Jack B. Parson Construction Co., Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1971

194 N.L.R.B. 293 (N.L.R.B. 1971)

JACK B. PARSON CONSTRUCTION COMPANY 293
Jack B. Parson Construction Company, Incorporated,
Employer-Petitioner and General Teamsters, Can-
nery Workers Food and Merchandise Handlers,
Local Union No. 976. Case 27-UC-25
November 22, 1971
DECISION ON REVIEW
13Y CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 9, 1971, the Acting Regional Director for
Region 27 issued a Decision and Clarification of
Bargaining Unit in which he, contrary to the Employ-
er-Petitioner, concluded that transport driver Carl
Jensen should be included in the unit as established in
the contract. In accordance with Section 102.67 of the
National Labor Relations Board's Rules and Regula-
tions, Series 8, as amended, the Employer-Petitioner
filed a timely request for review of the Acting
Regional Director's Decision on the ground that the
inclusion of said employee is contrary to well-estab-
lished Board precedent. By telegraphic order dated
September 8, 1971, the Board granted review. There-
after, both parties filed timely briefs on review.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has considered the entire record in this
case, including the briefs of the parties, and makes the
following findings:
The Employer, a Utah corporation, has been
engaged in highway construction since 1952. Its
principal place of business is Odgen, Utah, with a
maintenance shop and storage yard located at
Smithfield, Utah. It has various projects spread over a
five-state area consisting of the States of Utah, Idaho,
Wyoming, Nevada, and Colorado.
On November 5, 1969, the Employer executed a
short form agreement wherein it agreed to be bound
by a 3-year contract which the Utah chapter, of the
Associated General Contractors (AGC), and the
Union had previously entered into effective July 1,
1969.2 This contract describes the unit as all employ-
ees "employed in the State of Utah in the perform-
ance of all construction work." The contract contains
wage rates for a transport driver classification and
provides for overnight expenses to be paid to these
drivers. The Acting Regional Director, relying on the
above contract provisions and the fact that the
contract provisions are applied to transport drivers
employed by other members of the AGC, included
the Employer's transport driver, Jensen, in the
contracted unit. We do not agree.
The record shows that Jensen has been regularly
employed as the Employer's only transport driver
since 1952. He works full time, is paid on a salary
basis, receives fringe benefits common to noncon-
struction employees, including profit sharing, and
performs no construction work at the jobsites, in fact
he spends very little time at the jobsites. During the
off-season for construction work, he works at the
Employer's Smithfield facility doing maintenance and
shop work alongside nonconstruction employees, who
are not covered by the contract. Although Jensen is
primarily engaged in hauling equipment and supplies
from site to site for the Employer and its related
companies, he is currently spending only about 10
percent of his time hauling equipment in the State of
Utah, which is the stated area of contract coverage.
On the present record, we find, contrary to the
Acting Regional Director, an insufficient basis to
clarify the unit so as to include Jensen therein.
Accordingly, the petition herein is hereby dismissed.
i As the parties are entitled to file briefs with the Board after review has 2 The Employer subsequently on February 23, 1970 , authorized the
been granted, and as the Union 's brief was received within the prescribed AGC to act as its agent, in all collective-bargaining negotiations within its
time, the Employer's motion to strike is hereby denied . jurisdiction.
194 NLRB No. 43