New York Paving, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 27, 2020

29-CA-233990 (N.L.R.B. Jan. 27, 2020)

JD(NY)-01-20
Brooklyn, NY

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

NEW YORK PAVING, INC.
Case Nos. 29-CA-234894
and 29-CA-233990

CONSTRUCTION COUNCIL LOCAL
175, UTILITY WORKERS UNION OF
AMERICA, AFL-CIO

and

ELIJAH JORDAN, an Individual

Noor I. Alam, Esq., for the General Counsel.
Eric B. Chaikin, Esq. (Chaikin & Chaikin),
of New York, New York, for the Charging Party
Jonathan D. Farrell, Esq. and Ana Getiashvili, Esq.
(Meltzer, Lippe, Goldstein & Breitstone, LLP) of
Mineola, New York, for the Respondent

DECISION

Statement of the Case

LAUREN ESPOSITO, Administrative Law Judge. This case was tried before
me in Brooklyn, New York, on July 15 through 18, 2019 and August 14, 2019. On
January 14, 2019, Elijah Jordan filed a charge in Case No. 29-CA-233990 against New
York Paving, Inc. (NY Paving), and on January 29, 2019, Construction Council Local
175, Utility Workers Union of America, AFL-CIO (Local 175) filed a charge in Case No.
29-CA-234894 against the company. On April 30, 2019, the Regional Director, Region
29, issued an Order Consolidating Cases, Amended Consolidated Complaint and
Notice of Hearing alleging that NY Paving violated Sections 8(a)(1) and (3) of the Act by
discharging Elijah Jordan in retaliation for his support for, assistance to, and/or affiliation
with Local 175. The Consolidated Complaint further alleges that NY Paving violated
JD(NY)-01-20

Sections 8(a)(1) and (5) of the Act by transferring work subject to its collective
bargaining agreement with Local 175 to non-bargaining unit employees.1 The
Consolidated Complaint also alleges that NY Paving, by its agent Steven Sbarra,
violated Section 8(a)(1) by interrogating employees regarding their affiliation with Local
175, and by threatening employees with discharge in retaliation for their support for and 5
affiliation with Local 175. NY Paving filed an Answer on May 8, 2019 denying the
Consolidated Complaint’s material allegations.2

As discussed in further detail below, the parties in the instant case have been
involved in previous cases before the agency. On April 5, 2019, Judge Andrew S. 10
Gollin issued a Decision in New York Paving, Inc., JD-33-19, to which no Exceptions
were filed. On August 24, 2018, the Board issued a Decision and Determination of
Dispute in Highway Road and Street Construction Laborers, Local 1010 (New York
Paving), 366 NLRB No. 174, a Section 10(k) proceeding involving NY Paving, Local
175, and Highway Road and Street Construction Laborers Local 1010, District Council 15
of Pavers and Builders, Laborers International Union of North America, AFL-CIO (Local
1010). I took administrative notice of both of these decisions during the hearing in this
matter. Tr. 685.

On November 13, 2019, NY Paving filed a Motion to Re-Open the Record to 20
admit several documents into evidence. Counsel for the General Counsel (General
Counsel) and Local 175 filed Oppositions, and NY Paving filed a Reply. I granted NY
Paving’s Motion by Order dated December 10, 2019, and admitted the documents into
evidence as Respondent’s Exhibit 24. My December 10, 2019 Order also
supplemented the record by admitting into evidence as ALJ Exhibit 1 the collective 25
bargaining agreement between NY Paving and Local 175 dated July 1, 2014 through
June 30, 2017. A copy of my December 10, 2019 Order is attached hereto as Appendix
B.

On the entire record, including my observation of the demeanor of the witnesses, 30
and after considering the briefs filed by General Counsel, NY Paving, and Local 175, I
make the following

35

1 The Consolidated Complaint also alleged that NY Paving violated Sections 8(a)(1) and (5) by unilaterally
implementing a policy of issuing write-ups for excessive absences that had not been previously approved,
and by unilaterally implementing a policy requiring employees performing work covered by the Local 175
collective bargaining agreement to provide a doctor’s note for absences. These allegations were
withdrawn by an Order issued by the Regional Director, Region 29, on June 5, 2019.
2 At the outset of the hearing, General Counsel moved to strike the portion of NY Paving’s Answer
denying that it unilaterally transferred emergency keyhole work encompassed by the Local 175 collective
bargaining agreement to non-bargaining unit employees. I denied General Counsel’s motion, because at
that point the precise scope of the work that General Counsel was contending had been unlawfully
unilaterally transferred was not clear. Tr. 40-48.
JD(NY)-01-20

3

Findings of Fact

I. Jurisdiction

NY Paving, a corporation with an office and place of business in Long Island City, 5
New York, provides asphalt and concrete paving services. NY Paving admits, and I
find, that it is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. New York Paving also admits, and I find, that Local 175 is a
labor organization within the meaning of Section 2(5) of the Act.
10
II. Alleged Unfair Labor Practices

A. The Parties and Respondent’s Operations

NY Paving provides asphalt and concrete paving services for utilities in the five 15
boroughs of New York City, repairing streets and sidewalks after a utility has performed
work underground. New York Paving’s clients include the utility companies National
Grid and Consolidated Edison (ConEd), and The Hallen Construction Co., Inc. (Hallen),
a company which contracts with National Grid and ConEd to provide construction and
paving services. Tr. 421-423, 897-898. 20

NY Paving employs approximately 500 employees, 250 to 300 of whom work out
of its yard in Long Island City. In addition to its collective bargaining relationship with
Local 175, NY Paving has a long-standing collective bargaining relationship with Local
1010. NY Paving also has collective bargaining relationships with International Union of 25
Operating Engineers, Local 14-15, International Brotherhood of Teamsters, Local 282,
and several other building trades unions in the New York City area. Tr. 837-838.

The instant case involves asphalt and concrete work, and NY Paving’s
relationships with Local 175 and Local 1010. Local 175 and Local 1010 have been the 30
certified collective bargaining representatives of their respective units since October 16,
2007 (Local 175) and January 5, 2006 (Local 1010). New York Paving, Inc., JD-33-19
at p. 4-5. Local 175’s certification describes its bargaining unit as follows:

All full-time and regular part-time workers who primarily perform asphalt 35
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, who
work primarily in the five boroughs of New York City. 40

New York Paving, Inc., JD-33-19 at p. 4.

NY Paving stipulated during the hearing before Judge Gollin in New York Paving,
Inc., JD-33-19, that it adopted the terms of Local 175’s collective bargaining agreement 45
with the Independent Contractor’s Alliance, Inc. (NYICA) by conduct, although NY
JD(NY)-01-20

4

Paving is not a member of NYICA. This collective bargaining agreement was effective
by its terms from July 1, 2014 through June 30, 2017, and NY Paving stipulated that the
contract’s terms continued through June 30, 2018. The contract covers “All Asphalt
Paving work,” defined as follows:
5
(a) Prepare for and perform all types of asphalt paving, slurring including
methacrylate and other similar materials and milling of streets and roads,
and all other preparation work involved to prepare for resurfacing and to
operate small power tools, operate all equipment necessary to install all
types of resurfacing including sandblasting, chipping, scrapping of all 10
materials, install and repair fences and all incidential work thereto to
continue into parks, plazas, malls, housing projects, playgrounds, said
work including but not limited to public highways and roads and bridges;
including, but not limited to all subsequent work prior to final paving.
15
(b) All asphalt slurry (protective polymer) restoration work, including all
preparation for slurry and all bridges, temporary asphalt paving necessary
on streets, sidewalks and private property and federal, city, local and state
and roads subsequent to subway, sewer, water main, duct line
construction and other similar type jobs. 20

(c) Any laboring work related to the preparation and cleanup of all Turf
and all material, used as a base for Turf including drainage, all
landscaping, all labor relating to planting and maintenance, cleanup,
installation and removal of play equipment, slurry/seal-coating, line striping 25
and sawcutting, shall be performed by persons under the jurisdiction of
Local 175.

(d) Maintenance and protection of traffic safety for all work sites.
30
(e) All other General Construction work related to Asphalt Paving

(f) Safety Watchman
Signaling in connection with the handling of materials, watchmen on all
construction sites, Traffic control and all elements to ensure a safe work 35
environment.

ALJ Ex. 1, p. 9 (Article VIII); see also Highway Road and Street Construction Laborers,
Local 1010 (New York Paving), 366 NLRB No. 174 at p. 3. The collective bargaining
agreement explicitly states that Local 175 has been recognized as an exclusive 40
collective bargaining representative pursuant to Section 9(a) of the Act. ALJ Ex. 1, p. 2
(Article I).

Local 1010’s certification describes its bargaining unit as follows:
45
JD(NY)-01-20

5

All full-time and regular part-time site and grounds improvement, utility,
paving & road building workers who primarily perform the laying of
concrete, concrete curb setting, or block work, including foremen, form
setters, laborers, landscape planting and maintenance employees, fence
installers and repairers, slurry/seal coaters, play equipment installers, 5
maintenance safety surfacers and small power tools and small equipment
operators, who work primarily in the five boroughs of New York City.

New York Paving, Inc., JD-33-19 at p. 4-5. Local 1010’s collective bargaining
agreement also covers “the removal of old pavement, curbs, and sidewalks to the 10
subgrade,” “operating small power tools and…equipment,” “landscaping which is
incidental to paving work and encompasses…the planting and maintenance of trees,
shrubs, grass, beach grass, and similar plant matter,” and “maintenance and protection
of traffic safety for work under the Local’s jurisdiction.” Highway Road and Street
Construction Laborers, Local 1010 (New York Paving), 366 NLRB No. 174 at p. 3. 15

The collective bargaining agreement between Local 175 and NY Paving contains
several other provisions which are relevant here. Article I, Section 2(f) provides that NY
Paving “is at liberty to employ and discharge whomsoever [it sees] fit,” and states that
NY Paving “shall at all times be the sole judge as to the work to be performed and 20
whether such work performed by an [e]mployee is or is not satisfactory.” ALJ Ex. 1, p.
5; see also New York Paving, Inc., JD-33-19 at p. 5, fn. 8. Article IV of the collective
bargaining agreement between NY Paving and Local 175 contains a provision for the
contract’s renewal as follows:
25
This Agreement shall continue in effect until and including June 30, 2017,
and during each year thereafter unless on or before the fifteenth (15th) day
of March 2017, or on or before the fifteenth (15th) day of March of any year
thereafter, written notice of termination or proposed changes shall have
been served by either party on the other party. 30

In the event that written notice shall have been served, an agreement
supplemental hereto, embodying such changes agreed upon, shall be
drawn up and signed by June 30th of the year in which notice shall have
been served. 35

ALJ Ex. 1, p. 7; see also R.S. Ex. 20, at p. 7-8.3 Finally, it should be noted that the
collective bargaining agreement between Local 175 and NY Paving does not contain
any management rights clause. ALJ Ex. 1.
40

3 In an action for a declaratory judgment filed in the United States District Court for the Eastern District of
New York on May 18, 2018, NY Paving contends that it provided Local 175 with notice terminating the
contract on February 18, 2018. R.S. Ex. 20, p. 8 (Case 1:18-cv-02968). NY Paving also contends in that
litigation that the language of Article IV provides for a one-year automatic renewal only. R.S. Ex. 20, p. 8,
13. According to NY Paving’s complaint, Local 175 has asserted that the renewal term of the contract is
an additional five years. R.S. Ex. 20, p. 12.
JD(NY)-01-20

6

Peter Miceli is NY Paving’s Director of Operations, and oversees all work
performed by the company in New York City and at the Long Island City yard. Tr. 421,
836. Miceli has been Director of Operations for 22 years, and reports to Anthony
Bartone, Jr., one of NY Paving’s owners. Tr. 837; see New York Paving, Inc., JD-33-19,
at p. 3. Miceli also works with New York Paving’s attorney Bob Coletti. Tr. 837. Robert 5
Zaremski is NY Paving’s Operations Manager, and is responsible for routes and crews
performing asphalt work out of the Long Island City yard. Tr. 491-492. Louis Sarro is
similarly responsible for routes and crews performing concrete work out of the Long
Island City yard. Tr. 785-787. Miceli, Zaremski, and Sarro all testified at the hearing.
Terry Holder is employed by NY Paving and is the current shop steward for the asphalt 10
workers represented by Local 175. Tr. 219-220. Steven Sbarra is the current shop
steward for Local 1010, and performs similar functions for the concrete workers in that
bargaining unit. Tr. 161. Holder testified at the hearing, but Sbarra did not.

Local 175’s business manager Charlie Priolo and attorney Eric B. Chaikin, Esq. 15
testified at the hearing for General Counsel, as did alleged discriminatee Elijah Jordan.
Tr. 353, 631. Local 1010’s Secretary-Treasurer Francisco Fernandez, NY Paving’s
attorney Jonathan Farrell, foremen William Cuff, Michael Whelan, and Joseph Stine,
and employee Tomasz Zywiec also testified on Respondent’s case. Tr. 687, 712-713,
726-727, 745, 754-755, 1033. 20

B. Background and Previous Proceedings

Miceli testified without contradiction that NY Paving’s relationship with Local 175
was generally good until the fall of 2016. Tr. 838. At that time, the New York City 25
Department of Transportation (NYCDOT) announced changes in its regulations for
construction on city streets, so that every repair was required to have a concrete base.
Tr. 872-873, 948. Before this change in regulation, holes excavated by the utilities and
their contractors were 12 inches deep after the job was completed, and NY Paving filled
them with asphalt the same day. Tr. 872-873, 988, 1009. Pursuant to the change in 30
NYCDOT regulations, these holes had to be filled with concrete, which required that the
holes be excavated first. Tr. 872, 948, 1009-1010. Because the businesses in the
industry were generally unprepared for this change, which entailed a dramatic increase
in the amount of concrete work, the NYCDOT did not implement the new rules until April
1, 2017. Tr. 879, 948; see also New York Paving, Inc., JD-33-19 at p. 6. 35

The increase in the amount of concrete work required pursuant to the change in
NYCDOT regulations engendered an intense, increased demand for additional concrete
workers. Miceli testified without contradiction that because the concrete work
“exploded” in 2017, NY Paving needed to hire 150 to 200 concrete workers within a 40
single year. Tr. 915, 948, 1024-1025. As a result, NY Paving was willing to hire even
inexperienced employees to perform concrete work on a trial or “extra” basis, to attempt
to learn the work and determine whether they were physically capable of performing it.
Tr. 915-916, 918, 947-949. These employees were employed by an entity called Di-Jo
JD(NY)-01-20

7

Construction.4 Tr. 914-915; see also New York Paving, Inc., JD-33-19 at p. 4. The Di-
Jo Construction employees accompanying established concrete crews were paid $20
per hour while they observed the regular crews and attempted to learn concrete work.
Tr. 918, 949-950. Miceli estimated that about ¾ of the Di-Jo Construction employees
who tried concrete work quit because they were unable to perform it, but those who 5
“were really good after a month or two” were hired by NY Paving and joined Local 1010,
subsequently receiving full contract wages and benefits.5 Tr. 917, 950. Miceli testified
that NY Paving continued this practice for about a year and a half, until the end of 2017,
and there were no Di-Jo Construction employees performing concrete work in 2018.6
Tr. 917, 957. According to Miceli’s unrebutted testimony, on November 2017, all of the 10
remaining Di-Jo Construction employees were put on NY Paving’s payroll, joined Local
1010, and were expected to perform as regular concrete crew members, as opposed to
on a trial or “extra” basis as they had done previously. Tr. 964-966.

The relationship between NY Paving and Local 175 was also affected by 15
changes in ConEd’s contractual relationships with its contractors. Hallen had a contract
with ConEd which was at least partially subcontracted to NY Paving, effective from
approximately 2008 to late 2016 or early 2017. Tr. 586-587, 889. In 2014, ConEd
amended its Standard Terms and Conditions for Construction Contracts to require that
its subcontractors employ only workers represented by local building trades unions 20
affiliated with the Building & Construction Trades Council of Greater New York
(NYCBTC). See New York Paving, Inc., JD-33-19 at p. 6-7; see also Nico Asphalt
Paving, Inc., 368 NLRB No. 111 at p. 3 (2019); Tri-Messine Construction Company,
Inc., 368 NLRB No. 149 at p. 5-6 (2019). Because Local 175 is not a member of the
NYCBTC, paving businesses contracting with ConEd were not allowed to use Local 175 25
members to perform work on ConEd projects. At the time, this change affected other
asphalt and concrete paving businesses in the New York City area, including Nico
Asphalt Paving, Inc. (Nico) and Tri-Messine Construction Company, Inc. (Tri-Messine),
both of which, according to Miceli, stopped using workers represented by Local 175 so
that they could continue to work on projects for ConEd.7 Tr. 839-840. However, NY 30

4 Employees of Di-Jo Construction also worked in NY Paving’s Long Island City yard as mechanics and
guards. Tr. 916-917.
5 Miceli testified that he made the determination to hire Di-Jo Construction employees for a regular NY
Paving concrete crew based on the recommendations of Sarro and the foremen with whom the Di-Jo
Construction employees had worked. Tr. 951-953, 961-962. Miceli testified without contradiction that NY
Paving did not have a similar process for asphalt workers, because there was no need to hire a large
number of new asphalt workers in a short period of time. Tr. 918.
6 Sarro, who distributes paychecks to concrete workers, testified at the hearing that he had not seen
paychecks from Di-Jo Construction, which were a different color from NY Paving paychecks, for over a
year. Tr. 806-807, 825.
7 Local 175 filed unfair labor practice charges against Nico and Tri-Messine, complaints were issued by
the Regional Director, Region 29, and hearings took place in December 2017 and April 2018,
respectively. On November 2 and December 17, 2018, respectively, Administrative Law Judge Jeffrey P.
Gardner issued Decisions finding that Nico and Tri-Messine had violated Sections 8(a)(1) and (5) by
refusing to bargain with Local 175, and refusing apply their collective bargaining agreements with Local
175 to their alter ego entities City Wide Paving, Inc. and Callahan Paving Corp, respectively. Judge
Gardner further found that Nico and Tri-Messine violated Sections 8(a)(1) and (2) by recognizing Local
1010 as the collective bargaining representative of employees of City Wide Paving, Inc. and Callahan
JD(NY)-01-20

8

Paving’s contract with Hallen at the time did not explicitly prohibit the use of workers
represented by unions not affiliated with the NYCBTC, so NY Paving continued to
assign asphalt workers represented by Local 175 to perform work pursuant to the
Hallen subcontract. Tr. 890-891.
5
Miceli testified that as a result of the situation involving Nico and Tri-Messine, in
April and May of 2017, Local 175 began referring members to NY Paving who had
never before worked for the company, in lieu of long-standing NY Paving employees.
Tr. 839-840. Miceli testified that NY Paving could no longer maintain steady, stable
crews of asphalt workers as a result. Tr. 842, 847-848. In addition, Miceli testified that 10
two of the members referred by Local 175 in late 2016 or early 2017 were not legally
authorized to work in the United States. Tr. 845-846, 945. Miceli testified that he
complained to Local 175’s business agent at the time, Roland Bedwell, on several
occasions, and Bedwell responded that the members being referred to NY Paving
needed to “make their hours.” Tr. 840-841. Miceli protested that this rationale would 15
make sense at the end of the year, but not at the beginning of the work season. Tr.
842. Miceli testified that as a result of Local 175’s “cycling” of members through NY
Paving, the company decided to create a limited list of Local 175 asphalt workers who
were e-verified and issued badges to work at NY Paving. Tr. 848-849-853; R.S. Ex. 19.
This list changes from time to time, as additional members of Local 175 are hired, or 20
members of Local 175 leave their employment with the company. Tr. 854-855.
However, only individuals who appear on the list may perform asphalt work for NY
Paving.8 Tr. 854.

