Heartland Industrial Partners, LLC

National Labor Relations Board - Board Decisions

Nov 7, 2006

348 N.L.R.B. 1081 (N.L.R.B. 2006)

HEARTLAND INDUSTRIAL PARTNERS, LLC
348 NLRB No. 72
1081
Heartland Industrial Partners, LLC and United
Steelworkers of America, AFL–CIO and Linda
Kandel, Galen E. Raber, Juanita M. Miller, and
Renate Croll. Case 34–CE–9
November 7, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On June 16, 2005, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel and Charging Party filed exceptions and
supporting briefs. The Respondents filed answering
briefs, and the General Counsel and the Charging Party
filed reply briefs. The Respondent Union filed cross-
exceptions and a supporting brief. The General Counsel
and the Charging Party filed answering briefs, and the
Respondent Union 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, and conclusions and
to adopt the recommended Order.
I. INTRODUCTION
Respondents Heartland Industrial Partners, LLC
(Heartland) and United Steelworkers of America, AFL–
CIO (the Union) have entered into an agreement govern-
ing union organizing at companies that Heartland may
acquire. The complaint alleges that two clauses in the
agreement require Heartland to cease doing business
with another person or employer, in violation of Section
8(e) of the Act. For the following reasons, we find, in
agreement with the judge, that the challenged clauses did
not violate Section 8(e).
II. FACTUAL BACKGROUND
The facts, which are set forth more fully in the judge’s
decision, may be summarized as follows. Heartland is an
investment firm that invests in manufacturing firms lo-
cated in the Midwest. On November 27, 2000, Heartland
and the Union executed the Heartland Agreement. It
consists of two parts: a Side Letter and a Framework for
a Constructive Collective-bargaining Relationship
(Framework).
The Side Letter specifies the circumstances and condi-
tions for applying the Framework to future acquisitions
of Heartland known as “covered business entities”
(CBEs). Specifically, section 3 of the Side Letter defines
a CBE as one in which Heartland
directly or indirectly: (i) owns more than 50 percent of
the common stock; (ii) controls more than 50 percent of
the voting power; or (iii) has the power, based on con-
tracts, constituent documents or other means, to direct
the management and policies of the enterprise. . . .
Section 2 of the Side Letter provides that no less than 6
months after Heartland has invested in a CBE, the Union
may notify Heartland of its intent to organize that CBE.
Heartland will then cause the CBE to execute a Side Letter
and Framework with the Union that is, in form and sub-
stance, identical to the Heartland Agreement.
The Framework states that the CBE will adopt a posi-
tion of neutrality during an organizing campaign; post a
notice to its employees advising them of its neutral posi-
tion; grant the Union access to its premises to distribute
information and to meet with employees; furnish the Un-
ion with employee names and addresses; and recognize
the Union based on a majority showing after a card
check. Also, upon a showing of majority support, the
CBE will bargain within 14 days of recognition, and will
submit to interest arbitration any issues that remain open
after 90 days of bargaining.
The Framework also includes a dispute resolution pro-
cedure. Under this procedure, either party can submit
disputes involving the terms of the Framework to an ar-
bitrator. The arbitrator’s remedial authority includes “the
power to issue an order requiring [a CBE] to recognize
the Union when, in all the circumstances, such an order
would be appropriate.” The arbitrator’s award is final
and binding on the parties. The parties waive the right to
seek judicial review of the award, but may seek its judi-
cial enforcement.
In early 2001, Heartland acquired Collins & Aikman
Corporation (Collins & Aikman), which is engaged in
the manufacture of goods that serve the automotive in-
dustry. In January 2003, Heartland caused Collins &
Aikman to enter into a Side Letter and Framework with
the Union (Collins & Aikman agreement).
In June 2002, Heartland acquired Trimas Corporation
(Trimas), which is engaged in the manufacture of engi-
neered products such as fasteners and automobile acces-
sories. On July 11, 2003, Heartland caused Trimas to
enter into a Side Letter and Framework with the Union
(Trimas agreement).
III. ANALYSIS
A. The 10(b) Issue
The complaint alleges that the Heartland Agreement
was reaffirmed by the Trimas agreement on July 11,
2003, and that sections 2 and 3 of the Side Letter violate
Section 8(e).1 The Respondents contend that the com-

1 The Board and the courts have interpreted Sec. 8(e) to prohibit not
only the initial execution of the agreement, but subsequent reaffirma-
tions as well. Accordingly, “the words ‘to enter into’ must be inter-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1082
plaint is timebarred by Section 10(b) because both the
original and amended charges are untimely.2 For the
reasons that follow, we find, in agreement with the judge,
that the complaint allegations are supported by a timely
filed charge.
The Charging Party filed the original charge on August
6, 2003, and an amended charge on September 24, 2004.
The original charge alleged that the Heartland Agreement
was reaffirmed by the Collins & Aikman agreement and
that sections 2–7 and 11 of the Side Letter and section
I(E) of the Framework violated Section 8(e). The
amended charge alleged generally that the Heartland
Agreement was reaffirmed when Heartland required its
CBEs to enter into neutrality agreements with the Union
and that sections 2–7 of the Side Letter and section I(E)
of the Framework violated Section 8(e).
The original charge is not timely with respect to the
Collins & Aikman agreement because that agreement
was entered into in January 2003, more than 6 months
before the original charge was filed in August 2003.
However, the original charge is timely with respect to the
Trimas agreement entered into in July 2003, even though
the charge does not allege that the Trimas agreement was
unlawful.3
The Supreme Court has held that
[o]nce its jurisdiction is invoked [by the filing of a
charge] the Board must be left free to make full inquiry
under its broad investigatory power in order properly to
discharge the duty of protecting public rights which
Congress has imposed upon it. There can be no justifi-
cation for confining such an inquiry to the precise par-
ticularizations of a charge.
NLRB v. Fant Milling Co., 360 U.S. 301, 308 (1959) (inter-
nal footnote omitted). Accordingly, a complaint alleging
violations not specifically alleged in the charge is proper if
the matters asserted in the complaint “are related to those
alleged in the charge and . . . grow out of them while the
proceeding is pending before the Board.” Id. at 309 (quot-
ing National Licorice Co. v. NLRB, 309 U.S. 350, 369

preted broadly and encompass the concepts of reaffirmation, mainte-
nance, or giving effect to any agreement which is within the scope of
Section 8(e).” NLRB v. Central Pennsylvania Regional Council of
Carpenters, 352 F.3d 831, 834 (3d Cir. 2003), quoting Dan McKinney
Co., 137 NLRB 649, 654 (1962).
2 Sec. 10(b) empowers the Board to issue and serve complaints upon
persons who have been charged with committing an unfair labor prac-
tice, “[p]rovided, [t]hat no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon the person
against whom such charge is made . . . .” 29 U.S.C. § 160(b).
3 The record clearly shows that the Heartland Agreement was reaf-
firmed in July 2003, when it was applied to the Trimas transaction, not
in June 2003 as found by the judge. See GC Exh. 1(e), par. 13(b). This
inadvertent error does not affect our decision.
(1940)). In NLRB v. Operating Engineers Local 925, 460
F.2d 589 (5th Cir. 1972), enfg. in pertinent part 180 NLRB
759 (1970), the court agreed with the Board that a complaint
allegation that a union failed to refer a dissident to a job
with one employer was properly based on a charge alleging
a failure to refer to a different employer. Noting that the
refusals to refer the dissident were close in time and both
were in reprisal for his dissident activity, the court reasoned
that the charge adequately informed the union that its refer-
ral practices as to the dissident had been challenged, so that
it did not “violate the purposes of 10(b) to permit the Board
to include in its complaint allegations of other instances in
which respondents refused to refer [the dissident] to a job in
addition to the particular incident giving rise to the charge.”
Id. at 596.
Both the Collins & Aikman and Trimas agreements
involve the same Heartland Agreement and the same
parties, Heartland and the Union. The original charge
clearly informed the Respondents that the Heartland
Agreement had been challenged. Heartland and the Un-
ion make no claim that they were in any way prejudiced
by the complaint’s reliance on the Trimas agreement
instead of the Collins & Aikman agreement. Moreover,
Heartland and the Union would raise the same defenses
to the alleged 8(e) violation regardless of whether the
reaffirmation event was the Collins & Aikman agreement
or the Trimas agreement. Thus, for 10(b) purposes, the
Trimas agreement alleged in the complaint is sufficiently
related to the Collins & Aikman agreement alleged in the
original charge.
B. The 8(e) Issue
Section 8(e) of the Act generally forbids parties from
entering into an agreement in which an employer “agrees
to refrain from dealing in the product of another em-
ployer or to cease doing business with any other per-
son.”4 Iron Workers (Southwestern Materials), 328
NLRB 934, 935 (1999). The General Counsel can estab-
lish the cease doing business element of Section 8(e) by
“proof of prohibitions against forming business relation-
ships in the first place as well as requirements that one
cease business relationships already in existence.” Car-
penters District Council of Northeast Ohio (Alessio Con-
struction), 310 NLRB 1023, 1025 fn. 9 (1993) (citing

