Anderson Excavating Company

National Labor Relations Board - Board Decisions

Apr 20, 2017

365 NLRB No. 63 (N.L.R.B. 2017)

365 NLRB No. 63
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections
can be included in the bound volumes.
Anderson Excavating Company and International
Union of Operating Engineers Local 571. Case
14–CA–156092
April 20, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND
MEMBERS PEARCE AND MCFERRAN
On August 19, 2016, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order as modified and set forth in full below.3

1 No party excepts to the judge’s finding that the Respondent and
the Union have a Sec. 9(a) bargaining relationship. Nevertheless, Act-
ing Chairman Miscimarra disclaims the judge’s finding that language
contained in the parties’ 1996 Recognition Agreement establishes that
Sec. 9(a), rather than Sec. 8(f), governs the parties’ bargaining relation-
ship. The judge’s finding in this regard was gratuitous because the
Respondent’s withdrawal of recognition and failure to abide by the
terms of the 2014–2018 agreement, which occurred during the term of
that agreement, were unlawful even if the parties’ bargaining relation-
ship was governed by Sec. 8(f). See John Deklewa & Sons, 282 NLRB
1375, 1385–1387 (1987) (holding that, during the term of an 8(f)
agreement, employers are not free to repudiate the agreement or to
withdraw recognition unless unit employees vote against union repre-
sentation in a Board-conducted election), enfd. sub nom. Iron Workers
Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S.
889 (1988). Furthermore, Acting Chairman Miscimarra observes that
the judge’s dictum is incorrect. The 1996 Recognition Agreement
recites that the Union “has submitted proof and the Employer is satis-
fied that the Union represents a majority of the Employer’s employees .
. .” (emphasis added). As explained in Staunton Fuel, 335 NLRB 717,
720 (2001), “there is a significant difference between a contractual
statement that a union ‘represents’ a majority of unit employees—
which would be accurate under either an 8(f) or a 9(a) agreement—and
a statement to the effect that, for example, the union ‘has the support’
or ‘has the authorization’ of a majority to represent them.” Acting
Chairman Miscimarra disagrees with the holding of Staunton Fuel that
a Sec. 9(a) bargaining relationship may be established by contract lan-
guage without more, see, e.g., King’s Fire Protection, Inc., 362 NLRB
No. 129, slip op. at 3–6 (2015) (Member Miscimarra, dissenting in
part), but even under Staunton Fuel, the language of the 1996 Recogni-
tion Agreement fails to establish 9(a) status.
2 The judge found that the Respondent’s owner, Virgil Anderson,
signed the 2004–2006 Heavy Highway Agreement, but it was actually
signed on behalf of the Respondent by its attorney. The judge’s finding
did not affect his analysis and conclusions because the Respondent does
not dispute that it formally executed the 2004–2006 Heavy Highway
Agreement.
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, we
amend the judge’s remedy in the following respects. We
shall require the Respondent to recognize the Union as
the exclusive collective-bargaining representative of the
unit employees, and to honor and comply with the terms
and conditions of the 2014–2018 Heavy Highway
Agreement. If the repudiation of the 2014–2018 Heavy
Highway Agreement resulted in any loss of earnings for
unit employees, we shall require the Respondent to make
them whole. Backpay shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).4 We shall
further require the Respondent to make all contributions
to the Union’s fringe benefit funds, as required by the
2014–2018 Heavy Highway Agreement, that it has failed
to make since May 20, 2015, including any additional
amounts due the funds in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). More-
over, we shall require the Respondent to reimburse the
unit employees for any expenses resulting from its failure
to make the required contributions, as set forth in Kraft