In 2017, Hallen and ConEd renegotiated their contract. Tr. 587. When Hallen 25
subsequently renegotiated its subcontract with NY Paving, effective January 1, 2018,
ConEd’s Standard Terms and Conditions for Construction Contracts were included.
G.C. Ex. 19, p. NYP115. According to Miceli’s uncontradicted testimony, the Standard
Terms and Conditions for Construction Contracts had never before been incorporated
into NY Paving’s contract with Hallen. Tr. 890. The Standard Terms and Conditions for 30
Construction Contracts included language providing as follows:

With respect to Work ordered for ConEdison, unless otherwise agreed to
by ConEdison, Constractor shall employ on Work at the construction site
only union labor from building trades locals (affiliated with the Building & 35

Paving Corp., despite the application of Local 175’s contracts to their bargaining units. Judge Gardner
also found that Tri-Messine violated Sections 8(a)(1) and (3) by terminating all of its employees on March
3, 2017. Judge Gardner’s Decisions in both cases were affirmed by the Board. See generally, Nico
Asphalt Paving, Inc., 368 NLRB No. 111 (November 6, 2019); Tri-Messine Construction Company, Inc.,
368 NLRB No. 149 (December 16, 2019).
8 The badge requirement and policy went into effect in summer 2017, and applies to all workers employed
by NY Paving, including members of Local 1010, Local 14-15, Local 282, and other labor unions. Tr.
852-853. However, NY Paving only created a list with a limited number of craft workers with respect to
Local 175. Miceli’s testimony regarding the rationale for and implementation of the badging policy and
the Local 175 list was not contradicted by any other testimony or documentary evidence. There is no
allegation that the implementation of the badge policy or the Local 175 list violated the Act. See also New
York Paving, Inc., JD-33-19 at p. 11.
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9

Construction Trades Council of Greater New York) having jurisdiction over
the Work to the extent such labor is available.

G.C. Ex. 19, p. NYP129.
5
On April 28, 2017, Local 1010 filed a petition for a representation election
seeking to replace Local 175 as the collective bargaining representative of NY Paving’s
asphalt workers. New York Paving, Inc., JD-33-19, at p. 2. The previous day, Local
175 had filed the first of a series of unfair labor practice charges alleging that NY Paving
violated Sections 8(a)(1) and (2) of the Act by soliciting employees represented by Local 10
175 to sign authorization cards for Local 1010, and violated Section 8(a)(1) by
threatening employees with discharge if they did not sign Local 1010 authorization
cards. New York Paving, Inc., JD-33-19, at p. 2. Local 175 also filed charges alleging
that NY Paving discharged various employees, refused to recall employees from layoff,
refused to hire employees, and caused the discharge of employees, in violation of 15
Sections 8(a)(1), (3), and (4). Id. These charges were consolidated for a hearing
before Administrative Law Judge Andrew S. Gollin, which took place in September,
October, and November 2018. New York Paving, JD-33-19, at p. 1-2. On April 5, 2019,
Judge Gollin issued a Decision finding that NY Paving provided unlawful assistance and
support to Local 1010 by urging employees represented by Local 175 to sign 20
authorization cards for Local 1010, in violation of Sections 8(a)(1) and (2). New York
Paving, Inc., JD-33-19, at p. 32. Judge Gollin also found that NY Paving threatened
employees represented by Local 175 with discharge if they did not sign authorization
cards for Local 1010. Id. However, Judge Gollin recommended that the allegations
regarding violations of Sections 8(a)(3) and (4) be dismissed. Id. There were no 25
Exceptions filed to Judge Gollin’s Decision.

On April 28, 2017, Local 175 also filed a grievance with the New York
Independent Contractors Alliance alleging that NY Paving had violated its collective
bargaining agreement by assigning bargaining unit work to members of Local 1010. 30
Highway Road and Street Construction Laborers Local 1010 (New York Paving), 366
NLRB No. 174 at p. 1. On July 2017, Local 1010 threatened NY Paving with various
actions, including “picketing and work stoppages,” precipitating a charge alleging that
Local 1010 violated Section 8(b)(4)(D) and a jurisdictional dispute proceeding pursuant
to Section 10(k) of the Act. Id. A hearing was held in Region 29 on September 5 and 6 35
and October 2 and 10, 2017. Id. On August 24, 2018, the Board issued a Decision and
Determination of Dispute, finding that NY Paving employees represented by Local 1010
“are entitled to perform sawcutting, excavation, and seed and sod installation, and that
employees represented by both Local 1010 and Local 175 are entitled to perform any
necessary cleanup relating to the underlying work each local performs.” Highway Road 40
and Street Construction Laborers Local 1010 (New York Paving), 366 NLRB No. 174 at
p. 5. Thus, the Board ruled that, “we are awarding sawcutting, excavation, seed and
sod installation, and cleanup arising from work performed by Local 1010 to employees
represented by Local 1010.” Id. The Board further awarded “cleanup arising out of
work performed by Local 175 to employees represented by Local 175.” Id. 45

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10

Finally, on May 18, 2018, New York Paving filed an action in the United States
District Court for the Eastern District of New York against Local 175 and various benefit
funds seeking a declaratory judgment and monetary damages. R.S. Ex. 20 (Case 1:18-
cv-02968). This action seeks a judgment to the effect that if NY Paving uses employees
represented by Local 1010 to perform asphalt paving work subject to a subcontract 5
involving ConEd, Local 175 and the benefits funds may not file a grievance or arbitration
proceeding, and NY Paving will not be obligated to make contributions to the Local 175
benefit funds. R.S. Ex. 20, p. 16. This action was pending at the time of the hearing in
the instant case.
10
C. Work Assignments and Operations at the Long Island City Yard

Louis Sarro and Robert Zaremski are supervisors at NY Paving’s Long Island
City yard responsible for crews performing concrete and asphalt work, respectively. Tr.
786. Sarro and Zaremski set up the crews for each foreman, assigning and removing 15
workers from steady crews. Tr. 496, 514-515, 786-787, 790, 803-804, 798, 939-940,
955-957. Sarro and Zaremski determine how many crews go out each day based on
work orders, determine what work each crew will perform, and formulate crew routes.
Tr. 492, 498-500, 786-787, 798. They also process paperwork submitted by the
foremen regarding the jobs the crews have performed. Tr. 503-504, 768-787. Sarro 20
and Zaremski report to Peter Miceli and Robert Coletti. Tr. 786.

Steven Sbarra and Terry Holder are shop stewards for Local 1010 and Local
175, respectively, and are selected for those positions by the unions. Tr. 796, 932-933.
Sarro and Miceli testified that Sbarra does not have the authority to determine which 25
employees work on a particular crew, nor does Sbarra have the authority to hire, fire, or
transfer employees, approve employees for badges, or increase or decrease wages.
Tr. 796, 798-799, 933-934. Sarro testified that during his 39 years of employment with
Respondent, he had never seen Sbarra in any of the company-wide management
meetings with Miceli that he attends. Tr. 799. Miceli testified that Sbarra and Holder 30
convey information from Sarro and Zaremski to the Local 1010 and Local 175-
represented employees.9 Tr. 939. According to Miceli, this practice had evolved as the
company’s workforce expanded to the point where it was simpler for Sarro and
Zaremski to use the shop stewards, who are familiar with the workers in their unions’
bargaining units, to locate and communicate with individual employees who perform 35
concrete or asphalt work. Tr. 939. Miceli testified that employees would assume that
information conveyed to them by Sbarra and Holder had originated with Sarro,
Zaremski, or himself. Tr. 939.

Individuals who are looking for work are permitted to “shape” in NY Paving’s 40
Long Island City yard. Tr. 788. These workers come to the yard in the morning in case
replacement workers are needed for regular employees who are absent. Tr. 788. Sarro
and Zaremski have separate offices in the facility. Tr. 801. Adjacent to their offices is

9 Sarro testified that because his mobility can be limited, he sometimes asks Sbarra to convey information
to the concrete workers, or asks Sbarra who is available to replace a missing employee on a concrete
crew. Tr. 797-798.
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11

an office shared by all 30 to 35 foremen, which is also used by Sbarra and Holder. Tr.
800-801, 938. The individuals shaping the yard wait on a platform outside the
supervisors’ and foremen’s offices. Tr. 81, 266, 956. When Sarro or Zaremski
determines that a vacancy exists, he goes outside to the platform and chooses an
individual who is shaping to work on the concrete or asphalt crew, respectively. Tr. 788. 5
Alternatively, Sarro or Zaremski sends Sbarra or Holder to contact the individual chosen
to complete the crew, depending upon whether the crew will be performing concrete or
asphalt work. Tr. 939-940, 954-956, 986-987. When workers employed by Di-Jo
Construction were sent out on crews with NY Paving employees prior to January 2018,
Sbarra interacted with the Di-Jo Construction employees in the same manner that he 10
did with the NY Paving employees represented by Local 1010. Tr. 986-987.

D. Employment and Discharge of Elijah Jordan

Elijah Jordan testified that he began working with NY Paving in August 2017. Tr. 15
51. Jordan testified that a friend called him and told him that NY Paving was hiring, so
Jordan called Sbarra and asked whether there were any open positions. Tr. 51. Sbarra
suggested that Jordan come to the facility, so Jordan went to the Long Island City yard
and met with him. Tr. 51-52. Jordan testified that he filled out a W-2 form, and Sbarra
told him he would start working the next day. The following day, Jordan went to the 20
yard in the morning and Sbarra showed him the crew that he would be working with. Tr.
52. Jordan testified that he did not see Sbarra consult with anyone else prior to
assigning him a crew on his first day of work. Tr. 53-54.

Louis Sarro testified that he met with Jordan when Jordan initially came to NY 25
Paving’s Long Island City yard. Tr. 808. Sarro testified that Jordan came to the yard in
approximately fall 2017, and told Sarro that he needed work. Tr. 808. Sarro testified
that at the time NY Paving gave “a guy off the street looking for a job…an opportunity to
prove himself that he could do the job.” Tr. 809-820. Sarro told Jordan that NY Paving
was not really looking for workers and didn’t have positions available, but that Jordan 30
could come down in the morning and shape. Tr. 808. Sarro told Jordan that if they
needed someone in the morning and Jordan was shaping, they could put him to work.
Tr. 808. Jordan began shaping, and Sarro assigned him to work as it became available.
Tr. 808-809.
35
Jordan testified that he was initially assigned to a dig-out crew10 consisting of six
employees, including a foreman named Louie, with whom he worked every day. Tr. 54.
The crew worked Monday through Friday, and Sbarra would assign Jordan additional
work, including dig-outs, sawcut,11 and concrete base, on weekends. Tr. 54-55. After
three months of work, Jordan asked Sbarra about joining the union, and Sbarra advised 40

10 A dig-out is the complete excavation of all material, including asphalt, concrete, and dirt, from a hole or
“cut” left by the utility company, so that the hole can then be refilled with concrete or asphalt. Tr. 320-321,
398-399; see also New York Paving, Inc., JD-33-19, at p. 6, fn. 9.
11 Sawcutting, which precedes a dig-out, consists of cutting up the outer perimeter of the hole left by the
utility company in the street or sidewalk, to make the hole evenly shaped prior to the dig-out. Tr. 399;
see also New York Paving, Inc., JD-33-19, at p. 6, fn. 9.
JD(NY)-01-20

12

him to go to the Local 1010 union hall on October 31, 2017. Tr. 56. Jordan joined Local
1010 as of November 1, 2017, and was subsequently paid the rates required pursuant
to the Local 1010 collective bargaining agreement. Tr. 57-57; G.C. Exs. 3, 4. Jordan
was also provided with a NY Paving badge when he joined Local 1010. Tr. 73-75; G.C.
Ex. 5. Jordan continued to work steadily during November and December 2017 with the 5
same crew until the weather impeded the performance of concrete work.12 Tr. 59-60,
793; R.S. Exs. 1, 11, 12.

Jordan testified that sometime in the spring of 2018, a friend informed him that
NY Paving was beginning to call employees back to work, so he began visiting the Long 10
Island City yard. Tr. 60-61. Jordan testified that he visited the yard for two or three
weeks but there was no work coming in, so he came back two months later. Tr. 61-62.
Jordan testified that at that point he was receiving work assignments via Sbarra, but the
work he could perform was limited because he did not have a driver’s license. Tr. 62-
63. As a result, Jordan testified that he would only receive work assignments when no 15
drivers were needed, and when all of the drivers had already been assigned. Tr. 63.

Jordan testified that in addition to his work on the Local 1010-represented
concrete crews, Sbarra assigned him flagging work on Local 175-represented asphalt
crews “all the time” in the spring of 2018. Tr. 64-65. Jordan found out about these work 20
assignments because when he arrived at the yard his name would be “on the flagging
list.” Tr. 64-65. Jordan testified that one day when he had not been assigned any work
on a Local 1010-represented crew, he spoke to Holder and said that he wanted to
become a member of Local 175. Tr. 76. Holder confirmed that Jordan approached him,
said that he had heard that Holder was the Local 175 shop steward, and stated that he 25
was thinking of switching to Local 175 because although he was a Local 1010 member
he was not being assigned a lot of concrete work. Tr. 266-267. Holder testified that he
provided Jordan with information regarding the person he needed to contact if he was
interested in joining Local 175. Tr. 266-267. Jordan testified that he also spoke to Sal
Franco from Local 175 regarding joining the union, but Franco told him that it “was 30
going to be hard.” Tr. 77-78. Jordan testified that he subsequently met with Franco
three days each week inside the garage in the Long Island City yard, about four blocks
from the office. Tr. 78-79.

Jordan then began speaking to friends regarding Local 175, and testified that he 35
convinced about ten of them to sign authorization cards for Local 175 in order to remove
Local 1010. Tr. 80-82. Jordan testified that at the time he began distributing Local 175
cards he was not even shaping the Long Island City yard on a regular basis. Tr. 207-
208. Jordan himself signed a card on October 10, 2018, and testified that his co-
workers would have signed cards after that. Tr. 206-208; R.S. Ex. 4. Jordan testified 40

12 It is undisputed by the parties that there is generally less work in the colder months because the
weather interferes with the various work processes.
JD(NY)-01-20

13

that he called and met with his co-workers to sign cards for Local 175 down the block
from the Long Island City yard, or at a nearby subway station.13 Tr. 80-81.

Jordan testified that in late September or early October 2018, Holder called him
and asked whether he was available to work on an asphalt crew. Tr. 66-67. Jordan 5
said he was available, and Holder said that he would send him information via text
regarding the crew he would go out with the next day and the number of the van they
would be using.14 Tr. 67. The next day, October 4, 2018, Jordan worked with the
asphalt crew, transporting asphalt with a wheelbarrow. Tr. 66-67. Jordan testified that
when he went to the office that payday to retrieve his check from Sbarra at 5 a.m., 10
Sbarra stated “I heard you down at 175.” Tr. 68-69. Jordan said that he was “not
identifying with Local 175,” that he was still a member of Local 1010. Tr. 69. According
to Jordan, Sbarra asked whether he had his ID, and Jordan stated that he had not
brought his badge. Tr. 180-181. Sbarra told Jordan that he was required to have his ID
every time he came to the yard. Tr. 180. Jordan testified that Sbarra then “basically 15
told me, man, you don’t need to be working for us no more,” that, “he just basically say
I’m a traitor.”15 Tr. 69-70. Jordan stated that he left immediately, and did not return for
two weeks. Tr. 70. Jordan testified that when he did return he was assigned “like one
or two days of work.” Tr. 70.
20
Jordan testified that sometime after October 4, 2018 Holder called him again for
work with an asphalt crew. Tr. 82, 84. According to Jordan, Holder sent him a list with
the van number, as he had done in October. Tr. 82. However, Holder later called him
and canceled. Tr. 82-83. Holder testified that he then saw Jordan working with an
asphalt crew that he was also assigned to. Tr. 267-268. Holder had initially told Patty 25
Fogarile, who was in charge of milling and paving crews at the time, that the crews were
going out short, and suggested that they obtain additional workers from the Di-Jo
Construction employees. Tr. 267-268. Fogarile told Holder to assign additional Di-Jo
Construction employees to the job, and said that he would take care of it. Tr. 268.
Holder saw Jordan a few days later, and Jordan said that he was not working and 30
wanted to switch to Local 175. Tr. 268. He subsequently called and told Holder that he
had joined Local 175 and wanted to get on the roster. Tr. 268. Holder then told Jordan
to come down to the yard and bring his badge. Tr. 268. On December 6, 2018, Jordan
came to the yard. Tr. 268, 302-303; R.S. Ex. 5(c-d). Holder asked Zaremski to put
Jordan on the schedule, but Zaremski said that he would have to clear it with NY 35
Paving’s attorney Bob Coletti. Tr. 268; R.S. Ex. 5(c-d). Holder told Zaremski that
Jordan already had a badge, but Zaremski said it had to be the right type of badge. Tr.
268. Holder told Jordan that he would not be working that day. Tr. 268. However, the
next day the asphalt crews were short again, so on December 7, 2018, Zaremski
authorized Holder to put Jordan on a crew with foreman Billy Smith. Tr. 268-269. The 40

13 Miceli testified that he never observed Jordan distributing literature or engaging in any other sort of
activity on behalf of Local 175, and was unaware of Jordan’s specific union activities prior to the hearing
in this case. Tr. 924.
14 Holder testified that he could not recall speaking to Jordan on October 4, 2018. Tr. 314.
15 Jordan testified that there were a few foremen present during this conversation, but declined to identify
them. Tr. 69.
JD(NY)-01-20

14

next day, however, Jordan told Holder that he had been told that he could not work. Tr.
269. When Holder questioned Zaremski, Zaremski said that Jordan could no longer
work on asphalt crews.16 Tr. 269.

Jordan testified that he next visited the Long Island City yard on January 7, 2019, 5
after friends called him and told him that they were returning to work on that day. Tr.
85. According to Jordan, when he went to the office Sbarra asked whether he was
Elijah Jordan, and he said he was. Tr. 85. Sbarra asked him to come into the office,
where Sbarra was speaking to Louie Sarro. Tr. 85, 186. Sbarra told Jordan that he
was fired from NY Paving, and that he was “a traitor.” Tr. 85. Sarro then asked whether 10
Jordan had his ID, and told him that he needed to have his ID every time he came to the
yard. Tr. 85-86. Sarro testified that he never heard Sbarra call Jordan a “traitor,” and
had never heard Sbarra ever use the word. Tr. 795.

Sarro testified that he had a conversation with Jordan about his work 15
assignments toward the end of 2018, in his office after the crews had gone out for the
day. Tr. 792-793, 811-812. Sarro testified that Jordan came into his office and stated
that he was going to join Local 175 because he was not being assigned enough work
with Local 1010. Tr. 794. Sarro told Jordan that if that was what he wanted to do it was
fine, and wished him good luck. Tr. 794. Sarro testified that no one else was present 20
during this conversation. Tr. 827.

