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

National Labor Relations Board - Board Decisions

Jan 25, 2017

365 NLRB No. 18 (N.L.R.B. 2017)

365 NLRB No. 18
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
International Union of Operating Engineers Local 18
and Nerone & Sons, Inc. and Laborers’ Interna-
tional Union of North America, Local 310, Par-
ty-In-Interest
International Union of Operating Engineers Local 18
and R.G. Smith Company, Inc., and Laborers’
International Union of North America, Local
310, Party-In-Interest
International Union of Operating Engineers Local 18
and KMU Trucking & Excavating, Inc., Schirm-
er Construction Co., Platform Cement, Inc., 21st
Century Concrete Construction, Inc., Independ-
ence Excavating, Inc., and Laborers’ Interna-
tional Union of North America, Local 310, Par-
ty-In-Interest. Cases 08–CD–135243, 08–CD–
143412, and 08–CD–147696
January 25, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On August 1, 2016, Administrative Law Judge David
I. Goldman issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The Charg-
ing Party Employers and the General Counsel filed an-
swering briefs, and the Respondent filed reply briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions1 and to adopt the recommended
Order.

1 In adopting the judge’s finding of violations in this case, we note
that the Board has previously considered and rejected the Respondent’s
work preservation and collusion defenses in Operating Engineers Local
18 (Donley’s Inc.) (Donley’s IV), 363 NLRB No. 184, slip op. at 2–4 &
fn. 4 (2016), where the Respondent had asserted, unsuccessfully, those
same defenses in the underlying Sec. 10(k) proceeding. Similarly, the
Board rejected those same defenses raised in the Sec. 10(k) proceeding
underlying the present case. See Operating Engineers, Local 18
(Nerone & Sons), 363 NLRB No. 19, slip op. at 4 (2015). The judge
therefore correctly recognized that the Respondent’s reassertion of
those same defenses here was an improper attempt to relitigate the
correctness of the Board’s prior jurisdictional awards. See Laborers
Local 310 (KMU Trucking & Excavating) (Donley’s III), 361 NLRB
No. 37, slip op. at 3 (2014).
We find no merit in the Respondent’s argument, based on ILWU Lo-
cal 6 (Golden Grain Macaroni Co.), 289 NLRB 1 (1988), that the
judge did not use the “preponderance of the evidence” standard appli-
cable to Sec. 8(b)(4)(ii)(D) determinations. To the contrary, the judge
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Union of Oper-
ating Engineers, Local 18, its officers, agents, and repre-
sentatives, shall take the action set forth in the Order.
Dated, Washington, D.C. January 25, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 Par-
ties.
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 Em-
ployer’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 Rela-
tions 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 notwith-
standing its award in two 10(k) determinations of the forklift
and skid steer work to two Laborers local unions, Local 18

