Building Laborers' Local Union No. 310 (KMU Trucking & Excavating, Inc.)

National Labor Relations Board - Board Decisions

Sep 3, 2014

361 N.L.R.B. 381 (N.L.R.B. 2014)

LABORERS LOCAL 310 (KMU TRUCKING & EXCAVATING) 381
Laborers’ International Union of North America,
Local 310 and KMU Trucking & Excavating,
Schirmer Construction Co., Platform Cement,
Inc., 21st Century Concrete Construction, Inc.,
Independence Excavating, Inc., Donley’s Inc.
and International Union of Operating Engi-
neers, Local 18, AFL–CIO. Cases 08–CD–
109665, 08–CD–109666, 08–CD–109671, 08–CD–
109683, 08–CD–109709, and 08–CD–114937
September 3, 2014
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
This is a consolidated jurisdictional dispute proceeding
under Section 10(k) of the National Labor Relations Act,
as amended, following the filing of charges in Case 08–
CD–109665 on July 23, 20131 by KMU Trucking & Ex-
cavating (KMU). Additional charges were filed on July
23 in Case 08–CD–109666 by Schirmer Construction
Co. (Schirmer); on July 23 in Case 08–CD–109671 by
Platform Cement, Inc. (Platform); on July 23 in Case 08–
CD–109683 by 21st Century Concrete Construction, Inc.
(21st Century); on July 23 in Case 08–CD–109709 by
Independence Excavating, Inc. (Independence); and on
October 18 in Case 08–CD–114937 by Donley’s Inc.
(Donley’s).2 The Employers3 allege that Laborers’ In-
ternational Union of North America, Local 310 (Labor-
ers) violated Section 8(b)(4)(D) of the Act by engaging
in proscribed activity with an object of forcing the Em-
ployers to assign certain work to employees it represents
rather than to employees represented by International
Union of Operating Engineers, Local 18 (Operating En-
gineers). An order consolidating cases and notice of
hearing issued September 30, 2013, a second order con-
solidating cases and notice of hearing issued December
13, 2013, and a hearing was held on January 13 and Jan-
uary 14, 2014, before Hearing Officer Melanie R. Bor-
delois.4 Thereafter, the Employers, Operating Engineers,
1 All dates are in 2013 unless otherwise indicated.
2 We note that the hearing officer inadvertently stated in her report
that these dates were in 2012.
3 KMU, Schirmer, Platform, 21st Century, Independence, and Donley’s
will be referred to as “the Employers.”
4 In two recent related cases, Laborer’s Local 894 (Donley’s, Inc.)
(Donley’s I), 360 NLRB No. 20 (2014), and Operating Engineers Local
18 (Donley’s, Inc.) (Donley’s II), 360 NLRB 903 (2014), the Board
found reasonable cause to believe that Sec. 8(b)(4)(D) had been violat-
ed with respect to two disputes involving Operating Engineers Local 18
and Laborers. Donley’s I involved Laborers Locals 310 and 894; Don-
ley’s II involved Laborers Local 310. Laborers and the Employers
moved that the records in those cases be incorporated into the instant
proceeding, and the hearing officer granted the motion.
and Laborers filed posthearing briefs.5 Operating Engi-
neers also filed a motion to quash the 10(k) notice of
hearing.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire rec-
ord, we make the following findings.
I. JURISDICTION
The parties stipulated that in the 12-month period prior
to the hearing, Employers KMU, Schirmer, Platform,
21st Century, Independence, and Donley’s each pur-
chased and received materials valued in excess of
$50,000 directly from points located outside the State of
Ohio. The parties further stipulated, and we find, that the
Employers are engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that Laborers and
Operating Engineers are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employers, all of whom operate in northeastern
Ohio, are involved in various aspects of construction
work ranging from site development and demolition to
general contracting and concrete work, and have em-
ployed employees represented by both Operating Engi-
neers and Laborers for many years. They have also all
been signatories to a series of successive collective-
bargaining agreements, negotiated by the Construction
Employer’s Association of Greater Cleveland (CEA)
with both Unions.6 The respective contracts cover con-
struction work performed in Cuyahoga County in north-
eastern Ohio, where the jobsites at issue in this case are
located. The most recent of these contracts are effective
from 2012 through 2015.7
The Employers utilize various kinds of equipment in
their construction projects, including forklifts and skid
steers, a type of small front-end loader. Representatives
of the Employers testified that they have a long-held
practice of assigning the operation of forklift and skid
steer equipment to employees represented by Laborers.
Specifically, witnesses for five of the Employers testified
5 Laborers filed a brief stating that it incorporates the Employers’
posthearing brief and adopted the Employers’ arguments as its own.
6 CEA is a multiemployer bargaining association that represents con-
struction industry employers in negotiating and administering collec-
tive-bargaining agreements with various labor organizations.
7 The CEA-Operating Engineers contract states that it is effective
May 1, 2012 through April 30, 2015. Although it does not include
exact dates, the CEA-Laborers was entered into on May 1, 2012 and
states that it is effective from 2012 through 2015.
361 NLRB No. 37