NY Paving called four witnesses who testified regarding Jordan’s work
performance on their crews – foremen William Cuff, Michael Whelan, and Joseph Stine,
and concrete worker Tomasz Zywiec. See generally Tr. 705-709, 715-718, 728-731, 25
746-7451, 755-759, 768, 772-773. All of these witnesses testified that Jordan’s work
performance was poor, and created potential safety issues and discontent among the
other workers on the crew. Foremen Cuff, Whelan, and Stine testified that they
complained to supervisors regarding Jordan, and Stine stated that he told Sbarra that
he wanted Jordan removed from his crew. Tr. 710, 740-741, 755-759, 766, 775. Sarro 30
and Miceli also testified that several concrete foremen complained about Jordan’s work
performance, and that he was reassigned from one crew to another as a result. Tr.
788-790, 921-922. The testimony of these witnesses is addressed in further detail infra.

On April 8, 2019, Jordan sent Sbarra a text message asking whether there was 35
any work for him, and Sbarra replied, “You can come down and stand on the platform
like everybody else if there’s a spot I put you to work.” Tr. 86-88, 90; G.C. Ex. 6. On
May 16, 2019, Jordan again sent Sbarra a text message asking whether NY Paving had
“open jobs,” and Sbarra replied, “You can stand on the platform like everybody else is a
lot of guys on that platform.” G.C. Ex. 6. These text messages were Jordan’s last 40
contacts with NY Paving.

E. Work Allegedly Assigned to Non-Bargaining Unit Employees

1. Flagging Work on Milling and Paving Crews 45

16 Zaremski was not questioned regarding this incident.
JD(NY)-01-20

15

The milling and paving process involves tearing up the asphalt surface of a street
and placing new asphalt on the concrete basis. Tr. 983. At NY Paving this work is
performed by asphalt workers represented by Local 175. Holder testified that milling
and paving work requires two separate crews. The milling crew consists of two workers 5
operating a milling machine, which tears up the street surface, and five workers doing
“clean-up” behind the milling machine. Tr. 223, 227. Typically, two of the five clean-up
workers operate a jackhammer, one sweeps, and the other two workers pick up debris,
working with a backhoe. Tr. 226, 227-228. After the first crew is finished, a second
crew does the paving. Tr. 223. The paving crew typically consists of seven workers – 10
one running the paver, two on the back of a spreader, two working as finish rakers, a
worker that dumps the trucks, and another worker that does painting and other
miscellaneous tasks. Tr. 226. “Flaggers,” workers who direct traffic around the
perimeter of the job site, are sometimes assigned to accompany both the milling and the
paving crews. Tr. 224, 226. Typically, one to six or seven flaggers are assigned as 15
necessary, depending upon the location and traffic patterns at the job site. Tr. 224, 226.
Zaremski sets up the milling and paving crews and assigns them work, and the milling
and paving foreman is Billy Mortenson. Tr. 224, 504-505, 516-517.

Holder and Miceli both testified that traditionally Local 175-represented asphalt 20
employees perform milling and paving work. Tr. 225, 983. However, Holder testified
that when flaggers were necessary, other employees, particularly Di-Jo Construction
employees, were assigned flagging work on milling and paving crews. Tr. 225, 304.
Zaremski testified that he was not aware of Di-Jo Construction employees doing
flagging work on asphalt crews.17 Tr. 550-551. Miceli, however, testified that prior to 25
2018, Di-Jo Construction and Local 1010-represented workers may have been assigned
flagging work on milling and paving crews. Tr. 983-984. According to Miceli, NY Paving
stopped assigning Di-Jo Construction and Local 1010-represented employees flagging
work on milling and paving crews in late 2017 or early 2018. Tr. 983.
30
Jordan testified that he was assigned flagging work on a Local 175-represented
asphalt crew, but was unclear as to the frequency and dates of such assignments.
Jordan testified that he was assigned flagging work on asphalt crews “all the time,”
when there was no dig-out work on a concrete crew available. Tr. 64. Jordan testified
that Sbarra communicated these flagging assignments to him. Tr. 64. Jordan stated 35
that on those occasions Sbarra would send him out “flagging for like a week or two.” Tr.
64. During his direct testimony, Jordan was vague regarding the months that he was
assigned flagging work on an asphalt crew. Tr. 61-64. Jordan testified on cross-
examination, based on his affidavit, that he was assigned flagging work on asphalt
crews beginning in July 2018.18 Tr. 128-129. 40

17 Sarro testified that he never assigned a Local 1010-represented worker to “perform the placement of
asphalt on a sidewalk,” but was not asked about assigning Di-Jo Construction or Local 1010-represented
employees to perform flagging on asphalt paving crews. Tr. 834-835.
18 Holder testified that he encountered Jordan when they worked on the same asphalt crew, but it is not
clear from Holder’s testimony whether Jordan was performing flagging work on that job. Tr. 267-268.
JD(NY)-01-20

16

2. Emergency Keyhole Work

Emergency keyhole work is performed by NY Paving pursuant to the subcontract
with Hallen discussed previously. Emergency keyhole work involves the repair of holes
or “cuts” in streets or sidewalks measuring approximately five feet square, made by 5
ConEd in order to repair the equipment and fixtures beneath. Tr. 576, 885. Normally
on sidewalks NY Paving normally restores four inches of surface, and on streets 12
inches of surface is replaced. Tr. 577. Miceli testified that NY Paving usually waits until
two to three days’ worth of emergency keyhole work has accumulated, which occurs
approximately three to four times per month. Tr. 583. At that point, two dig-out crews 10
consisting of Local 1010-represented concrete workers are sent out, with a four-person
top crew, which places asphalt to grade on the surface, performing approximately fifteen
hours of work behind them. Tr. 567, 583-584, 613.

Miceli testified that only a small percentage of the emergency keyhole work 15
involves asphalt. Miceli stated that eighty-percent of emergency keyhole work requires
the repair of concrete sidewalks, where no asphalt is involved.19 Tr. 613, 614, 888.
Miceli further testified that of the twenty-percent of the emergency keyhole work
performed on streets, ten of the 12 inches dug out is replaced with concrete, and only
the top two inches of the repair consist of asphalt. Tr. 613, 614-615, 888. Thus, Miceli 20
estimated that only ten-percent of the emergency keyhole work on the streets involves
asphalt work. Tr. 613, 614-615, 888.

Miceli admitted during his testimony that from 2008 through a portion of 2017,
Local 175-represented employees performed the asphalt component of the emergency 25
keyhole work. Tr. 568, 587, 1007. However, Miceli testified that since January 2018,
both the concrete and the asphalt portions of the emergency keyhole work have been
assigned to NY Paving employees represented by Local 1010.20 Tr. 885.

3. Code 49 Work 30

Code 49 work is performed by NY Paving for National Grid, and consists of
placing temporary asphalt in the hole or cut left by National Grid in a street, so that the
area can be safely sawcut. Tr. 509-510, 534-535, 982. According to Miceli, two to
three inches of backfill and temporary asphalt left by National Grid is removed and hot 35
asphalt is placed in the cut so that saws can run over it safely. Tr. 611, 876, 1008; see
also Tr. 535. After the sawcutting, a dig-out takes place so that the street or sidewalk
can be completely repaired in the usual manner, in the case of a street with ten inches
of concrete and two inches of asphalt top. Tr. 623, 877, 1013-1014.
40
Miceli testified that the “Code 49” designation was created in conjunction with
National Grid in the summer of 2018, to address a situation where inadequately back-

19 Zaremski also testified that there is typically more emergency keyhole work on sidewalks than on
roadway. Tr. 583.
20 As discussed above, the emergency keyhole work is the subject of the action initiated by NY Paving in
the Eastern District of New York seeking a declaratory judgment. R.S. Ex. 20.
JD(NY)-01-20

17

filled holes were resulting in unstable and sinking surfaces. Tr. 608, 880. According to
Miceli, the large, heavy saws used for sawcutting were becoming stuck or sunk into the
backfill left by National Grid, potentially causing significant injury and damage and
resulting in corrective action requests and summonses from the City of New York. Tr.
608-610, 612, 874-875, 879-880. This was a particular problem after the winter, when 5
the ground thawed, and on Staten Island, where the soil is predominantly sand. Tr.
608-609, 610-611, 876. National Grid therefore engaged NY Paving to dig out some of
the backfill and put down temporary asphalt so that the saws could be used safely. Tr.
608.
10
Zaremski testified in response to questions from NY Paving’s counsel that
sawcutting typically takes place two to three days after a Code 49, but had admitted on
examination pursuant to Federal Rule of Evidence 611(c) that the temporary asphalt is
usually sawcut and dug out seven to ten days after a Code 49 takes place. Tr. 510-511,
535-536. Miceli testified that the excavation work begins within five to six calendar days 15
after the Code 49, and is completed within a week. Tr. 878, 1009. Zaremski testified
that Code 49s are generally performed in the summer, before the weather makes the
work more difficult. Tr. 535.

Miceli testified that employees represented by Local 1010 had performed all of 20
the Code 49 work since NY Paving and National Grid had created that specific job code
in the summer of 2018. Tr. 880-881. NY Paving performed some Code 49 work in
November and December 2018, and began performing one hundred Code 49s per
month at the beginning of 2019. Tr. 876-877, 880-881. Miceli testified that all of the
Code 49 work was assigned to Local 1010-represented concrete workers because the 25
asphalt paving and the concrete dig-out work constituted “one process,” and the dig-out
work was awarded to Local 1010 pursuant to the Board’s Decision in Highway Road
and Street Construction Laborers, Local 1010 (New York Paving). Tr. 873-875.

4. Code 92 Work 30

Code 92 work involves placing temporary asphalt on cuts in the sidewalk
excavated by Hallen, to maintain the safety of the sidewalk for pedestrians and
ultimately support the saws for sawcutting after the utility is finished with their work. Tr.
233, 236, 540, 881-882, 980-981. After the hole is sawcut, the sidewalk is excavated 35
and restored with concrete. Tr. 882-883.

Holder testified that Local 175-represented asphalt crews had been assigned
Code 92 work, but in early 2019 Zaremski told him that the Code 92 work would be
performed solely by employees represented by Local 1010. Tr. 244, 344, 293-294. 40
Miceli testified that this change in the assignment of the Code 92 work was engendered
by the Board’s Decision in Highway Road and Street Construction Laborers, Local 1010
(New York Paving), because, as with the Code 49 work, the placement of temporary
asphalt is an integral part of the excavation or dig-out process. Tr. 873.
45

JD(NY)-01-20

18

III. Decision and Analysis

A. Credibility Resolutions

Evaluating a number of the pertinent fact issues in this case necessarily involves 5
an assessment of witness credibility. Credibility determinations require consideration of
the witness’ testimony in context, including factors such as witness demeanor, “the
weight of the respective evidence, established or admitted facts, inherent probabilities,
and reasonable inferences drawn from the record as a whole.” Double D Construction
Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001), enf’d. 10
56 Fed.Appx. 516 (D.C.Cir. 2003); see also Hill & Dales General Hospital, 360 NLRB
611, 615 (2014). Corroboration and the relative reliability of conflicting testimony are
also significant. See, e.g., Precoat Metals, 341 NLRB 1137, 1150 (2004) (lack of
specific recollection, general denials, and comparative vagueness insufficient to rebut
more detailed positive testimony). It is not uncommon in making credibility 15
determinations to find that some but not all of a particular witness’ testimony is reliable.
See, e.g., Farm Fresh Co., Target One, LLC, 361 NLRB 848, 860 (2014).
In addition, the Board has developed general evidentiary principles for evaluating
witness testimony and case presentation. For example, the Board has determined that
the testimony of a Respondent’s current employees may be considered particularly 20
reliable, in that it is potentially adverse to their own pecuniary interests. Covanta Bristol,
Inc., 356 NLRB 246, 253 (2010); Flexsteel Industries, 316 NLRB 745 (1995), aff’d, 83
F.3d 419 (5th Cir. 1996). It is also well-settled that an administrative law judge may
draw an adverse inference from a party’s failure to call a witness who would reasonably
be assumed to corroborate that party’s version of events, particularly where the witness 25
is the party’s agent. Chipotle Services, LLC, 363 NLRB No. 37, p. 1, fn. 1, p. 13 (2015),
enf’d. 849 F.3d 1161 (8th Cir. 2017); Roosevelt Memorial Medical Center, 348 NLRB
1016, 1022 (2006). Adverse inferences may also be drawn based upon a party’s failure
to introduce into evidence documents containing information directly bearing on a
material issue. See Metro-West Ambulance Service, Inc., 360 NLRB 1029, 1030, and 30
at n. 13 (2015).
In making credibility resolutions here, I have considered the witnesses’
demeanor, the context of their testimony, corroboration via other testimony or
documentary evidence or lack thereof, the internal consistency of their accounts, and
the witnesses’ apparent interests, if any. Any credibility resolutions I have made are 35
discussed and incorporated into my analysis herein.

B. The Discharge of Elijah Jordan on January 7, 2019 and related violations
(Consolidated Complaint ¶¶ 8, 9, 10-11)
40
The Consolidated Complaint alleges that NY Paving violated Sections 8(a)(1)
and (3) of the Act by discharging Elijah Jordan on January 7, 2019 in retaliation for his
support for and activities on behalf of Local 175. The Consolidated Complaint further
alleges that NY Paving violated Section 8(a)(1) when Sbarra interrogated employees
JD(NY)-01-20

19

regarding their affiliation with Local 175 in November 2018, and threatened employees
with discharge in retaliation for their support for and affiliation with Local 175 on January
7, 2019. For the reasons set forth below, I recommend that all of these allegations be
dismissed.
5
1. Witness Credibility

General Counsel presented two witnesses who testified regarding the allegations
involving Elijah Jordan – Jordan himself and Local 175 shop steward Terry Holder.
Holder was a credible and forthright witness. At the time of the hearing, Holder was 10
employed by NY Paving, and his testimony is therefore considered particularly reliable
pursuant to Board caselaw. See Covanta Bristol, Inc., 356 NLRB at 253; Flexsteel
Industries, 316 NLRB at 745. In addition, Holder testified in a straightforward manner,
and candidly identified areas where he believed his recollection may have been
impaired due to medical treatment he received after the material events in this case. Tr. 15
244-245, 251, 273-274. Holder also had significant experience in the trade and
industry, and was obviously extremely knowledgeable regarding the work processes
involved in asphalt paving and NY Paving’s day to day operations in the Long Island
City yard. Tr. 219-220. The reliability of his testimony in this regard was repeatedly
noted by Peter Miceli himself. Tr. 450, 451, 457-458, 461, 463, 605, 607-608, 612. 20
Thus, I have generally credited Holder’s testimony, except in circumstances where
Holder himself stated that his recall of events might be compromised.

Elijah Jordan, on the other hand, was simply not a credible witness. Jordan
offered multiple fictitious explanations regarding an issue pertinent to his employment 25
and discharge. Specifically, Jordan initially claimed on both direct and cross-
examination that his lack of a driver’s license was the sole reason that he was not
assigned to a regular concrete crew at NY Paving. Tr. 62-63, 113-114. Jordan testified
on direct examination, “The only thing that was kind of like messing me up, because I
didn’t have my driving license…it was stopping me from getting any work because I 30
didn’t have my license. If you don’t have your license, he can’t use you…Most of the
crews there they wanted me. I just didn’t have my license. ” Tr. 62-63. When asked on
cross-examination why he did not have a driver’s license, Jordan first testified that, “I
lost it, so I’m waiting for a new one to come in the mail.” Tr. 114. Upon further
questioning, Jordan claimed that he did not have a driver’s license because he did not 35
have the money to take a driving class. Tr. 115-116. Jordan then testified that he did
not know how to drive, but minutes later asserted that he did not have a license
because he could not afford the $80 fee required to take a driving test. Tr. 117-118.
When questioned further regarding the issue, Jordan simply got up and left the hearing
room. Tr. 117-119. After he returned, Jordan admitted that he did not have a license 40
because he had failed the driving test twice. Tr. 121-122. Jordan’s proffering three
false rationales for not having a driver’s license – the sole reason he gave for NY
Paving’s failure to assign him to a steady concrete crew – before simply admitting the
truth evinces a capacity for untruthfulness which casts doubt on the reliability of his
testimony overall. 45

JD(NY)-01-20

20

Furthermore, Jordan’s testimony was contradicted in multiple respects by his
affidavit taken during the case investigation and by documentary evidence. For
example, Jordan initially testified that NY Paving assigned him work on a steady basis
in early 2018, and contended in his affidavit that he worked steadily in March and April
of that year. Tr. 125-126. However, NY Paving’s payroll records establish that Jordan 5
did not work at all from January through March 2018, and that he worked only three
days in April. R.S. Ex. 1. When confronted with this discrepancy, Jordan admitted that
his affidavit was inaccurate. Tr. 126, 130. Jordan also claimed that he had already
signed an authorization card for Local 175 as of October 4, 2018, when he was
assigned a day of asphalt work, when he did not actually do so until October 10, 2018. 10
Tr. 178-179, 205-206; R.S. Ex. 4. In addition, Jordan disavowed a statement in his
affidavit that Sbarra approved his going out with an asphalt crew after Holder assigned
him asphalt work. Tr. 131-132. Although Jordan claimed in his affidavit that Sbarra told
him that going out with an asphalt crew was “No problem,” in his testimony Jordan said
he “would just hop in the truck” on these occasions without Sbarra’s explicit approval. 15
Tr. 131-132. Indeed, Jordan later testified that, contrary to the assertions in his affidavit,
he never told Sbarra he was going out with an asphalt crew at the time. Tr. 204. On
cross-examination Jordan also contradicted his affidavit and his initial account of the
January 7, 2019 meeting culminating in his discharge, claiming for the first time that
after he was discharged he asked Sarro, “I’m really getting fired?” and Sarro did not 20
respond. Tr. 85-86, 146-147.

Jordan also repeatedly volunteered speculative and non-probative suppositions
regarding material events and the motivations of other individuals about which he knew
nothing. For example, Jordan theorized that when he asked Sarro whether he was 25
“really getting fired,” Sarro’s silence constituted an admission that Sbarra had made the
decision to terminate his employment, or, as Jordan described Sarro’s thought process,
“this is all on you [Sbarra], you hired him, so you take care of him.” Tr. 185. Asked
about whether Holder called him for work on an asphalt crew after October 4, 2018,
Jordan responded, “He called me again, he gave me work, but I guess maybe Steve 30
[Sbarra] probably called it off, say he can’t work for you.” Tr. 82. Jordan stated with
respect to Holder’s second call, “It’s got to be somewhere around October,” but later
admitted that he could not remember when it occurred. Tr. 84. Following a series of
patently leading questions on redirect examination, Jordan was asked whether he
visited Region 29 after Holder had called him for work on an asphalt crew in December 35
2018, and responded, “Most likely, I probably went to work. They probably didn’t give
me no work, and that’s when I came here, right after that.” Tr. 182-184. Jordan’s poor
memory and propensity for speculation further undermines the overall reliability of his
testimony.
40
Finally, Jordan’s demeanor and comportment during his testimony were not
characteristic of a witness engaged in a good-faith effort to sincerely participate in the
proceedings. When caught in the series of falsehoods regarding the reason for his
lacking a driver’s license, Jordan stated, “Let me go take a walk real quick,”21 and

21 Although a question mark appears after this statement in the transcript, it was declarative in nature, and
Jordan never asked to take a break or leave the room before getting up and walking toward the exit.
JD(NY)-01-20

21

stormed out of the hearing room. When I informed Jordan that he was not excused and
directed him to return to the witness stand, he responded, “I’m taking a walk outside,”
and, “I don’t believe this.”22 Tr. 118. Although he did return to the hearing room, after
resuming his testimony Jordan exhibited a flippant and disrespectful manner, repeatedly
rolling his eyes, shaking his head, and chuckling in response to the attorneys’ 5
questions. Such behavior is simply inconsistent with serious and forthright participation
in the hearing process.