The Respondent argues that the judge erred by relying, in part, on
Virgil and Virginia Anderson’s depositions from a separate proceeding
because such reliance is precluded by the “litigation privilege.” We
reject that argument, especially because the Respondent stipulated to
the admission of Virgil Anderson’s deposition into the record and of-
fered Virginia Anderson’s deposition into the record, both without any
limitations. However, even without relying on the depositions, the
record establishes that the Respondent violated Sec. 8(a)(5) by with-
drawing recognition from the Union and by repudiating the terms of the
2014–2018 Heavy Highway Agreement. Acting Chairman Miscimarra
does not reach or pass on whether, as the Respondent contends, a “liti-
gation privilege” precludes the General Counsel from relying on the
Andersons’ depositions to establish the unfair labor practices at issue
here, since he agrees with his colleagues that other evidence in the
record establishes that the Respondent unlawfully withdrew recognition
from the Union and failed to adhere to the parties’ collective-bargaining
agreement.
3 We shall amend the remedy and modify the judge’s recommended
Order to conform to his unfair labor practice findings and to the
Board’s standard remedial language. We shall substitute a new notice
to conform to the Order as modified.
4 The judge inadvertently stated that backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950). The
Ogle Protection formula applies where, as here, the Board is remedying
“a violation of the Act which does not involve cessation of employment
status or interim earnings that would in the course of time reduce back-
pay.” Ogle Protection Service, supra at 683; see also Pepsi America,
Inc., 339 NLRB 986, 986 fn. 2 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981).5 Such amounts
should be computed in the manner set forth in Ogle Pro-
tection Service, supra, with interest at the rate prescribed
in New Horizons, supra, compounded daily as prescribed
in Kentucky River Medical Center, supra. Additionally,
we shall require the Respondent to reimburse the Union
for any dues that, following the unlawful withdrawal of
recognition and repudiation of the 2014–2018 Heavy
Highway Agreement, it failed to deduct from wages and
remit on behalf of employees who executed dues author-
izations pursuant to that agreement prior to or during the
period of the Respondent’s unlawful conduct, with inter-
est at the rate prescribed in New Horizons, supra, com-
pounded daily as prescribed in Kentucky River Medical
Center, supra, and without recouping the money owed
for past dues from those employees.6 Finally, we shall
require the Respondent to compensate affected employ-
ees for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and to file with the Regional
Director for Region 14, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee. Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
ORDER7
The National Labor Relations Board orders that the
Respondent, Anderson Excavating Company, Omaha,

5 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Respond-
ent will reimburse the employee, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
6 The reimbursement requirement will be offset by the amount of
any dues that the Union collected over the compliance period from
employees covered by the dues payment order.
We reject our colleague’s view that the bar on recoupment by the
Respondent is impermissibly “punitive,” for the reasons stated in Ala-
mo Rent-A-Car, 362 NLRB No. 135, slip op. at 1 fn. 1 (2015), enforced
sub nom. Enterprise Leasing Co. of Fla. v. NLRB, 831 F.3d 534 (D.C.
Cir. 2016).
7 Paragraph 2(e) of the Order requires the Respondent to
“[r]eimburse the Union for all dues that, following the unlawful with-
drawal of recognition and repudiation of the 2014–2018 Heavy High-
way Agreement, it failed to deduct and remit pursuant to the dues-
checkoff provision of that agreement.” Acting Chairman Miscimarra
agrees with this requirement, but he would permit the Respondent to
deduct these dues from unit employees’ wages or otherwise recoup
them. The union dues are owed by the employees; the Respondent’s
role is purely administrative, deducting the dues from employees’ pay
and remitting them to the Union. The Board’s powers under Sec. 10(c)
of the Act are remedial, not punitive, and requiring the Respondent to
remit the dues without recouping them from employees is punitive. See
Alamo Rent-A-Car, supra, slip op. at 7–8 (Member Miscimarra, concur-
ring in part and dissenting in part).
Nebraska, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unilaterally refusing to make fringe benefit fund
contributions and dues remittances provided for in col-
lective-bargaining agreements with International Union
of Operating Engineers Local 571 (the Union) to which it
is or has been bound, including the 2014–2018 Heavy
Highway Agreement.
(b) Unlawfully withdrawing recognition from the Un-
ion as the collective-bargaining representative of the unit
of its employees covered by article 1 of the 2014–2018
Heavy Highway Agreement.
(c) Repudiating collective-bargaining agreements with
the Union to which it is bound.
(d) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Recognize the Union as the exclusive collective-
bargaining representative of the unit employees.
(b) Honor and comply with the terms and conditions
of the 2014–2018 Heavy Highway Agreement.
(c) Make unit employees whole for any loss of earn-
ings and other benefits resulting from the repudiation of
the 2014–2018 Heavy Highway Agreement, in the man-
ner prescribed in the amended remedy section of the de-
cision.
(d) Make all contractually required contributions to
the Union’s fringe benefit funds that the Respondent has
failed to make since May 20, 2015, and reimburse the
unit employees, with interest, for any expenses resulting
from its failure to make those required payments, in the
manner prescribed in the amended remedy section of the
decision.
(e) Reimburse the Union for all dues that, following
the unlawful withdrawal of recognition and repudiation
of the 2014–2018 Heavy Highway Agreement, it failed
to deduct and remit pursuant to the dues-checkoff provi-
sion of that agreement, in the manner prescribed in the
amended remedy section of the decision.
(f) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
14, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
ANDERSON EXCAVATING CO. 3
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its Omaha, Nebraska facility copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 14, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since May 20, 2015.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 14 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. April 20, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member

