NIELSON CONSTRUCTION, (2013)
Date | 03 January 2013 |
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
REGION 27
NIELSON CONSTRUCTION,
Employer,
and Case 27-RD-092548
EDWARD L. WALLS,
Petitioner,
and
TEAMSTERS, LOCAL No. 222,1
Union.
REGIONAL DIRECTOR’S DECISION AND ORDER
On November 5, 2012,2 Edward L. Walls (Petitioner), filed a petition under
Section 9(c) of the National Labor Relations Act (Act), as amended, seeking to decertify
Teamsters, Local No. 222 (Union) as the bargaining representative of a unit described
only as “drivers”employed by Nielson Construction (Employer). On December 12, a
hearing officer of the Board conducted a hearing on this petition. At hearing, the parties
stipulated to a unit description of:
All full-time and regular part-time employees employed by the Employer
who perform combustible waste disposal and fugitive dust control services
work at the PacifiCorp Huntington and Hunter Power Plants in Emery
County, Utah; EXCLUDING all office clerical employees, managers,
guards, and supervisors as defined in the Act.
1 The name of the Union appears as corrected in Board Exhibit 2.
2 All dates are in 2012 unless otherwise specified.
2
All of these employees were formerly employed by Ashworth Transfer (Ashworth) and
were represented by the Union, but are now employed by the Employer. Following the
hearing, the parties submitted briefs.
The single issue addressed here is whether processing of the petition is barred
by the Employer’s status as a successor employer of the represented employees. The
Union argues that the petition is barred under the Board’s recent holding in UGL-
UNICCO Serv. Co., 357 NLRB No. 76 (2011), which reinstated the “successor bar”
doctrine. The Employer and Petitioner take the position that the Employer is a
construction-industry employer and that, therefore, the holding of UGL-UNICCO does
not apply. The Employer also contends that while Ashworth was essentially a trucking
company, it is primarily a construction company, and that it did not grant recognition to
the Union as a Section 9(a) majority representative of the employees in the stipulated
appropriate unit. Rather, according to the Employer, it granted recognition to the Union
as a minority representative under Section 8(f) of the Act.3
Under Section 3(b) of the Act, the Board has delegated its authority in this
proceeding to me. As I discuss further below, I conclude that the bargaining unit
employees are not substantially engaged in construction work, that the Employer is a
successor employer and, under current Board law, this petition is barred for a
reasonable period of time pursuant to the successor bar doctrine.
3 Although the issue need not be decided in this proceeding since I am determining that the bargaining
unit is not primarily engaged in the construction industry and that there is a successor bar to the
processing of this petition, inasmuch as the record reveals that the Employer granted recognition to the
Union under Section 8(f), if the bargaining unit performed primarily construction work, such recognition
might arguably pose a bar for a reasonable period of time under the “recognition bar” doctrine. Casale
Industries, 311 NLRB 951 (1993).
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