4 Sec. 8(e) provides in pertinent part:
It shall be an unfair labor practice for any labor organization
and any employer to enter into any contract or agreement, ex-
press or implied, whereby such employer ceases or refrains or
agrees to cease or refrain from handling, using, selling, trans-
porting or otherwise dealing in any of the products of any
other employer, or cease doing business with any other per-
son, and any contract or agreement entered into heretofore or
hereafter containing such an agreement shall be to such extent
unenforceable and void[.]
HEARTLAND INDUSTRIAL PARTNERS, LLC 1083
Ets-Hokin Corp., 154 NLRB 839, 840 (1965), enfd. 405
F.2d 159 (9th Cir. 1968), cert. denied 395 U.S. 921
(1969)). Section 8(e)’s reach, however, is not limited to
agreements that on their face require a total cessation of
business relationships. See Longshoremen ILA Local
1410 (Mobile Steamship), 235 NLRB 172, 179 (1978).
Thus, to establish a violation of the cease doing business
element, “it need not be shown that a cessation of busi-
ness has occurred or is inevitable, it is enough to show
that the agreement offers the alternatives of a cessation of
business or of adopting other injurious courses of action.
An agreement which presents neutral employers with
such options gives them ‘no real choice.’” Teamsters
Local 85 (Southern Pacific Transportation Co.), 199
NLRB 212, 215 (1972) (citations omitted).
In this case, the General Counsel does not challenge
the neutrality and card check provisions of the Frame-
work. Instead, the sole provisions alleged to be unlawful
are sections 2 and 3 of the Side Letter, which define a
CBE and require Heartland to cause a CBE to execute
the Side Letter and Framework under specified condi-
tions. According to the General Counsel, this require-
ment, as a matter of law, establishes a prohibited cease
doing business object because it operates as a restriction
on Heartland’s investments. In the absence of record
evidence sufficient to support the General Counsel’s
complaint, and in agreement with the judge, we reject the
General Counsel’s position.5
On their face, the challenged clauses do not limit
Heartland’s discretion to invest in or acquire any com-
pany it chooses. Indeed, the clauses impose no obliga-
tion whatsoever on Heartland either at the time of an
investment or during the ensuing 6 months. Even after
the 6-month period has expired, the clauses on their face
do not require Heartland to cease doing business with
anyone. Rather, Heartland’s obligation is to cause the
company it has invested in to execute a Side Letter and
Framework, if the company qualifies as a CBE and if the
Union requests that it do so. There is also no evidence
that the challenged clauses have had the effect of causing

5 An agreement is unlawful under Sec. 8(e) if “(1) it is an agreement
of a kind described in the basic prohibition of that section—e.g., an
agreement to cease doing business with another person, (2) it has sec-
ondary, as opposed to primary, work preservation objectives, and (3) it
is not saved by coming within the terms of the construction industry
proviso to Section 8(e).” Alessio Construction, supra at 1025. As
noted above, we agree with the judge that secs. 2 and 3 of the Side
Letter are not an agreement to cease doing business. We find it unnec-
essary to pass on the judge’s further findings that Heartland’s acquisi-
tion of other business enterprises did not constitute “doing business” for
the purposes of Sec. 8(e) and that the “with another person” criterion
was not met. We also find it unnecessary to pass on whether the instant
agreement had secondary objectives and our dissenting colleague’s
argument that it did.
Heartland to refrain from investing in any company. To
the contrary, Heartland senior managing director Tread-
well testified without contradiction that the obligation
imposed by the clauses is irrelevant to, and has not lim-
ited any of, Heartland’s investment decisions.
As noted above, the Board has found violations of Sec-
tion 8(e) when a clause in theory allows an employer to
do business with a nonunion firm but imposes a signifi-
cant penalty if it does so. Mobile Steamship, supra at
179 ($2-per-ton royalty imposed on cargo unloaded by
“other than ILA labor”); Southern Pacific Transportation
Co., supra at 215 (employer required to pay twice for
work if nonunion labor used); Raymond O. Lewis, et al.,
148 NLRB 249, 253 (1964) (extra $.40-per-ton payment
to retirement fund required for coal purchased from non-
signatory employer). Such clauses have a cease doing
business object because, as was stated in Southern Pa-
cific Transportation Co., supra at 215, “an agreement
which presents neutral employers with such options
gives them ‘no real choice.’” No dilemma of this charac-
ter is presented in this case by the challenged clauses.
The Board has found that clauses that prohibit a signa-
tory employer from being affiliated with a nonunion con-
tractor violate Section 8(e). See, e.g., Alessio Construc-
tion, supra; Sheet Metal Workers Local 91 (Schebler
Co.), 294 NLRB 766 (1989), enfd. in part 905 F.2d 417
(D.C. Cir. 1990); Operating Engineers Local 520
(Massman Construction), 327 NLRB 1257 (1999). Con-
trary to the argument advanced by the General Counsel,
these cases are distinguishable and do not support finding
a cease doing business object here.
The anti-dual shop clause in Alessio Construction pro-
hibited the owners of a signatory employer from forming
or participating in the formation of a nonunion company
in the same general business. In Schebler, an “integrity
clause” allowed the union to rescind its collective-
bargaining agreement if the signatory employer owned,
or was commonly owned with, a nonunion company in
the same general business. In Massman Construction,
the challenged clause prohibited a signatory employer
from entering into a joint venture with a nonunion com-
pany.
In each case, the challenged clause effectively gave the
signatory employer two alternatives: (1) induce another
company to become unionized; or (2) sever its relation-
ship with that company, i.e., cease doing business with it.
See, e.g., Sheet Metal Workers v. NLRB, supra, 905 F.2d
at 421. In Alessio Construction, the clause imposed this
requirement by requiring any “dual shop” to be covered
by all the terms of Alessio’s collective-bargaining
agreement with the union. 310 NLRB at 1025. In Sche-
bler, the integrity clause effectively required the signa-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1084
tory employer to cease its affiliation with a nonunion
operation unless it signed a collective-bargaining agree-
ment with the union. 294 NLRB at 771. In Massman
Construction, the joint venture clause prohibited the sig-
natory employer from entering into a joint venture or
joint work undertaking unless all parties to the joint ven-
ture also signed collective-bargaining agreements. 327
NLRB at 1257. In each of these cases, the plain words of
the clause at issue prohibited the signatory employer
from establishing or continuing an affiliation with a non-
union firm.
The challenged clauses in this case are different. On
their face, they do not require Heartland to choose be-
tween inducing a CBE to become unionized or severing
its relationship with the CBE. Crucially, the challenged
clauses also do not—on their face—require Heartland to
sever its relationship with a CBE that does not become
bound by the Side Letter and Framework.
Concededly, the Side Letter and Framework do pro-
vide for binding arbitration of disputes concerning viola-
tions of their terms. But neither the challenged clauses
nor any other provision of the Side Letter and Frame-
work specify the remedy to be imposed if a CBE does
not become bound. The General Counsel argues that
“there is no basis in the record to conclude that an arbi-
trator is not empowered to order a remedy that would
include the cessation or altering of Heartland’s relation-
ship with the CBE should it not honor the conditions of
the” Side Letter and Framework. (Emphasis added.)
The absence of record evidence, however, falls well short
of meeting the General Counsel’s burden of proving that
the challenged clauses have a cease doing business ob-
ject. Settled Board law requires us to construe a chal-
lenged clause “to require no more than what is allowed
by law” when it is not “clearly unlawful on its face.”
General Teamsters Local 982 (J. K. Barker Trucking
Co.), 181 NLRB 515, 517 (1970), affd. 450 F.2d 1322
(D.C. Cir. 1971). (Emphasis added.) Here, the chal-
lenged clauses on their face contain no provision that
would allow an arbitrator to order Heartland to cease
doing business with a CBE. Consistent with the princi-
ples set forth in J. K. Barker, we will not infer that an
arbitrator will enter such an order but will instead con-
strue the clause “to require no more than what is allowed
by law.”6

6 In any event, the following lengthy chain of contingencies would
have to occur before a cease doing business object could be found on
this basis: (1) Heartland acquires an entity that qualifies as a CBE; (2)
at least 6 months later, the Union invokes the Framework and Side
Letter; (3) Heartland fails to require the CBE to execute the Framework
and Side Letter; (4) the Union demands arbitration; (5) the arbitrator
finds a contract violation; and (6) the arbitrator orders, or effectively
requires, divestiture of the CBE as a remedy. In Manufacturers Wood-
Our dissenting colleague concedes that the challenged
agreement “does not literally require that Heartland cease
doing business with such a CBE.” He thus does not take
issue with our finding that, on their face, the clauses do
not limit Heartland’s ability to acquire any CBE it
wishes. The dissent nevertheless posits that a CBE
would view the Side Letter and Framework interest arbi-
tration and card check recognition procedures as onerous
conditions on doing business with Heartland. Our col-
league also raises the possibility that a CBE might not
honor its obligations, and asserts that in those circum-
stances Heartland “can be made to pay” for the breach.
Our colleague combines these possibilities and finds a
violation of Section 8(e). We disagree.7
The basis on which the dissent would find an unfair
labor practice is difficult to discern. Initially, our col-
league argues that the challenged agreement may be
found to violate Section 8(e) because it would deter po-
tential CBEs from doing business with the signatory em-
ployer, Heartland. The dissent argues that a business
relationship is a “two-way arrangement,” and that an
agreement that “calls for an interruption of that arrange-
ment” is within the ambit of Section 8(e). However,
Section 8(e), by its terms, only prohibits agreements be-
tween a union and an employer “whereby such employer
ceases or refrains or agrees to cease or refrain from han-
dling, using, selling, transporting or otherwise dealing in
any of the products of any other employer, or cease do-
ing business with any other person . . . .” (Emphasis

