INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 AND ITS BRANCHES

National Labor Relations Board - Board Decisions

May 6, 2016

363 NLRB No. 184 (N.L.R.B. 2016)

363 NLRB No. 184
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 Donley’s Inc.
International Union of Operating Engineers Local 18
and Hunt Construction Group, Inc.
International Union of Operating Engineers Local 18
and Precision Environmental Co.
International Union of Operating Engineers Local 18
and Construction Employers Association
International Union of Operating Engineers Local 18
and B & B Wrecking and Excavating, Inc.
International Union of Operating Engineers Local 18
and Cleveland Cement Contractors, Inc.
International Union of Operating Engineers Local 18
and Laborers’ Local 894, a/w International Un-
ion of North America, AFL–CIO, Party in In-
terest
International Union of Operating Engineers Local 18
and Laborers’ Local 310, a/w International Un-
ion of North America, AFL–CIO, Party in In-
terest. Cases 08–CD–081840, 08–CD–091637,
08–CD–133957, 08–CD–091683, 08–CD–091684,
08–CD–091686, 08–CD–091770, 08–CD–091773,
08–CD–130178
May 6, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On April 9, 2015, Administrative Law Judge Mark
Carissimi issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and Charging Party Employers filed answering
briefs, and the Parties in Interest filed a letter adopting
the Employers’ answering brief. The Respondent filed
briefs in reply to both answering briefs.1

1 In addition, pursuant to Reliant Energy, 339 NLRB 66 (2003), the
Respondent filed two postbrief letters calling the Board’s attention to a
Division of Advice memorandum and recent case authority, and the
General Counsel filed an opposition letter to the second postbrief letter.
As to the second letter, we find that the decision cited by the Respond-
ent, Local 18 International Union of Operating Engineers v. Ohio
Contractors Association, No. 14–4294, 2016 WL 683246 (6th Cir.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
In part, the complaint alleges that the Respondent, In-
ternational Union of Operating Engineers Local 18, vio-
lated Section 8(b)(4)(ii)(D) of the Act by filing and
maintaining pay-in-lieu grievances with an object of
forcing the Charging Party Employers to assign the oper-
ation of certain construction equipment to employees it
represented, contrary to two prior Section 10(k) determi-
nations in which the Board awarded the work to employ-
ees represented by a different union. As found by the
judge, and discussed further below, we agree that the
Respondent violated the Act as alleged.2
The first 10(k) determination, Laborers’ Local 894
(Donley’s Inc.) (Donley’s I), 360 NLRB No. 20 (2014),
involved a jurisdictional dispute between the Respondent
and Laborers’ International Union of North America
Local 894 (Local 894), concerning the operation of fork-
lifts and skid steers at a construction site in Akron, Ohio,
where Employer Donley’s was building a parking garage
for Goodyear. At the time of the Goodyear project, Don-
ley’s employed both operating engineers and laborers
and was signatory to separate collective-bargaining
agreements negotiated by the Associated General Con-
tractors (AGC) and Respondent and AGC and Local 894.
Donley’s assigned the disputed forklift and skid steer
work to its Local 894-represented employees, resulting in
the Respondent threatening to strike the Goodyear pro-
ject, conducting a one-day strike at the project, and filing
a pay-in-lieu grievance alleging that the work assignment
breached the jurisdiction clause of the 2010–2013 Re-
spondent-AGC agreement. After Donley’s informed
Local 894 of the Respondent’s grievance, Local 894
threatened to picket and/or strike, if necessary, to ensure
the continued assignment of forklift and skid steer work
to employees it represented. The Board found reasona-
ble cause to believe that the threats to strike by both Un-

2016), does not affect our decision here, as it raises only a procedural
issue concerning the arbitrability of a provision in a collective-
bargaining agreement different from the agreements in the instant case.
2 The complaint further alleges that the Respondent violated Sec.
8(b)(4)(ii)(D) by threatening to strike Employer Donley’s, violated Sec.
8(b)(4)(i) and (ii)(D) of the Act by engaging in a strike at Donley’s
project at the Goodyear jobsite, and violated Sec. 8(b)(4)(ii)(D) by
threatening to strike the Construction Employers Association and the
Employers, B & B Wrecking and Excavating, Cleveland Cement Con-
tractors, Precision Environmental Co., and Hunt Construction Group.
For the reasons stated by the judge, we agree that the Respondent vio-
lated the Act in these respects as well.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ions, and the strike by Respondent, constituted unlawful
8(b)(4)(D) conduct to enforce their claims to the disputed
work, and awarded the forklift and skid steer work to
employees represented by Local 894. 360 NLRB No. 20,
slip op. at 5–7.
The second 10(k) determination, Operating Engineers,
Local 18 (Donley’s Inc.) (Donley’s II), 360 NLRB No.
113 (2014), involved a jurisdictional dispute between the
Respondent and Laborers’ International Union of North
America Local 310 (Local 310). The dispute concerned
the operation of forklifts and skid steers at construction
projects of Donley’s and four other Employers—B & B
Wrecking and Excavating (B & B), Cleveland Cement
Contractors (Cleveland Cement), Precision Environmen-
tal Co. (Precision), and Hunt Construction Group (Hunt).
The Employers employed operating engineers and labor-
ers represented by the Respondent and Local 310, respec-
tively, and, except for B & B Wrecking, were signatories
to separate 2012–2015 agreements between each Union
and the Construction Employers Association (CEA).
During negotiations for these contracts, the Respondent’s
chief negotiator, Pat Sink, complained that for “far too
long” the Employers had been assigning forklift and skid
steer work to employees it did not represent, and that the
Respondent was prepared to strike if such assignments
continued. In late Spring 2012, the Employers com-
menced various construction projects in the Cleveland,
Ohio area, and assigned the operation of forklifts and
skid steers to their Local 310-represented employees.
Starting on June 5, 2012, and continuing until October 1,
2014, the Respondent filed pay-in-lieu grievances against
the Employers at each construction project alleging that
the assignment of forklifts and skid steers to employees it
did not represent breached the work jurisdiction clause of
the Respondent-CEA contract. CEA Executive Vice
President Linville wrote Local 310 business manager
Terence Joyce that Respondent was engaged in an “area-
wide” campaign of filing grievances against the Employ-
ers.3 Joyce responded by letter that Local 310 would
picket and strike all projects if the disputed work was
reassigned. The Board found reasonable cause to believe
that the Respondent’s and Local 310’s strike threats con-
stituted 8(b)(4)(D) conduct to enforce their claims to the
disputed work, and awarded the forklift and skid steer
work to employees represented by Local 310. 360
NLRB No. 113, slip op. at 5–7.
The Respondent refused to comply with the Board’s
awards in both Donley’s I and II. It continued to process
the Goodyear pay-in-lieu grievance in Donley’s I and the

3 Donley’s was not named in this letter because the first of the sev-
eral grievances had not yet been filed against it.
pay-in-lieu grievances against the Employers in Donley’s
II. It also filed new pay-in-lieu grievances against Don-
ley’s and a new grievance against Cleveland Cement
after the Board issued Donley’s II.
DISCUSSION
As the judge correctly observed, the Board has long
held that a union’s pursuit of contractual claims to obtain
work that the Board has awarded in a 10(k) determina-
tion to another group of employees, or to secure mone-
tary damages in lieu of the work, violates Section
8(b)(4)(ii)(D). Machinists Lodge 160 (SSA Marine,
Inc.), 360 NLRB No. 64, slip op. at 3 (2014); Plasterers
Local 200 (Standard Drywall, Inc.), 357 NLRB 1921,
1923 (2011); Sheet Metal Workers Local 27 (E.P. Don-
nelly, Inc.), 357 NLRB 1577, 1578 (2011); and Marble
Polishers Local 47-T (Grazzini Bros.), 315 NLRB 520,
522–523 (1994). As the Board explained in Roofers Lo-
cal 30 (Gundle Construction), 307 NLRB 1429, 1430
(1992), enfd. 1 F.3d 1419 (3d Cir. 1993), “[s]uch post-
award conduct is properly prohibited under Section
8(b)(4)(D) because it directly undermines the 10(k)
award, which, under the congressional scheme, is sup-
posed to provide a final resolution to the dispute over
which group of employees are entitled to the work at
issue.” Applying these principles, we agree with the
judge that the Respondent’s maintenance of pay-in-lieu
grievances against the Employers after the Board issued
its 10(k) determinations, as well the subsequent filing of
new pay-in-lieu grievances, violated Section
8(b)(4)(ii)(D) by seeking to undermine the Board’s
award of the disputed forklift and skid steer work to em-
ployees that it did not represent.
In exceptions, the Respondent renews two defenses
raised and rejected by the Board in the 10(k) proceed-
ings: (1) Local 894 in Donley’s I and Local 310 in Don-
ley’s II engaged in collusion with the Employers to cre-
ate a sham jurisdictional dispute, and (2) the pay-in-lieu
grievances were lawful attempts to preserve the forklift
and skid steer work that employees it represented histori-
cally had performed. We affirm the judge’s rejection of
both defenses.
(1) With respect to collusion, the judge refused to
consider this defense on the basis that it was a “threshold
issue” decided in the 10(k) proceedings and was not sub-
ject to relitigation in a subsequent 8(b)(4)(D) unfair labor
practice proceeding. This determination is supported by
well-established precedent. See e.g. Standard Drywall,
supra, 357 NLRB at 1923 fn. 12. Nonetheless, even
were we to consider the evidence presented by the Re-
spondent, we would find it falls well short of establishing
collusion. The Respondent contends that collusion is
shown by Donley’s notification to Local 894 business
OPERATING ENGINEERS LOCAL 18 3
manager Bill Orr in Donley’s I, and the CEA’s notice to
Local 310 business manager Joyce in Donley’s II, that
the Respondent had filed pay-in-lieu grievances against
the Employers, which prompted the Local 894 and 310
strike and picketing threats. The Respondent asserts that
these threats were a “sham,” designed to trigger a 10(k)
award in favor of employees represented by Local 894
and 310. The Board, however, has previously rejected
such arguments as “mere supposition” in the absence of
supporting evidence. Grazzini Bros., supra, 315 NLRB
at 522. The Respondent proffered no such supporting
evidence in Donley’s I, Donley’s II, or the instant pro-
ceeding that even suggests that Local 894’s and 310’s
picketing and strike threats were the product of collusion
and not genuine. Operating Engineers Local 150 (R&D
Thiel), 345 NLRB 1137, 1140 (2005) (finding no evi-
dence of collusion where Teamsters told employer’s
president that it wanted him “to file a 10(k)” because of
claims for disputed work made by Operating Engineers).
Further, even had collusion been established, it would
not have precluded the 10(k) proceedings below because
the Respondent’s own threats to strike in Donley’s I and
II, and its strike in Donley’s I, were sufficient to establish
reasonable cause to believe that Section 8(b)(4)(D) had
been violated.4
(2) In assessing the Respondent’s work preservation
defense, the judge undertook a 2-part analysis. First, he
determined which employers comprised the CEA and
AGC multiemployer bargaining units represented by the
Respondent; second, he examined whether employees

4 We also reject the Respondent’s argument that the CEA, the Em-
ployers, and Local 310 colluded to create a sham jurisdictional dispute
in Donley’s II by “surreptitiously negotiating” the same language in the
work jurisdiction clause of the 2012–2015 CEA-Local 310 contract as
was in the 2009-2012 and 2012–2015 CEA-Respondent agreements.
Unlike the CEA-Respondent agreements which for years had specifi-
cally identified forklifts and skid steers in the work jurisdiction clauses,
the CEA-Local 310 agreements generally identified the tasks to be
performed by laborers and stated that equipment used to perform those
tasks was to be assigned to laborers. In April 2012, during contract
negotiations, Local 310 proposed, and the CEA agreed to, a revised
work jurisdiction clause that expressly stated that laborers’ work in-
cluded the operation of forklifts and skid steers.
Contrary to the Respondent, we see nothing nefarious or collusive in
the CEA and Local 310 negotiating this revised jurisdictional language.
At the time of their negotiations, the Respondent had commenced a
campaign in both Donley’s I and II to have forklift and skid steer work
assigned to their represented employees—work that Respondent repre-
sentatives Russell and Sink admitted had been given away “a long time
ago.” Considered in this context, we find that the agreement between
the CEA and Local 310 to revise their contractual work jurisdiction
provision in response to the Respondent’s attempts to obtain the disput-
ed work was not improper. As CEA official Linville explained, the
revision was simply to “clarify that Laborers use these pieces of
equipment to perform their duties” for the Employers which, as the
record shows, had been the case for many years.
represented by the Respondent, and principally those of
the Employers, in the multiemployer units performed the
disputed forklift and skid steer work for employers in
those units. As to the first factor, the judge found that
the appropriate CEA and AGC multiemployer bargaining
units consisted only of those employers who unequivo-
cally authorized the CEA and AGC to negotiate on their
behalf, and did not include employers who merely adopt-
ed the agreements subsequently negotiated by the CEA
and AGC. Applying this determination, the judge found
that the CEA-Respondent unit consisted of approximate-
ly 28 employers during the term of the 2012–2015
agreement, including Employers Donley’s, Cleveland
Cement, Precision, and Hunt, and that the employees of
all these employers were included in this multiemployer
unit. Because B & B Wrecking had not authorized CEA
to bargain on its behalf, the judge concluded that its em-
ployees were not included in the multiemployer bargain-
ing unit; rather, they constituted a separate unit. He
reached the same conclusion with respect to Donley’s
relationship to the AGC-Respondent unit, finding that
because the record failed to show unequivocally that
Donley’s had authorized the AGC to bargain on its be-
half for the 2010–2013 agreement, it was not included in
the multiemployer unit and its employees constituted a
separate unit.
Addressing the second factor, the judge applied the
principles of Carpenters (Prate Installations, Inc.), 341
NLRB 543, 544 (2004), by examining whether the Re-
spondent had met the required showing that the employ-
ees it represented performed the disputed forklift and
skid steer work, “and that it was not attempting to ex-
pand its work jurisdiction” (emphasis in original). He
found that the Respondent failed to make this showing.
He determined that except for two employees of Em-
ployer Precision, and several other employees of em-
ployers in the CEA bargaining unit, Employers Donley’s,
Cleveland Cement, and Hunt had always assigned the
disputed work to their Local 310-represented employees
rather than to their Respondent-represented employees.
The judge therefore concluded that by engaging in
8(b)(4)(D) conduct to secure all the disputed work for
employees it represented, including that which had al-
ways been performed by Local 310-represented employ-
ees, the Respondent’s “objective was not that of work
preservation, but rather work acquisition.”
The judge found that the Respondent’s work acquisi-
tion objective was “even more apparent” with respect to
Employer B & B Wrecking because its employees con-
stituted a unit separate from the CEA multiemployer
unit, and B & B had never assigned the disputed forklift
and skid steer work to employees represented by the Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
spondent. Similarly, because Employer Donley’s was a
separate unit and not part of the multiemployer AGC
unit, the judge concluded that the Respondent’s attempt
to have employees it represented perform all the disputed
work that Donley’s had consistently assigned to Local
894-represented employees demonstrated its objective to
acquire, rather than preserve, unit work.
The Respondent argues in exceptions that the judge
erred by finding that the appropriate units for analyzing
its work preservation defense consisted only of employ-
ers that assigned their bargaining rights to the CEA and
AGC. It contends, relying on Teamsters Local 282 (D.
Fortunato, Inc.), 197 NLRB 673, 675 fn. 10 (1972), that
the appropriate CEA and AGC units also included em-
ployers that were not members of the CEA and AGC but
that had adopted the agreements negotiated by both As-
sociations. The Respondent contends that this latter
group included “hundreds of employers” whose Re-
spondent-represented employees had performed the dis-
puted work. Thus, contrary to the judge, the Respondent
argues that it demonstrated its work preservation objec-
tive by showing that employees it represented performed
the disputed forklift and skid steer work in the appropri-
ately constituted CEA and AGC units.
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 appropriate, and whether Respondent–represented
employees in those units have ever performed the disput-
ed forklift and skid steer work, the relevant inquiry under
settled precedent is whether the Respondent was attempt-
ing to expand its work jurisdiction to employers whose
Respondent-represented 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. As
the judge found, the Employers’ forklift and skid steer
work had rarely been performed by Respondent-
represented employees, a fact that Respondent’s repre-
sentatives openly acknowledged. As discussed above,
during negotiations for a successor CEA-Respondent
contract in April 2012, Respondent negotiator Sink la-
mented that for “far too long” the Employers had been
assigning their forklift and skid steer work to employees
other than those whom Respondent represented and that
it was prepared to strike if such assignments continued.
Respondent official David Russell similarly remarked to
Donley’s, when threatening to strike the Goodyear pro-
ject over the assignment of forklift and skid steer work to
Local 894-represented employees, that “[w]e’re just try-
ing to get back what we gave away a long time ago.”
Thus, at best, the Respondent was attempting to acquire
assertedly long-lost work; this constitutes work acquisi-
tion, not work preservation. Donley’s II, 360 NLRB No.
113, slip op. at 5.5
In sum, we agree with the judge that by maintaining
the grievances in Donley’s I and II and by filing new
grievances after the Board’s 10(k) determinations in
those cases, the Respondent sought to undermine the
Board’s 10(k) awards and coerce the Employers to reas-
sign work awarded to Local 894 and 310-represented
employees to employees the Respondent represents.
Accordingly, by engaging in this conduct, the Respond-
ents violated Section 8(b)(4)(ii)(D).
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. May 6, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Karen Neilsen, Esq., for the General Counsel.
Timothy R. Fadel and William F. Fadel, Esqs., for the Re-
spondent.
Frank W. Buck, Meredith C. Shoop, and Mary Reid, Esqs., for
the Charging Parties.
Basil W. Mangano, Esq., for the Party in Interest, Laborers’
Local 310

5 The Respondent argues that “exclusivity of performance” is not a
prerequisite to a claim of work preservation and that the judge erred to
the extent that he relied on Prate Installations to find that its work
preservation defense required a showing that the employees it repre-
sented performed the work exclusively in the CEA and AGC units. We
reject the Respondent’s argument. Although the Board “considers
exclusivity as an important factor” to a work preservation defense,
Henkels & McCoy, supra, slip op. at 5 fn. 10 (2014), it does not consid-
er it a prerequisite and the judge did not so hold in rejecting the Re-
spondent’s work preservation defense.
OPERATING ENGINEERS LOCAL 18 5
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was
tried in Cleveland, Ohio, on November 6–7, 10, 12–14, and 17–
21, 2014. Donley’s Inc. (Donley’s) filed the charge in Case
08–CD–081840 on May 25, 2012, in Case 08–CD–091637 on
October 18, 2012, and in Case 08–CD–133957 on August 1,
2014. Hunt Construction Group, Inc. (Hunt) filed the charge in
Case 08–CD–091683 on October 19, 2012. Precision Environ-
mental Co. (Precision) filed the charge in Case 08–CD–091684
on October 19, 2012. The Construction Employers Association
(CEA) filed the charge in Case 08–CD–091686 on October 19,
2012. B & B Wrecking and Excavating, Inc. (B & B) filed the
charge in 08–CD–091770 on October 19, 2012. Cleveland Ce-
ment Contractors, Inc. (Cleveland Cement) filed the charge in
Case 08–CD–091773 on October 19, 2012, in Case 08–CD–
130178 on June 5, 2014, and an amended charge in that case on
September 26, 2014.1 On September 30, 2014, the General
Counsel issued an order consolidating cases, consolidated com-
plaint and notice of hearing (the complaint), which was amend-
ed at the hearing.
The International Union of Operating Engineers Local 18
(the Respondent) filed an answer denying the substantive alle-
gations of the complaint.
The complaint alleges that the Respondent violated Section
8(b)(4)(ii)(D) on February 20, 2012, by threatening to strike
Donley’s because it had assigned work to employees represent-
ed by Laborers’ Local 894 (Local 894) rather than employees
represented by the Respondent. The complaint also alleges that
the Respondent violated Section 8(b)(4)(i) and (ii)(D) of the
Act by engaging in a strike from February 22–23, 2012, at Don-
ley’s project at the Goodyear jobsite in Akron Ohio because
Donley ‘s assigned the operation of forklifts and skid steers on
that project to employees represented by Local 894 rather than
employees represented by the Respondent. The complaint fur-
ther alleges that on April 20, 2012, the Respondent violated
Section 8 (b)(4)(ii)(D) by threatening to strike Donley’s be-
cause it had assigned work to employees represented by Local
894 and to Laborers’ Local 310 (Local 310 )2 rather than em-
ployees represented by the Respondent. The complaint also
alleges that on April 30, 2012, the Respondent violated Section
8(b)(4)(ii)(D) by threatening to strike the CEA and the Em-
ployers because the Employers assigned the operation of fork-
lifts and skid steers to employees represented by Local 310
rather than employees represented by the Respondent. Finally,
there are a substantial number of complaint allegations that the
Respondent violated Section 8(b)(4)(ii)(D) of the Act by main-
taining and filing grievances with an object of forcing the Em-
ployers to assign the operation of forklifts and skid steers to
employees represented by the Respondent, contrary to two
earlier Section 10(k) awards where the Board awarded the work

