Copier Care Plus

National Labor Relations Board - Board Decisions

Oct 20, 1997

324 N.L.R.B. 785 (N.L.R.B. 1997)

785
324 NLRB No. 127
COPIER CARE PLUS
1 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
2 The relevant portion of the hearing officer’s report is attached.
3 For example, in Mt. St. Joseph’s Home for Girls, 229 NLRB
251, 252 (1977), the Board dismissed a petition in a one-person unit
of social workers, on the grounds that the employer ‘‘does not intend
to employ more than one such social worker at a given time.’’ The
Board cited, inter alia, Crescendo Broadcasting, Inc., 217 NLRB
697, 698 (1975), an unfair labor practice case which applied the
principle that an employer can only refuse to bargain if the unit con-
sists permanently of one employee.
Patrick H. Dulin d/b/a Copier Care Plus and Inter-
national Brotherhood of Teamsters, Local 959,
AFL–CIO, Petitioner. Case 19–RC–13391
October 20, 1997
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
The National Labor Relations Board has considered
objections to an election held May 30, 1997, and the
hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 1
ballot for the Petitioner, 0 ballots against the Peti-
tioner, and no challenged ballots.
The Board has reviewed the record in light of the
exceptions and brief, has adopted the hearing officer’s
findings1 and recommendations, and finds that a cer-
tification of representative should be issued.
In his report, the hearing officer recommended that
the Employer’s objections be overruled, finding that
the Employer had not shown that the unit had been
permanently reduced to one employee.2 In adopting the
hearing officer’s findings and recommendations, we
agree with his statement that in deciding whether a
bargaining unit consists of only one employee, it is the
permanent size of the unit that is controlling. That
principle is applicable, and has been followed, in rep-
resentation cases.3
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for International Brotherhood of Team-
sters, Local 959, AFL–CIO and that it is the exclusive
collective-bargaining representative of the employees
in the following appropriate unit:
All sales employees and service technicians em-
ployed by the Employer at its Fairbanks, Alaska
location; but excluding all other employees, office
clerical employees, guards and supervisors as de-
fined in the Act.
APPENDIX
HEARING OFFICER’S REPORT ON OBJECTIONS
AND RECOMMENDATION
The Employer objected to the results of the election based
on the assertion that at the time of the election the appro-
priate unit consisted of one employee. The Board has long
recognized the Act does not empower the Board to certify
a one employee unit. Luckenbach Steamship Co., 2 NLRB
192 (1936).
At the time the petition was filed in this matter (April 25),
there were three employees in the appropriate unit, Daniel
Voorhis, Keven Curley, and Stan Stenberg. Stenberg’s last
day of employment was April 28; Curley was terminated on
May 19; and on May 2, Adam Christianson started work. A
Stipulated Election Agreement was approved on May 13, and
the election was held on May 30. Shortly after the election,
on June 2, David Nordin was hired.
Given this overall scenario, the Employer’s objection as-
serts that on the day of the election there was a one em-
ployee unit. The Employer contends that Christianson was a
temporary summer employee and not part of the unit and
Nordin is a supervisor within the meaning of Section 2(11)
of the Act and therefore not part of the unit, leaving only
Voorhis as an employee.
This overall set of facts gives rise to several legal ques-
tions relating to one employee units. In applying the one em-
ployee rule, it is the permanent size of the unit, not the num-
ber of actual incumbents employed at any given point in time
which is controlling. Mount St. Joseph’s Home for Girls, 229
NLRB 251 (1977). The burden of proof is on the employer
to show that a reduction in size is a permanent reduction, not
merely a temporary happenstance occasioned by personnel
shifts or employee turnover. Borden Co., 127 NLRB 304
(1960); and Crispo Cake Cone Co., 190 NLRB 352 (1971),
enfd. 464 F.2d 233 (8th Cir. 1972).
. . . .
I find Nordin not to be a supervisor at the current time
based on his lack of authority under any of the traditional
indicia and he should be included in the unit. Since I have
found Christianson not to be in the unit and Nordin [as well
as Voorhis] in the unit, I cannot conclude the appropriate
unit in this matter to be a permanent one employee unit and
I recommend overruling the objections and certifying the
election results.
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