Northwestern University

National Labor Relations Board - Board Decisions

Sep 27, 2018

13-RC-177943 (N.L.R.B. Sep. 27, 2018)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NORTHWESTERN UNIVERSITY
Employer
and Case 13-RC-177943
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 73, CLC/CTW
Petitioner
DECISION ON REVIEW AND ORDER
On January 5, 2017, the Acting Regional Director for Region 13 issued a Decision and
Order resolving challenged ballots. The Acting Regional Director adopted a hearing officer’s
decision to sustain challenges to 5 ballots, and he sua sponte sustained challenges to 31
additional ballots. In all, the Acting Regional Director ruled that 36 employees were ineligible to
vote. Thereafter, in accordance with the Section 102.67 of the National Labor Relations Board’s
Rules and Regulations, the Employer filed a timely request for review, asking the Board to find
that, contrary to the Acting Regional Director, 25 of these 36 employees were eligible to vote
and their ballots should be opened and counted. The Petitioner filed an opposition.
The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
Having carefully considered the Employer’s request for review, we find that the Acting
Regional Director erred in his resolution of the 25 challenged ballots for which the Employer has
requested review. More specifically, we find, first, that the parties’ Stipulated Election
Agreement unambiguously includes within the stipulated unit 18 of the 25 employees who cast
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these ballots.1 The Employer’s human resources information system clearly demonstrates that
these 18 employees held appointments in non–tenure eligible classifications unambiguously
included within the stipulated unit and in those classifications only. In addition, we find that the
ballots of the remaining 7 challenged voters also should be opened and counted. Although the
stipulation is ambiguous as to these 7 employees and extrinsic evidence does not clarify the
parties’ intent, we find that these 72 should be included in the unit on community-of-interest
grounds. Accordingly, we grant review, reverse the Acting Regional Director’s decision to
sustain the challenges to the ballots cast by these 25 employees, and order that their ballots be
opened and counted.
I. Background
Pursuant to a Stipulated Election Agreement (Stipulation) approved by the Regional
Director on June 20, 2016, the parties agreed to an election in a unit of the Employer’s non–
tenure eligible (NTE) faculty. The Stipulation specifically identified 19 classifications of NTE
faculty that were included in the unit, including, among other classifications, Lecturers, Senior
Lecturers, Distinguished Senior Lecturers, Assistant Professors of Instruction, Associate
Professors of Instruction, and Professors of Instruction. The Stipulation further stated that NTE
faculty in these classifications were eligible to vote if they (i) had taught at least one credit-
bearing course in a degree-granting program at any one of seven of the Employer’s constituent
schools during the three preceding academic quarters, (ii) were employed by the Employer
during the payroll period ending May 31, 2016, and (iii) had an active account in the Employer’s

1 The 18 are Stacy Benjamin, Denise Bouras, Santiago Canez, Chyi Chung, Emma De Costa,
Elisabeth Elliott, Penny Hirsch, Nancy Hobor, Hong Jiang, Natalia Lyashenko, Martina Kerlova,
Dominique Licops, Yanantali Mejia, Susan Piagentini, Ian Savage, Barbara Shwom, Stacia
Spencer, and Mark Witte.
2 The 7 are John Alongi, Catherine Carrigan, Gerald Chiaro, Gary Galbreath, Benjamin Gorvine,
Christina Russin, and Noriko Yasohama.
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human resource information system (HRIS) as of May 31, 2016.3 The Stipulation also set forth a
number of specific exclusions from the stipulated unit, including “all administrators (including
deans, directors, provosts, and chairs who may have teaching assignments), other administrators
and staff who have teaching assignments . . . [and] all other employees employed by the
University, including those who teach a class or course and are separately compensated for such
teaching.”4
The election was conducted by mail ballot, and the revised tally of ballots, issued on
August 11, 2016, showed 223 ballots cast for the Petitioner and 191 against, with 71 challenged
ballots, a number sufficient to affect the results of the election.5 A hearing was held on the 71
challenged ballots, during which the parties agreed that one challenged voter was not eligible. In
its post-hearing brief, the Petitioner conceded that another 14 voters it had challenged were
eligible and requested withdrawal of its challenges to their ballots. In her report, the Hearing

3 Another name for the HRIS is the Faculty and Staff Information System (FASIS).
HRIS/FASIS (hereafter FASIS) is an electronic database that contains personnel information on
each employee, including his or her work location, compensation and payroll information,
contract period, and—most saliently for our purposes—the classification or classifications to
which the employee was appointed as of the payroll eligibility date.
