Grace Industries LLC

National Labor Relations Board - Board Decisions

Jun 18, 2012

358 N.L.R.B. 502 (N.L.R.B. 2012)

502
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 62
Grace Industries, LLC and Highway Road and Street
Construction Laborers Local 1010, Laborers In-
ternational Union of North America, AFL–CIO,
Petitioner-Intervenor and United Plant and
Production Workers, Local 175, International
Union of Journeymen and Allied Trades, Peti-
tioner-Intervenor. Cases 29–RC–012031 and 29–
RC–012043
June 18, 2012
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND GRIFFIN
On December 28, 2011, the Regional Director for Re-
gion 29 issued a Second Supplemental Decision, in
which he found a petitioned-for unit comprising all “la-
borers performing site and ground improvement, utility,
paving and road building work and all related work . . .
regardless of material used” to be an appropriate unit for
bargaining, and found a petitioned-for unit comprising
employees who “primarily perform asphalt paving, in-
cluding foremen, rakers, shovelers, screedmen, micro
pavers, AC paintmen and liquid tar workers, seal coaters,
small equipment operators, landscape planting planters,
and fence safety surface installers” but excluding “all
persons primarily performing concrete paving” to be an
inappropriate unit for bargaining.1 Thereafter, in accord-
ance with Section 102.67 of the Board’s Rules and Regu-
lations, Petitioner-Intervenor United Plant and Produc-
tion Workers, Local 175, International Union of Jour-
neymen and Allied Trades (Local 175), filed a timely
request for review. Local 175 contends that a unit com-
prising employees who “primarily perform asphalt pav-
ing” is an appropriate unit.
On February 8, 2012, the Board granted Local 175’s
request for review. Thereafter, Petitioner-Intervenor
Highway Road and Street Construction Laborers Local
1010, Laborers International Union of North America,
AFL–CIO (Local 1010), filed a brief on review.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record in this
proceeding, including the brief on review, we reverse the
Regional Director and find that a unit comprising em-
ployees who “primarily perform asphalt paving” is also
an appropriate unit for bargaining.

1 Both petitioned-for units are limited to work performed in the five
boroughs of New York City.
2 Local 1010’s brief on review contains exhibits that it requests be
admitted into the record. These exhibits are irrelevant to deciding the
unit issue, so we deny the request.
Facts
The Employer is a contractor that provides construc-
tion services in the New York metropolitan area. In this
case, the specific services involved are asphalt paving,
concrete paving, and related preparatory work performed
on roads, bridges, and airport runways in the five bor-
oughs of New York City.3
In general, roads and runways have a concrete base
and are finished (or topped) with either asphalt or con-
crete. In the New York City area, most roads are current-
ly finished with asphalt, and the jobs described in the
record primarily involve repairing and repaving existing
asphalt-finished roads. Preparation work for such jobs
involves job layout, demolition of existing structures,
excavation, installation of drainage (such as catch basins,
pipes, or sewers), milling,4 cleaning the surface of the
exposed concrete base (using hand brooms or operator-
run mechanical sweepers to remove stray millings), and
laying down liquid tar (which ensures the top layer of
asphalt will properly adhere to the base). For some jobs,
preparation work may also require grading, which in-
volves putting down asphalt millings to serve as a base
for the road.5 Between milling and laying down liquid
tar, employees will also repair, i.e., patch cracks in the
concrete base. This work typically involves using a saw
to cut around the crack, jackhammering out the cracked
concrete, and filling the resulting hole with either asphalt
(for shallow-depth repairs) or concrete (for full-depth
repairs).6
Once the necessary preparation work is complete, final
paving begins. For asphalt-finished roads, final paving
usually involves the use of an operator-controlled asphalt
spreader that contains sensors which screedpersons regu-
late to control the flow of asphalt from the spreader.7
Screedpersons require training and experience to effec-

3 The record contains detailed testimony about five of the Employ-
er’s jobs, all from 2008 and 2009: the George Washington Bridge,
Clearview Expressway, John F. Kennedy International Airport, Staten
Island Bridges/Route 440, and Grand Central Parkway.
4 For milling, an operator runs a milling machine, which removes the
top layer of asphalt by grinding it into chips (or millings), while other
employees operate the machine’s sensors.
5 A grading machine and bulldozer (run by operators) do most of the
grading work, but the employees at issue in this case also shovel and
rake the millings, leveling them out as needed, and they may recom-
mend adjustments to the grading machine operator. Of the specific jobs
discussed in the record, only one—John F. Kennedy International Air-
port—clearly involved grading.
6 It is not clear from the record how, or to what degree, preparation
work for concrete-finished roads differs from preparation work for
asphalt-finished roads.
7 Asphalt paving may also be performed without a spreader, in
which case the asphalt pavers simply rake, shovel, and tamp the asphalt
as needed.
GRACE INDUSTRIES, LLC

