New York Paving, Inc. v. NLRB ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 20-1469 September Term, 2021
FILED ON: DECEMBER 10, 2021
NEW YORK PAVING, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 21-1003
On Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Before: WILKINS and RAO, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
JUDGMENT
This petition for review and cross-application for enforcement of a National Labor Relations
Board order were presented to the court and briefed and argued by counsel. The court has accorded
the issues full consideration and has determined that they do not warrant a published opinion. See
D.C. CIR. R. 36(d). For the reasons set out below, it is
ORDERED that the petition for review be DENIED and the cross-application for
enforcement be GRANTED.
New York Paving, Inc. performs asphalt and concrete paving services for New York City
utility providers Consolidated Edison (“Con Edison”) and National Grid. New York Paving
performs Con Edison work pursuant to a contract with Hallen Construction Company. The work
consists in repairing streets and sidewalks after the utility has performed work underground. New
York Paving’s employees are represented by two unions: Construction Council Local 175, Utility
Workers Union of America, AFL–CIO (“Local 175”), and Highway Road and Street Construction
Laborers Local Union 1010, District Council of Pavers and Builders, Laborers International Union
of North America, AFL–CIO (“Local 1010”). Local 175 traditionally performs New York Paving’s
asphalt paving, whereas Local 1010 performs concrete paving.
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This case involves three types of temporary asphalt work: emergency keyhole, Code 92, and
Code 49. Emergency keyhole work involves saw cutting, excavating, and backfilling a street hole
with concrete, and covering the back-filled hole with a patch of temporary asphalt. Code 92 work
involves covering a backfilled hole on a sidewalk with temporary asphalt so that New York Paving
can operate its saws around the hole. Code 49 is like Code 92 except on streets. New York Paving
performs emergency keyhole work for Hallen, Code 92 work for Hallen and National Grid, and Code
49 work for National Grid.
New York Paving used members of Local 175 to perform emergency keyhole and Code 92
work until New York Paving transferred the work to Local 1010 in 2018. New York Paving did not
perform Code 49 work until summer 2018. When New York Paving began performing Code 49
work, it assigned the work to Local 1010 members. New York Paving did not bargain with Local
175 before assigning the three types of work to Local 1010.
The Board determined that New York Paving violated the National Labor Relations Act by
unilaterally transferring the three types of work from Local 175 to Local 1010 without first
bargaining with Local 175. 370 N.L.R.B. No. 44 (2020). New York Paving petitions for review of
that decision. We conclude that New York Paving’s arguments are unavailing, and we therefore
deny the petition and grant the cross-petition for enforcement.
The Act makes it unlawful for an employer “to refuse to bargain collectively with the
representatives of his employees.” 29 U.S.C. § 158(a)(5). An employer that violates Section
158(a)(5) derivatively violates Section 158(a)(1). Pac. Coast Supply, LLC v. NLRB, 801 F.3d 321,
325 n.2 (D.C. Cir. 2015). An employer violates Section 158(a)(5) if it makes a unilateral change to
the status quo without first providing notice and an opportunity to bargain. NLRB v. Katz, 369 U.S.
736, 743-48 (1962). We review the Board’s findings of fact for substantial evidence and its
reasoning under the arbitrary and capricious standard. Int’l Longshore & Warehouse Union v.
NLRB, 971 F.3d 356, 360 (D.C. Cir. 2020).
New York Paving first argues that the Board erred in concluding that New York Paving
violated the Act by unilaterally transferring emergency keyhole work to Local 1010. New York
Paving maintains that the Board’s unfair labor practice charge was untimely because Local 175 had
actual and/or constructive knowledge of the emergency keyhole work transfer in April or May 2018.
The unfair labor practice charge was filed in January 2019, so New York Paving argues that the
charge came after the Act’s six-month statute of limitations expired. 29 U.S.C. § 160(b).
