UNITED STATES OF AMERICA
`BEFORE THE NATIONAL LABOR RELATIONS BOARD
`REGION 29
`
`Case No. 29-RC-117061
`
`Case No. 29-RC-11707
`
`TULLY CONSTRUCTION CO., INC.
`Employer
`
`and
`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
`
`LOCAL 175, UNITED PLANT & PRODUCTION
`WORKERS INTERNATIONAL UNION OF
`JOURNEYMEN AND ALLIED TRADES
`
`Intervenor
`
`YONKERS CONTRACTING CORP.
`Employer
`
`and
`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
`
`LOCAL 175, UNITED PLANT & PRODUCTION
`WORKERS INTERNATIONAL UNION OF
`JOURNEYMEN AND ALLIED TRADES
`
`Intervenor
`
`
`
`1 The two cases were not consolidated, and there is no evidence of any relationship between Tully and
`Yonkers.
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`

`

`DECISION AND DIRECTION OF ELECTIONS
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`Upon petitions duly filed under Section 9(c) of the National Labor Relations Act,
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`herein called the Act, as amended, a hearing was held before Tara O’Rourke, a Hearing
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`Officer of the National Labor Relations Board, herein called the Board.
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`Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
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`authority in this proceeding to the undersigned.
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`Upon the entire record in this proceeding, the undersigned finds:
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`1.
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`The Hearing Officer's rulings made at the hearing are free from
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`prejudicial error and hereby are affirmed.
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`2.
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`(a) The parties stipulated that Tully Construction Co., Inc., herein
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`called Tully, is a domestic corporation, with its principal office and place of business
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`located at 127-50 Northern Boulevard, Flushing, New York, where it is engaged in
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`highway and street construction, including asphalt paving. During the past year, which
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`period is representative of its annual operations generally, Tully, in the course and
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`conduct of its business operations described above, purchased and received at its
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`Flushing, New York facility, goods and materials valued in excess of $50,000, directly
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`from suppliers located inside the State of New York, said goods and materials having
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`originated from points located outside of the State of New York.
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`Based on the stipulation of the parties, and the record as a whole, I find
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`that Tully is engaged in commerce within the meaning of the Act, and it will effectuate
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`the purposes of the Act to assert jurisdiction herein.
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`(b) The parties stipulated that Yonkers Contracting Corp., herein
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`called Yonkers, is a domestic corporation, with its principal office and place of business
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`located at 969 Midland Avenue, Yonkers, New York, where it is engaged in highway and
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`street construction, including asphalt paving. During the past year, which period is
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`representative of its annual operations generally, Yonkers, in the course and conduct of
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`its business operations described above, purchased and received at its Yonkers, New
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`York facility, goods and materials valued in excess of $50,000, directly from suppliers
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`located outside of the State of New York.
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`Based on the stipulation of the parties, and the record as a whole, I find
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`that Yonkers is engaged in commerce within the meaning of the Act, and it will
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`effectuate the purposes of the Act to assert jurisdiction herein.
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`3.
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`The parties stipulated that the Sheet Asphalt Workers Local Union
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`1018 of the District Council of Pavers and Road Builders of the Laborers’ International
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`Union of North America, herein called the Petitioner, and Local 175, United Plant &
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`Production Workers International Union of Journeymen and Allied Trades, herein called
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`the Intervenor, are organizations in which employees participate, and which exist, in
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`whole or in part, for the purpose of dealing with employers concerning wages, hours and
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`other terms and conditions of employment.
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` Based on the stipulation of the parties, and the record as a whole, I find
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`that the Petitioner and the Intervenor are labor organizations within the meaning of
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`Section 2(5) of the Act. The labor organizations involved herein claim to represent
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`certain employees of Tully and Yonkers.
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`4.
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`A question affecting commerce exists concerning the
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`representation of certain employees of Tully and Yonkers within the meaning of Section
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`9(c)(1) and Section 2(6) and (7) of the Act.
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`5.
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`(a)
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`The parties stipulated, and I find, that the following unit is
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`appropriate for the purposes of collective bargaining:
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`All full-time and regular part-time employees employed by Tully at its Flushing,
`New York facility, who perform asphalt paving, including foremen, rakers,
`screedmen, micro pavers, AC paintmen and liquid tar workers, but EXCLUDING
`all clerical employees, guards and supervisors as defined in the Act.