503
tively operate the spreader’s sensors, and must be able to
account for the amount of available asphalt, the desired
thickness, and slope variations of the surface being
paved. Rakers (who use special steel rakes) follow the
spreader, ensuring that the asphalt is at the correct height
and is properly spread to facilitate water drainage. When
the rakers determine that asphalt must be added or taken
away, shovelers will add or remove the asphalt using
special flat shovels. After the proper amount of asphalt
has been laid down, the asphalt is compacted using hand
rollers, mechanical rollers (run by an operator), or tam-
pers (a small compactor that bounces up and down on the
asphalt). Because asphalt is hot (up to 350 degrees Fahr-
enheit), smelly, and sticky, individuals who work with
asphalt must be accustomed to the material, and in par-
ticular must be able to deal with the heat. Asphalt work-
ers must also be able to contend with the “fluff factor,”
which requires them to calculate, in advance, to what
degree the asphalt will compact based on the weight of
the amount laid down.
By contrast, concrete paving involves constructing
wooden forms (using a hammer and nails), into which
the concrete is poured. After pouring, the concrete is
leveled with a wooden or metal straight edge and fin-
ished with a float. Unlike asphalt, concrete does not re-
quire any raking, shoveling, or compacting once it has
been poured, but it requires time—up to 4 weeks—to
cure. Working with concrete does not involve the heat,
smell, or stickiness associated with asphalt work.
The record indicates that in recent years, employees
who perform asphalt paving spend more time in prepara-
tion for actual asphalt paving than was once the case.
The degree of that difference, however, is unclear. Mi-
chael Pino, the Employer’s vice president of operations,
estimated that asphalt pavers spend 80 percent of their
time on preparation work. By contrast, Glenn Patrick, an
employee who performs asphalt paving, testified that
although he now does more preparation work than he
used to, on the Employer’s recent jobs he still spent 5–7
hours per day raking, which is not preparation work.8
Although there are evident distinctions between the
Employer’s asphalt pavers and other employees, there is
also at least some overlap between the two. The exact
degree of overlap is a matter of dispute, but the record
establishes the following. First, for most jobs discussed
in the record, the Employer utilized separate crews with
distinct specializations. A crew led by Foreman Robert
Maresco handled the actual asphalt paving work. Glenn
Patrick, Anthony DiMaio, Frank Puma, and Giuliano

8 Patrick is also a screedperson, so his raking estimate does not in-
clude all of his asphalt paving work.
Rozza consistently worked on this crew as screedpersons
and rakers. On each job, Maresco’s crew also milled
asphalt, and for most jobs, it saw-cut concrete and per-
formed patch repair using asphalt. Foreman Jose Mo-
rais’ crew specialized in catch basin work and concrete
curb repair, Carlos Nunes’ crew did preparation work for
concrete-pouring and other concrete-related work (such
as full-depth patch repair and repairing or replacing pre-
cast concrete slabs), and Gabe Cavelli’s crew specialized
in excavation. Second, there was at least some overlap
between these crews. Morais, for example, may have
assisted in asphalt paving on one job. Patrick testified
that on one job (Kennedy International Airport) he as-
sisted Cavelli’s crew in excavating a hole, and on another
job (Clearview Expressway) he did concrete repair using
quickset concrete. And DiMaio testified that he used a
compressor to break concrete for a few days on one job
(Grand Central). Additionally, various employees would
assist in cleaning up after the milling machine. Finally,
Maresco’s crew did not consist solely of members from
one union; instead, it generally included several members
of Local 175, two members of Local 1010 (Frank Puma
and Giuliano Rozza), and one member of Local 731.9
As indicated, each specialized crew had its own fore-
man. The record also establishes that the Employer spe-
cifically asked union hiring halls for asphalt workers
when a job required asphalt paving. At the same time,
the various crews were commonly supervised by the
Employer’s project manager and general supervisor.
The record establishes that within New York City,
there is a long history of collective bargaining in separate
asphalt and concrete units. Historically, the Sheet As-
phalt Workers Local Union 1018 (Local 1018) represent-
ed asphalt pavers, while Local 1010 represented concrete
workers.10 Roland Bedwell, a Local 175 witness and
former Local 1018 member, testified, without contradic-
tion, that Local 1018 was established as an asphalt work-
ers’ local sometime in the late 1930s or early 1940s, and
the record contains a collective-bargaining agreement
between Local 1018 and the General Contractors Associ-
ation of New York (GCA) that was effective from July 1,
1972 to June 30, 1975. The record contains similar con-
tracts between Local 1018 and the GCA spanning July 1,
1993 to June 30, 1999, and a contract between Local
1018 and the New York Independent Contractors Alli-

