work at the ESA jobsite over
Plasterers 67, although Moore testified that no Bricklayers 1 members
performed work at the site. In March 2002, Moore again wrote Plaster-
ers 67 seeking to terminate Respondent’s contract with that union.
Accordingly, I find that by failing to apply Plasterers 67’s contract, and
its failure to pay that contract’s wage rates and benefits at the LTVS
and ESA projects Respondent has repudiated its collective-bargaining
agreement and relationship with Plasterers 67 in violation of Sec.
GEM MANAGEMENT CO. 501
Counsel for the General Counsel argues that Respondent vio-
lated Section 8(a)(1) and (2) of the Act by unlawfully assisting
Bricklayers 9 by paying it fringe benefits and dues for work at
the ESA jobsite for which it had no agreement with that union,
and which was covered by Plasterers 67’s agreement. Section
8(f) of the Act reads in part:

It shall not be an unfair labor practice under subsections (a)
and (b) of this section for an employer engaged primarily in
the building and construction industry to make an agreement
covering employees engaged (or who, upon their employ-
ment, will be engaged) in the building and construction indus-
try with a labor organization of which building and construc-
tion employees are members (not established, maintained, or
assisted by any action defined in section 8(a) of this Act as an
unfair labor practice) because (1) the majority status of such
labor organization has not been established under the provi-
sions of section 9 of this Act prior to the making of such
agreement.

In John Deklewa & Sons, 282 NLRB 1375, 1885, (1987), enfd.
843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988),
the Board stated that:

When parties enter into an 8(f) agreement, they will be re-
quired, by virtue of Section 8(a)(5) and Section 8(b)(3), to
comply with that agreement unless the employees vote, in a
Board-conducted election to reject (decertify) or change their
bargaining representative. Neither employers nor unions who
are party to 8(f) agreements will be free unilaterally to repudi-
ate such agreements.

The Board went on to state:

In our view, however, it is both reasonable and desirable to
adopt a rule that constitutes a limited application of Section
8(a)(5)’s contract enforcement mechanisms by virtue of the
strictly limited 9(a) representative status that we believe a 8(f)
signatory union necessarily possesses.
. . . .
The enforceable Section 9(a) status we confer on sig-
natory unions is also only coextensive with the bargaining
agreement that is the source of its exclusive representa-
tional authority. Beyond the operative term of the con-
tract, the signatory union acquires no other rights and
privileges of a 9(a) exclusive representative. id. at 1386–
1387.

In Deklewa the Board held that if a union loses a Board election
during the term of an 8(f) contract that “[f]ailure to terminate
the 8(f) relationship or its premature reestablishment after an
election will subject 8(a)(2) and 8(b)(1)(A) liability.” Id. at
1385.
In Freeman Decorating Co., 336 NLRB 1, 13–14 (2001), it
was held that the respondent employers had unlawfully with-

8(a)(1) and (5) of the Act. See Wightman Center for Nursing & Reha-
bilitation, 301 NLRB 573, 575 (1991); Oak Cliff-Golman Baking Co.,
207 NLRB 1063, 1064 (1973), enfd. mem. 505 F.2d 1302 (5th Cir.
1974), cert. denied 423 U.S. 826 (1975); Nittany Manor Care Associ-
ates, 337 NLRB 432 (2002); and Scapino Steel Erectors, Inc., 337
NLRB 992 (2002).
drawn recognition from a union following the expiration of
their collective-bargaining agreement because the union had
previously obtained 9(a) status prior to the expiration of the
contract. The Board majority found that the employers and the
Carpenters union had violated Section 8(a)(2) and 8(b)(1)(A) of
the Act by entering into a contract because the employers had
unlawfully withdrawn recognition from another union. It was
concluded that it was therefore unnecessary to determine
whether the contracts with the Carpenters would have other-
wise been permissible under Section 8(f) of the Act.
It is clear from the forgoing that the Board views an 8(f) con-
tract enforceable under Section 8(a)(5) of the Act, and that a
union that enters into an 8(f) contract with an employer has a
limited 9(a) status for the duration of that agreement. I find, in
agreement with the General Counsel, that Respondent violated
Section 8(a)(1) and (2) of the Act by unlawfully assisting
Bricklayers 9 by violating its contract with Plasterers 67 and
notifying Bricklayers 9 of the ESA site in order for that union
to sign up new hires, and by paying fringe benefits to Bricklay-
ers 9’s contractual funds when Respondent admittedly had no
collective bargaining agreement with Bricklayers 9 covering
the work performed at the ESA jobsite. See Weco Cleaning
Specialists, 308 NLRB 310, 320 (1992), and Freeman Decorat-
ing Co., supra at 13–14. In this regard, Moore testified that he
paid fringes and benefits for worked performed by Bricklayers
9 members at the ESA to Bricklayers 9. While Moore never
specifically testified that he checked off dues from these em-
ployees and tendered those dues to Bricklayers 9, he testified
that three Bricklayers 9 members transferred to the ESA jobsite
and he hired five or six employees directly and notified Brick-
layers 9 of their hiring then Bricklayers 9 signed them up. Im-
plicit in Moore’s testimony was that Respondent checked off
dues for these employees and referred the money to Bricklayers
9, along with the fringe benefits he paid that union’s funds for
their work.
3. Other complaint allegations
Counsel for the General Counsel states the following in the
remedy section of her brief:

The Administrative Law Judge need not decide the effect of
Respondent’s contracts with other related unions—Local 9,
Local 1, and Local 16. First, these contracts cover different
geographical territories, not all of which are in conflict. Sec-
ond, despite Respondent’s claim to the contrary, it had actual
or constructive knowledge even prior to Local 67’s amend-
ments that Local 67’s geographical area conflicted to some
extent with that of Locals 1 and 9. Third to the extent that the
geographical areas of the unions overlap, Respondent is free
to file 8(b)(4) charges in the future and request a 10(k) hear-
ing. [GC Br. at 18.]

This position runs counter to certain allegations in the com-
plaint which assert that Respondent’s entering into and main-
taining a contract with Bricklayers 1 on June 2, 2000, and ap-
plying that contract to work covered by the Plasterers 67’s
agreement constitutes independent violations of Section 8(a)(1)
and (2) of the Act. It is further asserted in the remedial section
of the complaint that Respondent be required to:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 502
(a) Withdraw recognition from and void any agree-
ments entered into by Respondent with Bricklayers’ 1 for
Unit work.

I find that, by the inclusion of these remarks in counsel for the
General Counsel’s posthearing brief, the above complaint alle-
gations and related requests for affirmative relief have been
withdrawn and are therefore dismissed.
4. Unit and related issues
For reasons set forth above, I have concluded that the appro-
priate unit description is the one set forth in the preamended
2000 ACT agreement, which is described as follows:

All full-time and regular part-time journeymen and apprentice
plasterers doing work described in Article IX, Section 2, of
the 2000 ACT agreement employed by Respondent at its job-
sites located within the Michigan counties of Wayne, Oak-
land, Lapeer, Macomb, and St. Clair counties.

The complaint fails to state the period of time which the alleged
unfair labor practices begin for remedial purposes. I will there-
fore limit any remedy herein to commence on about May 1,
2001, the beginning of the 10(b) for the filing and service on
Respondent of the initial unfair labor practice charge. See A.T.
Electric Construction Corp., 338 NLRB 340, 345 (2002); and
Neosho Construction Co., 305 NLRB 100, 103 (1991).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section Section 2(2), (6), and (7) of the Act and
is an employer engaged in the building and construction indus-
try within the meaning of Section 8(f) of the Act.
2. By refusing to apply the 2000 ACT agreement since on
about May 1, 2001, to its jobsites, including but not limited to
the LTVS and ESA jobsites, Respondent has repudiated its
collective-bargaining relationship with Plasterers 67 and has
engaged in unfair labor practices within the meaning of Section
8(a)(1), (5), and (d) of the Act.
3. By paying fringe benefits to Bricklayers 9’s benefit funds
and soliciting Bricklayers 9 to sign up employees for work at
the ESA jobsite, a location covered by Plasterers 67’s agree-
ment and where Bricklayers 9 does not have a collective-
bargaining agreement, Respondent has aided and assisted
Bricklayers 9 in violation of Section 8(a)(1) and (2) of the Act.
4. The complaint is dismissed insofar as it alleges violations
of the Act not specifically found.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I shall recommend that Re-
spondent be ordered to reimburse all its unit employees em-
ployed since May 1, 2001, for the deficiencies in their wage
rates and other benefits, including, but not limited to overtime,
holidays, shift work, as required by the 2000 ACT agreement.
As for contractual benefit funds and other payments, the deter-
mination of which such payments the Respondent should have
made and the amounts necessary to remedy Respondent’s fail-
ure to comply with its contractual obligations under the 2000
Act agreement will be left to the compliance stage. See Merry-
weather Optical Co., 240 NLRB 1213, 1217 fn. 7 (1979).30
Respondent shall comply with the provision of information
requirements of the 2000 ACT agreement in order to allow
Plasterers 67 and the benefit funds trustees to calculate funds
due and owing under the 2000 ACT agreement consistent with
the findings and conclusions of this decision. Respondent shall
also be required to make employees whole by reimbursing them
for any expenses resulting from the Respondent’s failure to
make required benefit fund payments in the manner prescribed
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2, (1980),
enfd. 661 F.2d 940 (9th Cir. 1981), with interest interested as
provided in New Horizons for the Retarded, 283 NLRB 1173
(1987). Respondent shall be required to reimburse employees
for dues and fees paid by those employees, who performed
work for Respondent at the ESA jobsite, to Bricklayers 9 to the
extent that such payments are not shown by Respondent to have
been noncoercive. This issue shall also be deferred to the com-
pliance stage. See, Freeman Decorating Co., 336 NLRB 1, 14
(2001).31
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended32
ORDER
The Respondent, Gem Management Company, Inc., Clare,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from Local 67, Operative Plas-
terers’ and Cement Masons’ International Association, AFL–

