national labor relations act in withdrawing recognition from the union and repudiating its collective bargaining obligations that charge which was later firm by than n l r b which is the subject of this appeal originally rose out of a charge filed by the union on july sixteenth two thousand and fifteen wherein the union asserted enters and is claiming they are not a signatory to the c b a's and they are not bound by the terms and conditions of the c b s anderson's assertion of the same constitutes bad faith organising there was a later amended charge in january twenty second two thousand and sixteen where the union once again asserted that anderson it was drawn recognition repudiated the party's collective bargaining agreement this time they asserted that it was a specific collective bargaining agreement our primary defense in this case to the decision of the n l r b is the obligations under any collective bargain agreement regardless of what the theory the union itself had filed the suit against andersen excavated in march of two thousand and fourteen well over a year before it filed its charge asserting andersen was in violation of the collective bargain agreement by not remitting cold required payments under the the what they asserted was a collective bargaining agreement andersen filed an answer on may sixteenth two thousand and fourteen which was served upon unions council which indicated that the collective bargaining agreement had terminated and was no longer a valid agreement a further alleged in the third o defense they were not bound by the agreements because the it was their litigation position and that's your your case now you're saying there was sufficient to constitute unequivocal repudiation yes your honor and i think that's ratified by virtue of the fact that the union's council signed a rule twenty six f report planning conference or after receiving the answer where council as counsel does in litigation they go through the claims and defenses and analyze does this agreement if we may still continue to make the payment some payments on a voluntary basis because of our theory as set forth by the principle of the union which is i'm not bound by your agreements but i'm going to pay these union guys d for them because they're my guys and they're in the union he may have had a misguided understanding of any obligations but it's clear he was not remitting all the obligations he had his own view of it that i'm not bound by this union contract i can send in payments for my guys and you know that doesn't make me bound by the union contract i would that represented him at the outset that case i came in a little later and he may have had a misguided view of responsibilities but what is clear is that they were paying the dues and they were saying we're not bound by the collective bargaining agreement the rule twenty six report the union itself says at page two  the contributions were not paid pursuant to the contract and are delinquent in response defendant response to that claim is that they dispute that the collective bargaining agreement is current and valid  another a further defense in the planning conference defendant claims a collective bargaining agreement is not a valid contract the union's retorts to that defense because you have to set forth your defenses of the rule twenty six report is the collective bargaining agreement remained in effect until april thirtieth or sees me this is a continuation there is not an automatic renewal provision contained a collective bargain remit therefore the collective bargain agreement terminated by the expiration date and that that did not automatically renew april thirtieth two thousand and sixteen the union's responses that there's an evergreen clause and it automatically renewed the fight is right there it's laid out in the rule twenty six report after receipt of the answer they're going to litigate the issue of whether or not there's a collective bargaining agreement in fact that was the subject of a summary judgment motion and a summary judgment ruling in the district court my view of it is there's a simple question what's the charge they say that we're guilty of misconduct because we have repudiated our obligations on the collective bargaining agreement that is both in the two thousand and fifteen charge in july and in the january two thousand and sixteen amended charge the question is if that's valid could they have done that after receipt of our answer i submit yes it's unequivocal that we're saying we're not bound by the collective bargain agreement so could they have filed within six months of that date clearly they have our answer they could have used our answer as exhibit a to their charge in fact their narrative explanation of their first charge is basically a narrative explanation of our defenses to the to the contract and then their retort that because by breach of the evergreen clause there still is a collective bargaining agreement that's the position and fight the parties had for the united states district court could the union have filed the same argument that we repudiate her obligations after the rule twenty six planning conference report yes it's even clear in the rule twenty six report because we say we're not bound and they say we're not making our our payments in accordance with the agreement and our defense to their claim that we're not making our payments in accordance to the collective bargaining agreement is we're out bound we don't have to you have no ability hold us accountable so they could have attached that document to a charge and brought a charge against us and so i accordingly submit that you can't bootstrap it by virtue of using what they did in this case ways so i think what this court realised in the jury durham driving case at nine seventy four that second one thousand nine hundred ninety two case is that you can have a repudiation of variety of different ways and doesn't necessarily have to be in writing it could be virtue of your conduct frankly by virtue of the conduct that led to the original filing of the lawsuit united states district court in march of two thousand and fourteen that we were pain our obligations we weren't letting them do audits that subjected us to this claim they could have brought that claim that we're repeating or obligations and the like to burke agreement at that time in this case we went farther than what durham suggest is allowed durham suggests that it need not be expressed in this case we did it by virtue of our conduct or not allowing them to audit or not remain all the payments we put an answer on file that says we're not bound we participate in a rule twenty six conferences says not only are we not bound but when you claim that we're delinquent our contributions are not allowing you to do your audits and investigations you want we say we don't have to because we're not obligated by the c b a's or the trust agreements ok question you just said we're not making all the