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382
that, in the time they have worked for their respective
employers, the forklift and skid steer work was always
assigned to employees represented by Laborers. In addi-
tion, Rob DiGeronimo, vice president of Independence,
testified that Independence has assigned its forklift and
skid steer work to employees represented by Laborers
except that, on the “rare” occasion when it had “full-
time, continuous work,” it would assign the work to em-
ployees represented by Operating Engineers.
After the ratification of successor 2012–2015 contracts
between CEA and Laborers and CEA and Operating En-
gineers, the Employers began work on various construc-
tion projects in Cuyahoga County. On each of these pro-
jects, the forklifts and/or skid steers were operated by
employees represented by Laborers. Upon learning of
the assignment of this work to employees represented by
Laborers, Operating Engineers filed “pay-in-lieu” griev-
ances against each Employer, seeking the payment of
wages and fringe benefits for each day that employees
other than those represented by Operating Engineers op-
erated the forklift and/or skid steer equipment on the
construction projects.
Following the filing of each pay-in-lieu grievance, the
recipient Employer sent a letter to Laborers’ business
manager, Terence Joyce, stating that if it were to lose the
grievance it would need to reassign the forklift and skid
steer work to employees represented by Operating Engi-
neers. Joyce sent each Employer a letter in response,
stating that if the forklift and skid steer work were reas-
signed to Operating Engineers-represented employees,
Laborers would “picket and strike any and all projects
where such assignments took place.”
B. Work in Dispute
The work in dispute in Case 08–CD–109665 (KMU)
involves the operation of forklifts and skid steers as part
of a construction project at Equity Trust in Westlake,
Ohio. The work in dispute in Case 08–CD–109666
(Schirmer) involves the operation of skid steers as part of
a construction project at South Pointe Hospital in War-
rensville Heights, Ohio. The work in dispute in Case 08–
CD–109671 (Platform) involves the operation of skid
steers as part of a construction project at Equity Trust in
Westlake, Ohio. The work in dispute in Case 08–CD–
109683 (21st Century) involves the operation of forklifts
as part of a construction project at Southwest General
Hospital in Middleburg Heights, Ohio. The work in dis-
pute in Case 08–CD–109709 (Independence) involves
the operation of forklifts and skid steers as part of a con-
struction project at Alcoa in Cleveland, Ohio. Lastly, the
work in dispute in Case 08–CD–114937 (Donley’s) in-
volves the operation of forklifts and skid steers as part of
a construction project at University Hospitals’ Lot 59
Garage in Cleveland, Ohio and the operation of forklifts
as part of a construction project at Commerce Park in
Beechwood, Ohio.
C. Contentions of the Parties
The Employers and Laborers contend that there are
competing claims for the work in dispute, that there is
reasonable cause to believe that Section 8(b)(4)(D) of the
Act has been violated by the threats to picket and strike
over the assignment of forklift and skid steer work at the
construction projects referenced above,8 and that the
work in dispute should be awarded to employees repre-
sented by Laborers based on the factors of employer
preference and past practice, area and industry practice,
and economy and efficiency of operations. Finally, they
contend that a broad area wide award is warranted, coin-
ciding with the territorial jurisdiction of Operating Engi-
neers Local 18, because it is likely that disputes over the
assignment of forklift and skid steer work will arise on
future projects.
Operating Engineers contends that the notice of hear-
ing should be quashed because it has not claimed the
work in dispute. Operating Engineers contends that it is
merely seeking economic damages for breaches of the
CEA-Operating Engineers contract, and thus the disputes
are not cognizable under Section 10(k). Operating Engi-
neers further argues that the notice of hearing should be
quashed because Laborers’ threat to picket and strike was
a sham, resulting from collusion with the Employers to
manufacture a jurisdictional dispute. Operating Engi-
neers alternatively contends that, if the notice of hearing
is not quashed, the disputed work should be awarded to
employees it represents based on the factors of collec-
tive-bargaining agreements, employer preference and
past practice, area and industry practice, economy and
efficiency of operations, and relative skills and training.
Lastly, Operating Engineers contends that the scope of
the award, if any is made, must be limited to the jobsites
that were the subject of Operating Engineers’ pay-in-lieu
grievances.
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. Operating Engineers Local 150 (R&D Thiel),
345 NLRB 1137, 1139 (2005). This standard requires
finding that there is reasonable cause to believe that there
are competing claims for the disputed work between rival
8 They also point to evidence from Donley’s I and Donley’s II that,
prior to the filing of the charges in this case, Operating Engineers
threatened to strike over forklift and skid steer work at other worksites
in the Cleveland area.