8 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.”
(SEAL) NATIONAL LABOR RELATIONS BOARD
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
violated 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 unilaterally refuse to make fringe benefit
fund contributions and dues remittances provided for in
collective-bargaining agreements with International Un-
ion of Operating Engineers Local 571 (the Union) to
which we are or have been bound, including the 2014–
2018 Heavy Highway Agreement.
WE WILL NOT unlawfully withdraw recognition from
the Union as the collective-bargaining representative of
the unit of our employees covered by Article 1 of the
2014–2018 Heavy Highway Agreement.
WE WILL NOT repudiate collective-bargaining agree-
ments with the Union to which we are bound.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL recognize the Union as the exclusive collec-
tive-bargaining representative of the unit employees.
WE WILL honor and comply with the terms and condi-
tions of the 2014–2018 Heavy Highway Agreement.
WE WILL make our unit employees whole for any loss
of earnings and other benefits suffered as a result of our
unlawful repudiation of the 2014–2018 Heavy Highway
Agreement, plus interest.
WE WILL make all contractually-required contributions
to the Union’s fringe benefit funds that we have failed to
make since May 20, 2015, and reimburse you, with inter-
est, for any expenses resulting from our failure to make
those required contributions.
WE WILL reimburse the Union for all dues that, follow-
ing our unlawful withdrawal of recognition and repudia-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
tion of the 2014–2018 Heavy Highway Agreement, we
failed to deduct and remit pursuant to the dues-checkoff
provision of that agreement.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 14, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
ANDERSON EXCAVATING CO.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/14-CA-156092 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
William F. LeMaster and Julie M. Covel, Esqs., for the General
Counsel.
Theodore R. Boecker, Jr., Esq. (Boecker Law, P.C., L.L.O.) of
Omaha, Nebraska, for the Respondent.
Timothy S. Dowd, Esq. (Dowd Howard & Corrigan, LLC), of
Omaha, Nebraska, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Council Bluffs, Iowa, from July 5–7, 2016. Local
571 of the International Union of Operating Engineers filed the
initial charge in this matter on July 16, 2015, and an amended
charge on January 22, 2016. The General Counsel issued the
complaint on January 28, 2016.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the brief filed by
the General Counsel,2 I make the following

1 Respondent appears to argue that par. 6(d) of the complaint is time
barred under Sec. 10(b) of the Act. This is the only close issue in this
case.
2 Neither Respondent nor the Charging Party filed a posttrial brief.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is a construction contractor based
in Omaha, Nebraska. It performs in excess of $50,000 worth of
services for Kiewit Corporation. Kiewit is engaged in interstate
commerce. Moreover, Respondent performed services in ex-
cess of $50,000 in states other than Nebraska during the 12-
month period ending July 31, 2015.3 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. The Union is a
labor organization within the meaning of Section 2(5) of the
Act.
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by failing to make contractually
mandated contributions to the Union’s health and welfare fund,
its pension fund and its training fund. He also alleges Re-
spondent violated the Act by failing to remit contractually re-
quired union dues. By doing so, and by stating that it had no
collective-bargaining agreement with the Union, the General
Counsel alleges that Respondent withdrew recognition of the
Union and/or unilaterally changed terms and conditions of em-
ployment of its represented employees, which are mandatory
subjects of bargaining.
II. ALLEGED UNFAIR LABOR PRACTICES
Virgil Anderson established Respondent in the 1960s. The
company has also gone by the name Anderson Excavating and
Wrecking Company. The record does not indicate that this
difference in names has any legal significance. Somewhere
around 2012 or 2013, Virgil Anderson retired and his wife,
Virginia Anderson, began operating Respondent’s business.
Respondent has contributed to the union health and welfare
fund, its pension fund and its training fund since the 1960s. It
has also for years remitted dues of Local 571 members to the
Union. Its contributions and remittances had been accompa-
nied by signed reports acknowledging that they were made
pursuant to a collective-bargaining agreement.
Anderson Excavating has been a signatory to collective bar-
gaining agreements with the Union for many years—possibly
back to the 1960s. For example, on May 30, 1996, it executed
the Heavy Highway Agreement with the Union (GC Exh. 12).
On May 27, 2004, Virgil Anderson executed the Heavy High-
way Agreement for May 1, 2004, to April 30, 2006.
On May 30, 1996, Vigil Anderson and the business manager
of Local 571 also executed a document entitled “9A-9C Recog-
nition Agreement.” It provided that:
The Union has submitted proof and the Employer is satisfied
that the Union represents a majority of the Employer’s em-
ployees in the bargaining unit described in the current collec-
tive bargaining agreement between the Union and Employer.
The Employer therefore voluntarily agrees to recognize and
does hereby recognize the Union as the exclusive bargaining

3 Respondent did not deny this factual assertion from the complaint
in its answer. It argued that it was irrelevant and immaterial. I deem
that allegation to be admitted.
ANDERSON EXCAVATING CO. 5
agent for all employees within the contractually described
bargaining unit on all present and future job sites with the ju-
risdiction of the Union, unless and until such time as the Un-
ion loses its status as the employees’ exclusive representative
as a result of an NLRB election requested by the employees.
The Employer agrees that it will not request an NLRB elec-
tion and expressly waives any right it may have to do so.
(GC Exh. 12, p. 12.)
The 2004–2006 Heavy Highway Agreement has been super-
seded by collective-bargaining agreements covering the periods
2008–2010, 2010–2012, 2012–2014, and 2014–2018. For each
of these contracts, the Union has bargained with a group of the
large construction employers in the Omaha area. After ratifica-
tion of these contracts, the Union has sent a 1-page document to
all signatories to complete. Anderson Excavating has never
signed or returned any of these documents since 2004. On the
other hand, Respondent has never explicitly refused to sign the
agreement or, at least until 2014, indicated that it was not
bound by the terms and conditions of these agreements.
To the contrary, since the expiration of the 2004-06 collec-
tive bargaining agreement, Respondent has faithfully complied
with the terms and conditions of each subsequent agreement-
with exceptions noted later. It has for instance dutifully made
the required payments to the Contractors, Laborers, Teamsters
and Engineers Health and Welfare (CLT&E) Fund, the CLT&E
Pension Fund and the Union’s Training Fund.4 It has also re-
mitted the dues of its employees to the Union as required by
each subsequent contract in the amounts required by each sub-
sequent contract. Respondent has also filled out and submitted
all the reports that are required to accompany the fund contribu-
tions and the dues remittances. These reports include an
acknowledgement that they are being submitted pursuant to a
collective-bargaining agreement.
The CLT and E funds conduct periodic audits of signatory
contractors. These are conducted either by employees of the
trust fund or Deboer and Associates, a public accounting firm.
On August 16, 2010, Deboer audited Respondent’s payroll
records and found that Respondent owed the trust funds
$2,612.14. Respondent remitted this amount to the trust fund.
(GC Exh. 66.) Deboer conducted another audit in late 2013,
finding Respondent $83,000 in arrears (GC Exh. 67).
On March 25, 2014, the Trustees of the Health and Welfare
Fund, the Trustees of the Pension Fund and Local 571 filed a
complaint against Respondent under the Labor Management
Relations Act. The specifics of the complaint, Respodent Ex-
hibit 2 and Respondent’s answer, Respondent Exhibit 3 are
important is assessing Respondent’s argument that the instant
action is barred by Section 10(b) of the Act.
Attached to and referenced in the complaint was the 2004–
2006 Heavy Highway Agreement, the last collective-bargaining
agreement that Respondent executed. The complaint in para-
graph 9, alleged that Respondent refused to allow the Trustees
to conduct required audits of the company payroll records. The