found that “the Respondent has stipulated to every element of the viola-
tion that needs to be decided”—specifically, that it continued to main-
tain existing and filed new pay-in-lieu grievances seeking work previ-
ously awarded to Laborers-represented employees. Donley’s IV, slip
op. at 2 & fn. 4. Those stipulations plainly establish by a preponder-
ance of the evidence the Respondent’s violation of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
unlawfully continued its effort to force employers to assign the
forklift and skid steer work to Local 18-represented employees.
The instant cases involve the same unions, the same type of
work, and employers operating under the same labor agree-
ments as in Donley’s IV. Here too, in two exhaustively litigated
underlying 10(k) awards, the Board awarded the disputed fork-
lift and skid steer work to a Laborers local union, Local 310
(Laborers and/or Laborers Local 310), and rejected the argu-
ments advanced by Local 18 for the work. Here too, notwith-
standing the Board’s awards, Local 18 has refused to comply
with the awards and continues to seek to force employers oper-
ating 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.
Under longstanding Board precedent, Local 18’s admitted
and continued pursuit of contractual grievances seeking pay-
ment 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 preserva-
tion and not work acquisition—has been rejected. It was re-
jected by the Board in both of the underlying 10(k) decisions.
And it was rejected again, independently, by the Board in Don-
ley’s IV, on a basis indistinguishable from the work-
preservation defense Local 18 seeks to advance here. Accord-
ingly, as discussed herein, I find that Local 18 has violated the
Act as alleged.
STATEMENT OF THE CASE
On August 21, 2014, Nerone & Sons, Inc. (Nerone) filed an
unfair labor practice charge against Local 18, docketed by Re-
gion 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 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.
On March 6, 2015, KMU Trucking & Excavating, Inc.
(KMU), Schirmer Construction Co. (Schirmer), Platform Ce-
ment, Inc. (Platform), 21st Century Concrete Construction, Inc.
(21st Century), and Independence Excavating, Inc. (Independ-
ence), filed an unfair labor practice charge against Local 18
docketed by Region 8 of the Board as Case 08–CD–147696.
After 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 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 consol-
idated 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 Regional Direc-
tor 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 re-
ferred to as the complaint.)
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.
The hearing in this matter commenced May 2, 2016, by tele-
phonic 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.1
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
findings, conclusions of law, and recommendations.
JURISDICTION
Charging Party KMU is an Ohio corporation with an office
and place of business in Avon, Ohio, and a contractor engaged
in the construction industry. In conducting its business opera-
tions, KMU purchased and received at its Avon, Ohio facility
materials valued in excess of $50,000 directly from points lo-
cated outside of the State of Ohio.
Charging Party Schirmer is an Ohio corporation with an of-
fice and place of business in North Olmsted, Ohio, and a con-
tractor 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 of-
fice and place of business in Mentor, Ohio, and a contractor
engaged in the construction industry. In conducting its busi-
ness 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 in Cleveland, Ohio, and a contrac-
tor 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 insti-
tutions, broadcasting stations, commercial buildings, educa-
tional institutions, and/or retail concerns.

1 The amended order superseded and corrected a May 3 order grant-
ing 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.
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (NERONE & SONS INC.) 3
Charging Party Independence is an Ohio corporation with an
office and place of business in Independence, Ohio, and a con-
tractor 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 State of
Ohio.
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
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 busi-
ness operations, R.G. Smith purchased and received at its Can-
ton, Ohio facility materials 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 en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
At all material times, the Construction Employer’s Associa-
tion 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 em-
ployer-members and/or signatories to collective-bargaining
agreements of the CEA and have delegated and authorized the
CEA to represent them in negotiating and administering collec-
tive-bargaining agreements with various labor organizations,
including Local 18 and the Laborers Local 310.
At all material times, the CEA has been an employer en-
gaged in commerce within the 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 com-
merce and that the Board has jurisdiction of these cases, pursu-
ant to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
Background
At all material times, each of the Employers has been operat-
ing under the terms of collective-bargaining agreements negoti-
ated 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, was effective July 1, 2015, and is
scheduled to terminate no earlier than May 31, 2019. The im-
mediately 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
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.
The skid steer and forklift work that the Respondent is al-
leged 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 (2015).
In Donley’s III, after a hearing conducted January 13 and 14,
2014, the Board issued an award September 3, 2014, providing
that:
Employees of KMU Trucking & Excavating, Schirmer Con-
struction Co., Platform Cement, Inc., 21st Century Concrete
Construction, Inc., Independence Excavating, Inc. and Don-
ley’s Inc., who are represented by Laborers’ International Un-
ion of North America, Local 310 are entitled to perform fork-
lift and skid steer work in the area where their employers op-
erate and the jurisdiction of Laborers’ International Union of
North America, Local 310 and the International Union of Op-
erating 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, provid-
ing that:
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, Local 310 and the International Union of Operating
Engineers, Local 18 overlap.
The foregoing 10(k) awards were not the Board’s first rul-
ings 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 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 Lo-
cal 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 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 over-
lap.”

