Highway Road and Street Construction ( New York Paving, Inc.).

National Labor Relations Board - Board Decisions

Aug 24, 2018

366 NLRB No. 174 (N.L.R.B. 2018)

366 NLRB No. 174
NOTICE: This opinion is subject to formal revision before publication in the
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Highway Road and Street Construction Laborers
Local 1010, Laborers International Union of
North America (LIUNA), AFL–CIO and New
York Paving, Inc., and Local Lodge CC175, In-
ternational Association of Machinists & Aero-
space Workers, AFL–CIO. Case 29–CD–203385
August 24, 2018
DECISION AND DETERMINATION OF DISPUTE
BY MEMBERS PEARCE, KAPLAN, AND EMANUEL
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. New
York Paving, Inc. (the Employer) filed a charge on July
26, 2017,1 alleging that Highway Road and Street Con-
struction Laborers Local 1010, Laborers International
Union of North America (LIUNA), AFL–CIO (Local
1010), violated Section 8(b)(4)(D) of the Act by threat-
ening to engage in proscribed activity with an object of
forcing the Employer to assign certain work to employ-
ees represented by Local 1010 rather than to employees
represented by Local Lodge CC175, International Asso-
ciation of Machinists & Aerospace Workers, AFL–CIO
(Local 175). The hearing was held on September 5 and 6
and October 2 and 10, before Hearing Officer Brady
Francisco-FitzMaurice. All parties filed posthearing
briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire rec-
ord, the Board makes the following findings.
I. JURISDICTION
All parties have stipulated that the Employer operates
a principal place of business located at 37–18 Railroad
Avenue, Long Island City, New York, and is engaged in
the construction industry. In conducting its operations
during the calendar year ending December 31, 2016, the
Employer provided services valued in excess of $50,000
to the City of New York, which is directly engaged in
interstate commerce. All parties further stipulated, and
we find, that the Employer is engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act and that
Local 1010 and Local 175 are labor organizations within
the meaning of Section 2(5) of the Act.

1 Dates hereinafter are in 2017, unless otherwise specified.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is engaged in the construction industry
and primarily performs asphalt and concrete paving to
repair damage to roads and sidewalks resulting from un-
derground utility installation and maintenance work
within the five boroughs of New York City. Historically,
Local 1010 has represented the Employer’s employees
who primarily perform concrete work, while Local 175
has represented the employees who primarily perform
asphalt work.
There are four types of work involved in this case: (1)
saw cutting; (2) excavation; (3) seed and sod installation;
and (4) cleanup. Saw cutting is largely unskilled work; it
requires using a saw to cut through street pavement
around holes left in asphalt or concrete by utility compa-
nies when installing or performing work on underground
equipment. The purpose is to make the holes into
squares or rectangles, which New York Department of
Transportation (NYDOT) regulations require in prepara-
tion for excavation and filling. Excavation is the remov-
al of the asphalt, concrete, dirt, and other materials from
holes left by utility companies so that they can be refilled
and repaved. Seed and sod installation is laying grass
seed or sod on lawns that have been damaged by utility
companies. Cleanup consists of setting up and taking
down cones and barricades, removing debris from work
sites, and otherwise returning worksites to their normal
conditions.
The Employer’s most recent collective-bargaining
agreement with Local 1010 was effective from July 1,
2014, through June 30, 2017. Its most recent collective-
bargaining agreement with Local 175 was effective from
July 1, 2014, through June 30, 2017.
On April 28, 2017,2 Local 175 filed a grievance with
the New York Independent Contractors Alliance alleging
that, beginning April 1, the Employer had wrongfully
assigned to members of Local 1010 work that had previ-
ously been performed by members of Local 175.3 In
response, on July 25, Local 1010 wrote to the Employer
threatening that “should New York Paving assign the
work in question to its Local 175 employees, Local 1010
will take any and all actions necessary to protect its
members’ rights to continue performing the work in
question at New York Paving, including but not limited
to picketing and work stoppages.” In a subsequent meet-
ing with the Employer, Local 1010’s president, Lowell
Barton, reiterated that threat.