9 Local 731’s full name is Building, Concrete, Excavating and
Common Laborers Union Local 731 of Greater New York, Long Island
and Vicinity of the Laborers International Union of North America,
AFL–CIO. Both petitioned-for units specifically exclude members of
Local 731, as well as the operators noted above.
10 Like Local 1010, Local 1018 was affiliated with the District
Council of Pavers and Road Builders of the Laborers’ International
Union of North America, AFL–CIO.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

504
ance (NYICA) from July 1, 1999, to June 30, 2002.
These agreements set wage rates for the classifications of
screedpersons, rakers, tampers, and “all other men.”11
The record also contains agreements between Local 1010
and GCA or NYICA from July 1, 1996, to June 30, 2002.
In contrast to the Local 1018 contracts, these agreements
set wage rates only for the classifications of formsetters
and laborers.12 These differing classifications are re-
flected in the prevailing wage schedule set by the Office
of the Comptroller for the city of New York.13
At some point in the early 2000s, Local 175 emerged
as a competitor to Local 1018. The record contains
agreements between Local 175 and NYICA effective
from July 1, 2005, to June 30, 2011, that include unit
descriptions and classifications similar to the GCA-Local
1018 contracts (screedperson, raker, tam-
per/shoveler/driver/sawcutter/all other incidental work).14
In about 2005, Local 1010 and Local 1018 were both
placed in trusteeship by the Laborers’ International Un-
ion of North America (LIUNA). The record does not
reveal the precise reasons for this action, but it apparent-
ly was related to allegations that Local 1018’s leadership
had ties to organized crime. The trusteeships lasted for
several years, ending not later than 2009. Sometime in
2009 or 2010, Local 1010 and Local 1018 merged, and
the resultant organization retained the Local 1010 label.
The reasons for the merger are not clear from the record.
Following the merger, Local 1010 and the GCA entered
into a Memorandum of Agreement in May 2010, which
amended an existing Local 1010-GCA contract, effective
from July 1, 2005, to June 30, 2012. Among other
things, the existing agreement was revised to encompass
employees who perform paving work “regardless of the
material used” and to include asphalt worker classifica-
tions (screedperson, raker, and shoveler). The revised
agreement adheres to the historical wage difference be-
tween asphalt pavers and other workers, under which
asphalt paving classifications make about $2 an hour
more than the corresponding concrete classifications.15

11 The 1972–1975 agreement between Local 1018 and GCA does not
contain the screedperson classification.
12 Local 1010’s agreements did not explicitly exclude asphalt work,
but did not include it in a lengthy list of the types of work covered.
13 The prevailing wage schedule set by the Office of the Comptroller
of the city of New York effective from July 1, 2009, through June 30,
2010, specifies rates for paver & roadbuilder–concrete (form setter),
laborer (paving & roadbuilding), paver & roadbuilder–asphalt (asphalt
raker), paver & roadbuilder–asphalt (tamper), and paver & roadbuilder–
asphalt (screenperson, micro paver).
14 The Local 175 agreements also set wages for an “AC/Paintman,
Liquid Tar” classification.
15 Under the terms of the GCA-Local 1010 Memorandum, between
July 1, 2010, and June 30, 2011, screedpersons made $44.35 per hour,
rakers made $43.86 per hour, and shovelers made $40.56 per hour,
In 2006, the Employer purchased the assets of Grace
Industries, Inc., which was bankrupt.16 Shortly after its
creation, the Employer signed an agreement designating
the GCA as its collective-bargaining agent, but the Em-
ployer also signed an agreement designating NYICA as
its collective-bargaining agent. Accordingly, the Em-
ployer was apparently a party to agreements with both
Local 1010 and Local 175. As noted above, the Employ-
er employed members of both Local 1010 and Local 175
on jobs through at least 2009, and paid them according to
their respective collective-bargaining agreements.
Local 1010 filed the first of the instant petitions on
April 25, 2011, and Local 175 filed the second petition
on April 27, 2011. Local 175’s petition seeks a unit in-
cluding employees who “primarily perform asphalt pav-
ing” but excluding “all persons primarily performing
concrete paving,” whereas Local 1010 seeks a unit of
laborers performing “paving and road building and all
related work . . . regardless of the material used.”
THE REGIONAL DIRECTOR’S DECISIONS
The Regional Director’s Second Supplemental Deci-
sion essentially reiterates findings he made in a Decision
and Direction of Election dated August 18, 2011. In that
decision, he found that Local 175’s petitioned-for unit
was inappropriate. Local 175 filed a request for review
of the Decision and Direction of Election and, on De-
cember 8, 2011,17 the Board issued an Order granting the
request for review and remanding the case to the Region-
al Director for further consideration as the decision
raised substantial factual issues.18
In both decisions, the Regional Director acknowledged
the differences between asphalt paving and concrete-
related work and noted the long history of separate bar-
gaining for asphalt paver units in New York City. The
Regional Director declined to give weight to the bargain-
ing history, however, because (1) it was based on agree-