4 Specifically, the stipulated unit excludes “[a]ll tenured faculty, tenure-eligible faculty, emeritus
faculty, Postdoctoral Fellows, Visiting Postdocs, All Other Postdoctoral Job Classifications,
Visiting Faculty, Visiting Lecturers, Visiting Scholars, Visiting Associate Professors, Visiting
Professors, Research Assistant Professors, Research Associate Professors, Research Professors,
faculty in non-degree granting programs, the Feinberg School of Medicine faculty, the Pritzker
Law School faculty, the Kellogg School of Business faculty, the School for Professional Studies
faculty, Northwestern in Qatar faculty, all faculty teaching only at the Chicago or Doha
campuses, all administrators (including deans, directors, provosts, and chairs who may have
teaching assignments), other administrators and staff who have teaching assignments, faculty
who are paid directly or indirectly by other entities including governments, other academic
institutions and other organizations, graduate students, athletic coaches, all other employees
employed at the University, including those who teach a class or course and are separately
compensated for such teaching, managers, confidential employees, office clerical employees, and
guards and supervisors as defined in the Act.”
5The initial tally of ballots was issued on July19, 2016, but the parties subsequently resolved a
number of challenges, agreeing that 5 should be sustained and that 58 challenged ballots should
be opened and counted. There were also 4 void ballots.
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Officer recommended approving the Petitioner’s request to withdraw 14 challenges, sustaining
the challenges to 17 ballots, and overruling the remaining 39 challenges.6 The Employer filed
exceptions regarding 6 of the challenges the Hearing Officer sustained. On January 5, 2017, the
Acting Regional Director issued his Decision and Order. He adopted the Hearing Officer’s
recommendation to approve the Petitioner’s request to withdraw 14 challenges. He then went
beyond the 6 ballots the Employer presented on exceptions and re-evaluated all 56 ballots
considered by the Hearing Officer, sustaining challenges to 36 of them and overruling the other
20. Thereafter, the Employer filed a timely request for review concerning 25 of the challenges
the Acting Regional Director had sustained.7 The Petitioner filed an opposition. The Region
subsequently counted the 34 ballots that were not subject to the request for review and, on May
12, 2017, issued a second revised tally of ballots, showing 229 votes for and 219 against
representation, and noting that 25 challenged ballots (those subject to the Employer’s request for
review) remain “unresolved.” Accordingly, the 25 ballots as to which the Employer has
requested review remain dispositive.8

6 Of the challenges the Hearing Officer recommended be sustained, 11 had been made by the
Petitioner and 6 by the Employer. All the challenges the Hearing Officer recommended be
overruled had been made by the Petitioner.
7 The 25 challenged ballots in question include 4 that the Hearing Officer recommended
sustaining (those cast by Alongi, Chiaro, Galbreath, and Yasohama) and 21 that the Hearing
Officer recommended overruling (those cast by Benjamin, Bouras, Canez, Carrigan, Chung, De
Costa, Elliott, Gorvine, Hirsch, Hobor, Jiang, Kerlova, Licops, Lyashenko, Mejia, Piagentini,
Russin, Savage, Shwom, Spencer, and Witte).
8 Notwithstanding that the status of a determinative number of ballots remained unresolved, on
May 26, 2017, the Acting Regional Director issued a Supplemental Decision and Certification of
Representative, which briefly described the foregoing procedural events and certified the Union
as representative of the unit employees. The Employer subsequently filed a request to stay the
certification. Our order in this proceeding vacates that certification and directs the Regional
Director to open and count 25 ballots, serve on the parties a revised tally of ballots, and issue the
appropriate certification. Accordingly, we find it unnecessary to address the Employer’s request
to stay the now-vacated certification.
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II. Analysis
A. The Applicable Standard
When an election is conducted pursuant to a stipulated election agreement, the Board
applies the three-step test set forth in Caesars Tahoe, 337 NLRB 1096, 1097 (2002), to
determine whether a challenged voter is properly included in or excluded from a stipulated unit.
Under this test, the Board first determines whether the stipulation is ambiguous with regard to
the inclusion of the challenged voter. If the objective intent of the parties is clearly and
unambiguously expressed in the stipulation, the Board simply enforces the agreement as written.
The Board assesses the clarity of the stipulated election agreement by comparing the express
language of the agreement with the classifications at issue to determine whether they match. Los
Angeles Water and Power Employees’ Assn., 340 NLRB 1232, 1235 (2003). “The Board will
find that the parties have ‘a clear intent to include those classifications matching the description
and a clear intent to exclude those classifications not matching the stipulated unit description.’”