4 CLT & E is actually two trusts, one for health and welfare, the oth-
er for pensions.
complaint asks the court to order Anderson to allow a complete
audit of company of payroll records and to pay amounts due the
trusts and the Union plus costs and attorneys’ fees.
Respondent’s answer filed on May 16, 2014, stated that it
reported hours and made employer contributions to the Welfare
Plan and the Pension Plan. It otherwise denied the allegations
of complaint paragraph 9. The Second Affirmative Defense in
the answer stated that the collective-bargaining agreement upon
which the action was based terminated on April 30, 2006. The
Third Affirmative Defense was that Anderson was not a party
to the Trust Agreements and was not bound by them. Never-
theless, Respondent continued to make payments to the CLT &
E funds, the training funds and to remit union dues in amounts
required by the 2012–2014 and 2014–2018 Heavy Highway
Agreements.5
The depositions of Virgil and Virginia Anderson and the filing
of the charges giving rise to this matter
On May 20, 2015, Virgil and Virginia Anderson gave depo-
sitions in the aforementioned lawsuit. Both denied that they
had any collective-bargaining agreements with the Union and
stated that they were making payments to the union funds and
remitting union dues pursuant to some unspecified and unwrit-
ten agreement with their employees. There is no evidence of
such an agreement between Respondent and its employees.
After giving these depositions, Respondent ceased making
payments to the funds and ceased remitting dues for several
months, between May and November 2015. When Respondent
resumed making these payments and remittances, the Union
and Trust Funds initially rejected them because they were not
accompanied by signed reports. Respondent then signed the
reports and resubmitted them. The payments were then accept-
ed.6
Analysis
The 10(b) issue
Respondent contends that the complaint is time barred be-
cause the Union was on notice that it was withdrawing recogni-
tion as of May 2014 when it filed its Answer to the Union’s
District Court complaint. I reject this contention.
The 6-month limitations period in Section 10(b) begins to
run only when a party has clear and unequivocal notice of a
violation of the Act. Anderson’s conduct in this case was am-
biguous and thus failed to give the Union the requisite notice.
One could construe the May 2014 Answer and repudiation of
all collective bargaining agreements with the Union as with-
drawal of recognition. However, Anderson continued to make
all the requisite payments and remittances to the Union and the

5 The lawsuit under the Labor Management Relations Act is still
pending.
6 The CLT & E trust funds wrote to Respondent in June 2015, stat-
ing it could not accept contributions from a company claiming to be a
nonsignatory contractor. The trust and the Unions subsequently ac-
cepted contributions and remittances due from Respondent. I assume
they did so on the theory that Respondent is a signatory contractor,
regardless of what the Andersons stated in their depositions. Neither
the trusts, the Union nor Respondent have been entirely consistent in
this matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Trust Funds until May 2015. Thus, I find that the Union did
not have clear and unequivocal notice of the Anderson’s with-
drawal of recognition and repudiation of its collective bargain-
ing obligations until May 2015. Thus, the Union’s July 16,
2015 unfair labor practice charge is not barred by Section
10(b), CAB Associates, 340 NLRB 1391, 1392 (2003).
Respondent violated Section 8(a)(5) and (1) in withdrawing
recognition from the Union and repudiating its collective-
bargaining obligations
In the construction industry, there is a rebuttable presump-
tion that the relationship between an employer and its unions is
governed by Section 8(f) of the Act. However, a construction
union may acquire the status of the majority bargaining repre-
sentative under Section 9(a) of the Act through agreement be-
tween the union and an employer.7 For a construction union to
acquire 9(a) status, there must be a written agreement that the
union requested recognition as the majority representative, that
the employer recognized the union as the majority representa-
tive, and the employer’s recognition was based on the union’s
having shown, or having offered to show, an evidentiary basis
of its majority support, Staunton Fuel & Material, 335 NLRB
717 (2001). The May 1996 9A-9C Recognition Agreement
between Respondent and Local 571 satisfies this requirement.
Thus, Local 571 is the collective-bargaining representative of a
unit of Anderson’s employees pursuant to Section 9(a). As a
result Anderson is not privileged to withdraw recognition from
the Union without a showing that the Union has lost the support
of a majority of its employees, Levitz Furniture Co. of the Pa-
cific, 333 NLRB 717 (2001). Respondent has made no attempt
to meet the Levitz burden. Thus, its attempt to withdraw recog-
nition from the Union violates Section 8(a)(5) and (1) of the
Act.
Respondent is bound by the 2014–2018 Heavy Highway
Agreement
Respondent has not signed a collective-bargaining agreement
with the Union since 2004. However, it has adopted the terms
of all subsequent Heavy Highway Agreements, including the
2014–2018 Agreement, by its conduct, Asbestos Workers Local
84 (DST Insulation, Inc.), 351 NLRB 19 (2007). For example,
for 9 months after the effective date of the 2014–2018 agree-
ment, Respondent abided by all its terms.