2 All dates are in 2017 unless otherwise specified.
3 On July 6, Local 175 also filed with the Board an unfair labor
practice charge related to this assignment of work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
B. Work in Dispute
The Employer, Local 1010, and Local 175 have stipu-
lated that the work in dispute is excavation work, seed
and sod installation, cleanup work, and saw cutting at
various locations in the City of New York
C. Contentions of the Parties
The Employer and Local 1010 contend that there are
competing claims for the work in dispute, that there is
reasonable cause to believe that Section 8(b)(4)(D) has
been violated by Local 1010’s letter threatening picket-
ing and work stoppages if the work in dispute were reas-
signed to employees represented by Local 175, and that
the parties have not agreed on a method for voluntary
adjustment of the dispute. The Employer and Local 1010
further contend that the work in dispute should be as-
signed to employees represented by Local 1010 based on
the factors of collective-bargaining agreements, employ-
er preference, current assignment, past practice, area and
industry practice, relative skills and training, and econo-
my and efficiency of operations.4 Local 1010 also con-
tends that the Board should grant areawide relief cover-
ing all of the Employer’s operations in the five boroughs
of New York City.
Local 175 agrees that there are competing claims for
the work in dispute and that the parties have not agreed
on a method for voluntary adjustment of the dispute, but
contends that there is not reasonable cause to believe that
Local 1010’s letter violated Section 8(b)(4)(D) of the
Act. Local 175 further contends that the work in dispute
should be assigned to employees represented by Local
175 based on the factors of collective-bargaining agree-
ments, employer preference, current assignment, past
practice, area and industry practice, relative skills and
training, and economy and efficiency of operations.
D. Applicability of the Statute
The Board may proceed with determining a dispute
pursuant to Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. Operating Engineers Local 150 (R&D Thiel),
345 NLRB 1137, 1139 (2005). This standard requires
finding that there is reasonable cause to believe that there
are competing claims for the disputed work between or

4 On December 15, the Employer sent a letter to the Board request-
ing leave to file a reply brief to Local 175’s posthearing brief and a
motion to strike parts of Local 175’s brief. By letter dated December
20, the Board’s Office of the Executive Secretary denied the request for
leave to file a reply brief and noted that, to the extent the Employer’s
letter itself constituted a motion to strike, it would be forwarded to the
Board for consideration, along with Local 175’s letter in opposition.
We find it unnecessary to pass on the Employer’s motion to strike
because, even considering those parts the Employer sought to strike,
our ultimate determination in this case favors the Employer’s position.
among rival groups of employees and that a party has
used proscribed means to enforce its claim to the work.
Id. Additionally, there must be a finding that the parties
have not agreed on a method for the voluntary adjust-
ment of the dispute. Id. On this record, we find that this
standard has been met.
1. Competing claims for work
The parties have stipulated, and we find, that Local
1010 and Local 175 both claim the work in dispute.
2. Use of proscribed means
As described, on July 25, the Employer received a let-
ter from Local 1010 stating “should New York Paving
assign the work in question to its Local 175 employees,
Local 1010 will take any and all actions necessary to
protect its members’ rights to continue performing the
work in question at New York Paving, including but not
limited to picketing and work stoppages.” Such a threat
establishes reasonable cause to believe that Local 1010
used proscribed means to enforce its claim to the work in
dispute. See Electrical Workers, Local 48 (Kinder Mor-
gan Terminals), 357 NLRB 2217, 2218 (2011).
Local 175 contends that Local 1010’s letter did not
constitute a genuine threat to engage in proscribed activi-
ty because Local 1010’s president’s wife has an owner-
ship interest in the Employer.5 Local 175 argues that the
alleged threats could not have been serious because of
the family issues that could arise. It also claims:
The fact is NY [Paving] did not want the grievance to
progress to arbitration. So they concocted this ploy
with [Local] 1010 to be able to file an 8(b)(4)(D). In
reality, the alleged threat was simply a means to an end,
for the Bartone family to avoid arbitration pursuant to
the [Local] 175 collective agreement because they
knew what the facts were. . . .
Local 175’s claims are speculative and factually un-
supported. Moreover, Local 175 cites no Board prece-
dent indicating that a familial relationship between a un-
ion’s leadership and an employer amounts to collusion or
otherwise renders a threat illegitimate. While it is true
that Local 1010’s president Joseph Sarro’s wife, Diane
Bartone Sarro, has an ownership interest in the Employ-
er, the record shows that Bartone Sarro owns less than 10