Id. (quoting Northwest Community Hospital, 331 NLRB 307 (2000)). In other words, at the first
step of Caesars Tahoe, “the Board will compare the express descriptive language of the
stipulation with the bona fide titles . . . of the affected employee. If the employee’s title fits the

Having vacated the certification of representative, Chairman Ring agrees that it is
unnecessary to address the Employer’s request for a stay. He also recognizes that the Board’s
rules permit regional directors to issue a certification of representative at a time when contested
issues in the representation case may remain pending before the Board on a request for review,
as happened here. See Board’s Rules & Regulations Sec. 102.69(c)(2). And he observes that the
employer’s duty to bargain on request attaches with the issuance of the certification of
representative. See, e.g., Howard Plating Industries, Inc., 230 NLRB 178 (1977). In other
words, the union may be certified, and the duty to bargain may attach, before the results of the
election are final. Chairman Ring also notes, however, that Sec. 3(b) of the Act empowers the
Board to stay any action by a regional director. In light of the problems that may be created by
the issuance of a certification while contested election issues remain unresolved, the Chairman
believes that the Board should look with favor on requests to stay certifications in these
circumstances.
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descriptive language, the Board will find a clear expression of intent and include the employee in
the unit.” Viacom Cablevision, 268 NLRB 633, 633 (1984). Finally, “where the stipulation
specifically enumerates the job classifications that are included in the unit, the classification at
issue is not among them, and there is an exclusion for ‘all other employees,’ the stipulation will
be read to clearly exclude that classification.” Los Angeles Water & Power Employees’ Assn.,
above (internal quotations omitted).
If, however, the stipulation is ambiguous, the Board attempts to determine the parties’
intent through normal methods of contract interpretation, including the examination of extrinsic
evidence. If the parties’ intent still cannot be discerned, the Board proceeds to step three and
determines whether the challenged voters are included in or excluded from the unit by applying
its standard community-of-interest test. Caesars Tahoe, above; CVS Albany, LLC, 364 NLRB
No. 21, slip op. at 1-2 (2016). The Board places the burden of proof on the party asserting that a
challenged voter is ineligible to vote. Goucher College, 364 NLRB No. 71, slip op. at 2 (2016);
Sweetener Supply Corp., 349 NLRB 1122, 1122 (2007).
B. Application of Caesars Tahoe to the Stipulation
1. The Stipulation unambiguously includes 18 of the 25 challenged voters.
At step one of Caesars Tahoe, the Acting Regional Director found that the Stipulation
was ambiguous as to all 25 challenged voters because they each held “other compensated
positions.” We disagree with this finding. A review of payroll documentation, specifically the
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payroll information located in FASIS, demonstrates that 18 of the 25 challenged voters9 held
only appointments to NTE classifications unambiguously included within the stipulated unit.10
Both the Petitioner and the Employer argue that the Stipulation is unambiguous and
unambiguously supports their contrary positions. The Petitioner asserts that, under the
Stipulation’s exclusion of “all other employees,” the parties plainly intended to exclude any
employees who held any titles not covered by the Stipulation even if those employees also held
titles included within the stipulated unit. Since there is some evidence that each of the 25
challenged employees hold additional titles, the Petitioner argues, they are excluded from the
unit. By contrast, the Employer contends that the clear intent of the Stipulation was to include
NTE faculty “with a predominant teaching role” even if they also perform other “ancillary
service duties” and to exclude individuals “whose primary relationship to the [Employer] is
something other than” an NTE teaching position, even if they also teach on occasion. Since the
predominant classifications of all 25 challenged employees were NTE classifications expressly
included within the stipulated unit, the Employer argues, the Stipulation unambiguously includes
them. Rejecting the positions of both parties, the Acting Regional Director found that the
Stipulation was ambiguous. The Acting Regional Director reasoned that, although the
Stipulation “unambiguously includes” NTE employees, “the language of the stipulation does not
clearly address whether the disputed classification of ‘all full-time and part-time graduate and
undergraduate non–tenure eligible faculty who also hold other compensated positions’ is
specifically included or excluded from the unit.” In finding the Stipulation ambiguous, the

9 Benjamin, Bouras, Canez, Chung, De Costa, Elliott, Hirsch, Hobor, Jiang, Kerlova, Licops,
Lyashenko, Mejia, Piagentini, Savage, Shwom, Spencer, and Witte.
10 During the relevant time frame, 4 of these 18 voters held two simultaneous appointments to
included NTE classifications: Hirsch held two appointments as a Professor of Instruction,
Kerlova held two appointments as an Assistant Professor of Instruction, Lyashenko held two
appointments as a Lecturer, and Savage held two appointments as a Professor of Instruction.
