Laborers' Local 894 (Donley's, Inc.)

National Labor Relations Board - Board Decisions

Jan 10, 2014

360 N.L.R.B. 104 (N.L.R.B. 2014)

104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 20
Laborers’ International Union of North America,
Local 894 and Donley’s, Inc. and International
Union of Operating Engineers, Local 18
International Union of Operating Engineers, Local 18
and Donley’s, Inc. and Laborers’ International
Union of North America, Local 310. Cases 08–
CD–081837 and 08–CD–081840
January 10, 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.
Donley’s, Inc. (the Employer) filed a charge on May 25,
2012, as amended on June 4, 2012, alleging that Labor-
ers’ International Union of North America, Local 894
(Local 894) violated Section 8(b)(4)(D) of the Act by
engaging in proscribed activity with an object of forcing
the Employer to assign certain work to employees it rep-
resents rather than to employees represented by Interna-
tional Union of Operating Engineers, Local 18 (Operat-
ing Engineers or Local 18). The Employer filed a second
charge on May 25, 2012, alleging that Operating Engi-
neers violated Section 8(b)(4)(D) by engaging in pro-
scribed activity with an object of forcing the Employer to
assign certain work to employees it represents rather than
to employees represented by Laborers’ International Un-
ion of North America, Local 310 (Local 310). A hearing
was held on July 23-26, 2012 before Hearing Officer
Gregory M. Gleine. Thereafter, the Employer, Operating
Engineers, and Locals 310 and 894 jointly (collectively
referred to as Laborers) filed posthearing briefs. Operat-
ing Engineers also filed a motion to quash the Section
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 Employer is an Ohio corporation with its principal
place of business in Cleveland. During the year prior to
the hearing, the Employer purchased and received mate-
rials valued in excess of $50,000 directly from points
located outside the State of Ohio. The parties stipulated,
and we find, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The parties also stipulated, and we find, that Local 310,
Local 894, and Operating Engineers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a contractor specializing in concrete
construction and management services. Two of its con-
struction projects in Ohio are at the center of the disputes
in this case: the Flats East Bank Development project in
Cleveland, which began in May 2011, and a parking gar-
age for Goodyear in Akron, which began in November
2011.
The Employer assigned forklift work on the Flats East
project to employees represented by Local 310. On this
project, the Employer is signatory to Local 310’s Build-
ing Laborers’ Agreement with the Construction Employ-
ers Association (CEA), a multiemployer bargaining
group of which the Employer is a member and to which
it has assigned its bargaining rights. This agreement co-
vers building construction work in Cuyahoga and Geau-
ga Counties in Ohio, including Cleveland.
The Employer assigned forklift and skid steer work on
the Goodyear project to employees represented by Local
894. For this project, the Employer is signatory to Local
894’s Building Agreement with the Associated General
Contractors of Ohio (AGC), another multiemployer bar-
gaining group. This agreement covers building construc-
tion work in Summit, Portage, and Medina Counties in
Ohio, including Akron.
The Employer is also signatory to separate collective-
bargaining agreements covering building construction
work between Operating Engineers and the CEA and the
AGC, respectively. Operating Engineers-represented
employees perform building construction work through-
out Ohio.
Operating Engineers’ building work agreement with
the CEA covers the Ohio counties of Ashtabula, Cuya-
hoga, Erie, Geauga, Huron, Lake, Lorain, and Medina.
The Flats East project is within the geographical jurisdic-
tion of this agreement.
Operating Engineers’ agreement with the AGC covers
all counties in Ohio, except for those covered by Operat-
ing Engineers’ agreement with the CEA. In addition to
representing employer members that have assigned their
bargaining rights to it, the AGC allows nonmembers to
execute an acceptance of the AGC Ohio Building
Agreement. The Employer, a nonmember, has individu-
ally signed the agreement intermittently since at least
1990. The Goodyear project is within the geographical
jurisdiction of this agreement.