1 At times Donley’s, Hunt, Precision, B & B, and Cleveland Cement
will be referred to as “the Employers” and the CEA will be referred to
separately. At times, the Employers and the CEA will be collectively
referred to as the Charging Parties.
2 At times Local 310 and Local 894 will be collectively referred to
as the Laborers.
to employees represented by the Laborers3 and Local 310.4
The Respondent’s answer denies the commission of any un-
fair labor practices and raises as an affirmative defense that its
actions, including the filing of grievances seeking money dam-
ages as a result of the Employers’ decision to assign the opera-
tion of forklifts and skid steers to someone other than an operat-
ing engineer, are for the purpose of preserving and protecting
work traditionally performed by employees represented by the
Respondent. The Respondent asserts that its work preservation
efforts cannot be found to be the subject of a violation of Sec-
tion 8(b)(4)(D) of the Act. After the issuance of the complaint,
the Respondent filed a motion for summary judgment with the
Board. On October 31, 2014, the Board denied the Respond-
ent’s motion.
On the entire record,5 including my observation of the de-
meanor of the witnesses,6 and after considering the briefs filed
by the General Counsel,7 the Charging Parties, and the Re-
spondent and I make the following
FINDINGS OF FACT
I. JURISDICTION
Donley’s, Precision, B & B, and Cleveland Cement are em-
ployers engaged in the construction industry with an office and
place of business located in Northeastern Ohio and annually
each purchases and receives goods valued in excess of $50,000
from points located outside the State of Ohio. Hunt is an em-
ployer engaged in the construction industry with a office and
place of business in Indianapolis, Indiana, and annually pur-
chases and receives goods valued in excess of $50,000 from
points located outside the State of Indiana. I find that the Em-
ployers are engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The CEA is a multiemployer bargaining association that rep-
resents construction industry employers in negotiating and ad-

3 Laborers Local 894 (Donley’s, Inc.), 360 NLRB No. 20 (2014)
(Donley’s I).
4 Operating Engineers Local 18 (Donley’s Inc.) 360 NLRB No.113
(2014) (Donley’s II).
5 Pursuant to an unopposed motion made by the Employers and the
CEA, I admitted into evidence the hearing records in both Donley’s I
and Donley’s II. Sections 102.91 and 102.92 of the Board’s Rules and
Regulations provide that the record of a 10(k) proceeding shall become
part of the record in an unfair labor practice proceeding under Section
8(b)(4) (D) of the Act.
6 In making my findings regarding the credibility of witnesses, I
have considered their demeanor, the content of the testimony, and the
inherent probabilities based on the record as a whole. In certain in-
stances, I credited some, but not all, of what a witness said. I note, in
this regard, that “nothing is more common in all kinds of judicial deci-
sions than to believe some and not all” of the testimony of a witness.
Jerry Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v.
Universal Camera Corp. 179 F.2d 749, 754 (2d Cir. 1950) revd. on
other grounds 340 U.S. 474 (1951). See also J. Shaw Associates, LLC,
349 NLRB 939, 939–940 (2007). In addition, I have carefully consid-
ered all the testimony in contradiction to my factual findings and have
discredited such testimony.
7 While at the trial I indicated I expected that the brief filed by the
General Counsel, as the proponent of the complaint, to set forth a rec-
ommended order and notice from my consideration (Tr. 2688), the brief
that was filed did not contain such a provision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ministering collective-bargaining agreements with various labor
organizations. Donley’s, Cleveland Cement, Hunt, and Preci-
sion have assigned their bargaining rights to the CEA and,
through the CEA, are signatories to separate contracts negotiat-
ed by the CEA with Local 310 and the Respondent. As those
employers have delegated bargaining authority to the CEA, and
each of those employers satisfies the applicable jurisdictional
standard, I find that the CEA is an employer within the mean-
ing of Section 2(2) of the Act.8
I find that the Respondent, Local 310, Local 894 and the
Ohio and Vicinity Regional Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America (Carpenters)
are labor organizations within the meaning of Section 2(5) of
the Act.
I. ALLEGED UNFAIR LABOR PRACTICES
Background
The Prior 10(k) Awards
Donley’s is a contractor engaged in concrete construction. In
May 2011, Donley’s began work at the Flats East Bank Devel-
opment project in Cleveland, Ohio. At this project, Donley’s
assigned forklift work to employees represented by Local 310.
At the time Donley’s was bound to agreement between Local
310 and the Construction Employers Association (CEA), a
multiemployer bargaining association that Donley’s was a
member of. The CEA agreement with Local 310 covers build-
ing construction work in Cuyahoga and Geauga Counties, and
thus covered the above noted project in Cleveland.
Donley’s was also signatory to a separate collective-
bargaining agreement covering building and construction work
between the Respondent and the CEA that was effective from
2009 to 2012. The Respondent’s agreement with the CEA was
applicable in the Ohio Counties of Ashtabula, Cuyahoga, Erie,
Geauga, Lake, Huron Lorain, and Medina. Thus, the Flats East
project was also within the geographical jurisdiction of this
agreement.
In November 2011, Donley’s began the construction of a
parking garage for Goodyear in Akron, Ohio. On the Goodyear
parking garage project Donley’s assigned forklift and skid steer
work to employees represented by Local 894. At the time Don-
ley’s was signatory to a building agreement between Local 894
and the Associated General Contractors of Ohio (AGC), anoth-
er multiemployer bargaining association. This agreement cov-
ered building and construction work in Summit, Portage, and
Medina Counties in Ohio, Akron is located in Summit County.
The Respondent also had an agreement with the AGC that
was effective from 2010 to 2013, that covered most of the
counties in Ohio, except for those covered by the Respondent’s
agreement with the CEA, and a few others. In Donley’s I,9 the
Board found that Donley’s had signed that agreement intermit-
tently since at least 1990.
In Donley’s I, the Board found that both the Respondent and
Local 894 and Local 310 had claimed the work in dispute (the
operation of forklifts and skid steers) for the employees they
respectively represent. The Board found that it had reasonable

8 Donley’s II, slip op. at 2 fn. 6 and cases cited therein.
9 Donley’s I, slip op. at 4.
cause to believe that Local 894 and the Respondent each had
used means proscribed by Section 8(b)(4)(D) to enforce their
claims for the work in dispute, and that there was no agreed-
upon method for voluntary adjustment of the disputes. Apply-
ing established criteria, the Board determined that employees
represented by Local 310 were entitled to perform the operation
of forklifts at the Flats East Development project in Cleveland,
Ohio and that employees represented by Local 894 were enti-
tled to perform the operation of forklifts and skid steers at the
Goodyear parking garage jobsite in Akron, Ohio.
In Donley’s II, the Employers and the CEA filed unfair labor
practice charges under Section 8(b)(4)(D) alleging that Local
310 and the Respondent had used proscribed means to claim
the operation of forklifts and skid steers on the Employers’
jobsites. The Board found that both the Respondent and Local
310 had made competing claims to the work, that both threat-
ened to use means proscribed by Section 8(B)(4)(D) to enforce
their competing claims for the work in dispute, and that there
was no agreed-upon method for the voluntary adjustment of the
dispute. After applying its traditional criteria, the Board deter-
mined that employees represented by Local 310 were entitled to
perform the operation of forklifts and skid steers on the Em-
ployers’ jobsites. Under the circumstances present in that case,
the Board determined that a broad area-wide award, coexten-
sive with the Employers’ operations where the two unions’
jurisdictions overlap, was appropriate. Accordingly, the Board
awarded work utilizing forklifts and skid steers to the employ-
ees of the Employers who were represented by Local 310 in the
area where their employers operate and the jurisdiction of Local
310 and the Respondent overlap.
After the Board issued its award in Donley’s I, the Respond-
ent indicated that it would not comply with the portion of the
award involving the Goodyear jobsite in Akron, Ohio.10 In
addition, the Respondent continued to process a pay-in-lieu
grievance against Donley’s regarding the assignment of fork-
lifts and skid steers on the Goodyear project under its agree-
ment with the AGC. After the Board’s award in Donley’s II, the
Respondent again indicated that it would not comply with the
10(k) award and that it would continue to process and file pay-
in-lieu grievances regarding the assignment of forklifts and skid
steer work to any employees not represented by the Respond-
ent. Accordingly, the instant consolidated complaint issued.
THE FACTS
The Disputed Equipment
There are essentially two types of forklifts: industrial fork-
lifts, sometimes referred to as towmotors, and all-terrain fork-
lifts, sometimes referred to as rough-terrain forklifts. Industrial
forklifts are motorized pieces of equipment that have four small
hard rubber tires and a set of forks that can be raised and low-
ered. Industrial forklifts are typically used on hard surfaces.
All-terrain forklifts are larger than industrial forklifts and are
equipped with four large rubber tires. As the name suggests,
all-terrain forklifts can travel over muddy and uneven surfaces.

10 With respect to Donley’s Flats East Development jobsite, the Re-
spondent had withdrawn its grievance concerning the disputed assign-
ment of forklifts based on the timeliness of its grievance.
OPERATING ENGINEERS LOCAL 18 7
All-terrain forklifts generally are equipped with forks placed at
the end of an extendable boom. Because of the extendable
boom, all-terrain forklifts are versatile pieces of equipment that
can be used in a number of ways, including hoisting materials
above the first floor of a building.
Skid steers are motorized pieces of equipment that either use
four rubber tires or a tracked wheel system. A “bobcat” is a
type of skid steer made by a particular manufacturer. Skid
steers often use a bucket attachment to transport or grade earth
and other materials. However, skid steers can also be operated
with other attachments such as saws, rollers, and a bulldozer
blade.
Both forklifts and skid steers are commonly used on con-
struction sites and are utilized in a variety of ways including the
transportation of materials, excavation, grading, trenching,
demolition, and sweeping.
The Multiemployer Agreements
The AGC is a multiemployer bargaining association that has
had a collective-bargaining relationship with the Respondent
since 1980. The most recent AGC agreement for “building
construction” with the Respondent was effective from May 8,
2013, through April 30, 2017, and applies to all counties in the
State of Ohio except Ashtabula, Cuyahoga, Geauga, Lake, Co-
lumbiana, Mahoning, and Trumbull, and includes four counties
in Kentucky. This agreement refers to the operation of forklifts
and skid steers as being within the work jurisdiction of the em-
ployees covered under the agreement. (L. 18 Exh. 179.)11 The
prior agreement between the AGC and the Respondent was
effective from May 1, 2010, through April 30, 2013 (GC Exh.
8). Both of these agreements make reference to forklifts and
skid steers as being within the jurisdiction of the employees
covered by the agreement.
The 1980–1983 AGC agreement with the Respondent identi-
fied “forklifts” as equipment operated by an operating engineer
under the terms of the agreement (L. 18 Exh. 178 A1 at p. 28).
The agreement also provided for an exclusive hiring hall. The
1983–1985 AGC agreement with the Respondent identified the
operation of forklifts “(All Types)” (L. 18 Exh. 178 A2 to at p.
28) as being covered under the agreement. This agreement also
included work preservation language in paragraph 22 indicating
“If an Employer violates paragraph 21, the Employer’s penalty
shall be to pay the first qualified and registered applicant the
applicable wage and fringe benefits from the first day of the
violation.12 The 1987–1989 agreement between the AGC and

11 The Respondent’s exhibits were introduced at the trial as a “Local
18” exhibit. For ease of reference I will refer to such an exhibit as a “L.
18 Exh.”
12 Paragraph 20 of that agreement states “that the work jurisdiction
of the Operating Engineers as assigned him by the AFL–CIO will be
respected and all Operating Engineer work will be performed by an
Operating Engineer.” At the trial, the uncontradicted testimony of
Richard Dalton, the Respondent’s president, was that both the Re-
spondent and the AGC have long accepted that the reference to para-
graph 21 in the 1983–1985 and subsequent agreements was in error and
should have referred to paragraph 20. Dalton further testified that this
error was corrected in the most recent contract between the AGC and
the Respondent and that paragraph 22 of the 2013–2017 agreement
states, if an employer violates Paragraph 20, the employer’s penalty
the Respondent continued to refer to forklifts as being within
the jurisdiction of employees working under the agreement.
The 1989–1992 AGC agreement with the Respondent was
amended to specifically include “Bobcat Type and/or Skid-steer
Loader” as equipment that was within the jurisdiction of the
employees working under the agreement. Later AGC agree-
ments continued to make reference to the operation of forklifts
and skid steers as being within the jurisdiction of employees
working under the agreement. The work preservation clause
and the exclusive hiring hall provisions that were contained in
prior agreements are contained in the two most recent agree-
ments between the AGC and the Respondent.
The CEA is a multiemployer bargaining association that has
had a history of collective-bargaining with the Respondent
since 1985.13 The CEA’s most recent contract with the Re-
spondent, which is effective by its terms that May 1, 2012
through April 30, 2015, applies to “building construction” in
the Ohio Counties of Ashtabula, Cuyahoga, Erie, Geauga, Hu-
ron, Lorain, and Medina. The work jurisdiction of employees
working under the agreement specifically includes forklifts and
skid steers. (GC Exh. 5.) The CEA agreement with the Re-
spondent effective from May 1, 2009, through April 30, 2012,
contains the same reference to forklifts and skid steers as being
within the work jurisdiction of employees working under the
agreement. (L.18 Exh. 178 B2) The previous agreements be-
tween the CEA and the Respondent since 1985 had all made
references to forklifts and a “Bobcat” or skid steer loader as
being within the work jurisdiction of employees employed
under the agreement.
The most recent collective-bargaining agreement between
the CEA and the Respondent contains a provision, paragraph
20, reflects, “that the work jurisdiction of the Operating Engi-
neers, as assigned by the AFL–CIO, will be respected and all
Operating Engineer work will be performed by an Operating
Engineer.” paragraph 21 of the CEA agreement states that “[i]f
the Employer assigns any piece of equipment to someone other
than the Operating Engineer, the employer’s penalty shall be to
pay the first qualified registered applicant the applicable wages
and fringe benefits from the first day of the violation.” The
CEA agreement with the Respondent also provides for an ex-
clusive hiring hall. The “work preservation” clauses and the
exclusive hiring provisions of the current agreement were con-
tained in the prior agreements between the CEA and the Re-
spondent.
The AGC has had a collective-bargaining relationship with
Local 894 but the record is not as fully developed as to the
length of that relationship. The most recent building agreement
between the AGC’s Akron division and Local 894 is effective
from June 1, 2012, through May 31, 2016 in the Ohio counties
of Summit, Portage, and Medina. (GC Exh. 7.) This agreement
provides a list of covered work classifications that includes the
forklifts and skid steers. The 2011–2012 agreement between
Local 894 and the AGC contains the same list of covered work

shall be to pay the first qualified registered applicant the applicable
wage and fringe benefits from the first day of the violation.
13 From 1980 to 1985 the AGC agreement was applicable to the
counties later covered by the CEA agreement with the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
classification. The 2012–2016 agreement also includes a provi-
sion stating that the operation of forklifts and skid steers “when
used in the performance of the aforementioned work jurisdic-
tions shall be the work of the Laborer.”
The 2009–2012 agreement between the CEA and Local 310
includes a jurisdictional clause that indicates that the agreement
applies “[w]here power is used in the moving, loading or un-
loading of concrete forms” and other materials as an adjunct to
carpentry work. The 2012–2015 agreement between the CEA
and Local 310 contains a revised jurisdictional clause that states
that the operation of forklifts and skid steers, used for the pur-
pose of tending a craft or in performance of work covered un-
der the agreement “shall be the work of the laborer. Any Em-
ployer not assigning work in accordance with this Section shall
be considered in violation of this Agreement.” (GC Exh. 6, p.
9.)
Donnelly’s Assignment of the Disputed Work
Donley’s concrete operations manager, Greg Przepiora, testi-
fied that he has been employed by Donley’s since March 1998.
Przepiora’s uncontradicted and credited testimony establishes
that during the time of his employment, Donley’s has employed
composite crews of employees represented by the Laborers and
the Carpenters in performing its concrete work. The carpenters
set and strip the forms that the concrete is poured into and the
laborers assist the carpenters by bringing materials where need-
ed. Donley’s practice has been to assign the operation of indus-
trial forklifts to employees represented by the Laborers for the
work of tending the carpenters and for the cleanup of the site.
The operation of industrial forklifts, at times, is also assigned to
employees represented by the Carpenters for the actual process
of setting and stripping the forms. All-terrain forklifts are gen-
erally assigned to employees represented by the Laborers but,
at times, Carpenters-represented employees also operate such
equipment. Skid steers are used primarily to clean up the jobsite
and Donley’s assigns this operation to employees represented
by the Laborers.14
Przepioira testified that Donley’s regularly uses Operating
Engineer-represented employees to operate cranes on its
jobsites. At times, Donley’s also utilizes operating engineers to
operate excavating equipment such as bulldozers, rollers, exca-
vators and backhoes.
According to the uncontradicted and credited testimony of
Przepiora and Dilley, pursuant to a request made by the Re-
spondent, a luncheon meeting was held in March 2010 at a
restaurant in the Cleveland area, between Przepiora and Dilley
and the Respondent’s business representatives, David Russell
and Michael Delong. At the meeting, the Respondent’s repre-
sentatives requested that Donley’s assign the operation of fork-
lifts and skid steers on its projects to employees represented by
the Respondent. Dilley responded that Donley’s had not previ-
ously utilized employees represented by the Respondent to
operate skid steers and forklifts. The Donley’s representatives
explained that there would be a substantial increase in labor

14 Przepiora’s testimony regarding the assignment practices of Don-
ley’s is corroborated by the testimony of Donley’s senior vice-president
of concrete operations, Michael Dilley, who began to work for Don-
ley’s in 2000.
costs if the work was assigned to employees represented by the
Respondent. Dilley told the Respondent’s representatives that
the laborers and carpenters may utilize this equipment for part
of a work day in order to perform their duties but not for the
whole day. Donley’s representatives indicated that assigning an
operating engineer to operate a piece of equipment on a full-
time basis when the equipment is not used for the entire day
would add to labor costs. They further indicated that the hourly
rate of an operating engineer was higher than the rate paid to a
laborer. Russell responded that that it might be possible to ad-
just the rates paid to employees represented by the Respondent
by assigning some apprentices to a forklift or skid steer. Russell
indicated that he would send to Dilley some rates for him to
consider. After the meeting, Russell did send Dilley some pro-
posed labor rates but Dilley took no action with respect to it.
The Goodyear Project
In October 2011, Donley’s began the construction of a new
parking garage for Goodyear in Akron, Ohio. Donley’s was the
construction manager for this project and also performed the
structural concrete work. On November 22, 2011, a prejob
conference was held between Przepiora and the Respondent’s
representatives, Russell and Joe Lucas, at Donley’s trailer at the
Goodyear site. Przepiora testified that at this meeting the par-
ties went over a “Pre-Job Conference” form utilized by the
Respondent. The form utilized at this meeting (GC Exh. 51)
outlines the parameters of the job and indicates the name of the
employer, whether there are any subcontractors, the type of
equipment needed, and the number of operating engineers
needed. According to Przepiora, the Respondent’s representa-
tives asked who would be assigned to operate the forklifts and
Przepiora responded, “carpenters and laborers.” Przepiora fur-
ther indicated that the operation of tower cranes would be as-
signed to operating engineers. At that point, Lucas stated “Let’s
see if these other crafts can run your tower cranes.’ Lucas also
said that the Respondent did not agree with this and he got up
and walked out of the meeting.
According to Przepiora, he then asked Russell if he could
have a copy of the agreement between Donley’s and the Re-
spondent because Przepiora did not have one. Russell stated
that Przepiora could not have one and the meeting was over.
Przepiora then left the trailer and walked outside to where Lu-
cas was getting into his truck. Przepiora spoke briefly to Lucas
who repeated his statement about seeing if the other crafts
could run the tower cranes before he left the jobsite.
Russell testified that in November 2011, after learning that
Donley’s was going to construct a parking garage for Goodyear
in Akron, Ohio, he called Przepiora. According to Russell, he
congratulated Przepiora on obtaining the work and told him that
they needed to meet and conduct a prejob conference. Russell
testified that after this conversation he contacted the Respond-
ent’s office and asked the individual who maintains contracts,
whether Donley’s was signatory to the existing AGC agree-
ment, since the Goodyear parking garage job occurred within
the jurisdiction of that agreement.15 Russell was informed that