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Acting Regional Director also noted that the parties had “differing interpretations” of the
Stipulation’s application to the 25 challenged voters.
As noted above, to determine whether a stipulation is unambiguous as to a challenged
voter, the Board will compare the express language of the stipulation with that voter’s
classification. The flaw in the Acting Regional Director’s reasoning is his premise that “all full-
time and part-time graduate and undergraduate non–tenure eligible faculty who also hold other
compensated positions” is a classification. It is not. Rather, as stated above, the classifications
expressly included within the stipulated unit are the 19 classifications of NTE faculty set forth in
the Stipulation. It is undisputed that each of the 25 challenged voters holds an NTE faculty
appointment in one of these 19 classifications. Clearly, therefore, each of the 25 challenged
voters holds an appointment that matches a classification in the Stipulation.
It would appear that the Caesars Tahoe analysis as to all 25 disputed voters ends there.
However, the Stipulation also clearly excludes, most pertinently, “all administrators (including
deans, directors, provosts, and chairs who may have teaching assignments), other administrators
and staff who have teaching assignments . . . [and] all other employees employed at the
University, including those who teach a class or course and are separately compensated for such
teaching.” And there is some evidence, discussed below, that each of the 25 challenged voters
also holds either a specifically excluded position or another position not specifically included in
the unit. For the reasons that follow, however, we find this evidence insufficient to render the
Stipulation ambiguous with regard to 18 of the 25 challenged voters.
Again, at the first step of the Caesars Tahoe analysis, the Board compares “the express
descriptive language of the stipulation with the bona fide titles . . . of the affected employee. If
the employee’s title fits the descriptive language, the Board will find a clear expression of intent
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and include the employee in the unit.” Viacom Cablevision, 268 NLRB at 633. We evaluate the
challenged employees’ “bona fide titles” by reviewing the information regarding each employee
contained in FASIS, the electronic database that serves as the central repository for the
Employer’s payroll information. The centrality of FASIS to the question of each employee’s
bona fide title is demonstrated by the Stipulation itself, which states that, to be eligible to vote,
an employee must be active in FASIS as of May 31, 2016.11 For 18 employees, FASIS shows
only appointments to NTE classifications expressly included within the stipulated unit.12
Accordingly, we find that the Stipulation unambiguously includes them, and they are therefore
eligible to vote.
In finding to the contrary, the Acting Regional Director relied on evidence outside of
FASIS: testimony by administrators and/or the employees’ appointment letters.13 Based on this
evidence, the Acting Regional Director found that each of the 18 employees held one or more
titles not named as classifications expressly included within the stipulated unit.14 Again,

11 According to the testimony of Monica Russel y Rodriguez, the associate dean who oversees
NTE faculty, the “HRIS system” referenced in the Stipulation is another name for FASIS.
12 Benjamin, Senior Lecturer; Bouras, Assistant Professor of Instruction; Canez, Professor of
Instruction; Chung, Distinguished Senior Lecturer; De Costa, Lecturer; Elliott, Associate
Professor of Instruction; Hirsch, Professor of Instruction; Hobor, Senior Lecturer; Jiang,
Associate Professor of Instruction; Kerlova, Assistant Professor of Instruction; Licops, Associate
Professor of Instruction; Lyashenko, Lecturer; Mejia, Lecturer; Piagentini, Senior Lecturer;
Savage, Professor of Instruction; Shwom, Professor of Instruction; Spencer, Senior Lecturer;
Witte, Professor of Instruction. As noted above, FASIS lists Hirsch, Kerlova, Lyashenko, and
Savage as each holding two appointments in the same NTE classification.
13 The Acting Regional Director did not, however, rely on the titles in the employee biographies
placed on the Employer’s website. As noted by both the Hearing Officer and the Acting
Regional Director, these biographies were mostly composed by the employees themselves with
little or no review or editing by any supervisor or administrator. The Acting Regional Director
did not credit these biographies, and no party has relevantly requested review. We agree with the
Acting Regional Director that these biographies are entitled to little if any probative weight.
14 Benjamin, Advisor for the Segal Design Certificate program; Bouras, Assistant Director for
the Spanish language program; Canez, co-director or co-coordinator for calculus; Chung,
director of Spanish language program; De Costa, advisor within the Undergraduate Engineering
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however, FASIS is the Employer’s central repository of payroll information, and these additional
titles are not contained in FASIS. Moreover, the Stipulation itself accords FASIS privileged
status by conditioning voter eligibility with reference to FASIS. These facts serve as a clear
indication that the Board may look to FASIS to ascertain the challenged voters’ “bona fide
titles.” Id. Accordingly, we find that titles not contained in FASIS should not be deemed bona
fide titles for purposes of the Caesars Tahoe analysis.
Even considering the extra-FASIS evidence the Acting Regional Director relied upon, we
conclude that this evidence is insufficient to sustain the Petitioner’s burden of demonstrating that
the 18 employees should be excluded from the stipulated unit. For 11 of these 18 employees—
Benjamin, Bouras, Canez, Chung, Hirsch, Hobor, Jiang, Kerlova, Licops, Shwom, and Witte—
no other documentation demonstrates they held any title in addition to the classification named in
FASIS. Rather, their appointment letters, like the record of their appointments in FASIS, name
only NTE classifications included in the stipulated unit. The only evidence of these 11

Office in the McCormick School of Engineering and Applied Science; Elliott, coordination and
supervision of Russian Language program and supervision of graduate students; Hirsch,
Assistant or Associate Director in the Writing Program; Hobor, faculty advisor for the student-
run Journal of Integrated Marketing Communications; Jiang, Coordinator in the Chinese
language program; Kerlova, Director of Undergraduate Studies in the Department of Slavic
Language & Literature; Licops, director of French language program; Lyashenko, Coordinator of
the Voice Division; Mejia, Advisor within the Undergraduate Engineering Office in the
McCormick School of Engineering and Applied Science; Piagentini, Coordinator of Freshman
Theory and Aural Skill courses and curriculum; Savage, Associate Chair in the Department of
Economics; Shwom, Director of the Writing Place; Spencer, Coordinator of the Strings Division
of the Music Academy; Witte, director of undergraduate studies for economics.
In addition to their appointments to included NTE classifications, employees Canez,
Chung, Licops, and Witte each held appointments—and were shown in FASIS as holding
appointments—as faculty in the School for Professional Studies, a classification specifically
excluded from the unit. However, the Hearing Officer found that he could not consider this
evidence because no party argued that these four should be excluded from the unit on this basis.
We agree. See, e.g., J.K. Pulley Co., 338 NLRB 1152, 1153 (2003) (finding that where evidence
regarding voter eligibility was not presented to the hearing officer, “the issue was not properly
before the hearing officer, and . . . he erred by considering employee eligibility on that basis”).
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employees’ additional titles is the testimony of administrators, and this testimony, standing
alone, does not carry the Petitioner’s burden of proof to exclude them from the unit. To the
contrary, these administrators testified that the assignment of other tasks and titles is often part
and parcel of an NTE appointment. For example, Russel y Rodriguez, an associate dean who
oversees NTE faculty, testified that when a department assigns an employee particular tasks or
functions, it can also assign a title related to those tasks. This testimony does not demonstrate
that such titles—and the duties that accompany them—are distinct from these employees’ NTE
classifications. Rather, such titles designate duties that have been assigned to these employees as
a component of their NTE classification. Because the documentary evidence demonstrates that
Benjamin, Bouras, Canez, Chung, Hirsch, Hobor, Jiang, Kerlova, Licops, Shwom, and Witte
have only an appointment to an NTE classification that matches a classification expressly
included in the Stipulation, we find that they are unambiguously included within the stipulated
unit, and the Petitioner did not meet its burden to exclude them.
The situation is similar for another 6 of the 18 employees—De Costa, Elliott, Mejia,
Piagentini, Savage, and Spencer—who hold only NTE appointments in FASIS. The
appointment letters of these six employees do reference additional duties and/or titles. However,
each of these appointment letters also shares a similar structure, stating first that the employee
has been appointed to an NTE classification (one that is included within the stipulated unit) and
then listing additional duties and/or titles ancillary to that appointment.
Thus, the appointment letters of De Costa and Mejia state that they have been appointed
as a Lecturer, an included NTE classification, and have been assigned, as part of that
appointment, to serve as a “freshman advisor,” a position neither specifically included in nor
specifically excluded from the stipulated unit—and the Stipulation does state an exclusion for
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“all other employees employed at the University.” This does not render the Stipulation
ambiguous as to De Costa and Mejia, however. Again, “where the stipulation specifically
enumerates the job classifications that are included in the unit, the classification at issue is not
among them, and there is an exclusion for ‘all other employees,’ the stipulation will be read to
clearly exclude that classification.” Los Angeles Water & Power Employees’ Assn., above.
Here, however, “the classification at issue”—the Lecturer position to which De Costa and Mejia
were appointed, as shown in FASIS and stated in their appointment letters—is specifically
enumerated in the Stipulation as an included classification.15 De Costa’s and Mejia’s
appointment letters confirm that acting as a “freshman advisor” is merely a duty of the included
Lecturer appointment. Thus, we find that the Petitioner did not carry its burden of demonstrating
that DeCosta and Mejia are excluded from the unit.
Similarly, the appointment letter of Elliott states that her appointment as an Associate
Professor of Instruction, an included NTE classification, will include non-classroom duties that
will “likely comprise coordination and supervision of the undergraduate Russian language
program and supervision of graduate assistants and their training in pedagogy.” Thus, the record
evidence demonstrates that Elliott holds only one appointment, to the included NTE
classification “Professor of Instruction,” and her further duties within the Russian language
program are merely an aspect of that appointment.
Piagentini’s and Spencer’s appointment letters support the same conclusion. Piagentini’s
appointment letter states that her responsibilities as Senior Lecturer, an included NTE
classification, will include serving as Coordinator of Freshman Theory and Aural Skills courses

15 By contrast, in Los Angeles Water & Power, the challenged employee’s title, “accountant,”
was not among the classifications specifically enumerated in the stipulation, and there was an
exclusion for “all other employees.”
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and curriculum. Spencer’s letter states that her responsibilities as Lecturer, an included NTE
classification, include serving as Coordinator of the Strings Division in the Music Academy.
Thus, while these appointment letters reference additional roles performed by Piagentini and
Spencer, the letters clearly portray these roles as ancillary to their responsibilities as Senior
Lecturer and Lecturer, respectively—NTE classifications unambiguously included in the unit.
Savage’s appointment letter states he is being offered an “appointment as Professor of
Instruction and Associate Chair in the Department of Economics.” The Stipulation excludes
“chairs” (but not associate chairs). However, the remainder of the letter refers to Savage’s
position in the singular, noting that his appointment as Professor of Instruction also “includes the
performance of administrative duties as assigned by department chair.” Furthermore, although
FASIS indicates that Savage holds two appointments, both are as Professor of Instruction, an
included classification. Because there is insufficient evidence to conclude that the Associate
Chair position constituted an appointment separate from the NTE classification, we find that
Savage is unambiguously included in the unit at step one of Caesars Tahoe.
For De Costa, Elliott, Mejia, Piagentini, Savage, and Spencer, then, their appointment
letters bolster the conclusion to be drawn from FASIS: each of these six employees’ “bona fide
titles,” Viacom Cablevision, 268 NLRB at 633, corresponds to an NTE classification expressly
enumerated in the Stipulation as included within the unit. To the extent their appointment letters
and testimony by administrators reference additional duties or titles, these are ancillary to the
employees’ appointment to a specifically included NTE classification.
Finally, we also find employee Lyashenko to be unambiguously included within the unit
at step one of Caesars Tahoe. Lyashenko has two appointment letters, one for a clearly included
NTE classification of Senior Lecturer, and the other for a position not expressly included within
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the Stipulation, Coordinator of the Voice Division in the Music Academy. As with the
foregoing employees, Lyashenko may not be excluded from the unit merely based on a letter
stating that she holds a position as a Coordinator, since it is equally clear that she holds a
position as a Senior Lecturer, an included NTE classification. Furthermore, while FASIS also
shows Lyashenko as having two appointments, it classifies both as NTE Lecturer positions. Any
tension between Lyashenko’s FASIS record and the appointment letters is resolved by the
testimony of administrator Rene Machado, an Associate Dean for Administration, Finance and
Planning at the Bienen School of Music, who emphasized that although two letters were issued
to Lyashenko, Lyashenko held only an appointment as a Lecturer. Machado’s testimony that
Lyashenko held only appointments in included NTE classifications is consistent with FASIS and
further confirms that FASIS reflects an employee’s bona fide title. Thus, we find that here, too,
the evidence demonstrates that Lyashenko’s bona fide title matches a classification expressly
included in the stipulated unit, and the Petitioner has not carried its burden to exclude her.
In sum, for the reasons stated above, we find, at step one of the Caesars Tahoe analysis,
that the Stipulation unambiguously includes the foregoing 18 employees within the stipulated
unit. As to these 18, we therefore reverse the Acting Regional Director’s decision and overrule
the challenges to their ballots.
2. The remaining 7 employees are eligible to vote on community-of-interest
grounds.
a. The eligibility of the remaining 7 employees cannot be determined
at step one of Caesars Tahoe.