whereas formsetters made $41.58 per hour and laborers made $37.71
per hour. Similarly, under the prevailing wage schedule in evidence,
screenpersons make $42.77 per hour, rakers $42.30 per hour, and tam-
pers $39.25 per hour, whereas formsetters make $40.20 per hour and
laborers make $36.50 per hour.
16 The Regional Director made no finding as to whether the Employ-
er is a successor to Grace Industries, Inc., and the issue was not litigat-
ed at the hearing. Resolution of this issue is unnecessary for deciding
this case.
17 In the interim, the Region conducted an election in the unit found
appropriate by the Regional Director. Local 175 filed objections to the
conduct of the election which are not at issue here. The ballots have
been inadvertently counted, but no certification has issued.
18 The Board also directed the Regional Director to consider the case
in light of Specialty Healthcare & Rehabilitation Center of Mobile, 357
NLRB 934 (2011). Concurring, Member Hayes stated that, under
Specialty Healthcare and his dissenting view, a remand was necessary
to explain why the asphalt-only unit was not appropriate.
GRACE INDUSTRIES, LLC

505
ments made under Section 8(f) of the Act; (2) the “as-
phalt-concrete division was based, at least in part, on
internal LIUNA considerations not necessarily related to
any inherent or inalterable difference” between the two
types of work; (3) Local 1010 no longer agreed that sepa-
rate units were appropriate, indicating that the bargaining
history had been “scuttled”; and (4) the asphalt-concrete
division is not observed elsewhere in the State of New
York. The Regional Director therefore found that there
was “no rational reason to continue the artificial separa-
tion” because the two types of work have never been
totally distinct, asphalt pavers now do more preparatory
work, and there is “significant” overlap between asphalt
pavers and other employees, who work side-by-side in
combined crews under common supervision. In support
of his findings, the Regional Director cited Premier Plas-
tering, Inc., 342 NLRB 1072 (2004), in which the Board
declined to give weight to historical units based solely on
an interunion jurisdictional agreement that had been
“scuttled,” and A. C. Pavement Striping Co., 296 NLRB
206 (1989), where the Board gave little weight to sepa-
rate bargaining history in light of the interchangeable
functions of the two groups of employees involved.
Analysis
As Local 1010’s petitioned-for unit is an appropriate
unit,19 the sole issue before us is whether Local 175’s
petitioned-for unit is also an appropriate unit for bargain-
ing. Contrary to the Regional Director, we find that the
record establishes that a unit of asphalt pavers is appro-
priate.
In the construction industry, the Board has found that a
“readily identifiable and homogenous group with a
community of interests separate and apart from other
employees” is an appropriate unit for bargaining. See
R. B. Butler, Inc., 160 NLRB at 1600. “[T]he fact that
other employees perform some of the same tasks is not
sufficient in itself to render the requested unit inappro-
priate.” Charles H. Tompkins Co., 185 NLRB 195, 196
(1970). In determining whether a community of interest
exists, the Board examines factors such as mutuality of
interests in wages, hours, and other working conditions;
commonality of supervision; degree of skill and common
functions; frequency of contact and interchange with
other employees; and functional integration. Ore-Ida

