Laborers Local 860 (Ronyak Paving, Inc.)

National Labor Relations Board - Board Decisions

Feb 12, 2014

360 N.L.R.B. 236 (N.L.R.B. 2014)

236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 40
Laborers International Union of North America, Lo-
cal 860 and Ronyak Paving, Inc. and Interna-
tional Union of Operating Engineers, Local 18.
Case 08–CD–089283
February 12, 2014
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. Ronyak
Paving, Inc. (the Employer) filed a charge on September
14, 2012, alleging that Laborers International Union of
North America, Local 860 (Laborers) violated Section
8(b)(4)(D) of the Act by engaging in and/or encouraging
proscribed activity with an object of forcing the Employ-
er to assign certain work to employees it represents ra-
ther than to employees represented by International Un-
ion of Operating Engineers, Local 18 (Operating Engi-
neers). A hearing was held on January 30 and 31, 2013,
before Hearing Officer Jun S. Bang. Thereafter, the Em-
ployer and the Operating Engineers filed posthear-
ing briefs.1 Operating Engineers 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, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that within the 12-month period
preceding the filing of the charge, the Employer, an Ohio
corporation with an office in Burton, purchased and re-
ceived goods and services valued in excess of $50,000
directly from points outside the State of Ohio. The par-
ties also stipulated, and we find, that the Employer is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that Laborers and Operating Engi-
neers are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a contractor engaged in street re-
placement, and roadway repair and conditioning. It typi-
cally performs approximately 100 to 150 projects in a
year in several northeast Ohio counties. Work on each of
these projects entails grinding, paving, and milling tasks.
The Employer employs approximately 10 to 15 employ-

1 Laborers made an oral argument on the record in lieu of filing a
brief.
ees represented by Operating Engineers and 20 to 25
employees represented by Laborers. Employees repre-
sented by Operating Engineers run grinding machines
and backhoes. Employees represented by Laborers assist
in various tasks, including the operation of skid
steers/skid loaders (skid steers), farm tractors with mount
attachments including rotary brooms (farm tractors), and,
more recently, a Broce sweeper.2 These machines that
perform the assistance tasks are used for initial cleaning
and maintenance work, cutting and cleaning up castings,
and sweeping and maintaining the roadway before a me-
chanical sweeper comes onsite. The machines are also
used to install and remove temporary driveway ramps
and remove mail boxes where necessary. The employees
operating these machines usually do so for about 1 to 3
hours a day. The employees perform manual tasks using
picks, shovels, or hand brooms during the remainder of
their worktime.
The Employer has had a collective-bargaining rela-
tionship with Laborers for approximately 6 years. The
most recent agreement of record was effective from May
1, 2010, to April 30, 2013. The parties refer to this
agreement as the “Heavy Highway Agreement” (HHA).
It affords Laborers exclusive jurisdiction for all “High-
way Construction” work within its geographic area, in-
cluding construction of all streets, roads, and work “in
the excavation, preparation, concreting, paving, ram-
ming, curbing and surfacing of streets, ways, courts, un-
derpasses, overpasses and bridges, and the grading and
landscaping thereof, and all other semi-and unskilled
labor connected therewith . . . in above mentioned paving
of streets, roads, runways, sidewalks and bridge decks.”
The HHA includes wage classifications for skid steer
work and for the operation for all machine driven tools as
well as vacuum devices.
The Employer also has had a collective-bargaining re-
lationship with Operating Engineers for approximately 6
years. The most recent agreement of record was effec-
tive from May 1, 2010, to April 30, 2013. The parties
refer to this agreement as the “Ohio Contractor’s Associ-
ation Agreement” (OCAA). It affords Operating Engi-
neers exclusive jurisdiction for all “Highway Construc-
tion” work within its geographic area, including the con-
struction of “streets, roads, expressways, turnpikes,
bridges, drainage structures, grade separations, parking
lots, rest areas, alleys, sidewalks, guardrails and fences.”
The OCAA includes various rates of pay for equipment