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`(b)
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`The parties stipulated, and I find, that the following unit is
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`appropriate for the purposes of collective bargaining:
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`All full-time and regular part-time employees employed by Yonkers at its
`Yonkers, New York facility, who perform asphalt paving, including foremen,
`rakers, screedmen, micro pavers, AC paintmen and liquid tar workers, but
`EXCLUDING all clerical employees, guards and supervisors as defined in the
`Act.
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`At the hearing, the Intervenor took the position that the petitions should be dismissed on
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`contract bar grounds. The Petitioner and the Employers took the contrary position.
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`In support of its position, the Intervenor called as its witnesses Roland Bedwell, the
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`Intervenor’s Business Manager, and Peter Tully, President of Tully. The Petitioner and
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`Employers did not call witnesses. All of the parties filed post-hearing briefs.
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`I have considered the evidence and the arguments presented by the parties. As
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`discussed below, I have concluded that there is no contract bar to the instant petitions.
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`Accordingly, I will direct elections in the bargaining units I have found to be appropriate.
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`The facts and reasoning in support of my conclusions are set forth below.
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`FACTS
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`The petition in Case No. 29-RC-11706 was filed on December 30, 2008. The
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`petition in Case No. 29-RC-11707 was filed on January 5, 2009.
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`The document asserted by the Intervenor to bar the instant petitions is titled,
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`“Agreement Between Tully Construction Co., Inc. and Yonkers Contracting, Inc. [and]
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`United Plant and Production Workers Local Union 175 Paving Division.” These words
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`are followed by a date, “June 30, 2008,” which is crossed out.
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`The first page of the document states that the agreement is “effective upon
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`execution for a period of one year.” The words, “upon execution for a period of one
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`year,” are handwritten (no initials), and replace the crossed-out date, “June 30, 2008.”
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`Article IX, Section 2, of the document states that, “This Agreement shall be
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`executed by both parties hereto.” However, the signature page contains just one
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`signature, by the Intervenor’s Business Manager, Roland Bedwell. Bedwell’s signature is
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`dated December 29, 2008. It is followed by blank signature and date lines for Tully and
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`Yonkers.2
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`The record reflects that the Intervenor delivered four originals of this document to
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`Tully’s Flushing facility on December 30, 2008, with the request that it be signed by
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`Tully and forwarded to Yonkers for signature. On that same date, December 30, 2008,
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`the Intervenor’s attorney sent a letter to Yonkers and Tully’s attorney, requesting that the
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`contract be executed. To date, neither Tully nor Yonkers has executed this document.
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`The Intervenor offered into evidence a December 19, 2008, e-mail from the
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`attorney for Tully and Yonkers to the Intervenor’s attorney, indicating that “a clean copy
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`of the agreement my clients are willing to sign” was attached to the e-mail. However, the
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`Intervenor made handwritten changes to this document, purporting to incorporate
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`changes to which the attorney for Tully and Yonkers had agreed. The document
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`delivered to Tully on December 30, 2008, included these handwritten changes.
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`
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`2 The signature and date lines for Tully and Yonkers are set forth on the same document, rather than on a
`separate copy for Tully and a separate copy for Yonkers. Accordingly, the Intervenor sought to have Tully
`sign the contract first, and then forward this same document to Yonkers for its signature.
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`Peter Tully testified that he has not yet executed the document because he still has
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`some questions about these handwritten changes, and other aspects of the agreement. He
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`testified that he was in Europe on December 30, 2008, when the contract was delivered to
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`the Flushing facility by the Intervenor, and that he was “the only one that could sign it.”
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`The Intervenor attempted to show, through extrinsic evidence, that the parties
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`intended the contract to go into effect as soon as it was executed by the Intervenor,
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`regardless of whether it was executed by Tully or Yonkers.
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`DISCUSSION
`
`In Appalachian Shale, 121 NLRB 1160 (1958), the Board held that contracts not
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`executed by the parties before the filing of a petition cannot serve as a bar. In support of
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`its position that the contract here was executed prior to the filing of the petition, the
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`Intervenor relies on Diversified Services, 225 NLRB 1092 (1976). There, the Board held
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`that “in order to constitute a bar a contract need not be encompassed within a single
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`formal document but may consist of an exchange of the written proposal and a written
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`acceptance.” Diversified Services, 225 NLRB at 1092. The “written proposal” in
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`Diversified consisted of a signed letter from the Employer’s attorney, enclosing two
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`unexecuted copies of the contract to which the parties had agreed. The Union executed
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`the contract, without making any changes. In the instant case, by contrast, the Intervenor
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`made changes to the “clean copy” e-mailed by the attorney for Tully and Yonkers.
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`Tully’s President was not willing to execute the contract until it could obtain a
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`clarification of these changes, and Yonkers has not executed the contract. The e-mail
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`relied on by the Intervenor was not signed by the attorney for Tully and Yonkers, and the
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`Intervenor sought to obtain the signatures of Yonkers and Tully on the contract itself.
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`Under these circumstances, I do not find that the unsigned e-mail to the Intervenor, from
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`counsel for Tully and Yonkers, constitutes a “written proposal” as contemplated by
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`Diversified.
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`More applicable to the instant cases is B.C. Acquisitions, Inc., d/b/a Branch
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`Cheese, 307 NLRB 239 (1992), cited by Tully and Yonkers, in which the Board held:
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`In addition, although Appalachian Shale indicates some willingness to honor the
`parties’ decision to memorialize their contract through a more informal exchange
`of documents, 121 NLRB at 1162, the Union and the Employer here
`conscientiously did not opt for that approach. The evidence shows that they
`intended to prepare and execute a formal agreement, which was not accomplished
`before the filing of the representation petition. B.C. Acquisitions, 307 NLRB at
`240.
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`In the instant cases, the contract itself states that, “This Agreement shall be
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`executed by both parties hereto.”3 On December 30, 2008, the Intervenor, both by letter
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`and in person, requested that the contract be executed by Yonkers and Tully.
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`Accordingly, the record reflects that the parties “intended to prepare and execute a formal
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`agreement, which was not accomplished before the filing of the representation petition.”
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`B.C. Acquisitions, 307 NLRB at 240.
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`Moreover, even were I to find that there was a fully executed contract on
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`December 29, 2008, for purposes of binding the parties to the agreement, the effective
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`date and expiration date of the contract cannot be determined from the four corners of the
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`document asserted as a bar, without resort to extrinsic evidence. And, “the Board has
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`consistently limited its inquiry to the four corners of the document or documents alleged
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`to bar an election and has excluded the consideration of extrinsic evidence.” Waste
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`Management of Maryland, Inc., 138 NLRB 1002 (2003); see also Jet-Pak Corporation,
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`
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`3 Although the dictionary definition of “both” denotes two entities, there are three signature lines on the
`same contract, for the Intervenor, Tully and Yonkers.
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`231 NLRB 552 (1977); Merico, Inc., 207 NLRB 101 n. 2 (1973). More specifically, in
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`the instant cases, the contract language calls for the contract to be executed by “both”
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`parties, and states that the agreement is “effective upon execution for a period of one
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`year.” However, the contract is only executed by one party and has one signature date.
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`The lack of a signature by Tully or Yonkers, creates an ambiguity as to the contract’s
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`effective date and expiration date. In South Mountain Healthcare and Rehabilitation
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`Center, 344 NLRB No. 40, slip op. (2005), cited by the Petitioner, the Board held:
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`To serve as a bar to a petition, a contract must contain substantial terms and
`conditions of employment deemed sufficient to stabilize the bargaining
`relationship. Both an effective date and an expiration date are material terms of a
`contract. Unless these dates are apparent from the face of the contract, without
`resort to parol evidence, the contract will not serve as a bar. The terms of the
`agreement must be clear from its face so that employees and outside unions may
`look to it to determine the appropriate time to file a representation petition. South
`Mountain, slip op. at 2 (citing Cind-R-Lite, 239 NLRB 1255, 1256 (1979);
`Cooper Tire & Rubber Co., 181 NLRB 509 (1970); Appalachian Shale, 121
`NLRB at 1163).
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`The public policy justification for this rule is more fully set forth in Bob’s Big Boy
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`Family Restaurants, 259 NLRB 153 (1981). The contract at issue in Bob’s Big Boy was
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`effective December 11, 1974, through December 31, 1977, according to the text of the
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`document. However, the cover of the contract distributed to employees contained the
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`dates, “January 1, 1975 to December 31, 1977.” A petition was filed that was timely
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`filed with respect to the cover dates on the contract, but untimely filed as to the dates set
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`forth in the text of the document. The Board held:
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`The Board’s contract bar rules are designed to balance the twin goals of employee
`freedom of choice and industrial stability. For example, contracts may bar a
`representation petition for up to 3 years. This contract-bar rule provides
`employee or union petitioners the opportunity to file petitions at reasonable,
`identifiable times to change or eliminate the employees’ bargaining representative
`if they so desire, and at the same time affords a reasonable period of stability for
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`the contracting parties and employees. The Board has also provided for a
`“window period” during which petitions may be filed to be timely with respect to
`an existing contract. And when an employee, or other petitioner, seeks to
`determine the proper time to file a representation petition, it is axiomatic that one
`would look first to the existing contract between the employer and the union to
`determine the appropriate dates for filing such a petition...[T]he contract urged by
`Respondent as a bar to the petition should not operate to deny its employees the
`opportunity to vote on union representation...[W]here parties to a contract create a
`situation in which a petitioner cannot clearly determine the proper time for filing a
`petition, the ambiguity does not inure to the benefit of the parties but instead
`means that the petition will not be barred. Bob’s Big Boy, 259 NLRB at 153-154
`(citations omitted).
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`In the instant cases, the Intervenor claims that, in light of the earlier e-mail from
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`the attorney for Tully and Yonkers, the effective date of the contract is December 29,
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`2008, when the contract was executed by the Intervenor. The instant petitions were filed
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`on December 30, 2008, and January 5, 2009, after the Intervenor executed the contract.
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`Petitions filed after the effective date of a valid contract are barred by that contract.
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`Deluxe Metal Furniture Company, 121 NLRB 995, 999 (1958); National Broadcasting
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`Company, Inc., 104 NLRB 587 (1953).
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`However, as noted above, the contract itself states that, “This Agreement shall be
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`executed by both parties hereto,” and that the contract will be “effective upon execution
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`for a period of one year.” The contract has not been executed by Tully or Yonkers. An
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`employee or union petitioner examining the contract, without knowledge of or access to
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`the e-mail sent by the attorney for Tully and Yonkers, could not reliably determine the
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`proper time for filing a representation petition. For a petitioner, the blank signature lines
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`for Tully and Yonkers would likely convey the impression that the contract has not yet
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`been fully executed, that the contract is therefore not yet in effect, and that the instant
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`petitions were timely filed. In the future, for example, if Tully ultimately signs the
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`contract on March 2, 2009, and Yonkers signs the contract on April 1, 2009, a petitioner
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`would be hard pressed to determine with a high degree of certainty which of the three
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`execution dates is “the” execution date for the purpose of determining the effective date
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`and the expiration date of the contract.4 This, in turn, would make it impossible to
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`determine when the “window period” begins and ends for the purpose of filing a petition
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`in the future.
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`In sum, based on the foregoing, in addition to finding no fully executed contract, I
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`find that the effective date and expiration date of the contract are not apparent from the
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`face of the document, and, therefore, that those dates are ambiguous; thus, a petitioner
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`“cannot clearly determine the proper time for filing a petition.”
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`Bob’s Big Boy, 259 NLRB at 154. Accordingly, I find that the petitions herein are not
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`barred by the document relied on by the Intervenor. I will therefore direct elections in the
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`appropriate units.
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`DIRECTION OF ELECTIONS
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`Two elections by secret ballot shall be conducted by the undersigned among the
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`employees in the units found appropriate at the times and places set forth in the notices of
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`election to be issued subsequently subject to the Board's Rules and Regulations. Eligible
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`to vote are employees in the units who were employed during the payroll period ending
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`immediately preceding the date of this Decision, including employees who did not work
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`during that period because they were ill, on vacation or temporarily laid off. Also
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`eligible are (a) employees in the units who were employed for at least 30 days in the 12-
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`month period preceding the eligibility date for the election, and (b) employees in the units
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`
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`4 The contract is just one document with three separate signature lines, for the Intervenor, Tully and
`Yonkers. If Yonkers and Tully sign on different dates, since the companies are apparently unrelated, the
`effective and expiration dates applicable to Tully might be different from the effective and expiration dates
`applicable to Yonkers.