working Assn. of Greater New York, Inc., 345 NLRB 538, 541 (2005),
the Board found that a similar chain of contingencies was too specula-
tive to support a finding that an arbitration demand seeking to enforce
an allegedly unlawful contract clause would interfere with employees’
Sec. 7 rights. Similarly, any nexus here between the language of the
challenged clauses and cessation of business between Heartland and a
CBE is too attenuated to justify a finding that the clauses are unlawful
on their face.
We acknowledge that if the challenged clauses were applied in the
manner suggested by the General Counsel, the Board would be called
upon to decide whether that application of the clauses violated Sec.
8(e). Without passing on that issue, which is not before us, we empha-
size that our finding that the clauses are not unlawful on their face does
not preclude the Board from finding a violation of the Act if they are
subsequently applied in an unlawful manner. See Painters District
Council 51 (Manganaro Corp., Maryland), 321 NLRB 158, 168 fn. 39
(1996).
While Member Schaumber agrees with the above-stated proposition,
he does not pass on whether Manganaro was correctly decided insofar
as it found that the clauses at issue in that case were lawful.
7 Member Schaumber is of the view that card check and neutrality
agreements present important questions concerning the protection of
employees’ Sec. 7 rights. Any impact the challenged clauses may have
on those rights, however, has no bearing whatsoever on whether they
violate Sec. 8(e). Accordingly, it would be inconsistent with the text of
the Act and the intent of Congress to use Sec. 8(e) to address the
broader issues (which no party raises here) that card check and neutral-
ity agreements present.
HEARTLAND INDUSTRIAL PARTNERS, LLC 1085
added.) Our colleague cites no precedent—because none
exists—for the novel view that an agreement to cease
doing business with someone, by the signatory employer,
is not a prerequisite for finding a violation of Section
8(e).
The dissent also argues that “Heartland is subject to a
breach-of-contract suit and to damages if it fails to re-
quire that a CBE observe neutrality and recognize the
union based on cards.” In fact, the challenged agreement
states that Heartland would be liable for such remedy as
an arbitrator might impose if Heartland failed to comply
with its obligation to require a CBE to execute a Side
Letter and Framework. If a CBE executed a Side Letter
and Framework but thereafter violated its provisions, the
agreement on its face calls for submission of the dispute
to an arbitrator, who is empowered to issue a decision.
There is no requirement that liability for such a violation
be imposed on Heartland.
There is also no record evidence to support our col-
league’s opinion that the requirements established by the
Side Letter and Framework are sufficiently onerous that
either the duty to impose them or the obligation to accept
them would rise to the level of an implied prohibition on
the doing of business under extant Board law.8 Indeed,
the only evidence on point was that the challenged
clauses had no impact whatsoever on Heartland’s in-
vestment decisions. We need not pass on our colleague’s
view, however, because he also concedes that Heartland,
by definition, controls any CBE and can require the CBE
to “agree to the Union’s demands.” How, under those
circumstances, a CBE could fail to comply with its obli-
gations under the Side Letter and Framework, and
thereby trigger a sequence of events that the dissent finds
would result in a cessation of business, is not explained.
Finally, the dissent mischaracterizes our position, ar-
guing that our decision means there cannot be a violation
of Section 8(e) unless the challenged agreement ex-
pressly states that “the remedy for a Heartland breach is
divestiture from the CBE,”9 and that we have found that

8 Cf. Masters, Mates & Pilots (Seatrain Lines), 220 NLRB 164 fn. 2
(1975) (violation found where agreement prohibited sale of vessel
unless purchaser signed contract with union, and union demanded “lost
wages” as damages for breach); Southern Pacific Transportation Co.,
supra; Lithographers of America (Graphic Arts Employers Assn.), 130
NLRB 985 (1961) (violation found where disputed clause allowed
union to terminate entire contract if employer requested that employees
handle struck or nonunion work), enfd. 309 F.2d 31 (9th Cir. 1962),
cert. denied 372 U.S. 943 (1963).
9 The dissent also posits a hypothetical scenario in which the Union
pickets Heartland to force it to require a CBE to agree to neutrality/card
check. This scenario is more akin to an attempt by the Union to en-
force the challenged clauses in a breach of contract action, and thus
says little about the legality of the clauses on their face. As discussed
above, the permissibility of an effort to enforce the clauses is more
the agreement “is not facially unlawful because it does
not literally require a cessation of business.” To the con-
trary. We have not found these facts to be dispositive of
the 8(e) issue, as our decision makes clear. Instead, hav-
ing considered the text of the challenged clauses, as
Board law requires, we conclude that the absence of an
explicit remedy that would effectively require divestiture,
and the absence of a literal requirement that Heartland
cease doing business with anyone, are relevant to our
determination of their facial validity. To the extent the
dissent can be read to say that the absence of such provi-
sions is irrelevant to the 8(e) issue, we disagree.10 In
light of these and the other considerations discussed
above, we conclude that the General Counsel has failed
to show that a cessation of business between Heartland
and a CBE is sufficiently foreseeable to warrant a finding
that the agreement, on its face, violates Section 8(e).
IV. CONCLUSION
In NLRB v. Operating Engineers Local 825 (Burns &
Roe), 400 U.S. 297, 305 (1971), the Supreme Court rec-
ognized that even “secondary activity could have such a
limited goal and the foreseeable result of the conduct
could be, while disruptive, so slight that the ‘cease doing
business’ requirement is not met.” Although we do not
pass on whether the challenged clauses in this case have
a secondary objective, the principle stated in Burns &Roe
is, we think, applicable here. The challenged clauses do
no more than require Heartland, at the Union’s request,
to cause a CBE to execute the Side Letter and Frame-
work. That requirement “affects” Heartland’s business
because it requires it to take that action. However, we
cannot say on this record that a “foreseeable result” of
that requirement is that Heartland will cease doing busi-
ness with anyone. We accordingly find that the General
Counsel has not established that the challenged clauses
violate Section 8(e), and we shall therefore dismiss the
complaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
CHAIRMAN BATTISTA dissenting.
My colleagues have found lawful an agreement which
obligates the signatory Employer (Heartland) to require
companies with whom it does business (CBEs) to agree
to certain demands of the Union. These demands in-

properly addressed in a case challenging the legality of the clauses as
applied.
10 Likewise, we have properly considered the evidence that the
agreement has not resulted in any cessation of business. While not
determinative, this evidence also is relevant to our assessment of the
agreement’s foreseeable effects.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1086
clude: (1) the CBE will be neutral in any union organiz-
ing campaign involving the CBE’s employees; and (2)
the CBE will recognize the Union upon proof of card
majority status. In short, the CBE must give up its statu-
tory rights to: (1) speak freely against the union cam-
paign; (2) have a Board-conducted election to determine
the representational desires of its employees; and (3)
determine what contractual provisions it will agree to,
i.e., the CBE will proceed to interest arbitration if it does
not agree to the Union’s contractual demands. Thus, the
agreement between Heartland and the Union is aimed
squarely at the labor relations of the CBEs. It is there-
fore a secondary agreement proscribed by Section 8(e).
Indeed, the only distinction between this clause and a
union-signatory clause is that the union-signatory clause
requires the other company to have a present bargaining
relationship with the union, while the instant clause re-
quires the other company to recognize the union as the
collective-bargaining representative, based on cards.
Thus, just as union-signatory clauses are secondary and
unlawful because they are addressed to the labor rela-
tions of the other company, so too is the instant clause
secondary and unlawful.
I recognize that the agreement does not spell out the
consequences that would follow if a CBE did not honor
an agreement to neutrality and card-check recognition.
That is, the agreement does not literally require that
Heartland cease doing business with such a CBE. How-
ever, as a practical matter, Heartland controls the CBE
and, as the judge found, can require the CBE to agree to
the Union’s demands.1 My colleagues agree that, to es-
tablish an 8(e) violation, “it need not be shown that a
cessation of business has occurred or is inevitable.”
Similarly, “the Board has long held that where an agree-
ment permits the doing of business, but only under ex-
tremely onerous conditions, such an agreement impliedly
prohibits the doing of business.” See Lithographers of
America (Graphic Arts Employers Assn.), 130 NLRB
985, 987–988 (1961), enfd. 309 F.2d 31 (9th Cir. 1962),
cert. denied 372 U.S. 943 (1963). In the instant case, the
condition of Heartland’s doing business with a CBE is
that the CBE must accept neutrality and card-check rec-
ognition, i.e. it must give up its right to speak freely and
to a Board election. It must also accept interest arbitra-
tion, a nonmandatory subject of bargaining. These in-
deed are onerous conditions.
My colleagues disagree that these requirements are on-
erous. I believe that an employer’s statutory right to
speak freely and its right to a Board election are highly

1 Notwithstanding such control, it is clear, and my colleagues do not
dispute, that the CBEs are separate employers from Heartland.
significant matters, and to take these away can reasona-
bly be viewed as onerous.2 The same can be said about
an employer’s right to negotiate its own contract. See
Section 8(b)(1)(B) of the Act.
My colleagues then say that these conditions (card-
check recognition, neutrality, and interest arbitration) are
irrelevant because the condition is imposed on the CBE
and not on the signatory (Heartland). In this regard, my
colleagues say that a violation of Section 8(e) depends on
an agreement whereby the signatory would cease doing
business with the other company, as distinguished from
the other company’s cessation of business with the signa-
tory. In my view, a business relationship is a two-way
arrangement. If the agreement calls for an interruption of
that arrangement, each of the parties ceases to do busi-
ness with the other, and the agreement is therefore within
the ambit of Section 8(e). In any event, in the instant
case, signatory Heartland cannot invest in, i.e., do busi-
ness with, a CBE unless the CBE will be bound to the
neutrality and card-check clauses. Heartland is subject to
a breach-of-contract suit and to damages if it fails to re-
quire that a CBE observe neutrality and recognize the
union based on cards. In short, Heartland can be made to
pay for the breach.
Relatedly, my colleagues suggest that an 8(e) violation
may depend, inter alia, on whether the remedy for a
Heartland breach is divesture from the CBE. There is no
support for that view, and it is contrary to the principle
that Section 8(e) is not dependent upon a literal cessation
of business.
My colleagues also say that the clause is not facially
unlawful because it does not literally require a cessation
of business between Heartland and a CBE. However, as
discussed above, Section 8(e) imposes no such require-
ment.
Finally, my colleagues cite evidence to the effect that
Heartland is not in fact deterred by the alleged 8(e) pro-
vision in deciding whether to invest in a given CBE.
This position is a bit curious because my colleagues also
assert that the General Counsel’s attack is on the face of
the clause, not the manner in which it is applied. In my
view, taking the General Counsel’s attack as a facial one,
it is clear that Heartland may not invest in a company
unless that company will be bound to neutrality and card-
check recognition. The fact that Heartland’s investment
decisions are not affected by the clause does not negate
the facial invalidity of the abuse.

