United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2848

No. 11-3115

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Laborers District Council of Minnesota *

and North Dakota, *

*

Petitioner/Cross Respondent, * Petition for Review of

* an Order of the National 

v. * Labor Relations Board.

*

National Labor Relations Board, *

*

Respondent/Cross Petitioner. *

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Submitted: May 16, 2012

Filed: August 7, 2012

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Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.

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LOKEN, Circuit Judge.

The Laborers District Council of Minnesota and North Dakota (“the Union”)

petitions for review of a decision of the National Labor Relations Board ordering the

Union to cease and desist violating § 8(b)(4)(ii)(B) of the National Labor Relations

Act (“NLRA”), 29 U.S.C. § 158(b)(4)(ii)(B), by coercing Lake Area Fence, a newly

formed commercial fencing subcontractor, not to do fence installation work for

Century Fence Company, a nonunion contractor. Concluding that the Board’s

decision is a reasonable construction of the statute and is supported by substantial

evidence on the administrative record as a whole, we deny the petition for review and
grant the Board’s cross-petition to enforce its Decision and Order. See 29 U.S.C.

§ 160(e); NLRB v. Pipefitters, 429 U.S. 507, 528, 531 (1977) (standard of review).

I.

As relevant here, § 8(b)(4)(ii)(B) provides: “It shall be an unfair labor practice

for a labor organization or its agents . . . (4) . . . (ii) to threaten, coerce, or restrain any

person . . . where . . . an object thereof is . . . (B) forcing or requiring any person . . .

to cease doing business with any other person.” The statute is part of § 8(b)(4), in

which Congress curbed the use of coercive and disruptive union actions undertaken

to pressure a neutral or secondary employer (here, Lake Area) with the intent of

forcing the neutral to cease doing business with a primary employer (here, Century)

with which the union has an on-going collective bargaining dispute. Ozark Interiors,

Inc. v. Local 978 Carpenters, 957 F.2d 566, 568 (8th Cir. 1992). “Restrictions on

secondary boycotts . . . implement dual congressional objectives of preserving the

right of labor organizations to bring pressure to bear on offending employers in

primary labor disputes and of shielding unoffending employers and others from

pressures and controversies not their own.” Sheet Metal Workers’ Int’l Ass’n v.

NLRB, 989 F.2d 515, 519 (D.C. Cir. 1993) (quotation omitted).

Section 8(b)(4) is a complex statute that “describes and condemns specific

union conduct directed to specific objectives.” Local 1976, United Bhd. of

Carpenters (Sand Door), 357 U.S. 93, 98 (1958). The statutory landscape is even

more complex in cases, such as this, which involve collective bargaining in the

construction industry. In 1959, Congress overruled the Supreme Court’s Sand Door

decision by amending § 8(b)(4) to add subsection (ii) and by enacting § 8(e), the “hot

cargo” provision that prohibits collective bargaining agreements in which an

employer agrees “to cease doing business with any other person,” such as a secondary

employer. 29 U.S.C. § 158(e). But a proviso to § 8(e) states that it does not apply to

agreements “in the construction industry relating to the contracting orsubcontracting

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of work to be done at [a construction job] site.” See generally Woelke & Romero

Framing, Inc. v. NLRB, 456 U.S. 645, 652-660 (1982). However, “regardless of

whether an agreement is valid under [the construction industry proviso to] § 8(e), it

may not be enforced by means that would violate § 8(b)(4).” Pipefitters, 429 U.S. at

521. That is the statutory intersection the Board confronted in this case. 

II.

The Union, on behalf of seven Minnesota local Laborers unions with 11,000

members, entered into a “pre-hire” Highway-Heavy agreement with a multi-employer

group, the Associated General Contractors of Minnesota. As permitted by the

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proviso to § 8(e), Article 16 of the Highway-Heavy agreement provides that a

participating employer, “while subletting or contracting out laborers work at the job

site . . . will sublet or contract such work only to a subcontractor who has signed or

is otherwise bound by a written labor agreement” with the Union. Most construction

sites in Minnesota are “union projects” in which the general contractor is a signatory

party.

Century, based in Wisconsin, is a nonunion contractor that for many years has

bid on and been awarded fencing contracts or subcontracts on union and nonunion

projects in Minnesota. Century employs no laborers and does not perform fence

installation work. Rather, it procures and delivers fencing materials and serves as

“construction manager” for fencing work at the job site. For projects awarded to

general contractors who are signatories to the Highway-Heavy agreement, Century

Recognizing the unique history of bargaining in the construction industry,

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where employment at particular job sites tends to be transitory, § 8(f) allows unions

and employers to enter into pre-hire agreements before the union has established

majority status. 29 U.S.C. § 158(f). “Unlike bargaining agreements with majoritystatus unions, § 8(f) pre-hire agreements may be unilaterally repudiated after they

expire.” McKenzie Eng’g Co. v. NLRB, 303 F.3d 902, 908 n.3 (8th Cir. 2002). 