19 Local 175 disputes the Regional Director’s statement that it con-
ceded the appropriateness of Local 1010’s petitioned-for unit. Assum-
ing Local 175 has not conceded this issue, we would find Local 1010’s
petitioned-for unit is appropriate in any event, because, as an overall
unit, it is presumptively appropriate. See R. B. Butler, Inc., 160 NLRB
1595, 1599 (1966). Local 175 has offered no argument as to why this
presumption should be disturbed in this case.
Foods, Inc., 313 NLRB 1016, 1019 (1994), enfd. mem.
66 F.3d 328 (7th Cir. 1995).
Here, the record establishes that employees who pri-
marily perform asphalt paving have distinct skills and
functions. Screedpersons must be able to operate sensors
on the paving machine, a skill which requires training
and experience; they must know how to properly set the
grade to ensure water runs off the paved surface; and
they must be able to judge the amount of asphalt to be
spread. Although rakers do not operate the sensors on
the asphalt paving machine, they must be able to fix any
mistakes made by the screedpersons, and thus must be
able to account for grade and water runoff. And all as-
phalt workers, including shovelers and tampers, must be
familiar with the properties of asphalt, and must account
for the “fluff factor.” That the asphalt workers have dis-
tinct skills and functions is reflected by the separate crew
the Employer uses for asphalt paving, by the separate
classifications set forth in the relevant collective-
bargaining agreements and area prevailing wage sched-
ule, and by the fact that when the Employer needs to hire
an employee to work with asphalt, the Employer specifi-
cally asks for such an employee.
Additionally, asphalt workers have distinct interests in
wages and working conditions. As previously noted,
asphalt classifications are paid at a notably higher rate
than formsetters or concrete laborers: under the prevail-
ing wage schedule included in the record and the Memo-
randum of Agreement merging the GCA’s agreements
with Local 1010 and Local 1018, asphalt employees
make over $2 per hour more than comparably classified
concrete classifications. Asphalt workers also have dis-
tinct working conditions given the nature of hot asphalt.
In working with asphalt, they utilize distinct tools and
equipment, including steel rakes, flat shovels, paving
machines, tampers, and both hand and mechanical roll-
ers.
Although the record leaves some uncertainty over the
precise degree of overlap, interchangeability, and contact
between asphalt pavers and other employees, we do not
agree with the Regional Director’s finding of “significant
overlap” between asphalt pavers and other employees. In
making this finding, the Regional Director relied on the
testimony of Local 175’s witnesses. Although we readi-
ly agree that Local 175’s witnesses establish some degree
of overlap between asphalt pavers and other employees,
this alone does not render a separate unit of asphalt pav-
ers inappropriate. See Burns & Roe Services Corp., 313
NLRB 1307, 1309 (1994) (“some overlap of lesser
skilled duties does not preclude finding the petitioned-for
unit appropriate”); Charles H. Tompkins, supra at 196.
Nor do we find that the testimony of Local 175’s wit-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

506
nesses about the Employer’s specific jobs demonstrates
that the overlap between asphalt pavers and other em-
ployees is “significant.”
The Regional Director is correct that Local 1010
members assisted in asphalt milling and cleanup, asphalt
patching, dumping asphalt from a truck, and raking and
shoveling asphalt. In almost all of these instances, how-
ever, the Local 1010 members identified by Local 175’s
witnesses were Frank Puma and Giuliano Rozza.20 The
record establishes that Puma and Rozza were former
members of Local 1018, and therefore almost certainly
were experienced asphalt workers. Accordingly, that
these two employees performed asphalt work does not
establish any degree of overlap between asphalt pavers
and other employees.
The Regional Director is also correct that members of
Local 175 assisted in “concrete-related work and other
preparation work, such as milling asphalt, saw-cutting
and jack-hammering out old concrete, concrete repair,
excavation related to sewer installation, and grading.”
Regarding asphalt milling, Local 175’s witnesses did not
indicate that anyone other than Maresco’s crew did this
work.21 Local 175’s witnesses also consistently testified
that when they saw-cut and jackhammered concrete, it
was usually for shallow-depth concrete repairs. As pre-
viously described, such repairs involve the use of asphalt,
and Patrick consistently stated that Maresco’s crew han-
dled such repairs, as opposed to Nunes’ and Morais’
concrete crews, which handled the full-depth repairs.
Thus, the remaining evidence of Local 175 members
doing “concrete-related work” cited by the Regional Di-
rector is that Patrick excavated a hole on one job and did
repairs using quickset concrete on another, and that Di-
Maio used a compressor to break concrete for a few days
on one job. This testimony does not, in our view, estab-
lish a “significant overlap.”
Finally, although the Regional Director correctly notes
that Local 175’s witnesses testified that members of dif-
ferent unions work side-by-side on one crew—
Maresco’s—and are in frequent contact with each other,
this again overlooks the fact that the Local 1010 mem-
bers on Maresco’s crew were Puma and Rozza, who had
a background in asphalt paving. Aside from this circum-
stance, Local 175’s witnesses repeatedly indicated that

