International Union of Operating Engineers Local 18 (Nerone & Sons Inc)

National Labor Relations Board - Administrative Judge Opinions

Aug 1, 2016

08-CD-135243 (N.L.R.B. Aug. 1, 2016)

JD–71–16
Avon, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 18,
and CASE 08–CD–135243
NERONE & SONS, INC.,
and
LABORERS’ INTERNATIONAL UNION
OF NORTH AMERICA, LOCAL 310,
Party-In-Interest.
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 18,
and CASE 08–CD–143412
R.G. SMITH COMPANY, INC.,
and
LABORERS’ INTERNATIONAL UNION
OF NORTH AMERICA, LOCAL 310,
Party-In-Interest.
JD–71–16
1
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 18,
and CASE 08–CD–147696
KMU TRUCKING & EXCAVATING, INC.,
SCHIRMER CONSTRUCTION CO.,
PLATFORM CEMENT, INC.,
21st CENTURY CONCRETE CONSTRUCTION, INC.,
INDEPENDENCE EXCAVATING, INC.,
and
LABORERS’ INTERNATIONAL UNION
OF NORTH AMERICA, LOCAL 310,
Party-In-Interest.
Counsel:
Sharlee Cendrosky, Esq. (NLRB Region 8)
of Cleveland, Ohio, for the General Counsel
Timothy R. Fadel, Esq. (Fadel & Beyer, LLC)
of Rocky River, Ohio, for the Respondent
Frank W. Buck, Esq. and Meredith C. Shoop, Esq. (Littler Mendelson, PC)
of Cleveland, Ohio for the Charging Parties
Decision
Introduction
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. These cases involve the
International Union of Operating Engineers Local 18 (Local 18 or Respondent) and its continued
effort to force employers operating under the Ohio-based Construction Employer’s Association
(CEA) building agreement to use Local 18-represented operators to perform forklift and skid
steer work.
In a recent decision, Operating Engineers Local 18, 363 NLRB No. 184 (2016) (Donley’s
IV), the National Labor Relations Board (Board) found Local 18 in violation of the National Labor
Relations Act (Act) for the essentially identical conduct at issue here. In Donley’s IV, the Board
found that notwithstanding its award in two 10(k) determinations of the forklift and skid steer
work to two Laborers local unions, Local 18 unlawfully continued its effort to force employers to
assign the forklift and skid steer work to Local 18-represented employees.
JD–71–16
2
The instant cases involve the same unions, the same type of work, and employers
operating under the same labor agreements as in Donley’s IV. Here too, in two exhaustively
litigated underlying 10(k) awards, the Board awarded the disputed forklift and skid steer work to
a Laborers local union, Local 310 (Laborers and/or Laborers Local 310), and rejected the
arguments advanced by Local 18 for the work. Here too, notwithstanding the Board’s awards, 5
Local 18 has refused to comply with the awards and continues to seek to force employers
operating under the CEA to give it contractually what the Board has determined it may not have:
the skid and steer work arising within the overlapping jurisdictions of the Laborers Local 310 and
Local 18.
10
Under longstanding Board precedent, Local 18’s admitted and continued pursuit of
contractual grievances seeking payment for the employers’ assignment of the work to the
Laborers Local 310—after a 10(k) decision awarding the work to Local 310—is essentially an
admission of a violation of the Act. Local 18’s chief defense—that it is engaging in work
preservation and not work acquisition—has been rejected. It was rejected by the Board in both 15
of the underlying 10(k) decisions. And it was rejected again, independently, by the Board in
Donley’s IV, on a basis indistinguishable from the work-preservation defense Local 18 seeks to
advance here. Accordingly, as discussed herein, I find that Local 18 has violated the Act as
alleged.
20
STATEMENT OF THE CASE
On August 21, 2014, Nerone & Sons, Inc. (Nerone) filed an unfair labor practice charge
against Local 18, docketed by Region 8 of the Board as case 08–CD–135243. Nerone filed a
first amended charge in the case on October 29, 2014, and a second amended charge on 25
December 23, 2015.
On December 23, 2014, R.G. Smith Co. Inc. (R.G. Smith) filed an unfair labor practice
charge against Local 18 docketed by Region 8 of the Board as Case 08–CD–143412. R.G.
Smith filed an amended charge in this case on December 23, 2015.30
On March 6, 2015, KMU Trucking & Excavating, Inc. (KMU), Schirmer Construction Co.
(Schirmer), Platform Cement, Inc. (Platform), 21st Century Concrete Construction, Inc. (21st
Century), and Independence Excavating, Inc. (Independence), filed an unfair labor practice
charge against Local 18 docketed by Region 8 of the Board as Case 08–CD–147696. After 35
investigation into the charge in Case 08-CD–147696, on April 30, 2015, the Board’s General
Counsel, by the Regional Director for Region 8 of the Board, issued a complaint alleging
violations of the Act by Local 18.
After investigation into the charges in Cases 08–CD–135243 and 08–CD–143412, on 40
January 29, 2016, the Board’s General Counsel, by the Regional Director for Region 8 of the
Board, issued an order consolidating Case 08–CD–147696 with Case 08–CD–135243 and
Case 08–CD–143412, and issued a consolidated complaint in all three cases alleging violations
of the Act by Local 18. On February 12, 2016, Local 18 filed an answer to the consolidated
complaint denying all violations of the Act. On April 13, 2016, the General Counsel, by the 45
Regional Director for Region 8, issued an amended consolidated complaint in these cases. On
April 28, 2016, Local 18 filed an answer to the amended consolidated complaint denying all
violations of the Act. (Hereinafter, the amended consolidated complaint is referred to as the
complaint.)
50
JD–71–16
3
On April 22, 2016, the Charging Parties (referred to herein collectively as the Employers
or Charging Parties) filed their motion in limine to exclude certain evidence in the upcoming
hearing. The General Counsel filed a response in support of the Charging Parties’ motion on
April 27, 2016. The Respondent filed responses in opposition to the motion on April 29, 2016.
5
The hearing in this matter commenced May 2, 2016, by telephonic appearance of
counsel for all parties. At that time the parties provided argument on the Charging Parties’
motion in limine to exclude certain evidence in the hearing in this matter. The hearing recessed
that day. On May 4, 2016, I issued an amended order granting Charging Parties’ motion in
limine.110
The hearing resumed May 9, 2016, in Cleveland, Ohio, and was completed that day.
Counsel for the General Counsel, the Charging Parties, and the Respondent filed posttrial briefs
in support of their positions by June 13, 2016. The Respondent filed a motion to reopen the
record on July 21, 2016, which is discussed herein. On the entire record, I make the following 15
findings, conclusions of law, and recommendations.