2 I 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 charg-
ing party in the instant unfair labor practice cases.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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
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 of the Laborers.
Notably, in Donley’s II, Donley’s III, and Nerone, the Board
issued broad areawide awards covering the geographic jurisdic-
tion 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 En-
gineers to engage in further conduct proscribed by Section
8(b)(4(D) in order to obtain 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 Laborers
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 coer-
cively 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 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

3 The 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 incorpo-
rated 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 Don-
ley’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. Final-
ly, 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 un-
fair labor practice proceeding” in which the underlying 10(k) determi-
nation are at issue. Thus, the record of Donley’s I, Donley’s II, Don-
ley’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
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 issuance of the Board’s awards in
Donley’s III and Nerone. That the grievances have been main-
tained, 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.
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 under the CEA Building Agree-
ment. 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 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 equip-
ment 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 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 equip-
ment 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 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 equip-
ment 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 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 “Eq-
uity 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 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 “Eq-
uity 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 grievance dated April 1, 2013, filed
against Schirmer alleging breach of the 2012–2015 CEA Build-
ing Agreement. The project at issue is known as the “South

transcripts and exhibits from Donley’s I, and Donley’s II in CD format,
is hereby granted.
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (NERONE & SONS INC.) 5
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 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 Middle-
burg 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 against Independence alleging
breach of the 2012–2015 CEA Building Agreement. The griev-
ance 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.
Joint Exhibit 4 (¶6 to Jt. Exh. 29) — On June 30, 2014, Re-
spondent filed a grievance against Independence alleging
breach of the 2012–2015 CEA Building Agreement. The griev-
ance 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.
Joint Exhibit 5 (¶7 to Jt. Exh. 29) — On July 14, 2014, Re-
spondent filed a grievance against Independence alleging
breach of the 2012–2015 CEA Building Agreement. The griev-
ance 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
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 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 Em-
ployers, 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.
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.
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 griev-
ance 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 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 griev-
ance relates to work performed at the Cleveland Clinic Cancer
Center 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.
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. The griev-
ance 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 grievance against independence alleging
breach of the 2012–2015 CEA Building Agreement. The griev-
ance 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.
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 griev-
ance 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.
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 re-
lates to work performed at the Whitlach Building project in
Cleveland, Ohio. The equipment at issue is a forklift. The em-
ployee(s) performing the work at issue were members of the
Laborers Local 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 re-
lates to work performed at the Whitlach Building 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.
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,
the incident on March 18, 2016, when David Russell, Jr. hand-
ed 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.
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 includ-
ed the above-described grievances found at Joint Exhibit 6 (¶8
to Jt. Exh. 29), Jt. Exh. 7 (¶9 to Jt. Exh. 29) and two 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
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 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). 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 Pres-
ident Byers sent another letter to the CEA’s CEO Linville re-
questing a step 3 grievance hearing on the grievance identified
above with Joint Exhibit 14 (¶16 to Jt. Exh. 29).
To date, the Respondent has continued to maintain and pro-
cess the grievances identified above and, to date, the Respond-
ent has not withdrawn any of these grievances.
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 or skid steer work under the CEA-Local
18 labor agreement. The grievances seek pay and fringe bene-
fits 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 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.
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
To date, Respondent has continued to maintain and process
these Nerone and R.G. Smith grievances, and to date the Re-
spondent 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
grievances filed against Nerone and/or R.G. Smith Co.
Additional Grievances Filed Post 10(k) Award
On January 18, 2016, David Russell, Jr. handed a piece of
paper known in the industry as a “Miranda Card” to a repre-
sentative 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) 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 Lin-
ville, CEO of the CEA, requesting a step 3 grievance hearing
related to the foregoing grievance. On March 29, 2016, Re-
spondent, 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 contin-
ued to maintain and process this grievance, and, to date, the
Respondent has not withdrawn this grievance.
Analysis
“[T]he Board has long held that a union’s pursuit of contrac-
tual 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 2
(2016) (and cases cited therein); Local 7, ILWU (Bellingham
Division), 291 NLRB 89 (1988) (pay-in-lieu-of-work grievanc-
es violated Section 8(b)(4)(D)).
“Such postaward conduct is properly prohibited under Sec-
tion 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), quoted in
Donley’s IV, supra at slip op. at 3.
Here, as set forth above, since the Board’s award of the dis-
puted 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 Charg-
ing Party Employers to pay 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
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 estab-
lished Board precedent, 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.
While the Respondent contends that the 10(k) awards under-
lying this case are “much like an ‘advisory opinion’,” and have
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (NERONE & SONS INC.) 7
“no utility” here (R. Br. at 71), this is quite wrong. In terms of
the assignment of work, the 10(k) awards are significant in-
deed. They resolve the question of which union-represented
employees are entitled to the disputed work. And while not
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 pre-
vail in the unfair labor practice proceeding. If the picketing
union persists in its conduct 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 pur-
poses”—but not definitively—determines the outcome of the
8(b)(4)(D) hearing, is not because the Board will reweigh the
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.
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 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 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 vi-
olation of Section 8(b)(4)(D). But the Respondent has stipulat-
ed to every element of the violation that needs to be decided.
What it seeks to contest is what it may not contest: the underly-
ing 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 Employ-
ers assign that work to itself in derogation of the 10(k) awards.
That the Respondent is doing so is undeniable given its stipula-
tions to post-award grievance-filing and processing that the
Board has long held coercive.
More specifically, the Respondent raises two unavailing de-
fenses to the 8(b)(4) allegations.
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
Second, the Respondent mounts a work-preservation de-
fense, arguing that that its grievances involve “work preserva-
tion.” However, this defense must also be rejected.
First, it must be rejected because it goes to the heart of the
Board’s jurisdictional award of the disputed work to the Labor-
ers Local 310. For this reason, this defense was expressly re-
jected 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