5 Local 175 also alleges that Diane Bartone Sarro’s brother Anthony
Bartone is the Employer’s president, and another brother Joe Bartone
held an ownership interest in the Employer prior to his death. While
there is testimony indicating that Anthony Bartone was an owner and
signed some paychecks and collective-bargaining agreements on behalf
of the Employer, there is no other evidence about the extent of his
ownership interest. Nor is there any evidence about Joe Bartone’s
ownership interest in or involvement with the Employer.
HIGHWAY ROAD AND STREET CONSTRUCTION LABORERS LOCAL 1010 (NEW YORK PAVING) 3
percent of the Company; the smallest ownership interest
in the Employer. There is no evidence to suggest that
she has sufficient power over the Employer’s operations
to decide which union should be assigned the disputed
work. Cf. Marble Polishers Local 47-T (Grazzini Bros.),
315 NLRB 520, 521–522 (1994) (rejecting arguments of
collusion without supporting evidence as “mere supposi-
tion”); R&D Thiel, supra at 1140 (rejecting claims that an
employer and union had colluded even when the union’s
president explicitly told the employer’s president that the
union “wanted him to ‘file a 10(k)’”). Local 175’s spec-
ulation that Local 1010 would not take hostile action
against the Employer because of Sarro and Bartone Sar-
ro’s relationship is further dispelled by the fact that the
Employer banned Sarro from its premises. We find no
merit in Local 175’s unsupported allegations of collusion
between the Employer and Local 1010.
3. No voluntary method for adjustment of dispute
Finally, the parties have stipulated, and we find, that
there is no agreed-upon method of the voluntary adjust-
ment of this dispute that would bind them.
We therefore find that this dispute is properly before
the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573, 586 (1961).
The Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on common
sense and experience, reached by balancing the factors
involved in a particular case. Machinists Lodge 1743
(J.A. Jones Construction), 135 NLRB 1402, 1410–1411
(1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Unit certifications and collective-bargaining
agreements
The Board certification of the unit represented by Lo-
cal 1010 includes “[a]ll full-time and regular part-time
. . . workers who primarily perform the laying of con-
crete.” The Board certification of the unit represented by
Local 175 includes “[a]ll full-time and regular part-time
workers who primarily perform asphalt paving.”
The Employer and Local 1010 are parties to a collec-
tive-bargaining agreement that specifically covers,
among other things, “the removal of old pavement,
curbs, and sidewalks to the subgrade,” “operating small
power tools and . . . equipment,” “landscaping which is
incidental to paving work and encompasses . . . the plant-
ing and maintenance of trees, shrubs, grass, beach grass,
and similar plant matter,” and “maintenance and protec-
tion of traffic safety for work under the Local’s jurisdic-
tion.” The Employer and Local 175 are also parties to a
collective-bargaining agreement that specifically covers,
among other things, “prepar[ing] for and perform[ing] all
types of asphalt paving . . . and all other preparation
work,” “operat[ing] small power tools,” “any laboring
work related to the preparation and cleanup of all Turf
and . . . all landscaping,” and “maintenance and protec-
tion of traffic safety for all work sites.”
Both collective-bargaining agreements can be fairly
read to include all of the disputed work. However, on
balance, the agreements lean in favor of awarding the
work to employees represented by Local 1010.6 “[T]he
removal of old pavement” squarely covers excavation,
and since saw cutting is required prior to excavation, this
provision can be read to cover saw cutting as well.
While “prepar[ing] for . . . asphalt paving,” could also be
read to cover saw cutting and excavation, it is less specif-
ic than the language in Local 1010’s contract. Both con-
tracts include landscaping, which applies to seed and sod
installation, but Local 1010’s agreement specifically ad-
dresses the planting of grass. Finally, both contracts
cover “maintenance and protection of traffic safety,”
which we read to include at least some of the compo-
nents of cleanup—specifically the set-up and removal of
traffic cones and barricades. For the reasons stated
above, we find this factor favors awarding the disputed
work to employees represented by Local 1010.
2. Employer preference and current assignment
The Employer currently assigns saw cutting, excava-
tion, and seed and sod installation exclusively to mem-
bers of Local 1010. The Employer assigns cleanup work
to members of the union performing the work that neces-
sitated cleanup. In other words, members of Local 1010
perform cleanup resulting from concrete work, and
members of Local 175 perform cleanup related to asphalt
work. The Employer’s operations manager Peter Miceli
testified that the Employer prefers to assign saw cutting,
excavation, and seed and sod installation to members of
Local 1010, and to assign cleanup work to the union per-
forming the underlying work necessitating cleanup. This
factor leans in favor of awarding saw cutting, excavation,
and seed and sod installation to employees represented
by Local 1010 and awarding cleanup to employees repre-
sented by the union performing the underlying work.