The Employer’s assignment of building construction
work on the Flats East and Goodyear projects to Labor-
ers-represented employees has caused friction with Op-
erating Engineers. Greg Przepiora, the Employer’s gen-
eral superintendent, and Mike Dilley, its vice president
LABORERS LOCAL 894 (DONLEY’S, INC.) 105
for concrete operations, testified that around March
2010, they met with Operating Engineers representatives
David Russell and Steve DeLong. At this meeting, ac-
cording to Przepiora and Dilley, Russell and DeLong
claimed all forklift and skid steer work on all of the Em-
ployer’s projects on behalf of employees represented by
Operating Engineers.
Dilley and Przepiora further testified that the Employer
ultimately rejected Operating Engineers’ request for the
work because it would be inefficient for Operating Engi-
neers-represented forklift and skid steer operators to
work on the Employer’s projects. According to Dilley,
the Employer assigns its forklift and skid steer work to
employees represented by Laborers because their use of
this machinery is incidental to the completion of their
general work of tending to other tradesmen. Dilley testi-
fied that the employees represented by Operating Engi-
neers are able to operate the forklifts and skid steers, but
do not perform work to assist other trades. He stated that
because the forklifts and skid steers are needed only 30-
40 percent of the time on a project, it is not efficient to
assign that work to Operating Engineers-represented em-
ployees.
Przepiora testified that at a Goodyear project prejob
meeting in November 2011, Russell and Operating Engi-
neers District Representative Joe Lucas demanded that
the Employer reassign all forklift and skid steer work on
that project to Operating Engineers-represented employ-
ees. Przepiora refused. According to Przepiora, Lucas
then asked him how the Employer would complete the
project without any Operating Engineers-represented
employees onsite to operate the tower crane. The Em-
ployer had previously assigned operation of the tower
crane to Operating Engineers-represented employees.
Przepiora testified that in February 2012,1 Russell told
him that Operating Engineers would shut down the
Goodyear jobsite if the Employer continued to refuse to
assign the forklift and skid steer work on the project to
employees represented by Operating Engineers. Local
894 Business Manager Bill Orr also testified that around
this time, Russell told him that Laborers had been steal-
ing Operating Engineers’ work for the past 30 years.
During the hearing, Russell did not deny that he made
this statement.
Shortly thereafter, on February 22, Operating Engi-
neers began a strike at the Goodyear jobsite, with picket
lines at the entrances. Russell, Lucas, and Local 18 Pres-
ident Richard Dalton testified that, as stated on the picket
signs, Operating Engineers struck because the Employer
was not at that time signatory to the AGC Agreement

1 All subsequent dates are in 2012.
that would cover the operation of the tower crane on the
project by employees represented by Operating Engi-
neers. On February 23, the Employer met with Operat-
ing Engineers and signed the AGC Agreement. Operat-
ing Engineers then ended the strike.
That same day, Przepiora and Don Dreier, the Em-
ployer’s executive vice president, met with Lucas and
Russell at another Goodyear prejob conference. Lucas
informed Dreier and Przepiora that the Employer owed
contractual damages to Operating Engineers, due to its
failure to properly assign the forklift and skid steer work
on the project to employees represented by Operating
Engineers. The AGC and CEA agreements between Op-
erating Engineers and the Employer each contain a pro-
vision stating that if the Employer assigns work within
Operating Engineers’ jurisdiction to employees not rep-
resented by Operating Engineers, the Employer must pay
the proper wages and fringe benefits to the first qualified
registered Operating Engineers-represented applicant
from the first day of the violation. Przepiora testified
that Lucas and Russell also explained that Operating En-
gineers had members who were trained and certified to
operate forklifts and skid steers. Dreier and Przepiora
refused to change the assignment.
On February 27, Operating Engineers filed grievances
against the Employer for both the Goodyear and Flats
East projects. The Goodyear grievance alleged that the
Employer breached the 2010–2013 AGC Agreement by
failing to assign its forklift and skid steer work on the
project to employees represented by Operating Engi-
neers. Similarly, the Flats East grievance alleged that the
Employer breached the 2009–2012 CEA Agreement by
failing to assign its forklift work on the project to Operat-
ing Engineers-represented employees.2 Both grievances
requested contractual damages for the alleged breaches.3
The Employer and Operating Engineers convened
grievance meetings in late March and on April 20. At
these meetings, the parties generally discussed the ap-
plicability of the contractual damages provisions and
whether the controversy was a jurisdictional dispute.
The parties disagreed on these points and were unable to
resolve the grievances. Dilley and Przepiora testified
that at the April 20 meeting, Operating Engineers’ repre-
sentative, Mark Totman, told them that the Employer

2 Operating Engineers claims that it withdrew the Flats East griev-
ance shortly after filing it. The Employer maintains that it has no rec-
ord of the withdrawal.
3 Operating Engineers representative Russell testified that it is Op-
erating Engineers’ policy to file pay-in-lieu grievances whenever it
discovers Laborers-represented employees operating forklifts or skid
steers for contractors that have agreements with Operating Engineers.
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would “be sorry” on May 1, because Operating Engi-
neers would refuse to work on its jobsites.
After the April 20 grievance meeting, Dilley informed
Local 894 Representative Orr that if the grievance com-
mittee, which includes representatives from the AGC and
Operating Engineers, ruled in favor of Operating Engi-
neers, the Employer would have to reassign the Good-
year project work to Operating Engineers-represented
employees. On April 23, Orr responded that Local 894
adamantly opposed any transfer of its work on the pro-
ject. He stated that Local 894 would picket and/or strike
at the jobsites if necessary to protect its work assign-
ments.
Also in April, the CEA bargained with Operating En-
gineers to renew their Agreement. CEA Executive Vice
President Tim Linville testified that Operating Engineers
proposed a provision quadrupling damages for an im-
proper jurisdictional assignment. Linville further testi-
fied that Operating Engineers’ representatives explained
that the change was necessary in order to address con-
tractors’ longstanding practice of using employees repre-
sented by Laborers and other unions to perform forklift
work claimed by Operating Engineers. Linville rejected
the proposed change. The parties reached a tentative
agreement on April 30, which was later ratified.
Linville testified that in or around June, he learned that
Operating Engineers was attempting to compel CEA-
member contractors to withdraw from the CEA and
award their forklift and skid steer work to Operating En-
gineers-represented employees.
B. Work in Dispute
The notice of hearing described the work in dispute as
“[t]he operation of forklifts and skid steers as part of
concrete work being performed at the [Flats] East Devel-
opment project located at 101 Front Avenue, Cleveland,
Ohio,”4 and “[t]he operation of forklifts and skid steers
as part of the construction of a parking deck at the Good-
year jobsite located at 225 Innovation Way, Akron,
Ohio.” Operating Engineers argues that the notice of
hearing improperly exceeded the scope of the charges,
which referred to “forklift and related work,” with the
Goodyear jobsite listed as the location of the plant in-
volved.5 Therefore, it contends that due process requires

4 The record reflects that there is no dispute in this case about the
assignment of skid steer work on the Flats East project. Accordingly,
we need not determine the assignment of this work.
5 Operating Engineers contends that the notice should be quashed
because it does not factually track the underlying unfair labor practice
allegations, as assertedly required under cases such as G. W. Galloway
Co. v. NLRB, 856 F.2d 275, 280 (D.C. Cir. 1988), and Nickles Bakery
of Indiana, 296 NLRB 927, 929 (1989). Claiming that the notice of
hearing “exceeds the scope of the charged allegations,” Operating
that the work in dispute not include skid steer work or
any work at the Flats East jobsite. 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 charges. It also does
not argue that the notice of hearing did not accurately
reflect the actual work in dispute between the parties.
We reject Operating Engineers’ due-process argument.