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`who had some employment during that 12-month period and were employed for at least
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`45 days within the 24 months immediately preceding the eligibility date for the election.5
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`Employees engaged in any economic strike, who have retained their status as strikers and
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`who have not been permanently replaced, are also eligible to vote. In addition, in an
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`economic strike which commenced less than 12 months before the election date,
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`employees engaged in such strike who have retained their status as strikers but who have
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`been permanently replaced, as well as their replacements, are eligible to vote. Those in
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`the military services of the United States who are employed in the units may vote if they
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`appear in person at the polls. Ineligible to vote are employees who have quit or been
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`discharged for cause since the designated payroll period, employees engaged in a strike
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`who have been discharged for cause since the commencement thereof and who have not
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`been rehired or reinstated before the election date and employees engaged in an economic
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`strike which commenced more than 12 months before the election date and who have
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`been permanently replaced. Those eligible to vote shall vote whether or not they desire
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`to be represented for collective bargaining purposes by the Sheet Asphalt Workers Local
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`Union 1018 of the District Council of Pavers and Road Builders of the Laborers’
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`International Union of North America, by Local 175, United Plant & Production Workers
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`International Union of Journeymen and Allied Trades, or by neither labor organization.
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`LISTS OF VOTERS
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`In order to assure that all eligible voters may have the opportunity to be informed
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`of the issues in the exercise of the statutory right to vote, all parties to the elections
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`should have access to a list of voters and their addresses that may be used to
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`5 Steiny and Company, Inc., 308 NLRB 1323 (1992); Daniel Construction Company, Inc., 133 NLRB 264
`(1961), as modified, 167 NLRB 1078 (1967).
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`communicate with them. Excelsior Underwear, Inc., 156 NLRB 1236 (1966); N.L.R.B.
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`v. Wyman-Gordon Company, 394 U.S. 759 (1969). Accordingly, it is hereby directed
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`that within 7 days of the date of this Decision, four (4) copies of two separate eligibility
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`lists, containing the full names and addresses of all the eligible voters at Tully and
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`Yonkers, shall be filed by Tully and Yonkers with the undersigned who shall make the
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`lists available to all parties to the elections. North Macon Health Care Facility, 315
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`NLRB No. 50 (1994). In order to be timely filed, such lists must be received in the
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`Regional Office, Two MetroTech Center, 5th Floor, Brooklyn, New York 11201 on or
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`before February 11, 2009. No extension of time to file the lists may be granted, nor
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`shall the filing of a request for review operate to stay the filing of such lists except in
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`extraordinary circumstances. Failure to comply with this requirement shall be grounds
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`for setting aside the elections whenever proper objections are filed.
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`NOTICES OF ELECTION
`Please be advised that the Board has adopted a rule requiring that election notices
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`be posted by Tully and Yonkers at least three working days prior to an election. If either
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`Tully or Yonkers has not received the notices of election at least five working days prior
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`to the election date or dates, please contact the Board Agent assigned to the case or the
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`election clerk.
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`A party shall be estopped from objecting to the non-posting of notices if it is
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`responsible for the non-posting. An Employer shall be deemed to have received copies
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`of the election notices unless it notifies the Regional office at least five working days
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`prior to 12:01 a.m. of the day of the election that it has not received the notices. Club
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`Demonstration Services, 317 NLRB No. 52 (1995). The failure of Tully or Yonkers to
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`comply with these posting rules shall be grounds for setting aside the election whenever
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`proper objections are filed.
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`RIGHT TO REQUEST REVIEW
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`Under the provisions of Section 102.67 of the Board's Rules and Regulations, a
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`request for review of this Decision may be filed with the National Labor Relations Board,
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`addressed to the Executive Secretary, 1099 14th Street, N.W., Washington, D.C.
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`20570-0001. This request must be received by the Board in Washington by 5 p.m., EST
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`on February 18, 2009.
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`In the Regional Office's initial correspondence, the parties were advised that the
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`National Labor Relations Board has expanded the list of permissible documents that may
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`be electronically filed with its offices. If a party wishes to file one of the documents
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`which may now be filed electronically, please refer to the Attachment supplied with the
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`Regional Office's initial correspondence for guidance in doing so. Guidance for E-filing
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`can also be found on the National Labor Relations Board web site at www.nlrb.gov. On
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`the home page of the website, select the E-Gov tab and click on E-Filing. Then select the
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`NLRB office for which you wish to E-File your documents. Detailed E-filing instructions
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`explaining how to file the documents electronically will be displayed. The request for
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`review may not be filed by facsimile.
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`Dated: February 4, 2009, Brooklyn, New York.
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`_________________________________
`"/s/{Alvin P. Blyer]"
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