7 The distinction between a union's representative status under Sec.
8(f) and under Sec. 9(a) is significant because an 8(f) relationship may
be terminated by either the union or the employer upon the expiration
of their collective-bargaining agreement. John Deklewa & Sons, 282
NLRB 1375, 1386–1387 (1987), enfd. sub nom. Iron Workers Local 3
v. NLRB, 843 F.2d 770 (3d Cir. 1988). By contrast, a 9(a) relationship
(and the associated obligation to bargain) continues after contract expi-
ration, unless and until the union is shown to have lost majority sup-
port. Levitz Furniture Co., 333 NLRB 717 (2001). Similarly, an 8(f)
contract does not bar a representation petition under Section 9, while a
contract made with a 9(a)representative does bar such a petition.
Deklewa, supra at 1387.
Respondent violated Section 8(a)(5) and (1) by repudiating the
terms and conditions of the 2014–2018 collective-bargaining
agreement.
An employer acts in derogation of its bargaining obligation
under Section 8(c) of the Act, and thereby violates Section
8(a)(5) of the Act, when, during the life of a collective-
bargaining agreement, it unilaterally modifies or otherwise
repudiates terms and conditions of employment contained in
the agreement, Morelli Construction Co., 240 NLRB 1190
(1979). Thus, by refusing to make the payments required by
the 2014–2018 Heavy Highway Agreement, and stating that it
is not bound by that agreement, Respondent violated Section
8(a)(5).
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
Backpay, if owed, shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Anderson Excavating Company, Omaha,
Nebraska, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally refusing to make fringe benefit fund pay-
ments and dues remittances provided for in collective-
bargaining agreements with International Operating Engineers
Local 571 to which Respondent is or has been bound, including
the 2014–2018 Heavy Highway Agreement.
(b) In any manner withdrawing recognition from Local 571
as the collective-bargaining representative of a unit of its em-
ployees without a showing of a loss of majority support.
(c) In any manner repudiating collective-bargaining agree-
ments with Local 571 to which it is bound.
(d) In any like or related manner restraining or coercing em-
ployees 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 bargaining unit employees whole for Respondent’s
unlawful failure to make all fringe-benefit contributions and
dues remittances required by its contracts with the Union.
(b) Compensate employees for any adverse tax consequenc-
es resulting from its failure to make all fringe-benefit contribu-
tions and dues remittances required by its contracts with the

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
-
ANDERSON EXCAVATING CO. 7
Union.
(c) Remit to the Union all benefit fund contributions that
have not been made under Respondent’s contractual obligations
to the Union.
(d) Remit to the Union any dues that has not been remitted
pursuant to Respondent’s contractual obligations to the Union.
(e) 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 rec-
ords, 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
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its
Omaha, Nebraska facility copies of the attached notice marked
“Appendix.”9 Copies of the notice, on forms provided by the
Regional Director for Region 14, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, 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 employees employed by the Respondent at any time
since May 20, 2015.
(g) 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.
Dated, Washington, D.C., August 19, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

9 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.”
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT unilaterally refuse to make fringe benefit fund
payments and dues remittances provided for in collective-
bargaining agreements with International Operating Engineers
Local 571 to which we are or have been bound, including the
2014–2018 Heavy Highway Agreement.
WE WILL NOT withdraw recognition of International Operat-
ing Engineers Local 571 as the collective-bargaining repre-
sentative of a unit of our employees absent proof that the Union
has lost the support of a majority of the employees in the unit.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make bargaining unit employees whole for our un-
lawful failure to make all fringe-benefit contributions and dues
remittances required by our contracts with the Union, including
the 2014–2018 Heavy Highway Agreement.
WE WILL comply with the obligations under the collective-
bargaining agreements with Local 571 to which we are bound,
including the 2014–2018 Heavy Highway Agreement.
ANDERSON EXCAVATING CO.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/14-CA-156092 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Rela-
tions Board, 1099 14th Street, N.W., Washington, D.C. 20570,
or by calling (202) 273-1940.