20 Patrick testified that on one job, Jose Morais “maybe” assisted the
paving crew. Even if this uncertain testimony were credited, it does not
support finding “significant overlap” between asphalt and concrete
workers.
21 This is also true of grading. Local 1010 makes much of the testi-
mony that Local 175 members performed grading work, but only one of
the jobs described explicitly involved grading, and Patrick’s limited
testimony about grading does not indicate that members of Local 1010
(other than Puma and Rozza) assisted in such work.
asphalt and concrete workers did not work side-by-side
or on the same crews with any frequency, with the possi-
ble exception of cleanup after milling.22
As noted, the Regional Director’s finding of “signifi-
cant overlap” relies on the testimony of Local 175’s wit-
nesses. Employer witness Michael Pino gave testimony
that frequently contradicted Local 175’s witnesses.23 For
example, Pino testified that the Employer’s crews had no
set specialties, that he made work assignments based on
personalities rather than skills in asphalt or concrete pav-
ing, that Maresco’s crew often did concrete work, that
Nunes’ and Morais’ crews often did asphalt work, and
that Patrick frequently performed concrete-related
work.24 Local 1010’s brief on review relies in large part
on Pino’s testimony on these and similar matters. The
significance of this testimony is diminished, however,
because on cross-examination, Pino admitted that
Maresco’s crew specialized in milling and asphalt paving
(precisely the work Patrick claimed the crew did),25 and
that he would assign members of Maresco’s crew to as-
phalt paving because of their familiarity with asphalt.
Moreover, Pino’s testimony about asphalt pavers’ al-
leged concrete work was somewhat general, and was
rarely clear on how frequently or for how long asphalt
pavers performed such tasks. The same is true of Pino’s
testimony about other Local 1010 members (besides Pu-
ma and Rozza) doing asphalt work.
Even if Pino’s testimony establishes other instances of
Maresco’s crew doing concrete work, or of concrete
workers doing asphalt paving, Pino’s testimony is not
sufficient to render Local 175’s petitioned-for unit inap-

22 In his discussion of the facts, the Regional Director cited testimo-
ny of DiMaio that on one job, “[w]e were doing everything” and “[w]e
all spoke together like family.” The Regional Director did not explicit-
ly link this testimony to his findings of overlap and contact, but Local
1010 emphasizes this testimony as supporting these findings. DiMaio
made these statements, however, in explaining how he knew which
unions his crew members belonged to on particular jobs. Elsewhere, he
testified that his crew did asphalt work and that although he saw other
crews doing concrete work, his crew did not work in close proximity to
those crews.
23 Local 1010 witness Lowell Barton also gave testimony that was
directly at odds with Local 175’s witnesses. Barton’s testimony, how-
ever, involved jobs that he worked on between 1998 and 2002 for
Grace Industries, Inc. Such testimony is too remote in time to be given
weight.
24 The Regional Director acknowledged that Pino’s testimony could
not be reconciled with that of Local 175’s witnesses but made no credi-
bility resolutions, in keeping with representation hearing procedures.
See Marian Manor for the Aged & Infirm, Inc., 333 NLRB 1084, 1084
(2001) (“a preelection hearing is investigatory in nature and credibility
resolutions are not made”).
25 Pino also admitted that Morais’ crew specialized in traffic protec-
tion (and also did catch basin work, curb repair, and full-depth concrete
repair work), Nunes’ crew in concrete preparation work, and Cavelli’s
crew in sheeting and excavation.
GRACE INDUSTRIES, LLC

507
propriate. First, Pino’s testimony—even where it is spe-
cific—indicates that other employees spend less than half
of their time performing asphalt paving duties. For ex-
ample, Pino admitted that Nunes’ crew spent about 50
percent of its time doing concrete preparation work,
vaguely alluded to other specializations, and testified that
the crew did asphalt paving “at times.” Likewise, apart
from generalized testimony that Morais’ crew did asphalt
paving, Pino specifically identified only 6 days on one
job when that crew did asphalt work. Given Pino’s ad-
mission that these two crews specialized in various con-
crete-related work, this testimony suggests that these
crews spend significantly less than half of their time on
asphalt paving. In similar circumstances, the Board has
found that such overlap does not render a petitioned-for
unit inappropriate. See Hychem Constructors, Inc., 169
NLRB 274, 276–277 (1968) (fact that other employees
did pipefitters’ work did not render separate unit of pipe-
fitters inappropriate, as other employees spent less than
half of their time performing less skilled pipefitting
jobs); Charles H. Tompkins, supra at 196 (fact that other
employees performed work similar to that of field engi-
neers did not render separate engineers unit inappropri-
ate, as other employees spent significantly less than half
their time performing similar work).
Second, although it is clear that asphalt pavers occa-
sionally perform other duties, Pino’s testimony suggests
that such work was incidental and occasioned by an ab-
sence of paving work. Thus, Pino testified that Patrick
did “all the activities” at the Kennedy Airport job when
there was no paving or asphalt preparation work for him
to do; linked the asphalt pavers only to patch repair on
the Grand Central Parkway job, while admitting that Mo-
rais’ and Nunes’ crews did about 75 percent of the patch
work on that job; and explicitly agreed with Patrick’s
characterization of the Staten Island/Route 440 job,
which was that Patrick and a few asphalt pavers spent 2–
3 nights out of 2 months on the job doing concrete patch
repair and otherwise did asphalt milling and paving. The
Board has found that similar instances of overlap do not
render a petitioned-for unit inappropriate. See, e.g., Dick
Kelchner Excavating Co., 236 NLRB 1414, 1415 (1978)
(separate unit of drivers remains appropriate where driv-
ers also worked as laborers “to give them something to
do” when there were no driving tasks to perform); Hydro
Constructors, Inc., 168 NLRB 105, 105 (1967) (separate
units of laborers appropriate even though laborers and
drivers sometime perform same tasks because laborers
“are engaged a substantial majority of their time in labor-
ers’ duties”). On the whole, Pino’s testimony clearly
supports finding an overall unit appropriate, but it does
not render Local 175’s petitioned-for unit inappropriate.
Given the asphalt pavers’ distinct skills and functions,
distinct interests in wages and working conditions, and
the lack of a substantial overlap with other employees,
Local 175’s petitioned-for unit is an appropriate unit for
bargaining. Although all workers on a job are ultimately
supervised by the Employer’s project manager and gen-
eral supervisor, this circumstance does not outweigh the
other factors supporting the appropriateness of Local
175’s petitioned-for unit. See, e.g., Hydro Constructors,
supra (common upper-level supervision outweighed by
other factors favoring separate unit).
The appropriateness of Local 175’s petitioned-for unit
is further confirmed by the relevant bargaining history.
The Board’s traditional deference to bargaining history
“is generally applicable in the construction industry,” and
bargaining history based on 8(f) agreements may be de-
terminative where only limited evidence concerning
community-of-interest factors is available. P. J. Dick
Contracting, 290 NLRB 150, 151 (1988).26 Of course,
the Board does not give substantial weight to bargaining
history that “departs from statutory provisions or clearly
established Board policy.” A. C. Pavement Striping Co.,
296 NLRB 206, 210 (1989), quoting William J. Keller,
Inc., 198 NLRB 1144, 1145 (1972). Nor will the Board
give weight to a history of separate units based largely on
the convenience to the unions involved. See, e.g., Prem-
ier Plastering, Inc., 342 NLRB 1072, 1072–1073 (2004).
Here, the Employer, through GCA and NYICA, previ-
ously bargained in separate asphalt and concrete units, at
least into 2010. This situation appears to have changed
only due to the merger of Local 1010 and Local 1018.
Apart from that merger, undertaken for reasons that ap-
pear to be unrelated to the work, there is an extensive
history of separate asphalt and concrete units in New
York City. Roland Bedwell testified, without contradic-
tion, that Local 1018 represented separate asphalt units
as far back as the late 1930s, and the various collective-
bargaining agreements in the record demonstrate that
units similar to Local 175’s petitioned-for unit have been
recognized since at least the early 1970s. Although this
general history does not necessarily implicate the Em-
ployer, area practice and the history of bargaining in the
industry are relevant considerations in determining the
appropriateness of a petitioned-for unit. See R. B. Butler,
Inc., 160 NLRB at 1597–1598 (citing bargaining history
in industry and area as evidence supporting a petitioned-
for unit of construction laborers); Del-Mont Construction
Co., 150 NLRB 85, 87 (1964) (finding appropriateness

26 Local 175 argues that the bargaining history is in fact based on
agreements governed by Sec. 9(a), but it points to no record evidence
that supports this contention.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