payments the however anderson continued to make all the requisite payments and remains as to the union mean the trust funds until may twenty fifth now is that wrong that simply factually wrong and that's where laid out in that it's laid out in the charge by the union itself which says that what we went wrong about it w because the by virtue of this courts the united states district court the union sued a saying that we wrote eighty three with their interest etc would have been two hundred plus the district court scale that back down to about eleven thousand this court then reduced that further down to about two thousand because it eliminated one of the employee's left minute contributions by two other employees so there's litigation where there so it is for a principle amount of eighty three thousand plus with interest liquidated damages it's an astronomical number of two hundred plus because it goes back eight plus years this year court scales that way down to eleven thousand principal about eight thousand interest eight thousand liquidated damages this court in a case they asked to take judicial notice of which we haven't disputed scale that down even further remanded in took out one of the principal employees was about nine thousand so it was about two thousand  contributions but regardless they were saying it was a low down for a second so we can understand you're saying that the l g a says anderson can you make all the requisite payments and remittances yourself until may two hundred fifteen years saying that's not right there was two thousand dollars that wasn't paid before may twenty fifteen should have been paid according to the district court's decision according to the union it's eighty thousand plus at that does it matter whether the unions view on it well i mean because they're fine understand our view was you paid everything your defense in the prior case was we didn't know anything of these guys then or our defense part cases we don't have to pay you anything we're not obligated the principal in his deposition says i send in union money because these guys are union guys so i pay their dues foreman that's my deal with them but i don't have a deal with you union and that's clear throughout his deposition i mean the bottom line is the question is is the repudiation of the agreement he made me is me misguided and say well i'm just paying for my guys because they'd oh it to their union he may meet wrong but what he's consistently saying throughout is i have no obligation a union because i'm not bound by the collective bargaining agreement i have to live you argue to the board that the l j made a factual error we do make an exception to the two that i believe we volunteer and we do it for some misguided reason what we've said all along is we're not bound by this collective bargaining agreement they were on notice of that they could have filed this charge six months after answer six months after the rule twenty six report or frankly six months within the fall into their lawsuit against us saying that we're not paying and we're not adhering to our obligations they didn't do that i think that this is a case which is clearly barred by the limitations period and they don't get to resurrect it by trying good morning and may please the court joel heller for the national labor relations board substantial and uncontested evidence supports the board's finding of an unlawful repudiation and withdrawal of recognition there's no dispute that andersen  union dues and ceased making contractually required benefit from contributions and then it did not having any collective bargaining agreement with the union so the nub of the case at this stage is whether the charge alleging that violation was timely filed and the board was correct that it did judge smith as you were getting at in your questions earlier the despite the statements in the litigation papers and the answer in the rule twenty six f report for nearly a year there after andersen continued making benefit contributions to the three benefits it continued remitting union dues as required by the collective bargaining agreement and it accompanied these contributions with a with the essential a cover letter that included a  certification from the president of the company saying these payments were made were being made for work covered by a collective bargaining agreement between this employer and local five seventy one so it's clear it's well established by both board law and this court law that when an employer is sending mixed signals when there is an inconsistency between words and actions that does not provide the requisite clear and unequivocal notice to start it running of the limitations  that was being discussed that continued failure to make contractually required benefit contributions can constitute a repudiation and the other case i would like to call the court's attention to cited in our brief is the twin city  pipe fitters case which held that the point i was just making when they are inconsistency is between words and actions when an employer says it is not bound by an agreement but yet in its actions continues to comply with the terms of the agreement but continued to make payments which seemed in conflict with the statement not in compliance with the c b a but out of a desire to be the method sent to its employees well i just i don't think one i don't think it matters what it's reasons for making the payments were i mean there's nothing in that city case to answer the pipe case about saying well if you thought you were doing it for one reason but nonetheless we're continuing to comply with the terms of the agreement and that's that makes it a clear  example the ones to the training fund the payments to the training funds that's it our penned to seventy six to two eighty five and for the other funds the health and welfare fund of the pension fund that starts at three o eight and it's at the beginning of the page  there's a paragraph that says what i said that these payments are being made for work covered by a collective bargaining agreement it's signed by virginia anderson who's the president of andersen excavating but the other point to make is that when the new went into effect in twenty fourteen there was a change in the amount of pension contributions that employers were required to make it went up from three sixty five an hour to three ninety five an hour and after that change the andersons contributions to the pension fine track to that new language it went up from three sixty five to three ninety five you look at again our appendix compare three  that's what i would say in response to the to the point that this that they were doing this voluntarily that actually followed pretty closely what was in the collective bargaining agreement and that does not provide the requisite notice to start the tenby period what does provide that clear and unequivocal notice as the board found was the complete suspicion of all payments in may twenty