4 On 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 La-
borers 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 cam-
paign to take back the forklift and skid steer work. 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 includ-
ed 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Local 1332, ILA (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 majori-
ty’s rejection [in the underlying 10(k) decision] of the “work
preservation” defense inasmuch as The Board in a 10(k) pro-
ceeding 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 preserva-
tion” 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 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
belonged—and the Board, in both cases, pointedly rejected the
Respondent’s work-preservation defense and the alleged factual
underpinnings to it.
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 con-
tinues 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. According to the Re-
spondent, “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 per-
formed the work at issue within the bargaining unit. Whether
the respondent’s members have performed such work at a
particular site for a particular employer within the multiem-
ployer bargaining unit is not controlling.
(R. Br. at 13).
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 ad-
vanced by the Respondent (composed of CEA signatories), was
irrelevant:
In adopting the judge’s rejection of the Respondent’s work
preservation defense, we find it unnecessary to rely on his
bargaining unit analysis. Regardless of what units are appro-
priate, 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 em-
ployees 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 Re-
spondent cannot reasonably dispute that this was its objective.
. . . . [T]his constitutes work acquisition, not work preserva-
tion.
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 employ-
ees of these charging party employers. And as to this exclu-
sively relevant point, the Respondent has nothing to offer.
Thus, in Nerone, the Board found (slip op. at 4) that
[t]he record shows that Laborers-represented employees have
been performing forklift and/or skid steer work at both pro-
jects and the Employers have consistently assigned this type
of work in dispute here to employees represented by
the Laborers.
This finding was based on the testimony of six witnesses
(two from each of the two employers, and two from the Labor-
ers. Nerone, supra, slip op. at 2. The Board found that the
“Operating Engineers offered no witness to contradict this tes-
timony.” Id.
In Donley’s III, the Board found (slip op. at 3) that:
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 pro-
jects, and that the Employers have consistently assigned work
of the kind in dispute to employees represented by Laborers.
Where, as here, a labor organization is claiming work that has
not previously been performed by employees it represents, the
“objective is not work preservation, but work acquisition,”
and the Board will resolve the dispute through a 10(k) pro-
ceeding.
This finding was based upon the testimony of witnesses for
five of the employers that the 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 empha-
sis), (see also Donley’s III, supra at fn. 10, for additional exam-
ples 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 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 Instal-
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (NERONE & SONS INC.) 9
lations, Inc.), 341 NLRB 543, 545 (2004):
Thus, even assuming that Carpenters-represented employees
have performed all aspects of the work in dispute, they have
never performed it exclusively. The dispute arose when Car-
penters claimed all of the disputed work, including that previ-
ously 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, 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 preser-
vation and not work acquisition. Rather, the record shows, as
found by the Board, 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 as-
suming, arguendo, that the 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 Re-
spondent would not be permitted to put on additional evidence
in support of its work-preservation defense, I solicited and the
Respondent provided an offer of proof as to the evidence it
would put on if given the opportunity.
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 Re-
spondent 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 to 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 posi-
tion.5
For all of these reasons, I reject the Respondent’s work-
preservation and collusion defenses and find that the Respond-
ent violated Section 8(b)(4)(ii)(D) as alleged
CONCLUSIONS OF LAW
1. Nerone & Sons, Inc., R.G. Smith Company, Inc., KMU
Trucking & Excavating, Inc., Schirmer Construction Co, Plat-
form Cement, Inc., 21st Century Concrete Construction, Inc.,
and Independence Excavating, Inc. (the Employers) are em-
ployers engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union of Operating Engineers Local 18 (the

