Tri-Messine Construction Co., Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 24, 2007

29-RC-011184 (N.L.R.B. Jan. 24, 2007)

JD(NY)–04--07
East Meadow, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
TRI-MESSINE CONSTRUCTION CO., INC
Employer
and Case No. 29-RC-11184
THE SHEET ASPHALT WORKERS LOCAL UNION
1018 OF THE DISTRICT COUNCIL OF PAVERS AND
ROAD BUILDERS OF THE LABORERS’ INTERNATIONAL
UNION OF NORTH AMERICA
Petitioner
and
UNITED PLANT AND PRODUCTION WORKERS,
LOCAL 175, INTERNATIONAL UNION OF
JOURNEYMEN AND ALLIED TRADES
Intervener
Jonathan Farrell, Esq., Counsel for the Employer.
Barbara Mehlsack, Esq., Gorlick, Kravitz & Listhaus, P.C., Counsel for the Petitioner.
Eric Chaikin, Esq., Chaikin & Chaikin, Counsel for the Intervener.
DECISION ON CHALLENGE AND OBJECTION
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on
December 20, 21 and 22, 2006 in New York, New York. On June 30, 2005, the Sheet Asphalt
Workers Local Union 1018 of the District Council of Pavers and Road Builders of the Laborers’
International Union of North America, herein called Petitioner and/or Local 1018, filed a petition
herein to represent certain employees of Tri-Messine Construction Co., Inc., herein called the
Employer. United Plant and Production Workers, Local 175, International Union of Journeymen
and Allied Trades, herein called Intervener and/or Local 175, intervened on the basis of a
showing of interest.
Pursuant to a Decision and Direction of Election issued by the Acting Regional Director
on August 3, 2005 an election by secret ballot was conducted on August 31, 2006 among
employees in the following unit:
All full-time and regular part-time workers who primarily perform asphalt paving,
including foreman, 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, during the payroll period ending July 15, 2005, but excluding all employees
who primarily perform the laying of concrete, concrete curb setting work, or block work,
and/or who are currently represented by 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.
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As stated in the Decision and Direction of Election and the Regional Director’s Report,
as the Employer is in the construction industry, in addition to the unit employees who were
employed by the Employer during the payroll period ending July 15, 2005, voters who worked
outside the eligibility period were eligible to vote if they satisfied the formula set forth in the
Steiny-Daniel cases1.
The Tally of Ballots served upon all the parties showed the following results:
Approximate number of eligible voters 39
Number of void ballots 0
Number of ballots cast for the Petitioner (Local 1018) 13
Number of ballots cast for the Intervener (Local 175) 10
Number of ballots cast against participating labor organizations 0
Number of valid votes counted 23
Number of challenged ballots 7
Number of valid votes counted plus challenged ballots 30
Challenges are sufficient in number to affect the results of the election.
On September 7, 2006, the Petitioner and the Intervener each filed timely objections to
conduct affecting the results of the election. On November 29, 2006, the Regional Director for
Region 29 issued a Report on Challenges and Objections and Notice of Hearing. The Report
found that because the Employer had not provided sufficient information to ascertain the
eligibility of the Petitioner’s challenges of Sal Gambino, Sr., Robert LeCrechia, and Guiseppe
DiCaro, these challenges would be best resolved by a hearing, and the Report directs that a
hearing be held to resolve these challenges. The Report also directs that the Intervener’s
challenges to Richard Payne, Manuel DosSantos, and Michael Barretto, Jr. would best be
resolved by a hearing, and directs that a hearing be held to resolve these challenges as well.
Finally, the Intervener moved to withdraw its challenge to the ballot of Peter Pecoraro, and the
Regional Director’s Report, approved the request to withdraw this challenge, and ordered that
this ballot be opened and counted at a later time.
The Region Director’s Report also vetted the objections filed by both the Petitioner and
the Intervener, recommending that all of the Petitioner’s objections be overruled, and that all but
one of the Intervener’s objections be overruled. The remaining objection, the Intervener’s
second objection, is that on August 31, 2006, in the yard at Nico Paving, the Petitioner’s
representatives told the Employer’s employees that if they voted for the Intervener they would
lose their jobs and their benefits.
