J. Olson Machine Co., Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1972

196 N.L.R.B. 598 (N.L.R.B. 1972)

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.