2 Skid steers are small four-wheeled utility machines with various
attachments including augers, cutter heads, rotary brooms, jack ham-
mers, and buckets. Acquired in early 2012, the Broce sweeper per-
forms the same function as the skid steers and farm tractors but it has
an enclosed cab which is heated and air-conditioned.
LABORERS LOCAL 860 (RONYAK PAVING, INC.) 237
operators, including skid steer operators, under the class
C wage schedule, and farm tractor operators under the
class D wage schedule. The OCAA also includes, at
paragraph 13, a provision stating that if a signatory em-
ployer “assigns any piece of equipment to someone other
than an Operating Engineer, the Employer’s penalty shall
be to pay the first qualified registered applicant the appli-
cable wages and fringe benefits from the first day of vio-
lation.”
The witnesses in this proceeding testified about work
by Ronyak on three Ohio road projects: State Route 306,
Geauga County (Route 306); Chamberlain Road, Twins-
burg, Summit County (Chamberlain Road); and North
Taylor Road, Cleveland Heights, Cuyahoga County
(Taylor Road).
Operating Engineers Business Representative Jack
Klopman testified that on several occasions in May 2012,
he observed a Ronyak employee represented by Laborers
operating a Broce sweeper on the Route 306 project.
Klopman complained to the Employer’s owner, David
Ronyak, that an employee represented by Operating En-
gineers was not being used. As a result of this complaint,
the Employer assigned an employee represented by Op-
erating Engineers on the Broce sweeper. However, both
David Ronyak and his operating manager, Sean Petersen,
testified that the engineer was removed after 1 day be-
cause he was unable to operate the machine properly.
In August 2012, Klopman observed employees repre-
sented by Laborers operating a paver, a roller, and a farm
tractor on the Chamberlain Road project. Operating En-
gineers filed a grievance under paragraph 13 of the
OCAA encompassing all three pieces of equipment.
Petersen met with Klopman and Operating Engineers
Business Representative David Russell to discuss the
grievance. The Employer acknowledged that employees
represented by Operating Engineers should have been
operating the paver and the roller but asserted that an
employee represented by Laborers was properly operat-
ing the farm tractor. Operating Engineers would not re-
strict the grievance. Ultimately, the Employer resolved
the grievance by paying 8 hours of wages and fringe
benefits to Operating Engineers-represented employees
for all three pieces of equipment.
Also in August 2012, Russell observed employees rep-
resented by Laborers operating a skid steer and a farm
tractor on the Taylor Road project. Petersen testified that
Russell and Klopman telephoned him and claimed that
the skid steer and farm tractor work was “their work.”
They asserted that the Employer was “in the wrong” and
“need[ed] to put Operators in it.”3 Petersen further testi-
fied that Russell said that any time Russell visited the
Employer’s worksites, the Employer had “better” have
employees represented by Operating Engineers operating
the equipment at issue in this case.
Petersen summarized by asserting that both Russell
and Klopman verbally told him that skid steer and farm
tractor work was Operating Engineers’ work and the
members of that Union should be doing it. The parties
stipulated that on or about August 29, 2012, Laborers’
Business agent, Anthony Liberatore, verbally informed
the Employer and then confirmed in writing that there
would be a strike if the work of skid steers and farm trac-
tors was reassigned to employees represented by Operat-
ing Engineers.
B. Work in Dispute
The notice of hearing described the disputed work as
“[t]he work performed utilizing a skid steer/skid loader
and a farm tractor with mount attachments including a
rotary broom utilized by the Employer on its construction
projects at project locations throughout Northeast Ohio,
including the project site at Chamberlain Road, Twins-
burg, Ohio.” The parties failed to stipulate to a descrip-
tion of the work during the hearing. Operating Engineers
argues that the notice of hearing improperly exceeded the
scope of the charge, which described the disputed work
as performed on “various projects, including, but not
limited to, projects located on North Taylor Road in
Cleveland Heights, Ohio and on Chamberlain Road lo-
cated in Twinsburg, Ohio.”4 Therefore it contends that
the work in dispute should not encompass any work in
northeast Ohio beyond the North Taylor Road and
Chamberlain Road projects, presumably excluding the
Route 306 project. Operating Engineers does not argue
that it failed to receive proper notice of the broader scope
of the hearing or that it was otherwise prejudiced by the
wording of the charge.
We reject Operating Engineers’ arguments. All parties
had ample prior notice of the scope of the inquiry and

3 Operating Engineers filed a grievance for the Taylor Road skid
steer and farm tractor work. Initially it was an oral grievance and Rus-
sell suggested to Petersen that the grievance could be resolved if the
Employer signed up two of its employees represented by Laborers as
employees represented by Operating Engineers. These two employees
would then operate the skid steer and farm tractor on the Taylor Road
project. Petersen declined to do this and Operating Engineers then filed
a formal grievance, which was pending at the time of the hearing in this
case.
4 Operating Engineers contends, among other arguments, that the
notice should be quashed because it does not track the underlying un-
fair labor practice allegations, as assertedly required by Sec. 10(b). For
the reasons stated in Laborers Local 894 (Donley’s, Inc.), 360 NLRB
104, 106 fn. 5 (2014), we find no merit in this contention.
238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were well aware of the underlying dispute. They had a
full opportunity to adduce evidence, and they fully liti-
gated the work in dispute for three specific project loca-
tions. In these circumstances, there is no evidence of any
prejudice stemming from the description of the work in
dispute. See generally Operating Engineers Local 2
(PVO International), 209 NLRB 673, 673 fn. 2 (1974);
Longshoremen ILWU Local 10 (Matson Navigation Co.),
140 NLRB 449, 451 fn. 2 (1963). Based on the scope of
litigation, we find it is appropriate to describe the work
in dispute as the work performed utilizing a skid
steer/skid loader, a farm tractor with mount attachments
including a rotary broom, and a Broce sweeper at project
sites on State Route 306, Geauga County (Route 306);
Chamberlain Road, Twinsburg, Summit County (Cham-
berlain Road); and North Taylor Road, Cleveland
Heights, Cuyahoga County (Taylor Road).
C. Contentions of the Parties
Operating Engineers moves to quash the notice of
hearing, arguing that it has not claimed the disputed work
and that there is no reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated. In support of its mo-
tion, Operating Engineers contends that its claim is one
of work preservation for the employees it represents ra-
ther than work acquisition. It asserts that it simply pur-
sued contractual grievances against the Employer for
breaching the work assignment provision of the OCAA
and that it requested only the contractually prescribed
damages for the breach. Operating Engineers further con-
tends that the Employer manipulated the facts in order to
create the appearance of a jurisdictional dispute.
Alternatively, if the notice of hearing is not quashed,
Operating Engineers asserts that the work in dispute
should be awarded to employees it represents based on
the factors of collective-bargaining agreements, area and
industry practice, economy and efficiency of operation,
employer preference, and relative skills and training.
Operating Engineers argues that the evaluation of econ-
omy and efficiency must take into account that, in its
view, the Employer will have to pay contractual damages
if the work in dispute is not awarded to Operating Engi-
neers-represented employees. It also argues, in effect,
that the Employer’s preference here is tainted by its at-
tempt to avoid its contractual obligations to Operating
Engineers. Finally, Operating Engineers opposes any
request for a broad order.
The Employer, in its posthearing brief, and Laborers,
in closing argument at the hearing, contend that the no-
tice of hearing should not be quashed, because compet-
ing claims to the disputed work, including Operating
Engineers’ two grievances, show the existence of a genu-
ine jurisdictional work dispute. They further contend that
evidence of threats to strike over job assignments
demonstrates there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated. Further, although
the parties were unable to stipulate to this fact, the Em-
ployer and Laborers assert that there is no agreed-upon
method of voluntary adjustment of this dispute.
On the merits, the Employer and Laborers assert that
the work in dispute should be awarded to employees rep-
resented by Laborers based on the factors of the parties’
collective-bargaining agreement, employer preference,
past practice, area and industry practice, relative skills,
and economy and efficiency of operations. Finally, the
Employer and Laborers argue that a broad award is war-
ranted because the work in dispute has been a continuous
source of controversy in the relevant geographic area and
Operating Engineers have demonstrated a proclivity to
engage in unlawful conduct to obtain the disputed work.
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 to the disputed work and that a
party has used proscribed means to enforce its claim to
the work in dispute. Additionally, there must be a finding
that the parties have not agreed on a method for the vol-
untary adjustment of the dispute. Id. We find that these
requirements have been met.
1. Competing claims for work
We find that there is reasonable cause to believe that
both Operating Engineers and Laborers have claimed the
work in dispute for the employees they respectively rep-
resent. By its own admission in the parties’ stipulation,
Laborers has done so, and employees it represents have
been performing the work. Moreover, on August 29,
2012, the business agent for Laborers threatened to strike
if the Employer reassigned the work in dispute to em-
ployees represented by Operating Engineers in response
to that Union’s claim.
As noted, Operating Engineers moves to quash the no-
tice of hearing based on its contention that it did not
claim the disputed work. It argues that it was, instead,
merely seeking to enforce the damages provision of the
OCAA and to preserve its right to perform the work in
dispute on upcoming projects. We reject these arguments
and deny the Operating Engineers’ motion to quash on
this basis. Operating Engineers effectively claimed the
disputed work by filing the pay-in-lieu grievances con-
cerning the work at two locations. See, e.g., Laborers
LABORERS LOCAL 860 (RONYAK PAVING, INC.) 239
Local 265 (AMS Construction), 356 NLRB 306, 308
(2010) (pay-in-lieu grievance may constitute a competing
claim for work); Roofers Local 30 v. NLRB, 1 F.3d 1419,
1427 (3d Cir. 1993), enfg. 307 NLRB 1429 (1992) (at-
tempted distinction “between seeking the work and seek-
ing payment for the work is ephemeral”). In addition, as
set forth above, witnesses for the Employer testified that
Operating Engineers’ representatives orally requested the
skid steer and farm tractor work at all three locations.5
We find no merit in Operating Engineers’ argument
that it has a work preservation claim to the skid steer and
farm tractor work and that therefore no valid jurisdic-
tional dispute exists between the parties. To prevail on
this argument, Operating Engineers must show that the
employees it represents have previously performed the
work in dispute and that it is not attempting to expand its
work jurisdiction. See, e.g., Teamsters Local 174 (Air-
borne Express), 340 NLRB 137, 139 (2003). Operating
Engineers has failed to make that showing. The record
established that employees represented by Laborers have
been regularly performing the disputed work for the Em-
ployer in the 6 years since it signed the HHA with that
Union.6 Where, as here, a union is claiming work for
employees who have not previously performed it, the
objective is not work preservation but work acquisition.
Id.
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 described above, by
oral and written statements on August 29, 2012, Laborers
gave notice that its members would strike if the Employ-
er assigned the skid steer and farm tractor work to em-
ployees represented by Operating Engineers. There is no
merit to Operating Engineers’ allegation that Laborers’
threat to strike was a sham because the HHA contains a
no-strike clause. It is well established that “[a] threat to
strike or picket is not a sham . . . simply because the
threatened action would have violated a no-strike

5 There is sufficient evidence to establish Operating Engineers’
claim for the disputed work without relying on David Ronyak’s disput-
ed testimony, denied by Operating Engineers’ witnesses, that Operating
Engineers threatened to strike if the Employer failed to assign the skid
steer and farm tractor work to Operating Engineers-represented em-
ployees
6 To support its work preservation claim, Operating Engineers cited
three grievances successfully resolved pursuant to par. 13 of the OCAA
where employers, other than the Employer here, assigned skid steer
work to an employee not represented by Operating Engineers. We find
no relevance in this evidence. Further, although there is evidence that
an Operating Engineer performed the disputed work on 1 day, such an
isolated assignment provides no basis to raise a valid work preservation
claim regarding the disputed work. See Stage Employees IATSE Local
39 (Shepard Exposition Services), 337 NLRB 721, 723 (2002).
clause.” See Electrical Workers Local 196 (Aldridge
Electric), 358 NLRB 737, 739 (2012); Lancaster Typo-
graphical Union No. 70 (C.J.S. Lancaster), 325 NLRB
449, 450–451 (1998). Moreover, Operating Engineers
offers no affirmative evidence that Laborers’ threat was
not genuine or that it was a product of collusion with the
Employer. See Operating Engineers Local 150, supra at
1140.
3. No voluntary method for adjustment of dispute
There is no evidence in the record of an agreed-upon
method for voluntary adjustment of the dispute. Alt-
hough the parties were unable to stipulate that there is no
agreed-upon method for voluntary adjustment of the dis-
pute, they did stipulate that Laborers is not party to the
OCAA between the Employer and Operating Engineers.
Witness testimony during the hearing also confirmed that
there is no voluntary mechanism that is binding on all
three parties to resolve the dispute.
Accordingly, we find that this dispute is properly be-
fore the Board for determination.7
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 Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573, 577 (1961). The
Board’s 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 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Board certifications and collective-bargaining
agreements
According to Petersen’s uncontroverted testimony, the
Employer does not “have any National Labor Relations
Board certifications regarding the assignment of the skid
steer or farm tractor.”
The Employer has been signatory to agreements with
both Laborers and Operating Engineers within Ohio for

7 We note that the Employer has concluded the work in dispute at
the Route 306, Chamberlain Road, and Taylor Road projects. Neverthe-
less, “the Board has long held that completion of disputed work at the
site that gave rise to the controversy is not a basis for quashing a 10(k)
proceeding where there is no evidence that similar disputes are unlikely
to recur.” Carpenters Ohio Regional Council (Competitive Interiors),
348 NLRB 266, 268 (2006) (citations omitted). Here, the evidence
indicates that similar disputes are likely to recur. Laborers acknowl-
edged that it would continue to claim the disputed work, and Operating
Engineers acknowledged that it intended both to pursue its outstanding
Taylor Road grievance and to file grievances pursuant to par. 13 of the
OCAA concerning the disputed work as to future projects.
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
approximately 6 years, as noted above. The HHA en-
tered into with Laborers includes a jurisdictional clause
that includes all work within its geographic area, and
specifically described as covering “Highway Construc-
tion” work such as construction of all streets, roads, and
work
in the excavation, preparation, concreting, paving,
ramming, curbing and surfacing of streets, ways,
courts, underpasses, overpasses and bridges, and the
grading and landscaping thereof, and all other semi-and
unskilled labor connected therewith . . . in above men-
tioned paving of streets, roads, runways, sidewalks and
bridge decks.
The HHA includes wage scale job classifications for skid
steer work and for the operation of all machine-driven tools
as well as vacuum devices.
The OCAA with Operating Engineers includes a juris-
dictional clause that applies to all work within its geo-
graphic area, including “Highway Construction” work
such as construction of “streets, roads, expressways,
turnpikes, bridges, drainage structures, grade separations,
parking lots, rest areas, alleys, sidewalks, guardrails and
fences.” The OCAA includes various rates of pay for
equipment operators including operators of skid steers
(under the class C wage schedule) and farm tractors (un-
der the class D wage schedule).
We find that both the Laborers’ HHA and Operating
Engineers’ OCAA have language in their agreements
arguably covering the work in dispute.8 We therefore
find that this factor does not favor awarding the work to
employees represented by either union.
2. Employer preference and past practice
The Employer prefers that the work in dispute contin-
ue to be assigned to employees represented by Laborers,
in accord with consistent past practice dating back ap-
proximately 6 years. The record reflects only a single
instance when the Employer assigned an Operating En-

8 Contrary to Operating Engineers’ assertion, we do not find rele-
vant to our consideration the fact that the OCAA includes wage classi-
fications for both skid steer and farm tractor work while the HHA in-
cludes wage rates for skid steer work only. We find unavailing Operat-
ing Engineers’ reliance on Laborers Local 265 (AMS Construction,
Inc.), supra at 310 to support this argument. In AMS Construction, the
Board found that the factor of collective-bargaining agreements slightly
favored the agreement which “specifically” referred to “the disputed
directional drilling work and related work (locating the pipe) and
equipment (directional boring machine)” rather than the agreement
“worded in more general terms.” Although the OCAA includes classifi-
cation of wages for two pieces of equipment rather than the one re-
ferred to in the HHA, there is no relevant distinction between “specific”
rather than “general” language here because the specific pieces of
equipment referenced perform similar work.
gineers-represented employee to operate a Broce sweeper
on the Taylor Road project, but he was thereafter re-
moved.9 We find that the factor of employer prefer-
ence10 and past practice favors awarding the disputed
work to employees represented by Laborers.
3. Area and industry practice
Petersen testified that in his 24 years of experience in
northeast Ohio, companies for which he worked or with
which he was familiar, including the Employer, always
used employees represented by Laborers and not Operat-
ing Engineers to perform skid steer and farm tractor
work. Laborers Field Representative Leonard Rizzo tes-
tified that employers operating pursuant to the HHA in
Ohio always use employees represented by Laborers to
perform the disputed work. Laborers Field Representa-
tive Mark Olivo testified that in his 22 years in that oc-
cupation he had always observed employees represented
by Laborers performing farm tractor and skid steer work
on road construction projects. Laborers also submitted
90 letters from various employers to Laborers’ affiliates
either indicating that employees represented by Laborers
generally performed skid steer and farm tractor work for
them or documenting specific work assignments.
Klopman, to the contrary, testified that in the 10 years
he worked in the field, employees represented by Labor-
ers never operated skid steers. The parties stipulated at
the hearing that Operating Engineers, in 85 Ohio coun-
ties and 4 Northern Kentucky counties, received 56 refer-
rals for sweepers with brooms or farm tractors and 147
referrals for skid steers in 2012, 57 and 195 in 2011, 58
and 152 in 2010, and 68 and 99 in 2009. According to
testimony from the Operating Engineers’ president,
Richard Dalton, these referrals reflected dispatch re-
quests by contractors for Operating Engineers with the
ability to operate skid steers or farm tractors.
We find the above evidence inconclusive. Neither the
letters of assignment submitted by Laborers nor the refer-
rals relied on by Operating Engineers describe with
meaningful specificity the work involved or the circum-

9 Klopman testified that he once saw another Operating Engineers-
represented employee operating a skid steer for the Employer on the
Route 306 project, who told him that he did this work for a couple of
days. Even assuming the accuracy of this testimony, it is insufficient to
counter the specific testimony that the Employer has consistently used
employees represented by Laborers to perform the disputed work.
10 We find unpersuasive Operating Engineers citation to Long-
shoremen ILWU Local 50 (Brady-Hamilton Stevedore Co.), 223 NLRB
1034, 1037 (1976), revd. on other grounds 244 NLRB 275 (1979). In
that case, the Board found the employers’ preference for the employees
of one union was not “freely indicated” because that union’s employees
had been reassigned the work when another union, whose employees
had been preferred by the employers, went on strike. No such extenuat-
ing circumstances exist here.
LABORERS LOCAL 860 (RONYAK PAVING, INC.) 241
stances surrounding the assignment of an employee to
perform it. Further, testimony from witnesses for the
Employer and the Unions presents a sharply conflicting
picture of area and industry practice. Based on all the
above, we find that this evidence of mixed area practice
does not favor an award of the work in dispute to either
group of employees.
4. Relative skills and training
Petersen testified that no license was required for op-
erating a skid steer or farm tractor. Laborers operate
training centers in Cleveland and Howard and the Em-
ployer places a newly trained employee with an experi-
enced employee to be acclimated to the Employer’s pro-
cedures. Petersen further testified that safety comes first
with “[k]nowing how to perform the function . . . the
routine as you go down the road, where to put the mate-
rial when you . . . sweep the material, how to make the
ramps . . . [t]he skid steer has the ability to pick some of
the material up, where the broom has the ability to sweep
it over.” The Howard training center offers a 6-hour
course in skid steer safety which includes classroom
study of OSHA regulations, NIOSH recommendations,
loading maintenance practices, and operating procedures.
There are also “hands-on” exercises with an obstacle
course and a final written test. Olivo testified that he has
received no complaints from the Employer about the
work performed for the Employer by Laborers represent-
ed employees on skid steers and farm tractors.
The parties stipulated at the hearing that Operating
Engineers has an Ohio Operating Engineers Apprentice-
ship and Journeyman Training Program with locations in
Richfield, Logan, Signet, and Miamisburg. These loca-
tions have both outdoor and indoor facilities where there
is apprenticeship training on skid steers and journeyman
training on skid steers upon request. There is also train-
ing on farm tractors. Operating Engineers provides a 15-
page “Skid Steer Loaders Student Workbook” which has
detailed descriptions of equipment and how to operate it
safely in its multiplicity of uses. Operating Engineers
also provides a large number of attachments to the ma-
chines for its training on skid steers and farm tractors.
Finally, Operating Engineers’ training program requires
8 hours of classroom time and as much time in the field
as necessary for the future employee to become profi-
cient.
On this record, we find that employees represented by
Laborers and those represented by Operating Engineers
receive the necessary training and possess the skills req-
uisite to perform the work in dispute.11 Accordingly, we

11 We do not find that Operating Engineers’ citation to Laborers
(Henkels & McCoy, Inc.) 336 NLRB 1044, 1045 (2001), supports a
find that this factor does not favor an assignment of the
work to either group of employees.
5. Economy and efficiency of operations
Petersen testified that it is more economical and effi-
cient to use employees represented by Laborers to per-
form the work in dispute, which involves operation of
machinery only 1 to 3 hours a day. Employees repre-
sented by Laborers perform various other manual labor
tasks during the remainder of the day. In contrast, em-
ployees represented by Operating Engineers would work
the 1 to 3 hours on the skid steer or farm tractor and then,
as Petersen testified, “would probably just sit in the ma-
chine” for the rest of the day. Petersen emphasized: “[s]o
we’re going to pay an Operator 8 hours for the day to
stay in that machine that is 1 to 3 hours.” Russell cor-
roborated Petersen’s testimony. He stated that on jobs
where employees represented by Operating Engineers
used skid steers and farm tractors, the employer would
have to pay those employees “8 hours even though it’s a
1 to 2 hour operation.”
We find that, because employees represented by La-
borers are able to perform additional work on these pro-
jects when not performing the work in dispute, this factor
favors an award to these employees.12 See, e.g., Labor-
ers (Eshbach Bros., LP), 344 NLRB 201, 204 (2005)
(greater versatility of Laborers-represented employees
supported award of disputed work to them instead of
employees represented by Operating Engineers); Wis-
consin Laborers District Council (Miron Construction
Co.), 309 NLRB 756, 757 (1992) (same).

contrary result. In that case, the Board found that the disputed work
should be awarded to the union which provided comprehensive formal
training rather than to the union which provided no training whatsoever
but merely expected employees to learn “on the job.” Here, employees
represented by Laborers receive both on-the-job guidance and compre-
hensive formal training.
12 Operating Engineers argues that the Employer’s assignment of the
work in dispute to employees represented by Laborers would not be
economical, taking into account the potential damages resulting from
the alleged breach of par. 13 of the OCAA. We reject this argument.
The Employer should face no such liability because it is unlawful to
pursue a pay-in-lieu grievance contrary to an extant Board jurisdiction-
al work dispute award. See, e.g., Sheet Metal Workers (E. P. Donnelly,
Inc.), 357 NLRB 1577 (2011), enfd. 737 F.3d 879 (3d Cir. 2013).
We also find unpersuasive Operating Engineers’ citations to Team-
sters Local 1187 (Anheuser-Busch, Inc.), 258 NLRB 997, 1001 (1981),
and Glaziers Local 1621 (Hart Glass Co.), 216 NLRB 641, 643 (1975),
in support of its argument that assigning the work in dispute to Labor-
ers-represented employees would not be economical. Neither of the
cited cases involves the facts here. Anheuser-Busch involved contrac-
tual provisions which increased hourly costs because of job-bidding
restrictions and work guarantees. Hart Glass involved similar contract
provisions requiring foreman pay whether or not the employee acted as
a foreman. The Board properly considered these issues when assessing
economy and efficiency of operations in the cited cases.
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Conclusions
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
relying on the factors of employer preference and past
practice, and economy and efficiency of operations. In
making this determination, we award the work to em-
ployees represented by Laborers, not to that labor organ-
ization or to its members.
Scope of Award
The Employer requests that our award in this proceed-
ing encompass all of the Employer’s projects throughout
certain named Ohio counties and anywhere Laborers and
Operating Engineers have overlapping geographic juris-
diction. At the hearing Laborers also stated that it sought
a statewide award. Operating Engineers opposes a broad
order.
The Board customarily does not grant an award of the
work in dispute beyond the specific jobsites involved
where the charged party represents the employees to
whom the work is awarded and to whom the employer
contemplates continuing to assign the work. Laborers
Local 243 (A. Amorello & Sons), 314 NLRB 501, 503
(1994). Accordingly, we shall limit the present determi-
nation to the particular controversy that gives rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Ronyak Paving, Inc. represented by La-
borers International Union of North America, Local 860,
are entitled to perform work utilizing a skid steer/skid
loader, a farm tractor with mount attachments including a
rotary broom, and a Broce sweeper on project sites on
State Route 306, Geauga County (Route 306); Chamber-
lain Road, Twinsburg, Summit County (Chamberlain
Road); and North Taylor Road, Cleveland Heights,
Cuyahoga County (Taylor Road).