The Challenges
At the commencement of the hearing, the parties stipulated that Sal Gambino, Sr.,
challenged by the Petitioner, was an eligible voter. His ballots will be opened and counted,
together with that of Peter Pecoraro, whose challenge was previously withdrawn by the

1 Steiny & Co., 308 NLRB 1323 (1992); Daniel Construction, 133 NLRB 264 (1961),
modified at 167 NLRB 1078 (1967). Under the formula set forth therein, also eligible to vote are
(a) employees in the unit who were employed for at least 30 days in the 12 month period
preceding July 15, 2005, and (b) employees in the unit who had some employment during the
12 month period and were employed for at least 45 days within the last 24 months immediately
preceding July 15, 2005.
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Intervener. Further, the parties stipulated that challenged voters Robert LeCrechia, Guiseppe
DiCaro, Manuel DosSantos and Michael Barretto, Jr. were not eligible to vote. Therefore the
challenges to their ballots will be sustained and their ballots will not be opened and counted.
The only challenged ballot that was litigated herein was that of Richard Payne. The Petitioner
alleges that Payne is eligible to vote because he is a full-time employee of the Employer. The
Intervener argues that he is not eligible to vote because he is a member of Local 1010, and the
unit description specifically excludes members of Local 1010, and because his primary job
function is driving the asphalt truck, not asphalt paving. The Petitioner responds that Payne
joined Local 1010 after the stated eligibility date, and only joined in order to preserve his
pension and other benefits.
Payne has been employed by the Employer since October 1989. From that time until
2005 he was a member of the Petitioner with whom the Employer had a contract. For, at least,
the period in question herein, he has been a working foreman. Alfonso Messina, the Employer’s
president, testified that Payne is the foreman of a crew of four or five asphalt paving employees:
“He has to drive the truck from location to location and then gets out…and helps the men.”
Employees Calogero Falzone and Carlos Sorrentino testified that Payne’s typical day was as
follows: he would meet his crew of four or five men at the Employer’s facility at about 6:00 a.m.
Payne would then drive the Employer’s asphalt truck to the asphalt plant to be loaded with
asphalt, and would meet the crew at the first work site of the day. In addition to measuring the
jobs to be performed, he would raise the truck in order for the asphalt to come off of the truck for
the employees to pave the location involved. If it were a small job, he might remain in the truck
to determine the next location. If it were a large job, he would move the truck while raising it so
that the asphalt covered a larger area, and after the asphalt was dumped, he would assist the
other employees in laying the asphalt although, as Sorrentino testified: “Usually, we could
handle it.” Payne did not assign the employees to particular jobs; they usually decided among
themselves who would do the different tasks. When they completed a work site, Payne drove
the asphalt truck to the next work site and the other employees would follow him in the
Employer’s pickup truck.
Payne’s testimony of his job description is similar to that testified to by Falzone and
Sorrentino, except that that he testified he is not always a foreman: “Some weeks I’ll take the
crew out three or four days a week, some weeks two days a week, some weeks five days a
week. There were times…I didn’t take crews out on a steady basis.” He testified that nobody
employed by the Employer is a foreman every day. Everybody on the job does whatever has to
be done to complete the job properly. Even when he is the foreman on the job, he, at times,
guides traffic, pushes a wheel barrow to carry the asphalt, fixed equipment, or knocks on doors
to ask people to move their cars that are parked in their way. He estimated that when he is
acting as a foreman, he spends about half of the time in the truck and the other half performing
the same work as the other laborers on the job. When he is not acting as a foreman, he acts as
a laborer on somebody else’s crew. He estimated that in the two year period preceding July 15,
2005, he was a foreman a little more than half the time.
In addition to being a member of the Petitioner, Payne is also a member of Teamsters,
Local 282. He testified that he joined Local 282: “We’re a small company so the Teamsters
wanted us to put some men on so they could have representation on our job.” The Employer’s
payroll records establish that for some payroll periods the Employer credited Payne’s work time
to the Pavers Welfare, Pension, Training and Annuity Funds (which covers both the Petitioner
and Local 1010), while for other periods the Employer credited it to the Teamsters, Local 282
Funds. Payne testified that the determination as to which funds receive these payments has no
relation to the work that he performed that week or month, driving or paving, but rather by his
needs: “I would call in the hours that I wanted the office to pay my benefits to be based on my
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need to have enough hours in a certain union to have health care benefits.” Messina testified
that the Employer allocates Payne’s hours as Payne calls them in to the bookkeeper. On July 1,
2005 the Employer’s contract with the Petitioner expired, and the Employer signed a contract
with the Intervener, rather than with the Petitioner. Payne testified: “I had fifteen years in the
union [1018], I wasn’t going to quit Local 1018 and join Local 175 and quit my pension plan and
my annuity plan, all the things I worked for for the last fifteen years.” Payne joined Local 1010,
which operates a common pension and annuity plan with the Petitioner, on September 30,
2005. By letter dated February 14, 2006, Payne wrote to Messina asking that the Employer
make all future fund contributions to the Petitioner rather than to the Intervener. Messina told
Payne that he couldn’t make the fund contributions to the Petitioner, because he did not have a
contract with it, although he did have a contract with Local 1010 and had been contributing to
the Pavers District Council Benefit Funds for his employees who were members of Local 1010.
Beginning in about March 2006, the Employer has made contributions on Payne’s behalf to the
Pavers District Council Benefit Funds. His job functions with the Employer did not change after
he joined Local 1010.
The Intervener alleges that the challenge to Payne’s ballot should be sustained for two
reasons: he is primarily a driver, rather than an asphalt paving employee, and he is a member of
Local 1010, whose members were specifically excluded from the unit. In Golden Fann Inn, 281
NLRB 226, fn. 24 (1986), the Board stated: “A party seeking to exclude an individual from voting
has the burden of establishing that the individual is, in fact, ineligible to vote.” I find that the
Intervener has not sustained this burden. Initially, I note that the unit description includes
foremen, Payne’s job classification, and further provides that the unit includes those who
primarily perform asphalt paving. [Emphasis added] Based upon the testimony of Payne,
Messina, Falzone and Sorrentino, I find that Payne is foreman of a paving crew about three
days out of every five, and that when he is the foreman, he spends from 50% to 70% of his time
in the truck. However, whether he is in the truck having it loaded with asphalt, or moving and
raising the truck to discharge the asphalt for the crew, or out of the truck working alongside the
other employees, he is an integral part of the asphalt paving operation performed by the
Employer’s crews. If Payne fails to have the truck loaded with asphalt in the morning, or fails to
properly discharge the asphalt, the asphalt paving could not be completed. Further, I find that
even if I were to consider Payne a dual-function employee, he regularly performs the non-
driving unit work for sufficient periods of time, demonstrating his substantial interest in the unit’s
wages, hours and working conditions. Medlar Electric, Inc., 337 NLRB 796, 797 (2002).
The Intervener also objects to Payne’s eligibility based upon his membership in Local
1010, pointing to the specific exclusion of Local 1010 members in the unit description. However,
as stated by counsel for the Petitioner, the unit description as set forth in the Decision and
Direction of Election which issued on August 3, 2005, excludes employees who are currently
members of Local 1010. [Emphasis added] As Payne did not join Local 1010 until September
30, 2005, he would not be covered by this exclusion. Further, he joined Local 1010 not to
maintain his employment with the Employer, but to preserve his pension and his annuity. I
therefore recommend that the challenge to Payne’s ballot be overruled, and that his ballot be
opened and counted.
The Objection
The Regional Director, in his Report, recommended that the objections filed by both the
Petitioner and the Intervener be overruled, with one exception, the Intervener’s second
objection, that on August 31, 2006, in the yard at Nico Paving, the Petitioner’s representatives
told the Employer’s employees that if they voted for the Intervener they would lose their jobs
and their benefits. In discussing this, as well as other of the Intervener’s objections, the Report
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differentiates between threats of losing their employment with the Employer, as compared to the
threat of losing work because the Employer would not be able to obtain work with certain
companies such as Con Edison, Keyspan or Verizon. This relates to the fact that these
companies require contractors to employ employees who are members of Building Trades
Council unions. The Petitioner is a member of the Building Trades Council; the Intervener is not.
Therefore, the Regional Director, in his Report, recommended overruling another of the
Intervener’s objections that one of the Petitioner’s flyers stated that if they voted for the
Intervener they would not be able to work for Con Edison, Keyspan, Verizon or the New York
City Construction Authority, because the statement was accurate, stating:
Local 1018 has not threatened to interfere with employees’ ability to work directly for
Verizon, Con Edison, Keyspan, the School Construction Authority or the GCA. Rather,
Local 1018 has advised employees that they will not be able to obtain work with such
companies while employed by an employer who is a Local 175 signatory, and thus not
qualified to obtain Building Trades Council Work. Local 1018 has not threatened to
interfere with the employees’ employment if they were to obtain such work through a
different union who meets the eligibility to obtain such work.
The instant objection has a similar twist to it. The Report states that it is unclear from the
Intervener’s offer of proof whether the alleged threats of job loss relates to the employees’
present jobs with the Employer, or whether they relate to potential jobs with Con Edison,
Keyspan or Verizon. If the latter, the statements are not objectionable for the reasons stated
above. However, if the former, i.e., the threats directly related to the employees’ employment
with the Employer, these statements could have affected the results of the election and would
warrant setting aside the election.
Michael Bartilucci was employed by Nico Asphalt in August 2006 and was not on the
Excelsior list for the election conducted among the Employer’s employees, nor did he vote a
challenged ballot. He testified that on the morning of August 31, 2006, or at the end of August,
while he was in the Nico Asphalt Paving yard, he was approached by a man wearing a
Laborers’ Union jacket, who identified himself as being from Locals 1010/1018 (although
Bartilucci could not further identify him). He asked him which way he thought that he would vote
in the election and Bartilucci said that he was going with Local 175. The representative told him:
“I don’t know if that’s such a good idea, you’re going to lose your benefits, lose your job.” He
said that if Local 175 won the election, “we’re going to come down there everyday, we’re going
to put up the rat, they’re not going to be able to give you medical benefits if you go with 175.”
Lulzim Borova, who was on the Excelsior list and voted in the election herein, testified that at
the end of August 2006 he was working on and off for Nico Asphalt at the Nico yard. While
there, he was approached by Eugene Sparano, an organizer for Local 1018. He remembered
very little of what Sparano said because, “…I was listening to things partially because I was in
the truck on and off. I wasn’t there full time and I didn’t hear 100 percent. I would go into the
truck, come out of the truck and listen to a few words. That’s what happened.” He testified: “He
said basically voting for 175 is going to be not in our favor…” I then asked him if there were any
conversations about jobs other than what he had previously testified to. He answered: “Not
really. Whatever I told you came out, maybe I forgot some things.” Counsel for Local 175 then
showed Borova an affidavit that he gave to Local 1752, and asked him whether there was any

2 The only relevant portion of the affidavit states: “One of the organizers, (I did not get his
name) showed the workers the documents that had been mailed. I heard him say that we could
not work for Con Edison, Keyspan or Verizon if we stayed with Local 175. The only one who
could get these jobs would be Local 1018 members.”
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conversation about jobs and benefits, and Borova testified: “Not really.” When asked if he was
told that he would lose his job and benefits, he testified: “I don’t remember.”
As the objecting party herein, the Intervener has the burden of establishing that the
alleged conduct interfered with the election. Jensen Pre-Cast, 290 NLRB 547 (1988). Further,
the burden of proof on a party seeking to set aside an election is a heavy one, Kux Mfg. Co. v.
NLRB, 890 F.2d 117, 120 (6th Cir. 1989) and the objecting party must establish that the conduct
in question affected employees in the voting unit. Avante at Boca Raton, Inc., 323 NLRB 555,
560 (1997); Antioch Rock & Ready Mix, 327 NLRB 1091, 1092 (1999); Hollingsworth
Management Service, 342 NLRB 556 (2004). The evidence adduced by the Intervener
establishes that while Bartilucci may have been threatened, as he was not an eligible voter, this
alleged conduct cannot be used as the basis for setting aside the election. Borova was an
eligible voter, but he was unable to testify to any statement having been made by Sparano, or
any other representative of Local 1018 that could be characterized as a threat or could possibly
be the basis for overturning the election. I therefore recommend that the Intervener’s objection
that the Petitioner’s representatives told the Employer’s employees that if they voted for Local
175 they would lose their jobs and benefits, be overruled
Conclusions
Based upon the above, I recommend that the ballot of Richard Payne be open and
counted together with the ballots of Peter Pecoraro and Sal Gambino, Sr. Further, I recommend
that the remaining objection of the Intervener be overruled. The Regional Office, after opening
and counting the ballots of Payne, Pecoraro and Gambino shall issue an appropriate
certification.
Dated, Washington, D.C., January 24, 2007.
_________________________________
Joel P. Biblowitz
Administrative Law Judge