New York Paving must show that Local 175 had “clear and unequivocal notice” of the
violation outside the limitations period. Taylor Ridge Paving & Constr., Co., 365 N.L.R.B. No. 168,
2017 WL 6554390, at *4 (Dec. 16, 2017) (internal quotation marks omitted). Substantial evidence
supports the Board’s conclusion that New York Paving did not meet that burden. The emails relied
on by New York Paving are unclear and show only that a Local 175 shop steward “observed” one
incident where Local 1010 used an asphalt truck and that he “heard of two others.” A235. The
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emails do not mention emergency keyhole work. The shop steward’s testimony is also not helpful
to New York Paving because the shop steward admits that he did not know whether the truck was
set up for emergency keyhole work or whether Local 1010 ultimately performed the work. Local
175’s business manager also testified that he saw Local 1010 members performing asphalt work, but
in “late 2018,” not in April or May. A570-71.
New York Paving next argues that it was forced to transfer emergency keyhole work to Local
1010 due to the action of a third party — Con Edison — over which it had no control. Con Edison
contracts require contractors to employ workers from unions affiliated with the Building &
Construction Trades Council of Greater New York “unless otherwise agreed to by Con Edison.”
A302. Local 1010 is a member of the Trades Council, but Local 175 is not. New York Paving’s
prior contracts with Hallen for Con Edison work did not include the labor requirement, and New
York Paving used Local 175 members to perform the work. But on January 9, 2018, New York
Paving entered into a new contract with Hallen. The new contract included the labor requirement.
Due to the labor requirement, New York Paving used Local 1010 members for emergency
keyhole work performed under the contract. New York Paving contends that Con Edison forced the
transfer. But, by signing the new contract with Hallen without bargaining, New York Paving
“committed itself voluntarily to two conflicting contractual obligations” — the labor requirement
and its past practice of assigning emergency keyhole work to Local 175 — and cannot be excused
for violating the Act. W.R. Grace & Co. v. Loc. Union 759, 461 U.S. 757, 767 (1983).
New York Paving also argues that the emergency keyhole work transferred was de minimis,
and thus New York Paving did not violate the Act. Employers must bargain “before making a
change to wages, hours, or other working conditions . . . only if the change is a material, substantial,
and a significant one.” N. Star Steel Co., 347 N.L.R.B. 1364, 1367 (2006) (internal quotation marks
omitted). But the Board reasonably explained why the transfer of fifteen hours of emergency
keyhole work each month was unlike the single, one-month transfer of work in North Star Steel.
New York Paving next challenges the Board’s conclusion that New York Paving violated the
Act by unilaterally transferring Code 49 and Code 92 work to Local 1010. New York Paving first
contends that a prior Board decision required New York Paving to assign Code 49 and Code 92 work
to Local 1010. But the prior decision assigned saw cutting, excavation, and seed and sod installation
work to Local 1010, not Code 49 and Code 92 work. Highway Road & St. Constr. Laborers Local
1010, 366 NLRB No. 174, 2018 WL 4070102, at *7 (Aug. 24, 2018). New York Paving argues that
Code 49 and Code 92 are the “first and essential step in the excavation work” and thus “fall
‘squarely’ within” the Board’s prior decision. Petitioner’s Br. 53-54. But substantial evidence
supports the Board’s conclusion that both types of work do not occur “so close together in time” to
saw cutting “as to constitute a single integrated process.” A214-15.
New York Paving also challenges the Board’s exclusive reliance on past practice to find that
the transfer of Code 49 work violated the Act. Under Board precedent, “[a] past practice must occur
with such regularity and frequency that employees could reasonably expect the ‘practice’ to continue
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or reoccur on a regular and consistent basis.” Sunoco, Inc., 349 N.L.R.B. 240, 244 (2007). Because
New York Paving did not perform Code 49 work until summer 2018, New York Paving asserts that
there was no past practice of assigning Code 49 work to Local 175. But substantial evidence
supports the Board’s conclusion that Code 49 is “temporary asphalt work” and New York Paving
had a practice of assigning all temporary asphalt work to Local 175 before January 2018. A215.
Local 175 members could thus “reasonably expect” that new temporary asphalt work would be
assigned to them. See Sunoco, Inc., 349 N.L.R.B. at 244.
New York Paving’s remaining contentions do not merit discussion and have been rejected.
We therefore deny the petition for review and grant the Board’s cross-application for enforcement.
* * *
This disposition is unpublished. See D.C. CIR. R. 36(d). We direct the Clerk to withhold the
mandate until seven days after any timely petition for rehearing or rehearing en banc is resolved.
See FED. R. APP. P. 41(b); D.C. CIR. R. 41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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