2 I do not pass on the legality of a union’s agreement with a primary
employer that such rights are waived.
HEARTLAND INDUSTRIAL PARTNERS, LLC 1087
Because the Union achieves its labor objectives vis-à-
vis CBEs through an agreement with Heartland, I would
find the 8(e) violation.3
Jennifer F. Dease, Esq., for the General Counsel.
Peter D. Nussbaum, Esq. and Danielle E. Leonard, Esq., for the
Union
James M. Stone, Esq. and David E. Weisblatt, Esq., for Heart-
land.
William L. Messenger, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard
this case in Hartford, Connecticut, on March 21, 2005. The
charge and amended charge was filed on August 6, 2003, and
September 24, 2004. The complaint was issued on February 9,
2005, and alleged:
1. That the Respondent Heartland, which is located in
Greenwich, Connecticut, is a private equity firm that invests in
industrial manufacturing companies.
2. That on or about November 27, 2000, Heartland by David
Stockman, entered into an agreement with the Union which sets
forth conditions under which Heartland’s “covered business
entities,” shall enter into “neutrality agreements” with the Un-
ion.
3. That section 3 of a Side Letter defines covered business
entities (CBEs) as being any enterprise in which Heartland:
Directly or indirectly (i) owns more than 50% of the common
stock; (ii) controls more than 50% of the voting power; or (iii)
has the power, based on contacts, constituent documents or
other means, to direct the management and policies of the en-
terprise. . . .
4. That Section 2 of the Side Letter provides in part
If, at any time after six months following a transaction, the
Union notifies Heartland in writing of its actual intent to or-
ganize any of the facilities of the CBE, then within ten days of
such notification, Heartland will cause the CBE to immedi-
ately execute an agreement (hereafter known as the “Frame-
work for a Construction Collective Bargaining relationship”
or “Framework Agreement”) between said CBE and the
USWA. . . ., as well as the Side Letter, both of which shall
also at that time be executed by the Union.
5. That Section I of the Framework requires a CBE em-
ployer to grant the Union access to distribute information and
to meet with employees; provide the Union with the names and
addresses of employees; grant recognition to the Union based
on a card check procedure; bargain within 14 days of recogni-

3 Another way to test and confirm that this case involves an 8(e) vio-
lation is to posit that the union pickets Heartland to get Heartland to
require CBEs to agree to neutrality/card check. It is clear that the pick-
eting would violate Sec. 8(b)(4)(B). It is equally clear that the Union is
proscribed by Sec. 8(e) from accomplishing that objective through
agreement with Heartland. Sec. 8(e) closed the prior loophole in
8(b)(4)(B). See The Developing Labor Law, p. 1751 fn. 22.
tion and engage in interest arbitration of open issues within 90
days of bargaining.
6. That in June 2002, Heartland acquired Trimas as a CBE
entity. Trimas is located in Bloomfield Hill, Michigan, and is
engaged in the manufacture of engineered products such as
fasteners and automobile accessories.
7. That on or about July 11, 2003, Heartland required Tri-
mas to enter into an agreement with the Union that required
Trimas to implement the substance of the Heartland Agree-
ment. It is alleged that by such action, the Respondents Heart-
land and the Union reaffirmed the provisions of the Heartland
Agreement.
8. That by entering into and maintaining the Heartland
Agreement and reaffirming it on July 11, 2003, vis-à-vis Tri-
mas, the Respondents have entered into an agreement by which
Heartland has agreed to not do business with another person or
employer and thereby the Respondents have violated Section
8(e) of the Act.
I. JURISDICTION
The parties agree and I find that the Company is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The facts are not in dispute and the parties agree that this is a
case of first impression.1
Heartland is a limited partnership located in Greenwich,
Connecticut. It is principally a private investment vehicle
somewhat similar in design and hopes of Berkshire Hathaway.
It aggregates large amounts of capital and has sought to pur-
chase controlling interests, primarily in old line industrial en-
terprises located in the Midwest. (Hence the name Heartland.)
In the trade, this is called a leveraged buyout firm. Heartland
itself, does not directly employ industrial workers, having a
relatively small staff of people in Greenwich, Connecticut. Its
direct employees are not represented by any labor organization.
Dan Tredwell, Heartland’s senior manager director testified
that inasmuch as many of the potential targeted enterprises
were already unionized, it was decided at the outset, that Heart-
land would attempt to have good relationships with the large
industrial unions in the United States.
In 1999, David Stockman, one of the founding partners,
sometime after spending time as budget director in the Reagan
administration, decided to establish Heartland. At that time, he
and Tredwell entered into talks with Ron Bloom who was the
special assistant to the president of the Steelworkers Union of
America.
Bloom presented an agreement based on a model that the
Steelworkers had negotiated with another company. That model
was transmitted to Heartland as a proposed “Framework” and
was modified, after negotiations, into a side letter. (This is re-
ferred to by the parties as “The Side Letter”). For whatever
reasons, the parties refer to the “Heartland Agreement” as being
the combination of the “Framework” and the “Side Letter.”

1 I would like to express my appreciation for the excellent briefs
filed by all parties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1088
There are in fact, two documents, both dated November 27,
2000.
In any event, there is no question but that there is an agree-
ment between Heartland and the Steelworkers Union which has
already been described above. Essentially, this agreement pro-
vides that if Heartland purchases the stock of an existing enter-
prise, and if it becomes the controlling entity, and if the Union
decides, after 6 months from the acquisition date that it will
seek to organize the employees of the controlled entity, and if
the Union notifies Heartland of its intention to organize, then
Heartland will (as the controlling entity), require the acquired
entity to agree to recognize the Union based on a card check.
And if the card check establishes a bargaining relationship and
if no agreement is reached, then the parties will enter into inter-
est arbitration.2
Notwithstanding the General Counsel’s contention that the
Heartland Agreement contains “investment restrictions,” the
documents themselves, by any normal use of the English lan-
guage, do not contain any restrictions on the types of invest-
ments that can be made by Heartland. Nor is there any evidence
to suggest that the Union’s intention in reaching the agreement
was to restrict the set of enterprises that Heartland could invest
in or acquire. The agreement does not limit Heartland from
negotiating only with unionized firms or with firms that would
agree to become unionized. It does not prohibit Heartland from
negotiating with firms who would vigorously fight any efforts
to unionize or with firms whose managements may have never
thought about unions at all. Whatever opinions about unions
may have been entertained by the management of a firm being
sought by Heartland, those opinions were simply irrelevant to
Heartland and according to Tredwell, never played any part in
its negotiations for an acquisition. Tredwell testified that Heart-
land has never disclosed its arrangement with the Union when
it negotiates with targeted companies because; “It is none of
their business.”3

2 The Charging Party’s counsel contends that the agreement is an ex-
ample of top down organizing. By this, I assume he means that it con-
stitutes a form of assistance by an employer to a union in relation to the
selection by employees of union representation. I don’t agree and don’t
see the relevance of this contention in any event. The Heartland agree-
ment, although providing that the employer will not actively campaign
against a union and will allow access to employees, also provides for a
mechanism whereby the employer when faced with a union organizing
drive, will resolve a question concerning representation without invok-
ing the procedures of the NLRB. The Union is still required to convince
employees to sign union authorization cards. And a neutral person is
designated to determine if the Union has achieved majority support
within an appropriate bargaining unit. Under Board law, an employer
can voluntarily recognize a union if it demonstrates majority support.
There is nothing in the law that requires an employer to mount an anti-
union campaign. Nor is there anything improper about establishing an
interest arbitration procedure if, after union recognition, the parties
reach an impasse and are unable to agree on the terms and conditions of
an initial contract.
3 The Charging Party’s counsel suggests that the agreement would
somehow hinder Heartland in relation to the pool of investible compa-
nies because there might be some companies whose managements
might want to vigorously resist union organizational efforts because of
“ideological” considerations or in order to protect any remaining stake
that they might have in the company after its acquisition by Heartland.
I note that this agreement between the Union and Heartland,
encompasses a number of contingencies pursuant to which the
Union might possibly become the recognized bargaining repre-
sentative of the employees of an enterprise which has been
acquired in such a way that Heartland acquires the controlling
interest in that enterprise. There is nothing in the agreement that
would require Heartland to cease doing business with any entity
(including an acquired entity), that did not execute or agree to
be bound by a collective-bargaining agreement with the Union.
Therefore, it cannot be asserted that the agreement between
Heartland and the Union is a “union signatory agreement,”
which is the type of contract which requires a company to only
do business with other enterprises that either are signatory to or
have agreed to be bound to a collective-bargaining agreement.
I further note that in a certain sense the agreement between
the Union and Heartland does not really involve a third person
at all inasmuch as that third party, although perhaps retaining
its separate legal existence, would have ceased to exist as an
independent separate entity once Heartland has acquired it.4
Therefore, once Heartland becomes the controlling entity it
simply carries out, vis-à-vis itself, the terms of the “neutrality”
agreement that it had previously agreed to with the Union.
In June 2002, Heartland acquired a company called Trimas
Corporation. In doing so, it acquired about 60 percent of the
stock and controlled the majority of its Board of Directors.
Heartland was also responsible for hiring the CEO and had the
authority to fire him or determine his level of compensation.
There can be no question but that Trimas, upon its acquisition
by Heartland, not only became a CBE in terms of the union
agreement, but also became, as a matter of practical reality, a
controlled entity subject to the wishes and direction of Heart-
land’s partners. If Stockman et al wanted their chosen CEO of
Trimas to jump, they had the legal power and authority to do
so.
Some time after the acquisition of Trimas, the Union gave
notice that it intended to organize the employees and Heartland
implemented the agreement via a letter executed in the name of
Trimas that it would abide by the “neutrality” agreement. This
letter was executed on July 11, 2003, and it is, according to the
complaint and the General Counsel’s theory, the triggering
event for the alleged violation. By that I mean that the General
Counsel contends that the July 11, 2003 transaction constitutes
a re-entering into of an unlawful 8(e) agreement.5

This assertion is speculative at best and there is no evidence to suggest
that the owner/managers of Trimas or any of the other acquired compa-
nies either were told about Heartland’s agreement with the Union or if
they had known, that it would have made any difference to them.
Experience suggests that when owners or managers of an enterprise
make their companies available for sale, the most compelling reason for
making a deal is price and not ideology.
4 Heartland’s control may be exercised in a number of ways. It may
own more than 50 percent of the acquired company’s stock. It may
have negotiated for an agreement whereby it has control over the Board
of Directors or have supermajority or veto rights. It also can exercise
control by having negotiated an agreement with the shareholders of the
acquired company for the right to hire or fire the chief executive officer
and/or the right to determine his or her level of compensation.
5 Since its inception, Heartland has also acquired Collins & Aikman
and another company called Metaldyne. The degree of control that
HEARTLAND INDUSTRIAL PARTNERS, LLC 1089
III. ANALYSIS
A. The Statute of Limitations Issue
The Respondents contend that the complaint is barred by the
Act’s statute of limitations in Section 10(b). While acknowl-
edging that in cases involving Section 8(e), the 10(b) period
will start to run not only from the time the original agreement is
entered into, but from the time that agreement is re-entered, the
Respondent contends that the complaint in this case is at sub-
stantial variance from the charges that were filed.6
The Respondents note that both the original and first
amended charge, filed on August 6, 2003, and September 24,
2004, alleged that the Heartland Agreement was reaffirmed in
relation to the acquisition of another company called Collins &
Aikman and that the contested agreement was implemented in
January 2003, more than 6 months before the filing of the
charge and amended charge. In this respect, I would be inclined
to agree that if the complaint relied on the transactions involv-
ing Collins & Aikman as the triggering event, then the com-
plaint would be barred by the statute of limitations.
Nevertheless, the complaint alleges that the agreement was
re-entered in June 2003, when the Heartland Agreement was
applied to the Trimas acquisition. Therefore, the June 2003
reaffirmation clearly would be within the 10(b) period. Perhaps
it would have been better form if a new charge had been filed,
identifying the Trimas transaction as being the 8(e) triggering
event. But I don’t think this was necessary inasmuch as the
essential allegations of the charge and complaint are (a) that it
is the underlying agreement that is unlawful under 8(e) and (b)
that it was reaffirmed within the 10(b) period. Since the imple-
mentation of the agreement can be reaffirmed irrespective of
what acquisition company is involved, I think that the com-
plaint’s reliance on the Trimas transaction, instead of the
Collins & Aikman acquisition, is sufficiently related to the
charge and amended charge so as to fulfill the requirements of
the Act’s statute of limitation. Redd-I Inc., 290 NLRB 115
(1988); Nickles Bakery of Indiana, 296 NLRB 927 (1989);
Ross Stores Inc., 329 NLRB 573 (1999); Seton Co., 332 NLRB
979 (2000), and Kentucky Tennessee Clay Co., 343 NLRB 931,
932 (2004).
B. The 8(e) Issue
The basic questions here are (1) whether the Heartland
Agreement requires Heartland to cease doing business with
anyone, and (2) if so, who?
Inasmuch as Section 8(e) of the Act was designed to close a
loophole in the then existing secondary boycott provisions of
the statute, it is necessary to understand its purpose by first

Heartland had in those other transactions was somewhat different than
in the case of Trimas. But those acquisitions are not at issue in the
present case, as neither is claimed to involve an illegal reaffirmation of
the alleged 8(e) agreement.
6 For cases dealing with the 10(b) statute of limitations being met by
a reentering into within the limitations period, see for e.g. Dan McKin-
ney Co., 137 NLRB 649, 653–657 (1962); Teamsters Local 77, 335
NLRB 1031 (2001); Carrier Air Conditioning Co. v. NLRB, 547 F.2d
1178, 1185–1186 (2d Cir. 1976); Los Angeles Mailers Union No. 9 v.
NLRB, 311 F.2d 121 (D.C. Cir. 1962).
considering the language and purpose of Section 8(b)(4)(i) and
(ii)(B).
Section 8(b)(4)(i) and (ii)(B) makes it illegal for a labor or-
ganization to (i) induce or encourage any individuals employed
by any person to engage in a work stoppage or a refusal to per-
form services or (ii) to threaten, restrain, or coerce any person
for (B) an object of forcing or requiring any person to cease
doing business with any other person. This section of the Act
typically prohibits a union from striking, picketing, or other-
wise coercing entity A (if it does not have a primary dispute
with A), to force or require entity A to cease doing business (in
whole or in part), with entity B. It should be noted that the Act
also specifically states: “Provided, that nothing contained in
this clause (B) shall be construed to make unlawful, where not
otherwise unlawful, any primary strike or primary picketing.7
Section 8(e) was enacted to get around a loophole in the Act
as it became apparent that one way to get around the then exist-
ing secondary boycott provisions, was for a union having a
strong or dominant relationship with certain employers, to re-
quire those employers to enter into agreements, whereby they
agreed, in advance, not to do business with any other employers
with whom the union had a dispute. In that situation, it no
longer would be necessary for a union to call its members out
on strike or put up picket signs or bother with any other kind of
coercive conduct. A union could simply enforce the agreement,
either in arbitration or through a lawsuit, and accomplish its
aim.8 In pertinent part, Section 8(e) states:

7 Sec. 8(b)(4)(i) and (ii)(A) makes in illegal for a union to engage in
coercive conduct to force or require an employer to enter into an 8(e)
agreement.
8 In Woodwork v. NLRB, 386 U.S. 612, the Supreme Court described
the purpose of 8(e) as follows:
In Local 1976, United Brotherhood of Carpenters, etc v. NLRB, 357
U.S. 93 (1958), the Court held that it was no defense to an unfair labor
practice charge under Sec. 8(b)(4)(A) that the struck employer had
agreed, in a contract with the union, not to handle nonunion material.
However, the Court emphasized that the mere execution of such a
contract provision (known as a “hot cargo” clause because of its
prevalence in Teamster Union contracts), or its voluntary observance
by the employer, was not unlawful under Sec. 8(b)(4)(A). Section 8(e)
was designed to plug this gap in the legislation by making the “hot
cargo” clause itself unlawful. The Sand Door decision was believed
by Congress not only to create the possibility of damage actions
against employers for breaches of “hot cargo” clauses, but also to cre-
ate a situation in which such clauses might be employed to exert sub-
tle pressures upon employers to engage in “voluntary” boycotts.
Congress therefore intended that 8(e) was to supplement and not
supplant the secondary boycott provisions of the Act. The use of the
words “contract or agreement,” does not appear to have been intended
to encompass those situations where an employer, in the absence of a
prior agreement, simply acquiesces in union pressure to cease doing
business with a person with whom the union has a dispute, or voluntar-
ily acquiesces in a simple request that it cease doing business with
another person. Thus, in NLRB v. Servette Inc., 377 U.S. 76, the Court
held that a union could lawfully appeal to a secondary employer to
agree to exercise its managerial discretion not to do business with a
primary person so long as the request was not accompanied by threats
or coercion. It therefore seems that the words “contract or agreement”
as used in Section 8(e) contemplates the entering into of an agreement
between a union and an employer, on a continuing basis, (and not as a
one time transaction), whereby the employer enters into a contract to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1090
It shall be an unfair labor practice for any labor or-
ganization and any employer to enter into any contract or
agreement, express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from han-
dling, using, selling, transporting, or otherwise dealing in
any of the products of any other employer, or cease doing
business with any other person, and any contract or
agreement entered into heretofore or hereafter containing
such an agreement shall be to such extent unenforceable
and void.9
Taken together, Section 8(b)(4)(i), (ii)(A), and (B) and 8(e)
constitute a comprehensive schema to prohibit secondary boy-
cotts by either conduct or contract, but to continue to allow
primary strikes, work stoppages, or other primary activities. In
either case, the critical element for finding a violation is that the
conduct or contract must be designed to force or require em-
ployer/person A to cease doing business, in whole or in part,
with employer/person B.10 If the conduct or contract does not
have as an object, a cessation of at least some business between
two or more separate and independent enterprises, then what-
ever else it may be, it is not a violation of the Act.
The most obvious type of 8(e) agreement is one that is em-
bedded in a collective-bargaining agreement and provides that
in the event that the contracting union has some dispute with
another employer B, the contracting employer A will not de-
liver to, receive from or otherwise do business with the other
employer. If enforced (either by a judge or by an arbitrator),
that type of agreement would necessarily require the contract-
ing employer to cease doing business with employer B.
There are, however, less obvious situations where the alleged
8(e) agreements are more ambiguous. For example, there is a
line of cases where one must distinguish if a contractual provi-
sion has a cease doing business object or is simply designed to
protect the work of the employer’s bargaining unit workers. In
National Woodwork, 386 U.S. 612, 644 (1962), the Supreme
Court held that a union did not violate Section 8(e) by including
in its collective-bargaining agreement a provision stating that
none of its members would handle prefitted doors purchased by
their employer. The Court held that although the provisions of
the clause, if taken literally, would require the company to
cease doing business with the door’s vendors, the object of the
clause was to preserve work traditionally assigned and done by
the employer’s own employees who were covered by the col-
lective-bargaining agreement. In this respect, the Court stated
that although a literal reading of 8(e) would lead to a conclu-
sion that the clause in question had a cease doing business ob-

cease doing business with other persons with whom the Union may
have a present or future disputes.
9 I have left out the two provisos to 8(e) which deal with agreements
made in the construction and garment industries. These are not relevant
to the present case.
10 The Supreme Court in NLRB v. Operating Engineers, Local 825,
400 U.S. 297, 305 (1971) stated that Sections 8(b)(4)(B) and 8(e) do
not require a total cancellation of a business relationship. See also
Board decisions in Sheet Metal Workers Local 91, 294 NLRB 766, 767
(1989); and International Longshoremen’s Local 1410, 235 NLRB 172,
179 (1978).
jective, the Court stated that Congress meant 8(e) and
8(b)(4)(B) only to prohibit “secondary objectives.”
There exists a set of cases dealing with a union’s attempt to
prevent an employer from contracting out the work of bargain-
ing unit employees to other companies. For example, an agree-
ment that simply bars an employer from subcontracting existing
bargaining unit work would be perfectly legal as it would have
the object of preserving bargaining unit work even if would
incidentally also preclude the contracting employer from doing
business with others. Teamsters Local 546 (Minnesota Milk
Co.), 133 NLRB 1314, 1316–1317 (1961), enfd. 314 F.2d 761
(8th Cir. 1963). On the other hand, a clause which permitted the
employer to subcontract out bargaining unit work only to com-
panies having a collective-bargaining agreement with the Un-
ion, would be considered to be illegal under 8(e) because in that
case, the object (or intent), would principally be to affect the
labor relations of the other employer and not merely to preserve
the work of the contracting employer. (The Act only requires
that an object be secondary in order for a violation to exist.)
Such contract clauses, called union signatory clauses, are uni-
versally held to violate 8(e) in the context of subcontracting
cases because their objective has been deemed to be secondary
and not primary and their enforcement would require the con-
tracting employer to cease doing business with its subcontrac-
tor. Time Warner Cable of New York City, 344 NLRB No. 36
(2005); J & J Farms Creamery, 335 NLRB 1031 (2001).
There also exists another set of cases where the Board has
concluded that the clauses in question, although not explicitly
requiring one entity to cease doing business with another, can
be interpreted as implicitly requiring such a result.
In Raymond O. Lewis, 148 NLRB 249 (1964) remanded on
other grounds sub nom. Lewis v. NLRB, 350 F.2d 801 (D.C.
Cir. 1965), the Board held that a contract provision that im-
posed a substantial penalty to be paid by the contracting em-
ployer if it purchased coal from a nonunion signatory company
violated Section 8(e). The Board opined that although the
clause in question purported to allow the contracting employer
to do business with others, the penalty provisions made the
exercise of that right so onerous as prevent the company from
doing business with another company. Similarly, in Teamsters
Local 728 (Brown Transport Corp.), 140 NLRB 1436, 1438–
1439 (1963), the Board held that a penalty clause was “an im-
plied agreement” to cease doing business because it had the
effect of making it difficult, expensive, and unlikely for an
employer signatory to the agreement to insist that his employ-
ees handle ‘hot cargo’ goods or equipment.”
In Teamsters Local 85, 199 NLRB 212 (1972), the contract
between the union and an employer required its unionized em-
ployees to load and unload goods and if the employer’s cus-
tomers insisted on using their own employees to do that work,
the signatory employer would be required to pay a penalty in
the form of “runaround” wages to the union employees who
lost the work. The Board held that the use of a penalty as an
alternative to requiring the use of a union employer, constituted
an implied agreement to cease doing business. It stated that “it
need not be shown that a cessation of business has occurred or
is inevitable,” but that “it is enough to show that the agreement
offers the alternatives of a cessation of business or of adopting
HEARTLAND INDUSTRIAL PARTNERS, LLC 1091
other injurious courses of action.” The Board noted that these
“injurious alternatives” were prohibited by 8(e) because they
presented the contracting employer with “no real choice” other
than to cease doing business. (Emphasis added.) See also Team-
sters Local 282, 139 NLRB 1077, 1088 (1962), for the Board’s
use of the phrase “no real choice.”
Relying on the Raymond O. Lewis and Southern Pacific
Transportation, the Board in Mobile Steamship, 235 NLRB 172
(1978), held that a clause requiring the signatory employer to
pay a penalty of $1000 per cargo load upon using any nonunion
labor to load or unload ships, constituted a violation of 8(e) as it
impliedly required the company to cease doing business with
another. The Board stated: “The fact that the penalty has not, to
date, resulted in any actual cessation of business, so far as this
record shows, is not of controlling significance. It is enough
that its inherently deterrent character is such that it may fore-
seeably have that effect under certain circumstances.”
A brief aside. Both Section 8(b)(4)(B) and 8(e) require that
there be a cease doing of business. (Even if that means that
something less than a total cessation of business is required.)
However, the former deals with union conduct, typically in the
form of strikes, work stoppages, and picketing, while the later
deals with contract enforcement through judicial or arbitration
means. There is, in my opinion a conceptual difference.
In the context of Section 8(e), we are dealing with an agree-
ment between a union and employer/person A intended to force
or require it to cease or at least diminish its business with a
separate employer/person B. There are no other people on the
scene. In that context, the agreement either requires A to cease
or lessen its business with B or it does not. Hypothetically, if
there was an agreement with employer A that said that if it did
business with B, against whom the union was engaged in a
strike, that the employer would allow its employees to appear
on the local cable network to say that A was not supporting
union workers, such an agreement could hardly be said to re-
quire, explicitly or implicitly, that A cease doing business with
B. That is, although the intention of the agreement might be to
provide moral suasion on A to support the union’s actions
against B, the agreement itself would not require any cessation
of business between the two enterprises.
Where a union engages in a strike or work stoppage against
employer A, in circumstances where it wants to put pressure on
employer B, it is not really necessary to show that an object of
that conduct is to force or require a cessation of business be-
tween A and B. This is because when this type of conduct is
taken against employer A, it necessarily causes a cessation or
some diminution of business between employer A and all of its
other suppliers and customers who we can label as employers
C, D, and E . . . . That is, where a union engages in a strike or
work stoppage against employer A, that conduct automatically
causes some cessation of business between that employer and
all other persons with whom it does business. Therefore, in an
8(b)(4)(B) case, the real question is not whether the proscribed
conduct has a cease doing business result (it does), but whether
the conduct, notwithstanding that result, constitutes a primary
strike or picketing.
There are also a set of cases where the Board has held that
certain limited business transactions do not constitute “busi-
ness” within the meaning of Section 8(e). In Cascade Employ-
ers Assn., 221 NLRB 751 (1975), the Board stated that “the
sale or transfer of an enterprise has been viewed not as a busi-
ness transaction but as a substitution of one entity for the other
while the conduct of business continues without interruption.”
The Board therefore concluded that a successorship clause,
which required an employer to condition the sale of its business
on the purchaser’s adoption of the union’s contract, did not
violate Section 8(e). See also Mine Workers, 231 NLRB 573
(1977) enfd. on this point 639 F.2d 545, 550 fn. 12 (10th Cir.
1980); and Teamsters Local 814, 225 NLRB 609 fn. 1 (1976)
(Holding that an agreement requiring the purchaser of all or
part of its moving and storage operations to assume the collec-
tive-bargaining agreement, was not a violation of 8(e)).
A seeming exception to the above, might be the Board’s de-
cision in Maritime Union, 196 NLRB 1100, 1101 (1972), enfd.
486 F.2d 907 (2d Cir. 1973), cert. denied 416 U.S. 970 (1974).
In that case, Commerce Tankers Corp. had agreed to bound to a
multiemployer association contract that had a provision requir-
ing it to obtain a written undertaking from the purchaser of a
vessel that it would recognize the NMU as the representative
for the vessel’s unlicensed seamen and would agree to be
bound by the terms of the existing collective-bargaining agree-
ment. (This would be a typical union signatory clause.) The
union contended that the sale and transfer of a vessel did not
constitute “doing business” within the meaning of Section 8(e)
of the Act and the Board disagreed. Unlike cases involving the
sale, in whole or in part, of a business entity, the Board noted
[I]n the maritime industry the sale of a vessel is a fairly com-
mon occurrence. Thus, in the years 1964 to 1971, approxi-
mately 400 American flag vessels. . . averaging 50 per year
were sold from one U.S. company to another. Similarly, dur-
ing this same period approximately 150 U.S. flag vessels were
transferred foreign, excluding vessels sold foreign for scrap-
ping. Accordingly, the transactions involved herein do not
represent a novel situation but occur in the normal course of
doing business in the maritime industry. In these circum-
stances we conclude that in the maritime industry buyers and
sellers of ships are doing business with each other with the
meaning of Section 8(e). As it is unnecessary to our decision,
we have not considered questions concerning the applicability
of this section to the sale of capital assets in other industries or
in other circumstances.
It is quite clear to me that the decision in Commerce Tank-
ers, which involved the sale of large boats, did not purport to
overrule the decisions in Cascade, Lone Star, and Bader Bros.,
which involved the sale, in whole or in part, of a business en-
terprise. It seems to me that the Board’s decision in Commerce
Tankers was limited to the maritime industry and the particular
set of facts involved in that industry. I am not aware of any
cases which purport to overrule Cascade, et al.
One might think that if the sale of a business enterprise does
not constitute doing business within the meaning of Section
8(e), that it would necessarily follow that the purchase of a
business enterprise would also not constitute doing business
within the meaning of Section 8(e). But that is what the General
Counsel seems to be contending in this case. This case does not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1092
involve an ongoing series of business transactions between
Heartland and the companies it has bought. This is not a situa-
tion where one company is a licensee or contractor to another,
such as was the case in Amax Coal Co., 614 F.2d 872 (3d Cir.
1980). Here Heartland purchased the controlling interest of
Trimas in a one time transaction.
If the sale or purchase of a business enterprise does not con-
stitute “doing business” within the meaning of Section 8(e) of
the Act, the inquiry must end here and the complaint should be
dismissed.
Nevertheless, the General Counsel and the Charging Party
cite to another set of cases dealing with “anti-dual shop”
clauses whereby the provisions in a union contract with an
employer A, sets up an impediment to that company making an
investment in another nonunion company. Typically, these
clauses require that the unionized company A, if it invests in
nonunion company B, to require the latter either to adopt com-
pany A’s union contract or pay the same wages and offer the
same terms and conditions as the union contract.11 If not explic-
itly required by the contracts, the Board has concluded that the
clauses in question required company A to terminate its rela-
tionship with company B. (The no choice theory.) In all of
these cases, the Unions contended that the reason for the provi-
sions was to prevent company A from diverting work from its
own unionized work force to the nonunion work force of an-
other company.12 This work preservation rationale cannot apply
to the present case as Heartland itself does not directly employ
any workers whose work would be adversely affected by the
acquisitions.
In Carpenters District Council of Northeast Ohio (Alessio
Construction), 310 NLRB 1023, the issue was whether the
union violated Section 8(b)(3) by insisting, as a condition of
reaching agreement, on the inclusion of a clause called an “anti-
dual-shop clause,” aimed at “prohibiting or discouraging a un-
ionized employer’s maintenance of an affiliation with a nonun-
ion company in a so-called double-breasting arrangement.” The
Board found that the union violated Section 8(b)(3) because it
insisted upon a provision that the Board construed as a “hot
cargo” clause unlawful under Section 8(e) of the Act. The pro-
posed clause stated:
In the event that the partners, stock holders or beneficial own-
ers of the company form or participate in the formation of an-
other company which engages or will engage in the same or
similar type of business enterprise in the jurisdiction of his
Union and employs or will employ the same or similar classi-