All parties had ample prior notice of the scope of the
inquiry. They had a full opportunity to adduce evidence,
and they fully litigated the work in dispute as stated in
the notice of hearing. In these circumstances, as tacitly
acknowledged by Operating Engineers, there is no evi-
dence 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) (Board rejected due-process argument because
party did not argue, nor did the record show, any preju-
dice stemming from the alleged omission); Longshore-
men ILWU Local 10 (Matson Navigation Co.), 140
NLRB 449, 451 fn. 2 (1963) (“the record shows that all
of the parties were fully apprised at the hearing of the
issues involved herein, and were not prejudiced by the
wording of the charges and the notice of hearing”). We
therefore find that the work in dispute is as set forth in
the notice of hearing.
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 it does not seek
the reassignment of the disputed work, but rather the
preservation of work for the employees it represents. It

Engineers contends that the Regional Director acted without jurisdic-
tion under Sec. 10(b) by originating a complaint upon his own initiative
and that, under G. W. Galloway, the notice should be quashed.
Operating Engineers’ reliance on G. W. Galloway is misplaced.
That case held that the boilerplate statutory language of Sec. 8(a)(1)
that is preprinted on an 8(a) charge form cannot, on its own, support a
particularized 8(a)(1) complaint allegation because it would contravene
10(b)’s mandate that the Board “not originate complaints on its own
initiative.” 856 F.2d at 280 (emphasis added). See also Nickles Bak-
ery, supra at 928. However, a notice of hearing in a 10(k) proceeding
to determine whether there is reasonable cause to believe that Sec.
8(b)(4)(D) has been violated is not, as Operating Engineers describes it,
a “complaint,” and the holding of G. W. Galloway and Nickles Bakery
has not been extended to 10(k) cases. However, even if those cases
applied here, a sufficiently close factual nexus exists between the
charges and the notice of hearing. See Bay Counties Carpenters, 265
NLRB 646, 647–648 (1982) (rejecting argument that notice of hearing
improperly exceeded the scope of the charges by including jobsites not
specified in charges). Accordingly, we deny Operating Engineers’
motion to quash the notice of hearing on this basis.
LABORERS LOCAL 894 (DONLEY’S, INC.) 107
asserts that it simply pursued contractual grievances
against the Employer for breaching the work assignment
provisions of their collective-bargaining agreements, and
that it requested only the contractually-prescribed dam-
ages for the breach. Operating Engineers also argues that
its picketing of the Goodyear jobsite had a representa-
tional rather than jurisdictional objective, i.e., demanding
that the Employer sign the AGC Agreement. Operating
Engineers further contends that the Employer improperly
created the appearance of a jurisdictional dispute by
falsely informing Local 894 that Operating Engineers
was seeking reassignment of the forklift and skid steer
work on the Goodyear project.
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 operations,
employer preference, and relative skills and training.
Operating Engineers argues that the evaluation of econ-
omy and efficiency of operations must take into account
that, in its view, the Employer will have to pay contrac-
tual damages if the work in dispute is not awarded to
Operating Engineers-represented employees. It also ar-
gues that the Employer’s preference here is tainted by its
attempt to avoid its contractual obligations to Operating
Engineers. Operating Engineers opposes any request for
a broad jurisdictional award.
The Employer and Laborers each contend that there is
reasonable cause to believe that both Operating Engi-
neers and Local 894 violated Section 8(b)(4)(D) by
threatening to strike over job assignments. They further
contend that there are competing claims to the disputed
work, including Operating Engineers’ two pay-in-lieu
grievances, and that therefore the notice of hearing
should not be quashed. Both the Employer and Laborers
assert that there is no agreed-upon method for voluntary
adjustment of the 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 past prac-
tice, employer preference, area and industry practice, and
economy and efficiency of operations. Laborers further
contends that the factors of collective-bargaining agree-
ments and relative skills and training also favor awarding
the disputed work to employees it represents. Finally,
the Employer and Laborers argue that a broad award is
warranted because disputes over the assignment of fork-
lift and skid steer work will continue to arise on future
projects, and because Operating Engineers has demon-
strated a proclivity to engage in unlawful conduct to
force the assignment of the disputed work to the employ-
ees it represents.