For all of the foregoing reasons, I find that Elijah Jordan was not a credible or
reliable witness. I find it difficult to credit his testimony even where it is not contradicted 10
by other testimony or documentary evidence.

NY Paving’s witnesses Peter Miceli and Louis Sarro also testified regarding
issues pertaining to Jordan’s employment and discharge. Overall I find that Miceli was
a credible witness, occasionally impassioned but generally forthright. I credit his 15
predominantly uncontradicted testimony regarding the implementation of the badging
policy and Local 175 employee list, the hiring of the Di-Jo Construction employees
(including Jordan) by NY Paving, NY Paving’s day-to-day operations in terms of work
and employee crew assignments, and the authority of the supervisors and shop
stewards at the Long Island City yard.23 Sarro’s testimony was credible in some 20
respects but patently untrustworthy in others. In particular, Sarro claimed that he had
never assigned Local 1010-represented employees to perform asphalt work, despite
Miceli’s admission that such employees had been assigned to perform emergency
keyhole work, Code 49 work, and Code 92 work as discussed in detail infra. Tr. 834-
835. I have therefore generally credited Sarro’s testimony only where it constitutes an 25
admission or is corroborated by more reliable evidence, as set forth below.

2. The alleged supervisory and agency status of Steven Sbarra

The Consolidated Complaint alleges that Local 1010 shop steward Steven 30
Sbarra was a supervisor of NY Paving pursuant to Section 2(11) of the Act. Under
Section 2(11), a supervisor is an individual having the authority to “hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their grievances, or effectively

22 In her Post-Hearing Brief at p. 38-39, General Counsel attributes Jordan’s departure to Counsel for
Respondent’s “purposely humiliating questions” and “demeaning tone.” Respondent Counsel’s questions
were appropriately insistent given that Jordan had contended that his lack of a driver’s license was the
sole issue preventing his assignment to a concrete crew on a steady basis. Counsel’s questions were not
in my opinion abusive, nor was his tone of voice derogatory.
23 General Counsel contends that Miceli should be discredited because his testimony that NY Paving had
increased the number of Local 175-represented asphalt workers it employs and the number of hours they
worked conflicted with documentary evidence submitted by NY Paving after the hearing closed. Tr. 898-
899; R.S. Ex. 21. Because the documentary evidence submitted by NY Paving only begins as of July
2018, it is impossible to determine whether the hours worked by Local 175-represented employees
increased after the Section 10(k) hearing ended in October 2017, as Miceli testified. Tr. 898; R.S. Ex. 21.
The documentary evidence submitted by NY Paving shows an overall increase in the hours worked by
Local 175-represented employees (omitting the winter months) from July 2018 through May 2019,
followed by a precipitous decline in June and July 2019. R.S. Ex. 21.
JD(NY)-01-20

22

recommend such action.” The statue requires that such authority involve “the use of
independent judgment” exercised “in the interest of the employer.” See, e.g., The Arc of
South Norfolk, 368 NLRB No. 32 at p. 2 (2019), quoting Oakwood Healthcare, Inc., 348
NLRB 686, 687 (2006). The party contending that a specific employee is a statutory
supervisor bears the burden of proof on the issue. NLRB v. Kentucky River Community 5
Care, 532 U.S. 706, 711-712 (2001). Evidence which is “in conflict or otherwise
inconclusive” is insufficient to establish supervisory status. The Arc of South Norfolk,
368 NLRB No. 32 at p. 3, quoting Phelps Community Medical Center, 295 NLRB 486,
490 (1989).
10
Here, the evidence overall is inadequate to establish that Sbarra was a statutory
supervisor. I do not credit Sarro’s testimony that he, and not Sbarra, initially informed
Jordan that he “could come down in the morning, and shape” when Jordan began
working with NY Paving in August 2017. Tr. 788, 808-809. However, the sole evidence
General Counsel introduced to establish that Sbarra did so independently was the 15
testimony of Jordan himself, which was simply insufficient. Jordan testified that the first
day he visited NY Paving, Sbarra immediately assigned him to a crew and only told him
to return the next day because the crew had already gone out. Tr. 51-52. This is
inconsistent with the testimony of Miceli, Sarro, Zaremski and Holder to the effect that
individuals shaping the yard are only assigned a specific crew the morning the work is 20
to be performed, after the supervisors know which regular crew members will need to
be replaced. Tr. 266, 495-505, 788, 804-806, 975; see also Tr. 169-170, 171-172
(Jordan). Furthermore, although Jordan testified that Sbarra did not consult with
anyone before assigning him to a crew, there is no evidence to establish what, if
anything, Sbarra did in that regard between the time that Jordan shaped the yard and 25
the next day when he actually began working. 24 Tr. 53-54. Thus, there is no specific
evidence involving Jodan to contradict Sarro and Miceli’s mutually corroborative
testimony that Sbarra merely conveyed Sarro’s work assignments to the concrete
workers, as opposed to making those crew or work assignments himself. Tr. 790, 797-
798, 933-934, 939. Given the Jordan’s general lack of credibility and the absence of 30
other evidence regarding the inception of his employment, I find that Miceli, Sarro, and
Holder’s testimony was more reliable than Jordan’s with respect to these issues.
Therefore, the record overall does not support General Counsel’s contention that Sbarra
exercised independent judgment in connection with Jordan’s initial shaping and crew
assignment. 35

General Counsel also argues that Sbarra is a statutory supervisor because he
“ultimately determined that Jordan would become a member of Local 1010 and be hired
by NY Paving directly.” G.C. Post-Hearing Brief at 29, 48. However, this contention is
based solely on Jordan’s account of his own conversation with Sbarra, and there is no 40
evidence in the record to establish that Sbarra made these decisions, let alone made
them independently. Tr. 56-57. Furthermore, Jordan testified only that he asked Sbarra
about joining Local 1010, and Sbarra advised him to go to Local 1010’s offices on
October 31, 2017. Id. Thus, while the evidence establishes that Jordan was paid by

24 As discussed previously, Sbarra was not called as a witness and did not testify at the hearing.
However, General Counsel does not request that I draw an adverse inference on this basis.
JD(NY)-01-20

23

NY Paving at the Local 1010 contract rates thereafter, Jordan did not even testify that
Sbarra mentioned his being hired directly by NY Paving during this conversation. Tr.
56-60; G.C. Exs. 3, 4. In addition, I credit Miceli’s testimony that he made the
determination that NY Paving hire all of the Di-Jo Construction employees as of
November 1, 2017 because Di-Jo Construction “became such a big issue” in legal 5
proceedings.25 Tr. 916-918. With respect to Jordan’s joining Local 1010, Sbarra was
that union’s shop steward, and would have advised Jordan to visit the union hall in that
capacity, as NY Paving points out. R.S. Post-Hearing Brief at 26. As a result, the
evidence does not demonstrate that Sbarra acted with independent judgment on NY
Paving’s behalf in connection with Jordan’s being hired by NY Paving or joining Local 10
1010. In fact, there is no evidence evidence establishing that Sbarra had anything
whatsoever to do with Jordan’s being hired by NY Paving.

Finally, I find that the evidence overall does not establish that Sbarra “had in fact
fired other workers” for sleeping on the job, as General Counsel contends. G.C. Post-15
Hearing Brief at 31, 48; Tr. 70-72. Jordan testified in this regard that he once saw and
heard Sbarro tell someone on the platform that he was fired and was no longer allowed
on the property. Tr. 70-72. A picture of this person sleeping in a work van was posted
on the wall in front of Sarro’s office, near OSHA notices posted by Sarro. Tr. 71, 166-
167. Jordan stated that he never saw that particular individual at NY Paving again. Tr. 20
72. However, Jordan admitted on cross-examination that he did not know who posted
the picture of the employee sleeping in front of Sarro’s office. Tr. 167. And there is no
other evidence in the record regarding the identity of this employee, who made any
actual decision to discharge him, when the incident occurred, or the specific
circumstances involved. As a result, I do not find that this evidence effectively rebuts 25
Miceli and Sarro’s testimony that Sbarra did not have the authority to discharge
employees, and that Sbarra only conveyed information to concrete workers regarding
decisions made by Miceli and Sarro themselves.

For all of the foregoing reasons, I find that General Counsel has failed to satisfy 30
the burden to establish that Sbarra was a supervisor within the meaning of Section
2(11) of the Act during the events material to the Consolidated Complaint’s allegations.

The Consolidated Complaint also alleges that Sbarra was an agent of NY Paving
pursuant to Section 2(13) of the Act. It is well-settled that the Board applies common-35
law agency principles in order to determine whether an employee is acting with
apparent authority on behalf of the employer when making a specific statement or
taking a particular action. See, e.g., Pan-Oston Co., 336 NLRB 305, 305-306 (2001).
In particular, the Board considers whether “under all of the circumstances, employees
would reasonably believe that the employee in question was reflecting company policy 40

25 General Counsel contends that Miceli’s testimony in this regard is incredible because the hearing in the
case before Judge Gollin did not begin until the fall of 2018, months after the Di-Jo Construction
employees were hired by NY Paving. G.C. Post-Hearing Brief at p. 40-41; Tr. 917. However, later in his
testimony Miceli clarified that he was referring to the Section 10(k) hearing in Highway Road and Street
Construction Laborers, Local 1010 (New York Paving), 366 NLRB No. 174, which took place in
September and October 2017. Tr. 914-915; see also Tr. 569. Miceli testified at the Section 10(k) hearing
and appeared as a corporate representative. Tr. 870.
JD(NY)-01-20

24

and speaking and acting for management.” Pan-Oston Co., 336 NLRB at 306; see also
D&F Industries, 339 NLRB 618, 619 (2003). In many cases, the Board has evaluated
the purported agent’s role in acting as a “conduit of information” between management
and the employees, so that the employees would conclude that the alleged agent was
speaking on management’s behalf. See, e.g., Victor’s Café 52, 321 NLB 504, fn. 1 5
(1996) (agent was “the usual conduit for communicating management’s views and
directives to employees, from the time of their hiring through their daily accomplishment
of their tasks”); Southern Bag Corp., 315 NLRB 725 (1994) (agent was “an authoritative
communicator of information on behalf of management”); B-P Custom Building
Products, 251 NLB 1337, 1338 (1980) (agent “relayed information from management to 10
employees and had been placed by management in a strategic position where
employees could reasonably believe he spoke on its behalf”). The burden to establish
agency status rests upon the party asserting it. Pan-Oston Co., 336 NLRB at 306.

The evidence here establishes that Sbarra was an agent of NY Paving, in that 15
Sbarra served as a conduit for information between NY Paving management and the
Local 1010-represented employees on a daily basis and in a manner which would
cause those employees to reasonably believe that Sbarra was speaking for
management. For example, Sarro testified that he asks Sbarra to convey information,
including his decisions regarding work assignments, to the concrete workers, and asks 20
Sbarra which concrete workers are shaping and available to replace a missing
employee on a crew. Tr. 797-798. I do not credit Sarro’s assertion that this happens
only occasionally, given Miceli’s testimony that using the shop stewards to convey
information regarding crew assignments became necessary as NY Paving’s workforce
increased, so that it was “simpler to go through” Sbarra and Holder, because “as a shop 25
steward, they know every single guy that’s in the Union, they know every guy that’s in
the crew.” Tr. 797, 939. Miceli also testified that Sbarra relayed information from Sarro
to the concrete employees represented by Local 1010. Tr. 939. In fact, Miceli testified
on direct examination that when Sbarra relays a message to the concrete workers, “I’m
sure they think it’s coming from me” or Sarro. Tr. 939. Thus, the evidence establishes 30
that Jordan would reasonably view Sbarra as speaking and acting on behalf of
management, and that Sbarra therefore acted as an agent of NY Paving during their
interactions regarding Jordan’s employment. See D&F Industries, 339 NLRB 618, 619-
620 (2003) (managerial assistants were agents of the employer where they conveyed
information and decisions regarding production, work rules, work to be performed on 35
each shift, and employee assignments to employees). As a result, the evidence
establishes that Sbarra was an agent of NY Paving pursuant to Section 2(13) of the Act
with respect to his statements regarding Jordan’s employment.

3. Violations of Section 8(a)(1) allegedly committed by Steven Sbarra 40

The Consolidated Complaint alleges that NY Paving, by Sbarra, committed two
violations of Section 8(a)(1). The Consolidated Complaint alleges that Sbarra unlawfully
interrogated employees regarding their affiliation with Local 175 “In or about November
JD(NY)-01-20

25

2018.”26 The Consolidated Complaint further alleges that Sbarra threatened employees
with discharge in retaliation for their affiliation with Local 175 on January 7, 2019. The
only evidence General Counsel adduced at the hearing in support of these allegations
was testimony of Elijah Jordan, which is simply inadequate to substantiate them.
5
The Board considers the totality of the circumstances involved in order to
determine whether interrogating an employee regarding their union sympathies or
activities is unlawful. See, e.g., Manor Care Health Services-Easton, 356 NLRB 202,
218 (2010), enf’d. 661 F.3d 1139 (D.C. Cir. 2011); Evergreen America Corp., 348 NLRB
178, 208 (2006), enf’d. 531 F.3d 321 (4th Cir. 2008). The factors typically evaluated 10
include the location involved, the manner and method of the questioning, the nature of
the information solicited, the relative status of the participants in the employer’s
hierarchy, and the truthfulness of the employee’s responses. See Evergreen America
Corp., 348 NLRB at 208-209; Westwood Health Care Center, 330 NLRB 935, 939
(2000). Any history of employer hostility or discrimination is also considered, as is 15
whether the employee involved openly supports the union. Evergreen America Corp.,
348 NLRB at 208; Westwood Health Care Center, 330 NLRB at 939. The ultimate
purpose of the analysis is to determine whether “under all the circumstances the
questioning at issue would reasonably tend to coerce the employee…so that he or she
would feel restrained from exercising rights protected by Section 7 of the Act.” Manor 20
Care Health Services-Easton, 356 NLRB at 218, quoting Westwood Health Care
Center, 330 NLRB at 940.

Steven Sbarra was not called by NY Paving and did not testify at the hearing.
However, I find that Jordan’s testimony with respect to the conversation during which 25
Sbarra allegedly interrogated him was so disjointed and ambiguous that it is insufficient
to establish what actually occurred. On direct examination, Jordan initially described his
interaction with Sbarra as follows: “I went to go pick up my check and [Sbarra] basically
told me I didn’t give you that work for you to work with them. So it was basic like I was a
traitor to him.” Tr. 68. Asked about the conversation in further detail, Jordan testified 30
that he began it by telling Sbarra that he was at the facility, “to pick up my check.” Tr.
68. Minutes later, however, Jordan testified that he did not say anything to Sbarra when
he arrived, but that Sbarra opened the conversation by saying, “I heard you down at
175.” Tr. 69. According to Jordan, when he told Sbarra he was not a member of Local
175 but was still a member of Local 1010, Sbarra, “basically told me, man, you don’t 35
need to be working for us no more.” Tr. 69. Jordan then amended that to testify that
after he told Sbarra he was still a Local 1010 member, Sbarra, “just basically say I’m a
traitor, so after that I just left.” Tr. 70.

This testimony simply does not provide a sufficiently coherent or definite 40
description of the conversation containing Sbarra’s allegedly unlawful interrogation to

26 In her Post-Hearing Brief at p. 35-36 and 50-51, General Counsel argues that this incident occurred on
October 10, 2018, but there is no to establish that it took place on that particular date. NY Paving’s
payroll records indicate that a paycheck for work performed the week ending October 7, 2018 was dated
October 10, 2018, but there is no evidence demonstrating that Jordan actually retrieved that paycheck on
that date. See, e.g., Tr. 67-68.
JD(NY)-01-20

26

formulate a meaningful determination as to whether Sbarra’s remarks violated the Act.
Of course, Jordan’s repeated modifications of his account of this relatively brief
conversation – occurring within the span of minutes during his testimony – cast doubt
on its ultimate accuracy. In addition, Jordan’s repeated use of the words “basic” and
“basically” to describe Sbarra’s remarks makes it impossible to determine whether 5
Jordan was summarizing or characterizing Sbarra’s statements, as opposed to relating
Sbarra’s exact words to the best of his recollection. See Benjamin Coal Co., 294 NLRB
572, 592, 593, 594 (1989) (declining to find 8(a)(1) violations based upon testimony
which failed to establish exact words of the allegedly unlawful statement). As a result,
even though Jordan’s testimony on this point is unrebutted, I simply cannot find that 10
Jordan’s account of his conversation with Sbarra adequately describes Sbarra’s
statements for the purpose of determining whether they constituted an unlawful
interrogation. I therefore find that the evidence does not establish that NY Paving
violated Section 8(a)(1) by interrogating employees regarding their affiliation with Local
175 in or around November 2018, and will recommend that this allegation be dismissed. 15

General Counsel also contends that NY Paving violated Section 8(a)(1) by
threatening Jordan with discharge on January 7, 2019, when Sbarra called him a
“traitor.” G.C. Post-Hearing Brief at p. 51, citing Jennie-O Foods, 301 NLRB 305, 333
(1991). However, the evidence regarding Jordan’s interaction with Sbarra on January 20
7, 2019 is similarly contradictory and uncertain. Jordan first claimed on direct
examination that on January 17, 2019 Sbarra initially asked whether he was Elijah
Jordan, and told him to come into the office, where Sarro was also present. Tr. 85.
Jordan testified that when he came into office, Sbarra told him that he was “fired from
this company,” and called him a “traitor,” after which Jordan left and went home. Tr. 85. 25
However, Jordan then testified that after Sbarra said he was fired and called him a
traitor, Sarro asked whether he had his company identification, and told him to make
sure that he had his identification with him every time he came to the Long Island City
yard. Tr. 85-86. Jordan’s contention that Sarro reminded him to carry a NY Paving
identification badge while on company property immediately after he was discharged 30
makes no sense. In addition, when questioned by Counsel for Local 175, Jordan
testified that Sbarra did not say anything to him before telling him that he was fired, and
did not mention anything about Jordan’s affiliation with Local 175. Tr. 105. Then on
cross-examination Jordan asserted for the first time that after Sbarra fired him and
called him a “traitor” on January 7, 2019, he asked Sarro, “I’m really getting fired?” and 35
Sarro did not respond. Tr. 146. As discussed previously, this particular assertion
contravened both his direct testimony and his affidavit. Given these contradictions and
the general unreliability of Jordan’s testimony as discussed above, I find that the
evidence does not establish that Sbarra called Jordan a “traitor” before his discharge on
January 7, 2019. For the foregoing reasons, I find that General Counsel has not 40
established that NY Paving violated Section 8(a)(1) by threatening employees with
discharge on January 7, 2019 in retaliation for their affiliation with Local 175, and will
recommend that this allegation be dismissed as well.