LABORERS LOCAL 310 (KMU TRUCKING & EXCAVATING) 383
groups of employees, and that a party has used pro-
scribed means to enforce its claim to that work. Addi-
tionally, there must be a finding that the parties have not
agreed on a method of voluntary adjustment of the dis-
pute. Id. On this record, we find that this standard has
been met.
1. Competing claims for work
We find reasonable cause to believe that both Unions
have claimed the work in dispute for the employees they
respectively represent. Laborers has claimed the work by
its letters from Local Business Manager Terry Joyce to
each of the Employers, objecting to any assignment of
the forklift or skid steer work to Operating Engineers-
represented employees. In addition, “their performance
of the work indicates that they claim the work in dis-
pute.” Sheet Metal Workers Local 54 (Goodyear Tire &
Rubber Co.), 203 NLRB 74, 76 (1973); see also Operat-
ing Engineers Local 513 (Thomas Industrial Coatings),
345 NLRB 990, 992 fn. 6 (2005) (same), citing Laborers
Local 79 (DNA Contracting), 338 NLRB 997, 998 fn. 6
(2003) (same).
We also find, despite its claims to the contrary, that
Operating Engineers has claimed the disputed work.
Operating Engineers filed pay-in-lieu grievances against
each of the Employers, alleging contract violations with
respect to their assignment of forklift and/or skid steer
work to employees represented by Laborers. “The Board
has long held that pay-in-lieu grievances alleging con-
tractual breaches in the assignment of work constitute
demands for the disputed work.” Operating Engineers
Local 18 (Donley’s, Inc.) (Donley’s II), 360 NLRB 903,
906, citing Laborers Local 265 (AMS Construction), 356
NLRB 306, 308 (2010); Laborers (Eshbach Bros., LP),
344 NLRB 201, 202 (2005).
Moreover, we find no merit in Operating Engineers’
contention that it has made a work preservation claim.
The record shows that Laborers-represented employees
were performing the forklift and skid steer work at all of
the Employers’ construction projects, and that the Em-
ployers have consistently assigned work of the kind in
dispute to employees represented by Laborers. Where,
as here, a labor organization is claiming work that has
not previously been performed by employees it repre-
sents, the “objective is not work preservation, but work
acquisition,” and the Board will resolve the dispute
through a 10(k) proceeding. Electrical Workers Local 48
(Kinder Morgan Terminals), 357 NLRB 2217, 2219
(2011), and cases cited.
2. Use of proscribed means
We find reasonable cause to believe that Laborers used
means proscribed by Section 8(b)(4)(D) to enforce its
claims to the work in dispute. As set forth above, Labor-
ers’ Local business manager, Terry Joyce, sent a letter to
each Employer stating that members of Laborers would
picket and strike any projects where forklift and/or skid
steer work was assigned to employees other than those
represented by Laborers. These statements constitute
threats to strike over the assignments of forklift and skid
steer work, and such threats are a proscribed means of
enforcing claims to disputed work. Operating Engineers
Local 150 (Patten Industries), 348 NLRB 672, 674
(2006).
We find no merit in Operating Engineers’ assertion
that the Employers have colluded with Laborers to fash-
ion a sham jurisdictional dispute. The Board has consist-
ently rejected this argument “[i]n the absence of affirma-
tive evidence that a threat to take proscribed action was a
sham or was the product of collusion.” Operating Engi-
neers Local 150 (R&D Thiel), above, 345 NLRB at
1140; see also Donley’s II, above, slip op. at 5. In this
case, there is no evidence that Laborers’ written threats
to “picket and strike” over the assignment of the disputed
work were the result of collusion with CEA and/or the
Employers or were otherwise not genuine.
3. No voluntary method for adjustment of dispute
We further find no agreed-upon method for voluntary
adjustment of the dispute to which all parties are bound.
The Employers and Laborers stipulated accordingly, and
Operating Engineers provided no evidence or argument
to the contrary.
Based on the foregoing, we find that there are compet-
ing claims for the work in dispute, there is reasonable
cause to believe that Section 8(b)(4)(D) has been violat-
ed, and there is no agreed-upon method for the voluntary
adjustment of the dispute. We accordingly find that the
dispute is properly before the Board for determination,
and we deny Operating Engineers’ motion to quash the
notice of hearing.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573, 577–579
(1961). The Board has held that its determination in a
jurisdictional dispute is “an act of judgment based on
common sense and experience,” reached by balancing
the factors involved in a particular case. Machinists
Lodge 1743 (J.A. Jones Construction), 135 NLRB 1402,
1410–1411 (1962).
The following factors are relevant in making the de-
termination of this dispute.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
1. Certifications and collective-bargaining agreements
The work in dispute is not covered by any Board or-
ders or certifications.
As noted above, the Employers are signatories to a
multiemployer collective-bargaining agreement with
Operating Engineers. Paragraph 10 of the current collec-
tive-bargaining agreement between the CEA and Operat-
ing Engineers states:

In accordance with the terms of this Agreement, the
Employer shall employ Operating Engineers for the
erection, operation, assembly and disassembly, and
maintenance and repair of the following construction
equipment regardless of motive power: . . . Forklifts,
Skid steers . . . .

The Employers are also signatory to a separate mul-
tiemployer collective-bargaining agreement with Labor-
ers. Article 1, section 7 of that agreement specifies nu-
merous types of work within the jurisdiction of Laborers.
Each provision states:

The operation of forklifts, . . . [and] skid-steer loaders, .
. . when used in the performance of the aforementioned
jurisdiction shall be the work of the laborer [or labor-
ers].

We find that the language in both contracts covers the
work in dispute. Therefore, the factors of certifications
and collective-bargaining agreements do not favor an
award to either group of employees.
2. Employer preference and past practice
Representatives of the Employers testified that they
prefer assigning the disputed skid steer and forklift work
to employees represented by Laborers.
In addition, the Employers’ representatives testified
that assignment of this work to their Laborers-
represented employees is consistent with their past prac-
tice. Specifically, Representatives for KMU, Schirmer,
Platform, 21st Century, and Donley’s testified that they
always assign work of the kind in dispute to employees
represented by Laborers.9 Rob DiGeronimo, vice presi-
9 Kevin Urig, owner of KMU, testified that since 2010, when KMU
became a signatory to the Laborers-CEA agreement, KMU has as-
signed its forklift and skid steer work solely to Laborers. Urig further
testified that, prior to signing the Laborers-CEA agreement, KMU did
not use forklifts and it assigned skid steer work almost exclusively to
non-union employees. John Roche, vice president of Schirmer, testi-
fied that, during his 30 years with Schirmer, Schirmer’s forklifts and
skid steers have been operated exclusively by employees represented
by Laborers. Jason Klar, president of Platform, testified that Platform
has assigned its forklift and skid steer work solely to employees repre-
sented by Laborers since Platform became a signatory to the Laborers-
CEA agreement in 2002. Patrick Butler, president of 21st Century,
dent of Independence, testified that Independence assigns
forklifts and skid steers to Laborers except on “rare” oc-
casions when they would assign the work to Operating
Engineers, which occurred “less than five percent” of the
time.
Operating Engineers cites to evidence of isolated in-
stances when one of the Employers may have used an
employee represented by Operating Engineers to operate
a forklift or skid steer.10 Such evidence, however, nei-
ther demonstrates the existence of a practice of using
Operating Engineers-represented employees nor shows
that the Employers’ past practice of using Laborers-
represented employees is inconclusive.11 See, e.g., La-
borers Local 210 (Surianello General Concrete Contrac-
tor), 351 NLRB 210, 212 (2007); Elevator Constructors
Local 2 (Kone, Inc.), 349 NLRB 1207, 1210 (2007);
Millwrights Local 1026 (Intercounty Construction
Corp,), 266 NLRB 1049, 1052 (1983).
We find, therefore, that the factor of employer prefer-
ence and past practice favors an award of the work in
dispute to employees represented by Laborers.
3. Area and industry practice
The Employers and Laborers argue that area and in-
dustry practice supports an award of the disputed work to
testified that 21st Century has assigned its forklift and skid steer work
to employees represented by Laborers since the company was founded
in 2001. Mike Dilley, Donley’s vice president of concrete operations,
and Greg Przepiora, Donley’s operations manager of Concrete, testified
that during their 14 and 16 years, respectively, with Donley’s, the fork-
lift and skid steer work has always been assigned to employees repre-
sented by Laborers.
10 In addition to DiGeronimo’s testimony, above, about the rare oc-
currences, Operating Engineers cites to the following evidence in the
record: (a) a picture of someone who resembles an Operating Engi-
neers-represented employee on a skid steer at a Platform ite at an un-
specified time; (b) the testimony of KMU owner Kevin Urg that KMU
utilized Operating Engineers-represented employees “at one point in
time”; (c) the testimony of 21st Century President Patrick Butler that he
reassigned a skid steer from a Laborers-represented employee to an
Operating Engineers-represented employee for about a week at a job
site in Southwest Ohio after “the Operators BA … threatened my la-
borers on site”; and (d) the testimony of Operating Engineers member
David Russell that he witnessed the intermittent operation of a skid
steer and forklift by an Operating Engineers member at a Schirmer
jobsite.
11 Relying on Longshoremen ILWU Local 50 (Brady-Hamilton Ste-
vedore Co.), 223 NLRB 1034, 1037 (1976), reconsideration granted
and decision rescinded on other grounds 244 NLRB 275 (1979), Oper-
ating Engineers also contends that the Employers’ stated preference
should be treated with skepticism because it is based on a sham. We
find no merit in this argument. First, as noted above, the stated prefer-
ence is consistent with the Employers’ past practice. Second, Long-
shoremen ILWU Local 50 is distinguishable because the employer’s
preference in that case changed after the charged union initiated a work
action. Id. No such change has occurred here.

LABORERS LOCAL 310 (KMU TRUCKING & EXCAVATING) 385
Laborers-represented employees. In Donley’s II,12 Tim
Linville, executive vice president of the CEA, testified
that forklifts and skid steers are usually assigned to La-
borers-represented employees and are sometimes as-
signed to carpenters or iron workers. And in both this
proceeding and Donley’s II, Joyce testified that, in his
experience, the area practice in the building industry of
Northeast Ohio is to assign forklifts to Laborers-
represented employees, and not to Operating Engineers-
represented employees.
In arguing that this factor weighs in favor of the em-
ployees it represents, Operating Engineers’ introduced
work orders from signatory contractors for the referral of
Operating Engineers’ members capable of operating skid
steers and forklifts. Without more, however, this evi-
dence does not establish that any Operating Engineers-
represented employees actually performed skid steer and
forklift work on the jobs to which they were referred.
See Donley’s II, above, at 908–909.13
We find based on the foregoing evidence that this fac-
tor favors an award of the work in dispute to employees
represented by Laborers.
4. Relative skills and training
Both Laborers and Operating Engineers introduced ev-
idence that they provide training in the operation of fork-
lifts and skid steers and that the employees they represent
are certified to operate this equipment. In addition, sev-
eral representatives of the Employers testified that they
provide training in the operation of forklifts and skid
steers to their Laborers-represented employees, and that
they are satisfied with the skills of those employees.
We find from this evidence that this factor does not fa-
vor an award of the disputed work to either group of em-
ployees.
12 As mentioned above in fn. 4, the hearing officer granted the mo-
tion of Laborers and the Employers to incorporate the records in Don-
ley’s I and Donley’s II, into the instant proceeding.
13 Operating Engineers additionally cites to a 1954 interunion
agreement between the International Union of Operating Engineers and
the International Hod Carriers, Building and Common Laborers Union
of America that appears to have been admitted into the record in Don-
ley’s I. However, neither the terms of that agreement, nor anything else
in the record, indicates that the 1954 agreement covers the disputed
work at these jobsites. Additionally, the record does not show that the
Employers have agreed to be bound by the agreement, or that the area
and industry practice in fact conforms to the terms of the agreement.
See, e.g., Plumbers Local 562 (Charles E. Jarrell Contracting Co.),
329 NLRB 529, 533 (1999) (finding that interunion agreement does not
favor award of disputed work to either group of employees where rec-
ord did not contain conclusive evidence as to whether the agreement
covered the work in dispute, whether the employer had agreed to be
bound by the agreement, or that area and industry practice conformed
to the terms of the agreement).
5. Economy and efficiency of operations
Representatives of each of the Employers testified that
it is more efficient and economical for them to assign the
operation of forklifts and skid steers to employees repre-
sented by Laborers. They testified that their utilization
of forklifts and skid steers is sporadic and is usually in-
termittent throughout the day. They stated that Laborers-
represented employees perform multiple tasks in addition
to the disputed work and, therefore, can leave the forklift
or skid steer when it is not in use to perform these other
tasks, which are duties that Operating Engineers-
represented employees do not perform. They further
explained that it would not be economical to hire em-
ployees represented by Operating Engineers to occasion-
ally perform the work in dispute while also retaining
employees represented by Laborers to perform the other
work within Laborers’ jurisdiction. They additionally
testified that, because forklifts and skid steers are only
used approximately 25 to 50 percent of the time, Operat-
ing Engineers-represented employees would be idle for
substantial periods of time, when the equipment was not
in use. See, e.g., Seafarers International Union (Luedtke
Engineering Co.), 355 NLRB 302, 305 (2010); Laborers
(Eshbach Bros., LP), above, 344 NLRB at 204.14
We find that this factor favors an award of the disputed
work to the Laborers-represented employees.
Conclusion
After considering all of the relevant factors, we con-
clude that employees represented by Laborers are entitled
to perform the work in dispute. We reach this conclusion
based on the factors of employer preference and past
practice, area and industry practice, and economy and
efficiency of operations. In making this determination,
we award the work to employees represented by Labor-
ers, not to that labor organization or its members.
14 Operating Engineers contends that assigning the work in dispute
to Laborers-represented employees would subject the Employers both
to the labor costs of paying those employees and to the damages result-
ing from their breach of the pay-in-lieu provisions. This contention is
without merit, as maintenance of pay-in-lieu grievances after the Board
has awarded the work in dispute violates Sec. 8(b)(4)(ii)(D). Iron
Workers Local 433 (Otis Elevator Co.), 309 NLRB 273, 274 (1992),
enfd. 46 F.3d 1143 (9th Cir. 1995).
Operating Engineers additionally contends that it would be equally
efficient to assign the disputed work to Operating Engineers-
represented employees if the Employers would also assign them other
tasks, specifically, those that Laborers-represented employees currently
perform. This contention, too, is without merit, as representatives of
the Employers testified that the other tasks that Laborers-represented
employees perform are within the jurisdiction of the Laborers in the
CEA-Laborers contract and not the type of work typically performed by
Operating Engineers-represented employees.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
Scope of Award
The Employers and Laborers request a broad area wide
award, covering the geographic jurisdiction of Operating
Engineers. In support, they argue that the evidence in
prior Board cases (Donley’s I and Donley’s II) shows
that Operating Engineers has a proclivity to violate Sec-
tion 8(b)(4)(D) and that the dispute here is likely to re-
cur.
In Donley’s II, which issued after the conclusion of
this proceeding, the Board granted a broad area wide
award to employees represented by Laborers, for work of
the kind in dispute. See Donley’s II, supra, 909–910.
That award covers the area where Local 310’s and Local
18’s jurisdictions overlap, which encompasses the instant
disputes in Cuyahoga County, Ohio. Our award in the
instant cases restates and applies that area wide order.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of KMU Trucking & Excavating, Schirmer
Construction Co., Platform Cement, Inc., 21st Century
Concrete Construction, Inc., Independence Excavating,
Inc., and Donley’s Inc., who are represented by Labor-
ers’ International Union of North America, Local 310,
are entitled to perform forklift and skid steer work in the
area where their employers operate and the jurisdiction
of Laborers International Union of North America, Local
310 and the International Union of Operating Engineers,
Local 18 overlap.