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
that work. Additionally, there must be a finding that the
parties have not agreed on a method for the voluntary
adjustment of the dispute. Id. We find that these re-
quirements 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, Laborers has done so, and
the employees it represents have been performing the
work. Moreover, on April 23, 2012, Local 894 threat-
ened to picket and/or strike the Goodyear jobsite if the
Employer reassigned the work in dispute to employees
represented by Operating Engineers in response to Oper-
ating Engineers’ claim. Operating Engineers contends
that it did not claim the disputed work, as it was merely
seeking to (a) obtain the Employer’s signature on its
agreement with the AGC, and (b) enforce the damages
provisions in its agreements with the AGC and the CEA
and preserve its right to perform the work in dispute. We
reject Operating Engineers’ arguments.
Even assuming that Operating Engineers’ picketing
had the lawful goal of obtaining the Employer’s signa-
ture on its agreement with the AGC, this does not negate
the evidence of Operating Engineers’ claims to the dis-
puted work. See Operating Engineers Local 478 (Stone
& Webster), 269 NLRB 655, 658 (1984). First, contrary
to its argument, Operating Engineers effectively claimed
the disputed work by filing the two February 27 pay-in-
lieu grievances with the Employer. See, e.g., Laborers
Local 265 (AMS Construction), 356 NLRB 306, 308
(2010) (pay-in-lieu grievance may constitute a compet-
ing claim for work); Roofers Local 30 v. NLRB, 1 F.3d
1419, 1427 (3d Cir. 1993), enfg. 307 NLRB 1429 (1992)
(attempted distinction “between seeking the work and
seeking payment for the work is ephemeral”). In addi-
tion, as set forth above, witnesses for the Employer testi-
fied that during prejob and bargaining meetings, Operat-
ing Engineers representatives claimed the disputed work.
The record also includes testimony that Operating Engi-
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
neers was attempting to negotiate directly with contrac-
tors for the work.
2. Use of proscribed means
We find reasonable cause to believe that Local 894 and
Operating Engineers each used means proscribed by Sec-
tion 8(b)(4)(D) to enforce their claims to the work in
dispute. As set forth above, on April 23, Local 894 in-
formed the Employer that its members would strike if the
Employer assigned work on the Goodyear and other
jobsites to Operating Engineers.6 Further, Operating
Engineers several times demanded the disputed work and
threatened to strike if it did not receive it.
We reject Operating Engineers’ argument that it has a
work preservation claim to the forklift and skid steer
work and that therefore no valid jurisdictional dispute
exists between the parties. To prevail on this defense,
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 jurisdic-
tion. See, e.g., Teamsters Local 174 (Airborne Express),
340 NLRB 137, 139 (2003). Operating Engineers has
failed to make that showing. The record establishes that
employees represented by Laborers have been perform-
ing the disputed work for at least 30 years. 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.
3. No voluntary method for adjustment of dispute
We further find no agreed-upon method for voluntary
adjustment of the dispute. The Employer and Laborers
so stipulated at the hearing, and Operating Engineers
provided no evidence to the contrary.
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.

6 Having found reasonable cause to believe that Operating Engi-
neers claimed the work in dispute, we reject its argument that the Em-
ployer misrepresented Operating Engineers’ demands and thus manipu-
lated Local 894 into making the threat. Further, Operating Engineers
offers no affirmative evidence that Local 894’s threat was not genuine,
or that it was the product of collusion with the Employer. See Operat-
ing Engineers Local 150, supra at 1140.
1. Board certifications and collective-bargaining
agreements
The parties stipulated at the hearing that the work in
dispute is not covered by any Board certification or or-
der. Both Operating Engineers and Laborers, however,
assert that their respective collective-bargaining agree-
ments with the Employer entitle them to the disputed
work.