fifteen the union filed in july twenty fifteen two months later clearly within the six month limitations period speaking for a moment about the district court litigation which anderson also mentions this morning that was a different issue the issue at stake and that litigation it was a question of partial delinquency the andersen had been making payments into the three fines but it had there was a dispute over whether it should have been making payments for for particular employee s there was whether they were doing operating engineers work and that's covered by the contract it wasn't an issue as in the n l r b charge that there was a wholesale station of payments so in fact the anderson did continue making payments into the fines and didn't can continue remitting union dues up through may twenty fifth and surveil date is correct judge quality and that all of the payments had been had been made with the exception of these of this fight over whether particular employees were performing cover work they had been doing that hypothetically i'm i guess that would present a closer case of whether that was clear and unequivocal notice i think they would all be other things because it's and i ask it is yours you seem to be relying on the fact that they made the payments but i don't know if that is enough as long as it's clear that these are not humans according to remit well they owe a couple things in response one is it's not just to the payments into the three funds and to end the union dues it's all the boards and no they were also paying union wages to their employees that were in compliance with the terms of the collective bargaining agreement it was also the remission of union dues we were talking about the contribution and they were also allowing themselves to be audited and to ensure compliance with the with the obligations again which is something that would happen under the collective bargaining agreement so it's for all these reasons that the board found anderson had been balance was bound by its con point i can find it on page six of the board's decision and at the bottom of that first column he says for nine months after the effective date of the twenty fourteen twenty eighteen agreement responded abided by all of its t right and so all the payments were being made into the three funds and to the remission and to the remission of union dues were being made really both in the in the immediate aftermath so innocent points of these two documents filed with the district court it's answer and the will twenty six f report so they answer was filed on may fourth start may sixteenth two thousand and fourteen and two days later on may eighteenth andersen filed can made contributions to the training fund including dues to the union as required under the collective bargaining agreement so it's both in the in immediate aftermath of the of the two filings and also as i said for nearly a year there after that it was making these payments and that is not the kind of notice necessary to start the ten b period the twenty six f report also makes clear the point i was making earlier that this was that that lawsuit is about a partial delinquency rather than a wholesale required that record required employer contributions have been paid and the new injury sponsors not all of required contributions were paid also in the district court's opinion and its findings of fact it talks about how some payments had been made two payments had been made to cover some employees just not all of the employees and i just point out this is not the andersen cited gerri during dry wall for that for a principle about a continuing violation and whether that can when that is timely this is not a continuing violation case that was not the theory the board relied on so any language about that type of theory is an ap and unless there are further questions the only other point i would like to make is that there is discussion in the brief in anderson's brief about whether deposition testimony can be relied upon or the deposition testimony in this case should be relied upon as as evidence of a violation that question is is really not does really doesn't need to be addressed by this court because the board found as independent grounds for the violation that the this to say sion of payments that we've been talking about it says even without the deposition testimony it would find the same violations here so without any further questions and i would ask that the court enforce the board's order in full thank you  is factually incorrect to assert that the united states district court case was only about partial payments not being made if you look at the complaint filed by the union and the trust's one of the demands for relief is to allow them to do an accounting the district court ordered and accounting that portion of the decision was affirmed by this court in the circuit they allege that we were refusing to allow required audits to be conducted of company payroll records to verify proper compliance with and in a proper amounts the pan demand has been made upon defendants for compliance with the provision of the aforementioned agreements and said demand has been refused by this defendant why did we refuse to allow the audit because we said we were not bound we made payments for any reason did we unequivocally say we were not bound by this agreement yes we did and if you look at the certification letters you want to speak to those the certification letters are the testimony is should be read of there were just forms that she signed and i understand that you're not bound of them and that's part of the evidence that they used in the underlying district court case that was part of their mo i'm saying if the union reads that there's no testimony that the union was confused by that notice because they've said that we've repudiated our obligations we're fusing to comply with them in a lawsuit filed against us on march twenty five two thousand and fourteen and if you look at the original charge filed by the union in two thousand and fifteen they mention nothing about payments their repudiation is all credit catered upon anderson's position in the litigation that it was not bound that reflects by virtue of their admission that they're not looking at payments that they're  their original charge they're focused on are repudiation litigation that repudiation litigation is reflected in our answer it's why they sued us that's why they sought relief to enforce the agreements against us and require us to make ourselves available for audit and we defended that we said we're not bound now we've lost that but that was all a year before they filed their charge against us this claim is simply was used as a pressure point in that litigation it is stale they were on notice of the exact same facts no one's the energy doesn't answer the fundamental question is could they have filed this charge of than six months of our answer because their complaint says they're not