Demicco Brothers Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 16, 2007

29C-R-11109 (N.L.R.B. Jan. 16, 2007)

JD–03–07
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DEMICCO BROTHERS INC.,
Employer
and Case 29–RC–11109
THE SHEET ASPHALT WORKERS LOCAL
UNION 1018 OF THE DISTRICT COUNCIL
OF PAVERS AND ROAD BUILDERS OF THE
LABORER’S INTERNATIONAL UNION
OF NORTH AMERICA,
Petitioner
and
UNITED PLANT AND PRODUCTION
WORKERS, LOCAL 175, INTERNATIONAL
UNION OF JOURNEYMAN AND
ALLIED TRADES,
Intervenor
Eric Boerschinger, Esq., for the Regional Director.
Raymond G. McGuire and S. Peter Clark, Esqs.
(Kauff, McLain & McGuire, LLP), of New York, New York,
for the Employer.
Barbara S. Mehlsack, Esq. (Gorlick, Kravitz & Listhaus, P.C.),
of New York, New York, for the Petitioner.
Eric Bryon Chaikin, Esq. (Chaikin & Chaikin),
of New York, New York, for the Intervenor.
RECOMMENDED DECISION AND ORDER ON OBJECTIONS
AND CHALLENGES
MICHAEL A. ROSAS, Administrative Law Judge. Pursuant to a notice of hearing on
objections to election and challenged ballots issued by the Acting Regional Director for Region
29 on November 3, 2006, and Order Rescheduling Hearing, dated November 8, 2006, I
conducted a hearing in this matter on December 7, 8, and 12, 2006, in Brooklyn, New York.
Based on the evidence submitted in that hearing, including the testimony of the witnesses and
my assessment of their demeanor, I make the following findings and conclusions.
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The issues presented in the case arose from an election conducted on August 31, 2006,
in accordance with a stipulated election agreement signed by Local 1018,1 Local 175, and
DeMicco Brothers Inc. (Employer DeMicco), in the following unit:
All full-time and regular part-time workers who primarily perform asphalt paving,
including foremen, rakers, screenmen, micro pavers, AC paintmen, liquid tar workers,
landscape planting and maintenance/fence installers, play equipment/safety surface
installers, slurry/seal coaters, shovelers, line striping installers, and small equipment
operators employed by the Employer, who work primarily in the five boroughs of New
York City, but excluding all employees who primarily perform the laying of concrete,
concrete curb setting work, or block work, and/or who are currently represented by
Highway, Road and Street Construction Laborers, Local Union 1010 of the District
Council of Pavers and Road Builders, Laborers International Union of North America, or
by Highway, Road and Street Construction Laborers, a Division of Amalgamated Local
Union 450A, and excluding clerical employees, guards, and supervisors as defined in
Section 2(11) of the Act.
The tally of ballots made available to the parties at the conclusion of the election
revealed a tie—one vote for Local 1018, one vote for Local 175, and two challenged ballots,
which were outcome-determinative. The Board agent conducting the election challenged the
ballots of Eladio Lopez and Victor Paris on the ground that their names were not included on the
list provided by Employer DeMicco prior to the election pursuant to Excelsior Underwear, 156
NLRB 1236 (1966).2
In addition, Locals 1018 and 175 filed timely objections to conduct affecting the results of
the election. Local 1018’s first objection alleged that Local 175 held a captive audience meeting
within 24 hours of the election and, at that meeting, its representatives threatened, coerced, and
misinformed members to vote in favor of Local 175. Local 1018’s second objection alleged that
Employer DeMicco omitted a substantial percentage of names and employees eligible to vote
from the Excelsior list it provided prior to the election. Local 175 filed seven objections,
essentially alleging that Local 1018 threatened to “blackball” employees who supported Local
175, demanded during the critical period prior to the election that Employer DeMicco dismiss
any employee not a member of Local 1018, and threatened employees with expulsion, loss of
employment, and loss of benefits if they supported Local 175.
Pursuant to Section 102.69 of the Board’s Rules and Regulations, the Acting Regional
Director caused an investigation to be conducted concerning the parties’ challenges and
objections, and afforded the parties full opportunity to submit evidence bearing on the issues.