6 We note that, even if we were to assume this factor were neutral, it
would not change our conclusion that the factors collectively favor
awarding the work to employees represented by Local 1010.
Member Pearce finds the collective-bargaining agreements both ad-
equately cover the disputed work and that this factor is neutral.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
3. Employer past practice
The Employer’s past practice with regard to saw cut-
ting and excavation has varied due to changes in regula-
tions promulgated by the New York Department of
Transportation (NYDOT). Prior to 2011, the Employer
used a two-man saw-cutting crew composed of one
member from each Union because there was an equal
amount of concrete and asphalt saw cutting. From 2011
until October 1, 2016, NYDOT permitted “one-step pav-
ing” in which the Employer was not required to saw cut
or excavate holes in asphalt streets, but merely to fill the
holes left by utility companies with asphalt and finish
them to grade; members of Local 175 performed that
work. During this time, Local 1010 exclusively per-
formed all saw cutting and excavation because that work
was performed on concrete sidewalks and bus stops.
From October 1, 2016, through April 1, because NYDOT
banned one-step paving, the Employer assigned saw cut-
ting and excavation of streets to Local 175 because those
holes were filled entirely with asphalt, and it continued to
assign saw cutting and excavation of concrete sidewalks
and bus stops to Local 1010. Then, on April 1, NYDOT
began requiring all holes in streets to be filled with a
concrete base. Because of this new regulation, the Em-
ployer assigned street saw cutting and excavation to Lo-
cal 1010 so that it could then pour the concrete base.
Although both Unions have performed saw cutting, only
Local 1010 has consistently done so since before 2011.
Additionally, assigning the saw cutting and excavation to
Local 1010 conforms to the Employer’s past practice of
assigning saw cutting and excavation to the union that
specialized in the material used to fill the holes.
According to the testimony of Miceli and a Local 175
shop steward, for at least the past 10 years, the Employer
has assigned seed and sod installation exclusively to
members of Local 1010. Miceli noted that on rare occa-
sions he assigned seed and sod installation to foremen
from Local 175 when they had no other work to perform,
but that Local 1010 performed the vast majority of seed
and sod installation for the past ten years. Finally, for at
least the past 30 years, the Employer has assigned clean-
up to the union performing the underlying work that
makes cleanup necessary.
Accordingly, we find that this factor supports an award
of saw cutting, excavation, and seed and sod installation
to the employees represented by Local 1010 and an
award of cleanup to employees represented by the union
performing the underlying work.7

7 Contrary to his colleagues. Member Pearce would find that the
factor of employer past practice is neutral to saw cutting and excavating
work. He notes that both Local 175- and Local 1010-represented em-
4. Area and industry practice
Excavation is the only type of disputed work about
which direct evidence of area and industry practice was
presented. Lowell Barton, the vice president, organizing
director, and business agent of Local 1010, testified
about the practices of more than 30 companies that per-
form work similar to the Employer in New York City.
Barton testified that at 21 of these companies, Local
1010’s members perform excavation, while Local 175’s
members perform excavation at only one of the 30 com-
panies. Because of NYDOT’s recent regulatory change
requiring all holes left by utility companies to be saw cut
and excavated before being filled and paved, excavation
necessarily also includes saw cutting. However, Local
175 contends that the two steps need not occur simulta-
neously.
There was no direct testimony regarding the area and
industry practice of members of either Local 1010 or
Local 175 performing seed and sod installation or clean-
up. However, Local 1010’s contracts with 21 employers
in New York City cover “[l]andscaping which is inci-
dental to paving . . . also the planting and maintenance of
trees, shrubs, grass, beach grass, and similar plant mat-
ter,” “[t]he maintenance and protection of traffic safety
for the work under the Union’s jurisdiction,” and “[t]he
installation of any temporary fence, concrete or plastic
barriers to protect the job site under the Union’s jurisdic-
tion.”
We find this factor leans in favor of awarding the dis-
puted work to employees represented by Local 1010.
5. Relative skills
As noted above, none of the work in dispute is particu-
larly skilled. Employees from both unions have per-
formed all of the disputed work in the past. Miceli testi-
fied that “anybody really can run a jackhammer,” and
both unions represent employees who operate small
power tools and equipment that is necessary to perform
saw cutting and excavation. There is no allegation that
members of either union are unqualified or lack the skills
necessary to perform any of the work in dispute. We
therefore find this factor is neutral and does not favor
assigning the work to employees represented by either
union.
6. Economy and efficiency of operations
It is more efficient for Local 1010 to perform saw cut-
ting. On occasion, the Employer must simultaneously
work on both the sidewalk and street on the same block.
It is undisputed that the saw cutting of sidewalks, which

ployees historically have performed this work and its assignment has
largely been predicated on applicable city regulations.
HIGHWAY ROAD AND STREET CONSTRUCTION LABORERS LOCAL 1010 (NEW YORK PAVING) 5
are entirely concrete, is exclusively within Local 1010’s
jurisdiction. Therefore, if Local 1010 employees also
perform saw cutting on streets, they will be able to re-
duce the inconvenience to residents and allow the Em-
ployer to efficiently complete the necessary work. Be-
cause excavation occurs soon after saw cutting and im-
mediately before filling the hole with a concrete base, it
is also more efficient for Local 1010 to perform excava-
tion. Miceli testified that the Employer has a practice of
assigning excavation to the union who handles the mate-
rial that fills the hole for efficiency purposes, and that it
is much faster and less wasteful for Local 1010 to saw
cut and excavate a hole, fill it to the required level with
concrete, and move on to allow Local 175 to pave over
the top with asphalt. Miceli added that it would be ex-
tremely difficult and inefficient to assign a Local 175
crew to saw cut and excavate, followed by a Local 1010
crew to pour concrete, and then another Local 175 crew
to pave over with asphalt.
Similarly, it is more efficient and economical for Local
1010 to perform seed and sod installation because that
type of work is always performed in relation to concrete
work on sidewalks. Seed and sod installation requires
the replacement of grass seed or sod in lawns damaged
by utility work, and the lawns generally border concrete
sidewalks, not asphalt covered roads. Assigning each
union to perform cleanup resulting from the underlying
work it performed is also more efficient and economical;
it is inefficient to send in members of the other local just
to clean up a worksite.
Accordingly, we find this factor weighs in favor of
awarding saw cutting, excavation, and seed and sod in-
stallation to the employees represented by Local 1010,
and awarding cleanup to employees represented by the
union performing the underlying work necessitating
cleanup.
Conclusion
After considering all of the relevant factors, we con-
clude that employees represented by Local 1010 are enti-
tled to perform saw cutting, excavation, and seed and sod
installation, and that employees represented by both Lo-
cal 1010 and Local 175 are entitled to perform any nec-
essary cleanup relating to the underlying work each local
performs. We reach this conclusion relying on the fac-
tors of collective-bargaining agreements and Board certi-
fications, employer preference and current assignment,
employer past practice, area and industry practice, and
economy and efficiency of operations. In making this
determination, we are awarding saw cutting, excavation,
seed and sod installation, and cleanup arising from work
performed by Local 1010 to employees represented by
Local 1010, and cleanup arising out of work performed
by Local 175 to employees represented by Local 175, not
to those Unions or their members.8 Our determination is
limited to the controversy that gave rise to this proceed-
ing.
Scope of Award
Local 1010 has requested “a broad area wide award of
all of the disputed tasks covering the five boroughs of
New York City, where the Employer performs work and
where the jurisdictions of Locals 175 and 1010 collide.”
In support of this request, Local 1010 argues that “con-
flict is likely to recur because Local 175 will not accept
the Employer’s decision,” and that there have been a
“myriad number of unfair labor practices in Region 29”
over the last 12 years involving Locals 1010 and 175.
There are two criteria that must be met to justify a
broad areawide award:
First, there must be evidence that the disputed work has
been a continuous source of controversy in the relevant
geographic area and that similar disputes may recur.
Second, there must be evidence demonstrating that the
charged party has a proclivity to engage in unlawful
conduct in order to obtain work similar to the work in
dispute.
Laborers Local 22 (AGC of Massachusetts), 283 NLRB
605, 608 (1987) (emphasis in original). In the present case,
even if we assume that the unsupported allegation that con-
flict will recur is true and satisfies the first criterion for
awarding areawide relief, the Board is not concerned with
Local 175’s future actions. There must be evidence to sup-
port the belief that the charged party, here Local 1010, will
engage in further unlawful conduct. See id. No party has
alleged, much less provided evidence that this is likely to
occur. Further, it is rare for the Board to grant areawide
relief in a case where the work is awarded to the charged
party and the party to whom the employer would prefer to
award the work. See Laborers Local 1184 (High Light
Electric), 355 NLRB 167, 170–171 (2010) (citing Elevator
Constructors, Local 2 (Kone, Inc.), 349 NLRB 1207, 1211–
1212 (2007)). Finally, Local 1010 fears that “Local 175
will not accept the Employer’s decision.” However, it is the
Board’s decision, not the Employer’s, that Local 175 must
accept, and Local 1010 has provided no reason to fear that
Local 175 would ignore the Board’s decision. We therefore

8 Member Pearce would find that the factors of collective-
bargaining agreements, past practice [as to excavation and saw-cutting
work], and area practice [as to saw-cutting work, for which there is no
evidence], do not favor either group of employees. However, he agrees
with his colleagues that the factors of employer preference and current
practice both of which are largely influenced by applicable city regu-
lations favor an award to Local 1010-represented employees, as does
the resultant factor of economy and efficiency of operations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
“conclude that the issuance of a broad award would be in-
appropriate and we shall limit our determination to the par-
ticular controversy that prompted the instant proceeding.”
AGC of Massachusetts, supra.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of New York Paving, Inc., represented by
Highway Road and Street Construction Laborers Local
1010, Laborers International Union of North America
(LIUNA), AFL–CIO, are entitled to perform saw cutting,
excavation, seed and sod installation, and cleanup arising
from work performed by those employees. Employees
of New York Paving, Inc., represented by Local Lodge
CC175, International Association of Machinists and
Aerospace Workers, AFL–CIO, are entitled to perform
cleanup arising from work performed by those employ-
ees.
Dated, Washington, D.C. August 24, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD