J. Olson Machine Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 25, 1972196 N.L.R.B. 598 (N.L.R.B. 1972) Copy Citation 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. Olson Machine Co., Inc . and International Brother- hood Of Teamsters, Chauffeurs, Warehousemen and Helpers Of America , Industrial Division, Local 970, Petitioner . Case 18-RC-8758 April 25, 1972 DECISION AND DIRECTION BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 18 on September 15, 1971, an election by secret ballot was conducted in the above-entitled pro- ceeding on October 6, 1971, under the direction and supervision of the Regional Director, among the em- ployees in the stipulated appropriate unit. Upon the conclusion of the election, a tally of ballots was fur- nished the parties in accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended. The tally of ballots shows that of ap- proximately 40 eligible voters, 20 cast ballots for, and 18 cast ballots against, the Petitioner. Two ballots were challenged. Inasmuch as the challenged ballots were sufficient in number to affect the results of the election, the Regional Director conducted an investigation of the challenges and thereafter, on November 30, 1971, is- sued and served upon the parties his Report and Rec- ommendation on Challenged Ballots. In his report, the Regional Director recommended that the chal- lenge to the ballot of Arthur Thole be sustained and that the challenge to the ballot of David Norbeck be overruled. The Employer filed timely exceptions to the Re- gional Director's report and a brief in support of its exceptions, limited to the challenge to the ballot of Arthur Thole. Thereafter, the Petitioner filed a brief in answer to the Employer's exceptions and support- ing affidavits. The Employer then filed a document entitled Objections to Affidavits Submitted by Peti- tioner, accompanied by affidavits. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees constitute a unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.: All production and maintenance employees at the Employer's plant in Minneapolis, Minnesota, including the truck driver, shipping and receiving employees, and working foreman in deburring and the night shift, excluding office clerical em- ployees, engineering department employees, guards, the working foreman in inspection, and supervisors as defined in the Act. The Board has considered the Regional Director's report, the exceptions, and the briefs and hereby adopts the Regional Director's recommendations only to the extent consistent with our Decision herein. In The Tribune Company,' we set forth a two-fold test to be utilized in stipulated-unit cases such as the instant case. The Board must first ascertain the par- ties' expressed intent with regard to the disputed em- ployee and then determine whether this intent is inconsistent with any statutory provision or estab- lished Board policy. Here, the language of the stipula- tion clearly provides for the inclusion of Thole, the only working foreman in deburring. In his report, however, the Regional Director, citing Tribune, con- cluded that "[w]hile Thole may not meet the defi- nition of a supervisor within the meaning of the Act . Thole's employment interests are more closely allied with those of management than with the em- ployees in the unit and that his inclusion in the unit contravenes well established Board policy." Based on this rationale, the Regional Director recommended that the challenge to Thole's ballot be sustained. While we concur with the Regional Director's con- clusion that Thole is not a supervisor, we disagree with his conclusion that Thole's employment interests are closely allied with management. The facts show that, prior to his employment with the Employer, Thole and the two sole stockholders of the Employer formed Micro, Inc., a corporation which specialized in polishing bullet molds. Micro discontinued its busi- ness in 1969 due to a decline in defense spending and only the corporate structure and some assets presently exist. Micro has sublet some equipment it used to the Employer for a monthly rental of $250. We find no conflict of interest or any "alliance" with manage- ment growing out of this past history and one current rental transaction which would preclude Thole's in- clusion, at this time, in the bargaining unit. Thole commenced his employment with the Em- ployer in November 1969 and the next spring became a working foreman in deburring. Although he has five employees under him, the record reveals that he acts as a leadman. He regularly attends meetings of man- ' 190 NLRB No. 65. 196 NLRB No. 89 J. OLSON MACHINE CO., INC. 599 agement and supervisors at which immediate produc- tion goals and priorities are determined. Even though Thole does attend this limited type of production-oriented management meeting, we are satisfied, on the record as a whole, that he does not participate to any substantial degree in the formula- tion or effectuation of the Employer's general man- agement policies. We therefore find that his inclusion within the unit pursuant to the parties' stipulation does not violate any statutory provision or settled Board policy, and we shall overrule the challenge to his ballot .2 2 In the absence of exceptions thereto, the Board adopts, pro forma, the Regional Director's recommendation that the challenge to the ballot of David Norbeck be overruled. Accordingly, we shall direct that the Regional Di- rector for Region 18 open and count the ballots cast by Arthur Thole and David Norbeck and take such further action as may be appropriate in the circum- stances. DIRECTION It is hereby directed that the Regional Director for Region 18 shall, pursuant to the Rules and Regula- tions of the Board, within 10 days from the date of this Direction, open and count the ballots of Arthur Thole and David Norbeck and take such further action as may be appropriate in the circumstances. Copy with citationCopy as parenthetical citation