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uses only union-affiliated subcontractors to do work that is within the jurisdiction of

local Iron Workers and Laborers unions. 

Beginning in 2007, Laborers Local 563 began pressuring signatory general

contractors not to enter into subcontracts with Century because it had no union

agreement. Century approached the Union, offering concessions and arguing that its

function as construction manager using union labor did not violate Article 16 of the

Highway-Heavy agreement, but refusing the Union’s demand that Century sign a

union contract if it wished to continue to be awarded subcontracts on union projects

in Minnesota. The Board’s Administrative Law Judge (ALJ) found that, when

Century refused the Union’s demand, “the Union . . . expressed resultant hostility.”2

The Union then turned its attention to neutral subcontractors performing

Century’s fence installation work. In 2008, a Union representative told Century that

if it refused to sign a contract, the Union would not sign or renew § 8(f) agreements

with any subcontractor who did business with Century; subcontractors could work

with Keller Fence if they wished to continue working on union projects. Consistent

with this threat, the Union refused to renew § 8(f) agreements with two Century

subcontractors, Mid-America Fencing and Winslow Fencing. In response, Century

filed a § 8(b)(4)(ii)(B) unfair labor practice charge. As part of a Settlement

Agreement approved by the Board’s Regional Director, the Union agreed:

WE WILL NOT refuse to sign a collective bargaining agreement with

or otherwise threaten coerce orrestrain Mid-America Fencing, Winslow

Fencing or any other person to force Mid-America Fencing, Winslow

The reason for the Union’s hostility is apparent. A Union witnesstestified that 2

Keller Fence company, the largest Union signatory fence contractor, said “it would

be nice” if Century became a signatory contractor because that would increase its

labor costs on nonunion projects, creating a “level playing field” for Keller. 

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Fencing or any other person to stop doing business with Century Fence

Company.

Mid-America and Winslow then regained their status as union subcontractors.

That brought the primary dispute between the Union and Century to April

2010, when Lake Area entered the picture. Owner Sharon Roush formed Lake Area

as a fencing subcontractor satisfying minority business enterprise requirements. 

Roush had two employees, her son and an experienced union installer; she intended

to work with Century and become a union-affiliated subcontractor because there was

more union than nonunion work available. Roush met with Union representatives,

signed the Highway-Heavy agreement subject to the Union’s approval, and submitted

the Union’s new-contractor processing form. Union representatives appeared

receptive until Roush disclosed that Lake Area intended to work with Century. 

Within one hour of this disclosure, the Union notified Lake Area that it would not

sign an agreement. The explanation was that Roush had submitted incomplete

information. Lake Area then filed this § 8(b)(4)(ii)(B) unfair labor practice charge.

The ALJ held an evidentiary hearing at which Roush and representatives of

Century, Mid-America, and the Union testified at length. In a thorough opinion, the

ALJ first credited the testimony of Roush and the Century and Mid-America

representatives, rejecting as pretextual the Union President’s testimony that he did not

sign a contract with Lake Area because Roush had lied to him. On appeal, the Union

does not challenge the ALJ’s credibility findings. The ALJ then concluded:

[T]he evidence demonstrates that the Union’s intent in declining

to allow Lake Area to become signatory to the Agreement was to force

Century to become a signatory contractor by depriving it of

subcontractors to work on union jobsites unlessit agreed to a collectivebargaining agreement with the Union. It is inherent that in this method

of persuading Century to become a union contractor, pressure must first

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be applied to neutralsecondary employers such as Lake Area, employers

without the ability to influence the labor relations of Century. As the

Board said in Limbach, it is this secondary object -- to enmesh Lake

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Area in the Union’s dispute with Century, with the aim of compelling

the latter to become a signatory to a contract with the Union -- that

renders the Union’s otherwise legal refusal to enter into an 8(f)

relationship with Lake Area, unlawful. Limbach, supra at 315. And it

is exactly such neutralsecondary employers as Lake Area thatCongress,

by enacting Section 8(b)(4)(B), intended to shield from secondary

pressure, such as that imposed by the Union herein.