After conducting an investigation and considering the proof offered by the parties, the Acting
Regional Director found that the challenges to the ballots of Paris and Lopez raised material and
substantial issues of fact requiring a hearing. That issue was limited to a determination as to
whether Lopez and Paris “performed primarily asphalt paving.”3 In addition, the Acting Regional

1 Bd. Exh. 2.
2 Jt. Exh. 1.
3 The Acting Regional Director reviewed payroll records submitted by Employer DeMicco for
Lopez and Paris and found that they worked the requisite amount of time for eligible voters
pursuant to an analysis under Steiny & Co., 308 NLRB 1323 (1992), and Daniel Construction,
133 NLRB 264 (1961), modified at 167 NLRB 1078 (1967). No one took issue with this finding at
trial, and the proof was limited to a determination of whether Lopez and Paris primarily
performed asphalt paving.
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Director recommended overruling 1018’s first objection, but recommended sustaining its second
objection—Employer DeMicco’s failure to provide an eligibility list that substantially complies
with Excelsior—if it is found, after a hearing, that either Paris or Lopez is found eligible to vote
and Local 1018 loses the election after all eligible votes are counted. With respect to Local
175’s second objection, the Regional Director noted that Local 175’s allegations of threats by
Local 1018 that employees would lose their jobs of if they supported Local 175, which Local
1018 denied, raised material and substantial issues of fact and credibility requiring a hearing.
The Acting Regional Director also directed that the hearing officer’s report contain resolutions of
credibility of witnesses, findings of fact, and recommendations to the Board.
I. The Challenges
The two challenges, as to which I heard evidence, are outcome-determinative. They
involve the two employees, Eladio Lopez and Victor Paris, who were challenged by the Board’s
agent because their names did not appear on the eligibility list submitted by Employer DeMicco.
Local 175 requests that the challenges to their ballots be sustained because they did not
primarily perform asphalt paving, but rather, trench work that included excavation, installation of
utility pipes and sheeting, backfilling, and framing curbs. In addition, Local 175 contends that
Paris and Lopez are members of Local 731, whose jurisdiction, as set forth in its collective-
bargaining agreement, fails to mention asphalt paving work. (Int. Exh. 1L.) It also suggests that
there is a significant wage and benefits differential between asphalt pavers and workers whose
primary work is not asphalt paving. Local 1018 contends that the provisions of the stipulated
election agreement refer to part-time, as well as full-time, asphalt pavers and excluded only
members of Locals 1010 and 450A. Local 731 members, therefore, were not excluded under
the stipulated election agreement, even if they performed functions other than asphalt paving.
Employer DeMicco concurs with Local 1018 and takes the position that the two challenged
voters were eligible.
A. Victor Paris
Paris, a member of Local 731, has been employed by Employer DeMicco for
6-1/2 years. Employer DeMicco generally provides asphalt paving services for government
agencies and utility companies within the City of New York. Paris testified that, when hired, he
was told that he would “do a little of everything.” However, he also testified that he has been
performing mostly asphalt paving on trenches for sewer and water restoration projects. (Tr. 98–
100.) Paris was familiar with, and performed the same work as, three other asphalt pavers,
Steve Fuentes, Hank Weber, and Eladio Lopez.
From July 2003 through most of 2004, Paris worked on a sewer line restoration project.
(Tr. 126.) He was regularly assigned to a crew of eight to nine individuals. Their daily work
activity included trench excavation, removal of sheeting, backfilling of the trench with dirt after
the work in the section was completed, and the applications of five to six truckloads of
temporary asphalt to street sections of up to 2 blocks long. (Tr. 128–129, 132–133, 141–142.)
Paris testified that, on certain days, approximately 25 percent of his time was spent installing
bracing and sheeting. At other times, he could spend another 25 percent of his time shoveling
and raking dirt and asphalt. (Tr. 137, 151–152.) Paris spent the rest of his time pouring
temporary asphalt, cutting the asphalt to straighten out the trenches, or filling the trench with a
payloader. He denied, however, pouring concrete, micro-paving, and slurry seal coating. (Tr.
132–138.) Paris testified that his wage rate in July 2003 was $31. It increased to $32 in 2004.
He did not know the amount that his employer contributed toward his benefits. (Tr. 105.)
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In 2005, Paris performed temporary asphalt and finished asphalt paving work in Bronx
and Kings Counties. His wage rate increased that year to $33 an hour. Paris worked with Lopez
every day that year. (Tr. 105–109.) During the first 6 months of 2005, he worked on a water
restoration trench project in Bronx County. Paris was in a crew of five to six persons. The work
consisted of trench excavation, backfilling the trench, tamping the backfill, applying binder
material, and applying final asphalt. Paris would usually “stay in the back” and, as work in each
section was completed, apply the binder, followed by the temporary asphalt as each section
was completed (Tr. 118–121, 125.) He would also help fill the trench by shoveling dirt. (Tr. 122–
123.) Paris, Lopez, and another employed named “Joe” applied the final asphalt layer. He
denied performing excavation work or pouring concrete, but conceded that he constructed the
wooden braces and installed the prefabricated metal panels necessary to support the trench
while utility workers installed or repaired pipes. In addition, when asked, Paris would dig
additional dirt from the hole. (Tr. 107, 112–114, 116–118.)
Paris was a credible witness. He responded spontaneously and with an impressive
amount of detail regarding questions about his major projects. Paris seemed quite
knowledgeable about the asphalt paving process and readily conceded his involvement in the
various aspects of the work.
B. Eladio Lopez
Lopez has been employed by DeMicco for 10 years and is also a member of Local 731.
He testified that he did temporary asphalt paving all day on several projects during the period of
July 2003–July 2005. He would work in a three-person crew. One would rake, another would
shovel, and the other would roll or tamp the asphalt. Lopez’ 2003 pay rate was $31 an hour, but
he did not know what his benefits rate was. He denied performing any other functions, except
for shoveling asphalt. Lopez has worked with Steve Fuentes, another laborer and Local 1018
member, since 1998. Fuentes primarily did the raking. (Tr. 184–187, 193, 195, 199–200, 211,
215.)
Lopez was assigned mainly to three projects during that 2-year period. The first project
was located at 149th Street in Bronx County. He worked on that project from October 2001, until
the end of 2003. The 149th Street project entailed the reconstruction of a 2-mile stretch of
roadway, including sidewalks and curbs. While the crew was excavating, Lopez was spreading
one to three truckloads of asphalt per day. Asphalt spreading involved raking, rolling, and
shoveling. In addition to covering trenches, Lopez was also filling potholes. Lopez insisted that
he did that for 6 hours a day and denied installing sheeting or performing any other functions.
(Tr. 186–190, 212–213.)
Toward the end of 2003, Lopez was assigned to a project located at Cherry Street in
Queens County. He worked there until January 2004. The Cherry Street project was similar to
the 149th Street project. Each day, Lopez spread approximately two truckloads of asphalt over
100–150 feet of temporary asphalt over a sewer trench. The work would also include covering
street potholes. From January 2004 through 2005, Lopez was assigned to a project at Flushing
Avenue in Kings County. That project, like the Cherry Street contract, entailed the
reconstruction of an entire roadway, including sidewalks and curbs, and affected water and
sewer lines. The final paving, however, was done by another crew. (Tr. 186–187.)
I found Lopez credible. He seemed extremely at ease in the witness box and responded
spontaneously to all questioning. He too appeared quite knowledgeable about the asphalt
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paving process and recalled the details of his major projects during the period of July 2003 to
July 2005.
C. Michael Hurr
Hurr has been employed by Employer DeMicco as a project superintendent for 5 years.
He explained that, during the July 2003–July 2005 period, his Company employed about 10 full-
time asphalt workers and had collective-bargaining agreements with several unions, including
Locals 731 and 1018. Hurr was familiar with Paris and Lopez. Paris is a follow-up crew member.
A truck brings in dirt fill, dumps it into the trench and the crew tamps it. Although payloaders are
occasionally used, asphalt is then unloaded from little shoots at the back of a truck. (Tr. 226–
228). With respect to Paris’ work in Bronx County, Hurr estimated that Paris spent his time
backfilling trenches, and spreading and tamping asphalt. Out of an 8-hour workday, Hurr
estimated that Paris spent approximately 5.5 hours working with asphalt. (Tr. 229–230.) In
contrast, Lopez was in a three-person crew that just did asphalt work all day. (Tr. 231.)
I found Hurr to be candid, detailed, and reliable in his testimony. He had an excellent
grasp of the work performed by Lopez and Paris. Hurr struck me as a completely neutral
witness who had no reason to lie and readily conceded his limited knowledge when confronted
with questions about DeMicco’s bookkeeping practices and payroll records.