4. The Discharge of Elijah Jordan 45

JD(NY)-01-20

27

The Board evaluates allegations of unlawful discharge involving employer
motivation using the analysis articulated in Wright Line, 251 NLRB 1083 (1980), enf’d.
662 F.2d 899 (1st Cir. 1981); see also NLRB v. Transportation Management Corp., 462
U.S. 393, 395 (1983). Pursuant to Wright Line, General Counsel must establish that an
employee’s union or protected activity was a motivating factor in the discharge. Adams 5
& Associates, Inc., 363 NLRB No. 193 at p. 6 (2016), enf’d. 871 F.3d 358 (5th Cir. 2017).
In order to do so, General Counsel must adduce evidence to demonstrate that the
employee in question engaged in union or protected concerted activity, the employer’s
knowledge of that activity, and anti-union animus on the employer’s part. Adams &
Associates, Inc., 363 NLRB No. 193 at p. 6; Libertyville Toyota, 360 NLRB 1298, 1301 10
(2014), enf’d. 801 F.3d 767 (7th Cir. 2015). If General Counsel substantiates these
elements of a prima facie case, the burden then shifts to the employer to show that it
would have taken the same action in the absence of the employee’s protected conduct.
Adams & Associates, Inc., 363 NLRB No. 193 at p. 6, citing Manno Electric, 321 NLRB
278, 283 fn. 12 (1996), enf’d. 127 F.3d 34 (5th Cir. 1997). In order to do so, the 15
employer cannot simply present a legitimate reason for the adverse action, but must
persuade by a preponderance of the evidence that it would have taken the same action
even in the absence of the employee’s protected activity. North West Rural Electric
Cooperative, 366 NLRB No. 132 at p. 18 (2018); Durham School Services, 360 NLRB
694, 701 (2014). 20

General Counsel has established the first two elements of a prima facie case –
protected concerted activity and employer knowledge. The record establishes that
Elijah Jordan engaged in protected activity on behalf of Local 175 during his
employment at NY Paving. Jordan testified without contradiction that some time in the 25
fall of 2018, he approached Holder and Franco, and discussed joining and organizing
on behalf of Local 175. I credit Jordan’s testimony that he subsequently signed a Local
175 authorization card on October 10, 2018, and distributed Local 175 authorization
cards to other NY Paving employees. The record therefore establishes that Jordan
engaged in protected activity on behalf of Local 175. 30

The evidence further establishes that NY Paving had knowledge of Jordan’s
affiliation with Local 175. The evidence does not demonstrate that NY Paving’s
management was aware of Jordan’s specific activities on behalf of Local 175. However,
Sarro testified that in late 2018, Jordan came to his office and stated that he intended to 35
join Local 175 because he was not being assigned enough concrete work. Sarro
testified that he told Jordan that if he wanted to join Local 175 that was fine, and wished
him good luck. Thus, the evidence establishes that NY Paving was aware that Jordan
was seeking to join Local 175 prior to his discharge on January 7, 2019. NY Paving
argues that although Jordan told Sarro that he intended to join Local 175, management 40
did not know whether Jordan had actually done so at the time of his discharge. R.S.
Post-Hearing Brief at p. 37-38. However, the distinction NY Paving attempts to draw in
this regard is not legally significant. See K.W. Electric, Inc., 342 NLRB 1231 (2004)
(alleged discriminatee’s statement to owner that he “intended to join the Union”
evidence of employer knowledge of protected union activity). As a result, I find that the 45
JD(NY)-01-20

28

evidence establishes that NY Paving was aware of Jordan’s support for Local 175 as of
January 7, 2019.27

I also find that the record establishes some evidence of animus against Local
175. Factors which may support a finding of anti-union animus include other unfair 5
labor practices committed contemporaneously with the discharge, the timing of the
discharge in relation to union activity, the employer’s reliance on pretextual reasons to
justify the discharge, disparate treatment of employees based on union affiliation, and
the employer’s deviation from past practice. See, e.g., Roemer Industries, 367 NLRB
No. 133, at p. 15 (2017), citing Purolator Armored, Inc. v. NLRB, 764 F.2d 1423, 1429 10
(11th Cir. 1985). General Counsel need not show specific animus toward the alleged
discriminatee in order to establish a prima facie case. EF International Language
Schools, Inc., 363 NLRB No. 20 at p. 1, n. 2 (2015), enf’d. 673 Fed.Appx. 1 (D.C. Cir.
2017). As discussed infra, I have found that NY Paving violated Sections 8(a)(1) and
(5) of the Act by unilaterally transferring emergency keyhole work, Code 49 work, and 15
Code 92 work covered by its collective bargaining agreement with Local 175 to non-
bargaining unit employees.28 The evidence further establishes that the unlawful
unilateral transfer of work was ongoing at a time reasonably proximate to Jordan’s
discharge. This violation constitutes some evidence of animus against Local 175. See,
e.g., Roemer Industries, 367 NLRB No. 133, at p. 16 (contemporaneous unlawful 20
unilateral change evidence of animus); Galicks, 354 NLRB 295, 298 (2009), affirmed
355 NLRB 366 (2010), enf’d. 671 F.3d 602 (6th Cir. 2012) (same).

General Counsel argues that animus against Local 175 can also be established
by the violations found by Judge Gollin in New York Paving, Inc., JD-33-19. As 25
discussed above, in that case Judge Gollin found that NY Paving provided unlawful
assistance and support to Local 1010 when Anthony Bartone, Jr. urged employees
represented by Local 175 to sign authorization cards for Local 1010, in violation of
Sections 8(a)(1) and (2), in mid to late-April 2017. New York Paving, Inc., JD-33-19, at
p. 23, 32. Judge Gollin also found that on April 27, 2017, Paddy Labate threatened 30
employees represented by Local 175 with discharge if they did not sign authorization
cards for Local 1010, in violation of Section 8(a)(1).29 New York Paving, Inc., JD-33-19,
at p. 22, 24, 32. However, the violations found by Judge Gollin are extremely
attenuated to support a finding of animus with respect to Jordan’s discharge. New York
Paving, Inc., JD-33-19, at p. 7-10. Where the Board has based a finding of animus on 35
violations occurring more than one year prior to the allegedly unlawful conduct in a
subsequent case, the earlier violations have involved the same type of unlawful
conduct, and/or the same employer representatives or discriminatee. See Midwest

27 General Counsel does not argue that Jordan’s performance of asphalt work allegedly covered by the
Local 175 collective bargaining agreement in October 2018 constitutes protected activity or establishes
NY Paving’s knowledge of Jordan’s affiliation with Local 175. G.C. Post-Hearing Brief at 53-54.
28 I find no merit in General Counsel’s argument that NY Paving’s assignment of work to Local 1010 which
the Board had awarded to that union in Highway Road and Street Construction Laborers, Local 1010
(New York Paving) constitutes evidence of animus against Local 175. G.C. Post-Hearing Brief at p. 54-
55.
29 Judge Gollin found that Labate, a working foreman at that time, acted as an agent of NY Paving
pursuant to Section 2(13) of the Act. New York Paving, Inc. JD-33-19, at p. 22.
JD(NY)-01-20

29

Terminals of Toledo International, Inc., 365 NLRB No. 159, at p. 1, fn. 1 (2017), enf’d.
783 Fed.Appx. 1 (D.C. Cir. 2019); Midwest Terminals of Toledo International, Inc., 365
NLRB No. 134 (2017); Midwest Terminals of Toledo International, Inc., 362 NLRB No.
57, affirmed 365 NLRB No. 157 (2017), enf’d. 783 Fed.Appx. 1 (D.C. Cir. 2019); see
also St. George Warehouse, Inc., 349 NLRB 870, 878 (2007). It is true that the conflict 5
amongst NY Paving, Local 175, and Local 1010 ultimately engendered by the
NYSDOT’s change in regulations and ConEd’s enforcement of its subcontracting
language was ongoing through the time of Jordan’s discharge. In addition, Jordan’s
allegedly unlawful discharge here is a violation of the same type as the threat of
discharge found by Judge Gollin, involving the interference with employees’ Section 7 10
rights. See St. George Warehouse, Inc., 349 NLRB at 878. However, the discharge
occurred on January 7, 2019, 18 months after the unlawful assistance and threat of
discharge in the previous case, which took place in April and March 2017, respectively.
Furthermore, neither Bartone nor Labate, the supervisor and agent who committed the
violations found by Judge Gollin, were involved in any way in Jordan's employment or 15
discharge. As a result, the violations of Sections 8(a)(1) and (2) found by Judge Gollin
provide only minimal support for a finding of animus in the instant case.

General Counsel further argues that animus against Local 175 should be inferred
based upon NY Paving’s decision to limit the number of badges issued to workers 20
represented by Local 175. G.C. Post-Hearing Brief at p. 54. The identical contention
was raised by General Counsel and Local 175 in the previous case against NY Paving,
and was explicitly rejected by Judge Gollin. New York Paving, Inc., JD-33-19, at p. 11,
27. As Judge Gollin noted in his Decision, although Local 175 filed charges against NY
Paving alleging that the implementation of the badging policy violated the Act, the 25
Consolidated Complaint in that case did not contain such an allegation. New York
Paving, Inc., JD-33-19, at p. 27, fn. 36. Nor does the Consolidated Complaint in the
instant case. In any event, here, as in the case before Judge Gollin, Miceli testified that
the number of badges issued to Local 175-represented asphalt workers was limited to a
specific list of individual members because Local 175 began “cycling” members through 30
NY Paving who had never before worked for the company, including two individuals
who were not legally authorized to work in the United States. Tr. 839-841, 845-846,
848-849, 990-992. General Counsel and Local 175 introduced no evidence whatsoever
to contradict Miceli’s contentions in this regard. Thus, here, as in the case before Judge
Gollin, the evidence establishes that the list of union-represented employees was 35
limited solely to Local 175 because none of the other unions were “cycling” random
members through NY Paving.30 Tr. 985-986; see New York Paving, Inc., JD-33-19, at
p. 11, 27. Therefore, in the absence of any countervailing evidence I find, as did Judge
Gollin, that the limitation on the number of badges issued to Local 175-represented
employees was implemented for the business reasons described by Miceli in his 40
testimony, and was not motivated by animus against Local 175.

30 I also note that NY Paving introduced evidence that it had increased the number of badged employees
on the Local 175 list as necessary. Tr. 558-559, 1020-1021, 605-607.
JD(NY)-01-20

30

For the foregoing reasons, although the evidence of animus is relatively meager,
I find that General Counsel has established a prima facie case that Jordan’s support for
Local 175 was a motivating factor in his discharge on January 7, 2019.

A prima facie case having been established, the burden then shifts to NY Paving 5
to present evidence establishing that it would have discharged Jordan in the absence of
his protected conduct. As discussed above, in order to satisfy this standard NY Paving
must persuade by a preponderance of the evidence that it would have taken the same
action even in the absence of Jordan’s protected activity. I find based on the record
here that NY Paving has met its burden to do so. 10

In particular, I find that NY Paving has fully substantiated its contention that
Jordan was discharged because he was simply incapable of adequately performing
concrete or asphalt paving work. I credit the testimony of NY Paving’s concrete
foremen William Cuff, Michael Whelan, and Joseph Stine, and of employee Tomasz 15
Zywiec, regarding Jordan’s poor work performance on their concrete crews. Jordan
confirmed that he was unable to cut or float concrete, and given the testimony of NY
Paving’s witness I find Jordan’s testimony that he was capable of brooming concrete to
be patently incredible. See Tr. 112 (Jordan), 707-708 (Cuff), 729 (Whelan), 748-749
(Zwiec), 757 (Stine). In addition, Cuff, Whelan, Zywiec, and Stine testified that Jordan 20
was physically incapable of operating a jackhammer. Tr. 707, 718-719, 729, 749, 756-
757. Whelan actually testified that he did not allow Jordan to use a jackhammer while
Jordan was on his crew because he was concerned that Jordan would “hurt himself” if
he did so. Tr. 729. I credit their consistent testimony in this regard over Jordan’s
contention that he was “good with a jackhammer,” and that Cuff wanted him on his crew 25
as a result. Tr. 112-114. I further credit the foremen’s consistent assertions that Jordan
lacked motivation to learn the work, failed to follow directions, and was insufficiently
attentive. See Tr. 705-706, 715, 718 (Cuff), 728-730 (Whelan), 755-756, 772-773
(Stine). These witnesses further noted a lackadaisical and offhand manner on Jordan’s
part, despite the arduous and potentially dangerous nature of the work they perform, 30
which was consistent with Jordan’s demeanor during the hearing as discussed above.
Tr. 706, 716 (Cuff), 728 (Whelan), 757-759, 768, 773 (Stine). Cuff, for example,
testified that Jordan came to work with his boots untied and without a belt, creating a
potential safety risk for the crew. Tr. 706, 716. Stine testified that Jordan laughed when
he was unable to remove a jackhammer from the compressor, and did not take the work 35
seriously. Tr. 757, 758-759, 768, 773. Their testimony that Jordan was primarily
relegated to lower-skilled flagging and sweeping work as a result was confirmed by the
testimony of Holder and Jordan himself. Tr. 64-65, 110-111, 129-130, 136-137
(Jordan), 307-308 (Holder), 708 (Cuff), 750 (Zywiec), 755-756 (Stine). I further find it
plausible that crew members need to be able to perform a variety of tasks in order to 40
share the crew’s physically demanding work in an equitable manner, and that one
worker’s inability to do so would cause resentment and hostility on a crew of two to six
people, as NY Paving’s witnesses contended. See Tr. 708-709 (Cuff), 730-731
(Whelan), 746-747, 748-749, 750-751 (Zywiec), 757-758 (Stine); see also Tr. 790-791
(Sarro), 925-926 (Miceli). 45

JD(NY)-01-20

31

Given the problems with Jordan’s work performance, and the possible safety
concerns, I find it the foremen’s testimony that they complained about Jordan to
supervisors to be credible. Tr. 710 (Cuff), 740-741 (Whelan), 755 (Stine). Stine in
particular testified without contradiction that he told Sbarra that he wanted to have
Jordan removed from his crew after one week based in part on complaints from the rest 5
of the crew regarding Jordan’s poor performance and the unequal division of work
which ensued. Tr. 755, 758-759, 766, 775. I therefore credit Sarro’s testimony that
several of the concrete foremen complained about Jordan and requested that he not be
assigned to their crews in the future. Tr. 788-789, 921-922. I further credit Sarro and
Miceli’s testimony that they moved Jordan from crew to crew in order to ensure that one 10
or more of the foremen’s complaints were not engendered by personality differences,
but eventually concluded that Jordan’s work performance was simply inadequate. Tr.
790, 921-922. I further note in this respect that the collective bargaining agreement
between Local 175 and NY Paving provides that NY Paving “shall at all times be the
sole judge as to the work to be performed and whether such work performed by an 15
[e]mployee is or is not satisfactory.” ALJ Ex. 1, p. 5; see also New York Paving, Inc.,
JD-33-19 at p. 5, n. 8.

General Counsel contends that NY Paving effectively condoned Jordan’s poor
work performance by continuing to assign him work from May 2018 through the fall of 20
that year – until he informed Sarro that he intended to join Local 175. G.C. Post-
Hearing Brief at p. 55-56. The Board has long held that a discharge based on
misconduct condoned by an employer until after the employee in question engages in
protected activity indicates that the discharge would not have occurred otherwise. See,
e.g., Deep Distributors of Greater New York, 365 NLRB No. 95, at p. 2-3, 17 (2017), 25
enf’d. 740 Fed.Appx. 216 (2nd Cir. 2018); Waterbury Hotel Management, LLC, 333
NLRB 482, 526-527 (2001), enf’d. 314 F.3d 645 (D.C. Cir. 2003). Here, Sarro testified
that he began receiving complaints from the foremen about Jordan’s work performance
from the inception of his employment, which began in August 2017. Tr. 813.
30
However, the evidence overall simply does not establish that Jordan’s poor work
performance was condoned until NY Paving became aware of his affiliation with Local
175. For example, General Counsel argues that NY Paving condoned Jordan’s work
performance issues by hiring him onto the NY Paving payroll as of November 1, 2017,
after Jordan worked for Di-Jo Construction for approximately 3 months. G.C. Post-35
Hearing Brief at 31-32. However, there is nothing in the record to contradict Miceli’s
credible assertion that all of the Di-Jo Construction employees were hired by NY Paving
at that time after the Di-Jo Construction employees “became such a big issue” in legal
proceedings. Tr. 916-918. Furthermore, NY Paving’s payroll records establish that
after an initial period of employment in November and December 2017, Jordan was not 40
assigned work again until early May 2018, even though according to Jordan’s own
testimony other employees returned to work earlier in the spring. Tr. 60-61; R.S. Ex. 1.
After three days of work in early May, Jordan was not assigned work again until early
June. R.S. Ex. 1. Jordan was assigned work more steadily through the end of July, but
then was assigned nothing until early September 2018. R.S. Ex. 1. 45

JD(NY)-01-20

32

This is not a work history which substantiates the contention that Jordan’s poor
work performance was somehow condoned by NY Paving. Instead, the documentary
evidence is more consistent with Sarro’s testimony that he assigned Jordan work when
“we’re shorthanded and we need to send somebody out just to fill the crew up,” when a
crew is in “a certain location” where an extra person is necessary “to be a flagman or to 5
do something for the day that they’re going to need the body there, and we put him
there since there’s no one else available.” Tr. 813-814. In addition, NY Paving’s payroll
records establish, and Jordan admitted in his testimony, that the work he was assigned
had substantially diminished even before he began his activities on behalf of Local 175
in October 2018, let alone prior to telling Sarro that he intended to join Local 175. Tr. 10
136; R.S. Ex. 1. Specifically, Jordan admitted that the work he was assigned by NY
Paving had “basically dried up” as of October 10, 2018, when he signed a Local 175
authorization card. Tr. 136. Indeed, Jordan admitted that he had “basically stopped
shaping up” at NY Paving before he was even given Local 175 authorization cards. Tr.
207-208. Such a sequence of events is not only inadequate to establish condonation, 15
but undermines an assertion of retaliatory motivation in and of itself.

Finally, General Counsel contends that NY Paving departed from its typical
employment practices because Sbarra explicitly told Jordan that he was fired. G.C.
Post-Hearing Brief at 55. The evidence does establish, as General Counsel argues, 20
that NY Paving typically does not discharge or discipline employees but instead sends
them, as Miceli testified, “back to the union.” Tr. 926-927. Miceli also testified that he
decided that Jordan should “go back to the union, get a steady job someplace” because
“[t]here’s not steady work here for him.” Tr. 923-924. In addition, as discussed above,
Sbarra did not testify at the hearing, so that Jordan’s testimony regarding their 25
interaction on January 7, 2019 is unrebutted. NY Paving argues that Sarro testified that
the January 7, 2019 conversation between Sbarra and Jordan never took place. R.S.
Post-Hearing Brief at 62-63, citing Tr. 792-795. However, in his testimony, Sarro merely
stated that he never heard Sbarra call Jordan a “traitor.” Tr. 795-796. He was not
asked by counsel regarding whether he was present at a meeting where Jordan was 30
discharged, and did not testify that he never heard Sbarra tell Jordan that he was fired.
Thus, Jordan’s testimony that Sbarra told him that he was fired was not rebutted by
Sarro either. As a result, I find that the weight of the evidence overall establishes that
Sbarra told Jordan that he was fired on January 7, 2019. Furthermore, for the reasons
set forth above, the evidence establishes that Sbarra was an agent of NY Paving 35
pursuant to Section 2(13) of the Act.

The evidence therefore establishes that NY Paving diverged from its typical
practice when Sbarra told Jordan that he was discharged. However, given the evidence
introduced by NY Paving which fully substantiates its contentions regarding Jordan’s 40
poor work performance, and the evidence contradicting a condonation argument and
retaliatory motive, I find that NY Paving has satisfied its burden to show that it would
have taken the same action with respect to Jordan in the absence of his protected
activities. As a result, I will recommend dismissal of the Consolidated Complaint’s
allegation that NY Paving violated Sections 8(a)(1) and (3) of the Act by discharging 45
Jordan in retaliation for his affiliation with or support for Local 175.
JD(NY)-01-20

33

C. The Alleged Unlawful Transfer of Asphalt Paving Work (Consolidated
Complaint ¶ 13)

The Consolidated Complaint alleges that NY Paving violated Sections 8(a)(1) 5
and (5) of the Act by transferring asphalt paving work covered by its collective
bargaining agreement with Local 175 to non-bargaining unit employees without
providing Local 175 with an opportunity to bargain and without negotiating to impasse.
General Counsel argues that NY Paving unlawfully transferred four distinct categories of
work purportedly covered by the Local 175 contract – flagging work on milling and 10
paving crews, the asphalt paving component of emergency keyhole wok, Code 49 work,
and Code 92 work. As a general matter, NY Paving does not dispute that it assigned all
of the emergency keyhole work, Code 49 work, and Code 92 work to employees outside
the Local 175 bargaining unit.31 However, NY Paving contends that the assignment of
this work to Local 1010-represented employees was legally permissible for various 15
reasons.

As discussed below, the evidence is insufficient to establish that flagging work on
milling and paving crews was assigned to employees outside of the Local 175
bargaining unit within the six-month period prior to Local 175’s filing the unfair labor 20
practice charge in Case No. 29-CA-234894. However, the evidence demonstrates that
the asphalt component of emergency keyhole work, Code 49 work, and Code 92 work
were unlawfully transferred or assigned out of the Local 175 bargaining unit in violation
of Sections 8(a)(1) and (5) of the Act.
25
1. The scope of NY Paving’s obligation to bargain with Local 175

It is well-settled that where employees are represented by a union, an employer
violates Section 8(a)(1) and (5) of the Act by making unilateral changes with respect to
mandatory subjects of bargaining absent bargaining to impasse. NLRB v. Katz, 369 30
U.S. 736 (1962). The duty to bargain attaches only where the unilateral change is
“material, substantial and significant” and affects the terms and conditions of
employment for the bargaining unit employees. North Star Steel Co., 347 NLRB 1364,
1367 (2001). The transfer of bargaining unit work to non-bargaining unit employees
constitutes a mandatory subject of bargaining. Matson Terminals, Inc., 367 NLRB No. 35
20 at p. 4 (2018), citing Regal Cinemas, Inc., 334 NLRB 304, 312-313 (2001), enf’d. 317
F.3d 300 (D.C. Cir. 2003); Midwest Terminals of Toledo International, Inc., 365 NLRB
No. 134 at p. 11 (2017). Thus, an employer may not transfer or assign bargaining unit
work to non-bargaining unit employees without providing the union with notice and the
opportunity to bargain. 40

The record here establishes that work involving the placement of temporary and
permanent asphalt is covered by both Local 175’s certification as collective bargaining
representative and the July 1, 2014 through June 30, 2017 collective bargaining

31 NY Paving does not address the alleged unilateral transfer of flagging work on milling and paving crews
in its Post-Hearing Brief.
JD(NY)-01-20

34

agreement between Local 175 and NY Paving. Local 175’s certification applies to
“workers who primarily perform asphalt paving,” and its collective bargaining agreement
with NY Paving covers “preparing for and performing all types of asphalt work.” ALJ Ex.
1 at p. 9; see also New York Paving, Inc., JD-33-19 at p. 4; Highway Road and Street
Construction Laborers, Local 1010 (New York Paving), 366 NLRB No. 174 at p. 3. The 5
collective bargaining agreement’s description of bargaining unit work also includes
“temporary asphalt paving necessary on streets, sidewalks…and federal, city, local and
state roads.” ALJ Ex. 1 at p. 9. The record further establishes that prior to 2018, NY
Paving assigned all work involving the placement of asphalt to members of Local 175.
See Midwest Terminals of Toledo International, Inc., 365 NLRB No. 134 at p. 11 10
(prohibition on assignment of bargaining unit to work to non-bargaining unit employees
applies to established past practices regarding work assignment even if such past
practices were not explicitly articulated in the collective bargaining agreement). Thus,
NY Paving was not permitted to assign work involving the placement of temporary or
permanent asphalt to employees outside of the Local 175 bargaining unit, absent the 15
consent of Local 175 or bargaining to impasse.

NY Paving does not contend that it had no general obligation to bargain with
Local 175 over any transfer of work encompassed by the bargaining unit description
contained in the expired contract.32 NY Paving requests, however, that I draw an 20
adverse inference based upon General Counsel’s failure to introduce the July 1, 2014
through June 30, 2017 collective bargaining agreement between Local 175 and NY
Paving into evidence. R.S. Post-Hearing Brief at 19-21. I do find General Counsel’s
failure to introduce the contract between Local 175 and NY Paving perplexing. I
ultimately determined that the collective bargaining agreement’s unit description 25
constituted significant evidence regarding the scope of NY Paving’s bargaining
obligation, and admitted the contract on that basis as an exhibit in an order dated
December 10, 2019, which is attached to this Decision. ALJ Ex. 1. In addition, General
Counsel’s Post-Hearing Brief contains specific representations regarding the contract
that were impossible to evaluate without reviewing the language of the contract itself.33 30

Ultimately, however, Respondent does not contend that it had no obligation to
bargain regarding the work described in the collective bargaining agreement.
Furthermore, Respondent does not argue that the Board inaccurately recounted the
contract’s description of bargaining unit work in its August 24, 2018 Section 10(k) 35
Decision. See Highway Road and Street Construction Laborers, Local 1010 (New York
Paving), 366 NLRB No. 174 at p. 3. Indeed, Respondent relies on the Board’s award of
work in the Section 10(k) Decision to argue that NY Paving was permitted to assign
Code 49 and Code 92 work to Local 1010. Respondent also does not argue that its

32 NY Paving does not argue, for example, that Local 175 lost majority support or that the obligation to
bargain did not survive the expiration of the July 1, 2014 through June 30, 2017 collective bargaining
agreement for any other reason.
33 For example, General Counsel’s Post-Hearing Brief states that General Counsel is “relying on the prior
collective bargaining agreements whose terms would continue to apply if there were no subsequent
contract,” and that the “collective bargaining agreement clearly includ[ed] asphalt paving in its description
of covered work and otherwise did not have a management rights clause.” G.C. Post-Hearing Brief at p.
13, fn. 6, and at p. 42, fn. 20.
JD(NY)-01-20

35

assignment of the work at issue in this case was permissible pursuant to any
management rights clause contained in its collective bargaining agreement with Local
175. Finally, NY Paving had adopted the Local 175 contract, and could have introduced
the contract into evidence itself had it so desired. See Miramar Sheraton Hotel, 336
NLRB 1203, 1229 (2001) (declining to draw adverse inference based upon failure to 5
introduce document equally available to all parties); Iron Workers Local 75 (Defco
Construction), 268 NLRB 1453, 1456, n. 8 (1984) (same). As a result, I decline to draw
an adverse inference based upon General Counsel’s failure to introduce Local 175’s
collective bargaining agreement into the record.
10
2. Flagging work on milling and paving crews

General Counsel contends that NY Paving unlawfully transferred flagging work
on milling and paving crews, formerly performed by Local 175-represented asphalt
workers, to Local 1010-represented concrete workers and to Di-Jo Construction 15
employees not represented by any union. General Counsel contends in her Post-
Hearing Brief that NY Paving “ultimately admitted” transferring flagging work on milling
and paving crews out of the Local 175 bargaining unit. Post-Hearing Brief at 42.
However, General Counsel points to no testimony or admissions on NY Paving’s part to
support such an assertion. In fact, Miceli testified that NY Paving stopped assigning Di-20
Jo Construction and Local 1010-represented workers flagging work on milling and
paving crews in late 2017 or early 2018.34 Tr. 983. Because Local 175 filed the charge
in Case No. 29-CA-134894 on January 29, 2019, this took place long before the
inception of the six-month period for filing unfair labor practice charges contained in
Section 10(b) of the Act. 25

General Counsel points to the testimony of Jordan and Holder to establish that
Di-Jo Construction employees were assigned flagging work on milling and paving
crews. Post-Hearing Brief at 19-20. However, Holder testified that Di-Jo Construction
employees had done so during “some periods of time” when “a crew is short,” without 30
elaborating on the specific time-frame involved. Tr. 224-225. This is consistent with
Miceli’s testimony that Di-Jo Construction and Local 1010-represented workers were
assigned flagging on milling and paving jobs, but does not contradict Miceli’s assertion
that the practice ceased in early 2018. Therefore, the sole evidence that such
assignments were made in 2018 is Jordan’s vague and contradictory testimony. Asked 35
on direct examination whether he was assigned flagging work with a Local 175 crew,
Jordan initially responded, “All the time, yeah…doing the flagging.” Tr. 64. Asked when
that occurred, Jordan responded, “like, say, there’s no work available, like no dig-out,
and something might come up to flagging…That’s when he just put me down, go to
flagging for like a week or two, and then we see if something come up, I’ll give you the 40
work.” Id. Only on cross-examination, after he was referred to his affidavit, did Jordan
testify that he was assigned to flagging work on milling and paving crews in July 2018.

34 Zaremski testified that he was not aware of Di-Jo Construction employees having performed flagging
work on milling and paving crews, and Sarro was not specifically questioned regarding flagging in
connection with asphalt work. Tr. 550-551, 834-835. As discussed previously, Sbarra did not testify at
the hearing.
JD(NY)-01-20

36

Tr. 128-129. While Jordan’s payroll history indicates that he worked for approximately
three weeks in July 2018, it does not indicate what type of work he performed, and there
is no other evidence in the record to establish that his work at the time consisted of
flagging on milling and paving crews. Given Jordan’s overall lack of reliability as a
witness, I find his testimony insufficient to rebut the more credible assertions of Miceli 5
that Di-Jo Construction and Local 1010-represented employees ceased performing
flagging work on milling and paving crews in late 2017 or early 2018, outside the
Section 10(b) period. As a result, the record does not establish that NY Paving
transferred flagging work on milling and paving crews outside the Local 175 bargaining
unit within the Section 10(b) period. 10

3. Emergency keyhole work

Miceli admitted during his testimony that NY Paving began assigning all
emergency keyhole work, including work involving asphalt paving, to Local 1010-15
represented workers in early 2018. Tr. 885. NY Paving does not dispute that the
asphalt portion of the emergency keyhole work, once performed by Local 175-
represented asphalt workers, is now performed by concrete workers represented by
Local 1010. Instead, NY Paving asserts several affirmative defenses with respect to the
assignment of emergency keyhole work. R.S. Post-Hearing Brief at 65-74. NY Paving 20
contends that Local 175’s charge regarding the unlawful transfer of emergency keyhole
work is time-barred pursuant to Section 10(b) of the Act. NY Paving also argues that it
had no duty to bargain regarding the assignment of emergency keyhole work to
concrete employees represented by Local 1010 because it had no control over Hallen’s,
and ultimately ConEd’s, requirement that all employees used on subcontracted projects 25
be represented by a labor union affiliated with the NYCBTC. Finally, NY Paving claims
that the amount of asphalt paving involved in the emergency keyhole work is so
negligible that the transfer of that work out of the Local 175 bargaining unit was de
minimis, as opposed to material and significant.
30
For the following reasons, the evidence does not substantiate these various
defenses. As a result, the evidence establishes that NY Paving violated Sections
8(a)(1) and (5) of the Act by assigning the asphalt paving component of the emergency
keyhole work to non-bargaining unit employees without notifying Local 175 and
providing Local 175 with the opportunity to bargain. 35

a. The charge in Case No. 29-CA-234894 was not untimely pursuant to Section
10(b) of the Act

NY Paving argues that the allegation that it unlawfully transferred emergency 40
keyhole work out of the Local 175 bargaining unit is time-barred, in that Local 175 had
clear and unequivocal notice of the transfer in the spring of 2018, more than six months
prior to its filing the charge in Case No. 29-CA-234894 on January 29, 2019. For the
following reasons, the evidence does not establish that Local 175 had legally operative
notice of the transfer of emergency keyhole work more than six months prior to filing the 45
charge, and this defense must be rejected.
JD(NY)-01-20

37

Section 10(b) of the Act provides that “no complaint shall issue based upon any
unfair labor practice occurring more than six months prior to the filing of the charge with
the Board.” It is well-settled that the 10(b) period begins “only when a party has clear
and unequivocal notice of a violation of the Act.” Taylor Ridge Paving & Construction, 5
365 NLRB No. 168 at p. 3 (2017), quoting A & L Underground, 302 NLRB 467, 468
(1991). A respondent raising Section 10(b) as an affirmative defense bears the burden
to establish that the charging party had clear and unequivocal notice of the violation at
issue. Id. In order to do so, the evidence must demonstrate that the charging party had
actual or constructive knowledge of the violation – that the conduct violating the Act was 10
sufficiently “open and obvious” to provide clear notice, or that the unlawful conduct
would have been discovered through the exercise of reasonable diligence. Broadway
Volkswagen, 342 NLRB 1244, 1246 (2004), enf’d. 483 F.3d 628 (9th Cir. 2007), quoting
Duke University, 315 NLRB 1291, fn. 1 (1995). Furthermore, the Section 10(b) period
does not apply where a charging party’s delay in filing is engendered by “conflicting 15
signals or otherwise ambiguous conduct by the other party.” Taylor Ridge Paving &
Construction, 365 NLRB No. 168 at p. 3, quoting A & L Underground, 302 NLRB at 468;
see also Regency Heritage Nursing & Rehabilitation Center, 360 NLRB 794, 809-810
(2014), enf’d. 657 Fed.Appx. 129 (3rd Cir. 2016) (collecting cases); Taylor Warehouse
Corp., 314 NLRB 516, 526 (1994), enf’d. 98 F.3d 892 (6th Cir. 1996). 20

The evidence here does not establish that Local 175 had clear and unequivocal
notice of the transfer of the emergency keyhole work out of its bargaining unit prior to
onset of the Section 10(b) period. Holder did testify, as NY Paving contends, that the
truck he typically used on jobs was set up for asphalt paving by employees represented 25
by Local 1010. R.S. Post-Hearing Brief at 67; Tr. 247-251. I further find, as argued by
NY Paving, that this occurred in April 2018, as set forth in Holder’s affidavit, and not in
late 2018 or early 2019, given Holder’s admission that his recollection was affected by
subsequent medical treatment.35 Tr. 251-252, 327-330, 333. The record also
establishes that Holder contacted Priolo and Franco regarding this incident. Tr. 331-30
332. However, Holder testified that he did not know whether the asphalt work his truck
was being prepared for was emergency keyhole work, and did not know what work the
Local 1010-represented employees ultimately performed with it. Tr. 338.

Holder’s e-mails admitted into the record as Respondent’s Exhibit 24 after the 35
hearing closed also do not establish clear and unequivocal notice that NY Paving had
transferred the asphalt paving involved in emergency keyhole work out of the Local 175
bargaining unit. Holder’s April 21, 2018 e-mail indicates that he informed Priolo and
Franco that, “1010 went out with three crews today. One in Manhattan, the Bronx and
one in Bklyn. Sent pictures of one of the crews working to both Charlie and Anthony, as 40
well as the daily list.” R.S. Ex. 24. However, there is no indication as to whether any of

35 Local 175 Business Manager Charlie Priolo testified that he first spoke with Holder regarding an
incident involving the transfer of bargaining unit work in late 2018 or early 2019. Tr. 380, 383-384.
However, Priolo’s testimony in this regard does not establish that the transferred work he discussed with
Holder was emergency keyhole work. Id. NY Paving’s contention in its Motion to Reopen that this
discrepancy establishes that Priolo perjured himself during the hearing is rejected.
JD(NY)-01-20

38

these crews were performing emergency keyhole work, or which of the three crews
Holder photographed. Holder’s May 4, 2018 e-mail states, “Miguel Nieves called to say
he saw 1010 working in the Bronx at 233 st.,” but also does not indicate whether the job
Nieves observed consisted of emergency keyhole work. R.S. 24; see also Tr. 330-331,
334-335. While the record supports NY Paving’s contention that emergency keyhole 5
work primarily took place in the Bronx, the evidence does not conclusively establish that
all work performed by NY Paving in the Bronx was necessarily emergency keyhole
work. Tr. 431. Holder’s May 7, 2018 e-mail simply states, “1010 went out on Sunday
night (Scrappy) concrete and asphalt,” without any mention of where the asphalt work
was performed or for what client. R.S. Ex. 24. Thus, Holder’s e-mails establish that he 10
observed one specific occurrence of Local 1010-represented employees performing
asphalt work and heard of two others, and that some of this work occurred in the Bronx.
They do not demonstrate that Local 175 was aware of a wholesale, permanent transfer
of the asphalt component of the emergency keyhole work out of the Local 175
bargaining unit. Thus, they are not inconsistent overall with Chaikin’s testimony that 15
prior to the hearing before Judge Gollin the evidence Local 175 was able to obtain
regarding the transfer of emergency keyhole work consisted primarily of “rumors” that
such work was being assigned to employees represented by Local 1010. Tr. 678-679,
684-685.
20
NY Paving further argues that it provided Local 175 with clear and unequivocal
notice that the asphalt paving involved emergency keyhole work had been transferred to
workers represented by Local 1010 via its action for a declaratory judgment filed in the
United States District Court for the Eastern District of New York on May 18, 2018. R.S.
Post-Hearing Brief at 65-66; R.S. Ex. 20. However, nothing in NY Paving’s complaint 25
unequivocally indicates that the asphalt component of the emergency keyhole work was
being assigned to Local 1010-represented concrete crews at that point. For example,
the complaint states that “NYP36 intends to service all present and future agreements
with Con-Edison using only Local 1010 workers,” not that such work was already being
assigned exclusively to Local 1010-represented employees. R.S. Ex. 20, ¶ 13. To the 30
contrary, the complaint states that “Currently, NYP cannot accept significant Con-
Edison asphalt paving work because of Local 175’s demand that its workers be
permitted to perform the work,” and that “It was never envisioned by Local 175 or NYP
that Local 175 would be banned from performing work on behalf of Con-Edison.” R.S.
Ex. 20, ¶¶ 42, 72. NY Paving then describes itself as “being unable to service contracts 35
that would have been and/or are in the process of being awarded to NYP by Con-
Edison” as a result of its collective bargaining relationship with Local 175. R.S. Ex. 20,
¶ 77. The complaint therefore gives the overall impression that NY Paving was
precluded from performing asphalt paving work for ConEd as a result of its contractual
obligations to Local 175, and not that it was assigning emergency keyhole work to non-40
bargaining unit employees at the time. Such language did not provide Local 175 with
clear and unequivocal notice that emergency keyhole work involving asphalt paving was
being assigned out of the Local 175 bargaining unit as of May 18, 2018.

36 “NYP” is used in the complaint as an abbreviation for New York Paving. R.S. Ex. 20, p. 1.
JD(NY)-01-20

39

The record also establishes that Local 175 exercised due diligence in attempting
to determine whether NY Paving was transferring bargaining unit work to non-
bargaining unit employees. Indeed, the evidence establishes that Local 175 has
consistently pursued investigations and claims regarding NY Paving’s assignment of
asphalt paving work out of the Local 175 bargaining unit. In November 2017, Local 5
175’s attorney, Eric Chaikin, filed a grievance regarding the assignment of asphalt
paving work covered by Local 175’s contract to employees represented by Local 1010.
Tr. 638-639, 641-642, 654-655; R.S. Ex. 9; G.C. Ex. 22. Local 175 pursued this
grievance, which was resolved when NY Paving paid amounts representing
contributions to the relevant benefit funds as would have been contractually required 10
had the work been performed by Local 175 members. Tr. 642-644; 654-655; G.C. Ex.
23. Furthermore, nothing in the record indicates that this grievance or its resolution
involved emergency keyhole work pursuant to the Hallen subcontract.

In addition, Local 175 filed unfair labor practice charges on February 26, 2018 15
and and March 26, 2018, alleging that NY Paving was transferring or assigning
bargaining unit work to non-unit employees. Tr. 663, 666-670; R.S. Exs. 7, 8. Chaikin
testified that Local 175 withdrew these allegations after the Regional Director
determined that they would otherwise be dismissed, and that he therefore directed
Local 175’s representatives to attempt to obtain additional evidence. Tr. 666-669, 671-20
672, 673, 675-676. One of the withdrawn allegations, regarding NY Paving’s failure to
maintain a contractually-required crew size for asphalt paving, was arbitrated in early
2019, with Local 175 prevailing. Tr. 666, 1051-1052; R.S. Ex. 22, p. 2-3. Other
allegations became part of the Complaint issued by Region 29 on May 30, 2018 and
eventually adjudicated by Judge Gollin. See New York Paving, Inc., JD-33-19, at p. 2. 25
The Board has previously held that a union’s filing of unfair labor practice charges
alleging unlawful unilateral changes that are later withdrawn in lieu of dismissal belies a
finding that the union failed to exercise due diligence in pursuing such claims. See
O’Neill, Ltd., 288 NLRB 1354, 1356 (1988); Land Air Delivery, 286 NLRB 1131, 1154
(1987). And in any event, there is nothing in the record to indicate that these charges 30
involved emergency keyhole work.

I note as well that the nature of NY Paving’s business, which requires that crews
work at many different job sites throughout the five boroughs of New York City, with
locations changing on a daily basis, made Local 175’s unilateral transfer allegations 35
particularly difficult to substantiate. These numerous, constantly changing work
locations precluded Local 175 from discovering the alleged unilateral transfer of asphalt
paving work by simply “monitoring the shop.” See Comcraft, Inc., 317 NLRB 550, 550,
fn. 3 (1995) (union would not have been aware of new employees where employer’s
work force “did not work at one facility” but was “dispatched to other sites for varying 40
periods of time”). Furthermore, in the Long Island City yard different supervisors –
Zaremski and Sarro, respectively – assigned asphalt and concrete work and different
shop stewards – Holder for Local 175 and Sbarra for Local 1010 – interacted with their
union’s members. As a result, Holder would not necessarily have known from his
activities at the Long Island City Yard whether Local 1010-represented employees were 45
being assigned asphalt work, where they were performing such work, or how frequently
JD(NY)-01-20

40

this was occurring. Thus, Local 175, in the person of Priolo, was forced to literally stalk
NY Paving’s trucks from the Long Island City yard to individual job sites in order to
determine whether Local 1010-represented concrete workers were performing asphalt
paving work. Tr. 364-368, 372-377; G.C. Ex. 13, 14, 16. And even when Local 175
discovered that this was in fact the case, there was no way to determine whether it 5
constituted an anomalous incident or a coherent policy on NY Paving’s part of assigning
asphalt paving work to Local 1010-represented employees.

As a result, nothing in the record contradicts Chaikin’s testimony that apart from
unsubstantiated rumors, Local 175 first learned that Local 1010 crews were being 10
consistently assigned emergency keyhole work involving asphalt paving when Miceli
testified to that effect on September 21, 2018 at the hearing before Judge Gollin. Tr.
678-679, 684-685; R.S. Ex. 23. Nor does the evidence contradict Chaikin’s testimony
that the January 29, 2019 charge in the instant case was filed based on Miceli’s
September 21, 2018 testimony that NY Paving was sending a crew out to perform 15
asphalt paving as part of the emergency keyhole work three times per month. Tr. 678-
679; R.S. Ex. 23. For all of the foregoing reasons, NY Paving has failed to satisfy its
burden to establish that it provided Local 175 with clear and unequivocal notice that it
had permanently transferred work covered by its collective bargaining relationship with
the union to non-bargaining unit employees. NY Paving has further failed to establish 20
that Local 175 could have discovered the unilateral transfer of work outside the Section
10(b) period had it exercised due diligence. As a result, the charge in Case No. 29-CA-
234894 is not time-barred with respect to the emergency keyhole work.

b. NY Paving was not excused from its obligation to bargain because it lacked 25
control over the terms of the Hallen subcontract

NY Paving further argues that it had no duty to bargain regarding the transfer of
emergency keyhole work out of the Local 175 bargaining unit because it had no control
over ConEd’s requirement, incorporated into the Hallen subcontract effective January 1, 30
2018, that work be performed only by members of unions affiliated with the NYCBTC.
However, it is well-settled that bargaining is excused in such cases only where
“extraordinary” and “unforeseen” events “having a major economic effect” demand that
a business “take immediate action.” RBE Electronics of S.D., 320 NLRB 80, 81 (1995),
quoting Hankins Lumber Co., 316 NLRB 837, 838 (1995); see also Ardit Co., 364 NLRB 35
No. 130 at p. 5 (2016). For example, in Ardit Co., the Board found that unilateral layoffs
were not justified even though the Respondent business “lost a major contract” after a
stop-work order and “its bid for another contract was unsuccessful.” 364 NLRB No. 130
at p. 5. Indeed, the Board has found that adverse business circumstances such as
“loss of significant accounts or contracts” and “operation at a competitive disadvantage” 40
are insufficient to obviate a bargaining obligation unless the evidence establishes “a dire
financial emergency.”37 RBE Electronics of S.D., 320 NLRB at 81, citing Farina Corp.,

37 Given the weight of this countervailing authority, the Board’s decision in Southern Mail, Inc., 345 NLRB
644, 645, fn. 8 (2005), cited by NY Paving, is not persuasive. Exxon Research & Engineering Co. v.
NLRB, 89 F.3 228 (5th Cir. 1996), also cited by NY Paving, involved changes made in an employee
benefit plan subject to the Employee Retirement Income Security Act by the plan’s trustees, and is
JD(NY)-01-20

41

310 NLRB 318, 321 (1993) (loss of a customer account), and Triple A Fire Protection,
315 NLRB 409, 414, 418 (1994), enf’d. 136 F.3d 727 (11th Cir. 1998).

Here, NY Paving introduced no evidence to establish that a “dire financial
emergency” necessitated its immediate transfer of the emergency keyhole work out of 5
the Local 175 bargaining unit. Indeed, the evidence demonstrates that NY Paving
performs significant work for National Grid in addition to the emergency keyhole work it
performs under the Hallen subcontract. Furthermore, Miceli claimed that the street
component of the emergency keyhole work requiring asphalt paving constituted only
ten-percent of twenty-percent of the emergency keyhole work performed pursuant to the 10
Hallen subcontract, as discussed below. As a result, the evidence overall establishes
that the scenario faced by NY Paving with respect to the emergency keyhole work and
the Hallen subcontract is similar to the adverse business consequences that the Board
has found insufficient to establish a dire financial emergency requiring immediate action
in the cases discussed above. Therefore, compelling economic circumstances did not 15
excuse NY Paving’s obligation to bargain regarding the transfer of emergency keyhole
work out of the Local 175 bargaining unit.

c. The transfer of the emergency keyhole work was a material, substantial and
significant change creating an obligation to bargain 20

As discussed above, the duty to bargain attaches only where a unilateral change
is “material, substantial and significant.” North Star Steel Co., 347 NLRB at 1367.
General Counsel bears the burden to establish that the unilateral change at issue meets
these criteria. Id. Here, the General Counsel has adduced evidence adequate to 25
demonstrate that the transfer of the emergency keyhole work constituted a material,
substantial, and significant change pursuant to the applicable caselaw.

It is well-settled that the transfer of bargaining unit work to employees outside the
bargaining unit constitutes a “material, substantial and significant” change engendering 30
a bargaining obligation. See, e.g., Matson Terminals, Inc., 367 NLRB No. 20 at p. 1, fn.
2, citing Regal Cinemas, 334 NLRB 304 (2001). The Board has repeatedly found that a
transfer of bargaining unit work is material, substantial and significant even where there
is no evidence that bargaining unit employees were laid off as a result, and no evidence
of any impact on their wages and hours. See, e.g., Matson Terminals, Inc., 367 NLRB 35
No. 20 at p. 1, fn. 2 (no evidence of impact on employee compensation necessary to
establish substantial and material change due to transfer of bargaining unit work);
Comau, Inc., 364 NLRB No. 48 at p. 21 (2016) (same); Mi Pueblo Foods, 360 NLRB
1097, 1097-1099 (2014) (transfer of bargaining unit work material and substantial even
absent layoffs or significant impact on wages and hours for bargaining unit employees). 40
The Board has stated that it is “plain” that a bargaining unit “is adversely affected

therefore inapposite. In any event, the Board found that the employer’s unilateral changes violated
Sections 8(a)(1) and (5). See Exxon Research & Engineering Co., 317 NLRB 675 (1995). It is well-
settled that the Board generally adheres to a “nonacquiescence policy” with respect to appellate court
decisions that conflict with Board law, unless the Board precedent is reversed by the Supreme Court.
See, e.g., D.L. Baker, Inc., 351 NLRB 515, 529 at fn. 42 (2007).
JD(NY)-01-20

42

whenever bargaining unit work is given away to nonunit employees, regardless of
whether the work would otherwise have been performed by employees already in the
unit or by new employees who would have been hired into the unit.” Overnite
Transportation Co., 330 NLRB 1275, 1276, aff’d. and rev’d. in part, 248 F.3d 1131 (3rd
Cir. 2000); see also Matson Terminals, Inc., 367 NLRB No. 20 at p. 1, fn. 2 (General 5
Counsel “met his burden” to establish a substantial and material change “by showing
that the Respondent transferred barge menu work – which had been exclusively
performed by unit employees – to nonunit employees”).

NY Paving argues that the asphalt component of the emergency keyhole work 10
constitutes only a small portion of the work it performs for Hallen pursuant to the ConEd
subcontract. Miceli testified that only twenty-percent of the emergency keyhole work is
performed on streets and therefore involves the placement of asphalt. Miceli further
stated that ten of the twelve inches excavated in the street in question is replaced with
concrete, with only the remaining two inches consisting of asphalt “top.” Miceli testified, 15
and NY Paving argues, that this amounts to ten-percent of the emergency keyhole work
performed on streets, or ten-percent of twenty-percent of the emergency keyhole work
overall. However, Miceli also testified that the emergency keyhole work required a four-
person “top” crew performing asphalt work approximately three to four times a month,
for a total of fifteen hours of paving. Tr. 583-584. I find the latter testimony to be the 20
more accurate assessment of the actual asphalt work traditionally assigned to Local 175
and encompassed by its collective bargaining agreement pursuant to the emergency
keyhole contract. This amount of transferred bargaining unit work constitutes a
substantial, material and significant change sufficient to create a bargaining obligation.
See Ruprecht Co., 366 NLRB No. 179 at p. 1, n. 1, and at p. 14 (2018) (transfer of 25
bargaining unit work to “7 temporary employees out of a total complement of about 92
employees” a material, substantial and significant change requiring bargaining).

Finally, I find that North Star Steel Co., 347 NLRB 1364 (2006), cited in the
parties’ Post-Hearing Briefs, is inapposite here. In that case, the Board determined that 30
a single transfer of work involving .006 percent of the Respondent’s total production of
steel for the month did not constitute a material, substantial and significant change
creating an obligation to bargain. North Star Steel Co., 347 NLRB at 1367-1368. The
miniscule fraction of the production and work at issue in North Star Steel is not
comparable to the three to four days of work per month for four Local 175-represented 35
employees in the instant case. Furthermore, the transfer of production in North Star
Steel was an isolated incident occurring in one month only. North Star Steel Co., 347
NLRB at 1367. Here, by contrast, the emergency keyhole work has been ongoing since
January 2018, when NY Paving transferred the asphalt component of that work out of
the Local 175 bargaining unit, and there is no evidence that it will not continue in this 40
manner in the future. As a result, the scenario addressed by the Board in North Star
Steel is fundamentally different from the circumstances at issue here.

For all of the foregoing reasons, the evidence establishes that General Counsel
has met her burden to demonstrate that the transfer of asphalt paving involved in the 45
emergency keyhole work constituted a material, substantial and significant change
JD(NY)-01-20

43

engendering an obligation to bargain with Local 175. Because the other affirmative
defenses raised by NY Paving are not substantiated by the record evidence as
discussed above, NY Paving’s unilateral transfer of the asphalt component of the
emergency keyhole work to employees outside of the Local 175 bargaining unit violated
Sections 8(a)(1) and (5) of the Act. 5

4. Code 49 work

NY Paving concedes, as Miceli testified, that concrete workers represented by
Local 1010 have performed all of the Code 49 work since the code was created in the 10
summer of 2018. NY Paving contends, however, that it was permitted to assign the
Code 49 work to Local 1010-represented concrete workers pursuant to the Board’s
Decision in Highway Road and Street Construction Laborers, Local 1010 (New York
Paving), 366 NLRB No. 174 (2018). NY Paving argues that the Code 49 work was
therefore never subject to the Local 175 contract, and that NY Paving was under no 15
obligation to bargain. R.S. Post-Hearing Brief at 74-78.

The evidence overall does not establish that the Code 49 work was properly
assigned out of the Local 175 bargaining unit pursuant to the Board’s Decision in the
Section 10(k) case. The evidence conclusively establishes that asphalt paving work is 20
encompassed by the collective bargaining relationship between Local 175 and NY
Paving. Local 175’s certification covers employees “who primarily perform asphalt
paving,” and its contract specifically covers “prepar[ing] for and perform[ing] all types of
asphalt paving,” including “temporary asphalt paving.” New York Paving, Inc., JD-33-19
at p. 4; ALJ Ex. 1 at p. 9; see also Highway Road and Street Construction Laborers, 25
Local 1010 (New York Paving), 366 NLRB No. 174 at p. 3. Miceli himself testified in the
instant case that Local 175 represents “asphalt workers,” and NY Paving states in its
Post-Hearing Brief that Local 175’s members “perform asphalt paving work.” Tr. 838;
R.S. Post-Hearing Brief at p. 2; see also Highway Road and Street Construction
Laborers, Local 1010 (New York Paving), 366 NLRB No. 174 at p. 1 (“Historically… 30
Local 175 has represented the employees who primarily perform asphalt work”). Thus,
the evidence establishes that work involving both temporary and permanent asphalt is
covered by the collective bargaining agreement between Local 175 and NY Paving.
Nothing in the Board’s Section 10(k) Decision in Highway Road and Street Construction
Laborers, Local 1010 (New York Paving) permits the assignment of asphalt paving work 35
to employees outside the Local 175 bargaining unit. See Midwest Terminals of Toledo
International, Inc., 365 NLRB No. 134 at p. 11 (rejecting contention that previous
Section 10(k) Decision “authorizes a change that would deprive” union’s member of
work “that it was the established past practice for them to perform”).
40
The evidence further demonstrates that Code 49 work involves asphalt paving.
Miceli’s own testimony establishes that the Code 49 work consists of the placement of
temporary asphalt in a cut to replace two to three inches of backfill and temporary
asphalt left by National Grid, so that saws can be run over it without causing hazardous
conditions or being damaged. Although NY Paving’s Post-Hearing Brief refers to 45
“temporary material” being placed in the cut as part of a Code 49, Miceli and Zaremski’s
JD(NY)-01-20

44

testimony makes clear that temporary asphalt is being used. R.S. Post-Hearing Brief at
p. 76-77; Tr. 509-510, 980-981, 1008-1009.

NY Paving argues that Code 49 work is only performed to stabilize the area of a
street for sawcutting, the initial component of the excavation process, and both 5
sawcutting and excavation work were awarded to Local 1010 by the Board. NY Paving
contends that Code 49 work therefore constitutes the first step in the excavation work
awarded to Local 1010 in the Section 10(k) Decision. R.S. Post-Hearing Brief at 76-77.
This argument is unavailing for several reasons. First of all, the evidence does not
support a contention that the Code 49 work – the placement of temporary asphalt – is 10
only performed in the context of the sawcutting and excavation process. The record
establishes that Local 175-represented employees place temporary asphalt in other
circumstances which will be followed by further work at the site. For example, Holder
and Miceli both testified that binder, or temporary asphalt, is placed by Local 175-
represented crews prior to finishing a street to grade with “top” asphalt. Tr. 228, 592-15
593. NY Paving does not claim that all work involving temporary asphalt as opposed to
permanent asphalt “top” is covered by Local 1010’s collective bargaining agreement or
is appropriately assigned to Local 1010-represented employees pursuant to the Board’s
Section 10(k) Decision.
20
Furthermore, the evidence does not establish that the sawcutting and dig-out
follow a Code 49 so quickly that the entire repair comprises one distinct work process,
as NY Paving contends. For example, in his testimony Miceli described the amount of
time between a Code 49 and the sawcutting, dig-out, and completion of the overall job
by referring to the average amount of time for completion of any NY Paving job. Tr. 25
878. Ultimately, Zaremski and Miceli both testified that the temporary asphalt placed as
part of a Code 49 is typically sawcut and dug out about a week to ten days after the
Code 49 work itself is performed. Furthermore, Miceli testified although the sawcutting
and dig out would follow a Code 49 within days, asphalt “top” is placed by Local 175-
represented employees “within hours” of an excavation performed by members of Local 30
1010. Tr. 981. Thus, the evidence overall contradicts Respondent’s assertion that the
sawcutting and dig-out follow a Code 49 in so rapid and integral a manner that the
entire project constitutes one uniquely coherent work process.

In addition, the Board rejected similar reasoning in analyzing the language of 35
Local 175 and Local 1010’s unit certifications and collective bargaining agreements in
its Section 10(k) Decision. Highway Road and Street Construction Laborers, Local
1010 (New York Paving), 366 NLRB No. 174 at p. 3. The Board noted there that both
contracts could be “fairly read to cover off of the disputed work” in that case. Id.
Specifically, the Board stated that language in the Local 175 contract including work 40
involved in “prepar[ing] for…all types of asphalt paving” could encompass “sawcutting
and excavation,” which must take place prior to the ultimate placement of asphalt “top.”
Id. However, the Board found that the unit description language contained in Local
1010’s contract “squarely covers excavation,” and as a result was more “specific” than
the language contained in Local 175’s collective bargaining agreement. Id. The Board 45
therefore determined that the contract language at issue favored awarding the disputed
JD(NY)-01-20

45

work to Local 1010-represented employees. Id. Thus, Board’s analysis in this regard
clearly privileged language specifically describing the work at issue over language
potentially encompassing the disputed work as part of an overall repair. Here, as
discussed above, the Local 175 certification and contract explicitly cover preparation for
and performance of all types of asphalt paving. The collective bargaining agreement’s 5
recognition language further encompasses “temporary asphalt paving…on streets,
sidewalks and private property.” ALJ Ex. 1, p. 9. The evidence also establishes that
Local 175-represented employees performed all work involved in the placement of
asphalt, regardless of the industrial processes that followed in order to complete the
overall street or sidewalk repair. Therefore, NY Paving’s argument that subsequent 10
concrete work necessary to complete the repair somehow subsumed the temporary
asphalt work comprising a Code 49 must be rejected.

For all of the foregoing reasons, the evidence establishes that the Code 49 work
is within the purview of NY Paving’s collective bargaining relationship with Local 175, 15
and NY Paving was obligated to bargain with Local 175 prior to assigning it out of the
bargaining unit. There is no dispute that NY Paving failed to provide Local 175 with
notice and the opportunity to bargain regarding the issue. As a result, the evidence
establishes that NY Paving’s unilateral assignment of Code 49 work to employees
outside of the Local 175 bargaining unit violated Sections 8(a)(1) and (5) of the Act. 20

5. Code 92 work

As with the Code 49 work, NY Paving concedes that concrete workers
represented by Local 1010 have performed all of the Code 92 work since fall 2018, 25
including the placement of asphalt. There is no dispute that a Code 92 includes the
placement of temporary asphalt in an area so that it can be sawcut prior as part of the
subsequent excavation. Tr. 233, 980-981. However, NY Paving contends that it was
also permitted to assign the Code 92 work to Local 1010-represented workers pursuant
to the Board’s Decision in Highway Road and Street Construction Laborers, Local 1010 30
(New York Paving). NY Paving argues that because Code 92 work is performed only to
stabilize a sidewalk for sawcutting and excavation it actually constitutes the initial phase
of the excavation work awarded to Local 1010 by the Board. NY Paving further claims
that because sidewalks consist entirely of concrete, any work on them is encompassed
by the Board’s Decision awarding “any and all concrete work” to Local 1010. R.S. Post-35
Hearing Brief at 77. Thus, NY Paving contends that it was under no obligation to
bargain with Local 175 before assigning the work out to employees not covered by the
Local 175 contract.

I find that the Code 92 work, like the Code 49 work, involves the placement of 40
temporary asphalt covered pursuant to NY Paving’s collective bargaining relationship
with Local 175. As with the Code 49 work, the evidence does not establish that the
Code 92 work was properly assigned to Local 1010-represented concrete crews
because the placement of temporary asphalt pursuant to a Code 92 is an inseparable
component of an single integrated work process also involving concrete. Nor is there 45
any support for NY Paving’s contention that assigning such temporary asphalt work out
JD(NY)-01-20

46

of the Local 175 bargaining unit is permissible because the finished sidewalk consists
entirely of concrete. Thus, NY Paving was obligated to bargain with Local 175 prior to
assigning the Code 92 work to employees outside the Local 175 bargaining unit. As
there is no dispute that Local 175 was not provided with notice and an opportunity to
bargain, NY Paving’s unilateral assignment of the Code 92 work to non-bargaining unit 5
employees violated Sections 8(a)(1) and (5) of the Act.

Conclusions of Law

1. Respondent New York Paving, Inc. is an employer engaged in commerce at 10
its Long Island, New York facility within the meaning of Section 2(2), (6), and (7) of the
Act.

2. Construction Council Local 175, Utility Workers Union of America, AFL-CIO
(“Local 175”) is a labor organization within the meaning of Section 2(5) of the Act. 15

3. Local 175 has been the certified collective bargaining representative of
Respondent’s 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 20
surface installers, slurry/seal coaters, shovelers, line striping installers, and small
equipment operators, who work primarily in the five boroughs of New York City.

4. Respondent violated Sections 8(a)(5) and (1) of the Act by transferring work
subject to its collective bargaining agreement with Local 175 to non-bargaining unit 25
employees without providing Local 175 with notice and the opportunity to bargain.

5. Respondent has not violated the Act in any other manner alleged in the
Consolidated Complaint.
30
6. The unfair labor practices described above affect commerce within the
meaning of Section 2(6) and (7) of the Act.

The Remedy
35
Having found that Respondent has engaged in certain unfair labor practices, I
shall order it to cease and desist and take certain affirmative action designed to
effectuate the Act’s policies.

Having found that Respondent violated Section 8(a)(5) and (1) by unilaterally 40
transferring work subject to its collective bargaining agreement with Local 175 to non-
bargaining unit employees, I shall order Respondent to rescind the unlawful unilateral
transfer and restore the status quo ante by transferring the work back to the Local 175
bargaining unit, and to provide Local 175 with notice and an opportunity to bargain. I
shall also order Respondent to make the bargaining unit employees whole for any loss 45
of earnings and other benefits suffered as a result of the unlawful unilateral transfer.
JD(NY)-01-20

47

Backpay shall be computed in the manner prescribed in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest compounded daily as
prescribed in New Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical
Center, 356 NLRB 6 (2010). In addition, I shall order Respondent to compensate the
bargaining unit employees for any adverse tax consequences of receiving a lump-sum 5
backpay award and to file, within 21 days of the date the amount of backpay is fixed, a
report with the Regional Director for Region 29 allocating the backpay award(s) to the
appropriate calendar years for each employee. AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016).
10
On these findings of fact and conclusions of law, and on the entire record, I issue
the following recommended:

Order38
15
New York Paving, Inc., its officers, agents, successors and assigns shall

1. Cease and desist from

(a) Unilaterally transferring work subject to its collective bargaining agreement 20
with Local 175, including emergency keyhole asphalt paving work, “Code 49” work, and
“Code 92” work, to non-bargaining unit employees, without first notifying Construction
Council Local 175, Utility Workers Union of America, AFL-CIO, and providing Local 175
with the opportunity to bargain.
25
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.

Take the following affirmative action necessary to effectuate the policies of the
Act. 30

(a) Rescind the unlawful unilateral transfer of work subject to the collective
bargaining agreement with Local 175, including emergency keyhole asphalt paving
work, “Code 49” work, and “Code 92” work, to non-bargaining unit employees.
35
(b) Before transferring the work of bargaining unit employees to employees
outside the bargaining unit, notify and, on request, bargain with Local 175 as the
exclusive collective-bargaining representative of employees in the following bargaining
unit:
40
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

38 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD(NY)-01-20

48

installers, play equipment/safety surface installers, slurry/seal coaters,
shovelers, line striping installers, and small equipment operators, who
work primarily in the five boroughs of New York City.

(c) Make whole the bargaining unit employees for any lost wages and benefits 5
resulting from the transfer of work subject to the collective bargaining agreement with
Local 175, including emergency keyhole asphalt paving work, “Code 49” work, and
“Code 92” work, to non-bargaining unit employees, with interest, in the manner set forth
in the remedy section of this decision.
10
(d) Compensate employees for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and file with the Regional Director for Region 29,
within 21 days of the date the amount of backpay is fixed, either by agreement or by a
Board order, a report allocating the backpay award to the appropriate calendar years for
each employee. 15

(e) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including an 20
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this order.

(f) Within 14 days after service by the Region, post at its facility in Long Island
City, New York, copies of the attached notice marked “Appendix.” Copies of the notice, 25
on forms provided by the Regional Director for Region 29, 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 are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, defaced, or covered by any other 30
material. If Respondent has gone out of business or closed the Long Island City facility,
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Respondent at any time since
September 1, 2018.
35
(g) Within 21 days after service by the Region, file with the Regional Director for
Region 29 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that Respondent has taken to comply.

Dated, Washington, D.C. January 27, 2020 40

Lauren Esposito
Administrative Law Judge45
JD(NY)-01-20

APPENDIX A

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.

WE WILL NOT transfer work subject to our collective bargaining agreement with
Construction Council Local 175, Utility Workers Union of America, AFL-CIO, including
emergency keyhole asphalt paving work, “Code 49” work, and “Code 92” work, to non-
bargaining unit employees, without first notifying Local 175 and providing Local 175 with
the opportunity to bargain.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL rescind the unlawful unilateral transfer of work subject to the collective
bargaining agreement with Local 175, including emergency keyhole asphalt paving
work, “Code 49” work, and “Code 92” work, to non-bargaining unit employees, until such
time as Local 175 has been afforded an opportunity to bargain to an agreement or bona
fide impasse over the transfer of such bargaining unit work.

WE WILL before implementing any changes in wages, hours, or other terms and
conditions of employment for bargaining unit employees, notify and, on request, bargain
with Local 175 as the exclusive collective-bargaining representative of employees in the
following bargaining 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, who
work primarily in the five boroughs of New York City.

JD(NY)-01-20

WE WILL make whole bargaining unit employees for any lost wages and benefits
resulting from the unlawful unilateral transfer of work subject to the collective bargaining
agreement with Local 175, less any net interim earnings, plus interest.

WE WILL compensate bargaining unit employees for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and file with the Regional Director for
Region 29, within 21 days of the of the date that the amount of backpay is fixed by
agreement or Board order, a report allocating the backpay award to the appropriate
calendar year.

NEW YORK PAVING, INC.
(Employer)
Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Two Metro Tech Center, 100 Myrtle Avenue, Suite 5100, Brooklyn, NY 11201-3838
(718)330-7713, Hours: 8:30 a.m. to 5:00 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/29-CA-233990 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (718)765-6190
APPENDIX B
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

NEW YORK PAVING, INC.

and

Case Nos. 29-CA-234894
29-CA-233990

CONSTRUCTION COUNCIL LOCAL
175, UTILITY WORKERS UNION OF
AMERICA, AFL-CIO

and

ELIJAH JORDAN, an Individual

ORDER GRANTING MOTION TO REOPEN
AND SUPPLEMENTING THE RECORD

The hearing in the above matter took place in Brooklyn, New York, on July 15
through 18, 2019 and August 14, 2019, and briefs were submitted on October 18, 2019.
The Consolidated Complaint alleges in relevant part that New York Paving, Inc. (NY
Paving) violated Sections 8(a)(1) and (5) by unilaterally transferring work traditionally
encompassed by its collective bargaining agreement with Construction Council Local
175, Utility Workers Union of America, AFL-CIO (Local 175) to non-bargaining unit
employees.

On November 13, 2019, NY Paving filed a Motion to Reopen the Record for the
admission of newly-discovered documentary evidence. Counsel for the General
Counsel (General Counsel) and Local 175 filed Oppositions on November 20, 2019,
and on November 26, 2019, NY Paving filed a Reply. In addition, on November 21,
2019, I notified the parties by e-mail that I intended to supplement the record by
introducing the collective bargaining agreement between NY Paving and Local 175
dated July 1, 2014 through June 30, 2017, and allowed the parties to submit written
statements regarding the issue. General Counsel and Local 175 have no objection to
the admission of the collective bargaining agreement, while NY Paving objects. For the
following reasons, NY Paving's Motion to Reopen the Record and admit the documents
in question is granted, and the collective bargaining agreement is admitted as well.

1. The Motion to Reopen the Record

NY Paving contends that pursuant to Section 102.48(c)(1) of the Board's Rules
and Regulations, a party may file a motion to reopen the record which states "briefly the
additional evidence sought to be adduced, why it was not presented previously, and
that, if adduced and credited, it would require a different result." See also Circus Circus

Las Vegas, 366 NLRB No. 110, at p. 1, fn. 1 (2018). The Board defines newly
discovered evidence as evidence "which was in existence at the time of the hearing,
and of which the movant was excusably ignorant." Circus Circus Las Vegas, 366 NLRB
No. 110, at p. 1, fn. 1, quoting Owen Lee Floor Service, Inc., 250 NLRB 651, fn. 2
(1980), enfd. 659 F.2d 1082 (6th Cir. 1981); see also Fitel/Lucent Technologies, Inc.,
326 NLRB 46, fn. 1 (1998). A motion to admit newly discovered evidence must also
present "facts from which it can be determined that the movant acted with reasonable
diligence to uncover and introduce the evidence." Id.

However, this standard, included in the portion of the Rules and Regulations
describing "Procedure Before the Board," applies by its terms to "a party to a
proceeding before the Board," and involves motions to reopen the record made after a
Decision has been issued by an Administrative Law Judge. See also New Otani Hotel
& Garden, 325 NLRB 928, 945-946 (1998). Section 102.35(a)(8), listed under
"Hearings," includes as one of the "Duties and powers of Administrative Law Judges" in
effect "between the time the Judge is designated and the transfer of the case to the
Board" the authority "to order hearings reopened." Here, as in New Otani Hotel &
Gardens, Post-Hearing Briefs have been submitted, but no ALJ Decision has yet
issued. 325 NLRB at 928, 945. Thus, while the considerations articulated pursuant to
Section 102.48(c)(1) will inform my decision here, the provision itself is not strictly
applicable.

NY Paving seeks to reopen the record for the admission of three e-mails sent by
Local 175 shop steward Terry Holder on April 21, 2018, May 4, 2018, and May 7, 2018,
to an e-mail address maintained by Local 175. NY Paving states that the e-mails were
discovered only after the hearing in the instant matter closed, when they were produced
by Local 175 on October 24, 2019 in connection with an unrelated arbitration
proceeding. In the e-mails, Holder provides information regarding the possible
assignment of work covered by Local 175's collective bargaining agreement with NY
Paving to employees represented by another union. NY Paving argues that these e-
mails tend to show that allegations regarding the unilateral transfer of one particular
category of bargaining unit work are time-barred pursuant to Section 10(b) of the Act.

I find that it is appropriate to reopen the record and admit the proffered e-mails.
NY Paving did not create or maintain the proffered e-mails in its possession, and only
became aware of their existence when Local 175 produced them in the arbitration
proceeding after the hearing in this case closed. Compare Circus Circus Las Vegas,
366 NLRB No. 110, at p. 1, fn. 1 (records "routinely created and maintained" in
Respondent's own computerized system not newly discovered or unavailable at the
time of the hearing); Fitel/Lucent Technologies, Inc., 326 NLRB at 46, fn. 1 (declining to
reopen the record to admit disciplinary report from Respondent's own records). General
Counsel contends that NY Paving could have served a Subpoena Duces Tecum on
Local 175 requiring the production of documents such as the proffered e-mails. While
NY Paving did serve a Subpoena Duces Tecum on Local 175, it is unclear from the
record whether that Subpoena encompassed e-mails relevant to the alleged unilateral
transfer of bargaining unit work. See Tr.295-298, 405-411 In addition, Local 175's

compliance with NY Paving's Subpoena was sufficiently inadequate that General
Counsel was required to more thoroughly review the Subpoena with Local 175 in order
to determine whether a comprehensive search for the materials sought had actually
been performed. Tr. 295-298. Indeed, Local 175's counsel stated that the Local 175-
maintained address to which Holder sent the now-proffered e-mails was "monitored by
one person, and not always reviewed." Tr. 297 As a result, I find that NY Paving was
"excusably ignorant" of the proffered e-mails' existence, and that it acted with
reasonable diligence to discover them. NY Paving further acted with reasonable
diligence to introduce the proffered e-mails by moving to have them introduced into
evidence soon after their receipt in the arbitration proceeding.

I also find that there is an appropriate evidentiary basis for the admission of the
proffered e-mails. At the hearing, Holder identified the e-mail address contained on the
proffered e-mails as his own personal e-mail address, and testified that he maintained
such records in the ordinary course of his duties as shop steward. Tr. 301-302; see
also RS. Ex. 5(c). There is no dispute that the address to which the proffered e-mails
were sent was maintained by the Local 175, and Local 175 does not dispute their
authenticity in its Opposition. See Tr. 297 The e-mails, dated April 21, 2018, May 4,
2018, and May 7, 2018, are identical in form, and similar in the nature of the information
they contain, to other e-mails created by Holder and sent from his personal e-mail
address to the e-mail account maintained by Local 175. See, e.g., RS. Ex. 5(c). In
terms of relevance, the proffered e-mails all contain notations which NY Paving
contends represent reports of non-bargaining unit employees performing work
encompassed by Local 175's contract with NY Paving. NY Paving argues that the
proffered e-mails tend to establish Local 175's knowledge of a violation outside the
Section 10(b) period, and that the allegation regarding the unlawful unilateral transfer of
one particularly type of bargaining unit work is therefore time-barred.

For all of the foregoing reasons, NY Paving's Motion to Reopen the Record is
granted, and the dated April 21, 2018, May 4, 2018, and May 7, 2018 e-mails are
hereby admitted into the record as Respondent's Exhibit 24.

2. Admission of the collective bargaining agreement dated July 1, 2014
through June 30, 2017

I now turn to the admission of the collective bargaining agreement between NY
Paving and Local 175 dated July 1, 2014 through June 30, 2017, to which NY Paving
objects. It is my determination that the record in this case simply is not complete
without this collective bargaining agreement, the last contract to which NY Paving and
Local 175 both accede that they were bound. The collective bargaining agreement
constitutes evidence regarding the contours of the alleged bargaining obligation by
describing the scope of the bargaining unit out of which the work was allegedly
unlawfully transferred. This collective bargaining agreement formed part of the basis for
the Board's Decision in Highway Road and Street Construction Laborers, Local 1010
(New York Paving), 366 NLRB No. 174 (2018), the interpretation of which is disputed by
the parties in connection with the unlawful unilateral transfer allegation here. It was also
introduced into evidence in NY Paving, Inc., JD-33-19, decided by Judge Andrew S.
Gollin, and NY Paving states in its opposition that it stipulated in that proceeding to
having adopted the agreement's terms by conduct. I note in addition that General
Counsel makes specific representations in her Post-Hearing Brief regarding the
contents of the collective bargaining agreement that are impossible to evaluate without
recourse to the contract itself.1

NY Paving argues in its opposition that the 2014-2017 contract could have been
introduced by General Counsel or Local 175 during the testimony of its Business
Manager Charlie Priolo. NY Paving has argued in its Post-Hearing Brief that I should
draw an adverse inference as a result. However, if NY Paving believes the collective
bargaining agreement would have in fact supported its own contentions, it is hard to see
why admitting it into the record now would be objectionable. Furthermore, the 2014-
2017 contract was adopted by and equally available to NY Paving. NY Paving could
have introduced the contract into evidence, cross-examined Priolo or any other witness
regarding the contract's terms, or presented any other evidence regarding subsequent
events which may in its judgment have affected an obligation to bargain. All parties
were provided at the hearing with ample opportunity to introduce evidence regarding the
nature and scope of the bargaining obligation. Finally, NY Paving refers to its attempt to
supplement the record with newspaper articles as an attachment to its revised Exhibit
21, which I rejected, arguing that because these materials were not admitted the
collective bargaining agreement should be excluded as well. However, the newspaper
articles NY Paving attempted to introduce were rejected for entirely different reasons, as
discussed in my September 9, 2019 Order.

As a result, for the reasons discussed above the collective bargaining agreement
between NY Paving and Local 175 dated July 1, 2014 through June 30, 2017 is hereby
admitted as ALJ Exhibit 1. The parties shall mutually agree upon an authentic copy of
the collective bargaining agreement to be submitted to me and to the court reporting
service on or before December 17, 2019. If the parties wish to make their submissions
regarding the admission of the collective bargaining agreement a part of the record in
this matter, they may do so on or before December 17, 2019.

Dated:New York, New York
December 10, 2019

1 General Counsel states that she is "relying on the prior collective bargaining agreements whose terms
would continue to apply if there were no subsequent contract," and that the "collective bargaining
agreement clearly includ[ed] asphalt paving in its description of covered work and otherwise did not have
a management rights clause." G.C. Post-Hearing Brief at p. 13, fn. 6, and at p. 42, fn. 20.

ren Esposito
Administrative La