JURISDICTION
Charging Party KMU is an Ohio corporation with an office and place of business in Avon, 20
Ohio, and a contractor engaged in the construction industry. In conducting its business
operations, KMU purchased and received at its Avon, Ohio facility materials valued in excess of
$50,000 directly from points located outside of the State of Ohio.
Charging Party Schirmer is an Ohio corporation with an office and place of business in 25
North Olmsted, Ohio, and a contractor engaged in the construction industry. In conducting its
business operations, Schirmer purchased and received at its North Olmsted, Ohio facility
materials valued in excess of $50,000 directly from points located outside of the State of Ohio.
Charging Party Platform is an Ohio corporation with an office and place of business in 30
Mentor, Ohio, and a contractor engaged in the construction industry. In conducting its business
operations, Platform purchased and received at its Mentor, Ohio facility materials valued in
excess of $50,000 directly from points located outside of the State of Ohio.
Charging Party 21st Century is an Ohio corporation with an office and place of business 35
in Cleveland, Ohio, and a contractor engaged in the construction industry. In conducting its
business operations, 21st Century derived gross revenues in excess of $50,000 from the sale or
performance of its services to public utilities, transit systems, newspapers, health care
institutions, broadcasting stations, commercial buildings, educational institutions, and/or retail
concerns. 40
Charging Party Independence is an Ohio corporation with an office and place of
business in Independence, Ohio, and a contractor engaged in the construction industry. In
conducting its business operations, Independence purchased and received at its Independence,
Ohio facility materials valued in excess of $50,000 directly from points located outside of the 45
State of Ohio.

1The amended order superseded and corrected a May 3 order granting the motion in limine
that contained an erroneous footnote citation. Local 18 filed a request for special permission to
appeal the ruling with the Board. The request for special permission to appeal was denied by
order of the Board on July 12, 2016.
JD–71–16
4
Charging Party Nerone is an Ohio corporation with an office and place of business in
Warrensville Heights, Ohio, and a contractor engaged in the construction industry. In
conducting its business operations, Nerone purchased and received at its Warren Heights, Ohio
facility materials valued in excess of $50,000 directly from points located outside of the State of 5
Ohio.
Charging Party R.G. Smith is an Ohio corporation, with an office and place of business
in Canton, Ohio, and a contractor engaged in the construction industry. In conducting its
business operations, R.G. Smith purchased and received at its Canton, Ohio facility materials 10
valued in excess of $50,000 directly from points located outside of the State of Ohio.
Each of the foregoing Charging Parties is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
15
At all material times, the Construction Employer's Association of Greater Cleveland
(CEA), has been an organization comprised of various employers engaged in the construction
industry, one purpose of which is to represent its employer-members in negotiating and
administering collective-bargaining agreements with various labor organizations, including Local
18. At all material times, the Charging Parties have been employer-members and/or signatories20
to collective-bargaining agreements of the CEA and have delegated and authorized the CEA to
represent them in negotiating and administering collective-bargaining agreements with various
labor organizations, including Local 18 and the Laborers Local 310.
At all material times, the CEA has been an employer engaged in commerce within the 25
meaning of Section 2(2), (6), and (7) of the Act. Local 18 and the party-in-interest to these
proceedings, Laborers Local 310, are each labor organizations within Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects commerce and that the Board has
jurisdiction of these cases, pursuant to Section 10(a) of the Act.30
UNFAIR LABOR PRACTICES
Background
35
At all material times, each of the Employers has been operating under the terms of
collective-bargaining agreements negotiated between the CEA and various unions including
Local 18 and the Laborers Local 310.
The current agreement between the CEA and Local 18, the CEA Building Agreement,40
was effective July 1, 2015, and is scheduled to terminate no earlier than May 31, 2019. The
immediately previous CEA Building Agreement was effective May 1, 2012, through April 30,
2015. The current agreement between the CEA and Laborers Local 310 was effective May 1,
2015, and is scheduled to terminate no earlier than April 30, 2019. The immediately previous
agreement was effective May 1, 2012, through April 30, 2015. Both the CEA-Local 18 45
agreements, and the CEA-Local 310 agreements cover, inter alia, work performed in Cuyahoga
County. Both Unions’ agreements with the CEA purport to cover the operation of forklift and
skid steer work when such work otherwise falls within their geographical and operational
jurisdiction.
50
JD–71–16
5
The skid steer and forklift work that the Respondent is alleged to be unlawfully seeking
to force the Employers to assign to it is located at jobsites within Cuyahoga County, Ohio. This
forklift and skid steer work was awarded to the Laborers Local 310 in two 10(k) orders involving
these Employers: Laborers Local 310 (KMU Trading & Excavating) (Donley's III), 361 NLRB No.
37 (2014), and Operating Engineers Local 18 (Nerone & Sons) (Nerone), 363 NLRB No. 19 5
(2015).
In Donley's III, after a hearing conducted January 13 and 14, 2014, the Board issued an
award September 3, 2014, providing that:
10
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 Laborers’
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 15
jurisdiction of Laborers’ International Union of North America, Local 310 and the
International Union of Operating Engineers, Local 18 overlap.2
In Nerone, after a hearing conducted February 9, and March 27, 2015, the Board issued
an award October 1, 2015, providing that: 20
Employees of Nerone & Sons, Inc. and R.G. Smith Company, Inc., who are
represented by Laborers’ 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, 25
Local 310 and the International Union of Operating Engineers, Local 18 overlap.
The foregoing 10(k) awards were not the Board’s first rulings on the dispute. In a
previous 10(k) decision involving the same unions, the same type of work, and employers
operating under the same multiemployer contractual agreements, the Board similarly awarded 30
the forklift and skid steer work to the Laborers Local 310 and not to Local 18. Thus in Operating
Engineers Local 18 (Donley's Inc.) (Donley's II), 360 NLRB No. 113 (2014), after a hearing
conducted February 25–28, 2013, the Board issued an award finding that the Laborers Local
310 employees and not the Local 18 employees of the charging party employers (all of whom
were signatories to CEA-negotiated agreements with the Laborers Local 310 and Local 18) “are 35
entitled to perform work utilizing forklifts and skid steers in the area where their employers
operate and the jurisdiction of Laborers . . . Local 310 and . . . Local 18 overlap.”
Similarly, in Laborers Local 894 (Donley's, Inc.)(Donley's I), 360 NLRB No. 20 (2014),
after a record developed in a hearing conducted from July 23–26, 2012, the Board issued an 40
award rejecting Local 18’s claims to an employer’s (Donley’s) forklift and skid steer work
performed at a site under the CEA’s jurisdiction, which was awarded to Laborers Local 310. In
this decision, the Board also rejected Local 18’s claim to forklift and skid steer work performed
for Donley’s at a Goodyear construction project site in Akron, Ohio, operating within the
jurisdiction of the Associated General Contractors of Ohio. That work was awarded to Local 894 45
of the Laborers.

2I note that while the employer Donley’s Inc., filed a charge that was resolved as part of the
Donley’s III 10(k) decision, it is not a charging party in the instant unfair labor practice cases.
JD–71–16
6
Notably, in Donley’s II, Donley’s III, and Nerone, the Board issued broad areawide
awards covering the geographic jurisdiction of Local 18 because the evidence showed that the
“dispute here is likely to recur on other jobsites within the Operating Engineers geographical
jurisdiction,” and also because “the evidence similarly demonstrates a proclivity by Operating
Engineers to engage in further conduct proscribed by Section 8(b)(4(D) in order to obtain 5
disputed work.” Donley’s II, 360 NLRB No. 113, slip op. at 7-8; Donley’s III, 361 NLRB No. 37,
slip op. at 6; Nerone, 363 NLRB No. 19, slip op. at 6.
As anticipated in Donley’s II, Local 18 refused to comply with the 10(k) awards in
Donley’s I and Donley’s II, and its continued effort to obtain the work assigned to the Laborers10
Local 310 (and Local 894) in Donley's I and Donley's II was found unlawful by the Board in
Donley’s IV, 363 NLRB No. 184 (2016).
In Donley’s IV, the Board concluded, in agreement with Administrative Law Judge Mark
Carissimi, and after a 12-day trial, that Local 18 had violated Section 8(b)(4)(ii)(D) by coercively 15
attempting to force the charging party employers, through picketing and/or maintaining
contractual grievances, to assign forklift and skid steer work to the Respondent "in the area
where the Employers operate and the jurisdiction of Local 310 and the Respondent overlap." In
reaching its conclusion, the Board in Donley’s IV rejected the same “work preservation” defense
and other defenses advanced by the Respondent in the instant case. As noted, as in the instant 20
cases, the employers involved in (Donley's IV) included employers operating under the terms of
collective-bargaining agreements negotiated by the CEA with Local 18 and with the Laborers
Local 310.3
25
Grievances
The coercive activity alleged by the General Counsel in the instant cases involves the
maintenance of pending and the filing of new contractual grievances against the Employers by
Local 18 related to the forklift and skid steer work covered by the 10(k) awards even after the 30
issuance of the Board’s awards in Donley’s III and Nerone. That the grievances have been
maintained, that new ones have been filed, and that the Respondent will not withdraw or cease
processing them, is undisputed. Below I set forth the relevant grievance activity.
35

3The record in Donley’s I, Donley’s II, Donley’s III, Nerone, and Donley’s IV, (the four 10(k)
proceedings and the unfair labor practice proceeding) are part of the record in this case.
Donley’s IV, which incorporated the record from Donley’s I and Donley’s II, was incorporated
into the record for Nerone. In addition Donley’s I, and Donley’s II, were independently
incorporated into the record for Donley’s III. 361 NLRB No. 37, slip op. at 1, fn. 4. Moreover,
the record for Donley’s I, Donley’s II, and Donley’s III, were independently incorporated into the
record for Nerone. 363 NLRB No. 19, slip op. 1, fn. 2. Finally, pursuant to Sec. 102.92 of the
Board’s Rules and Regulations, the record of the underlying 10(k) proceedings in the instant
cases (i.e., Nerone and Donley’s III) “shall become part of the record” in “an unfair labor practice
proceeding” in which the underlying 10(k) determination are at issue. Thus, the record of
Donley’s I, Donley’s II, Donley’s III, Nerone, and Donley’s IV are part of the record in this unfair
labor practice proceeding. I note that the General Counsel’s unopposed posttrial motion to
supplement Joint Exhibit 30 to provide a copy of the transcripts and exhibits from Donley’s I,
and Donley’s II in CD format, is hereby granted.
JD–71–16
7
Grievances filed before the Donley’s III 10(k) award
Local 18 filed the following grievances against a Charging Party Employer before the
issuance of the Board’s 10(k) award in Donley’s III (on September 1, 2014), seeking a remedy
for the Employers’ failure to use Local 18-represented employees for forklift or skid steer work 5
under the CEA Building Agreement. The grievances seek pay and fringe benefits for the first
qualified applicant from the day of violation. As of May 9, 2016, all of these grievances have
continued to be maintained by the Respondent, and have not been withdrawn.
Employer’s Exhibit 22 from Donley’s III 10(k) hearing (¶1(a) to Jt. Exh. 29) — This is a 10
grievance dated March 26, 2013, filed against Independence alleging breach of the 2012–2015
CEA Building Agreement. The project at issue is known as the "Alcoa" project located in
Cleveland, Ohio. The equipment at issue is a skid steer loader.
Employer’s Exhibit 21 from Donley’s III 10(k) hearing (¶1(b) to Jt. Exh. 29) — A 15
grievance dated March 26, 2012 (sic 2013), filed against Independence alleging breach of the
2012-2015 CEA Building Agreement. The project at issue is known as the "Alcoa" project
located in Cleveland, Ohio. The equipment at issue is a forklift.
Employer’s Exhibit 14 from Donley’s III 10(k) hearing (¶1(c) to Jt. Exh. 29) — This is a 20
grievance dated May 16, 2013, filed against KMU alleging breach of the 2012-2015 CEA
Building Agreement. The project at issue is known as the "Equity Trust" project located in
Westlake, Ohio. The equipment at issue is a forklift.
Employer’s Exhibit 15 from Donley’s III 10(k) hearing (¶1(d) to Jt. Exh. 29) — This is a 25
grievance dated June 3, 2013, filed against KMU alleging breach of the 2012–2015 CEA
Building Agreement. The project at issue is known as the "Equity Trust" project located in
Westlake, Ohio. The equipment at issue is a skid steer.
Employer’s Exhibit 10 from Donley’s III 10(k) hearing (¶1(e) to Jt. Exh. 29) — This is a 30
grievance dated June 3, 2013, filed against Platform alleging breach of the 2012–2015 CEA
Building Agreement. The project at issue is known as the "Equity Trust" project located in
Westlake, Ohio. The equipment at issue is a skid steer.
Employer’s Exhibit 7 from Donley’s III 10(k) hearing (¶1(f) to Jt. Exh. 29) — This is a 35
grievance dated April 1, 2013, filed against Schirmer alleging breach of the 2012–2015 CEA
Building Agreement. The project at issue is known as the "South Point Hospital" project located
in Warrensville Heights, Ohio. The equipment at issue is a skid steer.
Employer’s Exhibit 18 from Donley’s III 10(k) hearing (¶1(g) to Jt. Exh. 29) — This is a 40
grievance dated February 7, 2013, filed against 21st Century alleging breach of the 2012–2015
CEA Building Agreement. The project at issue is known as the "Southwest General Hospital"
project located in Middleburg Heights, Ohio. The equipment at issue is a forklift.
Joint Exhibit 3 (¶5 to Jt. Exh. 29) — On February 25, 2014, Respondent filed a grievance 45
against Independence alleging breach of the 2012–2015 CEA Building Agreement. The
grievance relates to work performed at the First Energy Stadium project located in Cleveland,
Ohio. The equipment at issue is a skid steer. The employee(s) performing the work at issue
were members of the Laborers Local 310.
50
JD–71–16
8
Joint Exhibit 4 (¶6 to Jt. Exh. 29) — On June 30, 2014, Respondent filed a grievance
against Independence alleging breach of the 2012–2015 CEA Building Agreement. The
grievance relates to work performed at the Mini-Cooper Dealership project located in Brook
Park, Ohio. The equipment at issue is a skid steer. The employee(s) performing the work at
issue were members of the Laborers Local 310. 5
Joint Exhibit 5 (¶7 to Jt. Exh. 29) — On July 14, 2014, Respondent filed a grievance
against Independence alleging breach of the 2012–2015 CEA Building Agreement. The
grievance relates to work performed at the Hilton Hotel Downtown located in Cleveland, Ohio.
The equipment at issue is a skid steer. The employee(s) performing the work at issue were 10
members of the Laborers Local 310.
On March 5, 2015, Respondent, by counsel, notified Allen Binstock, Regional Director of
Region 8 of the Board, by letter, that Local 18 was in receipt of the Board’s decision in Donley’s
III, that its motion for reconsideration to the Board had been denied, and that Local 18 would not 15
withdraw any current pending grievances filed against any employer, including those grievances
identified above. On March 6, 2015, Respondent, by counsel, sent a letter to Frank Buck,
counsel for the Employers, requesting that Buck contact Respondent in order to select
arbitrators for each of the grievances identified in the letter, which included, among others, each
of the foregoing grievances. 20
Additional Grievances Filed Post Donley’s III 10(k) Award
The following grievances were filed by the Respondent after the issuance of the Board’s award
in Donley’s III, and as of May 9, 2016, continued to be maintained and had not been withdrawn.25
Joint Exhibit 6 (¶8 to Jt. Exh. 29) — On September 12, 2014, Respondent filed a
grievance against Independence alleging breach of the 2012–2015 CEA Building Agreement.
The grievance relates to work performed at the Salvation Army project in Cleveland, Ohio. The
equipment at issue is a skid steer. The employee(s) performing the work at issue were 30
members of the Laborers Local 310.
Joint Exhibit 7 (¶9 to Jt. Exh. 29) — On October 13, 2014, Respondent filed a grievance
against Independence alleging breach of the 2012–2015 CEA Building Agreement. The
grievance relates to work performed at the Cleveland Clinic Cancer Center in Cleveland, Ohio. 35
The equipment at issue is a skid steer. The employee(s) performing the work at issue were
members of the Laborers Local 310.
Joint Exhibit 8 (¶10 to Jt. Exh. 29) — On October 27, 2014, Respondent filed a
grievance against Independence alleging breach of the 2012–2015 CEA Building Agreement. 40
The grievance relates to work performed at the Progressive Field jobsite in Cleveland, Ohio.
The equipment at issue is a forklift. The employee(s) performing the work at issue were
members of the Laborers Local 310.
Joint Exhibit 9 (¶11 to Jt. Exh. 29) — On October 27, 2014, Respondent filed a 45
grievance against independence alleging breach of the 2012–2015 CEA Building Agreement.
The grievance relates to work performed at the Progressive Field jobsite in Cleveland, Ohio.
The equipment at issue is a skid steer. The employee(s) performing the work at issue were
members of the Laborers Local 310.
50
JD–71–16
9
Joint Exhibit 10 (¶12 to Jt. Exh. 29) — On January 25, 2016, Respondent filed a
grievance against Independence alleging breach of the 2015–2019 CEA Building Agreement.
The grievance relates to work performed at the D.O. Summer's Dry Cleaning project in
Cleveland, Ohio. The equipment at issue is a skid steer. The employee(s) performing the work
at issue were members of the Laborers Local 310. 5
Joint Exhibit 11 (¶13 to Jt. Exh. 29) — On March 23, 2016, Respondent filed a grievance
against KMU alleging breach of the 2015–2019 CEA Building Agreement. The grievance relates
to work performed at the Whitlach Building project in Cleveland, Ohio. The equipment at issue is
a forklift. The employee(s) performing the work at issue were members of the Laborers Local 10
310.
Joint Exhibit 12 (¶14 to Jt. Exh. 29) — On March 28, 2016, Respondent filed a grievance
against KMU alleging breach of the 2015–2019 CEA Building Agreement. The grievance relates
to work performed at the Whitlach Building project in Cleveland, Ohio. The equipment at issue is 15
a skid steer. The employee(s) performing the work at issue were members of the Laborers
Local 310.
Joint Exhibit 14 (¶16 to Jt. Exh. 29) — On March 23, 2016, Respondent filed a grievance
against Platform alleging breach of the 2015–2019 CEA Building Agreement. (This followed, 20
the incident on March 18, 2016, when David Russell, Jr. handed a piece of paper known in the
industry as a "Miranda Card" to a representative of Platform (Jt. Exh. 13)). The grievance
relates to work performed at the Salvation Army Harbor Light project in Cleveland, Ohio. The
equipment at issue is a skid steer. The employee(s) performing the work at issue were
members of the Laborers Local 310.25
On March 6, 2015, Respondent, by counsel, sent a letter to Frank Buck, counsel for the
Employers, requesting that Buck contact the Respondent in order to select arbitrators for each
of the grievances identified in the letter. These grievances included the above-described
grievances found at Joint Exhibit 6 (¶8 to Jt. Exh. 29), Jt. Exh. 7 (¶9 to Jt. Exh. 29) and two 30
found at Joint Exhibits 8, and 9 (¶¶10, 11 to Jt. Exh. 29). On February 16, 2016, Local 18’s
President, Thomas Byers, sent a letter to Tim Linville, CEO of the CEA, requesting a step 3
grievance hearing related to the January 25, 2016 grievance, identified above as related to Joint
Exhibit 10 (¶12 to Jt. Exh. 29). By letter dated March 29, 2016, from the Respondent’s counsel
to Shakima Wright of the Federal Mediation and Conciliation Service, the Respondent 35
requested an arbitration panel related to this January 25, 2016 grievance. By letter dated March
29, 2016, Respondent’s counsel notified Counsel for the Employers Buck that with regard to this
grievance the Respondent had filed a request for an arbitration panel. On April 12, 2016, the
Respondent’s President Byers sent a letter to the CEA’s CEO Linville requesting a step 3
grievance hearing on the grievance identified above with Joint Exhibit 12 (¶14 to Jt. Exh. 29).40
On April 12, 2016, the Respondent’s President Byers sent another letter to the CEA’s CEO
Linville requesting a step 3 grievance hearing on the grievance identified above with Joint
Exhibit 11 (¶13 to Jt. Exh. 29). On April 12, 2016, the Respondent’s President Byers sent
another letter to the CEA’s CEO Linville requesting a step 3 grievance hearing on the grievance
identified above with Joint Exhibit 14 (¶16 to Jt. Exh. 29).45
To date, the Respondent has continued to maintain and process the grievances
identified above and, to date, the Respondent has not withdrawn any of these grievances.