Operating Engineers’ agreement with the AGC in-
cludes a jurisdictional clause that describes the covered
work as the erection, operation, assembly and disassem-
bly, and maintenance and repair of various types of con-
struction equipment. Operating Engineers’ agreement
with the CEA includes a similar jurisdictional clause that
specifically identifies forklift and skid steer work. Both
agreements include wage scale job classifications that
reference both forklifts and skid steers.
The 2009–2012 Local 310 Building Laborers’ Agree-
ment and the 2011–2012 and 2012–2016 Local 894
Building Agreements all include a jurisdictional clause
that applies “[w]here power is used in the moving, load-
ing or unloading of concrete forms” and other materials
as an adjunct to carpentry work. In addition, the 2011–
2012 and 2012–2016 Local 894 agreements provide a list
of covered work classifications that includes forklift and
skid steer work. The 2012–2016 agreement includes a
revised provision stating in part that the operation of
forklifts and skid steers “when used in the performance
of the aforementioned work jurisdictions shall be the
work of the Laborer.” The 2012–2015 Local 310 agree-
ment includes a revised jurisdictional clause that states in
part that the operation of forklifts and skid steers “used
for the purpose of tending [carpenters]” is work that be-
longs to employees represented by Laborers.
We find that both Operating Engineers and Laborers
have language in their agreements supportive of their
respective claims to the work in dispute. 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 assigns the work in dispute to employ-
ees represented by Laborers and prefers that they contin-
ue to perform the work. The Employer has a past prac-
tice of assigning similar work to Laborers-represented
employees. Thus, we find that the factor of employer
preference and past practice favors awarding the work in
dispute to employees represented by Laborers.
3. Area and industry practice
Both Laborers and Operating Engineers presented
dozens of recent letters of assignment from contractors,
indicating that employees they represent have performed
LABORERS LOCAL 894 (DONLEY’S, INC.) 109
forklift and/or skid steer work for these contractors at
various jobsites in Ohio. However, these letters do not
specifically describe the work involved or the facts and
circumstances surrounding the work. This evidence is
therefore inconclusive.
Linville, the CEA’s executive vice president, testified
that the practice for the last 30 years has been for CEA
employers to assign forklift and skid steer work to em-
ployees represented by Laborers. Dilley testified that he
is on committees for both the American Concrete Insti-
tute and the American Society of Concrete Contractors,
and that the contractors that are members of these organ-
izations assign their forklift and skid steer work to La-
borers-represented employees. Eddie Deaton, a field
representative for the Laborers’ District Council of Ohio,
testified that it is well established that Laborers-
represented employees operate forklifts and skid steers
throughout Ohio.
In contrast, Operating Engineers offered limited testi-
mony as to any area practice of using employees it repre-
sents to perform work of the type that is in dispute. Lu-
cas testified that as an Operating Engineers representa-
tive in its District Six (Akron) office since 1998, he has
received “several” referrals for forklift and skid steer
work. Lucas also testified that the National Maintenance
Agreement Policy Committee determined that employees
represented by Operating Engineers should perform fork-
lift work on jobsites covered by the National Mainte-
nance Agreement (NMA). However, Local 310 Business
Agent Mike Kearney testified that the practice under the
NMA is different from that on building sites within La-
borers’ geographical jurisdictions. In its posthearing
brief, Operating Engineers acknowledged that the NMA
applies only to work performed at power plants.
Furthermore, Przepiora and Orr, Employer and Local
894 representatives, respectively, testified that shortly
before the strike at the Goodyear jobsite, Russell sepa-
rately told each of them that Operating Engineers had
ceded forklift and skid steer work to Laborers-
represented employees for the past 30 years. Russell
admitted that it was “very possible” that he had made
such a statement to Orr. This testimony suggests that
employees represented by Operating Engineers have not
in the recent past performed work of the type that is now
in dispute within Laborers’ geographical jurisdictions.