15 Russell’s testimony did not include the name of the individual he
spoke to.
OPERATING ENGINEERS LOCAL 18 9
the Respondent did not have a copy of such an agreement.
According to Russell, after he observed work being per-
formed on the Goodyear site, he called Przepiora again and
reminded him that “we needed to get a contract and conduct a
pre-job.” Przepiora indicated that he would look into it and
obtain a copy of Donnelly’s AGC agreement with the Respond-
ent. Przepiora and Russell then agreed to meet and conduct a
prejob conference on November 22, 2011. Russell testified that
at the meeting he filled out the prejob conference form based on
the answers given to him by Przepiora. According to Russell, as
they neared the end of the completion of the form, he asked
Przepiora if he had been able to obtain a signed AGC contract
and Przepiora replied that he had not. Russell testified he then
stated that they could not conduct a prejob conference with a
contractor who was not signatory to an agreement and that the
Respondent’s representatives then refused to sign the prejob
conference form and left the meeting. Lucas did not testify at
the trial and Russell did not testify about anything that Lucas
said at the meeting.
The pre-job conference form reflects that it was completed in
its entirety except for the fact that it was not signed by either
party. As noted above, Russell testified that all the writing on
the form was his. I note that at the end of the form the follow-
ing appears: “assigning skid steers & forklifts to laborers &
carpenters assigning small equipment maintenance and opera-
tion to Teamsters. Local 18 does not agree.”
I find that neither the testimony of Przepiora or Russell is en-
tirely credible regarding this meeting. In making my findings
regarding what occurred at this meeting, I also considered the
testimony of Dalton, the Respondent’s president. Dalton testi-
fied that after the meeting with Prrzpiora, Russell and Lucas
contacted him to see if there was a record of Donley’s being
signatory to the AGC agreement. Dalton testified that he re-
searched the records at the Respondent’s headquarters and
could not find any evidence that Donley’s was signatory to the
then current AGC agreement. Dalton then called Richard
Hobbs, the executive vice president of the AGC, and asked him
if he could produce any documents showing that Donley’s had
assigned their bargaining rights to the AGC with respect to the
AGC contract with the Respondent. According to Dalton, when
Hobbs did not produce any evidence of Donley’s assignment of
bargaining rights, Dalton then contacted the Respondent’s
fringe benefit office which collects association dues from con-
tractors and then disburses those dues to the appropriate bar-
gaining association. Dalton testified he reviewed the prior 14
months of those dues records and could find no dues paid by
Donley’s during that period.
I note that the evidence is equivocal regarding whether Don-
ley’s was, in fact, an actual signatory to the 2010–2013 AGC
agreement in November 2010. In this connection, on April 20,
2010, Hobbs sent a letter to Sink with an attached list entitled
“AGC Ohio LRD/Operators Local 18 Signatory Contractors”
(L. 18 Exh. 187 p. 5). This document reflects that the name of
an employer appearing in bold type indicates that it was a cur-
rent signatory employer. With regard to an employer whose
name appears in regular type, the document reflects, “Have no
record of current status. Previously signatory to the agreement.”
The name Donley’s Inc. appears in regular type on this docu-
ment (L. 18 Exh. 187 p. 6). On the other hand, another docu-
ment introduced into evidence by the Respondent at the trial
indicates that Donley’s was bound by the 2010–2013 AGC
contract with the Respondent because it was a member of the
AGC and had assigned its bargaining rights to it (L. 18 Exh.
173D). 16 This document is corroborated by the Dilley’s testi-
mony that Donley’s paid dues to the AGC for 2010, 2011,
2012, 2013, and 2014 and the corresponding documents reflect-
ing those payments. (GC Exhs. 81A–G.)
I do not find credible Przepiora’s testimony that he asked
Russell for a copy of the agreement between Donley’s and the
Respondent and that Russell merely replied, “no.” Such testi-
mony is implausible given the testimony of Russell and Dalton
regarding the efforts they made, without success, to obtain a
current agreement between Donley’s and the Respondent in
November 2011. Rather, I find that Russell asked Przepiora if
he had been able to find a copy of a signed agreement between
Donley’s and the Respondent and Przepiora indicated that he
had not. On the other hand, I do not believe Russell’s testimony
that the only reason that he and Lucas refused to sign the prejob
conference form was because there was no evidence of a signed
agreement at that time. As noted above, the entire prejob con-
ference call form was filled out except for signatures. In Rus-
sell’s own handwriting, the prejob conference form indicates
that the Respondent did not agree with Donley’s decision to
assign skid steers and forklifts to laborers and carpenters. I
doubt that Russell and Lucas would go through the entire
lengthy pre-job conference form and specifically note on it the
Respondent’s dispute with the assignment of forklifts and skid
steers, if the only issue was the lack of any evidence of a signed
contract between Donley’s and the Respondent.
I note, in particular, that Przepiora’s testimony regarding
statements made by Lucas is uncontradicted as Lucas did not
testify and Russell did not testify regarding any statements
made by Lucas. I also find Przepiora’s testimony on this point
to be plausible when I consider the record as a whole. There-
fore, I credit Przepiora’s testimony that after he stated that Don-
ley’s was going to assign the operation of forklifts and skid
steers to employees represented by the Laborers and the Car-
penters and the operation of tower cranes to operating engineers
represented by the Respondent, Lucas stated “Let’s see how if
these other crafts can operate your tower cranes” and later re-
peated that statement. Accordingly, I find that Respondent’s
representatives refused to sign the prejob conference form be-
cause there was no evidence of a signed agreement between
Donley’s and the Respondent and because the Respondent dis-

16 This document, as will be explained in further detail later in this
decision, is a summary of the contractors who are members of, and
have assigned their bargaining rights to, the AGC. This document is
compiled and maintained as a regular business document by the Re-
spondent. Given the fact that a document introduced into evidence at
the trial by the Respondent reflects that Donley’s was bound to the
2010–2013 AGC agreement by virtue of assigning its bargaining rights
to the AGC, I question the diligence with which Russell and Dalton
undertook the search to determine whether Donley’s was signatory to
the AGC agreement. However, I do not doubt that they made one and,
at that time, the Respondent had not discovered the document that it
later introduced into evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
puted Donley’s assignment of the operation of forklifts and skid
steers to employees represented by Local 894 and the Carpen-
ters, rather than to employees represented by the Respondent.
Donley’s began the concrete work on the Goodyear garage
project in December 2011. Donley’s assigned the operation of
forklift and skid steer work to either employees represented by
Local 894 or the Carpenters. Donley’s also utilized two cranes
on the project which were operated by employees represented
by the Respondent.
According to Przepiora’s uncontradicted and credited testi-
mony, in the beginning of February 2012, he was at the Good-
year jobsite when he received a call on the radio informing him
that representatives of the Respondent were on the jobsite
“causing problems.” As Przepiora came out of Donley’s trailer,
he saw Russell and asked him what was going on. Russell stat-
ed that “he wanted Operators on the forklifts right now.” When
Przepiora responded that Donley’s had never done that, Russell
stated “You are going to do this, or I am going to shut this
motherfucker down.” (Tr. 306.) Przepiora told Russell that he
was not supposed to be on the job site without going through
orientation or signing a release form. Russell replied, “I am not
leaving the job site; you will have to call Akron’s finest to get
me off the job site.” Przepiora asked Russell to calm down and
Russell then stated, “We’re just trying to get back what we
gave away a long time ago. You guys have been fucking us for
30 years.” Russell left the job site shortly thereafter.
At the time of Russell’s visit to the jobsite, Donley’s was uti-
lizing a rough-terrain crane and two tower cranes that were
being operated by operating engineers represented by the Re-
spondent. There were also two all-terrain forklifts that had been
assigned to employees represented by Local 894 and several
industrial forklifts that were being operated by both Local 894
and Carpenters-represented employees.
On February 22, 2012, Russell began picketing at a gate at
the Goodyear jobsite. Other picketers join Russell including the
Respondent-represented employees working on the jobsite.
Because the tower cranes were not being operated, the jobsite
had to be shut down. Signs carried by some of the picketers
indicated: “I.U.O.E. Local 18 hereby protests against Donley’s
No contract.” Other picketers stationed at gates 2 and 3 carried
signs indicating: “This picket is not intended to prevent or en-
courage employees working for other employers from going to
work.”(L. 18 Exhs. 4 C and E.)
Przepiora called Donley’s executive vice-president, Donald
Dreier, and informed him that the jobsite was shut down be-
cause the Respondent was claiming that it did not have a signed
agreement with Donley’s. Dreier then spoke to Donley’s Gen-
eral Counsel Mary Reid. According to Dreier’s uncontradicted
testimony Dreier and Reid then had a conference call with Wil-
liam Fadel, the Respondent’s General Counsel. During this
conference call Fadel stated that Donley’s did not have a signed
agreement with the Respondent. Dreier, Reid and Fadel agreed
to meet in Fadel’s office the next day to discuss the picketing.
At the meeting between Dreier, Reid, and Fadel on February
23, the parties debated whether or not Donley’s was signatory
to an existing agreement with the Respondent and most of the
meeting was devoted to that topic. Dreier indicated to Fadel
that he was somewhat perplexed by the Respondent’s position
since Donley’s had just recently completed a parking garage for
Bridgestone in Akron, which was very similar to the Goodyear
project, and the issue of whether Donley’s was signatory to the
AGC agreement with the Respondent had never come up and
there had been no work stoppages. During the meeting, Reid
and Dreier raised the dispute between Donley’s and the Re-
spondent involving the assignment of forklifts and skid steers.
Fadel responded that the Respondent’s collective-bargaining
agreement indicates “that it was primarily their work to per-
form.” In order to resolve the strike, Dreier signed a collective-
bargaining agreement with the Respondent on February 23,
2012. This agreement is a one-page document reflecting that
Donley’s, “although not a member of the AGC of Ohio Labor
Relations Division, does hereby join in, adopt accept and be-
come a party to the collective-bargaining agreement heretofore
made by the AGC of Ohio Labor Relations Division with the
International Union of Operating Engineers, Local 18 and its
Branches, (AF L–CIO)” (GC Exh. 54). 17 After Dreier signed
the agreement Fadel indicated that the parties would have to
have another pre-job conference.
After Dreier signed the agreement binding Donley’s to the
AGC agreement, the strike ended at approximately noon on
February 23. That same day Dreier went to the Goodyear
jobsite and he and Przepiora met with Russell and Lucas and
conducted another prejob conference. At this meeting, the Re-
spondent’s representatives were again informed that the fork-
lifts will continue to be assigned to employees represented by
either Local 894 or the Carpenters and the skid steers would be
assigned to employees represented by Local 894. Both parties
signed the prejob conference form (GC Exh. 53).
The Initial Grievances Filed by the Respondent
On February 27, 2012, the Respondent filed a grievance
against Donley’s under the AGC agreement for failing to em-
ploy operating engineers on its forklifts and skid steers at the
Goodyear project. The grievance requested that Donley’s pay a
penalty under paragraph 22 of the AGC agreement to all quali-
fied referral registered applicants, in the amount of all applica-
ble wages and fringe benefits from the first day of the violation
and continuing thereafter for each forklift and skid steer until
the project’s completion. (GC Exh. 55)18
On the same date, the Respondent filed a similar pay-in-lieu
grievance against Donley’s under the CEA agreement concern-
ing the Flats East Development project in Cleveland, Ohio,
which involved Donley’s performance of structural concrete
work on a building. In accordance with Donley’s regular prac-
tice, the operation of forklifts and skid steers on this project
was assigned to composite crews of employees represented by
Local 310 and the Carpenters. As noted above, the Respondent
did not pursue this grievance because it was filed untimely.

17 The Board refers to such an agreement as a “me too” agreement.
Plumbers Local 669 (Lexington Fire Protection Group), 318 NLRB
347, 348 (1995).
18 Since the numerous grievances filed by the Respondent in this
case are identical in kind to this grievance, I will refer to such grievanc-
es as “pay-in-lieu” grievances, consistent with the description used by
the Board in Donley’s I and Donley’s II.
OPERATING ENGINEERS LOCAL 18 11
The April 20, 2012 Grievance Meeting
On April 20, 2012, representatives from the Respondent and
Donley’s met at the AGC office in Columbus for the third step
grievance meeting concerning the grievance filed over the as-
signment of forklifts and skid steers at the Goodyear project.19
Dalton and Business Representative Mark Totman represented
the Respondent. Reid, Dilley, and Przepiora were present for
Donley’s. The grievance was not resolved by the panel as it
split evenly.
During the discussions involving the grievance, the
uncontradicted and credited testimony of Dilley establishes that
Totman stated he was looking forward to coming to Cleveland
“to battle with Terry Joyce on this forklift and skid steer is-
sue.”20 (Tr. 1131–1132.) Dilley further testified that Totman
told the Donley’s representatives that they would be sorry on
May 1 when they needed the Operating Engineers and were
siding with the Laborers on this issue.21 (Tr. 1132.) Przepiora
uncontradicted and credited testimony corroborates that of Dil-
ley regarding the statement made by Totman and Prezpiora also
recalls that Dalton stated that Donley’s would be sorry in May
when negotiations began.
The April 2012 Negotiations Between the CEA and the Re-
spondent
Prior to the beginning of negotiations between the CEA and
the Respondent on April 4, 2012, Donley’s, Cleveland Cement,
and Precision had assigned their bargaining rights to the CEA
for both the negotiations involving the Respondent and Local
310. In this connection, on January 6, 2012, Linville sent a
letter to the Respondent enclosing a list of 28 employers, in-
cluding Donley’s, Cleveland Cement and Precision that had
assigned their bargaining rights to the CEA for the purposes of
negotiating a collective-bargaining agreement with the Re-
spondent. (GC Exhs. 20 B and C) 22 In June 2012, Hunt became
a member of the CEA and assigned its bargaining rights to the
CEA. (GC Exhs. 18 and 19.)
At the first bargaining meeting held on April 4, 2012, Timo-
thy Linville, CEA’s executive vice president, was present along
with the CEA’s bargaining committee, which was composed of
Rob DiGeronimo from Independence Excavating, Michael
Dyer from Richard Goettle Inc., Charles Fisher from Ruhlin
Company, and Jim Fox from Great Lakes Construction. 23The
Respondent’s bargaining committee consisted of Business

19 Under the AGC agreement, third step grievances are heard by a
six-member panel composed of an equal number of union and man-
agement representatives.
20 The record establishes that Terry Joyce is the business manager
for Local 310.
21 The record establishes that the then current CEA contract with the
Respondent expired on April 30, 2012.
22 Linville testified that in early 2011 the CEA amended its code of
regulations to provide that employers who were presently signatory to
the CEA agreement continued to assign their bargaining rights to the
CEA unless expressly revoked. Prior to this, a member had to expressly
designate the assignment of its bargaining rights prior to each contract
negotiation. (Tr. 55–66; GC Exhs. 11–12.)
23 Linville took notes during all of the bargaining meetings that were
approved by each party.
Manager Patrick Sink, Dalton and, at times, business repre-
sentative Premo Panzarello.
At the first bargaining meeting the Respondent made a pro-
posal (GC Exh. 21) to amend paragraph 21e of the then current
agreement to provide as follows:
If the Employer, or any Employer subcontractor, assigns any
equipment listed in exhibit A to someone other than a mem-
ber of the Operating Engineers bargaining unit, the Employer
shall pay, as liquidated damages, four times the applicable
hourly rate plus fringe benefits to the first qualified referral
registrant for all hours worked from the first day of a violation
to the last day of a violation. Under no circumstances shall the
Employer or Employer subcontractor remediate damages by
reassigning the operation of the equipment to an Operating
Engineer in order to create a jurisdictional dispute.
According to the uncontradicted and credited testimony of
Linville, Sink stated that the above-noted proposal was “intend-
ed to correct the situation where contractors had assigned the
equipment, forklifts, to other trades for too long and they want-
ed to put . . . a stop to that.” (Tr. 94.) CEA bargaining commit-
tee member Dyer responded by saying that it was the Re-
spondent’s fault for allowing this to happen and that he made
sure that his company used tracks on skid steers so they did not
have to face the issue.
The Respondent continued to assert the new quadruple dam-
age proposal at the meetings held on April 18 and 26. At the
meeting held on April 30, Victor DiGeronimo Jr. participated in
the place of Rob DiGeronimo, who was unable to attend. The
Respondent’s proposal for quadruple damages was still being
maintained. Victor DiGeronimo testified that, during the nego-
tiations that extended from the morning until 5:30 p.m., there
was a substantial amount of discussion regarding the assign-
ment of skid steers and forklifts. According to DiGeronimo’s
uncontradicted and credited testimony, Sink continued to ex-
press the position that the operation of forklifts and skid steers
was “their” work and that they wanted to use the penalty clause
to make sure that Operating Engineer-represented employees
performed that work. (Tr. 1071–1072.) According to Linville’s
uncontradicted and credited testimony, Sink stated the Re-
spondent’s executive committee had met in Columbus and was
ready to strike over the jurisdictional issue involving forklifts.
(Tr. 119–120.)
At one point the parties were caucusing in separate rooms
when Sink came to the CEA’s room and asked to speak to
DiGeronimo in the hallway. Sink told DiGeronimo that the
assignment of forklifts and skid steers may be a strike issue for
the Respondent. DiGeronimo responded by telling Sink that
“no one cares but me.”24 DiGeronimo went back into the Em-
ployer’s caucus rooms and told the other committee members

24 At the trial, DiGeronimo explained his response to Sink by indi-
cating that at the time the negotiations were being conducted the econ-
omy was in a recession; consequently there was very little work and the
other employers would not be affected by a strike. DiGeronimo testi-
fied that he did have concerns about the strike threat because his com-
pany, Independence Excavating, was involved at that time in the con-
struction of a large project, the Medical Mart, in downtown Cleveland.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
what Sink had said to him.25
Ultimately, on April 30, the Respondent withdrew its pro-
posal regarding quadruple damages for violations of the work
jurisdiction provisions of the agreement as part of the final
package to reach an agreement and the parties reached a tenta-
tive agreement that day. This agreement was ultimately ratified
by each party and became effective for the period from May 1,
2012 through April 30, 2015. (GC Exh. 5.)
The Respondent Continues to File Pay-In-Lieu Grievances
Dalton testified that in early September 2012, he and the Re-
spondent’s General Counsel, William Fadel, created what the
Respondent refers to as a “Miranda card” that was to be used
by all of the Respondent’s business agents in processing griev-
ances over the assignment of forklifts and skid steers. Accord-
ing to Dalton, the intended purpose of this card was to attempt
to “keep out of 10(k) hearings. (Tr. 2316.) The language con-
tained on the card (L. 18 Exh. 90) is as follows:
I have observed a breach of contract with your company. You
have assigned someone other than an operating engineer on
the [ ].
Our contract provides that the penalty for this breach is to pay
the first qualified registered applicant in the referral all appli-
cable wages and fringe benefits from the first day of the
breach.
I am not requesting nor can you correct this breach by a reas-
signment of the work.
The record establishes that after early September 2012, be-
fore a grievance was filed over the assignment of forklifts and
skid steers, the Respondent’s business agents would personally
observe an employee other than an operating engineer operat-
ing a forklift and skid steer, notify the Employer supervisor
onsite of that fact, and present the supervisor with the above-
noted card. Unless a business agent actually observed an em-
ployee other than an employee represented by the Respondent
operating the disputed equipment, a grievance would not be
filed.
Donley’s
In October 2012, Donley’s was the construction manager and
also performed the structural concrete work for a new student
center being built at Case Western Reserve University in Cleve-
land, Ohio. Consistent with its longstanding practice, Donley’s
assigned the operation of forklifts and skid steers to employees
represented by Local 310 and the Carpenters.
On October 16, 2012, the Respondent filed a pay-in-lieu
grievance alleging that Donley’s was in breach of the 2012–
2015 CEA agreement by failing to employ an operating engi-
neer on a forklift at the Case Western Reserve University
jobsite. ( GC Exh. 37). On April 26, 2013, the Respondent filed
another pay-in-lieu grievance alleging that Donley’s breached
the 2012–2015 CEA agreement by assigning someone other
than an operating engineer to operate a skid steer at the Case

25 Linville’s testimony corroborates that DiGeronimo relayed Sink’s
statement to the bargaining committee that the assignment of forklifts
and skid steers continued to be a possible strike issue.
Western Reserve University jobsite (GC Exh. 43).
Donley’s has a related company related company, Donley’s
Restoration Group (DRG), which performs concrete restoration
work on smaller jobs (under $3 million). In January 2013, DRG
was performing a job at the Key Tower parking garage in
Cleveland Ohio. Brian McCue, DRG’s general manager, testi-
fied that DRG normally employees about 7 employees on job
sites which include carpenters, finishers and laborers. McCue
indicated that he normally assigns forklifts and skid steers to
laborers but that they may also be assigned to a carpenter, de-
pending upon the nature of the project. McCue testified that on
the Key Tower project the operation of a skid steer was as-
signed to an employee represented by Local 310 and that fork-
lifts were assigned to employees represented by Local 310 and
the Carpenters. On January 14, 2013, the Respondent filed a
pay-in-in lieu grievance against Donley’s for assigning some-
one other than an operating engineer to operate forklifts at the
Key Tower project (GC Exh. 42).
In July 2014, Donley’s was performing structural concrete
work on the Cleveland Hilton Hotel. Donley’s assigned the
operation of forklifts and skid steers on this project to employ-
ees represented by either Local 310 or the Carpenters. On July
14, 2014, the Respondent filed a pay-in-lieu grievance alleging
that Donley’s breached the 2012–2015 CEA agreement by
failing to assign an operating engineer to the operation of fork-
lifts on this project (GC Exh. 47). On August 12, 2014, the
Respondent filed another pay in lieu grievance claiming that
Donley’s breached the CEA agreement for failing to assign an
operating engineer to the operation of a skid steer (GC Exh.
60).
Hunt
Hunt is engaged in construction management services and
the construction of structural concrete buildings on a nation-
wide basis. In October 2011, it began work on a project at
Cleveland Hopkins International Airport that involved the con-
struction of a new airport control tower and associated build-
ings. Hunt was both the construction manager and self per-
formed the concrete work on this job.
On December 16, 2011, Hunt entered into a project labor
agreement (PLA) with the Cleveland Building Trades Council
(GC Exh. 68). While Local 310 was signatory to the PLA, the
Respondent was not. The PLA indicates that all work per-
formed by Hunt or its subcontractors is required to be per-
formed with the “appropriate craft union signatory to this
agreement.” (GC Exh. 68, p. 5.)
Hunt took over the operation of cranes on the jobsite from
one of its subcontractors, All Crane, and signed an interim CEA
agreement with the Respondent on June 1, 2012. (L. 18 Exh. 53
A). On June 17, 2012, Hunt joined the CEA and assigned its
bargaining rights to it for the purpose of bargaining with the
Respondent (GC Exh. 19).26
David Miller was the project manager for the Cleveland
Hopkins job. Miller testified that on this job site Hunt had up to
three skid steers, two all-terrain forklifts, and some industrial

