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National Labor Relations Board v. Anderson Excavating, Co.

United States Court of Appeals, Eighth Circuit

May 31, 2019

National Labor Relations Board Petitioner
v.
Anderson Excavating, Company Respondent

          Submitted: January 16, 2019

         National Labor Relations Board

          Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.

          SMITH, Chief Judge.

         The National Labor Relations Board ("Board") seeks enforcement of its order finding that Anderson Excavating Company ("Anderson") violated Section 8(a)(5) and (1) of the National Labor Relations Act (NLRA). The Board's order concluded that Anderson violated the NLRA by failing to make contractually mandated contributions to the Contractors, Laborers, Teamsters and Engineers Health and Welfare and Pension Fund ("CLT&E Funds") and the Training Fund of Local 571 of the International Union of Operating Engineers ("Union"). Anderson cross-petitions for review of the Board's order, arguing that the Board erred in failing to find that the Union's unfair labor practice charge against it was time-barred. The Board responds that the Union's charge was timely filed within six months of Anderson's clear and unequivocal repudiation of its collective bargaining obligations. We deny Anderson's petition and grant the Board's application for enforcement of its order.

         I. Background

         Anderson is a construction company based in Omaha, Nebraska, established by Virgil Anderson ("Virgil"). Virgil and his wife, Virginia Anderson ("Virginia"), co-own the company. The Union represents heavy equipment operators. It negotiates collective bargaining agreements (CBA or CBAs) on their behalf with a group of large construction employers in Omaha. Smaller employers, such as Anderson, may then adopt those CBAs. The CBAs set the employees' terms and conditions of employment. The CBAs also require employers to make contributions to several benefit funds and withhold and remit dues to the Union.

         Anderson has been a signatory to CBAs with the Union for many years. In 1996, Anderson executed a Heavy Highway Agreement with the Union. The agreement contained a recognition clause explicitly acknowledging the Union as the exclusive collective bargaining representative of the employees in the bargaining unit described in the agreement. In 2004, Anderson executed another Heavy Highway Agreement with the Union.

         After the 2004 Heavy Highway Agreement expired in 2006, it was superseded by CBAs covering the periods 2006-2008, 2008-2010, 2010-2012, 2012-2014, and 2014-2018. The Union negotiated each CBA with a group of large construction employers in the Omaha area. Following the ratification of each CBA, the Union sent a one-page document to all signatories to complete. Anderson has not signed or returned any of these documents since 2004. Thus, the 2004 Heavy Highway Agreement was the last CBA that Anderson executed.

         Nevertheless, Anderson continued adhering to the CBAs. First, Anderson sought and received employee referrals from the Union's hiring hall. Second, it paid employees in accordance with the CBAs. Third, Anderson made the contributions required by the CBAs on behalf of its employees to the CLT&E Funds[1] and Training Fund. Fourth, Anderson regularly submitted reports signed by Virginia in her capacity as Anderson's president.[2] These reports contained a certification that the funds were being paid on behalf of employees who had performed work covered by a CBA between Anderson and the Union. Fifth, Anderson remitted employee dues to the Union in accordance with the amounts required under each agreement and submitted corresponding reports signed by Virginia.

         In 2010, the CLT&E Funds audited Anderson and found that it owed the CLT&E Funds $2, 612.14. Anderson remitted this amount to the CLT&E Funds. In 2013, the CLT&E Funds conducted another audit. It determined that Anderson failed to make contributions for certain employees who had, in the CLT&E Funds' opinion, performed work covered by the relevant CBA. The audit found Anderson $83, 000 in arrears.

         On March 25, 2014, the CLT&E Funds and the Union filed suit against Anderson in federal district court under the Labor Management Relations Act to recover the arrearage. See Complaint, Marshall v. Anderson Excavating & Wrecking Co., No. 8:14-CV-96 (D. Neb. March 25, 2014), ECF No. 1. The complaint alleged that Anderson executed the 2004 Heavy Highway Agreement with the CLT&E Funds and the Union and agreed to be bound by trust agreements requiring contributions to the CLT&E Funds. In its answer filed on May 16, 2014, Anderson "admit[ted] it reported hours and made employer contributions to the [CLT&E Funds]." Defendant Anderson Excavating Co.'s Answer and Affirmative Defenses at 2, ¶ 9, Marshall v. Anderson Excavating & Wrecking Co., No. 8:14-CV-96, (D. Neb. May 16, 2014), ECF No. 10. Anderson also set forth the affirmative defense that "[t]he [CBA] the action is based upon terminated on April 30, 2006, and is therefore no longer a valid agreement." Id. at 3. Anderson also relied on the additional affirmative defense that Anderson "is not a party to the Trust Agreements, and is not bound by the same." Id.

         In its Rule 26(f) discovery report[3] filed on June 17, 2014, Anderson took the position that "[e]mployees identified by the audit were improperly classified as operating engineers and were not performing covered work and are not covered by the [CBA] between Defendant Anderson Excavating Co., and the International Union of Operating Engineers, Local 571." Rule 26(f) Report at 3, Marshall v. Anderson Excavating & Wrecking Co., No. 8:14-CV-96 (D. Neb. June 17, 2014), ECF No. 13. The Rule 26(f) report also reiterated Anderson's affirmative defense that the CBA referenced in the complaint expired on April 30, 2006, and was no longer valid.

         Despite its claimed defense, prior to and during the course of the litigation, Anderson remitted dues to the Union, made payments to the CLT&E Funds and the Training Fund, and otherwise complied with the 2014-2018 CBA. First, Anderson continued remitting dues and submitting employer remittance reports signed by Virginia.[4]

         Second, Anderson continued making contributions to the Training Fund and submitted Training Fund Reports for all of 2014 and for January, February, and March 2015.[5] The reports contained the following certification signed by Virginia:

I certify that the individuals identified on this report are employees of the company who, during the reporting period specified, performed work covered by a [CBA] between this employer and the applicable union. "Employee" is defined as any person performing work covered by the [CBA] between the employer and the union which agreement provides ...

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