Based on the above evidence, we find that this factor
favors an award of the work in dispute to employees rep-
resented by Laborers.
4. Relative skills and training
Dreier, Dilley, and Przepiora testified that the Employ-
er may provide the necessary certification and/or training
for employees to operate a forklift. Dreier and Przepiora
testified that if the Employer does not provide the neces-
sary training and/or certification, the Ohio Laborers’
Training Program will provide it. Ralph Cole7 testified
that Laborers has a main Ohio training site in Howard,
Ohio, as well as a satellite training site in Cleveland. Orr
and Deaton testified that Laborers-represented employees
who take forklift or skid steer classes must pass tests
showing their ability to operate these machines. Dreier,
Dilley, Przepiora, and Kearney testified that employees
represented by Laborers possess the necessary skills to
operate forklifts and skid steers on the Employer’s pro-
jects.
Donald Black, the administrative manager of the Ohio
Operating Engineers Apprenticeship Training Fund, tes-
tified that Operating Engineers has four training sites in
Ohio. At these sites, Operating Engineers offers forklift
and skid steer classes that include written examinations
and practical skills tests. Black testified that Operating
Engineers certifies about 250 members each year for
forklift work, and that from July 2011 until July 2012, it
certified 107 apprentices for skid steer work.
On this record, we find that employees represented by
Laborers and those represented by Operating Engineers
possess the skills and training necessary to perform the
work in question. This factor, therefore, does not favor
an award of the disputed work to either group of employ-
ees.
5. Economy and efficiency of operations
The Employer’s witnesses testified that it would not be
economically efficient to assign the disputed work to
employees represented by Operating Engineers. Dreier
and Cole testified that operation of the forklifts and skid
steers on the Flats East and Goodyear projects is only
intermittent. Dreier, Orr, and Terry Joyce, Local 310’s
business manager, testified that the Employer’s agree-
ment with Laborers allows Laborers-represented em-
ployees to perform other types of work when the forklifts
or skid steers are not in use. In contrast, according to
Dreier and Dilley, the Employer’s agreement with Oper-
ating Engineers prohibits Operating Engineers-
represented employees from performing these other types
of work at the jobsites. Operating Engineers did not dis-
pute this testimony or offer any contrary evidence. Ac-
cordingly, because the employees represented by Labor-
ers are able to perform additional work on these projects,
reducing the Employer’s payment of wages for idle time,
this factor favors an award of the work in dispute to

7 Cole is the business manager for the Ohio Laborers’ District
Council, as well as the vice president at large of Laborers’ International
Union of North America.
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
those employees.8 See, e.g., Laborers (Eshbach Bros.,
LP), 344 NLRB 201, 204 (2005) (greater versatility of
Laborers-represented employees supported award of dis-
puted work to them instead of employees represented by
Operating Engineers); Wisconsin Laborers District
Council (Miron Construction Co.), 309 NLRB 756, 757
(1992) (same).
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, area and industry practice, and economy and
efficiency of operations, all of which favor Laborers-
represented employees. In making this determination,
we award the work to employees represented by Labor-
ers, not to that labor organization or to its members.
Scope of the Award
The Employer and Laborers request that our award in
this proceeding encompass all projects throughout Local
18’s geographic jurisdiction, which includes most of the
State of Ohio. While recognizing that its relationship
with Laborers has “started to deteriorate,” Operating En-
gineers opposes a broad award. It argues that the Em-
ployer and Laborers have not met their burden of show-
ing that the disputed work has been a continuous source
of controversy, or that Operating Engineers has a pro-
clivity to engage in unlawful conduct in an effort to ob-
tain similar work. We agree with Operating Engineers
that a broad award is not warranted here.
