Desert Palace, Inc. d/b/a Caesar's Tahoes

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1096 (N.L.R.B. 2002)

1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Desert Palace, Inc., d/b/a Caesars Tahoe and Interna­
tional Union of Operating Engineers, Stationary
Local 39, AFL–CIO. Case 32–RC–4878
August 1, 2002
DECISION AND ORDER REMANDING TO THE
REGIONAL DIRECTOR
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
The National Labor Relations Board, by a three-
member panel, has considered a determinative challenge1
to an election held June 1, 2001,2 and the hearing offi­
cer’s report recommending disposition of it. The elec­
tion was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 19 for and 18
against the Petitioner, with one challenged ballot.
On June 14, the Regional Director issued a Report on
Challenged Ballots and notice of hearing, finding that the
challenge to the ballot of emp loyee Kimbrough Maier
raised substantial and material issues of fact and ordering
that a hearing be conducted. Pursuant to that order, a
hearing was conducted on July 11. The hearing officer
recommended that the challenge to Maier’s ballot be
sustained, and that a certification of representative issue.
The Employer filed exceptions to the hearing officer’s
report.
The Board has reviewed the record in light of the Em­
ployer’s exceptions and brief, and adopts the hearing
officer’s findings, conclusions, and recommendations
only to the extent consistent with this decision.
Background
The Employer operates a hotel and gaming casino in
Stateline, Nevada. Petitioner (or Union) filed a petition
seeking to represent certain employees employed in the
Employer’s engineering department. The parties stipu­
lated to an election in the following unit:
All full-time and regular part-time Facility Mainte­
nance Technicians I, II, and III and Outside Mainte­
nance I and II employed by the Employer in the Engi­
neering Department; excluding all office clerical em­
ployees, guards, and supervisors as defined in the Act.
The Union challenged the ballot of employee Maier, who
is the engineering coordinator. The Union contended
that Maier should be excluded from the unit because: the
engineering coordinator position is not included in the
bargaining unit; Maier performs clerical work, not engi­
neering work, and thus does not share a community of
1 The Petitioner filed objections to the election, but withdrew those
objections prior to the hearing.
2 All dates herein are in 2001 unless otherwise specified.
interest with other bargaining unit employees; and Maier
is a supervisor. Conversely, the Employer contended
that Maier should be included in the unit because he:
shares a community of interest with other bargaining unit
employees, does not perform supervisory functions, and
is a dual-function employee.
The Hearing Officer’s Report
As stated above, the hearing officer recommended that
the Union’s challenge to Maier’s ballot be sustained, and
that a certification of representative be issued. The hear­
ing officer’s report rests on three conclusions.
First, the hearing officer found that, to the extent that
the express terms of the stipulation control, those terms
reflect an intent to exclude Maier from the bargaining
unit. The hearing officer noted that the stipulation ex­
cludes “office clericals,” and found that Maier’s “pri­
mary duties” consist of “office and/or plant clerical
work.”
Second, the hearing officer found that, assuming that
the majority of Maier’s work is nonunit clerical work
which would exclude him from the unit, it was necessary
to determine whether Maier should nonetheless be in­
cluded in the unit as a dual-function employee. In ana­
lyzing the dual-function issue, the hearing officer applied
the test enunciated in Berea Publishing Co., 140 NLRB
516, 518, 519 (1963): that an employee performing both
unit and nonunit work is eligible to vote if that employee
regularly performs duties similar to those performed by
unit employees for sufficient periods of time to demo n­
strate a substantial interest in working conditions in the
bargaining unit. Under this test, the hearing officer
found that Maier was not a dual-function employee.
Specifically, the hearing officer found that: Maier’s per­
formance of unit work was irregular and sporadic; the
bulk of bargaining unit work Maier performed (furniture
moving) was of a nonrecurring nature; and the other unit
work Maier performed was essentially to finish the unit
work that he had begun before being transferred to the
engineering coordinator position.
Finally, the hearing officer found that Maier was not a
supervisor. The hearing officer rejected the Union’s ar­
gument that Maier possessed the authority to responsibly
direct unit employees by virtue of his dispatching duties.3
Employer’s Exceptions
The Employer excepts to the factual assertions and re­
lated conclusions of law made by the hearing officer.
The thrust of the Employer’s argument is that: Maier
was hired to perform facility maintenance work; upon
transferring to the engineering coordinator position, he
3 The Union did not except to this finding.
337 NLRB No. 170
CAESAR’S TAHOE 1097
was assigned clerical responsibilities which comprise
about 2 hours of his average workday; and he is available
to perform, and does perform, facility maintenance work
the remainder of the time. The exceptions may be
grouped into the following arguments.
The Employer first argues that the hearing officer
erred in concluding that Maier should be expressly ex­
cluded from the unit as a “clerical employee.” The Em­
ployer contends that the hearing officer’s conclusion is
flawed because he failed to make an essential distinction
between “office clerical” and “plant clerical” functions.
Unlike office clericals, plant clericals are traditionally
included in production and maintenance units because
they share a community of interest with unit employees.
According to the Employer, to the extent that Maier per-
forms clerical functions, they are plant clerical functions
which are unit work, and which give Maier a community
of interest with other unit employees.
The Employer next argues that the hearing officer
erred in applying the dual-function test. The Employer
contends that Maier’s “clerical” duties, which consist of
dispatching, payroll, and very limited note-taking, are
plant clerical functions, and that Maier’s other duties are
facility maintenance work. Thus, argues the Employer,
the dual-function test, which applies to employees per-
forming both nonunit and unit work, is inapplicable here
because all of the work that Maier performs is unit
work.4 Instead, the applicable test is the community-of-
interest test, which the hearing officer failed to consider.
Regarding the stipulation itself, the Employer makes
alternative arguments. On the one hand, the Employer
argues that the stipulated unit is ambiguous as to the eli­
gibility of plant clericals. Under this argument, the Em­
ployer states that there is no extrinsic evidence from
which to discern the parties’ intent as to plant clericals,
and that the community-of-interest test applies.
On the other hand, the Employer argues that the stipu­
lation is unambiguous, and that Maier is eligible to vote
as the engineering coordinator because he performs fa­
cility maintenance work. Under this argument, the Em­
ployer argues that the stipulation is not tied to job de­
scriptions, and that the only possible reading of the stipu­
lation is to include all employees in the engineering de­
partment who perform facility maintenance work. If the
Board rejects this reading, the Employer argues that the
Board must look to extrinsic evidence regarding intent,
4 The Employer argues that, even if the dual-function test were ap­
plicable, Maier would be eligible under that test. The Employer states
that the hearing officer’s finding that Maier does not “regularly” and
“sufficiently” perform unit work underestimates the amount of time
Maier performs unit tasks and that, in any event, the Board does not
apply a bright-line percentage test.
which, in this case, supports the conclusion that Maier is
eligible to vote. Finally, the Employer argues that, if the
parties’ intent as to the engineering coordinator position
still cannot be discerned from the extrinsic evidence, the
Board must then apply the community-of-interest test.
The Employer argues that application of the traditional
community-of-interest test favors placing the position of
engineering coordinator in the bargaining unit.
For the reasons stated below, we find merit in the Em­
ployer’s exceptions.
Analysis
The Board has long held that, when resolving determi­
native challenged ballots in cases involving stipulated
bargaining units, its function is to ascertain the parties’
intent and then to determine whether this intent is con­
trary to any statutory provision or established Board pol-
icy. Northwest Community Hospital, 331 NLRB 307
(2000), citing Tribune Co., 190 NLRB 398 (1971). Re­
cently, the United States Court of Appeals for the D.C.
Circuit has followed this governing principle in applying
a three-prong approach to resolving stipulated unit cases
in Associated Milk Producers, Inc. v. NLRB, 193 F.3d
539 (D.C. Cir. 1999).
Under the D.C. Circuit’s three-prong test, the Board
must first determine whether the stipulation is ambigu­
ous. If the objective intent of the parties is expressed in
clear and unambiguous terms in the stipulation, the
Board simply enforces the agreement. If, however, the
stipulation is ambiguous, the Board must seek to deter-
mine the parties’ intent through normal methods of con-
tract interpretation, including the examination of extrin­
sic evidence. If the parties’ intent still cannot be dis­
cerned, then the Board determines the bargaining unit by
employing its normal community-of-interest test.
Associated Milk Producers essentially embodied the
approach generally taken, but not always expressly ar­
ticulated, by the Board in prior cases. We apply the As­
sociated Milk Producers three-prong analysis here, and
expressly adopt its test as a clear statement of the ana­
lytical approach to be followed prospectively in stipu­
lated unit cases. As explained below, we conclude that
the stipulation is ambiguous and that the parties’ intent
cannot be discerned by reference to extrinsic evidence.