26 This document is mistakenly dated June 17, 2016. The record es-
tablishes that it was actually executed on June 17, 2012.
OPERATING ENGINEERS LOCAL 18 13
forklifts, all of which were assigned to Laborers-represented
employees. All cranes on the job site were assigned to employ-
ees represented by the Respondent.
On September 26, 2012, Russell came to the Cleveland Hop-
kins jobsite and informed Miller that he was filing a grievance
because he had observed a laborer operating an all-terrain-
forklift. On September 26, 2012, the Respondent filed a pay-in-
lieu grievance against Hunt alleging that it had violated the
2012–2015 CEA agreement by failing to employ an operating
engineer on a forklift (GC Exh. 35).
Cleveland Cement
Cleveland Cement is a concrete contractor involved in the
construction of buildings. It also performs “site work” which
involves the construction of sidewalks, retaining walls, curbs
and paving. John Simonetti is the vice president and part owner
of Cleveland Cement. Simonetti testified that for 25 years he
has been the general field superintendent in charge of day-to-
day operations including the assignment of personnel. Cleve-
land Cement may employ up to approximately 60 employees of
which 8 to 10 work full time for it throughout the year. Of the
full-time employees, two are carpenters, three are finishers,
three are laborers, and two are operating engineers.
According to Simonetti’s uncontradicted and credited testi-
mony, Cleveland Cement’s practice had always been to assign
Laborers-represented employees to forklifts and skid steers,
because those pieces of equipment do not operate on a full-time
basis, and it is more efficient to assign the operation of that
equipment to laborers who use them in conjunction with their
other duties.
Cleveland Cement performed work on the construction of a
new parking garage at the Tri-C Metro campus in Cleveland,
Ohio from approximately July 2012 to January 2013. In August
2012, Simonetti met with Russell and Don Taggart, business
representatives for the Respondent, for a prejob conference.
According to Simonetti’s uncontradicted and credited testimo-
ny, during this meeting, Russell requested that Cleveland Ce-
ment assign the operation of the forklifts and skid steers that
were on the project to employees represented by the Respond-
ent Simonetti responded that he was going to continue to assign
employees represented by Local 310 to operate that equipment
because it was not a full-time piece of equipment. Simonetti
explained that a laborer may operate a forklift or skid steer for
2 hours a day and the rest of the time would be performing
other laborers’ work. Russell and Taggart replied that they
understood his position but they wanted him to assign the oper-
ation of that equipment to operating engineers represented by
the Respondent. Simonetti declined to do so.
In August 2012, Cleveland Cement was involved in the con-
struction of a building at the MetroHealth Medical Center in
Middleburg Heights, Ohio, which is located in Cuyahoga
County, Ohio. On August 12, 2012, the Respondent filed a pay-
in-lieu grievance alleging that Cleveland Cement was in breach
of the 2012–2015 CEA agreement on the MetroHealth jobsite
by failing to employ operating engineers on a forklift and a skid
steer. (GC Exh. 32.)
On October 12, 2012, the Respondent filed a pay-in-lieu
grievance alleging that Cleveland Cement was in breach of the
2012–2015 CEA agreement at the Tri-C jobsite by failing to
employ operating engineers on three forklifts and one skid
steer. (GC Exh. 36.)
In March 2014, Cleveland Cement was involved in the con-
struction of a building at the East Bank Flats, Phase II project in
Cleveland, Ohio. On March 7, 2014, the Respondent filed a
pay-in-lieu grievance alleging that Cleveland Cement was in
breach of the 2012–2015 CEA agreement at the East Bank
Flats, Phase II project by failing to employ operating engineers
on two forklifts and a skid steer (GC Exh. 45).
In October 2014, Cleveland Cement was involved in the
construction of a building at the American Greetings jobsite in
Westlake Ohio. On October 1, 2014, the Respondent filed a
pay-in-lieu grievance alleging that Cleveland Cement was in
breach of the 2012–2015 CEA agreement at the American
Greetings jobsite by failing to employ operating engineers on
forklifts. (GC Exh. 46).
B & B
B & B is engaged primarily in the demolition of commercial
and industrial buildings. Brian Baumann is the president of B &
B and started working for the Company in 1990 as a laborer,
represented by Local 310. Baumann advanced to obtain the
positions of foreman, dispatcher, and general manager and has
been the president of B & B since approximately 2000. Bau-
mann testified that B & B adheres to the terms of the CEA
agreement with the Respondent, but did not recall the last time
that B & B had signed a CEA agreement with the Respond-
ent.27 Baumann also testified that B & B adheres to the CEA
agreement with Local 310. Baumann further testified that B &
B employs a regular work force of approximately 50 to 60 em-
ployees. Approximately 20 to 25 of those employees are oper-
ating engineers, 15 to 18 are laborers and 3 to 4 are truck driv-
ers represented by the Teamsters. According to Baumann, B &
B has always assigned forklifts and skid steers to Laborers-
represented employees.
In June 2012, B & B was working on the Cleveland Browns
Stadium project. B & B’s work involved the demolition of a
portion of the stadium prior to the commencement of new con-
struction in that area. Baumann testified that B & B utilized
four forklifts on this job site that had been assigned to Local
310-represented employees. B & B also employed Respondent-
represented employees on this job site that had been assigned to
operate an excavator and a mini-excavator. On June 5, 2012,
the Respondent filed a pay-in-lieu grievance alleging that B &
B was in breach of the 2009–2012 CEA agreement at the
Cleveland Brown Stadium project for failing to employ operat-
ing engineers on four forklifts.
Baumann met with Russell and Don Taggart, representatives
of the Respondent, for a step two meeting regarding this griev-
ance in late June 2012. According to Baumann’s uncontradicted

27 Evidence introduced by the Respondent establishes that B & B
was signatory to a “me too” 2009–2012 CEA agreement with the Re-
spondent, but was not a member of the CEA. (L 18 Exh. 171 D.) I note
that there is no affirmative evidence that B & B had assigned its bar-
gaining rights to the CEA prior to the 2012 negotiations between the
CEA and the Respondent or that it became signatory to the 2012–2015
CEA agreement with the Respondent in any fashion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
and credited testimony, Taggart stated that the Respondent was
claiming the right to have operating engineers operate the
towmotors used by B & B. Taggart offered to show Baumann
an agreement between the Operating Engineers and the Labor-
ers from 1952 in which such work had been assigned to the
Operating Engineers.28 Bauman replied that he did not need to
see that agreement. Baumann replied that B & B had tradition-
ally assigned the operation of the towmotors and skid steers to
employees represented by Local 310 in Cleveland and the sur-
rounding areas. Taggart suggested that the possible resolution
would be that the employees operating the towmotors would
become members of the Respondent as opposed to members of
Local 310. Baumann would not agree to assign the operation of
towmotors and skid steers to employees represented by the
Respondent. Baumann asked Taggart why the Respondent was
now seeking to have the work of operating forklifts and skid
steers assigned to employees it represented and Taggart indi-
cated that was how the Respondent intended to proceed at this
time. This meeting did not resolve the grievance.
Baumann testified that this meeting was not the first time
that he had discussed the assignment of the operation of fork-
lifts and skid steers with Taggart. Baumann recalled a conver-
sation that he had with Taggart in approximately 2001, after
Taggart had first become a business agent for the Respondent.29
Baumann testified that on that occasion he asked Taggart that if
B & B wanted to assign operating engineers to operate skid
steers, would the Respondent back him in a claim against Local
310, since employees represented by Local 310 had always
operated the skid steers. At that time Taggart indicated that was
not an argument that the Respondent was willing to engage in.30
In August 2012, B&B was involved in demolishing a build-
ing in Highland Hills, Ohio and had assigned employees repre-
sented by Local 310 to operate skid steers on this project. On
August 31, 2012 the Respondent filed a grievance alleging that
B & B had violated the 2012–2015 CEA agreement by failing
to employ operating engineers on four skid steers (GC Exh.
33).
In January 2013, B&B was demolishing a building on West
117 Street and Clifton Boulevard in Cleveland, Ohio. The Re-
spondent had one skid steer on this jobsite and its operation was
assigned to a Local 310-represented employee. On January 7,
2013 the Respondent filed a pay-in-lieu grievance alleging that
B & B had breached the CEA agreement by assigning someone
other than an operating engineer to a skid steer at the West 117

28 On February 3, 1954, the Laborers International Union of North
America (LIUNA) and the International Union of Operating Engineers
(IUOE) entered into a Memorandum of Understanding that provided
“forklifts and other similar type of equipment” will be operated by
members of IUOE ( L. 18 Exh. 82). In December 2012, LIUNA abro-
gated the 1954 agreement (L. 18 Exh. 83).
29 Baumann and Taggart had known each other for a long time and
Taggart had actually worked for B & B prior to becoming a business
representative for the Respondent.
30 I credit Baumann’s uncontradicted testimony on this issue. Tag-
gart did not testify at the trial. I find that since this conversation oc-
curred after Taggart had become a business representative for the Re-
spondent, Taggart was an agent of the Respondent within the meaning
of Section 2(13) of the Act.
Street at Clifton Boulevard demolition project. Approximately
week after the grievance was filed, Baumann met with Russell
to discuss the grievance. Russell stated that the grievance
sought eight hours of pay but offered to settle the grievance for
four hours pay. Baumann rejected the offer because he main-
tained his position that B & B does not assign operating engi-
neers to operate skid steers but rather assigns laborers to oper-
ate that equipment.
In July 2013, B&B was involved in the demolition of a park-
ing garage at Cleveland Hopkins Airport. B & B utilized two
skid steers on this project and assigned the operation to Local
310-represented employees. On July 24, 2013, the Respondent
filed a pay-in-lieu grievance alleging that the Respondent
breached the CEA agreement by assigning someone other than
an operating engineer to two skid steer loaders.
Precision
Precision is owned by members of the DiGeronimo family
and primarily performs demolition and environmental abate-
ment work. Anthony DiGeronimo is the principal officer of
Precision. Independence Excavating, Inc. (Independence) is
also owned by the DiGeronimo family and is involved in the
building construction business. Rob DiGeronimo is the princi-
pal officer of Independence.
Precision began operations in approximately 1991 and was
established in order to perform the demolition work on Inde-
pendence job sites. At the time of the hearing, Precision em-
ployed approximately 156 employees; 150 were Laborers-
represented employees and 6 were Carpenters-represented em-
ployees. At some jobsites, Precision will have as few as one
employee and on other job sites it may employ up to 50 em-
ployees.
The testimony of Superintendent Rick Dolejs and General
Superintendent Emory Wolf establish that Precision has histori-
cally assigned the operation of forklifts and skid steers to La-
borers-represented employees. However, the assignment of
such work to Laborers-represented employees has not been
done on an exclusive basis. Lee Keller is a member of the Re-
spondent who worked on a regular 40-hour week basis for Pre-
cision from 2011 to June 2013. Keller testified that during this
period of time he worked for Precision on a number of job sites
in the Cleveland, Ohio area and spent approximately 50 per-
cent of his workday operating a skid steer. Keller utilized a skid
steer to remove concrete, grade surfaces and perform demoli-
tion work. He also operated both industrial and all-terrain fork-
lifts for Precision during this period and utilized such equip-
ment to carry debris, remove concrete, and perform demolition
work. During this period of time, Keller specifically recalled
operating both forklifts and skid steers at the Horseshoe Casino
project in Cleveland, Ohio, and operating a skid steer in the
construction of a new aquarium in Cleveland. Keller operated a
forklift and a bobcat skid steer at Precision projects performed
for the Swagelock Corp. in Strongsville and Solon, Ohio. Final-
ly, Keller operated a bobcat and a forklift for Precision at the
Nestlé building project on W. 25th St. in Cleveland, Ohio. In
June, 2013, after his hours were reduced, Keller voluntarily left
Precision.
According to the uncontradicted testimony of Precision’s
OPERATING ENGINEERS LOCAL 18 15
general manager, Thomas Zuckowski, Precision employed
Timothy Russell, who was a member of the Respondent, from
approximately 2000 until 2013. Russell operated heavy equip-
ment on larger jobs, although Keller credibly testified that he
observed Russell operate a forklift in the Precision shop during
the period of 2011–2012
In September 2012, Precision was involved in a demolition
project for Nestlé at a building located on W. 25th St. in Cleve-
land, Ohio. Dolejs testified that while he was on the job site he
assigned a Local 310-represented employee to operate a skid
steer. As noted above, Keller, a member of the Respondent, had
also been assigned to operate a skid steer at the project. On
September 21, 2012, the Respondent filed a pay-in-lieu griev-
ance against Precision alleging that it had breached the 2012–
2015 CEA agreement by failing to employ an operating engi-
neer on a skid steer/bobcat (GC Exh. 34).
In October 2012, Precision began a job removing the asbes-
tos and demolishing the interior of the Hanna Annex building
in Cleveland, Ohio. According to Wolf’s uncontradicted and
credited testimony, approximately 2 weeks after the work be-
gan he, along with Anthony DiGeronimo and Zukowski , at-
tended a prejob meeting with Respondent’s representatives
Russell and Taggert at Precision’s offices in Independence,
Ohio. At this meeting, Russell asked who would be assigned to
operate the forklifts. DiGeronimo responded that laborers
would be operating the forklifts. According to Wolf, Russell
had an old agreement that indicated that the operation of fork-
lifts was the work of operating engineers. DiGeronimo re-
sponded that he was going to perform the job under Local 310’s
agreement which was up to date and named the equipment in
dispute as being Laborers’ work. Russell asked if Precision
would sign an updated agreement because he had not found
evidence that established that the Respondent was signatory
with Precision. DiGeronimo refused to sign another agreement.
At that time the parties shook hands and the meeting ended.
Precision assigned the operation of forklifts and skid steers
on the Hanna Annex project to employees represented by Local
310. On November 1, 2012, the Respondent filed a pay-in-lieu
grievance against Precision alleging that it had breached the
CEA agreement by assigning someone other than an operating
engineer to work on a forklift.
In January 2013, Precision was performing a job involving
the demolition of an exterior brick façade at the Westin Hotel/
Penton Media building in Cleveland, Ohio. Precision assigned
the operation of forklifts and skid steers to employees repre-
sented by Local 310 on this jobsite. On January 14, 2013, the
Respondent filed a grievance against Precision alleging that it
had breached the CEA agreement by assigning someone other
than an operating engineer on a forklift (GC Exh 40). Also on
January 14, 2013 the Respondent filed another grievance
against Precision alleging that it had violated the CEA agree-
ment by assigning someone other than an operating engineer on
a skid steer loader at this jobsite (GC Exh. 41).
As of the date of the hearing, all of the above noted griev-
ances remain pending, although the Respondent has agreed to
suspend the further processing of those grievances until the
resolution of the instant unfair labor practice proceeding.
Facts Relating to the Respondent’s Work Preservation Defense
As noted above, the CEA is a multiemployer bargaining as-
sociation that has a history of bargaining with the Respondent.
Prior to the commencement of negotiations in 2012, the CEA
submitted a list of 28 employers that had assigned their bar-
gaining rights to it to the Respondent. The recognition clause in
the 2012–2015 collective-bargaining agreement between the
CEA and the Respondent provides in relevant part (GC Exh.5,
p. 3):
The Association hereby recognizes the Union as the exclusive
collective bargaining agent for all Operating Engineers (with-
in the territory stated in Article 1) and the Union recognizes
the Association as the exclusive collective bargaining agent
for all Employers of the Operating Engineers . . .
This Agreement is negotiated by the Association acting as
negotiatingrepresentative for its members for whom it holds
bargaining rights . . .
The record establishes that an employer who is not a member
of the CEA and has not assigned its bargaining rights to it, may
also become bound by the CEA contract with the Respondent
by executing an “Acceptance of Agreement” provision located
at the end of the contract.31 This provision indicates in relevant
part (GC Exh.5, p. 62):
In consideration of the benefits to be arrived and other good
and valuable consideration, the undersigned Employer or suc-
cessors, although not a member of the CEA or has not as-
signed his bargaining rights, does hereby join in, adopt, accept
and become a party to the collective bargaining agreement
heretofore made by the CEA with the International Union of
Operating Engineers, Local 18 and its Branches (AFL–CIO,
including all of the provisions therein . . .
Finally, an employer may bind itself to the CEA agreement
with the Respondent by signing what the Respondent refers to
as a “CEA Short Form Agreement” The 2012–2015 short form
agreement (L. 18 Exh. 29) expressly states, in relevant part:
The Company is not represented by any employer bargaining
unit nor has any employer bargaining unit authority to act as
an agent for the Company; however, the Company agrees to
adopt and accept all the terms, wage rates and conditions of
the 2012–2015 CEA Building Agreement . . .
At the trial, Pamela Nanni, Dalton’s administrative assistant,
testified in detail regarding the computerized records that the
Respondent utilizes to identify the employers that are bound to
both the CEA and AGC agreements and the manner in which
she maintains those records. Dalton also testified in detail re-
garding the various ways in which employers become bound to
the AGC and CEA agreements and how the Respondent main-
tains its records regarding signatory employers. (Tr. 2238–
2245). Dalton testified that with respect to both the AGC and
the CEA, each association would inform the Respondent the

31 The Respondent internally refers to this type of an agreement as a
“CEA Book Agreement.” (L. 18 Exh. 104.) As noted previously, the
Board has referred to such agreements as a “me too” agreement. In this
decision I use both terms when referring to such an agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
names of the employers which each Association represents and
are negotiating on behalf of. The Respondent internally refers
to the employers bound to the multiemployer agreements by
virtue of assigning their bargaining rights to either the AGC for
the CEA as an “AGC-LRD company “ or a “ CEA-LRD com-
pany.”32 I found the testimony of Nanni and Dalton to be credi-
ble regarding this issue and further find that the Respondent’s
records of signatory contractors to both the CEA and the AGC
to be generally reliable evidence, with some exceptions which I
specifically note.
At the trial, the Respondent introduced a document (L. 18
Exh. 188) at that it had obtained from the CEA pursuant to a
subpoena. This document is a partially completed summary of a
list of the contractors who had assigned their bargaining rights
to the CEA from 1988 to 2014. The Respondent called Linville
as a witness to authenticate the document. Linville testified that
document was partially complete because all of the information
contained on it had not been verified by underlying documents.
According to Linville, there may be information on the sum-
mary that was not correct, there may be some contractors who
should be on the list and were not, and others may be on the list
but were not supposed to be. (Tr. 2292–2293.) Under the cir-
cumstances, I find this summary to be too unreliable to base
any findings on it regarding the history of a contractor in as-
signing its bargaining rights to the CEA. In reaching this con-
clusion, I note that the Board has long held that because mul-
tiemployer bargaining is consensual in nature, there must be
evidence of an employer’s unequivocal intent to be bound by
the actions of a multiemployer bargaining representative before
the employer’s employees become part of a multiemployer
bargaining unit. Plumbers Local 669 (Lexington Fire Protec-
tion Group), 318 NLRB 347, 348 fn. 14 (1995); Hunts Point
Recycling Corp., 301 NLRB 751, 752 (1991), and cases cited
therein; Ruan Transport Corp., 234 NLRB 241, 242 (1978).
Certainly, this partially completed summary is insufficient to
establish that the contractors listed on it unequivocally assigned
their bargaining rights to the CEA for the period covered by it.
As noted above, 28 employers were members of, and had as-
signed their bargaining rights to, the CEA at the time negotia-
tions began and were therefore bound to the 2012–2015 CEA
agreement with the Respondent. In addition, the Respondent’s
records establish that 9 employers signed a CEA book agree-
ment, (L 18 Exh. 171 A); 38 signed a CEA short form agree-
ment (L. 18 Exh. 171 B); and 4 additional employers became
members of the CEA and became bound to the CEA agreement
in that fashion. (L. 18 Exh. 171 C).
The Respondent’s records establish that 28 employers, in-
cluding Donley’s, Cleveland Cement, and Precision were
members of the CEA and bound to the 2009–2012 CEA agree-
ment with the Respondent. (L. 18 Exhs. 171 F) and 61 addi-
tional employers, including B & B, became signatory to the
agreement by signing a book agreement. (L. 18 Exhs171 D and
E; L. 18 Exh. 61).
There is no reliable evidence establishing the names and the
number of employers who were members of the CEA and had
assigned their bargaining rights to it for the 2006–2009 CEA

32 LRD refers to Labor Relations Division.
agreement with the Respondent. In this connection, the Re-
spondent introduced a record into evidence (L. 18 Exh. 171 H)
which reflects the name of only one employer who had as-
signed its bargaining rights to the CEA for the 2006–2009
agreement with the Respondent. Thus, for this period, the Re-
spondent’s records regarding the employers who had assigned
their bargaining rights to the CEA are incomplete. The Re-
spondent’s records do establish, however, that 29 employers,
including Donley’s, were bound to the 2006–2009 CEA agree-
ment with the Respondent by signing a “me too” book agree-
ment (L. 18 Exh. 171 G).
As noted above the AGC is a multiemployer association with
a long history of bargaining with the Respondent for an agree-
ment that covers most of the State of Ohio. The most recent
AGC agreement with the Respondent is effective from May 8,
2013, through April 30, 2017 (L 18 Exh. 179). The immediate-
ly preceding agreement between the parties was effective from
May 1, 2010, through April 30, 2013 (GC Exh. 8). Both of
those agreements have the identical language in the recognition
clause in article II. The relevant language provides:
The Association hereby recognizes the Union as exclusive
collective bargaining agent for all Operating Engineers (with-
in the geographical jurisdiction area stated in Article I), and
the Union recognizes the Association as the exclusive collec-
tive bargaining agent for all employers of the Operating Engi-
neers . . .
The persons, firms, corporations, joint ventures or other busi-
ness entities bound by the terms of this Agreement are re-
ferred to in this agreement as “Employer” or “Employers”.
The Employers and the Union by entering into this agreement
intend to and agree to establish a single multi-employer col-
lective bargaining unit. Any employer who becomes a party
to this agreement shall thereby become a member of the mul-
ti-employer collective bargaining unit established by this
Agreement.
Employers covered by this Agreement shall be free to desig-
nate their own representatives for the purpose of collective
bargaining and contract administration; however, such desig-
nation shall not affect the employer’s membership in the col-
lective bargaining unit established by this Agreement.
An employer may also become bound to the AGC contract
with the Respondent by executing an “Acceptance of Agree-
ment” provision located at the end of the contract.33 (GC Exh.
8, p. 78.) This language provides in relevant part:
In consideration of the benefits to be derived and other good
and valuable consideration, the undersigned contractor or suc-
cessors, although not a member of the AGC of Ohio Labor
Relations Division, does hereby join in, adopt, accept and be-
come a party to the collective bargaining agreement hereto-
fore made by the AGC of Ohio Labor Relations Division with
the International Union of Operating Engineers, Local 18 and
its Branches (AFL–CIO) . . .

33 The Respondent internally refers to this type of an agreement as
an “AGC Book Agreement.” (L. 18 Exh. 104.)
OPERATING ENGINEERS LOCAL 18 17
Finally, an employer may become bound to the AGC con-
tract with the Respondent by executing a short form agreement.
The 2013–2017 short form agreement (L. 18 Exh. 210) contains
the following relevant language:
The Company is not a member of any multi-employer bar-
gaining group a labor agreement with the Union.
The Company is not represented by any employer bargaining
unit nor has any employer bargaining unit authority to act as
an agent for the Company; however, the Company agrees to
adopt accept all the terms, wage rates and conditions of the
2013–2017 Ohio Building Agreement . . .
The Respondent’s records establish that for the 2013–2017
AGC contract with Respondent there were 27 employers who
had assigned their bargaining rights to, and were members of,
the AGC and therefore bound to the contract on that basis (L.
18 Exh 172 D); 67 employers executed an AGC book agree-
ment (L. 18 Exhs. 172 A and B); and 40 executed the AGC
short form agreement (L. 18 Exh. 172 C). None of these rec-
ords reflect that Donley’s was signatory to the agreement in any
fashion.
The Respondent’s records establish that for the 2010–2013
AGC contract with the Respondent there were 73 employers
who had assigned their bargaining rights to and were members
of, the AGC and therefore bound to the contract on that basis
(L. 18 Exh. 173 D and E.) As I noted previously, Donley’s Inc.
is included in this record as an employer who was signatory to
the 2010–2013 AGC contract with the Respondent by virtue of
its membership in, and the assignment of its bargaining rights
to, the AGC (L. 18 Exh. 173 D). The Respondent’s records
further establish that 86 employers became signatory to the
2010–2013 AGC contract with the Respondent by having
signed a book agreement (L. 18 Exhs.173 A and B) and that 43
employers became signatory to that agreement by executing a
short form agreement (L. 18 Exh. 173C).
The Respondent’s records establish that for the May 1,
2007–April 30, 2010 AGC contract with the Respondent there
were 518 employers who had assigned their bargaining rights to
the AGC and were bound to the contract on that basis (L. 18
Exh. 174 E–P); 99 were signatory to the agreement by virtue of
their execution of the book agreement (L. 18 Exh. 174 A–C);
and 22 became signatory to the agreement by executing a short
form agreement. (L. 18 Exh. 174 D). None of these records
reflect that Donley’s was signatory to the agreement in any
fashion
The Respondent’s records establish that for the AGC con-
tract with the Respondent that was effective from May 1, 2004,
through April 30, 2007, there were 93 employers were bound to
the contract by virtue of their membership in the AGC (L. 18
Exhs. 175 E and F); 100 employers were signatory to the
agreement by virtue of their execution of a book agreement and
three employers became signatory to the agreement by execut-
ing a short form agreement (L. 18 Exh. 175 D). None of these
documents reflect that Donley’s was signatory to the agreement
in any fashion.
The above-noted evidence establishes that there are a signifi-
cant number of employers that have become bound to both the
CEA and AGC contracts with the Respondent for the past sev-
eral years. In support of its defense that its actions in this case
support a work preservation defense, the Respondent called a
substantial number of employee witnesses to testify regarding
their operations operation of forklifts and skid steers for em-
ployers who were signatory to either or both the CEA and AGC
agreements with the Respondent in some fashion.34
In this connection, Jennifer Miller testified that she has been
a member of the Respondent since entering its training program
in 2005 and that she received her OSHA certification for the
operation of forklifts prior to becoming a journeyman operating
engineer. Miller testified that she has operated a forklift or skid
steer for approximately 85 to 90 percent of her total work
hours. Specifically with respect to the issues relevant to the
instant case, in 2007 Miller was employed by Brand Scaffold to
operate a forklift on a building project at the Coshocton Ethanol
plant. The Respondent’s records reflect that Brand Scaffold was
signatory to a “me too” AGC book agreement with the Re-
spondent for the 2007–2010 contract (L. 18 Exh. 174 A) and
that this job site was located within the jurisdiction of the AGC
agreement with the Respondent. In 2013 Miller was employed
by R. G Smith Co. and operated a forklift for a substantial peri-
od of time in at the Timken Steel plant in Canton Ohio. The
Respondent’s records reflect that R.J. Smith was bound to the
2010–2013 AGC agreement with the Respondent and is cur-
rently bound to the 2013–2017 AGC agreement with the Re-
spondent by virtue of assigning its bargaining rights to the
AGC (L. 18 Exhs. 173 E and 172B).
Julana Eakin testified that she is a member of the Respond-
ent and received a certification for the operation of forklifts
during the Respondent’s training program, which she complet-
ed in 2012. Shortly afterwards, Eakin was referred to a job for
the Schnabel Foundation Co. operating a forklift during the
construction of a new wing at a University Hospital building in
Cleveland, Ohio. The Respondent’s records do not reflect the
manner in which Schnabel was bound to the 2012–2015 CEA
agreement with the Respondent. In June 2014 Eakin was em-
ployed by Brandenburg for 2 weeks performing demolition
work with a skid steer on a building project at the Ford plant in
Avon Lake, Ohio. During this project Eakin witnessed approx-
imately 20 skid steers being operated by Operating Engineer-
represented employees. The Respondent’s records establish that
Brandenburg was signatory to a “me too” CEA book agreement
that expired on April 30, 2012 (L. 18 Exh. 171 D). There is no
evidence, however, reflecting that Brandenburg was signatory
to the 2012–2015 CEA Agreement with the Respondent. In the
summer of 2014, Eakin was employed for approximately 1
month by Foundation Services Corp. operating a skid steer
during the construction of a new building for American Greet-
ings in Westlake, Ohio. Foundation Services Corp. was signato-
ry to a 2012–2015 short form CEA agreement with the Re-

34 In furtherance of its work preservation defense, the Respondent
also introduced evidence establishing that the Respondent has four
training facilities located throughout the State of Ohio where it has
offered forklift and skid steer training since at least 1983. In this con-
nection, the Respondent’s members receive training in the operation of
those pieces of equipment and can receive a certification reflecting that
they have successfully completed training designed for operators of
such equipment as required by OSHA.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
spondent (L. 18 Exh. 171 B). Eakin estimated that approxi-
mately 70% of her work on building and demolition projects
has been the operation of forklifts and skid steers.
William Harris is a member of the Respondent and was em-
ployed by Forest City Erectors from August 2011 to August
2012 at the Cleveland Medical Mart construction project in
Cleveland, Ohio. During this period, Harris spent six or seven
hours a day on a forklift unloading trucks and transporting sup-
plies and material. Forest City Erectors has been a member of
the CEA since 1988, and by virtue of an assignment of its bar-
gaining rights to the CEA, was bound to both the 2009–2012
and 2012–2015 CEA agreements with the Respondent (L. 18
Exh.171F; GC Exh. 20).
Philip Latessa testified that he is been a member of the Re-
spondent since 1979. From 2009 until June 2014 Latessa
worked for Independence Excavating (Independence) on a reg-
ular basis. Independence was bound to the 2009–2012 and
2012–2015 CEA agreement with the respondent by virtue of
having assigned its bargaining rights to the CEA (L. 18 Exh.
171F; GC Exh. 20). During the time that Latessa was employed
by Independence he, at times, operated a skid steer, although he
primarily operated other equipment such as excavators and
bulldozers. In approximately 2012, Latessa was employed by
Independence at the Medical Mart project in Cleveland and
operated a skid steer in addition to other equipment for a period
of 4 to 6 weeks. During this period Independence utilized 4 to 6
skid steers on the project. Some of the skid steers on that pro-
ject were operated by employees represented by the Respond-
ent and others were operated by employees represented by Lo-
cal 310. Latessa also operated a skid steer for Independence in
approximately 2013 at the Cleveland Clinic Project in Strongs-
ville Ohio. Latessa also operated a skid steer for Independence
at the East Bank Flats project in 2013. At some time during the
period from 2011 to 2013, Latessa also operated a skid steer for
Independence at the Horseshoe Casino project in Cleveland,
Ohio.
Latessa testified that in approximately May 2013 he was
working on a jobsite for Independence during the construction
of an automobile dealership for the Collection Auto Group in
the Cleveland, Ohio area. Latessa was operating a mini-
excavator on this job then observed a laborer operating a skid
steer and told the superintendent on the job, David Bevan, that
the laborer was not supposed to be operating the skid steer.
Bevan told him that “people that talk don’t work.” Latessa told
Bevan that threatening him because he was objecting to some-
thing that was not right was a problem. Bevan did not respond
and the conversation ended.
In approximately May 2014, Latessa was operating a skid
steer for Independence during the construction of a Mini
Cooper dealership for the Collection Auto Group in the Cleve-
land, Ohio area. Kevin DiGeronimo came up to Latessa and
told him that he did not want him to operate the skid steer.
DiGeronimo told Latessa, “All we want is the skid steers.”
Latessa replied that “they have always been ours, they have
never been anybody else’s” and added “if this is how it is going
to be you might as well lay me off because this is not going to
work.” DiGeronimo said “Well I know how this is going to
end.” They shook hands and Latessa was shortly thereafter laid
off.
Michael Cobb has been a member of the Respondent since
1995 and possesses a certification for the operation of both all-
terrain and industrial forklifts. In 2001, Cobb operated an all-
terrain forklift for Mosser Construction during construction
work at Oberlin College in Lorain County, Ohio for an 8 month
period. By virtue of its membership in the CEA and its assign-
ment of its bargaining rights, Mosser Construction was bound
to the CEA agreement with the Respondent that was effective
in 2001 (L. 18 Exh. 150 A) In approximately 2012 Cobb was
employed by Mickelson to operate an all-terrain forklift for 8
months at the Medical Mart project in Cleveland, Ohio. Mick-
elson was signatory to a 2009–2012 CEA book agreement with
the Respondent (L. 18 Exh. 171D; L. 18 Exh. 188 p. 5). In
2013, Cobb operated an industrial forklift for Tesar Industrial
at the at the Ford plant building projects in Avon Lake, Ohio.
By virtue of the assignment of its bargaining rights to and
membership in the CEA, Taser Industrial was bound by the
2012–2015 CEA agreement with the Respondent (GC Exh. 20).
Ronald Hannon has been a member of the Respondent for
approximately 25 years and is certified in both the operation of
industrial and all-terrain forklifts. In 2010 Hannon operated an
all-terrain forklift for Richard Goettle, Inc. (Goettle) for 4 days
on the Horseshoe Casino project in Cleveland, Ohio. By virtue
of its assignment of its bargaining rights to and membership in
the CEA, Goettle was bound to the 2009–2012 and 2012–2015
agreement between the CEA and the Respondent (L. 18 Exh.
171 F; GC Exh. 20). From June through September 2014, Han-
non was employed by Forest City Erectors operating an indus-
trial forklift during renovations at First Energy Stadium (for-
merly Cleveland Browns Stadium) in Cleveland, Ohio. On this
project, Hannon worked with another member of the Respond-
ent who also operated a forklift. As noted above, Forest City
Erectors was bound to the 2012–2015 CEA agreement with the
Respondent by virtue of assigning its bargaining rights to the
CEA.
Richard Pavelecky has been a member of the Respondent for
approximately 26 years. In approximately 2009 he worked for
Independence operating a skid steer for approximately 6 to 7
months at a building project at Cuyahoga Community College
in Cleveland, Ohio. At various times from 2012 to 2014,
Pavelecky again operated a skid steer for Independence at the
Medical Mart project in Cleveland, Ohio. In 2014 Pavelecky
operated a skid steer for Independence during the construction
of a Mini Cooper dealership in Brookpark, Ohio. As noted
above, during this period Independence was bound to the CEA
agreement with the Respondent by virtue of having assigned its
bargaining rights to the CEA.
John McAllister has been a member of the Respondent since
approximately 2011. In 2012, McAllister operated a bobcat
skid steer in addition to other equipment for Marous Brothers
on a building project at Fairview Hospital in Cleveland, Ohio
that lasted approximately a year. In 2013, McAllister again
operated a skid steer for Marous Brothers on a building project
for approximately 6 months. Marous Brothers was bound to the
2009–2012 and 2012–2015 CEA agreement with the Respond-
ent by virtue of having assigned its bargaining rights to the
CEA. To (L. 18 Exh. 171 F; GC Exh. 20). At the time of the
OPERATING ENGINEERS LOCAL 18 19
hearing in November 2014, McAllister had been employed by
Precision Engineering for six months operating a bobcat skid
steer for the construction of a new building at Kent State Uni-
versity in Portage County, Ohio County, which is within the
jurisdiction of the AGC agreement with the Respondent. The
Respondent’s records establish that Precision Engineering had
last formally assigned its bargaining rights to the AGC for the
agreement that expired in 2010 (L. 18 Exh. 174 M). Precision
Engineering is signatory, however, to a CEA book agreement
with the Respondent for the 2012–2015 contract. (L Exh. 18
171 A)
Everee Springer is a member of the Respondent and com-
pleted the Respondent’s training program in approximately
2005. In 2013, Springer was employed by McCarl’s for three
months operating an all-terrain forklift on a construction project
at the Timken plant in Canton Ohio. McCarl’s was last bound
to the AGC agreement with the Respondent by virtue of its
membership in the AGC for the 2007–2010 contract (L. 18
Exh. 174 K). In 2014, Springer was employed by Independence
and operated a forklift and skid steer at multiple locations in
Northeastern Ohio in projects for First Energy involving the
construction of infrastructure for high tension wires. Springer
estimated that in the past five years she has spent approximate-
ly 75 percent of her time operating a forklifts and skid steers.
Dewayne Lewis has been a member of the Respondent since
September 1998 when he entered its training program. In 2005,
Lewis was employed by Gem Industrial and operated both a
forklift and skid steer for approximately 4 months during the
construction of a new building at the Jeep plant in Toledo,
Ohio. In 2006 Lewis operated both a forklift and skid steer for
Gem Industrial for approximately a month on a construction
project at First Solar in Perrysburg, Ohio. These projects oc-
curred within the jurisdiction of the AGC agreement with the
Respondent. The Respondent’s records indicate Gem Industrial
was signatory to the 2007–2010 AGC agreement with the Re-
spondent by virtue of its membership in the AGC (L. 18 Exh.
174 H). From 2006 to 2008, Lewis was employed by Industrial
Power Systems (Industrial) on the construction of a new sul-
phur recovery unit and operated a forklift for the majority of the
time. After that Lewis worked for Industrial for approximately
2 weeks on a construction project at the General Motors plant
in Toledo, Ohio. By virtue of assigning its rights to the AGC,
Industrial was bound to the 2007–2010 AGC agreement with
the Respondent (L. 18 Exh. 174 I). Industrial executed a 2010–
2013 AGC book contract with the Respondent (L. 18 Exh. 173
A). From August 18, 2014, through November 11, 2014, Lewis
was employed by Jeffers Crane operating a forklift on a con-
struction project at Toledo Refining Co. in Toledo, Ohio. Jef-
fers Crane was bound to the 2010–2013 AGC agreement with
the Respondent.35 Lewis testified that over the course of his
career that he spent approximately 45 percent of his time oper-
ating a forklifts and skid steers for employers signatory to a

35 I cannot determine precisely the manner in which Jeffers Crane
was bound to the 2010–2013 AGC agreement because the Respond-
ent’s records reflect both that it was a member of the AGC (L. 18 Exh.
173 D) and that it executed a 2010–2013 book AGC agreement (L.
18Exh. 173 A).
contract with the Respondent in the Northwest Ohio area.
Hazeanne Tansel testified that she had been a member of the
Respondent since 2007 when she entered its training program.
Prior to graduating from the Respondent’s training program in
2011, Tansel had become certified in the operation of both
industrial and all-terrain forklifts. In 2008, Tansel operated a
forklift for KVM Door (KVM) which was involved in con-
structing a new addition to the GM Powertrain plant in Toledo,
Ohio. The Respondent’s records do not indicate if KVM was
bound to the 2007–2010 AGC agreement but do reflect that it
was bound to the 2010–2013 agreement.36 Tansel was also
employed operating a forklift for approximately 2 months by
Henry F. Teichman (Teichman) during the construction of a
new furnace for Johns Manville in the Toledo, Ohio area. The
Respondent’s records reflect that Teichman was signatory to a
2010–2013 AGC book agreement (L. 18. Exh. 173 B).
Robert Morales has been a member of the Respondent since
1982 and is certified in the operation of industrial and all-
terrain forklifts. Beginning in 2012 for approximately 2 ½
years, Morales operated an all-terrain forklifts for Miller Broth-
ers Construction during the construction of a new addition to a
building at the Honda plant in Russell’s Point, Ohio. Miller
Brothers Construction was signatory to the 2007–2010 AGC
agreement by virtue of its membership in the AGC (L. 18 Exh.
174 K), but the Respondent’s records do not reflect whether it
has been a signatory contractor since then.
Patricia Trego has been a member of the Respondent since
1993. Trego testified that although she could not specifically
recall the date, at some period between 2001 and 2009, she
operated a forklift and a skid steer for R. G. Smith Co. during
the construction of a new building at the Smucker’s facility in
Orrville, Ohio. The Smucker’s facility is located in Wayne
County, Ohio, which is within the jurisdiction of the AGC
agreement with the Respondent. As noted above, RG Smith Co.
was signatory to the 2010–2013 and 2013–2017 agreements but
there is no evidence that it was signatory to an AGC agreement
prior to that. At some time during the period from 2001 to 2009
Trego worked for Graycor and operated a skid the steer at the
Conesville Ohio powerplant in Conesville, Ohio. This
powerplant is located in Wayne County, Ohio which is within
the jurisdiction of the AGC. Graycor was signatory to the
2007–2010 AGC agreement by virtue of its membership in the
AGC (L. 18 Exh. 174 I)
Tara Maroney testified that she has been a member of the
Respondent for approximately 26 years. In 2010 she was em-
ployed by Carls and operated both a skid steer and a forklift at a
project done for the Timken Steel Company in Canton, Ohio.
The work involved the rehabilitation of an existing facility and
Maroney worked on the project over the course of 6 months.
By virtue of its membership in the AGC, Carls was bound to
the 2007–2010 AGC agreement (L. 18 Exh. 174 K).
Joseph Baumgartner completed the Respondent’s training

36 I cannot determine precisely the manner in which KVM was
bound to the 2010–2013 AGC agreement because the Respondent’s
records reflect that it was a member of the AGC (L. 18 Exh. 173 D),
and executed a short form AGC agreement (L. 18 Exh. 173 C) and a
book agreement (L. 18 Exh. 173 A).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
program in 2014. In 2011 while still in the training program,
Baumgartner operated an all-terrain forklifts for Parks Drilling
(Parks) for approximately a month during the construction of
the building at that Good Samaritan Hospital in Clifton, Ohio
which is located within the jurisdiction of the AGC agreement.
By virtue of assigning its bargaining rights to the AGC, Parks
was bound to the 2007–2010 AGC agreement (L. 18 Exh. 174
L). Also on 2011, Baumgartner was employed by Nelson Stark
for a couple of days operating a skid steer during the construc-
tion of a casino in Cincinnati, Ohio. Nelson Stark was signatory
to a 2010–2013 AGC book agreement (L. 18 Exh. 173 B). In
2014 Baumgartner operated a skid steer for 1 week while work-
ing for Tallview Palladium on the construction of a building at
Central State University in Wilberforce, Ohio. This job was
performed within the jurisdiction of the AGC and Tallview
Palladium was signatory to a short form AGC agreement that
expired in 2013 (L 18. Exh. 173 C).
Rita Moerlein has been a member of the Respondent since
April 1979 and is certified in the operation of both industrial
and all-terrain forklifts. From 2008 through 2012, Moerlein
operated forklifts and skid steers on several occasions while
employed by Goettle on various jobs within the jurisdiction of
the AGC. Goettle was bound to the 2007–2010 AGC agreement
by virtue of its membership in the AGC (L. 18 Exh. 174 I ). In
this connection, in 2008, Moerlein was employed on an all
terrain forklift for approximately 5 weeks on a jobsite for Fidel-
ity Financial in a Northern Kentucky County within the juris-
diction of the AGC. In 2011, Moerlein operated an all-terrain
forklift for approximately 2 months during the construction of
the Horseshoe Casino in Cincinnati, Ohio. In 2012, Moerlein
operated a skid steer and an all-terrain forklift during the con-
struction of a new wing at Christ Hospital in Cincinnati, Ohio.
In 2012, Moerlein also worked on a all-terrain forklift and a
skid steer during the construction of the Miami Valley Medical
Building in Troy, Ohio. Moerlein testified that she has spent
approximately 1/3 of her career operating forklifts and skid
steers on unionized building and construction projects.
Evan Cansler became a member of the Respondent upon en-
tering its training program in 2002 and has a certification in the
operation of all-terrain and industrial forklifts. In 2013 Cansler
was employed by Sofco and operated an all-terrain forklift for
approximately 2 to 3 weeks in Groveport, Ohio, which is within
the jurisdiction of the AGC. Although Sofco was bound to the
2010–2013 AGC agreement, I am uncertain as to the precise
basis upon which it is bound because the Respondent’s records
demonstrate that it signed an AGC book agreement (L. 18 Exh.
173 B) and is also bound to the AGC agreement as a member of
the AGC (L. 18 Exh. 173 E). In 2014 Cansler operated a skid
steer for 2 days for Foundation Services during the construction
of fire station in Columbus, Ohio.
Lora Cline has been a member of the Respondent since 1992
and has a certification for the operation of both all-terrain and
industrial forklifts. In 1998, Cline began operating a skid steer
and all-terrain forklift for Baker during the construction of the
Nationwide Arena in Columbus, Ohio, and worked on this pro-
ject for approximately 2 years. Later, in 2001, Cline operated
an all-terrain forklift for Baker during the reconstruction of the
Ohio State University football stadium. The Respondent’s rec-
ords reflect that Baker was bound to the 2007–2010 AGC
agreement by virtue of its membership in the AGC (L. 18 Exh.
174 F). From October 2011 to October 2012, Cline was em-
ployed by Smoot Construction operating a forklift during the
construction of the Hollywood Casino in Columbus, Ohio.
According to the Respondent’s records, Smoot was signatory to
a short form 2010–2013 AGC agreement.
Kevin Lloyd has been a member of the Respondent since
1989. In 2008, he operated an all-terrain forklift for 3 months
for Parks Drilling during the construction of a computer build-
ing in New Albany, Ohio. Parks Drilling was bound to the
2007–2010 AGC agreement by virtue of its membership in the
AGC (L. 18 Exh. 174 L). In the same time period, Lloyd oper-
ated a forklift for an undetermined period for Industrial Power
Systems during the construction of an ethanol plant in Marion,
Ohio. Industrial was bound to the 2007–2010 AGC agreement
by virtue of its membership in the AGC (L. 18 Exh. 174I). In
2014, Lloyd operated a forklift for an undetermined period of
time for Selinsky Force during the construction of a warehouse
in Columbus, Ohio. Selinsky Force is signatory to a short form
2013–2017 AGC agreement (L. 18 Exh. 172C).
In further support of its claim that its actions in this case
constitute lawful attempt to preserve bargaining unit work his-
torically performed by its members, the Respondent introduced
evidence of employees who had been referred to operate fork-
lifts and skid steers, pursuant to the exclusive hiring hall provi-
sions of the AGC and the CEA agreements, to employers bound
by those agreements, for the period from January 2010 to Octo-
ber 2014. To this end, the Respondent attached an accurate
summary of these referrals to its brief as “Attachment C: Refer-
ral Summaries Index.”This summary is based on the credible
testimony of Dalton regarding this issue; the Respondent’s
hiring hall referral records (L. 18 Exhs. 180, 181 and 182–186);
and the evidence regarding all employers who were bound, in
any manner, to the AGC and CEA agreements during the Janu-
ary 1, 2010 to October 2014 time frame (L. 18 Exhibits 171–
175).37 This summary reflects that during the above-noted time
period, the Respondent referred 391 employees to operate a
forklift or skid steer to an employer bound to the CEA or AGC
agreement in some fashion.
The Respondent also introduced evidence regarding letters of
assignment which contractors sent to the Respondent specifical-
ly indicating that they had assigned the operation of specified
equipment to employees represented by the Respondent. Nanni
testified that when she receives a letter of assignment from a
contractor she transcribes the information contained in the letter
to a “Letters of Assignment” list. (L. 18 Exh. 177.) This docu-
ment lists the names of contractors and the equipment that was
assigned to operating engineers represented by the Respondent.
As relevant to this case, this document reflects the name of
contractors which have assigned bobcats, forklifts and skid

37 To the extent the evidence summarized in Attachment C contains
referrals that do not reflect specifically the agreement that the employer
was signatory to, I have not considered those referrals as I deem such
evidence to be insufficiently reliable for my purposes. Only referrals
made to employers who were signatory to either the CEA or AGC
agreement in some fashion are relevant to the Respondent’s work
preservation defense.
OPERATING ENGINEERS LOCAL 18 21
steers to operating engineers represented by the Respondent.
The Respondent has attached to its brief “Attachment A: As-
signment List Index” which reflects the names of contractors
who have made specific assignments of Bobcats, forklifts and
skid steers to employees represented by the Respondent. The
summary also reflects if the contractor has been bound to either
the CEA or AGC agreement since 2010. The “Letters of As-
signment” list introduced into evidence, however, does not
reflect the time period covered by the letters of assignments
that are compiled in that list. In reviewing the evidence, as it is
summarized in “Attachment A,” I have only considered as-
signments by contractors that were bound by either the AGC
for the CEA agreement. Based on my review of the evidence, I
find that there have been 174 instances where contractors, sig-
natory to either the CEA or AGC agreement in some fashion,
have specifically assigned the operation of bobcats, forklifts,
and skid steers to employees represented by the Respondent. As
noted above, however, there is no evidence establishing the
time frame during which these assignments have occurred.
Finally, the Respondent contends that the settlement of a
number of grievances that it filed with employers bound to
either the CEA or AGC agreements, over the assignment of
forklifts and skid steers to employees not represented by the
Respondent, serves to support its work preservation defense. In
this connection, the Respondent introduced evidence regarding
the settlement of 10 such grievances during the period of 2012
and 2013. After duly considering the matter, I do not find the
fact that these grievances were settled by the employers in-
volved by payment of a penalty in the form of lost wages to the
first eligible applicant in the Respondent’s hiring hall supports
the argument that the Respondent’s actions were taken in fur-
therance of a lawful work preservation claim. The settlement of
a grievance may occur for any number of reasons. The fact that
these particular employers did not choose to contest the Re-
spondent’s grievance over the assignment of forklifts or skid
steers does not serve to support the Respondent’s position in
this case.
Analysis and Conclusions
Section 8(B)(4)(D) makes it an unfair labor practice for a un-
ion:
(i) to engage in, or induce or encourage any individual em-
ployed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or refusal in the
course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles,
materials or commodities or to perform any services; or (ii) to
threaten, coerce or restrain any person engaged in commerce
or in an industry affecting commerce, where in either case an
object thereof is:
. . .
(D) forcing or requiring any employer to assign particular
work to employees in a particular labor organization or in a
particular trade, craft, or class rather than to employees in an-
other labor organization or another trade, craft, or class, unless
such employer is failing to conform to an order or certification
of the Board determining the bargaining representatives for
employees performing such work. . . .
As I noted above, in Donley’s I and Donley’s II the Board is-
sued prior 10(k) awards involving the parties and the Respond-
ent indicated it would not comply with those awards. The
Board’s decision in Longshoremen ILWU Local 6 (Golden
Grain), 289 NLRB 1 (1988) discusses in detail the relationship
between a 10(k) proceeding and a proceeding under Section
8(B)(4)(D) of the Act. There, the Board indicated that evidence
of noncompliance with a 10(k) determination, while not an
independent basis to find a violation of Section 8(B)(4)(D),
serves as a triggering event for the issuance of a complaint. Id.
at fn. 3. The Board further indicated that when a 10(k) deter-
mination does not end the work dispute, the proceeding be-
comes adjudicatory following of the issuance of an unfair labor
practice complaint, and that the Board must find by a prepon-
derance of the evidence that the Respondent’s conduct violated
Section 8(B)(4)(D).
In support of the complaint allegations, the General Counsel
and the Charging Parties contend that the Respondent violated
Section 8(b)(4)(ii)(D) in early February 2012, at the Goodyear
jobsite in Akron, Ohio, when Russell threatened to shut the
jobsite down unless Donley’s assigned the operation of forklifts
to employees represented by the Respondent.
The General Counsel and the Charging Parties further con-
tend that the Respondent violated Section 8(b)(4)(i) and (ii)(D)
on February 22 and 23, 2012 when the Respondent engaged in
a strike and picketed the Goodyear jobsite when an object of
the strike and picketing was to obtain the assignment of the
operation of forklifts and skid steers to employees represented
by the Respondent.
The General Counsel and the Charging Parties allege that on
April 20, 2012, the Respondent violated Section 8 (b)(4)(ii)(D)
by threatening to strike Donley’s because it had assigned work
to employees represented by Local 894 and to Local 310 rather
than employees represented by the Respondent. The General
Counsel and the Charging Parties also allege that on April 30,
2012, the Respondent violated Section 8(b)(4)(ii)(D) by threat-
ening to strike the CEA and the Employers because the Em-
ployers assigned the operation of forklifts and skid steers to
employees represented by Local 310 rather than employees
represented by the Respondent.
Finally, the General Counsel and the Charging Parties con-
tend that the Respondent violated Section 8(b)(4)(ii)(D) by
filing and pursuing grievances with an object of forcing the
Employers to assign the operation of forklifts and skid steers to
employees represented by the Respondent, contrary to the earli-
er 10(K) awards in Donley’s I and Donley’s II.
In defense of the complaint allegations, the Respondent as-
serts, as it did in the Donley’s I and Donley’s II, that the under-
lying jurisdictional dispute occurred as a result of collusion by
the Charging Parties and the Laborers and should not be the
subject of a Section 8(b)(4)(D) proceeding.
The Respondent’s primary defense is that the actions alleged
in the complaint, primarily its pursuit of the above-noted griev-
ances, are lawful attempts to preserve unit work traditionally
performed by its members within the AGC and CEA multiem-
ployer bargaining units and thus do not constitute a violation of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
Section 8(b)(4)(D) of the Act.
The Respondent further contends that its picketing of the
Goodyear project in February 2012, was lawful representational
picketing designed to protest Donley’s alleged failure to sign
the AGC agreement and was not related to the purported juris-
dictional dispute regarding forklifts and skid steers. The Re-
spondent contends that support for its position is shown by the
fact that it removed the picket line immediately upon Donley’s
execution of a contract clearly binding it to the AGC agreement
with the Respondent.
After considering the entire record and the arguments of the
parties, I find that the Respondent has violated Section
8(b)(4)(i) and (ii)(D) of the Act as alleged in the complaint.
The Alleged Collusion Issue
In Donley’s I slip op. at 5 fn. 6, the Board rejected the Re-
spondent’s claim that Donley’s and Local 894 engaged in col-
lusion to create a jurisdictional dispute. In Donley’s II slip op.
at p. 5 fn. 10 the Board rejected the Respondent’s argument that
there was collusion between the Charging Parties and Local
310. Plasterers Local 200 (Standard Drywall, Inc.), 357 NLRB
No. 160 slip op. at 3 fn. 12 (2011), makes it clear that the issue
of collusion is a threshold issue in a 10(k) proceeding that is not
subject to relitigation in an unfair labor practice proceeding
under Section 8(b)(4 (D). Accordingly, since the Board has
considered this threshold issue in both Donley’s I and Donley’s
II and found no merit to it in either case, I find that allegations
of collusion do not serve as a defense to the instant 8(b)(4)(D)
complaint.
The Threats to Picket and the Picketing
The record establishes that since at least 1998, Donley’s
practice has been assign the operation of forklifts and skid
steers to employees represented by the Laborers and, at times,
the Carpenters. As set forth above, in March 2010, at a meeting
between Respondent’s representatives Russell and Delong and
Donley’s representatives Przepiora and Dilley, the Respond-
ent’s representatives requested that Donley assign the operation
of forklifts and skid steers on its projects to employees repre-
sented by the Respondent. Donley’s did not acquiesce in this
request. In November 2011, at a prejob meeting at the Good-
year garage project between the Respondent’s representatives
Russell and Lucas and Przepiora, the Respondent’s representa-
tives asked who would operate the forklifts on the job and
Przepiora indicated that they would be assigned to employees
represented by the Laborers and the Carpenters. At that point,
Lucas stated “Let’s see if these other crafts can run your tower
cranes” and the Respondent’s representatives left the meeting
without completing the Respondent’s prejob conference form.
In December 2011, Donley’s began the concrete work on the
Goodyear garage project. Consistent with its practice, Donley’s
assigned the operation of forklift and skid steer work to either
employees represented by Local 894 or employees represented
by the Carpenters. Donley’s also utilized two tower cranes and
a rough-terrain crane on the project which were operated by
employees represented by the Respondent.
In early February 2012, Russell came to the Goodyear
jobsite and told Przepiora that “he wanted operators on the
forklifts right now.” When Prezepiora responded that Donley’s
had never done that, Russell stated, as set forth in greater detail
above, that unless Prezpiora complied with his demand, Rus-
sell would shut the jobsite down. Before he left the job site,
Russell stated told Prezpiora that the Respondent was “just
trying to get back what we gave away a long time ago.” It is
clear that when considered in the context of the background
evidence, Russell’s February 2012 statements constituted a
threat to picket or strike in order to require Donley’s to assign
the operation of forklifts to employees represented by the Re-
spondent rather than to employees represented by Local 894 or
the Carpenters in violation of Section 8(b)(4)(ii)(D). Iron
Workers Local 433 (Swinerton Co.), 308 NLRB 756, 761
(1992); New Orleans Typographical Union No. 17 (E.P. Rivas,
Inc.), 152 NLRB 587 (1965), enfd. 368 F.2d 755 (5th Cir.
1966).
On February 22, 2012, the Respondent began picketing Don-
ley’s jobsite at the Goodyear parking garage with signs reflect-
ing “I.U.O.E. Local 18 hereby protests against Donley’s no
contract.” 38 The employees represented by the Respondent
were operating the rough-terrain crane and the tower cranes on
the project joined the picketing and consequently the jobsite
had to be shut down.
On February 23, Donley’s executive vice-president, Dreier,
and its’ general counsel, Reid, met with the Respondent’s gen-
eral counsel, William Fadel. While most of the meeting was
devoted to whether Donley’s was signatory to an agreement
with the Respondent, Reid and Dreier raised the ongoing dis-
pute between the parties involving the assignment of forklifts
and skid steers. Fadel responded that “ it was primarily their
work to perform.” In order to resolve the strike, Dreier signed a
one-page “me too” agreement binding Donley’s to the terms of
the Respondent’s existing agreement with the AGC. After Don-
ley signed the agreement, the picketing and strike ended on
February 23.
As I have noted above, the evidence is equivocal as to
whether Donley’s was in fact signatory to the existing AGC
agreement with the Respondent prior to the meeting of Febru-
ary 23. It is not necessary to resolve that issue definitively,
however, because even if one object of the strike and picketing
was recognitional, the evidence establishes that an object of the
strike and picketing was to require Donley’s to assign the oper-
ation of forklifts and skid steers to employees represented by
the Respondent rather than employees represented by Local
894 or the Carpenters. My conclusion in this regard is support-
ed by Lucas’ statement in November 2011, suggesting that the
Respondent would remove operating engineers it represented
from the operation of the tower cranes at the Goodyear project
unless Donley’s assigned the operation of forklifts and skid
steers to Respondent-represented employees; and Russell’s
February 2012 unlawful threat to shut down the jobsite unless
Donley’s immediately assigned the operation of forklifts to
employees represented by the Respondent. The Board has long

38 The Respondent does not contend, nor is there any evidence, that
Donley’s was not applying the terms of the existing AGC agreement to
the employees represented by the Respondent who were working on the
jobsite.
OPERATING ENGINEERS LOCAL 18 23
held that a strike or picketing is within the ambit of Section
8(b)(4)(D) as long as one object is to coerce an employer to
assign work to employees represented by particular union ra-
ther than to employees represented by another union. Operating
Engineers Local 17 (Arby Construction), 324 NLRB 454 fn. 2
(1997); Roofers Local 30 (Gundle Construction), 307 NLRB
1429 (1992), enfd. 1 F.3d 1419 (3d Cir. 1993); Teamsters Local
50 (Schnabel Foundation), 295 NLRB 68, 70 (1989); Mill-
wrights Local 1026 (Intercounty Construction), 266 NLRB
1049, 1051–1052 (1983). Accordingly, because an object of the
Respondent’s strike and picketing of the Donley’s job site at
the Goodyear parking garage in Akron, Ohio on February 22
and 23, 2012, was to compel Donley’s to reassign the operation
of forklifts and skid steers to employees represented by Re-
spondent, I find that the strike and picketing violated Section
8(b)(4)(i) and (ii)(D) of the Act.
As noted above, on February 27, 2012, the Respondent filed
a pay-in lieu grievance against Donley’s under the AGC
agreement for failing to employ operating engineers on its fork-
lifts and skid steers at the Goodyear parking garage project. On
April 20, 2012, representatives from the Respondent and Don-
ley’s met at the AGC office in Columbus for the third step
meeting concerning this grievance. At this meeting, the Re-
spondent’s representative Totman stated that he was looking
forward to coming to Cleveland “to battle” with the business
manager of Local 310 over the forklift and skid steer issue.
Totman then told the Donley’s representatives present at the
meeting that they would be sorry on May 1 when they needed
the Operating Engineers and were siding with the Laborers on
this issue. Dalton also stated that Donley’s would be sorry in
May when the negotiations began. The record establishes that
the then current CEA contract with Respondent expired on
April 30, 2012. I find that Totman and Dalton’s statements
constituted an implied threat to engage in a strike against Don-
ley’s in order to require it to assign the operation of forklifts
and skid steers to employees represented by the Respondent
rather than to Laborers-represented employees. Accordingly, I
find that by these statements the Respondent violated Section
8(b)(4)(ii)(D) of the Act.
On April 30, 2012, at a bargaining session with the CEA, the
Respondent’s business manager Sink continued to assert that
the operation of forklifts and skid steers was the work of Re-
spondent-represented employees and that the Respondent want-
ed to use its proposed quadruple damages proposal to make
sure that employees it represented performed that work. During
the bargaining session, Sink stated that the Respondent was
ready to strike over the jurisdictional issue involving forklifts.
In a private conversation with Victor DiGeronimo Jr., one of
the members of the CEA’s negotiating team, Sink again stated
that the issues regarding the assignments of forklifts and skid
steers may be a strike issue for the Respondent. It is clear that
Sink’s statements indicated that the Respondent was prepared
to strike the CEA in order to require the Employers involved in
this proceeding to assign the operation of forklifts and skid
steers to employees represented by the Respondent rather than
employees represented by Local 310. Accordingly, I find that
Sink’s statements violated Section 8(b)(4)(ii)(D) of the Act.
The Respondent’s Filing and Maintenance of Pay-In-Lieu
Grievances
The Board issued its decision in Donley I on January 10,
2014. In this decision the Board determined that employees
represented by Local 894 are entitled to perform the operation
of forklifts and skid steers on the Goodyear jobsite in Akron,
Ohio. Thereafter, the Respondent refused to withdraw its de-
mand for the arbitration of the grievance that had filed against
Donley’s under the AGC agreement for failing to employ oper-
ating engineers on its forklifts and skid steers at the Goodyear
garage project. The pay-in-lieu grievance requested as a remedy
that Donley’s pay to all qualified referral registered applicants
the applicable wages and fringe benefits from the first day of
the violation and continuing thereafter for each forklift and skid
steer until the project’s completion
The Board issued its decision in Donley’s II on May 15,
2014. In Donley’s II the Board the Board determined that em-
ployees of Donley’s, B & B, Cleveland Cement, Hunt, and
Precision represented by Local 310 were entitled to perform
work utilizing forklifts and skid steers in the area where their
employers operate and the jurisdiction of Local 310 and the
Respondent overlap. Thereafter, the Respondent refused to
withdraw pending-in-lieu grievances it had filed against Cleve-
land Cement, Precision, B & B, Donley’s, and Hunt. In addi-
tion, the Respondent filed new pay-in-lieu grievances against
Donley’s regarding its Hilton Hotel project in Cleveland, Ohio.
The first such grievance was filed on July 14, 2014 and alleges
that Donley’s breached the CEA agreement by failing to assign
the operation of forklifts to employees represented by the Re-
spondent. The second grievance was filed on August 12, 2014,
and claims that Donley’s breached the CEA agreement by fail-
ing to assign the operation of a skid steer to employees repre-
sented by the Respondent. On October 1, 2014, the Respondent
filed a new grievance against Cleveland Cement alleging that it
had breached the CEA agreement by failing to assign the opera-
tion of forklifts to employees represented by the Respondent at
the American Greetings jobsite in Westlake, Ohio.
It is clear that by maintaining the pay-in-lieu grievances it
filed before the Board’s issuance of Donley I and Donley II and
filing new pay-in-lieu grievances after the issuance Donley II,
the Respondent seeks payment for work that was included in
the Board’s prior 10(k) awards to Laborers-represented em-
ployees. In Plasterers Local 202 (Standard Drywall, Inc.), 357
NLRB No. 160 slip op. at 3 (2011), the Board explicitly held:
It is well settled that a union’s pursuit of a lawsuit or arbitra-
tion to obtain work awarded by the Board under Section 10(k)
to employees represented by another union, or monetary
damages in lieu of the work, has an illegal objective and vio-
lates Section8(b)(4)(ii)(D). See Sheet Metal Workers, Local
27 (E. P. Donnelly), 357 NLRB No. 131 and cases cited there.
And while the Supreme Court has held that a well-founded
lawsuit may not be enjoined as an unfair labor practice even if
filed with a retaliatory motive, the Court has recognized that a
suit that has an objective that is illegal may be enjoined with-
out violating the First Amendment. Bill Johnson’s Restau-
rants, Inc. v. NLRB, 461 U. S. 731, 737 fn. 5 (1983). [Foot-
note omitted.]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
In Plasterers Local 200, supra, slip op at 3, the Board further
noted:
Thus, where the Board has previously ruled on a given matter,
and where the lawsuit is aimed at achieving a result that is in-
compatible with the Board’s ruling, the lawsuit falls within
the “illegal objective” exception to Bill Johnson’s. E. P. Don-
nelly, supra, quoting Teamsters Local 776 (Rite Aid), 305
NLRB 832, 835 (1991), enfd. 973 F.2d 230 (3d Cir. 1992).
cert. denied 507 U. S. 959 (1993). [Footnote omitted.]
The Board has consistently held that a union’s the pursuit of
contractual claims seeking payment for work that was included
in a prior 10(k) award to employees represented by another
union violates Section 8(b)(4)(ii)(D). Marble Polishers Local
47-T (Grazzini Bros.), 315 NLRB 520 (1994); Iron Workers
Local 433 (Swinerton Co.), 308 NLRB 756 (1992); Long-
shoremen ILWU Local 13 (Sea-Land), 290 NLRB 616 (1988),
enfd. 884 F.2d 1407, (D.C. Cir. 1989).
In Roofers Local 30 (Gundle Construction), supra, the Board
explained that even assuming that a union has an arguably mer-
itorious contractual claim to particular work, it violates Section
8(b)(4)(D), by continuing to pursue its contractual claims after
the Board issues a 10(k) award in which the work is awarded to
employees represented by a different union. The Board held,
“Such post-award 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 employees are enti-
tled to the work at issue.” 307 NLRB at 1430, citing Long-
shoremen ILWU Local 32 (Weyerhaeuser Co.), Inc. 271 NLRB
759 (1984), enfd. 773 F.2d 1012 (9th Cir. 1985), cert. denied
476 U.S. 1158 (1986). In this connection, in Longshoremen
ILWU Local 32 (Weyerhaeuser Co.), the Board noted that it
had been clearly established since the Supreme Court decision
in Carey v. Westinghouse, 375 US 261 (1964) that a Board
10(k) award takes precedence over any and all contrary arbitra-
tion awards.
Applying these principles to the instant case, the Respond-
ent’s maintenance and filing of the grievances that have been
set forth in detail above against the Employers seeking damages
for an alleged breach of contract, after the issuance of the
Board’s decisions in Donley’s I and Donley’s II, has an illegal
objective. This is so because the grievances seek to coerce the
Employers into paying damages for the work awarded to La-
borers-represented employees in Donley’s I and Donley’s II and
thus act to undercut the Board’s 10(k) determinations, as the
Employers assigned the work consistent with the Board’s
awards. The fact that the grievances seek damages for an al-
leged breach of contract and not the reassignment of the work
makes no difference as the Board has repeatedly held “this is a
distinction without a difference.” Plasterers Local 200 ( Stand-
ard Drywall), supra slip op. at 3; Sheet Metal Workers Local 27
(E. P. Donnelly, Inc.), supra slip op. at 3. In Machinists Lodge
160 (SSA Marine, Inc.), 360 NLRB No. 64 (2014) the Board
held that a union’s continued pursuit of monetary damages in
lieu of the work after a contrary 10(k) determination violates
Section 8(b)(4)(ii)(D), even when it is accompanied by an ex-
press disclaimer of interest in having the employees it repre-
sents assigned to perform the disputed work. Id. slip op. at 3.
Accordingly, I find that the Respondent’s conduct in maintain-
ing the pay-in-lieu grievance filed against Donley’s involving
the Goodyear parking garage project, after the Board’s decision
in Donley’s I, violates Section 8(b)(4)(ii)D) of the Act. I further
find that the Respondent’s conduct in maintaining pay-in-in
lieu grievances against the Employers and filing new grievanc-
es against Donley’s and Cleveland Cement involving the utili-
zation of forklifts and skid steers in the area where the Employ-
ers operate and the jurisdiction of Local 310 and the Respond-
ent overlap, after the Board’s decision in Donley II, violates
Section 8(b)(4)(ii)(D) of the Act.
The Respondent’s Work Preservation Defense
The Respondent claims the filing of the pay-in-lieu griev-
ances filed against the employers in this case are lawful at-
tempts to preserve the work historically performed within the
multiemployer AGC and CEA units it represents. In this con-
nection, the Respondent contends that the multiemployer AGC
and CEA units are composed of all of the employers who have
bound themselves to either or both agreements. (R. Brief, pps.
117–118) The Respondent contends that the evidence of refer-
rals of employees it represents to operate forklifts and skid
steers for signatory employers establishes that this work consti-
tutes unit work and that the grievances are lawful attempts to
preserve that work
In assessing the validity of the Respondent’s defense, as I
noted earlier in this decision, the Board has long held that be-
cause multiemployer bargaining is consensual in nature, there
must be evidence of an employer’s unequivocal intent to be
bound by the actions of a multiemployer bargaining representa-
tive before the employer’s employees become part of a mul-
tiemployer bargaining unit. Plumbers Local 669 (Lexington
Fire Protection Group), 318 NLRB 347, 348 fn. 14 (1995);
Hunts Point Recycling Corp., 301 NLRB 751, 752 (1991), and
cases cited therein; Ruan Transport Corp., 234 NLRB 241, 242
(1978).
The fact that an employer merely adopts a collective-
bargaining agreement, when it was not involved in negotiation
of that agreement and did not authorize another entity to nego-
tiate on its behalf, does not make the employer part of a mul-
tiemployer bargaining group and consequently does not make
its employees part of a multiemployer bargaining unit.
Schaetzel Trucking, Inc., 250 NLRB 321, 323 (1980); Ruan
Transport Corp., supra at 242. In this regard, the mere adoption
of an areawide collective bargaining agreement by an employer
that contains a clause indicating that the employees covered
under the areawide agreement shall constitute a single bargain-
ing unit, such as the AGC agreement in the instant case, is in-
sufficient to make the employees of that employer part of a
multiemployer bargaining unit. Hunts Point Recycling Corp,
supra at 752; Schaetzel Trucking, supra at 323. In addition, in
the absence of unequivocal evidence that an employer has con-
tinued to assign its bargaining rights to a multiemployer associ-
ation to which it once belonged, the mere fact that an employer
adheres to the terms of such a multiemployer agreement does
not establish that its employees remained part of a multiem-
ployer unit. Plumbers Local 669 (Lexington Fire Protection
OPERATING ENGINEERS LOCAL 18 25
Group), supra at 348.
Applying these principles to the instant case, I do not agree
that the multiemployer AGC and CEA bargaining units that the
Respondent represents are as monolithic as it claims them to be.
I first examine the Respondent’s CEA bargaining unit. It is
clear that only the employers who have unequivocally agreed to
authorize the CEA to negotiate on its behalf are members of the
CEA and part of a multiemployer bargaining group. It is equal-
ly clear that only the employees of such employers are part of a
multiemployer bargaining unit. As it applies specifically to the
Employers in the instant case, the evidence establishes that
Donley’s, Cleveland Cement and Precision had authorized the
CEA to represent them in negotiations for the 2009–2012 and
2012–2015 CEA agreements with the Respondent. Thus, since
at least 2009 their employees were part of the multiemployer
CEA bargaining unit. Hunt joined the CEA and assigned its
bargaining rights to it on June 17, 2012. There is no evidence of
Hunt being part of the CEA multiemployer bargaining group
prior to that date.
As I have noted earlier in this decision, the record does not
establish the names of the employers who had assigned their
bargaining rights to the CEA and were bound to the 2006–2009
CEA agreement with the Respondent on that basis. The record
does contain, however, evidence that Donley was bound to the
2006–2009 CEA agreement with the Respondent by virtue of
separately signing a “me too” book agreement. Thus, for the
2006–2009 CEA agreement, Donley’s employees were not part
of the multiemployer CEA bargaining unit.
With respect to B & B, there is no evidence that B&B had
assigned its bargaining rights to the CEA prior to the 2012 ne-
gotiations between the CEA and the Respondent or that it ever
became signatory to the 2012–2015 CEA agreement with the
Respondent in any fashion, although Bauman’s testimony es-
tablishes that B&B has applied the terms of that agreement to
its Operating Engineer represented employees. B & B was
bound to the terms of the 2009–2012 CEA agreement with the
Respondent by virtue of having executed a separate “me too”
book agreement on February 18, 2010 (L. 18 Exh. 61).
The evidence thus establishes that for the 2009–2012 and
2012–2015 CEA agreements with the Respondent, Donley’s,
Cleveland Cement, and Precision assigned their bargaining
rights to the CEA and thus their employees, at least for those
periods, were part of a multi-employer bargaining unit. Hunt’s
employees became part the multiemployer bargaining unit
when Hunt assigned its bargaining rights to the CEA in June
2012.
As noted above Donley’s executed a “me to” book agree-
ment with the Respondent binding it to the terms of the 2006–
2009 CEA agreement as an individual signatory employer.
Accordingly, for that period, its employees were not part of a
multiemployer bargaining unit. There is no reliable record evi-
dence reflecting the manner in which Precision and Cleveland
Cement were bound to the 2006–2009 CEA agreement with the
Respondent.
There is no reliable evidence establishing that B & B had as-
signed its bargaining rights to the CEA. Therefore, B & B’s
Respondent-employees constituted a separate unit and were not
part of the multiemployer CEA bargaining unit represented by
the Respondent.
I now turn to the practice of the Employers involved in this
proceeding regarding the assignment of forklifts and skid steers
within the jurisdiction of the CEA agreement with the Re-
spondent. Since at least 1998 Donley’s has consistently as-
signed the operation of forklifts and skid steers to employees
represented by Local 310 and at times Carpenters-represented
employees. During that period, Donley’s has not assigned the
operation of forklifts and skid steers to employees represented
by the Respondent.
Since at least 1990, both Cleveland Cement and B & B have
assigned the operation of forklifts and skid steers to employees
represented by Local 310 in conjunction with their other duties.
During that period, Cleveland Cement and B & B have not
assigned the operation of forklifts and skid steers to employees
represented by the Respondent.
Since Precision began operations in 1991, it has generally
assigned the operation of forklifts and skid steers to employees
represented by Local 310. However, it is also assigned the op-
eration of forklifts and skid steers to employees represented by
the Respondent. In this connection, Lee Keller is a member of
the Respondent .and worked on a regular full-time basis for
Precision from 2011 to June 2013 and, during this period, spent
approximately 50 percent of his time operating a skid steer.
Keller also operated forklifts during his employment with Pre-
cision. Precision also employed Timothy Russell, who is a
member of the Respondent from approximately 2002 to 2013.
While Russell typically operated heavy equipment on larger
jobs, at least for the 2011–2012 period, Russell also operated a
forklift at the Precision shop.
Hunt had no prior jobs within the jurisdiction of the CEA
agreement with the Respondent prior to performing work at
Cleveland’s Hopkins airport in 2011. In June 2012 it assigned
its bargaining rights to the CEA and became bound to the
2012–2015 CEA agreement with the Respondent. At the time it
became bound to the CEA agreement with the Respondent,
Hunt was already signatory to a PLA that Local 310 was also
signatory to and had assigned the operation of forklifts and skid
steers to employees represented by Local 310.
The evidence establishes that for a substantial period of time
Donley’s and Cleveland Cement have consistently assigned the
operation of forklifts and skid steers to employees who are
represented by Local 310, even during times when their em-
ployees have been part of the multiemployer CEA bargaining
unit. Hunt does not have a long history of working within the
jurisdiction of the CEA agreement with the Respondent, but
assigned the operation of forklifts and skid steers to Local 310
pursuant to the PLA that it had executed prior to becoming
party to the CEA agreement with the Respondent.
Since its inception in 1991, Precision has assigned the opera-
tion of forklifts and skid steers to employees represented by
Local 310, even during the period when its Respondent-
represented employees have been part of the multiemployer
CEA bargaining unit. Precision has also assigned the operation
of such equipment, however, to employees represented by the
Respondent. In particular, during the 2011–2012 period, Preci-
sion regularly assigned the operation of forklifts and skid steers
to employees represented by the Respondent, in addition to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
continuing to assign such equipment to employees represented
by Local 310.
For a substantial period of time, B & B has assigned the op-
eration of forklifts and skid steers to employees represented by
Local 310, and its employees have not been part of the multi-
employer CEA bargaining unit represented by the Respondent.
B & B has either signed an individual agreement binding it to
the terms of the CEA agreement with the Respondent or merely
adhered to the terms of the CEA agreement, without actually
executing a contract with the Respondent.
This evidence must be viewed in the context of the evidence
presented by the Respondent establishing that employees it
represents have been assigned the operation of forklifts and
skid steers by employers who have been bound to the terms of
the CEA agreement with the Respondent in some fashion. In
the first instance, the evidence establishes that the Respondent
has referred a substantial number of employees to operate fork-
lifts and skid steers to employers’ signatory, in some fashion, to
the Respondent’s agreement with the CEA. In addition, letters
of assignment from employers who were signatory to the CEA
agreement with the Respondent, in some fashion, further estab-
lishes that the operation of forklifts and skid steers is consid-
ered to be unit work by those employers. Finally, the testimony
of a number of employees clearly establishes that the operation
of forklifts and skid steers has been assigned to employees
represented by the Respondent by employers bound to the CEA
agreement with the Respondent in some fashion.
As I have found above, the employees of Donley’s, Preci-
sion, and Cleveland Cement were part of the multiemployer
CEA bargaining unit for the period from 2009–2015, and Hunt
employees were part of the multiemployer CEA bargaining unit
beginning in June 2012. The testimony of several employee
witnesses establishes that they operated forklifts and skid steers
for employers whose employers were part of the multiemployer
CEA bargaining unit at various periods of time. Thus, in addi-
tion to Keller and Timothy Russell, who had performed such
work for Precision, employees Eakin, Harris, Latessa, Cobb,
Hannon, Pavelecky, and McAllister had all operated either
forklifts or skid steers or both for employers who had assigned
their bargaining rights to the CEA. Thus, the operation of fork-
lifts and skid steers by those employees was bargaining unit
work pursuant to the terms of the CEA agreement with the
Respondent.
As I have set forth above, there is no reliable evidence indi-
cating that Donley’s, Cleveland Cement, and Precision have
assigned their bargaining rights to the CEA prior to 2009 and,
there is no reliable evidence that B & B has ever assigned its
bargaining rights to the CEA. However, even if Donley’s,
Cleveland Cement, Precision, and B & B had, at least for some
period, assigned their bargaining rights to the CEA prior to
2009, employees represented by the Respondent have not ex-
clusively performed the operation of forklifts and skid steers in
the CEA multiemployer bargaining unit since at least 1990. In
this regard, Donley’s , Cleveland Cement, and B & B have
never assigned the operation of forklifts and skid steers to em-
ployees represented by the Respondent, but rather have as-
signed such work to Local 310-represented employees and, at
times, Carpenters-represented employees. Precision has as-
signed the operation of forklifts and skid steers typically to
Local 310-represented employees but has also assigned such
work to employees represented by the Respondent. While Hunt
had no prior history of bargaining with the Respondent prior to
June 2012, it assigned the operation of forklifts and skid steers
to Local 310-represented employees pursuant to the PLA it had
previously executed.
The instant dispute arose in earnest in 2012 when the Re-
spondent demanded that the Employers assign, through pro-
scribed means, all of the disputed work involving the operation
of forklifts and skid steers to Respondent-represented employ-
ees, including the work that had previously been performed by
employees represented by Local 310-represented employees or
Carpenters-represented employees.
In Carpenters (Prate Installations, Inc.), 341 NLRB 543
(2004), rejected a contention made by the Carpenters that the
facts in that case presented a work preservation dispute that did
not fall within the scope of Section 10(k) and Section
8(b)(4)(D). There, the evidence established that the employer
had assigned the work of shingling roofs to crews of Roofers-
represented employees, to crews of Carpenters-represented
employees, and to composite crews of employees represented
by both those unions. The Board found that the Carpenters-
represented employees had never performed such work exclu-
sively. The Board further held, “The dispute arose when the
Carpenters claimed all of the disputed work, including that
previously performed by employees represented by the Roof-
ers. As such, the Carpenters objective here was not that of work
preservation, but work acquisition. Id. at 545. (Emphasis in the
original.) Accord: Laborers Local 265 (Henkels & McCoy,
Inc.), 360 NLRB No. 102, slip op. at 5 (2014).
Applying the principles expressed in Carpenters (Prate In-
stallations Inc.) to the instant case, I find that the Respondent’s
objective was not that of work preservation, but rather work
acquisition. This is true for Donley’s, Cleveland Cement, Preci-
sion, and Hunt, who had assigned their bargaining rights to the
CEA and therefore were part of the multiemployer CEA bar-
gaining unit in 2012 but, with the exception of Precision, as-
signed the operation of forklifts and skid steers to their employ-
ees represented by Local 310, rather than to their employees
who were represented by the Respondent. As noted above,
Precision assigned the operation of forklifts and skid steers to
both employees represented by Local 310 and employees repre-
sented by the Respondent. As in Carpenters, (Prate Installa-
tions Inc.) in 2012, through the use of proscribed means, the
Respondent claimed all of the disputed work involving the
operation of forklifts and skid steers, including the work that
had been previously performed by Laborers-represented em-
ployees, and, at times, Carpenters-represented employees
It is even more apparent that the Respondent’s objective was
work acquisition with regard to B & B, since it had never as-
signed the operation of forklifts and skid steers to employees
represented by the Respondent, and the reliable evidence estab-
lishes that B & B has not assigned its bargaining rights to the
CEA, but rather either signed a separate “me to” agreement
binding it to the terms of the CEA agreement with the Re-
spondent or had merely adhered to the terms of an existing
CEA agreement. Thus, B & B’s Respondent-represented em-
OPERATING ENGINEERS LOCAL 18 27
ployees constituted a separate bargaining unit and B & B had
never assigned the operation of forklifts and skid steers to those
employees. Nonetheless, beginning in 2012, the Respondent
demanded that B & B assign the operation of forklifts and skid
steers to Respondent-represented employees and filed griev-
ances in order to compel B & B to make such an assignment.
I next turn to Donley’s history as a signatory employer to the
AGC agreement with the Respondent. The Respondent intro-
duced evidence that Donley’s executed a “me to” book agree-
ment with the Respondent binding it to the terms of the then
current 1989–1992 AGC agreement with the Respondent on
March 20, 1990 (L. 18 Exh. 1 B). On November 27, 2000,
Donley’s again executed a “me too” agreement binding it to the
terms of the AGC agreement with the Respondent that was
effective from May 1, 1998, through April 30, 2001 (L. 18 Exh.
1 A). As relevant to this proceeding, the language of these con-
tracts indicated:
[T]he undersigned contractor or successors, although not a
member of the AGC of Ohio Labor Relations Division does
hereby join in, adopt, accept and become a party to the collec-
tive bargaining agreement heretofore made by the AGC of
Ohio Labor Relations division with the International Union of
Operating Engineers, Local 18. . .
The Respondent introduced no evidence regarding the names
of employers that were signatory, in any fashion, to the AGC
agreement with the Respondent that was effective from May 1,
2001, through April 30, 2004. Thus, there is no evidence that
Donley’s was signatory to an agreement with the Respondent
during this period. While the Respondent’s records establish
that there were approximately 200 employers bound, in some
fashion, to the AGC contract with the Respondent that was
effective from May 1, 2004 through April 30, 2007, there is no
evidence establishing that Donley was signatory to the agree-
ment. While the Respondent’s records establish that approxi-
mately 640 employers were bound, in some fashion, to the May
1, 2007–April 30, 2010 AGC agreement with the Respondent,
there is no evidence that Donley’s was signatory to this agree-
ment.
As I noted earlier in this decision, the evidence regarding
whether Donley’s had assigned its bargaining rights to the AGC
for the 2010–2013 agreement with the Respondent is equivocal.
What is clear, however, is that on February 23, 2012, the Re-
spondent required Donley’s to sign a one-page “me to” book
agreement binding it to the terms of the 2010–2013 AGC
agreement. As I have noted above, there is no evidence estab-
lishing whether Donley’s is signatory to the 2013–2017AGC
agreement with the Respondent in any fashion.
The Respondent filed its pay in-lieu grievance against Don-
ley’s under the AGC agreement for failing to employ operating
engineers on its forklifts and skid steers at the Goodyear garage
project on February 27, 2012. The bargaining history between
Donley’s and the Respondent reflects that when Donley’s had
signed an agreement with the Respondent, with the possible
exception of the 2010–2013 agreement, it had done so by sign-
ing a “me too” book agreement. There certainly is not a long
history of Donley’s having assigned its bargaining rights to the
AGC and consequently being part of a multiemployer bargain-
ing unit. Rather, for the most part, if not exclusively, Donley’s
Respondent-represented employees constituted a separate bar-
gaining unit.
As I have indicated earlier, since at least 1998 Donley’s has
consistently assigned the operation of forklifts and skid steers
to Laborers-represented employees and at times Carpenters-
represented employees. At the Goodyear parking garage job
site and at other job sites during the period of 2011–2012 in the
Akron, Ohio area, Donley’s assigned the operation of forklifts
and skid steers to employees represented by Local 894 and at
times Carpenters–represented employees. There is no evidence
that Donley’s has assigned the operation of forklifts and skid
steers to employees represented by the Respondent when it has
performed jobs within the jurisdictional area of the AGC
agreement with the Respondent.
The Respondent introduced a substantial amount of evidence
establishing that employees it represents have been assigned the
operation of forklifts and steers by employers who were bound
the terms of the AGC agreement with the Respondent in some
fashion. In this regard, the evidence establishes that through its
hiring hall the Respondent has referred a substantial number of
employees to operate forklifts and skid steers to employers’
signatory in some fashion to the Respondent’s agreement with
the AGC. There are, in addition, letters of assignment from
employers signatory to the AGC agreement with the Respond-
ent in some fashion specifically assigning the operation of fork-
lifts and skid steers to employees represented by the Respond-
ent. Finally, the testimony of a number of employees set forth
in detail above, clearly establishes that the operation of forklifts
and skid steers have been assigned to employees represented by
the Respondent by employers bound to the AGC agreement
with the Respondent in some fashion.
With the possible exception of 2010–2013 AGC agreement,
Donley’s history of bargaining with the Respondent, within the
jurisdiction of the AGC agreement, is to sign “me to” book
agreements binding it to the terms of the AGC agreement with
the Respondent, or to adhere to the terms of the AGC agree-
ment without actually becoming signatory to it. Thus, for a
great majority of the time, if not all of the time, Donley’s Re-
spondent-represented employees constituted a separate bargain-
ing unit. As I have noted above, Donley’s has a lengthy history
of assigning the operation of forklifts and skid steers to em-
ployees represented by the Laborers and, at times, by the Car-
penters, and not to employees represented by the Respondent.
In 2012, the Respondent demanded, through proscribed means,
that Donley’s assign all of the disputed work involving the
operation of forklifts and skid steers performed within the ju-
risdiction of its agreement with the AGC to Respondent-
represented employees, including the work that had previously
been performed by employees represented by the Laborers or
the Carpenters. Given Donley’s consistent practice of assigning
the operation of forklifts and skid steers to employees repre-
sented by the Laborers or the Carpenters, even if Donley’s em-
ployees were part of a multiemployer bargaining unit during the
2010–2013 AGC agreement with the Respondent, the Re-
spondent’s conduct evinces an object that is work acquisition,
rather than that of unit work preservation, since it was claiming
all of the disputed work involving the operation of forklifts and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
skid steers. Carpenters (Prate Installations, Inc.) supra. Don-
ley’s history of generally signing a separate agreement with the
Respondent binding it to the terms of the AGC agreement, or
merely adhering to the terms of the AGC agreement without
actually becoming signatory to it, certainly supports the finding
that the Respondent’s objective was to acquire work and not to
preserve existing unit work, since, at least for most of the time,
Donley’s Respondent-represented employees constituted a
separate bargaining unit and Donley’s had never assigned fork-
lift and skid steer work to those employees.
There is further evidence that the Respondent’s conduct in
this case establishes that its objective was work acquisition and
not unit work preservation. I note, in this regard, Russell’s
statements to Przepiora in February 2012 at the Goodyear gar-
age jobsite that the Respondent was trying to get back work that
it had given away a long time ago. I also rely on the fact that in
approximately 2001, Baumann, on behalf of B & B, asked Re-
spondent’s agent Taggart that, if B & B wanted to reassign the
operation of skid steers from employees represented by Local
310 to employees represented by the Respondent, whether the
Respondent would “back” B & B in a claim against Local 310,
since employees represented by Local 310 had always operated
the skid steers. At that time Taggart told Baumann that was an
argument that the Respondent was not willing to engage in. In
June 2012 Baumann and Taggart met to discuss the grievance
the Respondent had filed against B & B alleging that it
breached the 2009–2012 CEA agreement for failing to employ
operating engineers on four forklifts at the Cleveland Brown
stadium project. At this meeting, Baumann asked Taggart why
the Respondent was now seeking to have the work of operating
forklifts and skid steers assigned to employees it represented
and Taggart merely responded by saying that was how the Re-
spondent intended to proceed at this time.
Both of the statements establish that the Respondent was
well aware in 2012 when it made the demand that operation of
forklifts and skid steers be exclusively performed by employees
it represented, that there had been a long practice of some em-
ployers, which were signatory to the AGC and CEA agree-
ments with it, of assigning the operation of forklifts and skid
steers to Laborers-represented employees rather than employ-
ees represented by the Respondent. As such, the statements are
indicative of a work acquisition, rather than a work preserva-
tion, objective.
I find the instant case to be distinguishable from cases where,
in the context of an alleged violation of Section 8(b)(4)(D), the
Board has found that a valid work preservation defense was
presented. In Teamsters Local 107 (Safeway Stores), 134
NLRB 1320 (1961), Local 107 had represented the truck driv-
ers employed at the employer’s Wilmington, Delaware meat
processing plant for approximately 10 years. The employer
discharged the entire bargaining unit represented by Local 107
and arranged for the unit work previously done by those em-
ployees to be done by drivers represented by other Teamsters
locals who represented the drivers at two other facilities the
employer operated. Thereafter, Local 107 picketed the employ-
er’s Wilmington plant with signs proclaiming that the employer
was unfair to Local 107.
The Board found that the case did not involve a jurisdictional
dispute as contemplated in Sections 8(b)(4)(D) and 10(k) of the
Act. The Board noted that there was no real competition be-
tween Local 107 and the two other unions for the work. The
dispute was solely between the employer and Local 107 and
concerned only Local 107’s attempt to retrieve the jobs of em-
ployees it had represented for more than 10 years through a
series of collective-bargaining agreements until the employer
suddenly terminated the bargaining relationship and discharged
the employees. The Board found that the Local 107’s picketing
was a concerted effort to preserve its historical bargaining sta-
tus. Accordingly, the Board found that Local 107’s actions for
such an object did not violate Section 8(b)(4)(D) and accord-
ingly quashed the notice of a 10 (k) hearing.
In Teamsters Local 578 (USCP-WESCO), 280 NLRB. 818
(1996), affd. USCP-WESCO v. NLRB, 827 F.2d 581 (9th Cir.
1987), the Board found that the evidence did not establish a
traditional jurisdictional dispute between two groups of em-
ployees under Section 10(k) of the Act and therefore quashed
the notice of hearing. In that case, in March 1983, Safeway
subcontracted the work of handling stocking and ordering cer-
tain general merchandise items to Wesco, whose employees
were represented by the Teamsters. Prior to the subcontract, the
disputed work had been performed by Safeway’s own employ-
ees who had been represented by the UFCW for approximately
20 years. After the subcontract became effective, the UFCW
filed grievances protesting the contracting of the unit work to
Wesco. Thereafter, the Teamsters threatened to picket Wesco
and Safeway if Wesco or Safeway assigned the work in dispute
to Safeway employees represented by the UFCW. In response
to the Teamsters threats, Wesco and the multiemployer associa-
tion that Safeway was a member of, filed 8(b)(4)(D) charges
against the Teamsters.
In its decision the Board noted:
The real dispute here is between UFCW and Safeway, rather
than between employees represented by UFCW and Team-
sters, and basically involves nothing more than UFCW’s at-
tempt to enforce its contractual work preservation provision in
the form of its contractual limitations on subcontracting to
protect its bargaining unit from work erosion. 280 NLRB at
821.
It is clear that it was Safeway’s unilateral decision to subcon-
tract the disputed work, which historically had always been
performed by employees represented by the UFCW, which
caused the UFCW to file grievances protesting that the subcon-
tract violated the agreement between Safeway and the UFCW.
In Seafarers (Recon Refractory & Construction), 339 NLRB
825 (2003), the Board applied the principles discussed above in
finding that the employer’s action in assigning work traditional-
ly performed by employees represented by the Bricklayers,
pursuant to the terms of successive collective-bargaining
agreements for approximately a 10-year period, to another un-
ion presented a true work preservation dispute and, as such,
was not appropriate for resolution under Section 10(k).
In Machinists District 190, Local 1414 (SSA Terminal, LLC),
344 NLRB 1018 (2005), the Board quashed a notice of 10(k)
hearing finding that the dispute was a true work preservation
dispute rather than a jurisdictional dispute. In that case, in July
OPERATING ENGINEERS LOCAL 18 29
2004, the employer moved additional work, including “reefer
work” (the monitoring, plugging and unplugging of refrigerated
cargo containers) to the Howard terminal in Oakland, Califor-
nia. The employer assigned the reefer work at the Howard ter-
minal to employees represented by the IAM. Thereafter, the
ILWU filed a grievance regarding the assignment of a portion
of the reefer work to the IAM.
The Board found that the dispute over reefer work began
when the employer assigned the work to IAM-represented ma-
chinists at the Howard terminal in July 2004. Prior to that only
ILWU-represented longshoremen had performed reefer work
for the employer at the Howard terminal. The Board therefore
found therefore that the employer’s unilateral action of assign-
ing to IAM-represented machinists work historically performed
by ILWU-represented longshoremen created a work preserva-
tion dispute. The Board determined that such a dispute was not
appropriate for resolution under Section 10(k) and quashed the
notice of hearing.
In all of the above noted cases, the employers unilaterally
transferred work that had been historically and exclusively
performed by employees that the objecting unions had repre-
sented for a substantial period of time. Under those circum-
stances, the Board found that the actions taken by those unions,
including the filing of grievances, presented a true work preser-
vation argument that was not appropriate for resolution under
Section 8(b)(4)(D) and Section 10 (k).
In the instant case the Employers have not unilaterally reas-
signed the operation of forklifts and skid steers that have been
historically operated by Respondent-represented employees and
thus the instant case is fundamentally different from those dis-
cussed above where the Board found that a true work preserva-
tion dispute, not amenable to resolution under Section
8(b)(4)(D) and Section 10(k), was present.
On the basis of all of the foregoing, I find no merit to the Re-
spondent’s work preservation defense and further find that the
Respondent has violated Section 8(b)(4)(i) and (ii)(D) of the
Act in the manner I have set forth above.
CONCLUSIONS OF LAW
1. Donley’s, B & B, Cleveland Cement., Hunt, and Preci-
sion (the Employers) and the CEA are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Union of Operating Engineers Local 18 (the
Respondent), Laborers Local 894, a/w International Union of
Board America, AFL–CIO, (Local 894) Laborers Local 310,
a/w International Union of North America, AFL–CIO (Local
310), and the Ohio and Vicinity Regional Counsel of Carpen-
ters, United Brotherhood of Carpenters and Joiners of America
(Carpenters) are labor organizations within the meaning of
Section 2(5) of the Act.
3. The Respondent has engaged in an unfair labor practice
proscribed by Section 8(b)(4) (ii)(D) of the Act by threatening
to picket or strike Donley’s with an object of forcing or requir-
ing Donley’s to assign the work described below to employees
represented by the Respondent rather than to employees repre-
sented by Local 894. The work in question consists of the oper-
ation of forklifts and skid steers as part of the construction of a
parking deck at the Goodyear jobsite located at 225 Innovation
Way, Akron, Ohio.
4. The Respondent has engaged in an unfair labor practice
proscribed by Section 8(b)(4) (ii)(D) of the Act by threatening
to strike the CEA and the Employers with an object of forcing
or requiring the Employers to assign the work described below
to employees represented by the Respondent rather than to
employees represented by Local 310. The work in question is
the utilization of forklifts and skid steers in the area where the
Employers operate and the jurisdiction of Local 310 and the
Respondent overlap.
5. The Respondent has engaged in an unfair labor practice
proscribed by Section 8(b)(4) (i) and (ii) of the Act by picketing
and engaging in a strike against Donley’s with an object of
forcing or requiring Donley’s to assign the work described
below to employees represented by the Respondent rather than
to employees represented by Local 894. The work in question
consists of the operation of forklifts and skid steers as part of
the construction of a parking deck at the Goodyear jobsite lo-
cated at 225 Innovation Way, Akron, Ohio.
6. The Respondent has engaged in an unfair labor practice
proscribed by Section 8(b)(4) (ii)(D) by maintaining, after the
issuance of the Board’s decision in Donley’s I, a pay-in-lieu
grievance filed against Donley’s for work performed by em-
ployees represented by Local 894 with an object of forcing or
requiring Donley’s to assign the work described below to em-
ployees represented by the Respondent rather than to employ-
ees represented by Local 894. The work in question consists of
the operation of forklifts and skid steers as part of the construc-
tion of a parking deck at the Goodyear jobsite located at 225
Innovation Way, Akron, Ohio.
7. The Respondent has engaged in unfair labor practices
proscribed by Section 8(b)(4)(ii) (D) by maintaining and filing,
after the issuance of the Board’s decision in Donley’s II, pay in-
lieu-grievances against the Employers with an object of forcing
or requiring the Employers to assign the work described below
to employees represented by the Respondent rather than to
employees represented by Local 310, The work in question is
the utilization of forklifts and skid steers in the area where the
Employers operate and the jurisdiction of Local 310 and the
Respondent overlap.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended39
ORDER
The Respondent, International Union of Operating Engineers
Local 18, its officers, agents, and representatives, shall

39 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
1. Cease and desist from
(a) Threatening to picket or strike and actually picketing and
engaging in a strike against Donley’s with an object of forcing
or requiring Donley’s to assign the work described below to
employees represented by the Respondent rather than to em-
ployees represented by Local 894. The work in question con-
sists of the operation of forklifts and skid steers as part of the
construction of a parking deck at the Goodyear jobsite located
at 225 Innovation Way, Akron, Ohio.
(b) Threatening to strike the CEA and the Employers with
an object of forcing or requiring the Employers to assign the
work described below to employees represented by the Re-
spondent rather than to employees represented by Local 310.
The work in question is the utilization of forklifts and skid
steers in the area where the Employers operate and the jurisdic-
tion of Local 310 and the Respondent overlap.
(c) Maintaining, after the issuance of the Board’s decision in
Donley’s I, a pay-in-lieu grievance filed against Donley’s for
work performed by members of Local 894 with an object of
forcing or requiring Donley’s to assign the work described
below to employees represented by the Respondent rather than
to employees represented by Local 894. The work in question
consists of the operation of forklifts and skid steers as part of
the construction of a parking deck at the Goodyear jobsite lo-
cated at 225 Innovation Way, Akron, Ohio.
(d) Maintaining and filing, after the issuance of Board’s de-
cision in Donley’s II, pay-in-lieu-grievances against the Em-
ployers for work performed by employees represented by Local
30 with an object of forcing or requiring the Employers to as-
sign the work described below to employees represented by the
Respondent rather than to employees represented by Local 310.
The work in question is the utilization of forklifts and skid
steers in the area where the Employers operate and the jurisdic-
tion of Local 310 and the Respondent overlap.
(e) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Withdraw the pay-in-lieu grievance filed against Don-
ley’s for the work of operating forklifts and skid steers per-
formed by employees represented by Local 894 as part of the
construction of a parking deck at the Goodyear jobsite located
at 225 Innovation Way, Akron, Ohio.
(b) 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.
(c) Within 14 days after service by the Region, post at its of-
fice in Cleveland, Ohio, and in any office that it maintains in
Akron, Ohio, copies of the attached notice marked “Appen-
dix.”
40
Copies of the notice, on forms provided by the Regional

40 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-
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 of paper
notices, the 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 employees and 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.
(d) Within 14 days after service by the Region, sign and re-
turn to the Regional Director sufficient copies of the notice for
physical and/or electronic posting by the Employers and the
CEA, if willing, at all places or in the same manner as notices
to employees are customarily posted.
(e) Within 21 days after service by the Region, file with the
Regional Director 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.
Dated, Washington, D.C., April 9, 2015
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 employerAct together with other employees for your
benefit and protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten to picket or strike and actually picket
and engage in a strike against Donley’s Inc. (Donley’s) with an
object of forcing or requiring Donley’s to assign the work de-
scribed below to employees represented by International Union
of Operating Engineers Local 18 (IUOE Local 18), rather than
to employees represented by Laborers’ Local 894, a/w Interna-
tional Union of North America, AFL–CIO (Laborers’ Local
894). The work in question consists of the operation of forklifts
and skid steers as part of the construction of a parking deck at
the Goodyear jobsite located at 225 Innovation Way, Akron,
Ohio.
WE WILL NOT threaten to strike the Construction Employers
Association (CEA) and Donley’s Inc., B & B Wrecking and
Excavating, Inc., Cleveland Cement Contractors, Inc., Hunt
Construction Group, Inc., and Precision Environmental Co. (the
Employers), with an object of forcing or requiring the Employ-

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
OPERATING ENGINEERS LOCAL 18 31
ers to assign the work described below to employees represent-
ed by IUOE Local 18, rather than to employees represented by
Laborers’ Local 310, a/w International Union of North Ameri-
ca, AFL–CIO (Laborers’ Local 310). The work in question is
the utilization of forklifts and skid steers in the area where the
Employers operate and the jurisdiction of Laborers’ Local 310
and the IUOE Local 18 overlap.
WE WILL NOT maintain, contrary to the Board’s decision in
Donley’s I, 360 NLRB No. 20 (2014), a pay-in-lieu grievance
filed against Donley’s for work performed by employees repre-
sented by Laborers’ Local 894 with an object of forcing or
requiring Donley’s to assign the work described below to em-
ployees represented by IUOE Local 18, rather than to employ-
ees represented by Laborers Local 894. The work in question
consists of the operation of forklifts and skid steers as part of
the construction of a parking deck at the Goodyear jobsite lo-
cated at 225 Innovation Way, Akron, Ohio.
WE WILL NOT maintain and file, contrary to the Board’s deci-
sion in Donley’s II, 360 NLRB No. 113 (2014), pay in-lieu-
grievances against the Employers for work performed by em-
ployees represented by Laborers’ Local 310 with an object of forc-
ing or requiring the Employers to assign the work described below
to employees represented by the IUOE Local 18 rather than to
employees represented by Laborers’ Local 310. The work in ques-
tion is the utilization of forklifts and skid steers in the area where
the Employers operate and the jurisdiction of Laborers’ Local 310
and IUOE Local 18 overlap.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL withdraw the pay-in-lieu grievance we filed against
Donley’s for the work of operating forklifts and skid steers
performed by employees represented by Local 894 as part of
the construction of a parking deck at the Goodyear jobsite lo-
cated at 225 Innovation Way, Akron, Ohio.
WE WILL withdraw all pending and cease filing pay-in-lieu
grievances against the Employers for 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 over-
lap.
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 18