Although the Stipulation unambiguously includes 18 of the 25 challenged employees, the
eligibility of the remaining 7 challenged employees—Alongi, Carrigan, Chiaro, Galbreath,
Gorvine, Russin, and Yasohama—cannot be resolved at step one of Caesars Tahoe. Like the 18
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employees discussed above, each of these 7 held FASIS appointments to included NTE
classifications. Unlike those 18, however, FASIS indicates that each of these 7 employees held
at least one additional appointment either to an expressly excluded classification or to a
classification neither expressly included nor expressly excluded, i.e., an unmentioned
classification. Thus, FASIS reflects that five employees—Alongi, Chiaro, Galbreath, Russin,
and Yasohama—hold both an appointment to an included NTE classification and an additional
appointment as a “director” or “chair,” and the Stipulation specifically excludes “all
administrators (including directors . . . and chairs who may have teaching assignments).”
Employees Carrigan and Gorvine hold appointments as an “academic advisor” and a “master,”
respectively. The positions of “academic advisor” and “master” are neither included in nor
excluded from the stipulated unit, but they fall within the Stipulation’s exclusion of “all other
employees.”
With regard to these 7 employees, the situation is similar to that in Columbia College,
346 NLRB 726 (2006). In that case, the Board considered the eligibility of part-time faculty who
also performed a staff function as tutors, where the stipulated election agreement specifically
included “staff” but specifically excluded “faculty.” The Board found that the exclusion of
faculty was ambiguous, since it could “be read to apply to any faculty member, irrespective of
whether that faculty member is a part-time employee, i.e., a tutor” or it “could reasonably be read
to apply only to faculty members who are not part-time staff employees.” Id. at 728. Similarly
here, the Stipulation could reasonably be read to apply to any NTE faculty member, regardless of
whether that NTE faculty member also held an excluded appointment, or it could be read to
exclude any employee with an appointment in an excluded classification, regardless of their
appointment to an included NTE classification. Since FASIS demonstrates that each of these 7
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employees hold appointments both included in and excluded from the Stipulation, we find that as
to them, the Stipulation is ambiguous at step one of Caesars Tahoe.
b. The ambiguity in the Stipulation as to the 7 remaining challenged
voters cannot be resolved at step two of Caesars Tahoe.
Where a stipulation is ambiguous as to challenged voters, “the Board must seek to
determine the parties’ intent through normal methods of contract interpretation, including the
examination of extrinsic evidence.” Caesars Tahoe, above at 197. The Acting Regional
Director correctly noted that “[t]here is limited extrinsic evidence in the record to assist in
determining the intent of the parties.” We agree; the record does not reveal the content of the
parties’ negotiations over the Stipulation or other evidence that would indicate the parties’
contemporaneous intent. Moreover, the parties’ intent cannot be determined through “normal
methods of contract interpretation” because, as explained above, the Stipulation may be read to
include any faculty member with an appointment to an included NTE classification, regardless of
whether that employee also held an excluded appointment, or it could be read to exclude any
employee with an appointment in an excluded classification, regardless of his or her appointment
to an included NTE classification.16 Thus, the Stipulation is both clear as to whom it includes
and clear as to whom it excludes, but it is entirely unclear, even employing normal methods of
contract interpretation, how to resolve the eligibility of an employee who is both clearly included
and clearly excluded. Accordingly, we will resolve the 7 remaining challenged ballots at step 3
of the Caesars Tahoe analysis.
c. A community-of-interest analysis at step three of Caesars Tahoe
demonstrates that the 7 remaining voters should be included within
the unit.

16 Accordingly, we reject the Acting Regional Director’s finding that normal methods of contract
interpretation yield the conclusion that NTE faculty holding a separate additional position are
excluded from the unit.
17
Where the parties’ intent as to challenged voters cannot be discerned either from the
language of an unambiguous stipulation or through interpretation of an ambiguous stipulation
(taking extrinsic evidence into consideration), “the Board determines the bargaining unit by
employing its normal community-of-interest test.” Caesars Tahoe, above at 197. We now
perform this community-of-interest analysis to determine the eligibility of the remaining 7 voters
who are appointed to positions both clearly included in and clearly excluded from the unit.
It is undisputed that each of the 7 remaining challenged voters holds an NTE position in a
classification clearly included by the Stipulation, and thus each of the 7 shares some community
of interest with the included employees. See, e.g., NLRB v. Joclin Mfg. Co., 314 F.2d 627, 632
(2d Cir. 1963) (Regional Director “needlessly” disenfranchised a dual-function employee who
held a classification within the unit where it was not shown that the employee lacked a sufficient
interest with the unit). Where employees are dual-function,17 i.e., the employees hold both in-
unit and out-of-unit positions, the Board will consider “whether the employees regularly perform
duties similar to those performed by unit employees for sufficient periods of time to demonstrate
that they have a substantial interest in working conditions in the unit.” Martin Enterprises, Inc.,
325 NLRB 714, 714 (1998). “[T]he Board has no bright line rule as to the amount of time
required to be spent in performing unit work. Rather, the Board examines the facts in each
particular case.” Id. As a general guideline, however, the Board will find a substantial
community of interest where a dual-function employee spends more than 25% of his or her time
performing unit work. WLVI Inc., 349 NLRB 683, 686 fn. 5 (2007). The Board also considers

17 Although the parties have claimed that the challenged employees’ dual-function status is not at
issue, we find this analysis necessary to determine whether these challenged voters share a
sufficient community of interest with the unit employees to include them in the unit at step three
of Caesars Tahoe.
18
the regularity with which the employee performs unit work. Columbia College, above at 729 fn.
10.
We find that each of the 7 remaining challenged employees is eligible to vote because
each shares a substantial community of interest with the unit. FASIS indicates that the primary
appointment of each of the 7 employees is to an NTE classification included within the stipulated
unit. Furthermore, both FASIS and other record evidence indicate that each employee spends a
sufficient amount of time performing unit work to be included within the unit. Alongi’s
appointment letter indicates that his primary appointment is to a full-time NTE Professor of
Instruction position. While FASIS indicates that he also had an appointment as a program
director, the testimony of administrator Russel y Rodriguez established that his primary duties
are as an NTE faculty member. The situation is similar for the other 6 employees at issue. The
FASIS files for Carrigan, Chiaro, Galbreath, Gorvine, Russin, and Yasohama identify each
employee’s primary appointment as an NTE faculty position in an included classification. While
the record indicates that these employees hold appointments to other positions, the totality of the
evidence for each—including FASIS files, appointment letters, and administrator testimony—
makes equally clear that their primary duties are those of an NTE faculty member. Even where
the evidence demonstrates an employee has significant non-unit duties, this evidence does not
indicate that the employees’ non-unit duties were so encompassing as to negate the employee’s
shared community of interest with his or her fellow NTE faculty. For example, Galbreath’s
primary appointment is to the position of Distinguished Senior Lecturer. He also has an
appointment as an Associate Academic Director in the Biological Sciences. While Russel y
Rodriguez testified that his Lecturer course load is reduced from 6 to 3 courses so he can
perform his duties as Associate Academic Director, she also compared his position to that of
19
Alongi, who she testified is primarily an NTE faculty member. Russel y Rodriguez’s testimony
regarding Galbreath’s duties confirms the conclusion to be drawn from his FASIS designation.
While his duties as a Director are certainly consequential, his primary role is as an NTE faculty
member in an included classification, and he therefore shares a sufficient community of interest
with the unit.
In short, the evidence for each of these employees demonstrates that their primary
appointment is to an included NTE classification. Thus, although these 7 employees hold
additional, excluded appointments, their NTE position is their primary position, to the duties of
which they devote a significant amount of time. We therefore find that Alongi, Carrigan, Chiaro,
Galbreath, Gorvine, Russin, and Yasohama each “perform duties similar to those performed by
unit employees for sufficient periods of time to demonstrate that they have a substantial interest
in working conditions in the unit.” Martin Enterprises, Inc., above at 714. On this basis, we find
that they are eligible to vote at step three of the Caesars Tahoe analysis.
For the foregoing reasons, we overrule all 25 challenges at issue in this case.
Accordingly, we vacate the certification and remand the case to the Regional Director to open
and count these ballots.
ORDER
The certification is vacated. It is directed that the Regional Director for Region 13 shall,
as soon as practicable, open and count the ballots of John Alongi, Stacy Benjamin, Denise
Bouras, Santiago Canez, Catherine Carrigan, Gerald Chiaro, Chyi Chung, Emma De Costa,
Elisabeth Elliott, Gary Galbreath, Benjamin Gorvine, Penny Hirsch, Nancy Hobor, Hong Jiang,
Martina Kerlova, Dominque Licops, Natalia Lyashenko, Yanantali Mejia, Susan Piagentini,
Christina Russin, Ian Savage, Barbara Shwom, Stacia Spencer, Mark Witte, and Noriko
20
Yasohama. The Regional Director shall serve on the parties a revised tally of ballots and issue
the appropriate certification.
JOHN F. RING, CHAIRMAN
LAUREN MCFERRAN, MEMBER
MARVIN E. KAPLAN, MEMBER
Dated, Washington, D.C., September 27, 2018.