D. Opinion Testimony
In an attempt to support or impeach the testimony of Paris and Lopez, the parties called
additional witnesses to testify about the nature of Employer DeMicco’s asphalt paving work, as
well as industry standards for New York City asphalt paving projects. Local 175 called its
business manager, Luciano Falzone, and Mark Palumbo, a Local 1018 member. Local 1018
called its deputy trustee, John Peters.
Falzone, Local 1018’s former business manager until 2005, had over 15 years of
experience in asphalt paving in New York City. (Tr. 62, 473–479.) He is familiar with Employer
DeMicco’s asphalt paving contracts. In support of Local 175’s contention that Lopez and Paris
did not spend their work time primarily performing asphalt paving, Falzone’s explained that the
asphalt paving component of a utility repair project could take anywhere from several minutes to
2 hours, but that would depend on the work involved and the number of workers involved. (Tr.
63–66.)
Falzone subsequently testified that, in accordance with Local 1018’s collective-
bargaining agreement with Employer DeMicco, Local 1018 members typically performed the
asphalt paving on utility projects. (Exh. Int. 1M.) He noted that, during the January–June 2005
period, Employer DeMicco reported two employees as Local 1018 members. At that time, the
wage rates for Local 1018 members were $35 per hour, plus $20 in benefits, night differential,
and seven paid holidays.
Local 731 members like Lopez and Paris, on the other hand, get paid less, with no night
work pay differential or paid holidays. They usually spend most of their time excavating, digging,
and laying pipes in the trenches, but would not do much asphalt work. Falzone conceded,
however, that if members of Locals 731 and 1018 were on the same crew, “[t]hey would do the
same thing”—digging, removing dirt, help lay pipe and “at the end of the day if they need to put
the asphalt they would perform the asphalt also.” (Tr. 476–481.)
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Palumbo has been employed as a laborer, foreman, and superintendent in the New York
City asphalt paving industry for over 24 years. Rebutting Paris’ testimony that asphalt paving
was a mostly an all day job, Palumbo opined that a crew of five workers, using two loads of
asphalt, could use a payloader to temporarily pave a 225 foot-section in 2 hours. He noted,
however, that if the same crew spread the asphalt by hand, it would take approximately 2 hours.
(Tr. 173–177.) In addition, asphalt pavers do not usually spend time preparing to spread
asphalt. They are either spreading asphalt or waiting for the asphalt to be delivered. (Tr. 178–
179.)
Peters, Local 1018’s deputy trustee for the past 18 months, runs the Union’s day-to-day
activities and is familiar with the day-to-day activities of the New York City paving industry. He
gets calls to send Local 1018 members to worksites. Peters visits worksites and checks sites
when he gets complaints. (Tr. 454–456.) Peters opined that workers performing asphalt paving
in New York City are not limited to those whose job classification is asphalt paving and paid at a
certain hourly rate. He explained that there are approximately 1,000 workers in the utility paving
industry in New York City, including 200 members of Local 1018. The rest are members of other
labor organizations, including Locals 14, 15, 60, 282, 731, and 1298, and perform the various
functions of asphalt paving. Of all the workers on an asphalt paving crew, only members of
Local 14 and 15 have a primary function – they operate the machines. In addition, members of
Locals 1018 and 731 perform preparation work. (Tr. 456–457, 461, 470–472.)
I found the opinion testimony of Falzone, Palumbo, and Peters somewhat helpful in
explaining the general processes involved in the New York City asphalt paving industry.
However, their testimony was not credible as it related to the specific details of Employer
DeMicco’s asphalt paving work during the period of 2003–2005. Given my determination that
Paris and Lopez, as corroborated by Hurr, were credible witnesses, I gave the opinion testimony
very limited weight.
E. Analysis of Evidence Regarding the Challenges
The burden is on the party seeking to exclude someone from voting. See Regency
Service Carts, Inc., 325 NLRB 617, 627 (1998), citing Golden Fan Inn, 281 NLRB 226, 230 fn.
24 (1986). As there was no contention by the parties that the stipulated election agreement was
ambiguous—the stipulated bargaining unit included all part-time and full-time asphalt workers,
including workers who performed related work, such as raking and shoveling—the sole
determination was whether Lopez and Paris primarily performed asphalt paving from July 2003
to July 2005. See Caesar's Tahoe, 337 NLRB 1096, 1097 (2002).
It is undisputed that Paris and Lopez were members of Local 731. Membership in that
labor organization, unlike Local 1010, did not exclude one from voting in the election. The only
issue was whether they primarily did asphalt paving. I find that they did. Lopez was entirely
assigned to asphalt paving, while Paris’s responsibilities also included asphalt paving. Paris was
assigned to the back of a large crew and he would follow with the asphalt crew. While he helped
install bracing and sheeting, and backfilling the trench, the majority of his time was spent on the
asphalt paving aspect of the work.
There is a salary and benefits differential between members of Locals 731 and 1018.
However, that difference can be reasonably attributed to the fact that Local 731 members do
temporary asphalt paving, while Local 1018 members mainly performed final asphalt paving.
Furthermore, I am not swayed by the notion that New York’s prevailing wage law would have
required Local 731 members to be paid at the higher rates paid Local 1018 members who
perform asphalt paving. It is undisputed that Local 731 members, as laborers, do asphalt
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paving. The fact that they do this as part of their work and for a certain wage rate is an issue
best left to collective bargaining or enforcement by the New York State Department of Labor.
II. The Objections
The proponent of an election objection has the burden of proving that the conduct
complained of had the tendency to interfere with the employees’ freedom of choice. Double J.
Services, 347 NLRB No. 58, slip op. at 1–2 (2006). That burden is a heavy one because there is
a strong presumption that ballots cast under Board rules and supervision reflect the true desires
of the electorate. See Safeway, Inc., 338 NLRB 525 (2002), and cases there cited.
A. Local 175’s Objection
In its offer of proof submitted to the Acting Regional Director in support of its second
objection, Local 175 asserted that “a named employee” would testify that a few days before the
election, Local 1018 representatives told employees that they would lose their jobs if they voted
for Local 175. As Local 1018’s alleged conduct occurred “within the critical period prior to the
election,” if true, it would warrant setting aside the election. See Regional Director’s Report on
Objections and Notice of Hearing, pp. 17–18.
Local 175 did not, however, produce a witness with respect to the alleged objection.
Neither Employer DeMicco nor Local 1018 called witnesses either. Under the circumstances, I
find that Local 175 has not met its burden of proving that Local 1018 engaged in conduct that
tended to interfere with employees’ free choice. Accordingly, I overrule Local 175’s second
objection.
B. Local 1018’s Objection
The Acting Regional Director recommended sustaining Local 1018’s second objection if
it was found, after a hearing, that either Paris or Lopez was eligible to vote and Local 1018 lost
the election after all eligible votes are counted. Having found that Lopez and Paris are eligible to
vote, Local 1018 has met its burden regarding the first part of its objection, as Employer
DeMicco omitted from its Excelsior list two out of four names. As determined by the Acting
Regional Director, the omission of both names from the list involves a determinative number of
voters and, pursuant to Board precedent, this does not constitute substantial compliance with
Excelsior. See Thrifty Auto Parts Inc., 295 NLRB 1118 (1989). The second part of this objection
obviously depends on the outcome of the election after the votes of Lopez and Paris are
counted. In the event that Local 1018 does not prevail after all eligible votes are counted, the
election shall be set aside, and a new election run.
III. Conclusions and Recommended Order
In accordance with the above findings, I conclude that the challenges to the ballots of
Eladio Lopez and Victor Paris should be overruled and order that the Regional Director open
and count their ballots, I further conclude that Local 175’s second objection to the election does
not have merit and should be overruled. Lastly, in the event that Local 1018 does not prevail
after all eligible votes are counted, the election held on August 31, 2006, shall be deemed
invalid, set aside, and a new election run. The case is remanded to the Regional Director for
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Region 29 to process the matter in accordance with this recommended decision and to issue an
appropriate certification.4
Dated: Washington, D.C., January 16, 2007
____________________
Michael A. Rosas
Administrative Law Judge

4 Pursuant to the provisions of Section 102.69 of the Board’s Rules and Regulations, within
14 days from the date of the issuance of this recommended decision and order, either party may
file with the Board in Washington, D.C., an original and eight copies of exceptions thereto.
Immediately upon filing such exceptions, the party filing them shall serve a copy upon the other
parties and a copy with the Regional Director. If no exceptions are filed to this decision and
order, the Board may adopt the decision and order as its own.