LABORERS DISTRICT COUNCIL OF MINNESOTA AND NORTH DAKOTA (Lake Area Fence, Inc.)

National Labor Relations Board - Board Decisions

Aug 2, 2011

357 N.L.R.B. 290 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 29
290
Laborers District Council of Minnesota and North
Dakota and Lake Area Fence, Inc. Case 18–CC–
001485
August 2, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On November 1, 2010, Administrative Law Judge
Mark D. Rubin issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
Acting General Counsel and the Charging Party each
filed answering briefs. The Respondent filed a reply
brief. The Charging Party filed exceptions and a sup-
porting brief, and the Respondent filed an answering
brief. The Charging Party filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2
and to adopt the recommended Order as modified and set
forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, Laborers District Council of Minnesota and
North Dakota, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Threatening, coercing, or restraining Lake Area
Fence, Inc., or any person engaged in commerce or in an
industry affecting commerce, with an object of forcing or

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Contrary to our dissenting colleague, we agree with the judge that
Sheet Metal Workers Local 80 (Limbach Co.), 305 NLRB 312, 315
(1991), enfd. in part 989 F.2d 515 (D.C. Cir. 1993), is not meaningfully
distinguishable from this case. We agree with our colleague that
Limbach did not analyze why the unions’ conduct in that case was
treated as coercive, and we share some of our colleague’s concerns
about that decision. However, under the circumstances, we decline to
address those issues in the present case and adopt the judge’s conclu-
sion that the Respondent’s refusal to enter into an 8(f) collective-
bargaining agreement with Charging Party Lake Area Fence violated
Sec. 8(b)(4)(ii)(B) of the Act.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language. We shall issue a new notice con-
forming to the Order as modified.
requiring Lake Area Fence, Inc., or any person, to cease
doing business with Century Fence Company.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its union business offices, including those of the seven
constituent local unions, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 18, 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 members 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.
(b) Within 14 days after service by the Region, deliver
to the Regional Director for Region 18 signed copies of
the notice in sufficient number for posting by Lake Area
Fence, Inc., if willing, in all places where notices to em-
ployees are customarily posted.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region, at-
testing to the steps that the Respondent has taken to
comply.

MEMBER BECKER, dissenting.
I dissent. Section 8(b)(4)(ii)(B) of the Act prohibits
unions from threatening, coercing, or restraining any
person engaged in commerce or in an industry affecting
commerce, with an object of forcing any person to cease
doing business with another. In my view, the Respond-
ent’s refusal to enter into an 8(f) collective-bargaining
relationship with Charging Party Lake Area Fence under
the circumstances presented here did not constitute a
threat, nor did it constitute restraint or coercion within
the meaning of the Act. Accordingly, it is not unlawful
under Section 8(b)(4)(ii)(B).
The Supreme Court has made clear that it is not coer-
cion for a union to request a secondary employer not to
do business with an employer with whom the union has a
dispute. NLRB v. Servette, Inc., 377 U.S. 46, 54 fn. 12

4 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.
LABORERS DISTRICT COUNCIL OF MINNESOTA & NORTH DAKOTA (LAKE AREA FENCE)

291
(1964); Teamsters Local 20 v. Morton, 377 U.S. 252, 259
(1964). It is not coercion even if the secondary employer
honors the request. It follows that it is not coercion for a
union to ask one secondary employer to cease doing
business with another and for the secondary to comply.
If it is not coercive for a union to persuade secondary
employers to cease doing business with other employers,
it cannot be coercive for a union itself to simply refuse to
do business with a secondary employer.
Sheet Metal Workers Local 80 (Limbach Co.), 305
NLRB 312, 315 (1991), enfd. in part 989 F.2d 515 (D.C.
Cir. 1993), relied on by the judge and my colleagues,
does not adequately address this point. In fact, it does
not address it at all. The Limbach majority states:

The General Counsel alleges that, by disclaiming inter-
est in representing the Employer’s employees and re-
pudiating the 8(f) bargaining relationship between Lo-
cal 80 and the Employer when the parties’ contract ex-
pired in 1988, the Respondents coerced and restrained
the Employer by depriving it of its source of sheet met-
al workers, thereby, in effect, driving it out of business
as a sheet metal contractor in the Detroit area.

Id at 314. But the Limbach majority never explains why
this allegation is correct given that the same consequences
would not render the union’s conduct coercive if they re-
sulted from the actions of an employer acting upon the re-
quest of the union.1 Given the paucity of analysis in
Limbach, I would not apply it beyond its specific facts. In
Limbach, the Board found that the union disclaimed interest
in representing the secondary employer’s employees and
repudiated an established 8(f) bargaining relationship,
thereby depriving the secondary employer of its source of
sheet metal workers and effectively driving it out of busi-
ness. No such facts exist here. The Respondent simply
declined to enter into a contract with Lake Area Fence. For
these reasons, I would not extend the holding in Limbach to
this case.
Because I do not believe that the General Counsel has
established the requisite element of coercion, I find, con-
trary to my colleagues, that the Respondent’s refusal to
enter into an 8(f) collective-bargaining relationship with
Lake Area Fence did not violate Section 8(b)(4)(ii)(B).
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

1 The court of appeals did not add any analysis of this issue when af-
firming. 989 F.2d at 521.
The National Labor Relations Board has found that we vio-
lated 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 on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten, coerce, or restrain Lake Area
Fence, Inc., or any person engaged in commerce or in an
industry affecting commerce, with an object of forcing or
requiring Lake Area Fence, Inc., or any person, to cease
doing business with Century Fence Company.

LABORERS DISTRICT COUNCIL OF MINNESOTA
AND NORTH DAKOTA

David M. Biggar, Esq., for the Acting General Counsel.
Brendan Cummins, Esq., of Minneapolis, Minnesota, for the
Respondent/Union.
Michael McCain, Esq., of Minneapolis, Minnesota, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARK D. RUBIN, Administrative Law Judge. This case was
tried in Minneapolis, Minnesota, on July 27, 2010, based on a
charge filed by Lake Area Fence, Inc. (Charging Party or Lake
Area) against Laborers District Council of Minnesota and
North Dakota (Respondent or Union) on May 12, 2010.
The Regional Director’s complaint, dated June 10, 2010, al-
leges that the Union violated Section 8(b)(4)(ii)(B) of the Act
by refusing Lake Area’s request to enter into a Section 8(f)
collective-bargaining agreement, in order to force or require
Lake Area to cease doing business with Century Fence Compa-
ny (Century). The complaint’s theory is that the Union wanted
Century to become a party to a collective-bargaining agreement
with it, that Century declined, and that the Union’s actions were
designed to enmesh Lake Area (the asserted neutral), into its
labor dispute with Century (the asserted primary). The Union
defends by admitting that it has refused to sign a collective-
bargaining agreement with Lake Area, but denying that such
action was engaged in for secondary purposes, and instead was
motivated by assertedly legitimate concerns as to whether Lake
Area was financially or otherwise capable of living up to the
terms of a union contract, or because Lake Area was not forth-
coming with information requested by the Union or lied to the
Union in respect to such information.
At the trial, the parties were afforded a full opportunity to
examine witnesses, to adduce competent, relevant, and material
evidence, to argue their positions orally, and to file briefs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

292
Based on the entire record, including my observation of wit-
ness demeanor,1 and after carefully considering the briefs of all
parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Charging Party has been an em-
ployer engaged in the building and construction industry, has
maintained an office and place of business in Lindstrom, Min-
nesota, and has been engaged in business as a fencing contrac-
tor, including as a subcontractor to Century. Further, Century,
an employer engaged in the building and construction industry,
has maintained its corporate offices in Pewaukee, Wisconsin,
an office and place of business in Forest Lake, Minnesota, and
has been engaged in business as a commercial fencing contrac-
tor performing services for, among others, the States of Wis-
consin and Minnesota, and for nongovernment entities. In the
course of said business operations during the past 12 months,
Century has received gross revenues in excess of $1 million,
and has purchased and received materials valued in excess of
$50,000, which materials have been shipped to Century’s
jobsites in the State of Minnesota, directly from points located
outside the State of Minnesota.2 Based on such, Century has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
I find, and the Respondent admits in its answer filed herein,
that the Respondent has been at all times material, a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
The Players
Respondent Union
The Union is a council of seven independent local unions
with 11,000 members, operating in Minnesota, providing vari-
ous services to the local unions, including facilitating meetings,
coordinating activities between the locals, and representing the
local unions and their members. Approximately 950 employ-
ers, all in the construction industry, are signatory to collective-
bargaining agreements with the Union.3
Many of these collective-bargaining agreements are mul-
tiemployer agreements between the Union and contractor asso-
ciations. The “Highway-Heavy” agreement (Agreement),
which the Union negotiates with the Minnesota General Con-
tractors Association (Association), and which covers fence
installation among other areas of construction work is involved
in the instant matter. While the Agreement is between the As-
sociation and the Union, it is not uncommon for the Union to

1 In the absence of a more detailed discussion as to a particular issue
of fact, and in general, my findings as to disputed facts include a con-
sideration of the demeanor of a witness during testimony.
2 Credited, and uncontroverted, testimony of Don Witte, Minnesota
Branch Manager for Century.
3 All of which are 8(f) agreements.
enter into contracts separately with independent employers who
are not members of the Association.4
According to Union President Jim Brady, the process of
signing an employer to a collective-bargaining agreement be-
gins with contact which may be initiated by either party. The
Union solicits the prospective signatory employer to complete a
“new contractor processing form” (processing form), which the
Union utilizes, according to Brady, “to get information on con-
tractors to make sure they are contractors . . . getting back-
ground information to make sure they’re legitimate.” Employ-
ers who choose to be bound independently to the Union’s
Highway-Heavy agreement, sign the Union’s “acceptance of
agreement form (acceptance form).”5 The agreement, by its
own terms, is intended to become effective, “when signed by
the employer, an authorized local union or district council rep-
resentative, and the president of the Council.” Brady testified
that all such agreements are subject to his approval.
The Asserted Primary: Century
Century, headquartered in Pewaukee, Wisconsin, is engaged
in the commercial fencing business, including fencing work
along highways, and at prisons and airports, with operations in
various north central states including Wisconsin, North Dakota,
South Dakota, northern Iowa, and Minnesota. The branch in
Forest Lake, Minnesota, is managed by Branch Manager Don
Witte, who has served in that position since June 2006.6 No
Century employees perform actual fencing installation work, all
of which is subcontracted to fence installation contractors, and
Century maintains no collective-bargaining agreements with
any union. Century bids on, and contracts for, fencing installa-
tion work on both union and nonunion construction projects.
Century submits bids directly to the general contractors or
prospective general contractors on commercial construction
projects. If its bid for a project is successful, Century processes
the work orders, bills and orders the materials for the project,
assigns a construction superintendent to oversee its work on the
project, assigns or contracts with a subcontractor for the instal-
lation labor, arranges for a date and time for the subcontractor
to perform the work, and transmits the project blueprints to the
subcontractor.
After Century subcontracts the installation work, it arranges
for the fencing materials and supplies to be drop-shipped to the
construction site. Materials are either directly shipped from the
manufacturer to the jobsite and unloaded by the subcontractor’s
installation crew, or shipped via one of Century’s trucks from
either its Minnesota or Wisconsin warehouse, and unloaded by
the subcontractor’s employees.
When the subcontractor appears at the construction site, the
area for fence installation is already “marked out for them

4 Credited testimony of the Union’s president and business manager,
Jim Brady.
5 The form begins: “The undersigned Employer hereby accepts and
agrees to be bound to the standard printed Collective Bargaining
Agreement.”
6 Century performs no residential fencing. A division of Century al-
so performs highway pavement marking work. While the Forest Lake,
Minnesota branch manages Century’s work in the mentioned states,
about 70 percent of the work is performed in Minnesota.
LABORERS DISTRICT COUNCIL OF MINNESOTA & NORTH DAKOTA (LAKE AREA FENCE)

293
ready to install, and they bring their own truck and equipment
and workers to install the fence.” All workers performing actu-
al fence installation are employed by the subcontractor, and not
by Century. Century follows this same practice in subcontract-
ing the fence installation work, whether working on union or
nonunion projects, and has operated in this manner during
2008, 2009, and at least through the date of the hearing herein
in 2010.7 The two main subcontractors Century utilized for
performing the fencing installation work at union jobsites, at
least during 2008, were Winslow Fence (Winslow) and Mid-
America Fence (Mid-America).
Century’s competitor for commercial fencing in the area
served by its Forest Lake, Minnesota office is Keller Fence
(Keller), a signatory to the Agreement,8 unlike Century. Kel-
ler’s area operation is staffed, at least in part, by three former
Century employees who left Century for Keller within the past
4 years, including Mike Mistele, Keller’s general manager,
Steve Wilson, Keller’s sales manager, and Nathan Roush, Kel-
ler’s construction superintendent.
Union Business Representative Steve Buck9 testified that
Mistele has told him that “it would be nice” if Keller’s competi-
tor, Century, were made a party to the Union’s collective-
bargaining agreement. Buck further testified that, based on his
experience in the industry, he assumed that it would be good
for Union signatory Keller if Century became a signatory to the
contract because “it creates a level playing field for all the work
they bid.”10
Buck further testified that he and Brady have met with offi-
cials of Century, “and offered them a collective-bargaining
agreement and expressed our interest to have them become
signatory.” Century’s branch manager, Witte, testified that at
some point Buck told Witte that the Union’s position was that it
wanted Century to sign the collective-bargaining agreement,
and then the Union would allow Century’s subcontractors to
sign the collective-bargaining agreement, which would allow
Century to work for general contractors who were signatory to
an agreement with the Union.
Buck’s alleged statement to Witte is consistent with the Un-
ion’s position stated on the record and in its brief that article 16
of the Agreement prohibits signatory employers, including
general contractors, from subcontracting work performed by
the Union’s members to any employer not a party to a labor
agreement with the Union. Thus, in the Union’s view, any
general contractor, a party to a contract with the Union, would
be precluded from subcontracting work to Century, which is
not a party to a contract with the Union, even if Century were
to, in turn, subcontract the work to contractors signatory to the
Agreement with the Union.

7 This description of Century’s method of operation, is from the
credited and uncontroverted testimony of Witte.
8 In fact, the largest contractor, signatory to the union agreement.
9 Buck was called as a witness by the Union. He testified that he is
employed as a business representative for Laborers’ Local 563.
10 In other words, it would put Keller in a better competitive position
vis-à-vis Century, if Century were no longer competitive in bidding for
nonunion construction work, a position Keller had voluntarily placed
itself in when it signed the Highway-Heavy collective-bargaining
agreement with the Union.
In response to this position of the Union, Century began
sending two different form letters signed by Witte, explaining
its position to general contractors overseeing union construction
sites.11 Witte, in one of the form letters which Century attached
to bids to general contractors for work, stated, “In the event that
the attached bid becomes a contract and union labor is required,
Century Fence Company intends to subcontract all on-site in-
stallation labor to a fully signatory union subcontractor.” The
letter further explains that Century will merely act in the capac-
ity of a construction manager and will not employ any on-site
installation employees.
Witte’s second form letter sent to various general contractors
Century had previously contracted with, and others, detailed its
dispute with the Union, and set forth reasons why the general
contractor should choose to continue to work with Century. In
this letter Witte describes the Union’s dispute with Century as
follows: “The central issue is the Laborers collective bargain-
ing agreement and the demand that Century Fence become
signatory.”
Witte testified that the dispute with the Union has been on-
going during the time he has been branch manager, but
“seemed to increase during the 2007 construction season.
There seemed to be more general contractors that were aware
of the situation and were less likely to work with us.” On
cross-examination, Witte was asked by the Respondent’s coun-
sel, “The problem that you were concerned about was that the
Union was enforcing their [sic] subcontracting clause against
general contractors to require removal of Century Fence from
jobs, right?” Witte answered, “Yes.” Witte scheduled a meet-
ing with Union officials in the spring of 2008, just before con-
struction season began in Minnesota, to explore the possibility
of a mutually acceptable solution to the conflict.12
The meeting between Century and the Union took place in
the early spring of 2008, at the Union’s offices in Little Canada,
Minnesota. Witte and Construction Superintendent Troy Ad-
ams attended for Century, and Buck and Brady for the Union.
During the meeting, Witte said that Century was interested in
working out an agreement with the Union “to provide union
signatory workers on site, signed with them, but that Century
Fence would not sign the collective-bargaining agreement be-
cause we had no hourly employees that would be on site.”13
According to Witte, Buck responded to the effect that Century
would need to sign the contract to have any sort of relationship
with the Union and that if it did not sign the agreement it would
have an unfair advantage over signatory contractors in that
Century could contract for both union and nonunion work.
Witte also testified that at the time of the meeting there were
two subcontractors that Century was using to perform fence

11 Witte also testified that he sought the meeting because “we had
gotten input from those general contractors that union representatives
were pressuring them not to hire us for projects.”
12 In its counsel’s brief, the Union, citing Witte’s testimony, refers to
Century’s request for a meeting as Century’s “attempt to find a way
around the subcontractor clause [of the Highway-Heavy Agreement]
without becoming a signatory.”
13 In its brief, the Union characterized Century’s position as seeking
“to appease the Union and signatory general contractors by using union
subcontractors, while still refusing to sign a union contract.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

294
installation work on union jobsites, Winslow and Mid-America,
which had “union affiliation” with locals in Iowa and Duluth,
Minnesota. According to Witte, Buck said that if Century re-
fused to sign a collective-bargaining agreement with the Union,
there was no reason for the Union to sign an agreement with
Century’s subcontractors, and that if Winslow and Mid-
America wanted to work for other fence companies that were
signatory, they could work for Keller.
Adams testified that Buck specifically said that as long as
contractors worked for Century, and Century was not a signato-
ry, the Union would not re-sign the contractors to collective-
bargaining agreements. Witte testified that either Buck or
Brady said that Century was on a “blacklist” with general con-
tractors and that if Century did not sign a collective-bargaining
agreement with the Union, its subcontractors would also be
placed on the blacklist.14 Buck admitted attending the meeting,
but denied Adams’ assertions. When asked by the Respond-
ent’s counsel, “In that meeting, did you say that you—that the
Union would not sign any subcontractors of Century Fence
unless Century became signatory,” Buck answered “No.” Buck
also denied that Brady said anything to that effect.
Adams, Century’s construction superintendent, testified that
prior to 2008, Century “always had union-affiliated subcontrac-
tors working for us. And then, in 2008, it just became very
tough to get people signed to be able to work on our projects.”
According to Adams, he spoke “quite a few times on the
phone” with Buck about the problems Century was having
obtaining union-signatory contractors, telling Buck that “We’re

14 Witte’s testimony as to the asserted blacklist came about as fol-
lows: Counsel for the Acting General Counsel, on direct examination
of Witte, asked “Do you recall anything else that was said at the meet-
ing . . . by either you or the gentlemen from the union,” and when the
witness hesitated in answering, added “Do you recall if there was any
discussion of a blacklist?” The Union’s counsel objected to the ques-
tions as leading. I overruled the objection on the basis, that while the
question was somewhat leading, counsel for the Acting General Coun-
sel was attempting to refresh the witness’s recollection where the wit-
ness appeared to have blanked out. In my view, based on his demean-
or, strength of recollections, and nonargumentative manner of answer-
ing questions of all counsel, including on cross-examination, Witte is
an honest and credible witness who did not, and would not, lie under
oath, even when presented with a leading question. On this basis I find
Witte a generally credible witness. However, as to the specific “black-
list” testimony, I find insufficient evidence that such exact term was
used by Brady or Buck on this occasion. I make this finding because
Adams, called as a witness by counsel for the Acting General Counsel,
was not asked and did not testify to the use of this exact word by Brady
or Buck, because Brady and Buck denied using such term, and because
Witte did not mention the “blacklist” until prompted by counsel for the
Acting General Counsel. Of course, whether or not Buck or Brady
used this explicit term during the meeting is not determinative as to
whether, in fact, the Union had blacklisted Century and its subcontrac-
tors. However, as to the balance of comments made by Buck at the
meeting, I explicitly credit Adams and Witte, and not Buck. In this
regard, based on his testimonial demeanor, nonargumentative answers
to questions of all counsel, and strength or recollections, I find Adams
to be a generally credible witness, as I did Witte above. Further, their
testimony as to comments made by Buck is generally consistent with
the testimony of Hurt as to comments made by Buck on other occa-
sions, testimony which I find credible, infra.
sending union installers, union subcontractors to the projects.”
Adams testified that Buck told him that Century had to be the
one signed to the collective-bargaining agreement, and that the
subcontractors that Century was doing business with wouldn’t
be resigned if they worked for Century. For his part, Buck
testified that he never “told either Mr. Witte or Mr. Adams that
the Union would not sign subcontractors of Century Fence.”
Brady testified that he never told Witte or Adams that the Un-
ion wouldn’t sign contracts with any Century subcontractors
because they did business with Century.
The Asserted Neutral: Lake Area Fence, Inc.
(The Charging Party)
Sharon Roush, the owner of Lake Area, formed the corpora-
tion in April 201015 to operate as a subcontractor performing
fencing installation work for larger commercial fencing con-
tractors. Prior to forming Lake Area, Roush spoke to Troy
Adams, construction superintendent for Century, who told her
that Century had work available, more union than non-union,
and that Century already had several contractors performing
nonunion work. Roush credibly testified that one of her busi-
ness goals in creating Lake Area was to operate under a union
contract, and that after speaking to Adams, she did not consider
companies other than Century to do business with. At its in-
ception, Lake Area employed two individuals for fence installa-
tion work, Roush’s son with 5 years experience, and a second
individual with 14 years experience.
Lake Area’s April 201016 Efforts to Secure an
8(f) Contract with the Union
About April 14, Roush called the Union’s office, asked to
speak to somebody about becoming a signatory contractor, and
was connected to Dan McGowan, a marketing representative
for the Union.17 According to Roush, she told McGowan that
Lake Area was a newly formed fencing subcontractor, and
McGowan told Roush about the various benefits of becoming a
signatory contractor, such as training and the availability of
calling in extra employees when needed, and said he would
mail some materials to her. According to Roush, she replied
with her address and said that she would look the materials
over, and would be back to McGowan if she were further inter-
ested. There was no discussion of which contractor(s) Lake
Area would subcontract for. McGowan testified that he had a
short conversation with Roush discussing the possibility of
signing a union contract, that McGowan said he would stop by
her location that Friday (April 16) and bring her “some infor-
mation,” and that Roush replied by informing McGowan of her
address.
So, either as discussed, according to McGowan, or without
prior notification to her, according to Roush, McGowan, along

15 The state of Minnesota corporate registration papers are dated
April 20, 2010.
16 Unless otherwise specified, all dates herein refer to 2010.
17 McGowan described the marketing representative job as being
“essentially an organizer position,” with job duties consisting of in-
creasing the Union’s “market share,” meeting with contractors, and
signing “nonunion contractors.” McGowan further testified that he is
employed by “Great Lakes Regional Organizing Committee,” an organ-
izing arm of the Union.
LABORERS DISTRICT COUNCIL OF MINNESOTA & NORTH DAKOTA (LAKE AREA FENCE)

295
with fellow Union Marketing Representative Josh Bassais,
visited Roush at her residence on April 16. According to
Roush, McGowan said he decided to drop off the written mate-
rials instead of sending them, and his visit was unexpected to
her. Roush testified that after some small talk, they discussed
various provisions of the Agreement including wage rates,
fringe benefits including health insurance, training provided by
the Union, and the ability of a signatory employer to call the
Union if additional help were needed. Roush asked if a signa-
tory employer could work on nonunion jobs, and McGowan
and/or Bassais replied that such an employer could work non-
union jobs, but that it was difficult to make such jobs pay suffi-
ciently. McGowan told Roush that signing the agreement was
just one step in becoming a union contractor.
According to Roush, at some point during the union repre-
sentatives’ visit, the representatives presented her with multiple
copies18 of the Highway-Heavy 2010–2011 wage rates, a new
contractor processing form,19 and an acceptance of agreement
form. Roush asked which wage rate classification applied to
fence installation work. McGowan answered her question, and
Roush circled the answer on a copy of the contractual wage
rates.
Other than inquiring as to the wage classification, Roush did
not question nor dispute any of the contractual provisions, nor
the acceptance of agreement form. Roush signed the ac-
ceptance of agreement form and handed it to McGowan. Dur-
ing the meeting, there were no questions as to, or discussions
of, the financial condition of Lake Area, its assets, equipment,
bank accounts, what work it had performed, or with what fenc-
ing contractor(s) it planned to do business with, including Cen-
tury Fence.20 At some point, Roush mentioned to McGowan
that her company “would be having” two employees, and that
one of her two sons worked for Keller Fence.21 During the
meeting, Roush made some mention of the possibility of a job
the following week, but when McGowan inquired as to the job,
Roush replied that she was mentioning it “just in case there was
a job.”22
Roush did not complete the new contractor processing form
at the meeting with the union representatives. She testified that
because she was not expecting their visit that day, she didn’t
have some of the information requested on the form readily

18 For Lake Area’s two employees.
19 McGowan testified that during the meeting, he told Roush that
there was a time when the Union would sign anybody to a contract, but
not any more. He testified that the information sought in the new con-
tractor processing form helped the Union assure that contractors were
legitimate. The information sought in the form includes: workers
compensation carrier, Minnesota corporation “file number,” federal and
state eid numbers, general description of contractor services provided,
employees within the last 12 months, and representative projects
awarded and bidding.
20 Credited, uncontroverted testimony of Roush.
21 Credited, uncontroverted testimony of McGowan.
22 Credited, uncontroverted testimony of McGowan. McGowan tes-
tified that he didn’t remember the words used by Roush in mentioning
the “job.”
available.23 Instead she later filled out the form and faxed it to
the Union the following Tuesday, April 20. The faxed docu-
ment was partially, but not fully, completed by Roush. Thus,
the form requested various information as to “representative
projects awarded/bidding.” Roush did not complete this area of
the form,24 and testified, in essence, that at the time she com-
pleted the form, Lake Area was a brand new company and,
hence, there was little such information to provide. Following
the meeting, McGowan brought the acceptance of agreement
form signed by Roush back to the Union and gave it to his su-
pervisor, Mike Warner, the Union’s marketing manager.25
Roush testified that on April 22 she received a call from
Century Construction Superintendent Adams, who offered her
installation work for Lake Area beginning on April 26 on a
jobsite at “Globe College.” Adams asked her where she was
“with the Union signing.” Roush replied that she didn’t know
yet. The testimony of Roush and McGowan diverges signifi-
cantly from this point on.
Roush testified that after speaking to Adams, she held three
telephone conversations with McGowan on April 22. First,
Roush called McGowan, told him that Lake Area had an oppor-
tunity to start working on April 26, and asked him “where we
were with the [Union] agreement.” McGowan replied that he
wasn’t sure, and would look into it and get back to McGowan.
Second, about an hour later, McGowan called Roush, and
asked her which fencing contractor Lake Area intended to per-
form work for. Roush told McGowan Lake Area would be
working as a subcontractor to Century Fence, but that it was a
nonunion job for Globe College. McGowan replied that he
would get back to her.26
Third, about an hour after the second call, McGowan called
Roush back and told her that the Union would not sign the
agreement with Lake Area. Roush asked McGowan what the
Union’s reason was for its decision. McGowan replied that if
she had any questions she should call the Union’s president,
Jim Brady. Roush testified that in none of these conversations
with McGowan did McGowan ask any questions about Lake
Area’s financial situation or whether it was registered to do
business in Minnesota.
McGowan testified that after speaking with Roush at her res-
idence on April 16, his next contact with Roush was receiving a
phone call from her on April 26, during which Roush told
McGowan that she “had a job at Globe College in Lakeville
and wanted to know what the status of the contract was,” and
that McGowan replied that he would look into the status of the
contract. McGowan testified that pursuant to his conversation
with Roush, he called his supervisor, Warner, who directed
McGowan to find out who the general contractor was for the

23 McGowan testified that Roush told him that she did not have all
the information to fill out the new contractor form, but would get it and
fax the form to the Union.
24 Essentially, the bottom portion of the form.
25 The actual entity that serves as the Union’s organizing or “market-
ing” arm is the Union’s “Great Lakes Organizing Committee” (GROC),
which employs both McGowan and marketing manager Warner.
26 Counsel for the acting General Counsel points out, in his brief,
that this is the first disclosure to the Union that Lake Area would be a
subcontractor to Century.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

296
Globe College construction. McGowan called Roush with
Warner’s question, and Roush told McGowan that she didn’t
know, but would call him back [with the information]. Shortly
thereafter, Roush called McGowan and told him that there was
no general contractor on the Globe College construction.
McGowan asked Roush who Lake Area was working for on the
job, and Roush replied, “Century Fence.” McGowan testified
that he passed this information as to Century on to his supervi-
sor Warner.27
Roush testified that after McGowan allegedly told her that
the Union would not sign the contract with Lake Area, she
followed-up by calling Brady two times later on April 22, but
was informed by the Union’s receptionist that Brady was busy.
Roush called Brady again on April 23, was again told he was
busy, but this time left a voicemail message for Brady identify-
ing herself, explaining that she was calling to inquire as to the
Union’s reasons for not signing the contract with Lake Area,
and expressing concern that there was some discrimination
either because Roush was female and her company was small,
or because Lake Area planned to work for Century. When
Brady did not respond to this call, she called his office again
either later on April 23 or on Monday, April 26,28 and this time
was successful in reaching him.
According to Roush, she began the conversation with Brady
by identifying herself, and telling him that she was surprised
that the Union wouldn’t approve the contract with Lake Area,
and wondered why. Brady replied that Roush hadn’t filled out
the paperwork properly, referring to the Union’s new contractor
processing form. Roush testified that she wasn’t sure which
form or information Brady was referring to, and so asked him.
Brady responded that he didn’t know what the missing infor-
mation was because he didn’t have the form in front of him.
Roush asked, “if it was the bottom half of the new contractor
form,” and Brady reiterated that he didn’t know because he
didn’t have the paperwork in front of him. Counsel for the
Acting General Counsel asked Roush “Did he [Brady] ever tell
you why they would not sign the contract with Lake Area
Fence?” Roush answered, “Well, my paperwork was not com-
pleted, and then later in the conversation he said that they did
not sign companies that were not financially stable to pay the
union benefits.”29 The conversation concluded with Brady
telling Roush that he would “look at it again and get back to me
the middle of the next week.” But Roush testified that she nev-
er further heard from Brady.
Brady testified that he and Marketing Manager Warner
spoke about April 22, and that Warner told him about Lake
Area executing the Union’s acceptance form and new contrac-
tor processing form, and that “it was urgent that they get a con-
tract because they had work.” When asked whether he inquired

27 Credited testimony of McGowan. Warner was not called as a wit-
ness.
28 During her initial testimony, Roush said that this call and conver-
sation occurred on April 26. During her testimony on rebuttal, Roush
appeared to rethink her original answer and testified, “I don’t think it
was the 26th; I think it was the 23rd. I can’t remember what—the 26th
was when we had the job with Globe started.”
29 But Roush also testified that Brady had never asked Roush any
questions about her financial ability.”
or was informed by Warner as to what the work consisted of,
Brady answered, “No,” Brady further testified that “he be-
lieved” that at the same time Warner gave him the forms, he
told Warner that if Lake Area had work, “they need to complete
the form.” When asked by the Union’s counsel what part of the
form he was referring to, Brady testified, “They didn’t report
that they had any employees. They didn’t report that they had
any work.”
While, as noted, Roush testified that she did not further
speak to Brady after the April 23 (or 26) conversation, Brady
testified “I think we had a second conversation,” “shortly after”
the first one. In follow-up questioning by the Union’s counsel
as to this conversation that Brady thought he had, Brady testi-
fied that Roush called and wanted to know why Brady wouldn’t
sign the contract, that Brady responded “the information is
incomplete,” that Roush asked why, and that Brady replied that
the Union needed the information to make sure that contractors
are employers, that they are going to employ Laborers, that
they have work they’re going to perform, and that the contrac-
tors are aware of their obligations under the contract. Brady
testified that he asked Roush who Lake Area was going to work
for and that Roush replied that she was going to work for Keller
Fence.
Not only did Roush deny that she spoke to Brady a second
time, but she explicitly denied that she ever told Brady that
Lake Area was going to work for Keller Fence, and affirmative-
ly testified that she, in fact, told McGowan that Lake Area had
been offered work by Century at Globe College. As noted
above, McGowan testified he reported the Century information
to his supervisor, Warner.30
Brady testified that following his asserted conversation with
Roush, he called Laborers’ Local 563 Business Agent Steve
Buck and asked Buck to call union signatory contractor Keller
Fence (Keller), and find out whether Lake Area was, in fact,
going to work for Keller. Buck reported back to Brady that
Lake Area was not working for Keller and was not going to