11 If instead, a contract provision prohibited subcontracting to com-
panies that did not meet area standards or who did not have equivalent
labor costs, the outcome might be entirely different. It would, in my
opinion, be appropriate for a union to seek to limit subcontracting by
limiting it to firms that did not have a labor cost advantage so long as
the union did not seek to also determine how those costs would be
allocated to the subcontractors employees, by way of specific wages,
and other terms and conditions of employment.
12 This result might have been legally obtained without requiring the
second company to, in effect, accept the identical terms and conditions
of company A’s union contract, but merely to abide by area standards.
Cf. Teamsters Local 107 (S&E McCormick Inc.), 159 NLRB 84 (1966).
fications of employees covered by this Collective Bargaining
Agreement, then that business enterprise shall be manned in
accordance with the referral provision herein and covered by
all the terms of this contract.
The Board stated:
It is an 8(e) clause because, by requiring the extension of the
collective-bargaining agreement to Alessio’s affiliates as it de-
fines them, (1) it is calculated to cause Alessio to sever its
ownership relationship with affiliated firms that seek to re-
main nonunion or to forebear from forming relationships with
such firms, even though those firms are separate employers
under court approved Board law, and (2) it is aimed not a pre-
serving the work of Alessio’s union-represented employees
but rather at satisfying “union objectives elsewhere,”, i.e., the
objective of affecting the labor relations between the nonun-
ion affiliated companies and their employees over which
Alessio has no right of control. Such an attempt to impose a
contract on separate employers of employees in “work units
far removed from the contractual unit” is plainly secondary
and is unlawful under Section 8(e), absent proviso protection.
Notwithstanding the discussion of Section 8(e) in the context
of a complaint alleging an 8(b)(3) violation, I note that in
reaching this decision, the Board did not examine the actual
relationship between Alessio and any company that it had or
intended to affiliate with. The clause was dealt with as an ab-
straction and the Board’s findings were based on the hypotheti-
cal assumption that the clause “is not limited to cases in which
common control or diversion of work is demonstrated.” There
was no discussion of how this clause would be treated if a
transaction involved the sale or acquisition of a business enter-
prise and it does not appear that any of the parties, or the Board,
considered its previous decisions in Cascade, Lone Star, and
Bader Bros., supra.
In Operating Engineers Local 520 (Massman Construction
Co.), 327 NLRB 1257 (1999), the issue was whether the union
engaged in a strike against Massman in an effort to compel that
employer to agree to an 8(e) clause. The proposed contract
clause stated:
The Employer shall require as a condition for entering into
any joint venture or joint work undertaking or arrangement
for construction work that all parties to the contract for such
undertaking or arrangement accept and agree to be bound by
this Agreement. The Employer shall be responsible for com-
pliance with the requirements of this provision.
The Board, relying on Alessio, concluded that the proposed
clause was an illegal hot cargo clause and was not protected by
the construction industry proviso to Section 8(e). The Board
stated:
[W]e find no evidence that joint venture clauses like the
clauses at issue in this case were part of the pattern of bargain-
ing in the construction industry at the time of the proviso’s
enactment in 1959. The disputed clauses are not subcontract-
ing agreements of the sort previously found lawful by the
Board and the courts, but instead like the anti-dual shop
clause found unlawful in Alessio, are an attempt to control the
HEARTLAND INDUSTRIAL PARTNERS, LLC 1093
signatory employer’s business relationships. . . . [Footnotes
omitted.]
Unlike the facts in Alessio, the administrative law judge
noted that there was a history of business transactions that
would give “a framework in which to consider the contractual
provision that Local 520 sought to impose on Massman. . . .”
He noted that Massman has been a party to a number of joint
ventures in order to lessen its financial exposure or to obtain
financial support for its performance of large projects. Using
the Clark Bridge project as a recent example, the judge noted
that Massman had entered into an arrangement with Ben Hur
Construction Company whereby these two unequivocally sepa-
rate business entities (Massman being unionized and Ben Hur
being nonunion), set up a joint venture for the purpose of di-
recting the construction, and pursuant to which Massman would
be one of its subcontractors. The judge noted that when the
joint venture won the bid it hired employees (none of whom
were union workers), it let subcontracts, it obtained its own
telephone number at the project site, and it acquired its own
stationary (which gave as the joint venture’s address and tele-
phone number the address and telephone number of Massman’s
headquarters).
In Massman, it is obvious that based on the past history of
doing business, Massman, as a normal part of its business op-
erations, entered into joint venture arrangements with other
independent companies for construction work which could
involve the use of labor that was not represented by the Union
having a contract with Massman. That case, unlike the present
case, did not involve a factual pattern which entailed the acqui-
sition of another company. And once again there is no indica-
tion that the Board intended to overrule Cascade, Lone Star,
and Bader Bros., supra.
In Sheet Metal Workers Local 91 (Schebler Co.), 294 NLRB
766 (1989) (predating Alessio), one of the questions was
whether a union violated Section 8(b)(4)(ii)(A) and (3) by strik-
ing a company called Winger Contracting Company and insist-
ing, as a condition of reaching a collective-bargaining agree-
ment, that it execute a so called “Integrity Agreement.” The
facts are complex and I will attempt to summarize. For many
years, the union and contractors having agreements with it,
worked in a market where there was significant competition
from nonunion companies. Also, it appears that many of the
union companies had set up separate companies that operated
as nonunion entities. In order to preserve work for union mem-
bers, the union agreed that it would grant concessions to union
contractors when they had to bid against nonunion companies.
However, in order to prevent abuse by employers having dual
operations, the Union insisted that a signatory employer agree
to a clause that would subject it to a fine of $500 per day or the
rescission of the collective-bargaining agreement if it had an
ownership interest in a corporation or business entity that used
employees whose wages and working conditions were inferior
to those set forth in the collective-bargaining agreement. As the
clause was obviously a “union signatory clause” inasmuch as
the sanctions could be avoided if the affiliated company was
bound by the union’s contractual terms, the Judge concluded
that the clause, instead of having a work preservation object,
had a secondary object of imposing union terms and conditions
on separate nonunion companies. The Judge noted that the
Union did not argue that the clause’s application would be lim-
ited to those situations where two companies constituted a sin-
gle employer and he noted that “the Integrity Clause, as written,
was not limited to influencing the relationship between entities
which come within the single employer definition.” In this
regard, the judge stated that “The Integrity Clause requires only
that the signatory employer have a limited ownership interest in
the affiliate which must then apply union terms and condi-
tions.”
As in the previously cited cases, the facts in Schebler did not
deal with a situation involving the sale or acquisition of a busi-
ness enterprise. Nor does it appear that anyone raised or dis-
cussed Cascade, Lone Star, and Bader Bros., supra.
In Carpenters (Novinger’s, Inc.), 337 NLRB 1030 (2002),
the Board held that a union violated 8(e) when, within the 10(b)
period, it reaffirmed an 8(e) agreement by taking steps to pur-
sue a grievance alleging a violation of the clause in question. In
that case, the contracting employer, Novinger Inc., was a
wholly owned subsidiary of Novinger Group, Inc. (N.G.),
which also owned another subsidiary company called Kelly
Systems, Inc. The employer and Kelly, both of whom were
owned by James Novinger, were both engaged in the installa-
tion of dry wall, board walls, and ceilings in the construction
industry and, to an extent, shared some equipment commonly
used in the drywall construction industry. The union and
Novinger Inc. were parties to a collective-bargaining agreement
covering its carpenters, but Kelly had operated for some time as
a nonunion entity. (This is a classic “double breasted” operation
where two companies that have common ownership operate
separately and have separate units, one employing union labor
and the other non-union labor.) The contract between the union
and the employer contained a provision that stated:
The employers stipulated that any of their subsidiaries or joint
venture to which they may be parties when such subsidiaries
or joint venture engage in multiple dwelling, commercial, in-
dustrial or institutional building construction work shall be
covered by the terms of this agreement. . . . It is agreed that
any dispute relating to the above Recognition and Union Se-
curity clause cannot be resolved between representatives of
the Keystone Contractors Association and the Central Penn-
sylvania Regional Council of Carpenters shall be submitted to
arbitration.
As noted, the union invoked the grievance machinery against
Novinger Inc. in an effort to compel Kelly to be bound by the
terms of the agreement when it did business within its geo-
graphic jurisdiction. Among other defenses, the union con-
tended that Novinger and Kelly constituted a single employer
based on the ownership relationship between the companies.
The judge opined that there was an absence of evidence to
show that either entity controlled, in any measurable way, the
labor relations of the other entity. He noted that there was no
evidence that the workers of each worked interchangeably or
that there were any management personnel common to all enti-
ties who could affect their labor relations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1094
Notwithstanding the judge’s conclusion that there was a lack
of evidence showing common control, the Board did not rely on
the judge’s discussion of the Respondent’s single-employer
defense and held instead that the clause violated Section 8(e) on
its face, “i.e., by its express terms it authorizes unlawful secon-
dary conduct, without regard to its actual effect on any particu-
lar entity.”
To repeat myself, the facts in Novinger’s did not involve a
sale or acquisition transaction and the cases dealing with that
type of business transaction were not discussed.
Finally, in Iron Workers (Southern Materials), 328 NLRB
924 (1999), the Board found that a union violated 8(e) by seek-
ing to enforce, by judicial means, contract clauses with an em-
ployer (Edwin G. Smith, Inc.) that stated in substance, that the
collective bargaining would be “effective in all places where
work is being performed or is to be performed by the Employer
or any person, firm or corporation owned of financially con-
trolled by the Employer . . . and the Employer agrees to sublet
any work under the jurisdiction of the Association or its local
unions to any person, firm or corporation not in contractual
relationship with this Association or its affiliated Local Un-
ions.”
In that case, the contracting employer, Edwin G. Smith Inc.,
was the business entity that emerged after a series of mergers
and restructurings. The original firm (also named Edwin G.
Smith), had maintained a collective-bargaining relationship
with the union since 1959 after which it was acquired by the
Cyclops Corporation. Without describing the ins and outs of the
corporate arrangements, suffice it to say that by 1986, Edwin G.
Smith was one subsidiary that operated as a union contractor
and Southwestern Materials was another subsidiary of Cyclops
that had been operating for some time as a nonunion contractor.
By this date, both corporations had been performing work in
the construction industry and the Union began to suspect that at
a number of construction sites, Smith was subcontracting bar-
gaining unit work to Southwestern.
The basic argument that ensued in the Board litigation, apart
from the 10(b) and Bill Johnson’s contentions,13 centered on
the Union’s contention that the clauses had valid work preser-
vation objectives. Finding that the unambiguous language of
the provisions required work subcontracted to any person, firm,
or corporation owned or financially controlled by the Em-
ployer, only if it was a “union signatory,” it is not surprising
that the Union did not prevail in its work preservation argu-
ment. But again, this situation did not involve a business enter-
prise acquisition transaction and did not require a discussion of
Cascade, Lone Star, and Bader Bros., supra.
In light of the above, I am going to recommend that this
complaint be dismissed. I do so for the following reasons:
First, it is my opinion that the Heartland Agreement essen-
tially is an agreement that relates to the acquisition by Heart-
land of other business enterprises. To the extent that it could
conceivably impose any type of restriction on its desire or abil-
ity to acquire industrial enterprises, this type of single event

