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

National Labor Relations Board - Unpublished Board Decisions

Jan 30, 2015

08-CD-109665 (N.L.R.B. Jan. 30, 2015)

1
Westlake, OH
Warrensville Hts., OH
Middleburg Hts., OH
Beachwood, OH
Cleveland, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
LABORERS’ INTERNATIONAL UNION
OF NORTH AMERICA, LOCAL 310
and Cases 08-CD-109665
08-CD-109666
KMU TRUCKING & EXCAVATING 08-CD-109671
SCHIRMER CONSTRUCTION CO. 08-CD-109683
PLATFORM CEMENT, INC. 08-CD-109709
21st CENTURY CONCRETE CONSTRUCTION, INC. 08-CD-114937
INDEPENDENCE EXCAVATING, INC.
DONLEY’S INC.
and
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 18, AFL-CIO
ORDER DENYING MOTION FOR RECONSIDERATION
On September 3, 2014, the National Labor Relations Board issued a Decision
and Determination of Dispute1 in this proceeding, finding that employees represented by
Laborers’ International Union of North America, Local 310 (Laborers) are entitled to
perform the disputed work of operating forklifts and skid steers. Taking notice of the
grant of an areawide award of work of the kind in dispute in a recent decision involving
the same parties, Operating Engineers Local 18 (Donley’s, Inc.) (Donley’s II), 360 NLRB
No. 113 (2014), the Board restated and applied that award in this case. Thereafter,

1 Laborers Local 310 (KMU Trucking & Excavating), 361 NLRB No. 37.
2
International Union of Operating Engineers, Local 18 (Operating Engineers) filed a
Motion for Reconsideration of the Board’s restatement and application of the areawide
award.
The Board has delegated its authority in this proceeding to a three-member
panel.
Having duly considered the matter, we find that Operating Engineers’ motion fails
to establish “extraordinary circumstances” warranting reconsideration under Section
102.48(d)(1) of the Board’s Rules and Regulations.
In granting the areawide award in Donley’s II, the Board found that (1) the work
was a continuous source of controversy between Operating Engineers and Laborers
and was likely to remain so on other jobsites within Operating Engineers’ geographical
jurisdiction, and (2) Operating Engineers showed a proclivity to use means proscribed
by Section 8(b)(4)(D) to obtain the disputed work.2 Supra, slip op. at 7-8. In the
underlying decision here, involving the same parties, the Board took notice of this
areawide award and restated and applied it in accordance with the Employers’ and
Laborers’ requests.3 Operating Engineers argues that the Board’s restatement of the
areawide award is impermissible because Laborers – and not Operating Engineers – is
the charged party in this proceeding. We disagree.

2 In a case preceding Donley’s II that also involved the same parties, Laborers Local
894 (Donley’s Inc.) (Donley’s I), 360 NLRB No. 20 (2014), the Board found that work of
the kind in dispute was a continuous source of controversy within Operating Engineers’
jurisdiction. However, based on then-insufficient evidence that similar disputes might
recur, and that Operating Engineers had a proclivity to engage in proscribed conduct in
order to obtain the disputed work, the Board in that case denied the Employer’s and
Laborers’ request for an areawide award.
3 Laborers Local 310, supra, slip op. at 6.
3
Although a request for an areawide award is often not granted when the charged
party represents the employees to whom the work is awarded,4 the Board’s
consideration of a request for such an award is not limited to a consideration of the
conduct of the charged party.5 Rather, the critical factor is whether “there is evidence
that similar disputes may occur in the future.”6 The evidence recounted in this case,
together with that considered in the prior Donley’s cases, clearly establishes a likelihood
of such recurrence. Additionally, the prior grant of an areawide award, applicable to the
parties in this proceeding, cannot be ignored.7 Thus, in these circumstances, and even
giving due consideration to the fact that Operating Engineers is not the charged party in
this proceeding, it was entirely appropriate to reaffirm our earlier grant of the areawide
award.
Accordingly, we find that Operating Engineers has failed to establish any
“extraordinary circumstances” warranting reconsideration of our earlier decision.

4 See, e.g., Laborers Local 860 (Ronyak Paving, Inc.), 360 NLRB No. 40 (2014).
5 See, e.g., Bay Counties Carpenters (Northern California Contractors Assn.), 265
NLRB 646, 650 fn. 9 (1982) (finding conduct of noncharged party relevant to grant of
areawide award).
6 Carpenters (Standard Drywall), 348 NLRB 1250, 1256 (2006), enfd. sub nom.
Standard Drywall, Inc. v. NLRB, 547 Fed.Appx. 809 (9th Cir. 2013). See also Laborers
Local 1184 (Massey Sand and Rock Co.), 198 NLRB 77, 79 (1972).
7 We also note that Operating Engineers was a charged party in Donley’s II, where the
Board originally imposed the areawide award of the disputed work in favor of employees
represented by Laborers. While Operating Engineers contends that it is “merely a
party-in-interest” here, it fully participated in this proceeding and vigorously defended its
conduct. See, e.g., Local Union No. 113, Laborers (Miller Brewing Co.), 184 NLRB 233,
233 fn. 2 (1970) (noncharged party bound by 10(k) determination due to its full
participation in the underlying proceeding).
4
IT IS ORDERED, therefore, that Operating Engineers’ motion is denied.
Dated, Washington, D.C., January 30, 2015
_________________________________
Mark Gaston Pearce, Chairman
_________________________________
Kent Y. Hirozawa, Member
_________________________________
Harry I. Johnson, III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD