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).