508
of separate unit of heavy-equipment operators supported
by historical industry practice).
The reasons cited by the Regional Director and Local
1010 for according little weight to this history of separate
bargaining find no support in the record or in extant law.
First, there is no evidence supporting the Regional Direc-
tor’s finding that the history of bargaining in separate
asphalt and concrete units was based “at least in part” on
internal LIUNA considerations. Indeed, what evidence
there is suggests that the Local 1010-Local 1018 mer-
ger—not the historical work separation—was the result
of internal considerations.27 In that regard, it is notable
that the merged agreement between GCA and Local 1010
retains the distinctions between asphalt and concrete
classifications and wage rates, and that the city of New
York continues to observe the asphalt-concrete distinc-
tion in setting prevailing wage rates. Second, the bar-
gaining history outside of New York City is of limited
relevance to this case, and in any event, the record does
not clearly establish what the statewide history is.28 Fi-
nally, the cases cited by the Regional Director are readily
distinguishable. In A. C. Pavement Striping, supra, the
Board refused to give weight to a history of bargaining in
two separate units where the employees in those two
units had interchangeable job functions, thus indicating
that the bargaining history was solely the result of “his-
torical accidents.” See id. at 210. Here, the separate
history is not solely the result of historical accident, and,
as the Regional Director himself found, asphalt and con-

27 There is little evidence regarding the internal workings of the
LIUNA and its locals. As noted above, the former leaders of Local
1018 allegedly had ties to organized crime. In December 2005, Locals
1010 and 1018 were placed in a trusteeship, which ended not later than
2009. The two locals merged in 2009 or 2010, after the trusteeship
ended. None of these circumstances shows that the prior longstanding
history of separate asphalt and concrete bargaining was due to internal
convenience, per the Regional Director’s findings, or that the separa-
tion was an artificial one created by Local 1018’s former leaders, as
argued by Local 1010.
28 Local 1010 introduced two exhibits concerning the statewide prac-
tice regarding asphalt and concrete units. Although these exhibits
seemingly indicate that the New York State Department of Labor treats
asphalt and concrete workers somewhat differently from the Office of
the Comptroller for the city of New York, the only arguable evidence
of bargaining history contained in these exhibits is a letter from the
Eastern New York Laborers’ District Council that states that its locals
“do not make any distinction in dispatching our members for asphalt or
concrete work.”
crete workers are not interchangeable. Likewise, in
Premier Plastering, supra, the Board found that bargain-
ing history was the “only fact that could justify” a peti-
tioned-for unit that corresponded to a historical unit. Id.
at 1073. As the foregoing discussion makes clear, here
the relevant bargaining history is not the only fact that
justifies the historical separation of asphalt and concrete
units.29
To be clear, the bargaining history in this case is not
controlling. Even so, it is a relevant consideration in our
analysis, and it supports our finding that a unit limited to
asphalt pavers is an appropriate unit for bargaining.
Conclusion
For the reasons discussed above, we find that a unit
comprised of employees who “primarily perform asphalt
paving” is an appropriate unit for bargaining, as these
employees are readily identifiable and have a community
of interests separate from other employees. The fact that
asphalt pavers have historically bargained in separate
units in the New York City area further supports this
finding. Having found that a unit comprised of laborers
who perform “paving and road building work and all
related work . . . regardless of material used” is also an
appropriate unit, we find, pursuant to our usual prac-
tice,30 that a self-determination election is appropriate
under these circumstances.
31
ORDER
This proceeding is remanded to the Regional Director
for appropriate action consistent with the Decision and
Order.

29 The “scuttling” of the bargaining history that took place in Prem-
ier Plastering also differs from the situation in this case. In Premier
Plastering, the Bricklayers and Operative Plasterers had been bound to
a nationwide agreement establishing geographical limitations on each
others’ jurisdiction. See id. at 1072. The dispute underlying Premier
Plastering—which the Board described as “unique”—arose when the
Operative Plasters unilaterally revoked the agreement, a move upheld
by the AFL–CIO. See id. Here, by contrast, there was never an in-
terunion agreement regarding geographical jurisdiction, a revocation of
the agreement, or an upholding of that move by any applicable govern-
ing bodies; rather, there is simply a long history of bargaining in units
limited to asphalt pavers.
30 See Armour & Co., 40 NLRB 1333 (1942); Globe Machine &
Stamping Co., 3 NLRB 294 (1937).
31 It is therefore unnecessary to address the Regional Director’s find-
ing that Specialty Healthcare, supra, does not apply to this case.