Great Lakes Diesel Co.

GREAT LAKES DIESE C. 324 Great Lakes Diesel Co. and International Union of Operating Engineers, Local 18-18C, 18RA, AFL-CIO, Petitioner. Case 8-RC-12035 August 19, 1980 DECISION AND DIRECTION BY' CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered the determinative challenged ballots in and objections to an election held February 20, 1980,' and the Acting Regional Director's order, relevant portions of which are at- tached, disposing of same. The Board has reviewed the record in light of the Employer's exceptions2 and brief, and hereby adopts the Acting Regional Director's recommen- dations regarding the Employer's and Petitioner's objections and his finding that the challenges to the ballots of Bill Brosos, Walter Cooper, M. Timure, Dave Bedell, G. Nyswaner, and A. Wolf raise sub- stantial and material questions of fact which may more appropriately be resolved after a hearing. Ac- cordingly, we shall direct that a hearing be held on the challenged ballots. DIRECTION It is hereby directed that a hearing be held before a duly designated hearing officer for the purpose of receiving evidence to resolve issues raised by the challenges to the ballots of Bill Brosos, Walter Cooper, M. Timure, Dave Bedell, G. Nyswaner, and A. Wolf. IT IS FURTHER DIRECTED that the hearing officer designated for the purpose of conducting the hear- ing shall prepare and cause to be served on the parties a report containing resolutions of the credi- bility of witnesses, findings of fact, and recommen- dations to the Board as to the disposition of the said issues. Within the time prescribed by the Board's Rules and Regulations, Series 8, as amend- ed, either party may file with the Board in Wash- ington, D.C., eight copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing same shall serve a copy thereof upon the other party and shall file a copy with the Re- ' The elrclion wals conducled puruanl t a Slipulllon for Crlifica- tlion Upon Conr ent Elctiolln the tall? ila, 18 ,ioie for. aind Ih a;galllt, the tetitilnTcer: here exre h challengcd hallol. a tliffieltrlt ntlnhr to affect the rult, I I the ahselice of c\ccptilon,, r c ;iit pl. pro J/r,il. the Aln g Re- gional )ireclor ' rctoii ti fdti;ll 1Ihl ti P'CIltOIltri r e auoetl it It, oh- JeCions he %sithdratlt he apprrosed We l fltll adopt hiIs order of h[nr- ing on the eliglhilitt of MN I intlire. [);sc kdcl, ( N sys. antr, lid A Wolf 251 NLRB No. 49 gional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the hearing officer. IT IS FURTHER DIRECTED that the above-entitled case be, and it hereby is, remanded to the Regional Director for Region 8 for the purpose of conduct- ing such hearing, and the said Regional Director be, and he hereby is, authorized to issue notice thereof. MEMBER PENEI.LO, dissenting in part: I agree that the Employer's objections should be overruled, inasmuch as it has not been shown that the Petitioner's act of challenging the voting eligi- bility of employees Brosos and Cooper interfered with the conduct of the election. However, I do not agree that the challenges to the ballots of those two employees raise issues which should be re- solved by a hearing, 4 since their voting eligibility was resolved by the Employer and the Petitioner pursuant to stipulation. The parties executed a written "Agreement on Voting Eligibility," which expressly provides that the parties intended the agreement to be a "final and binding resolution of all eligibility issues in- cluding supervisory eligibility issues." This agree- ment also provides that certain employees, includ- ing Brosos and Cooper, "have none of the authori- ty of a supervisor enumerated in Section 2(11) of the Act, which reads as follows." The full text of Section 2(11) follows this statement. At the election, the Petitioner challenged the ballots of Brosos and Cooper on the ground that they are supervisors. The Petitioner claimed that, after the execution of the Stipulation for Certifica- tion Upon Consent Election and the "Agreement on Voting Eligibility," it discovered evidence indi- cating that these two employees were possibly su- pervisors. The Acting Regional Director essentially concluded that the parties' agreement was not binding and determined that the issues raised by the challenges to these two ballots could best be resolved by a hearing. In Laymon Candy Company,5 I concluded that a properly worded Norris-Thermador list 6 concerning the voting eligibility of employees should be given binding effect by the Board. Such a list should state that "the listed individuals do not have or ex- ercise the statutory supervisory authority." 