50
JD–71–16
10
Grievances filed before the Nerone 10(k) award
Local 18 filed and maintained the following grievances against a Charging Party
Employer before the issuance of the Board’s 10(k) award in Nerone (on October 1, 2015),
seeking a remedy for the Employers’ failure to use Local 18-represented employees for forklift 5
or skid steer work under the CEA-Local 18 labor agreement. The grievances seek pay and
fringe benefits for the first qualified applicant from the day of violation. As of May 9, 2016, all of
these grievances have continued to be maintained by the Respondent, and have not been
withdrawn.
10
Employer's Exhibit 4 from Nerone 10(k) hearing (hearing (¶26(a) to Jt. Exh. 29). This is
a grievance dated August 4, 2014, filed against Nerone alleging breach of the 2012–2015 CEA
Building Agreement. The project at issue is known as the "Downtown Hilton Hotel" project and
is located in Cleveland, Ohio. The equipment at issue was a skid steer loader.
15
Employer’s Exhibit 8 from Nerone 10(k) hearing (¶26(b) to Jt. Exh. 29). This is a
grievance dated November 6, 2014 was filed against R.G. Smith alleging breach of the 2012–
2015 CEA Building Agreement. The project at issue is known as the "Foltz Parkway project"
and is located in Strongsville, Ohio. The equipment at issue was a forklift
20
To date, Respondent has continued to maintain and process these Nerone and R.G.
Smith grievances, and to date the Respondent has not withdrawn them.
On October 9, 2015, Respondent, by counsel, notified Allen Binstock, Regional Director
for Region 8 of the Board by letter, that the Respondent would not withdraw any current pending 25
grievances filed against Nerone and/or R.G. Smith Co.
Additional Grievances Filed Post 10(k) Award
30
On January 18, 2016, David Russell, Jr. handed a piece of paper known in the industry
as a "Miranda Card" to a representative of Nerone. Joint Exhibit 24 ((¶29 to Jt. Exh. 29). On
February 2, 2016, Respondent filed a grievance against Nerone alleging breach of the 2015-
2019 CEA Building Agreement. The grievance relates to work performed at the Lakewood High
School project in Lakewood, Ohio. The equipment at issue is a forklift. The employee(s) 35
performing the work at issue were members of the Laborers Local 310. Joint Exhibit 25 (¶30 to
Jt. Exh. 29).
On February 17, 2016, Respondent sent a letter to Tim Linville, CEO of the CEA,
requesting a step 3 grievance hearing related to the foregoing grievance. On March 29, 2016, 40
Respondent, by counsel, sent a letter to Shakima Wright of the FMCS stating that Respondent
requested an Arbitration Panel related to this grievance. To date, the Respondent has
continued to maintain and process this grievance, and, to date, the Respondent has not
withdrawn this grievance.
45
50
JD–71–16
11
Analysis
“[T]he Board has long held that a union’s pursuit of contractual claims to obtain work the
Board has awarded in a 10(k) determination to another group of employees, or to secure
monetary damages in lieu of the work, violates Section 8(b)(4)(ii)(D).” Donley’s IV, 363 NLRB
No. 184, slip op. at 3 (2016) (and cases cited therein); Local 7, ILWU (Bellingham Division), 291 5
NLRB 89 (1988) (pay-in-lieu-of-work grievances violated Section 8(b)(4)(D)).
“Such postaward conduct is properly prohibited under Section 8(b)(4)(D) because it
directly undermines the 10(k) award, which, under the congressional scheme, is supposed to
provide a final resolution to the dispute over which group of employees are entitled to the work
at issue.” Roofers Local 30, 307 NLRB 1429, 1430 (1992), enfd. 1 F.3d 1419 (3d Cir. 1993), 10
quoted in Donley’s IV, supra at slip op. at 3.
Here, as set forth above, since the Board’s award of the disputed skid steer and forklift
work to the Laborers Local 310, the Respondent has continued to maintain pending and to file
new pay-in-lieu-of work grievances that seek to require Charging Party Employers to pay 15
Respondent-represented employees for skid steer and forklift work assigned by the Employers
to Laborers Local 310-represented employees. The Respondent’s grievances directly conflict
with the Board’s 10(k) awards in Donley’s III and in Nerone. The Respondent has notified the
Employers and the Regional Director of the Board’s Region 8 that it will not withdraw and will
not cease processing the grievances. As of the date of the hearing, by all evidence, these 20
grievances seeking payment for skid steer and forklift work performed by the Employers’ Local
310-represented employees continue to be maintained and pursued. This conduct, in the face
of the 10(k) awards, makes for a straightforward violation of Section 8(b)(4)(D).
The Respondent’s defenses are unavailing, and ignore established Board precedent, 25
including precedent from May 6, 2016, articulated by the Board in Donley’s IV. In that decision,
the very same defenses advanced here were rejected by the Board against the same
respondent, who was seeking the same work that had been assigned by the Board to the same
other union, under the same labor agreements. The only material difference between the
instant cases and Donley IV is the identity of the employer charging parties.30
While the Respondent contends that the 10(k) awards underlying this case are “much
like an ‘advisory opinion’,” and have “no utility” here (R. Br. at 71), this is quite wrong. In terms
of the assignment of work, the 10(k) awards are significant indeed. They resolve the question of
which union-represented employees are entitled to the disputed work. And while not 35
determinative of the 8(b)(4)(D) unfair labor practice litigation, the 10(k) award is no small matter.
