United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-2516

___________________________

National Labor Relations Board

lllllllllllllllllllllPetitioner

v.

Anderson Excavating, Company

lllllllllllllllllllllRespondent

____________

National Labor Relations Board

____________

Submitted: January 16, 2019

Filed: May 31, 2019

____________

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”), coown 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

-2-
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 Funds1

 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

1

The CLT&E Funds are composed of two trusts: a health-and-welfare trust and

a pension trust. 

2

In approximately 2012 or 2013, Virgil retired, and Virginia, his wife, began

operating Anderson. 

-3-
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 report3

 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

3

Federal Rule of Civil Procedure “26(f) requires that the attorneys of record

arrange a conference, outline a discovery plan, and submit the discovery plan to the

court in the form of a written report within 14 days.” Siems v. City of Minneapolis,

560 F.3d 824, 825 n.2 (8th Cir. 2009).

-4-
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

for payments to the IUOE Local 571 Training Fund on behalf of such

employee. 

Petitioner’s App. at 271–287. 

In addition, Anderson continued making contributions to the CLT&E Funds and

submitted CLT&E Fringe Benefit Reports. The reports contained a signed certification

from Virginia substantially similar to the one contained in the Training Fund Reports.

See Petitioner’s App. at 308–326.

4

The remittance reports were filed with the Union on May 30, 2014; June 30,

2014; July 30, 2014; August 29, 2014; September 30, 2014; October 29, 2014;

November 30, 2014; December 30, 2014; January 30, 2015; February 25, 2015;

March 27, 2015; and April 30, 2015. 

5

The record also contains Training Fund Reports from when Anderson resumed

making payments in November and December 2015.

-5-
Finally, when a new CBA went into effect in 2014, Anderson paid the new

CBA’s increased CLT&E contribution amount, which increased from $3.65 to $3.95

per hour.6

On May 20, 2015, Virgil and Virginia gave depositions in the federal lawsuit.

Both denied that they had any CBAs with the Union and stated that they were making

payments to the union funds and remitting union dues based on an unspecified and

unwritten agreement with their employees. The same month, following Virgil’s and

Virginia’s depositions, Anderson stopped making trust fund contributions and

remitting dues to the Union. 

On June 19, 2015, Larry Murray, the CLT&E Funds Administrator, notified

Virginia via letter that counsel for the CLT&E Funds informed him of Anderson’s

position that it had no CBA relationship with the Union. Because Anderson had

“advised of the termination of the [CBA] obligations with [the Union],” Murray

explained that counsel instructed him “that it is unlawful for these Plans to accept

employer contributions or provide benefits pursuant to the Trust Agreements and Plan

documents.” Respondent’s App. at 84. Murray stated that “no further payments can

lawfully be accepted or benefits provided.” Id. 

Aaron Fichter, the Union’s Business Manager, notified Union members that he,

too, was “advised that it is not lawful for [the CLT&E Funds] to accept Anderson

Excavating contributions or provide benefits pursuant to the Trust Agreements and

Plan documents.” Petitioner’s App. at 355. Fichter explained the legal dispute between

6

The record shows that for the pay period of June 1, 2014, to June 30, 2014,

Anderson contributed $3.65 per hour for the Pension Fund portion of the CLT&E

Funds. Petitioner’s App. at 308. Then, for the pay period of July 1, 2014, to July 31,

2014, Anderson changed the contribution amount to $3.95 per hour. Id. at 309. This

change in the contribution amount occurred during the time when the new CBA went

into effect. 

-6-
the CLT&E Funds and Anderson and the resulting nonacceptance of contributions as

based on Anderson’s lack of a CBA and the inability of CLT&E Funds to accept

contributions from a non-signatory company.7

On July 16, 2015, the Union filed a charge with the Board alleging that

Anderson violated the NLRA by denying it was bound by any CBA with the Union.

It amended its charge on January 22, 2016. The amended charge alleged that

Anderson violated the Act by withdrawing recognition from the Union and

repudiating the parties’ 2014–2018 CBA by stating it was not bound by the agreement

and by failing to abide by its terms, including provisions requiring payments to the

CLT&E Funds and the Training Fund and the remittance of dues to the Union. 

In November 2015, Anderson resumed making payments and remittances in

accordance with the 2014–2018 CBA.8

On August 11, 2016, the district court concluded that Anderson was “liable to

the plaintiffs for delinquent contributions under 29 U.S.C. § 1145.” Findings of Fact

and Conclusions of Law at 22, Marshall v. Anderson Excavating & Wrecking Co., No.

8:14-CV-96 (D. Neb. Aug. 11, 2016), ECF No. 77. In reaching this conclusion, the

7

With regard to the CLT&E Funds, the administrative law judge (ALJ) noted

that, following the June 2015 letter to Anderson, “[t]he trust and the Unions

subsequently accepted contributions and remittances due from [Anderson].” Anderson

Excavating Co. & Int’l Union of Operating Eng’rs Local 571, No. 14-CA-156092,

2016 WL 4426389, at *1 n.6 (N.L.R.B. Aug. 19, 2016). The ALJ “assume[d] they did

so on the theory that [Anderson] is a signatory contractor, regardless of what the

Andersons stated in their depositions. Neither the trusts, the Union nor [Anderson]

have been entirely consistent in this matter.” Id. 

8

When Anderson resumed making these payments and remittances, the Union

initially rejected them because they were not accompanied by signed reports.

Anderson then signed the reports and resubmitted them. The Union then accepted the

payments. 

-7-
district court found that Anderson “manifested acceptance to each successive CBA by

. . . . continuously pa[ying] hourly wage rates in accordance with each CBA,

withh[olding] administrative dues in accordance with each CBA, and ma[king]

contributions to the [CLT&E Funds and Training Fund] in accordance with the rates

set forth in each CBA.” Id. at 13–14. The court also noted that Anderson “asked for

guidance on withholding administrative dues, sought referrals from the Union hiring

hall, and complied with audits” as further evidence Anderson “manifest[ed] its

acceptance to each of the CBAs succeeding the 2004 CBA.” Id. at 14.

On August 19, 2016, the administrative law judge (ALJ) concluded Anderson

“violated Section 8(a)(5) and (1) [of the NLRA] in withdrawing recognition from the

Union and repudiating its collective bargaining obligations,” “is bound by the

2014–2018 Heavy Highway Agreement,” and “violated Section 8(a)(5) and (1) [of the

NLRA] by repudiating the terms and conditions of the 2014–2018 [CBA].” Anderson

Excavating Co., 2016 WL 4426389 (italics omitted). The ALJ rejected Anderson’s

argument that the Union’s charge against it was “time barred because the Union was

on notice that [Anderson] was withdrawing recognition as of May 2014 when it filed

its Answer to the Union’s District Court complaint.” Id. The ALJ found “that the

Union did not have clear and unequivocal notice of . . . Anderson’s withdrawal of

recognition and repudiation of its collective bargaining obligations until May 2015.”

Id. In May 2015, Anderson ceased making “all the requisite payments and remittances

to the Union and the Trust Funds.” Id. 

The Board affirmed the ALJ’s rulings, findings, and conclusions. To remedy

Anderson’s violations, the Board ordered Anderson to cease and desist from the unfair

labor practices found. It also ordered Anderson to cease and desist from interfering

with, restraining, or coercing employees in the exercise of their rights under Section

7 of the NLRA. And, the Board ordered Anderson to recognize the Union as the

exclusive collective bargaining representative of its bargaining unit employees and to

honor and comply with the 2014–2018 Heavy Highway Agreement. Finally, the Board

-8-
ordered Anderson to make employees whole for any monetary losses they may have

suffered as a result of Anderson’s repudiation of the 2014–2018 Heavy Highway

Agreement, including any adverse tax consequences of receiving a lump-sum backpay

award; make any payments to the CLT&E Funds and Training Fund that it had failed

to make since May 20, 2015; reimburse the Union for dues it had failed to remit; and

post a remedial notice. 

II. Discussion

Anderson challenges the Board’s order, arguing that (1) the Union’s July 16,

2015 unfair labor practice charge was untimely; (2) Virgil’s and Virginia’s deposition

testimony in the federal lawsuit improperly served as the basis for the unfair labor

practice charge; and (3) any of Anderson’s conduct that could be construed as an

unfair labor practice arose because of the Union’s actions, threats, or inducements. 

“We review the Board’s findings of fact for substantial evidence on the record

as a whole, that is, for such relevant evidence as a reasonable mind might accept as

adequate to support a finding.” Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772,

775 (8th Cir. 2016) (internal quotations omitted). We review de novo the Board’s

legal conclusions. Id. 

A. Timeliness of Charge

Anderson argues that the Union’s July 16, 2015 unfair labor practice charge

was untimely because it was filed more than six months after Anderson’s unequivocal

repudiation of the CBA in its May 16, 2014 answer to the federal lawsuit. 

“The [NLRA] requires that a party, wishing to assert the existence of a violation

of the Act, pursue its right in a timely manner.” NLRB v. Jerry Durham Drywall, 974

F.2d 1000, 1003 (8th Cir. 1992). Section 10(b) of the NLRA provides “[t]hat no

complaint shall issue based upon any unfair labor practice occurring more than six

months prior to the filing of the charge with the Board.” 29 U.S.C. § 160(b). 

-9-
“The six-month limitation period [set forth in Section 10(b)] begins to run when the

charging party receives ‘clear and unequivocal notice that the unfair labor practice had

occurred.’” NLRB v. Seedorff Masonry, Inc., 812 F.3d 1158, 1167 (8th Cir. 2016)

(quoting NLRB v. La-Z-Boy Midwest, 390 F.3d 1054, 1061 n.1 (8th Cir. 2004)).

Anderson Excavating “has the burden to establish this defense by proving that [the

Union] was put on notice more than six months before its [July 16, 2015]

charge . . . .” Id.

“[A] repudiation need not be an express, written repudiation but instead can be

manifested in a variety of ways.” Jerry Durham Drywall, 974 F.2d at 1004.

“Numerous Board and court decisions establish that a . . . CBA may be repudiated by

‘open and notorious acts by one party, known to the other, which are inconsistent with

the continuance of the contract.’” Seedorff Masonry, Inc., 812 F.3d at 1167 (quoting

Contractors Health & Welfare Plan v. Harkins Constr. & Equip. Co., 733 F.2d 1321,

1326 (8th Cir. 1984)). “[W]here an employer repeatedly fails to make union benefit

fund contributions as required by a [CBA], the union is put on notice that the

employer has repudiated the agreement, thus triggering the commencement of the

section 10(b) period for filing a charge.” Jerry Durham Drywall, 974 F.2d at 1004

(holding employer’s “failure to ever comply with any of the terms of the contract and

his continuing failure to pay into the Union’s fringe benefit funds constituted a total

repudiation of the contract”). 

But “actual or constructive notice [of repudiation] will not be found where a

party sends conflicting signals or otherwise engages in ambiguous conduct.” Masonic

Temple Ass’n of Detroit, 364 NLRB No. 150, 2016 WL 7033086, at *1 n.1 (Nov. 29,

2016), enforced mem., No. 17-1108, 2017 WL 6514638 (6th Cir. Dec. 4, 2017). Thus,

when an employer’s words and actions conflict, the employer has failed to manifest

clear and unequivocal notice of the employer’s contract repudiation. See, e.g., Positive

Elec. Enters., Inc. & Int’l Bhd. of Elec. Workers, Local 43, 345 NLRB 915, 919

(2005) (concluding that employer’s statement to union representative “that he was not

-10-
financially ready to begin hiring at that time” did not constitute clear and unequivocal

notice of repudiation because “his actions otherwise communicated that he was

complying with the terms of the agreement” by “secur[ing] the bond and certificate

of insurance as requested by [the union representative] and designat[ing] the Union

Trust Funds as the beneficiary”); cf. Twin City Pipe Trades Serv. Assoc. v. Frank

O’Laughlin Plumbing & Heating Co., 759 F.3d 881, 885–86 (8th Cir. 2014) (holding

even if termination of employer’s participation in CBA was a valid defense to an

ERISA fringe benefits collection action, employer did not unequivocally express the

clear and explicit intent necessary to terminate participation in CBA necessary for

such defense to apply; employer continued to make fringe benefits contributions while

new CBA was being negotiated, and two letters it sent to union officials purportedly

terminating its participation in the CBA contained inconsistent termination dates and

did not reference the CBA’s 90-day notice provision). 

Here, Anderson argues that it manifested its clear and unequivocal notice of its

repudiation of the 2014–2018 Heavy Highway Agreement on May 16, 2014, in its

answer to the federal lawsuit. It further argues that “any confusion [about its position]

was surely eliminated when the Union’s counsel signed [the] Rule 26(f) report and

filed it . . . on June 17, 2014.” Respondent’s Br. at 23. If true, then, the Union’s unfair

labor practice charge is untimely, as it was filed on July 16, 2015—more than six

months after Anderson filed its answer.

The record, however, supports the ALJ’s conclusion, affirmed by the Board,

that “Anderson’s conduct in this case was ambiguous and thus failed to give the Union

the requisite notice.” Anderson Excavating Co., 2016 WL 4426389. Anderson’s

answer in May 2014 set forth Anderson’s position that a valid CBA no longer existed

and that Anderson was not bound by the Trust Agreements. The Rule 26(f) report filed

in June 2014 reiterated this position. “One could construe the May 2014 Answer and

repudiation of all [CBAs] with the Union as withdrawal of recognition.” Id. But

Anderson’s subsequent conduct conflicted with the position articulated in its answer

-11-
and Rule 26(f) report. As the ALJ found, “Anderson continued to make all the

requisite payments and remittances to the Union and the Trust Funds until May 2015.”

Id. Notably, when Anderson submitted contributions to the CLT&E Funds and the

Training Fund, its reports contained a signed certification by Virginia indicating that

the employees “performed work covered by a [CBA] between this employer and the

applicable union.” Petitioner’s App. at 271–287, 308–326. 

Anderson’s submission of “all the requisite payments and remittances to the

Union and the Trust Funds [continued] until May 2015.” Anderson Excavating Co.,

2016 WL 4426389. Thus, it was not until May 2015—when Anderson ceased making

payments and remittances—that Anderson’s litigation position and conduct aligned.

As a result, the Union’s July 16, 2015 unfair labor practice charge was properly filed

within the six-month statute of limitations. See 29 U.S.C. § 160(b).9

B. Deposition Testimony

Anderson next argues that the Board erred in finding that Virgil’s and

Virginia’s deposition testimony in the federal case could serve as the basis for the

Union’s unfair labor practice charge. 

The record does not support Anderson’s argument that the deposition testimony

served as the basis for the charge. Instead, the Board found that “even without relying

on the depositions, the record establishes that [Anderson] violated Sec. 8(a)(5) by

withdrawing recognition from the Union and by repudiating the terms of the

2014–2018 Heavy Highway Agreement.” Anderson Excavating Co., 365 NLRB No.

9

The Union filed its original charge on July 16, 2015. It filed an amended

charge on January 22, 2016. “It is well settled that the timely filing of a charge tolls

the time limitation of Section 10(b) as to matters subsequently alleged in an amended

charge which are similar to, and arise out of the same course of conduct, as those

alleged in the timely filed charge.” Pankratz Forest Indus., 269 NLRB 33, 36–37

(1984), aff’d mem., 762 F.2d 1018 (9th Cir. 1985). 

-12-
63, 2017 WL 1434211, at *1 n.2 (Apr. 20, 2017). As explained supra, Anderson’s

May 2014 answer and June 2014 Rule 26(f) report showed withdrawal of its

recognition. Anderson then clearly and unequivocally communicated its repudiation

by ceasing to make the required payments in May 2015. 

C. Inducement to Act 

Finally, Anderson argues that the Board erred in failing to find that the Union

induced its failure to pay in May 2015. Anderson contends the Union’s declaration

that it would refuse to accept payments based on Anderson’s prior declaration that it

was not bound by a CBA triggered its nonpayment. In support of its argument,

Anderson references the letter that Fichter, the Union’s Business Manager, wrote to

Union members notifying them that the Union had been advised that it would be

unlawful for the CLT&E Funds to continue accepting contributions from Anderson

based on Anderson’s position that there was no CBA with the Union. But Fichter’s

letter also explained that “[t]his is not the opinion of [the Union]; there is no record

of a written termination of the [CBA] and/or collective bargaining relationship

between Anderson Excavating and [the Union].” Petitioner’s App. at 355.10 Therefore,

we reject Anderson’s argument that the Union somehow induced Anderson not to

make contribution payments. 

10Anderson also cites a deposition inquiry from the Union’s attorney to Virginia

in support of its argument that the Union induced Anderson not to make contributions.

Respondent’s App. at 71 (“Are you aware it is unlawful to make payments in the

absence of a [CBA] with the union to the fringe benefit funds?”). This inquiry does

not set forth the Union’s legal position or otherwise inform Anderson that the Union

would no longer accept contributions. 

-13-
III. Conclusion

Accordingly, we deny Anderson’s petition and grant the Board’s application for

enforcement of its order. 

______________________________

-14-