Jack B. Parson Construction Co., Inc.

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