As the Supreme Court has recognized, “[The] impact of the § 10 (k) decision is felt in the
§ 8(b)(4)(D) hearing because for all practical purposes the Board’s award determines who will
prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct 40
despite a § 10 (k) decision against it, a § 8(b)(4)(D) complaint issues and the union will likely be
found guilty of an unfair labor practice and be ordered to cease and desist.” ITT v. Local 134,
IBEW, 419 U.S. 428, 444 (1975) (quoting NLRB v. Plasterers Local 79, 404 U.S. 116, 126–127
(1971)). And the reason the 10(k) award “for all practical purposes”—but not definitively—
determines the outcome of the 8(b)(4)(D) hearing, is not because the Board will reweigh the 45
award of work in the unfair labor practice hearing, but because it still must be proven at the
unfair labor practice hearing what the 10(k) hearing found only “reasonably likely”—that the
union continues to picket, grieve, or otherwise act coercively to obtain the work awarded by the
Board to another union.
JD–71–16
12
Thus, while the elements of the 8(b)(4)(ii)(D) allegations, even those previously litigated
in the 10(k) hearings may be litigated in this proceeding, the work at issue has been awarded to
the Laborers Local 310. The scope of the instant unfair labor practice hearing does not include
relitigation of “the correctness of the Board’s 10(k) determination.” Plasterers Local 200
(Standard Drywall), 357 NLRB 2212, 2214 (2011) (citing Plasterers Local 200 (Standard 5
Drywall), 357 NLRB 1921, 1923 (2011)), enfd. 547 Fed.Appx. 809 (9th Cir. 2013); Tile, Marble,
Terrazzo Finishers, Shopworkers Local 47-T (Grazzini Bros. & Co.), 315 NLRB 520, 522 (1994)
(“It is well settled that a party to a Board 10(k) proceeding cannot relitigate the Board's work
assignment in a subsequent 8(b)(4)(D) case”), citing Longshoremen ILA Local 1566 (Holt
Cargo), 311 NLRB No. 166, slip op. at 2 (Aug. 9, 1993) (unpublished) (Respondent not “entitled 10
to litigate the threshold issue of whether the 10(k) award . . . was proper. . . . It is well settled
that a party to a Board 10(k) proceeding cannot relitigate the Board's work assignment in a
subsequent 8(b)(4)(D) case”).
Here, the issue to be litigated is the Respondent’s alleged violation of Section 8(b)(4)(D). 15
But the Respondent has stipulated to every element of the violation that needs to be decided.
What it seeks to contest is what it may not contest: the underlying Board award of the disputed
work to the Laborers. The 8(b)(4)(ii)(D) question, given the Board’s 10(k) award, is whether the
Respondent is coercively seeking to have Employers assign that work to itself in derogation of
the 10(k) awards. That the Respondent is doing so is undeniable given its stipulations to post-20
award grievance-filing and processing that the Board has long held coercive.
More specifically, the Respondent raises two unavailing defenses to the 8(b)(4)
allegations.
25
First, it contends that the Employers and Local 310 engaged in collusion to artificially
manufacture an 8(b)(4)(D) dispute. However, this issue was raised to and rejected by the Board
in Donley’s III, slip op. at 3, and in Nerone, slip op. at 4. This defense is not subject to
relitigation in the subsequent 8(b)(4)(D) proceeding. Donley’s IV, 363 NLRB No. 184, slip op. at
2; Plasterers Local 200 (Standard Drywall), 357 NLRB at 1923 fn. 12.4 30

4On July 21, 2016, after the close of the hearing in this matter, the Respondent filed a
motion to reopen the record, arguing that an alleged posthearing comment by a CEA director
constituted “new” evidence and a basis to reassert the rejected collusion contention. However,
as the Charging Parties point out, the “new” evidence—taken as true—is simply more of the
same argument expressly rejected by the Board in Donley’s IV, and, for that matter, already
advanced in the Respondent’s brief. Thus, the “new” evidence essentially consists of an
alleged statement by a CEA official on June 6, 2016, that the Respondent’s 2012 picketing of a
Donley’s Goodyear parking garage project “set the tone for the CEA’s subsequent negotiations”
in 2012 with the Laborers, negotiations which resulted in revisions expressly stating that the
Laborers work included the operation of forklifts and skid steers. I note that without regard to
the new evidence, the Respondent’s brief already advances the argument (R. Br. at 55–57) that
the Goodyear site dispute spurred or motivated the Laborers/CEA language changes. Thus, the
new of evidence is of no consequence for this reason alone. But even more important, the
Board in Donley’s IV, answered the argument, holding that there is “nothing nefarious or
collusive in the CEA and Local 310 negotiating this revised jurisdictional language” in response
to the campaign commenced by the Respondent to have the forklift and skid steer work
assigned to its employees, despite the fact that, as the Respondent’s representatives admitted,
this work had been given away “a long time ago.” Donley’s IV, supra at slip op. 3 fn. 4. Thus,
the Board has held that it was not “collusive” for the employers and the laborers to respond in
contract negotiations to the Respondent’s campaign to take back the forklift and skid steer work.
JD–71–16
13
Second, the Respondent mounts a work-preservation defense, arguing that that its
grievances involve “work preservation.” However, this defense must also be rejected.
First, it must be rejected because it goes to the heart of the Board’s jurisdictional award 5
of the disputed work to the Laborers Local 310. For this reason, this defense was expressly
rejected by the Board in Donley’s III and in Nerone, and that rejection in the underlying 10(k)
hearings is binding on the Respondent—and on me.
As the Board explained in response to this very argument in Local 1332, ILA 10
(Philadelphia Marine Trade Assn.), 219 NLRB 1229, 1229 fn. 1 (1975), enfd. mem. 542 F.2d
1167 (3d Cir. 1976):
[The Respondent] argues that the Administrative Law Judge erroneously decided
that he was bound by the Board majority's rejection [in the underlying 10(k) 15
decision] of the "work preservation" defense inasmuch as The Board in a 10(k)
proceeding need decide only that "reasonable cause to believe" exists that Sec.
8(b)(4)(D) has been violated, whereas in an unfair labor practice proceeding the
violation must be proved by a "preponderance of evidence." Respondent
contends, therefore, the Board should reconsider the "work preservation" 20
defense in light of this latter test. We do not agree. The actual or potential loss of
work is often the very essence of a jurisdictional dispute. Hence, whatever force
this argument might have in other circumstances, it is not applicable here. Upon
the basis of the undisputed facts the majority decided in the 10(k) proceeding
that as a matter of law a jurisdictional dispute existed which called for a Board 25
determination. That finding was binding on the Administrative Law Judge and we
reiterate it here.
What was true in Local 1332 is very much the case here. The “very essence” of the
jurisdictional dispute in Donley’s III and in Nerone was the issue of to whom the work in dispute 30
belonged—and the Board, in both cases, pointedly rejected the Respondent’s work-preservation
defense and the alleged factual underpinnings to it.

In its motion, the Respondent puts great weight on its claim that the Goodyear project was
outside of the CEA’s jurisdiction, and thus, it argues, any affect that that picketing had on the
tone of the CEA negotiations proves collusion. The Charging Party calls this “bizarre”—and it
certainly points in that direction. As the Board found, and as the evidence shows beyond any
dispute, the Respondent’s campaign to have the skid steer and forklift work assigned to it was
broad and not confined to non-CEA jurisdictions. And it would not matter if it were. As the
Board found, this was “the context” in which the Laborers and the CEA clarified their contractual
language, and it is not evidence of collusion, even assuming, arguendo, that a picket at the
Goodyear project “set the tone” for the 2012 negotiations. I deny the motion. The proposed
evidence is of no import.
Finally, the Respondent argues that the record should be reopened because, allegedly, in
the June 6, 2016 conversation the CEA official stated that “he was the one who insisted that
new equipment be included in [the Laborers/CEA agreement.” According to the Respondent,
this statement “impacts the weight and credibility of testimony already adduced.” I do not agree.
Even taking the statement as true, it changes no finding or conclusion at issue in these cases.
JD–71–16
14
Second, the Respondent’s work-preservation defense must be rejected because it is
wrong as a matter of precedent, and fatally flawed in its premise. In its brief, the Respondent
continues to argue, as it did in Donley’s IV, a work-preservation defense based on the claim that
“that there is a multiemployer bargaining unit to which the Charging Parties belong, and in which
Local 18 members have historically and traditionally operated the work at issue.” R. Br. at 9. 5
According to the Respondent, “the nature of a work preservation defense . . . is a matter of
determining “the scope of the bargaining unit” (R. Br. at 12) and
establishing that the respondent union has historically performed the work at
issue within the bargaining unit. Whether the respondent’s members have 10
performed such work at a particular site for a particular employer within the
multiemployer bargaining unit is not controlling.
(R. Br. at 13).
15
However, in Donley’s IV the Board rejected this argument, root and branch, holding that
even the administrative law judge’s finding of a smaller multiemployer unit than that advanced
by the Respondent (composed of CEA signatories), was irrelevant:
In adopting the judge’s rejection of the Respondent’s work preservation defense, 20
we find it unnecessary to rely on his bargaining unit analysis. Regardless of what
units are appropriate, and whether Respondent–represented employees in those
units have ever performed the disputed forklift and skid steer work, the relevant
inquiry under settled precedent is whether the Respondent was attempting to
expand its work jurisdiction to employers whose Respondent-represented 25
employees had never performed the disputed work. See Laborers Local 265
(Henkels & McCoy), 360 NLRB No. 102, slip op. at 4–5 (2014); Stage Employees
IATSE Local 39 (Shepard Exposition Services), 337 NLRB 721, 723 (2002). The
Respondent cannot reasonably dispute that this was its objective. . . . . [T]his
constitutes work acquisition, not work preservation. 30
Donley’s IV, supra slip op. at 4.
Based on Donley’s IV, the issue in terms of a work-preservation defense can only be
whether and how much of the disputed work was performed by Local 18-represented 35
employees of these charging party employers. And as to this exclusively relevant point, the
Respondent has nothing to offer.
Thus, in Nerone, the Board found (slip op. at 4) that
40
[t]he record shows that Laborers-represented employees have been performing
forklift and/or skid steer work at both projects and the Employers have
consistently assigned this type of work in dispute here to employees represented
by the Laborers.
45
This finding was based on the testimony of six witnesses (two from each of the two
employers, and two from the Laborers. Nerone, supra, slip op. at 2. The Board found that the
"Operating Engineers offered no witness to contradict this testimony." Id.
In Donley's III, the Board found (slip op. at 3) that:50
JD–71–16
15
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 Employers have consistently assigned work of
the kind in dispute to employees represented by Laborers. Where, as here, a 5
labor organization is claiming work that has not previously been performed by
employees it represents, the "objective is not work preservation, but work
acquisition," and the Board will resolve the dispute through a 10(k) proceeding.
This finding was based upon the testimony of witnesses for five of the employers that the 10
forklift and skid steer work "was always assigned to employees represented by the Laborers,"
(Donley's III, slip op. at 2) and testimony of the sixth that the work was assigned to the Laborers
"except on rare occasions." Id. On the other hand, the Board found that Local 18 cited to
"evidence of isolated instances when one of the employers may have used an employee
represented by Operating Engineers to operate a forklift or skid steer." Slip op. at 4 (Board's 15
emphasis), (see also Donley’s III, supra at fn. 10, for additional examples of Local 18’s
evidence).
These Board findings, which are based on overwhelming record evidence, and which I
adopt, demonstrate conclusively that the Respondent is seeking to acquire work that—at
most—was performed in isolated instances for some of the charging party employers. As a 20
matter of precedent, this utterly fails as a work-preservation defense. As the Board explained
with regard to such a claim advanced in Chicago Carpenters (Prate Installations, Inc.), 341
NLRB 543, 545 (2004):
Thus, even assuming that Carpenters-represented employees have 25
performed all aspects of the work in dispute, they have never performed it
exclusively. The dispute arose when Carpenters claimed all of the disputed
work, including that previously performed by employees represented by the
Roofers. As such, the Carpenters’ objective here was not that of work
preservation, but of work acquisition. Stage Employees IATSE Local 39, 30
supra at 723. [Board’s emphasis.]
Here too, there is no basis in the record for any claim by the Respondent that its
demonstrated efforts to obtain all of the employers’ forklift and skid steer work represents work
preservation and not work acquisition. Rather, the record shows, as found by the Board, 35
consistent assignment of the work to Local 310-represented employees and, at most, only
isolated instances of the Respondent-represented employees performing the work for the
Employers.
Moreover, and finally, it is worth pointing out that even assuming, arguendo, that the 40
Respondent could be permitted to relitigate the work-preservation issue—already exhaustively
developed in four 10(k) hearings and a separate unfair labor practice proceeding that lasted
twelve days—the fact is, the Respondent has no relevant evidence to add. We know this with
certainty because in response to my ruling that the Respondent would not be permitted to put
on additional evidence in support of its work-preservation defense, I solicited and the 45
Respondent provided an offer of proof as to the evidence it would put on if given the
opportunity.
JD–71–16
16
As I noted at the hearing, and as is clear from a review of the offer of proof—and from
the Respondent’s brief—the Respondent has no additional evidence to provide demonstrating
that Local 18-represented employees performed the disputed work for these charging party
employers. Rather, the offer of proof reflected an intent to adduce evidence of the kind argued
in its brief, and argued (but rejected by the Board) in Donley’s IV: the offer of proof sought to5
add evidence in support of the Respondent’s claim that its represented employees performed
the disputed work for other employers that (allegedly) were part of a multiemployer bargaining
unit. As discussed above, evidence of that kind cannot advance the Respondent’s position.5
For all of these reasons, I reject the Respondent’s work-preservation and collusion 10
defenses and find that the Respondent violated Section 8(b)(4)(ii)(D) as alleged
Conclusions of Law
15
1. Nerone & Sons, Inc., R.G. Smith Company, Inc., KMU Trucking & Excavating, Inc.,
Schirmer Construction Co, Platform Cement, Inc., 21st Century Concrete Construction,
Inc., and Independence Excavating, Inc. (the Employers) are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
20
2. International Union of Operating Engineers Local 18 (the Respondent), and Laborers’
International Union of North America Local 310 (Local 310), are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices proscribed by Section 8(b)(4) 25
(ii)(D) of the Act. by maintaining pending and filing new grievances against the
Employers after the issuance of the Board’s decisions in Donley’s III and Nerone, with
an object of forcing or requiring the Employers to assign the skid steer and forklift work
awarded in those decisions to Laborers Local 310-represented employees to employees
represented by the Respondent. 30
Remedy
Having found that the Respondent violated Section 8(b)(4)(ii)(D) of the Act, I shall order
it to cease and desist and to take certain affirmative action designed to effectuate the policies of 35
the Act.
Given the repeated violations of Section 8(b)(4)(ii)(D) in this case and in Donley’s IV,
363 NLRB No. 184 (2016), I find that a broad cease-and-desist order against the Respondent is
warranted. Plasterers Local 200, 357 NLRB 2212, 2215 fn. 13; Hickmott Foods, 242 NLRB 40
1357 (1979) (proclivity to violate the Act justifies a broad order).
Having maintained and filed grievances against the Charging Party-Employers contrary
to the Board’s decisions in Donley’s III, 361 NLRB No. 37 (2014), and Nerone, 363 NLRB No.
19 (2015), with an unlawful objective of forcing or requiring the Employers to assign forklift and 45
skid steer work to employees represented by the Respondent rather than to employees

5The offer of proof was filed by the Respondent in the formal case file, and served by the
Respondent on May 5, 2016, and it was discussed at the hearing (Tr. 47) and should have been
included in the record. I add it now as ALJ Exhibit 1.
JD–71–16
17
represented by Laborers Local 310, in the area where the Employers operate and the
jurisdiction of Laborers Local 310 and the Respondent overlap, the Respondent shall be
ordered to withdraw all such grievances.
The Respondent shall post an appropriate informational notice, as described in the 5
attached appendix. This notice shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places where notices to members are
customarily posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its members by such means. 10
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended615
ORDER
The Respondent, International Union of Operating Engineers Local 18, its officers, 20
agents, and representatives, shall
1. Cease and desist from
(a) Maintaining and/or filing grievances against any of the Employers7 contrary to the 25
Board’s decisions in Donley’s III, 361 NLRB No. 37 (2014), and Nerone, 363
NLRB No. 19 (2015) for forklift and/or skid steer work performed by employees
represented by Laborers Local 310 with an object of forcing or requiring the
Employers to assign the work described to employees represented by the
Respondent rather than to employees represented by Local 310 in the area 30
where the Employers operate and the jurisdiction of Laborers Local 310 and
IUOE Local 18 overlap.
(b) Threatening, coercing, or restraining any of the Employers, or any other person
or employer engaged in commerce or in an industry affecting commerce, where 35
an object of its actions is to force or require the employer to assign forklift and/or
skid steer work to Respondent-represented employees, rather than to employees
who are not represented by the Respondent until the Respondent is certified by
the Board as the bargaining representative of the employees performing such
work.40

6If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
7The Employers referred to in this order are Nerone & Sons, Inc., R.G. Smith Company, Inc.,
KMU Trucking & Excavating, Inc., Schirmer Construction Co, Platform Cement, Inc., 21st
Century Concrete Construction, Inc., and Independence Excavating, Inc.

JD–71–16
18
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Withdraw all pending, and cease filing, pay-in-lieu grievances against the
Employers for work utilizing forklifts and skid steers performed by employees 5
represented by Local 310 in the area where the Employers operate and the
jurisdiction of Local 310 and the Respondent overlap.
(b) Within 14 days after service by the Region, post at its office in Cleveland, Ohio,
and at any other offices it maintains within Cuyahoga County, copies of the 10
attached notice marked “Appendix.”8 Copies of the notice, on forms provided by
the Regional Director for Region 8, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places, including all places where notices to
employees and members are customarily posted. In addition to physical posting 15
of paper notices, notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its members by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.20
(c) Within 14 days after service by the Region, deliver to the Regional Director for
Region 8 signed copies of the notice in sufficient number for posting by the
Employers at their facilities within Cuyahoga County, if they wish, in all places
where notices to employees are customarily posted.25
(d) Within 21 days after service by the Region, file with the Regional Director for
Region 8 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply.
30
Dated, Washington, D.C. August 1, 2016
35
David I. Goldman
U.S. Administrative Law Judge
40

8If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain and file, contrary to the Board’s decision in Donley’s III, 361 NLRB No.
37 (2014), and Nerone, 363 NLRB No. 19 (2015), pay in-lieu grievances against Nerone &
Sons, Inc., R.G. Smith Company, Inc., KMU Trucking & Excavating, Inc., Schirmer Construction
Co, Platform Cement, Inc., 21st Century Concrete Construction, Inc., and Independence
Excavating, Inc. (the Employers) with an object of forcing or requiring the Employers to assign
forklift and skid steer work to employees represented by the IUOE Local 18 rather than to
employees represented by Laborers Local 310, in the area where the Employers operate and
the jurisdiction of Laborers Local 310 and IUOE Local 18 overlap.
WE WILL NOT threaten, coerce, or restrain the Employers, or any other person or employer
engaged in commerce or in an industry affecting commerce, where an object of our actions is to
force or require the employer to assign forklift and/or skid steer work to IUOE Local 18-
represented employees, rather than to employees who are not represented by the IUOE Local
18 until IUOE Local 18 is certified by the Board as the bargaining representative of the
employees performing such work.
WE WILL withdraw all pending and cease filing pay-in-lieu grievances against the Employers
over work utilizing forklifts and skid steers performed by employees represented by Laborers
Local 310 in the area where the Employers operate and the jurisdiction of Laborers Local 310
and IUOE Local 18 overlap.
International Union of Operating Engineers Local 18
(Union)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
1240 East 9th Street, Room 1695, Cleveland, OH 44199-2086
(216) 522-3715, Hours: 8:15 a.m. to 4:45 p.m.
.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/08-CD-135243 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (216) 522-7960.