“Normally, [Section] 10(k) awards are limited to the
jobsites where the unlawful [Section] 8(b)(4)(D) conduct
occurred or was threatened.” Carpenters (Prate Installa-
tions, Inc.), 341 NLRB 543, 546 (2004). For the Board
to issue a broad award, two prerequisites must be met.
There must be: “(1) evidence that the disputed work has
been a continuous source of controversy in the relevant
geographic area and that similar disputes may recur; and
(2) evidence demonstrating the offending union’s pro-
clivity to engage in further unlawful conduct in order to
obtain work similar to that in dispute.” Id., citing Elec-
trical Workers Local 363 (U.S. Information Systems),
326 NLRB 1382, 1385 (1998). When evaluating these

8 Operating Engineers argues that the Employer’s assignment of the
work in dispute to employees represented by Laborers is not economi-
cal, taking into account the potential damages resulting from the Em-
ployer’s alleged breach of the AGC and CEA agreements. We reject
this argument because pursuing a pay-in-lieu grievance after the Board
awards work that is in dispute violates Sec. 8(b)(4)(ii)(D). See Iron
Workers Local 433 (Otis Elevator), 309 NLRB 273, 274 (1992), enfd.
46 F.3d 1143 (9th Cir. 1995).
prerequisites, the Board looks to the offending union’s
other conduct. See Electrical Workers Local 98 (Swart-
ley Bros. Engineers), 337 NLRB 1270, 1273 (2002).
Moreover, the Board generally refuses to issue an area-
wide award when a charged party represents the employ-
ees to whom the work is awarded and to whom the em-
ployer contemplates continuing to assign the work. See,
e.g., Laborers Local 265 (AMS Construction, Inc.), 356
NLRB 306, 311 (2010).
We agree with Operating Engineers that the Employer
and Laborers have failed to establish that, as of the date
when this controversy arose, the disputed work was a
continuous source of controversy within Local 18’s ju-
risdiction. We acknowledge that some record evidence
suggests that Operating Engineers claimed similar work
on other projects and made related threats concerning
these projects. The record includes evidence that on
some projects, Operating Engineers may have filed or
threatened to file grievances against the Employer or
other employers regarding the assignment of forklift and
skid steer work. However, based on the paucity of evi-
dence about these projects and Operating Engineers’
conduct, and the limited scope of the dispute here, we
cannot find that the Employer and Laborers have made
the requisite showing that similar disputes are likely to
arise in the future. We further note that there are no prior
Board determinations involving disputes between these
parties. Therefore, the Employer and Laborers have also
failed to show that Operating Engineers has demonstrat-
ed a proclivity to engage in further proscribed conduct in
order to obtain similar work. See Glaziers District
Council 16 (Service West), 357 NLRB 560, 562 (2011).9
Accordingly, in the circumstances here, we find that a
broad order is not warranted. Therefore, the present de-
termination is limited to the particular controversies that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Donley’s Inc., represented by Labor-
ers’ International Union of North America, Local 310,
are entitled to perform the operation of forklifts as part of
the concrete work being performed at the Flats East De-
velopment project located at 101 Front Avenue, Cleve-
land, Ohio.
2. Employees of Donley’s Inc., represented by Labor-
ers’ International Union of North America, Local 894,

9 Member Johnson agrees, in the circumstances of this case, that a
broad award is not appropriate but does not rely either on his col-
leagues’ analysis of what constitutes proclivity or on Glaziers District
Council 16 (Service West), 357 NLRB 560.
LABORERS LOCAL 894 (DONLEY’S, INC.) 111
are entitled to perform the operation of forklifts and skid
steers as part of the construction of a parking deck at the
Goodyear jobsite located at 225 Innovation Way, Akron
Ohio.
3. International Union of Operating Engineers, Local
18 is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force Donley’s Inc. to assign the
disputed work to employees represented by it.
4. Within 14 days from this date, International Union
of Operating Engineers, Local 18 shall notify the Re-
gional Director for Region 8 in writing whether it will
refrain from forcing Donley’s Inc., by means proscribed
by Section 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination.