Nico Asphalt Paving, Inc/. and its successor in interest and Alter Ego, City Wide Paving, Inc.

National Labor Relations Board - Board Decisions

Nov 6, 2019

368 NLRB No. 111 (N.L.R.B. 2019)

368 NLRB No. 111
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Nico Asphalt Paving, Inc., and its Successor in Inter-
est and Alter Ego, City Wide Paving, Inc. and
United Plant & Production Workers, CC Local
Union 175, IAM and Highway, Road and Street
Construction Laborers Local 1010, LIUNA,
AFL–CIO. Case 29–CA–186692
November 6, 2019
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On November 2, 2018, Administrative Law Judge Jef-
frey P. Gardner issued the attached decision. The Re-
spondent filed exceptions with supporting argument, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,2 and conclusions and
to adopt the judge’s recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Nico Asphalt Paving, Inc.,
and its Successor in Interest and Alter Ego, City Wide
Paving, Inc., Brooklyn, New York, their officers, agents,

1 Chairman Ring took no part in the consideration of this case.
2 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
In adopting the judge’s finding that Respondents Nico and City
Wide were and are alter egos, Members Kaplan and Emanuel find it
unnecessary to rely on the judge’s statement that intent to evade the Act
is not an essential component to an alter ego finding.
3 As found by the judge, several of the Respondent’s employees
were effectively discharged when they refused to change their union
affiliation from Construction Council 175, Utility Workers Union of
America, AFL–CIO, to Highway, Road and Street Construction Labor-
ers Local 1010, LIUNA, AFL–CIO, in order to continue working on the
ConEd contract, which Nico had transferred to City Wide. Given that
uncontested finding, we modify the judge’s recommended remedy to
specify that backpay for those affected employees shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with
interest as prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
successors, and assigns, shall take the action set forth in
the Order.
Dated, Washington, D.C. November 6, 2019
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Francisco Guzman, Esq., for the General Counsel.
Michael Scaraggi, Esq., for Nico Asphalt Paving, Inc. and City
Wide Paving, Inc.
Eric Chaiken, Esq., for the Charging Party.
Andrew Gorlick, Esq., et al. for the Party in Interest.
DECISION
STATEMENT OF THE CASE
JEFFREY P. GARDNER, Administrative Law Judge. This case
was tried in Brooklyn, New York, on consecutive days begin-
ning on December 11, 2017, and ending on December 14,
2017. The complaint alleges that the Respondents (Nico and
City Wide)1 are alter egos of each other and that these entities
violated Section 8(a)(5) and (1) of the Act by failing and refus-
ing to recognize the Charging Party Union, Local 175 (hereaf-
ter “the Union”), on and after February 12, 2016, as the collec-
tive bargaining representative of its employees engaged in bar-
gaining unit work; and repudiating and refusing to apply the
applicable Nico collective-bargaining agreement (“CBA”) to
the bargaining unit employees.
Alternatively, the General Counsel argues that City Wide is a
successor to Nico, and violated Section 8(a)(5) and (1) of the
Act by failing and refusing to recognize and bargain with Local
175 as the collective bargaining representative of its employees,
when it entered into a General Service Agreement with Nico to
perform all of Nico’s asphalt paving work and hired a majority
of its employees from the Nico bargaining unit.
The complaint further alleges that City Wide violated Sec-
tion 8(a)(2) of the Act by recognizing and signing a contract
with the Party in Interest (hereinafter “Local 1010”) while it
was still obligated to recognize and bargain with the Union.
In its answer, Respondent denied the essential allegations of
the complaint, and raised an affirmative defense that the charge

1 Hereinafter, Respondents will be separately identified as Nico and
City Wide, except I will sometimes collectively refer to them in the
singular as Respondent, where appropriate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
is time-barred under Section 10(b) of the Act.2 After the trial,
the parties filed briefs, all of which I have read and considered.3
Based on those briefs and the entire record, including the testi-
mony of the witnesses and my observation of their demeanor, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent and both of its individual entities have been en-
gaged in operating concrete and masonry businesses with loca-
tions in the State of New York. They admit and stipulate to the
Board’s jurisdiction, including that they are engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
Although initially admitting that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act, Respond-
ent withdrew that admission during the trial when the Union
offered a technical amendment of its name to reflect that it had
affiliated with a new national union. (See GC Exh. 1.)4 Neither
Respondent nor any other party objected at the outset of trial
when the General Counsel first moved to amend the Complaint
to correct the name of the Charging Party, which I granted. (Tr.
25.) Notwithstanding this technical amendment, there was no
evidence offered by any party to contradict the record evidence
demonstrating that the Union was and remains a labor organiza-
tion, and I hereby so find.
II. ALLEGED UNFAIR LABOR PRACTICES
The Facts
The two entities in this case, Nico and City Wide, are pri-
marily operated by members of the Pietranico family: Michael
Pietranico, Sr., his son, Michael Pietranico, Jr. and his daugh-
ter, Dana Marie Pietranico. To avoid confusion, father and son
will be referred to as Senior and Junior, and Ms. Pietranico will
be referred to by her given name. Senior and Dana Marie testi-
fied at the hearing, as did John Denegall, who testified he had
been the Superintendent, Office Manager and Vice President
for Nico, and now did the same for City Wide. Denegall was
stipulated to be the custodian of records for both Nico and City
Wide and also testified in that capacity. (Tr. 25.) Respondents
were represented by the same counsel.

2 In its answer, Respondent also included affirmative defenses re-
lating to the Union’s “unclean hands” and other unspecified acts and
omissions by the Charging Party which allegedly bar relief. As I found
no credible evidence of such conduct on the part of the Union here, I
dismiss those defenses.
3 Respondent’s brief was filed one day late due to an internal admin-
istrative problem. When it was unable to obtain the consent of all
parties for its late submission, Respondent filed a Request to Accept
Post-Hearing Brief with a supporting Affidavit of Counsel, and by
Order dated February 7, 2018, finding no prejudice to any of the other
parties, I granted its request.
4 Abbreviations used in this decision are as follows: “Tr.” for the
Transcript, “GC Exh.” for the General Counsel’s exhibits, “CP Exh.”
for the Charging Party’s exhibits, and “R. Exh.” for Respondent's Ex-
hibits. Specific citations to the transcript and exhibits are included only
where appropriate to aid review and are not necessarily exclusive or
exhaustive.
Nico Asphalt Paving, Inc.
Ownership, Control, Management, Supervision, Business
Purpose, Customers and Equipment
Nico was formed by Senior in 1996 as a concrete and mason-
ry business. Senior is its sole owner and at all relevant times
served as Nico’s President. Nico was located at 341 Nassau
Ave. in Brooklyn, a property owned by Rosal Realty, an entity
which in turn is also solely owned by Senior.
Junior served as Nico’s manager/superintendent and was in
charge of managing the workers in the field, where he spent
most of his time. Dana Marie never worked out in the field in
any capacity. She worked exclusively in the office, and at dif-
ferent times held the titles of Vice President, Secretary-
Treasurer and Bookkeeper. She earned $1000 per week in this
role.
Denegall began working for Nico in 1999, and was responsi-
ble for the day-to-day operations of Nico, including overseeing
the workers, trucks and maintenance, and speaking with clients.
He did not deal with labor relations, however, which he testi-
fied was handled exclusively by Senior and Junior.
It is undisputed that both Nico and City Wide are in the
business of permanent restoration of asphalt, primarily in Man-
hattan. It is also undisputed that Nico’s and City Wide’s largest
customer by far was Consolidated Edison (“Con Ed”), though
over its many years in business, Nico had contracted with vari-
ous other large companies to provide asphalt paving services,
and also performed mill and paving services from time to time
to smaller entities who called needing that service until approx-
imately February 2016 when Nico ceased actually performing
such work.
Besides Con Ed, other significant contracts which Nico had
included one with another electric company, Welsbech, and one
with Verizon. Unlike the ConEd contract, which is discussed
in more detail below, Nico’s contracts with Welsbech and Ver-
izon continued in effect after Nico ceased performing any as-
phalt work. The Welsbech contract to perform asphalt paving
work ran from September 1, 2015, to August 30, 2017. The
Verizon contract to perform outside plant asphalt paving ser-
vices ran from January 1, 2013, to December 31, 2016, and was
later extended for a year through December 31, 2017.
For both these contracts, City Wide began performing the
work in or about February 2016 in place of Nico under a Gen-
eral Services Agreement signed between Nico and City Wide.
Neither entity notified or bargained with the Union over the
signing of this General Services Agreement.
In addition to these large contracts, Nico performed asphalt
paving work for several other smaller contractors, including
Safeway, Denella, Triumph, Westmoreland, Network Infra-
structure and others. As with the Welsbech and Verizon con-
tracts, even after ceasing to perform any work in its own name
in February 2016, Nico continued to be the named contractor
for the work being done by City Wide on these contracts pursu-
ant to the General Service Agreement between them.
Nico owns a fleet of at least seventeen trucks and vehicles,5

5 Some of these trucks/vehicles are owned personally by Senior
and/or Nico Equipment, Inc. of which Senior is, again, the sole owner.
NICO ASPHALT PAVING, INC. 3
which continue to be maintained at its 341 Nassau Ave. proper-
ty, though Nico has not performed any asphalt work since City
Wide took over performing the work Nico had previously per-
formed. Nico historically obtained the asphalt it used for its
business from Willets Point Asphalt Corp. The asphalt was
provided on a credit line to Nico, which remained open after
Nico ceased performing any asphalt work.
Nico’s Relationship with Local 175
In or about May 2000, Nico applied to join the New York
Independent Contractors Association (“NYICA”) and became a
member of that organization, which represents members and
administers collective bargaining agreements. At that time,
NYICA had a collective bargaining agreement with the prede-
cessor union of Local 175, and that CBA has since been con-
tinuously renewed.
Indeed, Senior began serving as a member of NYICA’s
Board in or about 2004, and was actively involved with the
organization, including in its contract negotiations with Local
175. During that period, Nico became a signatory to successive
assumption agreements, voluntarily recognizing Local 175 as
the representative of its employees under Section 8(f) of the
Act and binding it to the terms of the NYICA/Local 175 CBAs.
Thereafter, in 2007, Local 175 petitioned for, and the NLRB
conducted, an election among the employees of Nico to deter-
mine whether they wished to be represented for purposes of
collective bargaining by Local 175. The Union won the elec-
tion and was certified as the collective bargaining representa-
tive of Nico’s employees under Section 9(a) of the Act. Nico
signed successive CBAs with Local 175, the most recent of
which running from July 15, 2014, to June 30, 2017.
It is undisputed that Nico had acknowledged the Union’s
representation of its employees and had been honoring the
terms of the parties’ CBA until the events at issue in this case.
It is also undisputed that Nico did not give the required notice
to terminate its NYICA agreement prior to the most recent
Local 175 CBA. And, under the evergreen clause in the appli-
cable bargaining agreements with the Union, unless terminated
in writing at appropriate times, those agreements automatically
renew themselves.
The Con Ed Contract
Nico had been performing work for Con Ed for many years
without any apparent incident, with Local 175 members per-
forming the work. Typically, Con Ed’s construction contracts
lasted three years, and its most recent contract with Con Ed had
been scheduled to expire on December 31, 2013. However,
Con Ed repeatedly extended that contract in one-year incre-
ments until at least December 31, 2017.6
In October 2014, Con Ed amended a portion of its construc-
tion contract to require, “unless otherwise agreed,” that contrac-
tors performing work for them have a collective bargaining
agreement with a union that belonged to the Building & Con-
struction Trades Council of Greater New York (“BCTC”).
Local 175 was not a member of the BCTC, but nevertheless,
Nico was able to continue performing Con Ed work unabated

6 It is not known whether an additional renewal took place after the
close of the hearing in this matter.
with its Local 175 represented workforce.
In early 2015, during negotiations with Con Ed for another
renewal of Nico’s contract, Senior was advised that Con Ed
was ready to enforce this provision and would not continue
giving Nico the work unless it had an agreement with a BCTC
union. Nico shared this information with the Union, and the
Union made some efforts to become a BCTC union but was
unsuccessful.
Nevertheless, Nico continued performing the Con Ed work
with Local 175 labor throughout the remainder of 2015 and
continuing into 2016. Indeed, at least as late as October 2015,
Nico was successfully negotiating another bid to extend its
contract with Con Ed while its employees were still represented
by Local 175.
City Wide is Formed
Ownership, Control, Management, Supervision, Business Pur-
pose, Customers, Operation, and Equipment.
Meanwhile, on December 15, 2015, around the time Nico
was set to begin work on another year under its ConEd con-
tract, City Wide was formed as a New York corporation. Alt-
hough Dana Marie nominally was and remained its sole owner,
City Wide’s Certificate of Incorporation lists Senior as the sole
director of the new corporation at its inception. Both Dana Ma-
rie and Senior were still working for Nico at this time. The
Union was neither informed of nor bargained with over the
creation of City Wide.
The address for process for City Wide was listed as 341 Nas-
sau Ave., the same Senior-owned building where Nico was
located. Indeed, City Wide’s operations were initially located
at 341 Nassau Ave., and it used the same phone number and
other office equipment as Nico. Denegall explained that Dana
Marie “was given access to the [Nico] phone number that has
been around for so long thoughout these two huge organiza-
tions so that there would be no disconnect” for the clients when
City Wide began providing the services Nico had previously
provided for them. (Tr. 73.)
Dana Marie testified that she used one room in Nico’s office
for her new business, City Wide, although that was contradicted
by Denegall, who acknowledged that he used the same office,
desk and computer as Vice President of City Wide that he had
used at Nico. City Wide also hired the same office employee
who had supported Denegall at Nico to be his administrative
assistant at City Wide.
Dana Marie testified that she formed City Wide with the in-
tention of creating a woman-owned business, though she had
no experience in the asphalt industry aside from her office role
with Nico. She holds the title of President of City Wide, but
also serves as its Secretary-Treasurer, as she had done with
Nico. She testified that she used her own savings to capitalize
the new business, which she estimated to be around $1 million,
though she struggled to explain where she obtained that money
and was evasive upon questioning about the subject.
For the first quarter of 2016, City Wide paid Dana Marie, its
owner and president, the sum of $5000. It is unclear whether
that period accounts for 4 weeks or 5 weeks. In that same quar-
ter, City Wide paid Junior, its superintendent/engineer, the sum
of $12,480. City Wide paid Senior, who purportedly did not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
work there or have any ownership interest in the company, the
sum of $20,000. Dana Marie testified that City Wide continues
to pay Senior $20,000 per month.
Respondent maintains that Senior was not employed by City
Wide and had no official role with the new entity. However, it
is not disputed that Senior is paid $20,000 per month by City
Wide, and it is not disputed that Senior signed as “Principal” on
behalf of City Wide a Form of Labor and Material Payment
Bond that permitted City Wide to commence working (GC
Exh. 34) and signed as “President” a Notice to Proceed agree-
ment with Con Ed to begin performing what would become
City Wide’s largest contract. (GC Exh. 16). It is also not dis-
puted that it was Senior, and not Dana Marie, who responded to
reports of potential labor unrest that initially ensued at the yard
after it was announced that City Wide was taking over for Nico.
As Superintendent/Office Manager of City Wide, Denegall’s
duties were essentially unchanged from what they were at Nico,
overseeing the workers and communicating with the same cli-
ents as he had when he was employed by Nico. Junior was
identified by Denegall as a superintendent/engineer at City
Wide but having the same duties he had when he was a manag-
er/superintendent at Nico.
City Wide subsequently moved its operations across the
street to 330 Nassau Ave., a building owned by another Senior-
owned entity, RoSal Realty. This location historically had also
been used by Nico to store equipment, and to this day Nico
trucks are still parked in the yard at 330 Nassau Ave. There is
no evidence of any leasing arrangement between the two enti-
ties relating to the use or storage of these Nico trucks.
A sizeable majority of the former Nico employees—at least
19 of 28—became City Wide employees in the last week of
February 2016, which was City Wide’s first week of payroll.
As employee and Union President Gus Seminatore testified,
and as Dana Marie acknowledged, those employees simply
changed their union books from Local 175 to Local 1010 and
kept working as if nothing had changed.
City Wide does not own any trucks. It purports to rent the
trucks which Nico had previously used from the Senior-owned
Nico Equipment, Inc., though there is also no written agree-
ment between those two entities evidencing a formal business
arrangement to do so.
Nor is there any written agreement evidencing that City
Wide ever paid Nico for the asphalt it used to perform work on
Nico jobs. Dana Marie acknowledged that City Wide uses
Nico’s credit line to obtain the asphalt needed to conduct its
work but was unaware how or whether City Wide paid Nico for
the asphalt. There is similarly no record of payment by City
Wide to Nico for the office furniture and equipment it took over
from Nico, or the business referral of the Con Ed contract that
passed all but seamlessly from Nico to City Wide.
In that regard, City Wide never applied for or negotiated a
contract to perform the ConEd work. Instead, upon its creation,
City Wide just began performing on what was essentially Ni-
co’s contract, but now pursuant to a new purchase order in City
Wide’s name, signed by Senior on February 15, 2016 as its
“President.” Earlier, on February 8, 2016, Senior had signed a
Form of Labor and Material Payment Bond worth $32,750,000
on behalf of City Wide as its “Principle.”
Dana Marie did not know whether City Wide had ever pro-
vided any financial statement to ConEd, or why the insurance
bonding company would give a bond to City Wide, a company
with no prior work history. She also was unaware whether City
Wide had ever provided any information at all to ConEd, other
than the purchase order signed by her father, to secure the mul-
ti-million-dollar bid (formerly Nico’s) that it began servicing in
February 2016.
City Wide Takes Over for Nico and Refuses to Recognize
Local 175
On January 18, 2016, City Wide entered into a collective
bargaining agreement with Local 1010. At that time, City
Wide had not yet commenced operations, and had not yet hired
any employees. Significantly, Denegall, who accompanied
Dana Marie to the meeting at which this CBA was signed, was
also not yet employed by City Wide. Rather, he was at that
time still employed by Nico.
On February 12, 2016, Nico held a meeting with its employ-
ees at 341 Nassau Ave. in which Junior informed the employ-
ees:
“if you belong to Local 175, that you can’t work here no more
because they don’t allow 175 to do the work for Con Edison,
because you have to belong to the building trades. And so if
you want to continue working here, you have to join Local
1010.”
(Tr. 286.)
Those employees who agreed to join Local 1010 were per-
mitted to continue working for City Wide. Those who re-
mained in Local 175 were no longer permitted to work.7
On February 22, 2016, Nico entered into a General Service
Agreement with City Wide, subcontracting all of Nico’s re-
maining non-ConEd asphalt paving work. City Wide proceed-
ed to perform the work on these other contracts, for which Nico
remained the contracted party. It is undisputed that the Union
was neither informed of nor bargained with over the decision to
subcontract that work.
By letter dated August 17, 2016, Local 175 requested that
City Wide bargain with the Union with regard to its asphalt
paving employees performing the unit work that had previously
been performed by Nico. By letter dated August 23, 2016, City
Wide indicated it would not discuss the Union’s demands until
the Union could demonstrate it meet the requirements of the
ConEd contract, including by having membership in the BCTC.
Although aware of the creation of City Wide at that time, the
Union’s attorney, Eric Chaikin, testified that the Union was
unaware of the existence of the General Services Agreement
and the fact that City Wide was performing work for which
Nico was still the contracted party. Chaikin testified that it was
not until October 2016, during settlement negotiations involv-
ing an earlier charge, that the Union learned that information.
Prior to that, according to Chaikin, the Union had been advised

7 In a handful of cases, employees who had membership in a Team-
sters or Operating Engineers Union were permitted to work for City
Wide.
NICO ASPHALT PAVING, INC. 5
by Respondent that Nico was no longer in business. Respond-
ent provided no evidence to the contrary. The within charge
was filed shortly thereafter.
Credibility
Many of the above factual findings are based on uncontra-
dicted testimony, authenticated documentary evidence and
testimony against interest by Senior and Dana Marie, which
amounted to admissions. To the extent that Senior and Dana
Marie gave arguably exculpatory testimony for their actions, I
reject their testimony. I found both to be unreliable witnesses.
In particular, their mutual assertions about Senior’s alleged
non-involvement in the management of City Wide, in the face
of contradictory documentary evidence, severely undermined
their credibility.
Moreover, the explanations given for their allegedly separate
business ventures are implausible considering what they each
described as a close father-daughter relationship where one was
always seeking to help the other, and in light of the family as-
sistance they readily conceded to have given each other in their
various roles with these entities. As such, I do not credit their
testimony where it differs from my otherwise supported factual
findings.
I found Denegall to be similarly not credible. He was often
defensive, evasive, contradictory, and unable to recall im-
portant details in his testimony, including on significant mat-
ters. As one telling example, he testified that there was a gap in
time between when Nico ceased its operations and City Wide
commenced its own. This was an important fact that is not a
matter of confusing dates, but rather, goes to what was happen-
ing substantively at this critical time, and what the witness must
have known given his position with both companies.
Denegall’s testimony was also specifically belied by the
companies’ own payroll records which demonstrated that there
was no gap at all in what was essentially a seamless continua-
tion from one entity to the other. It was further undermined by
the revelation that Nico had not actually ceased operations, but
rather, had merely “subcontracted” the entirety of its remaining
work to City Wide.
I found Chaikin and Seminatore to be credible witnesses.
Though their interests were obviously aligned with the charging
party, I found both of their demeanors to be honest and straight-
forward. In particular, I found Chaikin’s testimony regarding
what he knew and when he knew about the relationship be-
tween Nico and City Wide to be both consistent and persuasive.
Anaylsis
The Supreme Court has long-recognized that the operation of
a prior enterprise under a different name can, in certain circum-
stances, constitute a “disguised continuance” binding the new
company to the old company’s obligations under the Act.
Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106 (1942).
In determining whether an enterprise is a “disguised continu-
ance” or “alter ego” of another business, the Board examines
whether the entities share substantially identical management,
business purpose, operation, equipment, customers and supervi-
sion.
Other factors include common ownership or control, lack of
arm’s length dealings between the two entities and whether one
entity was formed or used to avoid union obligations under the
Act. No one factor is controlling and not all the indicia need be
present to find an alter ego relationship. Kenmore Contracting
Co., 289 NLRB 336, 337 (1988), enfd. 888 F.2d 125 (2d Cir.
1989), and cases there cited. See also U.S. Reinforcing, Inc.,
350 NLRB 404, 404–405 (2007).
Moreover, and significantly for this case, strict common
ownership is not a necessary requirement if there is a family
relationship that shows common control. El Vocero de Puerto
Rico, Inc., 357 NLRB 1585, 1585 fn. 3 (2011). Rather, the
Board has found an alter ego relationship in the absence of
common ownership where both companies were wholly owned
by members of the same family.
The Board developed its alter-ego doctrine precisely in order
“to prevent employers from evading obligations under the Act
merely by changing or altering their corporate form.” NLRB v.
Allcoast Transfer, Inc., 780 F.2d 576, 579 (6th Cir. 1986). And
because an alter ego is considered the same enterprise as the
related employer for purposes of the Act, the alter ego is bound
by the collective-bargaining agreement between the related
entity and its union. Midwest Precision Heating & Cooling,
Inc. v. NLRB, 408 F.3d 450, 458 (8th Cir. 2005), and is respon-
sible for the other entity’s unfair labor practices. Howard John-
son Co., Inc. v. Detroit Local Joint Exec. Bd., 417 U.S. 249,
259 fn. 5 (1974).
A. Nico and City Wide Were and Are Alter Egos
1. Common ownership, management, and supervision
Common ownership is a significant factor in alter-ego cases,
and the Board has found substantially identical ownership and
an alter ego relationship where the original entity and the newly
formed entity are owned by members of the same family, in-
cluding as here, parents and children. See Kenmore Contracting
Co., supra.; Rogers Cleaning Contractors, Inc., 277 NLRB
482, 488 (1985). The facts of this case overwhelmingly sup-
port that same finding.
As an initial matter, although Senior is undisputedly the sole
owner of Nico, and Dana Marie is technically the sole owner of
City Wide, I am not convinced that Dana Marie’s separate
“ownership” truly represents an arm’s length business transac-
tion. While she testified that she formed City Wide with the
intention of creating a woman-owned business, even Respond-
ent does not argue that to be the real reason City Wide was
created.
Moreover, Dana Marie testified that she used her own sav-
ings to capitalize the new business, which she estimated to be
around $1 million, but struggled to explain where she obtained
that money, and was evasive upon questioning about the sub-
ject. She also struggled to explain why Senior is paid $20,000
per month by City Wide while she, the supposed owner, is paid
no more than $4000 to $5000 per month, barely more than she
earned at Nico, and even less than her brother earns as City
Wide’s superintendent.
And finally, it is undisputed that it was actually Senior who
initially established City Wide in December 2015, incorporat-
ing the new business, and naming himself as its sole director.
Taken together, these factors call into question whether the two
entities really have two different owners. But, to whatever
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
extent they do technically have two different owners, the family
rationale used in Kenmore and Rogers supports a finding that in
fact, Nico and City Wide share substantially identical owner-
ship.
There is also ample evidence that the Pietranico family exer-
cised common control of both entities. While one entity is
owned and controlled by Senior and the other nominally owned
by his daughter Dana Marie, each worked in essentially the
same capacity for the other’s company—Senior initially han-
dling the most important matters to impact City Wide involving
contracting with Con Ed and dealing with labor relations for
both entities, while Dana Marie remained in the office dealing
with the finances and paperwork for both entities. Their level
compensation from one entity to the other further bolsters this
finding that their roles remained effectively unchanged.
Indeed, many of the facts that support a finding of alter ego
are barely in dispute regarding Respondent’s common man-
agement and supervision. The two entities admittedly shared
substantially identical day-to-day management, with Senior’s
and Dana Marie’s son/brother, Junior, providing the essential
operational management and supervision of both companies,
together with Denegall, and all three family members did at
least some work for both companies at the same time in Febru-
ary 2016 when operations were switching over from Nico to
City Wide.
Dana Marie was the bookkeeper/treasurer for Nico and per-
formed those same duties for City Wide despite holding the
title of President. Indeed, it was clear from the testimony that
Dana Marie did not actually exercise the full authority of that
position. Rather, her father continued to control important
executive functions, not the least of which was to execute the
company’s most important contract with what had been Nico’s
and now is City Wide’s largest customer, ConEd.
Thus, in these circumstances, it is not as significant that there
is a technical difference in ownership of these two entities, one
owned by a father and one by his daughter. Senior’s dealings
with City Wide’s primary customer, and with Local 1010, at a
time when he was still employed by Nico also support the find-
ing that there was common management. It is also clear from
remarks made by both Senior and Dana Marie that the family
members consider themselves as part of one enterprise.
Based on these facts, it is clear that Nico and City Wide had
substantially identical ownership, management and supervision,
all of which strongly support a finding of alter ego.
2. Same business purpose, operations, and equipment
Moreover, the facts of this case conclusively show that Nico
and City Wide share the same business purpose, operations and
equipment. It is undisputed that both entities are primarily
engaged in the business of providing asphalt paving services in
Manhattan and perform that work for almost exclusively the
same customers.
Senior had dealt with ConEd as the owner of Nico, and then
continued to deal with ConEd on behalf of his daughter for City
Wide. That relationship continued seamlessly from one entity
to the other, with the one very significant difference being that
Nico had actually bid for the work and gone through the neces-
sary and extremely detailed process to secure the ConEd con-
tract. By contrast, City Wide essentially stepped in to replace
Nico having undergone none of the ordinary and expected vet-
ting that ConEd had clearly required of its contractors as indi-
cated by the efforts Nico had to undergo to secure the contract
work.
Nor was ConEd the only customer that the two entities
shared. At its inception, City Wide had no other customers
besides those which had previously been Nico’s customers, all
of which essentially became City Wide’s own customers. They
also use many of the same suppliers. And, from the outset and
continuing to date, City Wide employed almost all of the for-
mer employees of Nico for the new company. As such, City
Wide’s operations were virtually unchanged from what had
been Nico’s.
With regard to their equipment, in addition to both entities
performing the same type of work, both used not only the same
type of equipment, but literally the same equipment, purported-
ly leased to City Wide from Nico or another Senior-owned
entity. City Wide also obtained the asphalt needed to perform
its business duties from Nico’s longtime supplier, and apparent-
ly using Nico’s account to do so. Thus, the operations, equip-
ment and business purposes of these two entities are essentially
identical.
3. Lack of an arm’s length relationship
In addition to these entities sharing common management,
ownership, supervision, business purpose, operations and
equipment, there is substantial evidence of a lack of an arm’s
length relationship in the many transactions between the two
companies, which is an additional factor to consider in making
an alter ego determination.
For example, these two entities maintained adjacent offices
at the same time and in the same building and City Wide en-
joyed the benefit of Nico’s phone line, furniture and computers.
Yet, there is no credible evidence that it paid Nico for any of
these benefits. There were also no records produced to support
a finding that the purported equipment leasing arrangement or
the acknowledged use by City Wide of Nico’s asphalt credit
line were the product of arm’s length dealings. Nor was there
any evidence that City Wide compensated Nico in any way for
the assistance in securing the Con Ed contract.
Indeed, when City Wide began its operations, it would have
needed a very considerable capital investment in order to begin
work, including for equipment, materials and labor. Yet, there
was no credible or documented explanation in the record for
where that investment came from, or precisely how much it
was, and I am left to conclude this was further evidence of a
lack of arm’s length dealings between the two entities.
4. Intent to evade the Act
Finally, I find there is substantial evidence that City Wide
was formed as a way to avoid Nico’s agreements with the Un-
ion and thus the Act’s bargaining requirements. Though argu-
ing against such a finding, Respondent essentially admits as
much. It’s primary argument is that City Wide was established
only to enable compliance with the Con Ed language by chang-
NICO ASPHALT PAVING, INC. 7
ing the union that represented its employees.8
Even accepting as true Respondent’s contention that City
Wide was formed only after Con Ed announced once and for all
that it was no longer going to permit contractors to perform its
work unless its employees were represented by a BCTC-
affiliated union, I find that by definition means City Wide was
formed to avoid dealing with the Union and to avoid bargaining
obligations under the Act.9
Moreover, to whatever extent Respondent’s motivation was
instead seeking to avoid economic losses that might result from
a potential inability to perform ConEd work, it was not privi-
leged to unilaterally establish an alter ego, without notifying
and bargaining with the Union over that in advance. The Board
does not permit an employer to avoid its obligations under the
Act even if facing a potential loss of customers.10
Taking all these facts together, it is clear that Nico and City
Wide share substantially identical management, business pur-
pose, operation, equipment, customers and supervision—
essentially every indicia of an alter ego. Moreover, these two
entities also exhibit other factors including common control,
lack of arm’s length dealings between the two entities and what
amounts to an admission that one entity was formed or used to
replace the duly elected collective bargaining representative
with a different union in violation of the Act.
B. City Wide Violated Section 8(a)(5) and (1) of the Act by
Refusing to Bargain with the Union and by Failing to Apply the
Collective Bargaining Agreement in Existence Between the
Union and Nico
The Board has held that the collective bargaining agreement
of an employer applies to its alter ego, as of the date of the alter
ego’s first use of bargaining unit employees. E. G. Sprinkler
Corp., 268 NLRB 1241, 1241 fn. 1 (1984). As such, because
City Wide was and is the alter ego of Nico, it is subject not only
to the bargaining obligations of Nico, but also to the continued
application of the bargaining agreement binding Nico. See
E.G. Sprinkler, cited above, 268 NLRB at 1244; A.D. Connor,
Inc., 357 NLRB 1770, 1785–1787 (2011); and Midwest Preci-
sion Heating & Cooling, Inc., 341 NLRB 435, 440 (2004),
enfd. 408 F.2d 450 (8th Cir. 2005).
It is undisputed that City Wide never recognized the Union
as the representative of its employees and never applied the
applicable Union agreement to the unit employees it employed,
beginning with the commencement of its operations in Febru-
ary 2016. Indeed, when the Union wrote to City Wide demand-

8 This is in direct conflict with Dana Marie’s testimony at trial that
she started the company for her own interests, “because I wanted to
start a woman-owned business.” (Tr 420).
9 Regardless, intent to evade the Act is not an essential component
to an alter ego finding. See Johnstown Corp., 313 NLRB 170, 171
(1993), remanded, sub. nom., Stardyne, Inc. v. NLRB, 41 F.3d 141 (3rd
Cir. 1994), and reaffirmed in 322 NLRB 818 (1997). It is merely one
additional factor to be considered.
10 The complaint alleges that Nico and City Wide are alter egos, or
alternatively, that City Wide is a successor to Nico. Because I find that
they are alter egos, I find it unnecessary to consider that alternative
argument. In addition, the complaint does not allege, nor does General
Counsel contend in its brief that the two entities are a single employer.
I therefore consider any such allegation waived.
ing recognition and requesting to bargain over wages, hours
and working conditions of City Wide’s asphalt paving employ-
ees, City Wide responded in writing that it would not do so.
It also cannot be disputed that Nico never timely terminated
the agreement it had with NYICA, which by its terms renewed
itself unless written notice of termination was given. Thus, that
agreement, and Nico’s agreement with the Union continued in
effect, and is binding on City Wide. City Wide’s refusal to
recognize and bargain with Local 175 violates the Act.
C. City Wide Violated Section 8(a)(2) and (1) of the Act by
Recognizing Local 1010.
An incumbent union is the exclusive collective bargaining
representative of the unit of employees it represents, and an
employer that is under an agreement with an incumbent union
may not grant recognition to a different union without violating
Section 8(a)(2). Advance Architectural Metals, Inc., 351
NLRB 1208, 1217 (2007). This prohibition also applies to the
alter ego of the employer. Citywide Service Corp., 317 NLRB
861 (1995).
Here, City Wide signed a collective bargaining agreement
with Local 1010 as part of the establishment of its operations in
January 2016, prior to even hiring any employees. Nico then
advised its employees in February 2016 that in order to contin-
ue working, they would have to join Local 1010, and City Wide
required those same employees to do so in order to work.
Because my findings show that Nico and City Wide were
and are alter egos, the Union’s prior bargaining agreement with
Nico remains valid and continues to apply to City Wide’s bar-
gaining unit employees. It follows that City Wide, as the alter
ego of Nico, was required to recognize Local 175, and Re-
spondents violated the Act when City Wide instead recognized
Local 1010 as the collective bargaining representative of its
employees.
D. Respondents’ arguments for why the Alter Ego Doctrine
Should Not Apply to Nico and City Wide Fall Short.
Respondent has not successfully countered the findings and
legal conclusions set forth above. Respondent argues that Nico
and City Wide cannot be alter egos or single employers because
they were never operating concurrently. As an initial matter,
that factual assertion is simply not true. The payroll records
produced at trial by Respondents unequivocally show that there
was overlap in the duties being performed on City Wide’s be-
half by multiple Nico employees, including by Senior, Dana
Marie and Denegall.
But, more importantly, it is irrelevant to the determination.
The Board has found entities to be alter egos whether they were
operating at the same time, or where one entity took over the
operations of another which ceased to operate. It is just such a
disguised continuance of a previously operating business that
the alter ego analysis is designed to prevent.
Respondent further argues that there was no attempt to con-
ceal or disguise the creation of City Wide, which is also not
true in multiple respects.11 Instead, Respondent maintains that

11 Indeed, I find the very fact that City Wide was created near the
end of 2015 by Senior as an entity to be wholly owned on paper by
Dana Marie, with no notice to the Union that was happening until Feb-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Senior’s hands were tied by the ConEd contract language,
which the Union was aware of, and was left no choice but for
City Wide to be created. While I can appreciate the challenge
that ConEd’s changing posture presented to Nico’s business,
the Board does not recognize a company’s financial challenges
as justification for ignoring its existing collective bargaining
relationships or agreements and forming a new entity. See Is-
land Architectural Woodwork, Inc., 364 NLRB No. 73 (2016),
enfd. 892 F.3d 362, 374 (2018). ConEd was not Nico’s only
customer, and Respondent was not privileged to unilaterally
create an alter ego to address the challenges created by
ConEd’s position.
Respondent also argues essentially that there was no real
harm done as a result of its actions because most of the Nico
employees continued working for City Wide under what it
maintains were substantially the same terms and conditions,
and suggests that this outcome was actually more favorable to
employees, who were able to continue working, than if City
Wide had not been created.
As an initial matter, I can find no case where the Board has
held that an alleged lack of harm is a valid defense to an alter-
ego allegation, and Respondents do not cite to any such prece-
dent. More importantly, there was unquestionably harm done
here to the employees who were discharged when they declined
to change their union affiliation, harm done to the Union funds
that were deprived of their contracted-for contributions, and
harm done to the collective bargaining process where the em-
ployees’ duly-elected collective bargaining representative was
summarily replaced at the demand of Respondents.
Finally, Respondents argue that the facts do not support a
finding of alter ego, maintaining that the two entities are suffi-
ciently separate. For the reasons described above, the facts
here unmistakenly show that Nico and City Wide were and are
alter egos, that the Local 175 bargaining agreement is valid and
that it continues to apply to City Wide’s bargaining unit em-
ployees.
E. The Complaint is not Time-Barred by Section 10(b).
Respondent, joined by the Interested Party, raises the affirm-
ative defense that this matter is time-barred by Section 10(b)
because the instant charge was not filed until October 20, 2016,
more than six months from the date the Union learned of City
Wide’s creation, and because a prior charge, timely filed, had
been withdrawn.
Section 10(b) of the Act states that “no complaint shall issue
based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such
charge is made.” The 10(b) period begins to run when the ag-
grieved party receives actual or constructive notice of the con-
duct that constitutes the alleged unfair labor practice. United
Kiser Services, 355 NLRB 319 (2010). The Respondent bears
the burden of proving this defense.
Significantly, a party may not rely on a 10(b) defense where
there has been fraudulent concealment of material facts. That

ruary 2016 was clearly intended both to disguise and conceal it from
the Union.
test requires that “(1) deliberate concealment has occurred; (2)
material facts were the object of the concealment; and (3) the
injured party was ignorant of those facts, without fault or want
of due diligence on its part.” Morgan’s Holiday Markets, 333
NLRB 837, 838 (2001), citing Fitzgerald v. Seamans, 553 F.2d
220 (D.C. Cir. 1977).
Here, Respondent repeatedly concealed multiple facts from
the Union, which the Union could not reasonably have known
until they were revealed to it. And, each time the Union be-
came aware of those facts, it filed new timely charges. This
began as early as the creation, in secret, of City Wide in late
2015, which was not revealed to the Union until February 2016,
whereupon the Union filed its initial charge objecting to the
creation of an alter ego. It continued with Respondent’s con-
cealment of Senior’s involvement with City Wide, which it has
continued even to date in its denials regarding the extent of his
participation in its creation and initial operations.
Most importantly, Respondent continued its concealment of
Nico’s ongoing business operations, performing asphalt paving
work for Verizon and Welsbhech, all the way until October 6,
2016. Prior to then, Respondent had never disclosed to the
Union that Nico was still conducting business through its Gen-
eral Services Agreement with City Wide. Indeed, it had at all
times maintained to the Union that Nico had gone out of busi-
ness. There was no evidence presented that the Union was
formally notified of Nico’s continued operations at any point
prior to those October 6, 2016 settlement discussions.
Upon learning of this previously concealed information on
October 6, 2016, the Union filed the within charge just two
weeks later on October 20, 2016, well within the 10(b) period,
which only begins to run upon the Union’s learning of the un-
lawful conduct. The charge included, for the first time, the
allegation that Nico was unlawfully subcontracting work to
City Wide pursuant to the newly revealed General Services
Agreement.
Moreover, I find that this timely-filed allegation is closely
related to the other allegations of the Complaint, which had
been the subject of previously-filed timely charges. The Board
holds that an otherwise untimely allegation which was first
raised timely-filed charge, including one which had been dis-
missed or withdrawn, will be considered timely if it is closely
related to the timely-filed charge. Redd-I, Inc., 290 NLRB
1115 (1988).
The Redd-I test for whether untimely allegations are “closely
related” to a timely filed charge is a three-part test which anal-
yses: (1) whether the untimely allegations involve the same
legal theory as the allegations in the timely charge; (2) whether
the allegations arise from the same factual circumstances or
sequence of events; and (3) whether the respondent would raise
the same or similar defenses to both allegations.
The circumstances here meet that test. The allegations of the
Complaint all involve the same alter ego theory, they all arise
out of the same sequence of events, and the respondent raises
essentially the same defense to all of the allegations, namely
that it was forced to take the actions it took because of the re-
quirements of ConEd’s contract.
As such, I find the Union’s charge was timely filed, and ac-
cordingly, I conclude that the Complaint is not time-barred.
NICO ASPHALT PAVING, INC. 9
CONCLUSIONS OF LAW
(1) Nico Asphalt Paving, Inc. and City Wide Paving, Inc.
were and are alter egos of each other.
(2) By failing and refusing to bargain collectively with the
Union as the exclusive bargaining representative of its employ-
ees, Nico Asphalt Paving, Inc., has violated Section 8(a)(5) and
(1) of the Act.
(3) By failing and refusing to apply the Nico bargaining
agreement that its alter ego, Nico Asphalt Paving, Inc. had and
continues to have with the Union, City Wide Paving, Inc. vio-
lated Section 8(a)(5) and (1) of the Act.
(4) By recognizing Local 1010 as the collective bargaining
representative of its unit employees, while still bound by the
agreement with Local 175, City Wide Paving, Inc. violated
Section 8(a)(2) and (1) of the Act.
(5) The above violations constitute unfair labor practices
that affect commerce within the meaning of the Act.
REMEDY
Having found that Respondents have engaged in certain un-
fair labor practices, I shall order them and their constituent
entities to cease and desist therefrom and to take appropriate
affirmative action designed to effectuate the policies of the Act.
Since Respondents have unlawfully failed to apply the terms
and conditions of employment under the applicable bargaining
agreement to its bargaining unit employees, it must make those
employees whole for any loss of earnings or benefits, including,
inter alia, making all delinquent contributions to the Union’s
benefit funds as provided for in the collective-bargaining
agreement, including any additional amounts due the funds in
accordance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7(1979). Respondents shall also reimburse affected
employees for any expenses resulting from the failure to make
contributions to the benefit funds, as set forth in Kraft Heating
& Plumbing, 252 NLRB 891 fn. 2 (1980), affd. 661 F.2d 940
(9th Cir. 1981).12
Such amounts shall be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest as prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). To the
extent that an employee has made personal contributions to a
fund that are accepted by the fund in lieu of the employer’s
delinquent contributions during the period of delinquency, the
Respondents will reimburse the employee, but the amount of
such reimbursement will constitute a setoff to the amount that
the Respondents otherwise owe the fund.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended13

12 In the event that lump sum payments are required to be made to
employees under this remedy, those payments must be made in accord-
ance with the requirements set forth in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016).
13 If no exceptions are filed as provided in Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Board’s Rules,
be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ORDER
The Respondents, Nico Asphalt Paving, Inc. and City Wide
Paving, Inc., and each of them, their officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to apply the terms of the collective-
bargaining agreement that Respondents entered into with Con-
struction Council 175, Utility Workers Union of America,
AFL–CIO (“the Union”) and failing and refusing to bargain
with the Union as the exclusive collective-bargaining repre-
sentative of their bargaining unit employees.
(b) Recognizing Local 1010 as the collective-bargaining
representative of their bargaining unit employees.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Honor and abide by the terms and conditions of their col-
lective-bargaining agreement with the Union and make whole
all bargaining unit employees for any loss of earnings and other
benefits suffered as a result of the unfair labor practices found
in this decision, in the manner set forth in the remedy section of
this decision.
(b) Make whole their employees for any expenses ensuing
from the Respondents’ failure to make required contributions to
the Union’s benefit funds and make whole the Union’s benefit
funds for losses suffered, in the manner set forth in the remedy
section of this decision.
(c) Compensate affected employees for the adverse tax con-
sequences, if any, of receiving lump-sum backpay awards, and
file with the Regional Director for Region 29, within 21 days of
the date such awards are fixed, either by agreement or Board
order, a report allocating the backpay awards to the appropriate
calendar year for each employee.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of monies
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at all of
its facilities, copies of the attached notice marked “Appen-
dix.”14 Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily
posted. In addition to the physical posting of paper notices,
notices shall be distributed electronically, such as by email,

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
posting on an intranet or an internet site, and/or other electronic
means, if the Respondents customarily communicate with their
employees by such means. Reasonable steps shall be taken to
ensure that the notices are not altered, defaced or covered by
other material. If the Respondents have gone out of business,
the Respondents shall duplicate and mail, at their own expense,
a copy of the notice to all employees and former employees
employed by Respondents at any time since December 15,
2015.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondents have taken to comply.
Dated, Washington, D.C. November 2, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain with
Construction Council 175, Utility Workers Union of America
(the Union) as the exclusive collective-bargaining representa-
tive of our employees in the bargaining unit by refusing to ap-
ply the terms and conditions of our collective-bargaining
agreement, including wage rates and benefit fund contributions.
WE WILL NOT in any like or related manner interfere with, re-
strain or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL honor and abide by the terms of our collective-
bargaining agreement with the Union, and WE WILL make whole
all bargaining unit employees for any loss of earnings and other
benefits suffered as a result of our refusal to apply the collec-
tive-bargaining agreement to all unit employees, plus interest.
WE WILL make all delinquent payments to the Union’s bene-
fit funds and WE WILL make you whole for any expenses ensu-
ing from our failure to make such payments, including any
additional amounts due to the funds on your behalf, with inter-
est.
WE WILL compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay awards,
and WE WILL file with the Regional Director for Region 29,
within 21 days of the date the amount of backpay is fixed, ei-
ther by agreement or Board order, a report allocating backpay
awards to the appropriate calendar years for each employee.
NICO ASPHALT PAVING, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29-CA-186692 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.