5 The 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 dis-
cussed at the hearing (Tr. 47) and should have been included in the
record. I add it now as ALJ Exhibit 1.
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) (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 deci-
sions to Laborers Local 310-represented employees to employ-
ees represented by the Respondent.
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 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 war-
ranted. Plasterers Local 200, 357 NLRB 2212, 2215 fn. 13;
Hickmott Foods, 242 NLRB 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 skid steer work to employees
represented by the Respondent rather than to employees repre-
sented by Laborers Local 310, in the area where the Employers
operate and the jurisdiction of Laborers Local 310 and the Re-
spondent overlap, the Respondent shall be ordered to withdraw
all such grievances.
The Respondent shall post an appropriate informational no-
tice, as described in the 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 electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily 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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, International Union of Operating Engineers
Local 18, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining and/or filing grievances against any of the

6 If 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 pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Employers7 contrary to the 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 em-
ployees 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 where the Em-
ployers operate and the jurisdiction of Laborers Local 310 and
IUOE Local 18 overlap.
(b) Threatening, coercing, or restraining any of the Employ-
ers, or any other person or employer engaged in commerce or
in an industry affecting commerce, where an object of its ac-
tions 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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Withdraw all pending, and cease filing, pay-in-lieu griev-
ances against the Employers for work utilizing forklifts and
skid steers performed by employees 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 of-
fice in Cleveland, Ohio, and at any other offices it maintains
within Cuyahoga County, copies of the attached notice marked
“Appendix.”8 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees and members are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an inter-
net site, and/or other electronic means, if the Respondent cus-
tomarily communicates with its members by such means. Rea-
sonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(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 facili-
ties within Cuyahoga County, if they wish, in all places where
notices to employees are customarily posted.
(d) Within 21 days after service by the Region, file with the
Regional Director for Region 8 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

7 The 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 Con-
crete Construction, Inc., and Independence Excavating, Inc.
8 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Dated, Washington, D.C. August 1, 2016
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 no-
tice.
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 activi-
ties.
WE WILL NOT maintain and file, contrary to the Board’s deci-
sion 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 Truck-
ing & 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 bargain-
ing 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 Labor-
ers 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
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.
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (NERONE & SONS INC.) 11