13 Referring to NLRB v. Bill Johnson’s Restaurants, 461 U.S. 730
(1983).
transaction would not constitute “doing business” with the
meaning of Section 8(e) of the Act.
Second, there is nothing in the agreement itself, which re-
stricts Heartland from making any transaction it chooses to
make. The evidence shows that the terms of the agreement did
not play any role in Heartland’s decision to acquire a business
enterprise or that its content even entered into the negotiations
for a sale. (Of for that matter that the management of the seller
is even notified of the agreement.) If Heartland does acquire the
controlling interest in a company it can unilaterally require the
acquired entity to abide by the Heartland Agreement and there
is no reason to, and no mechanism to effectuate a termination
of the purchase or otherwise cause either to cease doing busi-
ness with the other. Hypothetically, in the event that the Union
notified Heartland that it is going to attempt to organize em-
ployees, if any of the former owners or managers wished to
mount an antiunion campaign, they simply would not have any
say in the matter and their desires would be irrelevant. In this
instance, the “no choice” theory regarding implicit agreements
to cease doing business, could not apply.
Third, the General Counsel and the Charging party argue that
the agreement between Heartland and the Union, to the extent
that it requires Heartland to force any acquired controlled busi-
ness to abide by the neutrality agreement is, in effect, an
agreement whereby Heartland has agreed to not do business
(either in whole or part), with another person. But if the ac-
quired entity is controlled by Heartland (as in the case of Tri-
mas), then the neutrality agreement would simply be an agree-
ment, by Heartland, to cease doing business with itself. It
would not be an agreement by an employer to cease doing
business with any other person. In this regard, the Charging
Party relies heavily on Painters District Council 51 (Manga-
naro Corp., MD), 321 NLRB 158 (1996), where the Board, in a
case with a complex fact pattern and an even more complex
discussion, essentially distinguished Alessio and held that an
anti-dual-shop clause was lawful where the clause, on its face,
preserved bargaining unit work of the signatory employer, and
where the signatory employer had the effective right to control
the dual shop.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The complaint is dismissed.
I note here that the dismissal of this 8(e) complaint would
not preclude the employees of Trimas, or any other future ac-
quired Covered Business Entity (CBE), from challenging, un-
der Section 8(a)(1), (2), or (3) or 8(b)(1)(A) and (2), any appli-
cation of the Heartland Agreement that resulted in illegal assis-
tance or in an illegal grant of recognition to the Union. (The
companies involved here, and those that are likely to be in-
volved in the future, are not engaged in the construction indus-

14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
HEARTLAND INDUSTRIAL PARTNERS, LLC 1095
try where, pursuant to Section 8(f), prehire recognition agree-
ments are legal.)
Notwithstanding an agreement to be bound by a card check,
a charging party, subject to the statute of limitations provisions
of the Act, would still be free to prove that an employer gave
illegal assistance if the actions or statements of its supervisors
or managers were of a kind to interfere with, coerce, or restrain
employees in the choice of union representation. A charging
party could assert and prove that notwithstanding a card check,
any recognition accorded was not supported by an uncoerced
majority of the employees in an appropriate unit. Thus, it could
be shown that the Union never actually obtained majority
status. A charging party could show that recognition was inva-
lid by evidence that the unit in which the count was made, ex-
cluded employees who should have been counted. Or vice
versa. Any recognition could be challenged by evidence show-
ing that statements made by the Employer’s supervisors or the
Union’s agents coerced employees into signing the authoriza-
tion cards used for the count. It could be shown that in solicit-
ing cards, union representatives made substantial misrepresen-
tations regarding the card’s purpose. Or it could be shown that
a determinative number of the cards were solicited by company
supervisors.