Accordingly, we apply the community-of-interest stan­
dard to find that the engineering coordinator position
should be included in the bargaining unit.
1. The terms of the stipulated unit description
Applying the Associated Milk Producers analytical
framework, our first step is to examine the terms of the
stipulated unit description to determine whether it re-
solves the question of Maier’s eligibility to vote. Be-
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause the express language of the stipulation neither spe­
cifically includes nor specifically excludes the classifica­
tion of Engineering Coordinator, the parties’ intent with
regard to that position is unclear. R. H. Peters Chevrolet,
303 NLRB 791 (1991); Lear Siegler, 287 NLRB 372
(1987). Moreover, the failure to list a disputed classifi­
cation (here engineering coordinator) as an included clas­
sification does not establish that the parties clearly in-
tended to omit that classification. R. H. Peters Chevro­
let; Lear Siegler, above.5
Here, the hearing officer correctly noted “that the posi­
tion of engineering coordinator is not set forth expressly
in either the list of included or excluded classifications.”
The hearing officer also correctly noted that neither the
inclusions nor the exclusions contain any generic “all
other employees” language that arguably could reflect
the parties’ intent to either include or exclude the engi­
neering coordinator. Nonetheless, the hearing officer
found that, to the extent that the express terms of the
stipulation control, the stipulation reflected an intent to
exclude Maier from the unit. The hearing officer based
this conclusion on the language of the stipulation exclud­
ing “office clerical employees,” and on his determination
that Maier’s primary duties consist of “office and/or
plant clerical work.” We find this analysis flawed in
several respects.
First, contrary to the hearing officer, we do not believe
that the parties’ intent here can be determined from the
language of the stipulation. This stipulation neither spe­
cifically includes nor specifically excludes the Engineer­
ing Coordinator position. In accordance with R. H. Pe­
ters Chevrolet and Lear Siegler, above, we decline to
infer that the parties intended to exclude the Engineering
Coordinator from the unit because they failed to list that
position in the inclusions. We note, in fact, that the spe­
cific “classifications” of facility maintenance technicians
I, II, and III and outside maintenance I and II listed as
inclusions in the stipulation do not even mirror the actual
classifications used by the Employer.6 Because of this,
the applicability of the Board’s general rule in R. H. Pe­
ters Chevrolet and Lear Siegler, finds even greater sup-
port here. Thus, while it is clear that the parties intended
to include maintenance engineers and exclude office
clericals, the parties’ intent with respect to the engineer­
ing coordinator position is ambiguous.
5 We do not pass on whether the failure to list a classification as in­
cluded, coupled with an express exclusion of “all other employees,”
would warrant a contrary result.
6 As noted by the hearing officer, Petitioner’s Exh. 3, a list of all
employees in the engineering department, reflects that the Employer
employs 40 nonsupervisory unit employees in the classifications of
facility maintenance I, II, and III. For ease of reference, we will refer
to all three classifications generically as “maintenance engineers.”
Second, the hearing officer, having examined Maier’s
job duties, categorized him as an “clerical employee” and
then excluded him from the unit under the specific exclu­
sion for “office clericals.” We disagree with the hearing
officer’s conclusion and related rationale.
The hearing officer found that Maier’s “primary job
duties” consisted of “office and/or plant clerical work.”
We agree with the Employer that the hearing officer’s
analysis is flawed in that he failed to make a crucial dis­
tinction between office and plant clericals.7 We further
find that the facts of this case, correctly analyzed, support
the conclusion that Maier’s duties are much more akin to
those of a plant clerical than an office clerical employee.
The Board has long drawn a distinction between “plant
clericals” and “office clericals.” The distinction is rooted
in community-of-interest concepts, Cook Composites &
Polymers Co., 313 NLRB 1105, 1108 (1994), albeit it is
occasionally difficult to discern. Gordonsville Indus­
tries, 252 NLRB 563, 590 (1980), affd. 673 F.2d 550
(D.C. Cir. 1982), cert. denied 457 U.S. 1117 (1982), cit­
ing Pacific Southwest Airlines v. NLRB, 587 F.2d 1032,
1041 (9th Cir. 1978). Certain factors predominate in
Board decisions finding employees to be plant, rather
than office, clericals. “The indispensable and conclusive
element is that the asserted plant clericals ‘perform func­
tions closely allied to the production process or to the
daily operations of the production facilities at which they
work.’” Id. at 591, quoting Fisher Controls Co., 192
NLRB 514 (1971). Normally, plant clericals spend most
of their working time in the plant production area. The
test generally is whether the employees’ principal func­
tions and duties relate to the production process, as dis­
tinguished from general office operations.
The record demonstrates that Maier performs three du­
ties which are arguably “clerical” in nature: dispatching,
payroll, and note-taking. As found by the hearing offi­
cer, Maier’s dispatching duties consist of answering re-
quests for a maintenance engineer, determining which
engineer is qualified to handle the repair or problem, and
then sending that engineer to the appropriate location to
correct the problem. Such dispatching duties have been
found to be plant clerical in nature. Colonial Lincoln
Mercury Sales, 197 NLRB 54, 64 (1972), enfd. 485 F.2d
455 (5th Cir. 1973) (dispatcher who receives repair or­
ders and assigns work to mechanics on basis of who is
qualified to do work, or, in case of general repairs, in
accordance with availability, is plant clerical).8 Maier’s
7 Indeed, while ultimately excluding Maier as an office clerical em­
ployee, the hearing officer cited case law dealing with plant clericals.
8 See also Mosler Safe Co., 188 NLRB 650, 654 (1971); Minneapo­
lis-Honeywell Regulator Co., 115 NLRB 344, 346 (1956); Martin
Outdoor Advertising Co., 198 NLRB 1136, 1337 (1972) (employee
CAESAR’S TAHOE 1099
payroll duties include reviewing the employee sign-in
sheet, comparing this sheet to the computerized card
swipe records, recording overtime, inputting time-off
requests, and noting which employees are “off” that day.
Such duties have also been found to be plant clerical du­
ties. White Provision Co., 116 NLRB 1552, 1553 (1956)
(plant clerks who perform payroll duties are plant cleri­
cals).9 Finally, Maier is responsible for taking notes and
preparing minutes for both the biweekly construction
meetings and the monthly engineering meetings. These
are arguably the most “office clerical” of Maier’s duties.
However, the fact that clerical employees exercise some
secretarial skills is no obstacle to finding them to be plant
clericals, if other factors link them to the production
process and other production employees. Gordonsville
Industries, 252 NLRB at 591, citing Swift & Co., 119
NLRB 1556, 1567 (1958). Moreover, we note that these
last duties occupy only a very small portion of Maier’s
time.
Further, we find that the hearing officer’s characteriza­
tion of these three arguably clerical duties as Maier’s
“primary” duties is questionable. It appears that the
hearing officer made this characterization because the
record is unclear as to what Maier’s other duties really
are. Maier testified, without contradiction, that he only
spends about 2 hours per day performing his dispatching
and timekeeping duties. That obviously leaves about 5
hours per day (assuming about an hour for lunch and
breaks) unaccounted for. At the hearing, the hearing
officer directly questioned Maier about what he did the
other 5 hours per day. Maier’s response was that some
of that time was consumed by his note-taking duties, but
otherwise he was “out on the floor . . . checking on those
projects” (Tr. 185–186). Maier also testified that he of-
ten walked the hotel, checking on outside contractors to
see if there were any “engineering needs” that the Engi­
neering Department should address.10 Engineering Man­
ager Cage testified, however, that checking on outside
contractors was not one of Maier’s assigned job duties
(Tr. 222, 242).
Hence, there is some confusion on this record as to
what Maier’s assigned duties actually are since he trans­
ferred to the engineering coordinator position, but two
points are clear. First, the hearing officer found that
Maier, since becoming the engineering coordinator, has
who had daily contact with unit employees, distributed work orders and
assisted unit employees in filling out forms is a plant clerical).
9 See also Hamilton Halter Co., 270 NLRB 331 (1984) (collecting
timecards is plant clerical); Mosler Safe Co., 188 NLRB 650, 651
(1971) (timekeepers are plant clericals).
10 To the extent that Maier is wandering the hotel to check whether
contractors need help from the Employer’s maintenance engineers, he
is arguably performing an extension of his dispatching duties.
not been regularly assigned those preventative mainte­
nance or emergency dispatches which constitute the bulk
of the unit employees’ work. Second, the hearing officer
also found (when applying the dual-function analysis)
that Maier, since becoming the engineering coordinator,
has spent about 19 percent of his working time on carry-
over unit work or on work associated with the hotel’s
renovation project (which work is also assigned to unit
employees).11
On this record, then, while the scope of Maier’s as-
signed duties may not be certain, it is clear, we think, that
Maier cannot be excluded from the unit as an office
clerical. To the extent that Maier performs clerical du­
ties, we agree with the Employer that they are plant cleri­
cal in nature.12 To the extent that he performs other
work, it is, as discussed more fully below, unit work.
Thus, because we find that Maier’s duties are not “office
clerical” functions, we find that he does not fall under
that unit exclusion.
2. Extrinsic evidence of the parties’ intent
Having concluded that the stipulation is facially am­
biguous and that Maier’s duties do not exclude him from
the unit under the express exclusion for office clericals,
we turn to the second prong of the analysis. Here, the
only extrinsic evidence of intent contained in the record
is testimony by the parties, and the Employer’s submis­
sion of an Excelsior list which included Maier as an eli­
gible voter. As to the testimony, there is conflicting evi­
dence of intent. Engineering Manager Cage testified that
he intended to include Maier, while union representative
Frederick testified to the contrary and that, as soon as he
saw Maier’s name on the Excelsior list, he instructed his
secretary to register an objection.13 The Board has held
that such evidence of subjective intent is not a proper
consideration. White Cloud Products, 214 NLRB 516,
517 (1974). As to the Excelsior list, its submission “is of
little help in determining the intended scope of a pre-
11 The Employer excepts to the 19 percent calculation. Our review
of the record indicates that, indeed, this number may be low. However,
we agree with the Employer that the dual-function test is inapplicable;
thus, any error in this calculation is immaterial.
12 The Employer argues that the evidence does not support the hear­
ing officer’s finding that Maier is the replacement for the maintenance
department’s former secretary. We agree. The former secretary did
perform the dispatching, timekeeping, and note-taking that Maier per-
forms. However, there is no evidence as to what she did the remaining
5-6 hours per day. The record is clear that she performed no engineer­
ing functions. Unlike Maier, she was commonly referred to as the
engineering department director’s “secretary,” and reported to him,
rather than to Cage.
13 There was some very limited testimony by employee Ross. The
hearing officer never discussed or credited this testimony. Absent
some credibility determination by the hearing officer, we decline to
make findings based on this testimony.
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
election stipulation. The submission of the list has never
been held to preclude union ballot challenges since it is
required for the Union’s benefit.” NLRB v. Speedway
Petroleum, 768 F.2d 151, 157 (7th Cir. 1985).14 Accord­
ingly, we find that there is insufficient extrinsic evidence
of intent from which we can discern the parties’ intent.
3. The community-of-interest standard
Since we cannot discern the parties’ intent from the
language of the stipulation or from the ext rinsic evidence
before us, we must reach the final step of the analysis,
and apply our normal community-of-interest standard.
This approach to determining the bargaining unit is ap­
propriate when the intent of the parties cannot be dis­
cerned. Electrical Workers v. NLRB, 418 F.2d 1191,
1201 (D.C. Cir. 1969).
The general criteria used for determining units in other
industries, after weighing all the factors present in each
case, are also applicable to the hotel and motel industry.
These factors include distinctions in the skills and func­
tions of particular employee groups, their separate super-
vision, the employer’s organizational structure, differ­
ences in wages and hours, integration of operations, in­
terchange and contacts. The Board has often approved
separate units of maintenance employees in the hotel
industry. Omni International Hotel, 283 NLRB 475
(1987).
Applying community-of-interest factors here, we find
that the engineering coordinator position should be in­
cluded in the unit, and that Maier is thus eligible to vote.
Thus, the record evidence of Maier’s duties that are
“plant clerical” in nature, and his performance of bar-
gaining unit work, inescapably lead to the conclusion
that Maier shares a community of interest with the other
bargaining unit members.
As suggested earlier in this decision, to the extent that
Maier is a “plant clerical,” he should be included in the
unit. Historically, the Board has taken the position that
“plant clericals” are normally included in production and
maintenance units, while “office clericals” are excluded.
Gordonsville Industries, 252 NLRB at 590; Brown &
Root, Inc., 314 NLRB 19 (1994); Hygeia Coca-Cola
Bottling Co., 192 NLRB 1127, 1129 (1971). Thus, the
Board has stated that, in the absence of a bargaining his-
tory, the Board would include plant clericals in a produc­
tion and maintenance unit, in accordance with its policy
as to plant clericals. White Provision Co., 116 NLRB at
1555. Plant clerical employees are customarily included
14 See also Lear Siegler, 287 NLRB 372 (1987), where the Board
found (in the opposite situation from ours) that an employer’s failure to
include an employee on the eligibility list did not establish a clear intent
by the parties to exclude that position from the unit. The Board stated
that such occurrences could just as easily be explained as oversight.
in a production and maintenance unit because they gen­
erally share a community of interest with the employees
in the plantwide unit . Armour & Co., 119 NLRB 623,
625 (1957); Raytee Co., 228 NLRB 646 (1977).
The unit here is comprised of maintenance engineers,
and is thus a maintenance unit. For purposes of placing
plant clericals in a unit, we would not distinguish be-
tween a maintenance unit and a production and mainte­
nance unit. That Maier is functionally integrated with
this maintenance unit cannot be seriously disputed. The
close relationship between Maier’s dispatching functions
and the maintenance engineers’ functions is evident. He
has daily contact with other unit employees by virtue of
his dispatching, timekeeping, and attendance at depart­
ment meetings. According to his testimo ny, he spends
approximately 40 percent of his time in the office, and
the rest of his time on the hotel floor or grounds. Thus,
Maier is functionally integrated with the maintenance
process and with the daily operations of the maintenance
engineers.
Moreover, based on other factors related to Maier’s
position, it is clear that the engineering coordinator
shares a community of interest with the maintenance
engineers. Maier was initially hired as a facility mainte­
nance I, and thus possesses the same skills, and has per-
formed the same duties, as many of the other mainte­
nance engineers. Like the maintenance engineers, he
owns his own tools. Since his transfer to the engineering
coordinator position, he has been called on to finish work
he previously started, to do minor maintenance such as
changing a wall sconce and replacing light bulbs, and to
move a significant amount of furniture, along with the
maintenance engineers. Maier reports to Engineering
Manager Cage, as do all of the other employees in the
hotel’s engineering department. Aside from the contact
he has with the maintenance engineers by virtue of his
dispatching functions, he also sees them during his fre­
quent “walks” through the hotel. Maier is an hourly em­
ployee who falls within the general pay range of the
maintenance engineers and receives the same benefits.
He is also subject to the same sign-in and swiping proce­
dure, has the same employee handbook, and eats in the
same cafeteria. In similar circumstances, the Board has
found a community of interest.15
In sum, for all of the reasons stated above, we find that
the stipulation is facially ambiguous; that there is insuffi­
cient extrinsic evidence from which we can discern the
15 See Hamilton Halter Co., 270 NLRB at 337, where the Board
found that operations-center employees had a community of interest
with warehouse employees where they shared similar supervision, had
frequent verbal contact and exchanged information, took breaks to­
gether, all punched timeclocks, and had common wages and benefits.
CAESAR’S TAHOE 1101
parties’ intent, and that, applying community-of-interest
principles, the engineering coordinator position should
be included in the bargaining unit.16 Accordingly, Maier
16 Finally, if Maier is not included in the unit, there is a possibility
that he may be disenfranchised. Other than the supervisors, the main­
tenance engineers, and the engineering coordinator, the only other
employee in the maintenance department is Gina Ross. Ross never
attempted to vote; thus, her ballot was not challenged. The hearing
officer found that the parties agreed that Ross was excluded from the
unit, and that she is “undisputedly a nonunit plant clerical.” The Em­
ployer excepts to both findings, and argues that Ross was the person
intended to be excluded by the “office clerical” exclusion. We need not
determine Ross’ placement as that issue is not before us. We raise it
only to show that, if the Employer’s arguments are true, then Maier
would be the only engineering department employee left unaccounted
for.
is eligible to vote and the challenge to his ballot is over-
ruled.
ORDER
It is ordered that the Regional Director for Region 32,
within 14 days from the date of this decision, shall open
and count the ballot of Kimbrough Maier, prepare and
cause to be served on the parties a revised tally of ballots,
and issue the appropriate certification.
IT IS FURTHER ORDERED that the matter is referred to
the Regional Director for Region 32 for further process­
ing consistent with this Decision.
MEMBER COWEN, concurring.
I concur in the result.