NICO Asphalt Paving, Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 15, 2007

29-RC-011227 (N.L.R.B. Oct. 15, 2007)

JD(NY)–44–07
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
NICO ASPHALT PAVING, INC.
Employer
and Case No. 29-RC-11227
THE SHEET ASPHALT WORKERS LOCAL
UNION 1018 OF THE DISTRICT COUNCIL
OF PAVERS AND ROAD BUILDERS OF THE
LABORERS’ INTERNATIONAL UNION
OF NORTH AMERICA (“LIUNA”)
Petitioner
UNITED PLANT AND PRODUCTION
WORKERS, LOCAL 175, INTERNATIONAL
UNION OF JOURNEYMEN AND
ALLIED TRADES (“IUJAT”)
Intervenor
Barbara Mehlsack, Esq., Counsel for the
Petitioner
Eric B. Chaikin Esq., Counsel for the
Intervenor
Carmelo Grimaldi Esq., Counsel for the
Employer
DECISION ON OBJECTIONS AND CHALLENGES
RAYMOND P. GREEN, Administrative Law Judge. I heard this case on October 1,
2007. The petition in 29-RC-11227 was filed by Local 1018 on August 8, 2005 seeking an
election of certain employees of Nico Asphalt Paving, Inc. Local 175 intervened based on a
showing of interest. Pursuant to a Decision and Direction of Election issued on October 19,
2006 an election was conducted on January 18, 2007 in the following unit:
All full-time and regular part-time workers who primarily perform asphalt paving,
including foremen, rakers, screenmen, micro-pavers, AC paintmen, liquid tar
workers, landscape planting and maintenance/fence installers, play
equipment/safety surface installers, slurry/seal coaters, shovelers, line striping
installers, and small equipment operators employed by the Employer who work
primarily in the five boroughs of New York City, but excluding gall employees
who primarily perform the laying of concrete, concrete curb setting work, or block
work, and/or who are currently represented by the Highway, Road and Street
Construction Laborers Local Union 1010 of the District Council of Pavers and
Road Builders, Laborers International Union of North America, or by Highway,
Road and Street Construction Laborers, a Division of Amalgamated Local Union
450A and excluding clerical employees, guards and supervisors as defined in
Section 2(11) of the Act.
JD(NY)–44–07
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The Tally of Ballots showed that out of approximately 20 eligible voters, four cast votes
for Local 1018, nine cast votes for Local 175, zero cast votes for no union and six votes were
challenged. The challenged ballots were sufficient in number to affect the outcome of the
election.
Local 1018 filed Objections to the election on January 24, 2007. Local 175 filed
Objections on January 25, 2007.
At the hearing, both unions withdrew their Objections.
Also at the hearing, all parties stipulated that Lulzim Borova, Alfonso Leto, Al Savarese,
Diro Xhakli and Steve Morello were not eligible to vote. Accordingly, their challenged ballots
shall remain unopened and uncounted.
Finally, all parties stipulated that Louis Gonzales was an eligible voter. However, in light
of the resolution of the other challenged ballots, his vote would not affect the outcome of the
election. Accordingly, his challenged ballot should remain unopened and uncounted.
Accordingly, based on the above, I hereby make the following
Conclusions of Law
Lulzim Borova, Alfonso Leto, Al Savarese, Diro Xhakli and Steve Morello were not
eligible voters and their ballots should remain unopened and uncounted.
Louis Gonzales was an eligible voter. But as his vote would not affect the results of the
election, his ballot should remain unopened and uncounted.
All objections to the election filed by the Petitioner and the Intervenor have been
withdrawn.
ORDER
Based on the above, this case should be remanded to the Regional Director of Region
29 who should issue a revised tally of ballots and a Certification of Representative to United
Plant and Production Workers, Local 175, International Union of Journeymen and Allied Trades
(“IUJAT”). 1
Dated at Washington D.C., October 15, 2007.
__________________
Raymond P. Green
Administrative Law Judge

1 Under the provisions of Section 102.69 of the Board’s Rules and Regulations, Exceptions to this
Report may be filed with the Board in Washington, DC within 14 days from the date of the issuance of this
Report and recommendations. Exceptions must be received by the Board in Washington by