30 The General Counsel and Plasterers 67 request that the union be
made whole for the loss of contractual dues payments. However, the
Board does not order a union be reimbursed for dues unless employees
have individually signed dues-checkoff authorizations. See W. J. Hol-
loway & Son, 307 NLRB 487 fn. 3.
31 No party briefed the impact of a paragraph in the 2000 ACT
agreement art. I, sec. 2 on the proposed remedy in this proceeding. The
applicable provisions reads:
When during the term of this agreement when the employer employs
out of town and/or B.A.C. members on any working jobsite within the
jurisdiction of Plasterers’ Local 67, not less than fifty percent (50%)
shall be members of Plasterers’ local 67, as long as there are Plasterer
Local 67 members available. Plasterers’ Local 67 shall also reserve
the right to the “odd man” of the site.
Accordingly, the impact of this provision on any required remedy will
be left to the compliance stage. The provision does not affect my un-
derlying unfair labor practice findings as Respondent clearly repudiated
its contract with Plasterers 67 and failed to follow the provisions of
2000 ACT agreement at the LTVS and ESA jobsites. While Van Allen
testified that Respondent made no fund or dues payments for work at
the ESA jobsite under the 2000 ACT agreement, and Moore testified
that Respondent made Plasterers 67 payments for only one employee,
under the testimony of either witness the 2000 ACT agreement was not
followed for the ESA jobsite. Moreover, the parties’ records will re-
solve this testimonial dispute at the compliance stage.
32 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
GEM MANAGEMENT CO. 503
CIO (Plasterers 67) during the term of the collective-bargaining
agreement between Plasterers 67 and Architectural Contractors
Association (ACT), with effective dates of June 1, 2000,
through May 31, 2003 (the 2000 ACT agreement) and during
the term of any other agreement to which we are bound with
Plasterers 67, absent timely notice to that union.
(b) Failing to apply the terms of the 2000 ACT agreement
and refusing to recognize Plasterers 67 as the employee repre-
sentative in the following appropriate unit:

All full-time and regular part-time journeymen and apprentice
plasterers doing work described in Article IX, Section 2, of
the 2000 ACT agreement employed by Respondent at its job-
sites located within the Michigan counties of Wayne, Oak-
land, Lapeer, Macomb, and St. Clair counties.

(c) Paying fringe benefits to Bricklayers’ and Allied Crafts-
workers’ Local Union No. 9, International Union of Bricklayers
and Allied Craftsworkers, AFL–CIO (Bricklayers 9) contrac-
tual benefit funds and soliciting Bricklayers 9 to sign up em-
ployees for work at jobsites covered by Plasterers 67’s collec-
tive-bargaining agreement and where Bricklayers 9 does not
have a collective-bargaining agreement.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make employees whole for any losses suffered as a result
of Respondent’s failure to honor the 2000 ACT agreement with
Plasterers 67 and make contractually required payments to the
benefit funds described in that agreement in the manner speci-
fied in the remedy section of this decision.
(b) Make employees whole for all dues and fees paid by em-
ployees who performed work for Respondent at the Extended
Stay America jobsite in 2001 in Macomb County, Michigan,
that were paid to Bricklayers 9 for work falling within the
above-described bargaining unit, to the extent that such pay-
ments are not shown by Respondent to have been noncoercive.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
and other payments due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its
current jobsites within the geographical area encompassed by
the appropriate unit herein and at its facility in Clare, Michigan
copies of the attached notice marked “Appendix.”33 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous 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 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 employ-
ees employed by the Respondent at any time since May 1,
2001.
(e) 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.

33 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”