Acknowledging the Union’s freedom not to enter into a § 8(f) agreement with new

employer Lake Area unless its motive is unlawful, the ALJ rejected the General

Counsel’s request that the Union be ordered “to implement contractual terms that it

has not agreed to.” Instead, the ALJ recommended that, consistent with the remedy

in Limbach, the Board order the Union to “cease and desist from threatening,

coercing, or restraining Lake Area Fence, Inc. . . . with an object of forcing or

requiring Lake Area Fence . . . to cease doing business with Century Fence

Company.” The Board, one member dissenting, agreed with the ALJ that Limbach

“is not meaningfully distinguishable from this case.” It affirmed the ALJ’s findings

and conclusions and adopted the cease-and-desist order recommended by the ALJ.

III.

On appeal, the Union first argues that the Board’s Order is contrary to a labor

organization’s freedom of contract, a fundamental policy of the National Labor

Relations Act recognized in H.K. Porter Co. v. NLRB, 397 U.S. 99, 108 (1970). We

agree with the Union that freedom of contract is an important right reserved to

Local Union No. 80, Sheet Metal Workers (Limbach Co.), 305 NLRB 312

3

(1991), enf’d in relevant part, Sheet Metal Workers Int’l Ass’n v. NLRB, 989 F.2d

515 (D.C. Cir. 1993).

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employers and unions in the federal labor laws. For that reason, earlier in these

proceedings, a district court denied the Regional Director’s request for a preliminary

injunction under § 10(l) of the Act, 29 U.S.C. § 160(l), that would have “force[d] the

Union to enter into and abide by an agreement that it did not make” with Lake Area. 

Osthus v. Laborers Dist. Council, 742 F. Supp. 2d 1042, 1048 (D. Minn. 2010). But

freedom of contract is not an absolute right. “Various practices in enforcing the Act

may to some extent limit freedom to contract as the parties desire.” H.K. Porter, 397

U.S. at 108 n.6. The issue is whether the Union had an unfettered right to refuse a

§ 8(f) contract for a motive the Act declares to be unlawful. We think clearly not. 

The NLRA’s secondary boycott provisions do not require that the coercive

conduct itself be unlawful. “Indeed, courts have routinely held that the otherwise

legal exercise of rights afforded by a collective bargaining agreement can become

unlawful when aimed atsecuring an objective prohibited by section 8(b)(4).” Brown

& Root, Inc. v. La. State AFL-CIO, 10 F.3d 316, 323-24 (5th Cir. 1994) (collecting

cases). “[A]n improper motive may make unlawful what is otherwise unassailable

conduct.” Limbach Co. v. Sheet Metal WorkersInt’l Ass’n, 949 F.2d 1241, 1255 (3d

Cir. 1991) (en banc). “The right of a union unilaterally to terminate a contractual

relationship for legitimate reasons . . . does not extend to terminating for a purpose

of applying economic coercion to achieve a prohibited secondary objective.” 

Gottfried v. Sheet Metal Workers’ Int’l Ass’n, 876 F.2d 1245, 1251 (6th Cir. 1989). 

Therefore, the Board and reviewing courts “look to the intention of partiesin coercing

neutral parties, not to the general rights of parties to take particular actions.” Taylor

Milk Co. v. Int'l Bhd. of Teamsters, 248 F.3d 239, 245 (3d Cir.), cert. denied, 534

U.S. 1055 (2001). For example, lawful union actions such as striking and picketing,

filing grievances, withholding discretionary concessions, and peaceful group

shopping have all been condemned as violating § 8(b)(4) when employed for the

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purpose of putting coercive economic pressure on a neutral employer to further the

union’s proscribed secondary objective.

4

Alternatively, the Union argues that the Board’s remedy in this case violates

the fundamental policy because it “amounts to a directive . . . that the Union cannot

continue to exercise its freedom of contract.” But the order contains no such

directive. As in Limbach, the Board and the ALJ rejected the NLRB General

Counsel’s request for such a remedy, instead ordering only that the Union cease and

desist from the coercion of a secondary employer made unlawful by § 8(b)(4)(ii)(B). 

The Board’s remedy gives Lake Area a fresh opportunity to become a signatory

subcontractor, while recognizing the Union’s right to reject a § 8(f) agreement with

Lake Area for any lawful reason. Given its repeated practice of coercing Century

subcontractors, Union officials may find it difficult to refuse to enter into or to renew

§ 8(f) agreements with fencing subcontractors who meet objective standards of

acceptable contracting parties. But if so, that will be the result of the Union’s prior

unlawful actions, not a violation of the fundamental policies of the NLRA. 

More intriguing questions are raised by the Union’s contention that the Board

erred in concluding that the Union engaged in the requisite coercion. The applicable 5

standard of review controls our resolution of this issue. The Union strives to pose a

question of law, arguing that choosing not to enter into a contract cannot be unlawful

coercion within the meaning of § 8(b)(4)(ii)(B) because § 8(f) agreements are wholly

voluntary. But it is the effect on the secondary employer, not the lawfulness of the

See Limbach, 949 F.2d at 1253; Local Union No. 25, Int’l Bhd. of Teamsters 4

v. NLRB, 831 F.2d 1149, 1153-54 (1stCir. 1987); Sheet Metal Workers, Local Union

No. 91 v. NLRB, 905 F.2d 417, 424 (D.C. Cir. 1990); Pye v. Teamsters Local Union

No. 122, 61 F.3d 1013, 1024 (1st Cir. 1995).

The Union does not challenge the Board’s fact-intensive finding of the other

5

element of a § 8(b)(4)(ii)(B) violation -- that the Union acted with the intent of

forcing Lake Area to cease doing business with Century. 

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underlying action, that is the critical inquiry. The Board has long defined “coercion”

to include “economic retaliation or pressure in a background of a labor dispute,”

defining such conduct to include “refusing to execute a collective-bargaining

agreement or to refer workers.” Sheet Metal Workers Local 91 (Schebler Co.), 294

NLRB 766, 775 (1989), enf’d in relevant part, 905 F.2d 417, 424 (D.C. Cir. 1990);

accord Associated Gen. Contractors of Cal., Inc. v. NLRB., 514 F.2d 433, 438 (9th

Cir. 1975) (coercion includes “any form of economic pressure of a compelling or

restraining nature”). Except where First Amendment concerns may require greater

caution, the Board’s interpretation of coercion is entitled to deference. See Pye, 61 6

F.3d at 1023.

The Union’s legal argument is contrary to the Board’s decision in Limbach that

a union engaged in unlawful coercion by refusing to renew a secondary employer’s

§ 8(f) contract. Because the dispute involved multiple local unions, the Board’s

construction of the statute was ultimately upheld by three of our sister circuits. See

Sheet Metal Workers, 989 F.2d at 520-22; Limbach, 949 F.2d at 1256-57; Gottfried,

876 F.2d at 1251. The Union attempts to distinguish Limbach because it involved the

repudiation or refusal to renew existing § 8(f) agreements with an established

company. We agree with the Board that, in construing the statutory prohibition on

secondary coercion, there is no meaningful legal distinction between refusing to

renew an expired § 8(f) agreement, and refusing to enter into an initial § 8(f)

agreement. We note, too, that the Union in settling Century’s prior § 8(b)(4)(ii)(B)

charge broadly agreed that it would not “refuse to sign a collective bargaining

agreement with . . . Mid-America Fencing, Winslow Fencing or any other person in

order to force” that person to stop doing business with Century. 

Such as cases involving peaceful picketing or handbilling. See Edward J. 6

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,

577-78 (1988). This case involves the Union’s economic pressure on Century’s

subcontractors, not its earlier effortsto persuade general contractorsignatories not to

subcontract with Century. 

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The Union also argues that its actions were not in fact economically coercive

because Lake Area had no prior union affiliation, had no right to union affiliation,

and could continue working as Century’s nonunion fencing subcontractor on the one

nonunion project that Lake Area had obtained. This is a serious issue. But it is fact

intensive. Applying the deferential substantial evidence standard of review, we

conclude the Board’s decision must be upheld. 

Even though Lake Area had no right to a § 8(f) contract, the record established

that Roush formed the new company with a reasonable expectation of becoming a

union fencing subcontractor. The Union’s control over signatory status is a

“powerful economic weapon” when thatstatus dictates an employer’s accessto union

projects and workers. Limbach, 949 F.2d at 1256. Here, because of Article 16 of the

Highway-Heavy agreement, the Union’s refusal barred Lake Area from all union

projects in Minnesota at a time when more union than nonunion work was available. 

It also deprived Lake Area of the other benefits of union association, such as a ready

supply of trained labor, and it crippled the fledgling enterprise’s union-oriented

business plan -- a plan the Union should have applauded. In these circumstances, the

Board reasonably concluded that the Union’s refusal went beyond lawfully

persuading Lake Area to cease doing business with Century and reached the level of

unlawful secondary coercion through the application of compelling economic

pressure. See NLRB v. IBEW, 405 F.2d 159, 161-62 (9th Cir. 1968) (Board

reasonably found unlawful economic coercion when threatened § 8(f) contract

termination would make the employer an “ineligible business associate in the eyes

of . . . other [union-affiliated] contractors”), cert. denied, 395 U.S. 921 (1969). 

For the foregoing reasons, we deny the Union’s petition for review and grant

the Board’s cross-petition to enforce its Decision and Order.

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