30 From my close observation of her testimonial demeanor, Roush
demonstrated the attributes of a credible witness. She readily answered
questions of all counsel in a nonargumentative fashion, and appeared to
strive for accuracy in her answers even correcting one answer and
admitting she wasn’t sure of another. For these and other reasons, I
credit her testimony when in conflict with Brady. In particular, Brady’s
testimony that Roush told him that Lake Area would work for Union
signatory contractor Keller, which Roush explicitly denied, is not be-
lievable because both Roush and McGowan testified that she told
McGowan, truthfully, that Lake Area was going to contract with Centu-
ry. McGowan even testified that he passed this information on to his
superior at the Union. It makes no logical sense that Roush would
truthfully inform Union Official McGowan, but lie to Union Official
Brady, nor does it make sense that Roush would lie to Brady about
doing business with a union contractor, when she knew that the Union
would easily be able to check the veracity of this information. Because
I do not credit Brady that Roush told him that Lake Area was contract-
ing with Keller, I likewise find that his testimony to the effect that the
Union decided not to sign a contract with Lake Area because Roush
lied to him about doing business with Keller, constituted a pretext, and
was not the real reason the Union refused to sign a collective-
bargaining agreement with Lake Area.
LABORERS DISTRICT COUNCIL OF MINNESOTA & NORTH DAKOTA (LAKE AREA FENCE)

297
work for Keller.31 Brady testified that he later told Warner that
he would not sign the contract with Lake Area because “she
misrepresented the fact that she was going to work for Keller
Fence and she lied to me.” When asked by the Union’s counsel
when he told Warner this, Brady testified, “Probably the next
day.”
While, as noted, Roush testified that she never again heard
from Brady after the conversation on April 23 (or 26) during
which Brady, allegedly, told Roush that he would take another
look at signing Lake Area’s union contract and get back to her,
she did exchange a series of e-mail messages with McGowan
beginning April 29. On Thursday, April 29, Roush sent an e-
mail to McGowan, to the effect that Brady had informed her
(Roush) that he would take another look at signing the contract
with Lake Area, and would let her know (whether he would
change his mind and sign the contract). Roush, in the email
tells McGowan, “I have been unable to reach him [Brady] and
was wondering if you had found out if he had changed his
mind. He told me we did not fill out the paperwork completely
but was unable to tell me which one; I only had the actual con-
tract and the processing form. Did I not have some form I
needed? I need to know if we were accepted on a second look
. . . .”
The next day, April 30, McGowan responded to Roush’s
email as follows: “Sharon, I spoke briefly with Jim [Brady], he
is in negotiations and apologizes for not getting back to you
sooner. He is reviewing the contract and will get back to you
by the middle of next week.” Then, on May 4, McGowan sent
the following email message to Roush: “I have spoken to Jim
Brady and he has decided not to sign Lake Area Fence to an
agreement at this time. If you have any questions call Jim at
651-653-****.”32
Roush responded with a final email message to McGowan on
May 6. The message, in pertinent part, stated: “As I had ques-
tioned in the last email to you, Jim Brady said I did not com-
plete the paperwork, was there some other form I was supposed
to have filled out? Most times someone would be sent the form
and asked for further information so I can’t believe that is really
the issue. I do understand this is not your decision but I am
trying to understand and I could get no better information than
the incomplete form and he did not know if we would be finan-
cially viable to pay dues in the future. . . . Anyway if you could
tell me if there was additional forms I needed I would appreci-
ate it.” McGowan never responded to this final email message
from Roush and never responded to either of her emailed re-
quests for information as to what information needed to be
provided.
McGowan testified that the emails between himself and
Roush are accurately described and quoted as above, but that
his messages to Roush were intentionally inaccurate in respect
to his contact with Brady. According to McGowan, after he

31 Buck also so testified. The parties stipulated that at no time did
Lake Area have a contract with Keller to perform work. There is no
evidence that Lake Area either did business with Keller or intended to
do business with Keller.
32 McGowan testified that despite what he wrote in the e-mail mes-
sage, he did not speak to Brady.
received the first email message form Roush on April 29, he
forwarded the message to Brady and to Warner. McGowan did
not speak to, nor receive a response from Brady, but Warner
replied to McGowan that he should tell Roush that Brady was
in negotiations and would get back to her by the middle of the
following week. McGowan further testified that on May 4,
Warner told him that Brady “was not going to sign Lake Area
Fence to an agreement at this time and to send an e-mail to that
effect.”
McGowan sent such an email to Roush on May 4. McGow-
an testified that despite what he told Roush in his email mes-
sages, he did not speak or communicate with Brady during this
period.33
Century Subcontractors Mid-America and Winslow,
and the Union
Counsel for the Acting General Counsel also introduced evi-
dence as to recent past secondary boycott unfair labor practice
charges filed against the Union,34 involving Mid-America and
Winslow.35 On September 30, 2008, Century filed an unfair
labor practice charge with Region 18 in Case 18–CC–001474,
alleging that Local 56336 violated Section 8(b)(4)(ii)(B) of the
Act by refusing to renew 8(f) contracts with contractors unless
the contractors ceased working with Century. On October 29,
2008, the Regional Director for Region 18 approved an infor-
mal settlement agreement of the charge entered into by the
Union in which, among other things, it agreed that it “will not
refuse to sign a collective bargaining agreement with or other-
wise threaten, coerce, or restrain Mid-America Fencing, Wins-
low Fencing, or any other person to stop doing business with
Century Fence Company.”
Brady testified that the Union had refused to enter an agree-
ment with Mid-America because, assertedly, the information it
provided was incomplete and Mid-America was not registered
to do business in Minnesota. Brady testified as to the reasons
the Union refused to enter into a contract with Winslow as fol-
lows: “Information provided on the processing form—
contradictory information, different information. Took a while
to sort it out. Time schedules. I was unavailable, he was una-
vailable, so it took a long time to finally get through it.”
Then, on December 17, 2009, Mid-America filed a charge
with Region 18 against Local 563, alleging that the Union vio-
lated the Act by refusing to enter into an 8(f) agreement with
Mid-America unless Mid-America ceased working with Centu-
ry. The owner of Mid-America, Steven Hurt, called in the in-
stant matter as a witness by counsel for the Acting General
Counsel, testified that the charge was settled when the Union

33 And found it more convenient to use Brady’s name, rather than
Warner’s.
34 Or its Local 563.
35 In introducing said evidence, counsel for the Acting General
Counsel stated that the evidence was being introduced for historical
perspective of the dispute, and explicitly stated that the Acting General
Counsel does not seek any findings in respect to said cases.
36 An affiliate of the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

298
agreed to allow Mid-America to become a party to the Agree-
ment. Mid-America, thereupon, withdrew the charge.37
Hurt also testified as to his prior experiences with Century
and with the Union.38 Hurt testified that 80–90 percent of Mid-
America’s work is performed in the State of Minnesota,39 that
in early 2008 Mid-America was working in the Duluth area,
and then later in the year, beginning in May or June, in Minne-
apolis. While working in Duluth, Century’s construction man-
ager, Troy Adams, informed Hurt that work was available in
the Twin Cities area, but that Mid-America had to become sig-
natory to a contract with the Union.
Pursuant to this conversation, Hurt completed the Union’s
New Contractor Processing Form and faxed it to the Union
about April 27, 2008. Hurt testified that when he received no
response from the Union to his fax, he called Buck in May or
June 2008, and told him that Mid-America wanted to sign the
Union’s collective-bargaining agreement so it could “work in
the area.” According to Hurt, Buck asked who Mid-America
would be contracting for, and Hurt responded, “Century Fence
Company.” Buck replied that because Century wouldn’t sign a
contract with the Union, the Union would not allow Mid-
America to sign the contract, but added that Hurt “could call
Jim Brady, and if Brady said that we [the Union] could sign,
then we could.”
About a day or two later, Hurt and Brady spoke on the tele-
phone. Hurt testified that he told Brady Mid-America wanted
to sign a collective-bargaining agreement, that Brady asked
Hurt who Mid-America was contracting with, that Hurt replied
that it was Century, and that Brady responded, “Century would
not sign the contract with the Union and that was a problem for
him.” According to Hurt, Brady concluded by telling him that
he would call Hurt back and let him know what he decided.

37 Hurt’s signature on the Union’s Highway and Heavy Acceptance
of Agreement form is dated January 6, 2010, and Brady’s signature on
the document is dated January 26, 2010. Hurt also testified as to the
settlement of the unfair labor practice charge that pursuant to the set-
tlement of the charge, he had to register Mid-America with the [Minne-
sota] Secretary of State “and things like that.”
38 In general, I found Hurt to be a credible witness. From my close
observation, he displayed the demeanor of a witness endeavoring to
truthfully testify, including responding to the questions of all counsel in
a nonargumentative and consistent manner and displaying a good recol-
lection of events and conversations. I also note that Hurt and Mid-
America are not parties to the instant litigation, and stand to gain noth-
ing immediately or directly, no matter which side prevails. Conversely,
Mid-American is currently a party to a collective-bargaining contract
with the Respondent as a result of the settlement of its prior unfair labor
practice charge, and such collective-bargaining relationship could be
placed in jeopardy, arguably, by Hurt’s testimony herein, adverse to the
Union’s interests. Thus, it would appear that Hurt’s testimony herein is
against his, and Mid-America’s self-interest. For these reasons, and
others discussed elsewhere herein, I have credited Hurt’s testimony
when in conflict with Buck. I also note that Hurt’s testimony in respect
to comments made by Buck, is consistent with the testimony of Adams
and Witte as to comments made to them by Buck on other occasions.
As I have credited Hurt, I also credit Adams and Witte as their testimo-
ny as to what Buck said to them, and do not credit Buck as to his deni-
als.
39 In Minnesota, Mid-America only works as a subcontractor to Cen-
tury.
The next day Brady called Hurt and told him that it was not in
the Union’s “best interest to sign Mid-America Fencing.” Ac-
cording to Hurt, Brady asked him no questions about what
states Mid-America was registered to work in, about the finan-
cial condition of Mid-America, or about whether Mid-America
had any problems living up to union collective-bargaining
agreements in the past.
Hurt testified that he also followed up with Buck several
times during June and July, seeking to sign a contract with the
Union. On these occasions, according to Hurt, Buck asked if
Mid-America still intended to contract with Century, and sug-
gested on one occasion that if Mid-America didn’t contract
with Century, and instead contracted with another company,
specifically naming Keller and Action Fence, then the Union
would sign a contract with Mid-America. Hurt said he also
called Brady in July, asking if the Union had a “change of
heart.” According to Hurt, Brady asked if Mid-America was
still contracting with Century, and when told by Hurt that it
was, told Hurt that he would get back to him. Brady asked no
questions as to Mid-America’s financial condition or whether it
was registered to work in Minnesota. Hurt did not testify that
Brady specifically told him that the Union wouldn’t sign a con-
tract with Mid-America because of its contracting relationship
with Century and Brady, of course, denies that he ever specifi-
cally told Hurt such.
Buck was called as a witness by the Respondent, and the Re-
spondent’s counsel asked Buck a single question as to conver-
sations with Hurt, as follows: “Did you ever tell Steve Hurt
that you wouldn’t sign Mid-America Fencing because they do
business with Century Fence?” Buck answered, “No.”
Hurt testified that in late 2009, pursuant to the possibility of
Mid-America working on a parking ramp project in metropoli-
tan Minneapolis-St. Paul,40 he called Laborers Local 563 repre-
sentative Tim Mackey,41 and asked Mackey “about the possibil-
ity of meeting with him personally so we could . . . sign up with
the Union there.” Mackey responded that Mid-America “would
not be signed by the Union.” When Hurt asked why, Mackey
responded that Hurt would have to speak to Jim Brady.” Hurt
testified that he called Brady “a couple of times and left mes-
sages,” but that Brady did not return the calls.
Analysis and Conclusions
Section 8(b)(4)(ii)(B) of the Act prohibits unions from
threatening, coercing, or restraining any person engaged in
commerce or in an industry affecting commerce, with an object
of forcing any person to cease doing business with another.
When enacting Section 8(b)(4)(B) in 1947, Congress sought to
shield neutrals form labor disputes that were not their own, on
the basis that, inter alia, neutrals were often powerless to com-
ply with the union’s demands. Service Employees Local 525,
329 NLRB 638 (1999), citing Carpet Layers Local 419 v.
NLRB, 467 F.2d 392 (D.C. Cir. 1972). While a union may
repudiate an 8(f) bargaining relationship at the expiration of the
collective-bargaining agreement without violating Section
8(b)(3) of the Act, such action may violate Section 8(b)(4)(B)

40 The parking ramp is located in Stillwater, Minnesota.
41 Adams, of Century Fence, gave Mackey’s phone number to Hurt.
LABORERS DISTRICT COUNCIL OF MINNESOTA & NORTH DAKOTA (LAKE AREA FENCE)

299
“if it is made for an unlawful secondary reason.” Sheet Metal
Workers Local 80 (Limbach Co.), 305 NLRB 312, 315 (1991),
enfd. in part 989 F.2d 515 (D.C. Cir. 1993).
The Acting General Counsel argues that the evidence here
establishes that Century is the primary employer with whom the
Union has a labor dispute, that Lake Area is the secondary, and
that the only dispute the Union maintains with Lake Area is that
it does, or wants to do, business with Century. Further, counsel
for the Acting General Counsel posits that the Union’s refusal
to enter into an 8(f) relationship with Lake area is exactly the
type of secondary pressure already found by the Board to be
coercive and in violation of Section 8(b)(4)(ii)(B) in Limbach,
supra. Finally, the Acting General Counsel argues that the
appropriate remedy herein would be an order requiring the
Respondent to sign an 8(f) collective-bargaining agreement
with Lake Area, albeit a position apparently contrary to the
Board’s remedy holding in Limbach.
The Respondent, in its brief, maintains that the evidence
does not demonstrate secondary intent because “the Union had
and continues to have lawful reasons for declining to enter into
an agreement with Lake Area Fence.” The Respondent further
argues that 8(f) agreements are voluntary and “as there is no
bargaining duty outside the term of a Section 8(f) agreement,
the Union . . . at no time owed any bargaining duty to Lake
Area Fence.”
Finally, the Respondent argues that, unlike the facts in
Limbach where the union applied serious economic coercion by
repudiating an existing 8(f) bargaining relationship and dis-
claiming interest in representing the employer’s employees,
here, where there was no previous collective-bargaining agree-
ment, there is “no evidence that the Union’s decision not to
form a new bargaining relationship and enter in a new Section
8(f) agreement with Lake Area would drive Lake Area out of
business.” As to remedy, the Respondent argues that “The
Board’s decision in Limbach explicitly precludes any remedy
requiring the Union to bargain with Lake Area or restricting the
Union’s decision whether or not to enter into an agreement with
Lake Area.”
I, first, conclude, in agreement with the Acting General
Counsel’s argument, that the Union’s primary dispute is with
Century, not Lake Area. In this regard, I have found that one of
the Union’s signatory contractors expressed to a representative
of the Union that it would be of benefit to it if competitor Cen-
tury became signatory to the Agreement, that the Union has
solicited Century to become signatory to the contract, that Cen-
tury has spurned the Union’s contractual entreaties, and that the
Union has expressed resultant hostility.
I further find the credited testimony of Mid-America owner
Steven Hurt to be persuasive on this issue. Hurt testified that
he communicated to the Union his desire for Mid-America to
sign an 8(f) agreement, that Union Business Representative
Buck thereupon asked him who Mid-America would be con-
tracting with, and that upon Hurt responding “Century,” Buck
told Hurt that because Century wouldn’t sign a contract with
the Union, the Union wouldn’t allow Mid-America to sign the
contract. Hurt, not a party to this case, nor with a direct vested
interest as Mid-America is a current signatory to the Agree-
ment, thus testified to an experience with the Union remarkably
similar to that testified to by Roush, the owner of Lake Area.
The import of their testimony is that in neither case did the
Union express any inclination not to sign the fencing contrac-
tors to collective-bargaining agreements until the Union dis-
covered that Mid-America, in Hurt’s case, and Lake Area, in
Roush’s case, planned to subcontract for Century.42
Further, based on the credited testimony, I find that Brady’s
testimony as to the asserted reason(s) for the Union’s refusal to
allow Lake Area to become a signatory contractor to be pre-
textual. In this regard, I have found that, in fact, and contrary
to Brady’s testimony, Roush did not inform Brady that Lake
Area would contract with Keller, but instead truthfully in-
formed union organizer, McGowan, that Lake Area would be
contracting with Century.43 Thus, Brady’s testimony that he
decided not to allow Lake Area to become signatory to a con-
tract with the Union because Roush lied to him about whom
Lake Area intended to contract with, is simply a pretext, and
the record demonstrates that the real reason was Roush’s stated
intention to do business with Century, with whom the Union
had an ongoing labor dispute.44
I, thus, conclude that an objective of the Union’s action in re-
jecting Lake Area’s request to become signatory to the Agree-
ment, was to require Lake Area to cease doing business with
Century, and reject the Union’s argument that it acted because
Roush lied to Brady as to whom Lake Area planned to contract
with.45 However, even if I had reached the conclusion that, in

42 There is no evidence that the relationships between Century and
Lake Area or Century and Mid-America are anything other then arms-
length. There is no contention to the contrary.
43 As McGowan so testified. McGowan further testified that he
passed this information on to his superior at the Union.
44 The Respondent argues in its counsel’s brief, that even if Roush
didn’t lie to Brady about what company it planned to subcontract with,
Roush lied to Brady as to the reasons she did not fill out portions of the
Union’s New Contractor Processing Form. Here, the Respondent ar-
gues that either on April 23 or 26, Roush told Brady that she didn’t
complete the form because she hadn’t bid on or been awarded jobs, but
that Century and Lake Area had contracted for the Globe College work
on April 21. But Brady testified that he decided not to allow Lake Area
to become signatory because Roush wasn’t truthful as to allegedly
telling Brady that Lake Area was contracting with Keller. But even
here, Roush credibly testified that she told McGowan on April 22 that
Lake Area had an opportunity to start working on a job for Century on
April 26, and McGowan confirmed such conversations with Roush, but
placed it on April 26. Once again, it makes no logical sense that Roush
was forthcoming with Union Official McGowan, but not with Union
Official Brady. Finally, Roush filled out and faxed the form to the
Union on April 20, 1 day before Lake Area’s contract with Century.
Thus, at the time she filled out the form, there is no evidence that Lake
Area had any work or contracts for work.
45 I, likewise, reject any argument that the Union ultimately refused
to sign a contract with Lake Area because Roush did not provide re-
quested information to the Union. In this respect, Brady explicitly
testified that he decided the Union would not sign a contract with Lake
Area because Roush lied to him about which company Lake Area
planned to do business with. Second, the weight of the evidence
demonstrates that the Union ultimately rejected Lake Area only after
Roush informed the Union that Lake Area planned to work with Centu-
ry. Finally, despite Roush’s repeated attempts to ascertain from union
officials whether she needed to submit further information, the Union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

300
fact, the Union had established that a reason for its action was
as testified to by Brady, this would not change my findings that
it also acted in order to force Lake Area to cease doing business
with Century. Such motivation has been amply demonstrated
by the credited testimony of various witnesses, as set forth
above.
Under these circumstances, the Acting General Counsel has
established that the Union has engaged in secondary boycott
activities. “It is sufficient to establish a violation of Section
8(b)(4)(B) that an objective of the union’s secondary action,
although not necessarily the only objective, is to force the sec-
ondary employer to cease doing business with the primary par-
ty.” (Emphasis contained in the original.) Carpet, Linoleum,
Soft Tile & Resilient Floor Covering Layers, Local Union No.
419, AFL–CIO v. NLRB, 467 F.2d 392 fn. 13 (D.C. Cir. 1972),
citing Electrical Workers v. NLRB, 341 U.S. 694, 700 (1951),
and NLRB v. Denver Building & Construction Trades Council,
341 U.S. 675, 689 (1951). Such an objective has been amply
demonstrated here.
Having concluded that the Respondent’s actions against
Lake Area were directed at influencing its relationship with
Century and therefore constituted secondary activity, the ques-
tion becomes whether these secondary actions violated Section
8(b)(4)(ii)(B) of the Act. Counsel for the General Counsel
contends that the controlling law is set forth by the Board in
Limbach, which, he argues, is analogous on its facts to the in-
stant case. The Respondent’s counsel maintains that the Board
in Limbach dealt with circumstances in which the union and
secondary employer had an ongoing 8(f) relationship, and that
the union refused to renew the relationship at the contract’s end
by disclaiming interest in continuing to represent the secondary
employer’s employees. The Respondent argues that because in
the instant case there never was an 8(f) relationship between the
Union and Lake Area, the Union’s decision not to enter into a
new 8(f) relationship with Lake Area was not economically
coercive because there is no evidence that said action “would
drive Lake Area out of business or deny Lake Area any em-
ployees it had been previously using.”46
In Limbach, the General Counsel alleged that by disclaiming
interest in representing the employer’s employees and repudiat-
ing the 8(f) bargaining relationship upon expiration of the 8(f)
collective-bargaining agreement, the union(s) coerced and re-
strained the employer by “depriving it of its source of sheet
metal workers, thereby, in effect, driving it out of business. . . .”
supra at 314. In the instant case, the Acting General Counsel
alleges, in essence, that the Union refused to enter into an 8(f)
relationship with the neutral employer, Lake Area, in order to
force Lake Area to discontinue doing business with Century,
thereby coercing and restraining Lake Area by, in effect, pre-
cluding its ability to perform work on union jobsites.
The Respondent’s argument that Limbach is factually
inanalogous to the instant case is inviting, but unpersuasive.
Indeed, the facts are different in that Limbach involved a previ-
ously ongoing 8(f) relationship unlike the instant case where

displayed little interest in communicating to her whatever information
was lacking.
46 Respondent counsel’s brief.
the Union refused Lake Area’s request for an initial 8(f) con-
tract. But the practical effects of the unions’ actions in the two
cases are the same and the results are economically coercive.
That is that the secondary employers in both cases, neither with
the power to influence the labor relations of the primary em-
ployer with whom the unions had disputes, were effectively put
out of business or had their businesses economically impacted
by the actions of the unions. The fact that in Limbach an ongo-
ing enterprise was affected or that here it was a fledgling enter-
prise, doesn’t negate or change the fact of economic impact.
In John Deklewa & Sons, 282 NLRB 1375, 1386 (1987),
enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770
(3d Cir 1988), cert. denied 488 U.S. 889 (1988), the Board held
that on the expiration of an 8(f) contract, either party may law-
fully repudiate the bargaining relationship and “a union without
a collective-bargaining agreement may lawfully disclaim inter-
est in representing a group of employees.” An 8(f) contract is,
thus, a voluntary undertaking between agreeing parties.
But here, the 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 contrac-
tor by depriving it of subcontractors to work on union jobsites
unless it agreed to a collective-bargaining agreement with the
Union. It is inherent that in this method of persuading Century
to become a union contractor, pressure must first be applied to
neutral secondary 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 Area in the Union’s dispute with Century, with
the aim of compelling the latter to become a signatory to a con-
tract with the Union—that renders the Union’s otherwise legal
refusal to enter into an 8(f) relationship with Lake Area, unlaw-
ful. Limbach, supra at 315. And it is exactly such neutral sec-
ondary employers as Lake Area that Congress, by enacting
Section 8(b)(4)(B), intended to shield from secondary pressure,
such as that imposed by the Union herein. Accordingly, I find
that the Respondent has violated Section 8(b)(4)(ii)(B) of the
Act, as alleged in the complaint.
CONCLUSIONS OF LAW
1. Century Fence Company has been at all material times an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Lake Area Fence, Inc. has been at all material times an
employer engaged in the building and construction industry.
3. The Respondent, Laborers District Council of Minnesota
and North Dakota has been at all material times a labor organi-
zation within the meaning of Section 2(5) of the Act.
4. The Respondent has been at all material times engaged in
a labor dispute with Century Fence Company.
5. The Respondent has not been engaged in a labor dispute
with Lake Area Fence, Inc., at any material times.
6. The Respondent, by refusing to enter into an 8(f) collec-
tive-bargaining agreement with Lake Area Fence, Inc., in order
to force or require Lake Area Fence Inc., to cease doing busi-
ness with Century Fence Company, has been threatening, co-
ercing, or restraining any person engaged in commerce or in an
industry affecting commerce, with an object thereof of forcing
LABORERS DISTRICT COUNCIL OF MINNESOTA & NORTH DAKOTA (LAKE AREA FENCE)

301
or requiring any person to cease doing business with any other
person, in violation of Section 8(b)(4)(ii)(B) of the Act.
7. The unfair labor practice found above affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
At the hearing herein, counsel for the Acting General Coun-
sel amended the complaint “to seek a special remedy—that
Respondent be required to sign its Highway and Heavy Agree-
ment with Lake Area Fence.”47 In support of his position,
counsel for the Acting General Counsel points to Supreme
Court decisions in which the Court has stated that “Section
10(c) . . . charges the Board with the task of devising remedies”
and that the Board’s remedial power is “a broad discretionary
one, subject to limited judicial review.”48 Counsel for the Gen-
eral Counsel posits on brief, that since the parties here asserted-
ly reached agreement on a contract,49 and the contract would
have been signed but for the Respondent’s unfair labor practice,
the Board should exercise its remedial authority to order the
Respondent to sign the contract. The Respondent maintains
that the parties never reached agreement on the terms of a con-
tract, and that the Board’s holding as to remedy in Limbach,
where it refused to either issue a bargaining order or order the
union to sign the contract, is fully applicable here.
In Limbach, the Board found that the respondent union there-
in violated Section 8(b)(4)(ii)(B)50 when it disclaimed interest
in representing the employer’s employees, with a secondary
objective. In addition, in Limbach, the Union entered into a
new collective-bargaining agreement with the employer associ-
ation, which contract, by its terms, did not include the employ-
er. But still, the Board explicitly declined to provide an affirm-
ative remedy, and held as follows: “However, we shall decline
the General Counsel’s invitation to require the Respondents to
bargain with the Employer and to include the Employer in the
terms of the new collective-bargaining agreement.” Supra at
316.
In so holding, the Board explained its reasoning as follows:
“In our view, to issue an affirmative bargaining order would
violate the principle laid down in Deklewa,51 that an 8(f) union
has no further bargaining obligation after the expiration of the
contract; while requiring the Respondents [unions] to imple-
ment contractual terms that they have not agreed to (vis-à-vis
the Employer) is a remedy precluded by the Supreme Court’s
holding in H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970). I
agree with the Respondent’s argument that the Board’s reason-
ing as to remedy in Limbach is applicable here, and that while
the circumstances of the two cases have some differences, they
are largely analogous for purposes of remedy.

47 From counsel for the Acting General Counsel’s brief.
48 Citing Fiberboard Paper Products Corp. v. NLRB, 379 U.S. 203,
216 (1964), which, in turn, cites NLRB v. Seven-Up Bottling Co., 344
U.S. 346 (1980).
49 The Highway and Heavy Agreement.
50 In Limbach, the complaint alleged, and the Board concluded, that
the respondent union also violated Sec. 8(b)(4)(i)(B), a circumstance
not present in the instant case.
51 Supra.
In both Limbach and here, the unions negotiated master con-
tracts with multiemployer associations, with the negotiations
taking place between the unions and the associations, and with
the agreed-to terms applying to all of the employer-members.
In Limbach, the union and the association eventually reached
agreement, and all employer members of the association were
subject to the contract’s terms, but because the union had ille-
gally repudiated its relationship with the employer, the employ-
er was excluded from the agreement. In the instant case, I
found, as pled in the complaint,52 that the Union illegally re-
fused to enter a contract with Lake Area. In neither case did
negotiations as to terms contained in the contract take place
between the union and individual employers.
Thus, the argument made here by counsel for the General
Counsel, that the contract’s terms were already agreed to (be-
tween the association and the Union) and that the only missing
ingredient for a contract was the Union’s representative’s sig-
nature, is equally applicable to the circumstances in Limbach,
where the Board could have, but did not, order the union to sign
a contract, the terms of which it had already agreed to with the
association. Yet, the Board found such argument there unavail-
ing despite the General Counsel’s invitation for the Board to
order the union to bargain with the employer and to include the
employer in the terms of the collective-bargaining agreement.
The Board declined the General Counsel’s invitation despite
Limbach being an, arguably, more likely case than the instant
one for the imposition of such a remedy in that the parties there
had a prior collective-bargaining agreement and prior collec-
tive-bargaining relationship, and the employer had an existing
work force that had been covered by the prior agreement. Here,
the Union and Lake Area had no prior relationships, not even
under Section 8(f), and Lake Area was a start up company with
no prior employees. I, thus, conclude that while the Union has
violated Section 8(b)(4)(ii)(B) in a manner analogous to that
found by the Board in Limbach, it would be inappropriate to
issue a bargaining order, as the Board concluded in Limbach,
and requiring the Respondent to implement contractual terms
that it has not agreed to (vis-à-vis Lake Area) is a remedy pre-
cluded in H. K. Porter v. NLRB, supra.
I note that counsel for the Acting General Counsel argues, on
brief, that, unlike the circumstances in Limbach, the Union and
Lake Area “had reached the terms of a collective bargaining
agreement prior to Respondent’s unlawful refusal to sign it
. . . .” Yet, the reality of both cases is that the contracts were
negotiated between associations and the union, with the same
terms applying to all covered employers. In Limbach there
was, as noted by the Board, a contract the union had already
agreed to (between the association and the union), which the
Board could have ordered the union to apply to Limbach, if it
had so chosen.53 But, as noted, it declined to so order because
of the principles set forth in H. K. Porter v. NLRB, supra. I can

52 From the complaint: “At all material times, and particularly since
about April 22, 2010, Respondent has failed and refused to enter into a
collective-bargaining agreement with Lake Area under Section 8(f) of
the Act.”
53 “. . . terms of the new collective-bargaining agreement entered into
by Local 80 and SMACNA effective June 1, 1988.” Supra at 316.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

302
see no rational basis upon which to differentiate the instant
circumstances from those considered by the Board in Limbach.
Counsel for the Acting General Counsel cites the Board’s
decision in Ryan Heating, 297 NLRB 619, 620 (1990), en-
forcement denied 942 F.2d 1287 (8th Cir. 1991), where the
Board ordered an employer to sign an agreed to 8(f) collective-
bargaining agreement with the union, for the proposition that
such an order would be appropriate in the instant 8(f) case. But
I find such argument unpersuasive because the facts are inanal-
ogous. In Ryan, the Board concluded that the evidence demon-
strated that the employer had given verbal assent to the entire
contract and had agreed to sign it. In the instant case, while the
Union’s representatives had presented the terms of the form
contract to Lake Area, the evidence is such that the Union,
instead of agreeing to the contract, declined to agree to it, albeit
for illegal reasons. Indeed, this is the explicit theory of viola-
tion alleged in the Acting General Counsel’s complaint. In
Ryan, the Board ordered the employer to sign the contract be-
cause it had agreed to the contract and had agreed to sign it. On
the other hand, here, as in Limbach, the unions, while agreeing
to the terms of the form contract, had not agreed to sign the
contract vis-à-vis the involved employer. Accordingly, I de-
cline to recommend imposition of the affirmative order sought
by the Acting General Counsel, and instead recommend a
standard cease-and-desist order.
[Recommended Order omitted from publication.]