7 The ' adop id, l the order i,,sued h. the Regional I)re tor ill conluiillioll s ith hits report hcretn itastmiI l s , in s l cptlItis, hase eeti filed to tlte Ntini Rcgiotll D)lrctor' r eciO lllllltli Litatio thal fit healriI h lcldl t rctil the i suils t;LfCtI I i iallcnilg gt hie hillits o, lllr oihcr Itiisld ills . I idop1 that ' I) NI RIi 54 t(t172} \( , rrt -Ih riolir ( orp )rpaint I N R I t(I I l}5 ; e. ..'.n, ( il ( > ptri l. ntI N R 547 it 54 (1 72) GREAT LAKES DIESEL CO 32q 330 D)F.CISIONS OF NATI()NAL LABOR RELATIONS 3()ARI) purpose of such agreement is to "encourage expe- ditious resolution of questions concerning represen- tation."S The agreement executed by the parties in the in- stant case satisfies that criterion as it is a clear fac- tual stipulation, which goes so far as to include the full text of Section 2(11), that the individuals re- ferred to do not have or exercise statutory supervi- sory authority. Accordingly, I would give binding effect to the stipulation as resolving the voting eligibility of Brosos and Cooper and, thus, I find it unnecessary to provide for a hearing as to their challenges. Since that stipulation provides that they are not su- pervisors, I would overrule the challenges to their ballots. .id l 548 APPENDIX The Employer's objections basically assert that during the course of the election, the Petitioner challenged the ballots of Bill Brosos and Walter Cooper on the grounds that they are supervisors, notwithstanding the fact that both names appeared on the list of eligible employees contained in the Agreement on Voting Eligibility execut- ed by the parties, and that the Board agent conducting the election permitted the challenges by the Petitioner and did not count the ballots of Brosos and Cooper. A copy of the Agreement on Voting Eligibility is attached hereto as Exhibit I [Omitted from publication.] As set forth in the Agreement on Voting Eligibility, the parties agreed that M. Timure, Dave Bedell, G. Nys- waner, and A. Wolf may vote "subject to challenge" in- asmuch as their eligibility was uncertain. The investiga- tion revealed that subsequent to the execution of' the Stipulation for Certification Upon Consent Election and the Agreement on Voting Eligibility, the Petitioner dis- covered evidence indicating that Brosos and Cooper were possibly supervisors, and communicated this posi- tion to the Employer. At the election, the Petitioner challenged M. Timure, Dave Bedell, . Nyswaner. A. Wolf, Bill Brosos, and Walter Cooper, on the basis of their alleged supervisory status. Recently, the Board adopted the conclusion of a Re- gional Director that "the final issue of eligibility is to be decided upon the facts surrounding that voter's status rather than upon the finality of the agreement between the parties." Judd Valve Co., Inc., 248 NLRB 94. In Judd Valve Co.. Inc., supra, there was an issue relating to the challenge of an individual as a supervisor despite a Norris 17ermnadorl agreement as to his eligibility. The Employ- er, in the instant case, has failed to establish that the Peti- tioner's challenging of the ballots of Brosos and Cooper destroyed the laboratory conditions of the election proc- ess, in any way affected the results of the election, or prevented the employees' expression of a free choice in the election. Accordingly, based on the above. I recommend that the Employer's objections be overruled. /he Challenges The Petitioner, as stated above, challenged the ballots of Bill Brosos, Walter Cooper, M. Timure, Dave Bedell, G. Nyswaner, and A. Wolf on the grounds that they are supervisors as defined in the Act. The investigation revealed that the challenges to the ballots of the six named individuals raise substantial and material questions of fact which may more appropriately be resolved after a hearing. Accordingly, I shall order that the issues raised by these challenges be resolved at a hearing before a hearing officer to be designated by the Regional Director. ,¥rrr - lihrtdlr,( 'orulnotl. I I' N R I 0(l I 1SS)