Ziegler, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 2001

333 N.L.R.B. 949 (N.L.R.B. 2001)

ZIEGLER, INC. 949
Ziegler, Inc. and International Union of Operating
Engineers, Local No. 49, AFL–CIO. Case 18–
UC–336
April 12, 2001
DECISION ON REVIEW AND ORDER
CLARIFYING UNIT
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
which has considered the Employer-Petitioner’s and the
Union’s requests for review of the Regional Director’s
Decision and Order dismissing the instant petition (perti-
nent portions of which are attached as an appendix). The
Union’s request for review is denied as it raises no sub-
stantial issues warranting review. The Employer-
Petitioner’s request for review is granted. Having care-
fully considered the matter, we conclude, contrary to the
Regional Director, that the bargaining unit should be
clarified to exclude the “parts and warehouse employ-
ees”1 who have been historically excluded from the unit.
Since 1952, the Employer-Petitioner and the Union
have been parties to successive collective-bargaining
agreements covering service department employees at all
of the Employer-Petitioner’s facilities, as well as ware-
house employees at the Employer-Petitioner’s Buhl and
Shakopee locations. In November 1998, the Union filed
a grievance alleging that the Employer-Petitioner im-
properly failed to apply the terms of the parties’ collec-
tive-bargaining agreement to the “parts and warehouse
employees” at six of the Employer-Petitioner’s branch
facilities. The Employer-Petitioner, asserting that the
collective-bargaining agreement had never been applied
to the “parts and warehouse employees” and that they
had been historically excluded from the bargaining unit,
filed the instant petition seeking clarification of the unit.
In agreement with the Employer-Petitioner, the Regional
Director found that the “parts and warehouse employees”
had been historically excluded from the bargaining unit
by the parties. The Regional Director declined to clarify
the unit to exclude the “parts and warehouse employees”
as requested by the Employer-Petitioner, in reliance on
the Board’s decision in Bethlehem Steel Corp., 329
NLRB 243 (1999).

1 Although the Regional Director and the parties utilize various
terms to describe the employees who are the subject of the Employer-
Petitioner’s petition, we refer to the disputed employees at the Em-
ployer-Petitioner’s branch facilities as “parts and warehouse employ-
ees,” consistent with our prior order in this case.
In Bethlehem Steel, similar to the instant case, the em-
ployer—following the filing of a grievance by the union
alleging that the parties’ collective-bargaining agreement
should be applied to certain customer service employ-
ees—filed a petition seeking to clarify the bargaining
unit to exclude those customer service employees on the
basis that they had been historically excluded from the
unit. Although the Board agreed that the disputed em-
ployees had been historically excluded from the unit, the
Board refused to clarify the unit to confirm that exclu-
sion. The Board stated that:

[W]here a position or classification has been histori-
cally excluded from or included in the unit, and there
have not been recent, substantial changes that would
call into question the placement of the employees in the
unit, the Board generally will not entertain a petition to
clarify the status of that position or classification, re-
gardless of when in the bargaining cycle the petition is
filed.

Id. at 244. At the same time, however, the Board indi-
cated that it has recognized several exceptions to this
general principle, including an exception founded upon
the Board’s decision in Williams Transportation Co., 233
NLRB 837 (1977). Id. at fn. 5.
In Williams Transportation, a union, pursuant to its
collective-bargaining agreement with an employer, filed
a grievance alleging that the terms of the parties’ contract
should be applied to an employee occupying the shop
office clerk position at the employer’s facility. The
grievance proceeded to arbitration, and an arbitration
panel ultimately determined that the position was cov-
ered by the collective-bargaining agreement. Williams
Transportation, supra at 837. The employer, however,
declined to comply with the arbitration panel’s order, and
instead filed a petition seeking to clarify the bargaining
unit to exclude the shop office clerk. The Regional Di-
rector deferred to the ruling of the arbitration panel and,
therefore, dismissed the employer’s petition. Id. The
Board, however, concluded that the decision of the arbi-
tration panel did not appear to be based on an interpreta-
tion of the contract, but instead appeared to constitute a
determination that the position somehow had been ac-
creted to the unit. Id. at 838. The Board further con-
cluded that, in actuality, the shop office clerk position
had been historically excluded from the unit and that,
therefore, the arbitration panel’s decision was improper,
since “[i]t is axiomatic that, where a classification has
been historically excluded from a unit, it cannot be added
by means of the accretion doctrine.” Id. Emphasizing
that principle and recognizing that the determination of
questions regarding representation, accretion, and unit
333 NLRB No. 114
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 950
placement are not matters for arbitration, but rather, are
matters within the exclusive province of the Board to
resolve, the Board concluded that processing of the em-
ployer’s petition to confirm the historical exclusion of
the disputed position was necessary to prevent the en-
forcement of the contradictory arbitration award. Id.
Although the instant case does not involve an arbitra-
tion award, the Board’s decision in Williams Transporta-
tion nevertheless supports the processing of the petition
here, since there is a pending grievance that ultimately
could result in an incongruous arbitration award. The
Regional Director here found that the “parts and ware-
house employees” have been historically excluded from
the bargaining unit. If the Union’s pending grievance
ultimately concludes in an arbitral determination that the
“parts and warehouse employees” are covered by the
parties’ collective-bargaining agreement, the result
would be identical to that which the Board condemned in
Williams Transportation. Moreover, in the likely event
that the Employer-Petitioner in such circumstances
thereafter would file another unit clarification petition
seeking to confirm the historical exclusion of the em-
ployees and to prevent the enforcement of the contrary
arbitration award, as in Williams Transportation, the
Board would process the petition for the reasons identi-
fied in that decision. In our view, to require the parties
and the Board to expend additional time and resources
and suffer additional delays to simply reaffirm that which
the Board has already decided in this case (after conduct-
ing an investigation, holding a hearing, and reviewing
submissions from the parties) would be a wasteful exer-
cise.2
As the Williams Transportation exception to the
Board’s general policy of declining to process a unit
clarification petition to confirm an historical exclusion
fully supports clarification of the bargaining unit in this
case, our decision to process the petition is not, contrary
to our dissenting colleague’s contention, inconsistent
with established Board precedent. Although the Bethle-
hem Steel decision indeed reaffirmed the Board’s general
policy to refrain from clarifying a unit to confirm an his-
torical exclusion, the Board there specifically noted that
the Williams Transportation exception was inapplicable
to the case because, “although the Union originally filed

2 Even if the Union’s grievance did not result in an incongruous arbi-
tration award (e.g., if an arbitrator were to determine that the “parts and
warehouse employees” are not covered by the collective-bargaining
agreement), however, we believe that the processing of the petition and
clarification of the unit here nevertheless would serve the beneficial
purpose of according some degree of finality and stability with respect
to the relationship between the Employer-Petitioner, the Union, and the
disputed employees.

a grievance and sought arbitration to compel the inclu-
sion of the disputed classifications in the bargaining unit,
the grievance and arbitration demands [were] with-
drawn.” Bethlehem Steel, supra at 244 fn. 5. As such,
the Board in Bethlehem Steel did not reach, but rather left
open, the question presented by the facts of this case:
whether to process a unit clarification petition where
there is an outstanding grievance or demand for arbitra-
tion alleging that a collective-bargaining agreement be-
tween the parties covers a classification of employees
that the Board finds has been historically excluded from
the unit.
Our dissenting colleague additionally contends that
“the collective bargaining process should be allowed to
work” and that the parties should be provided the oppor-
tunity to settle the dispute through good-faith bargaining.
We note first that the applicability of the collective-
bargaining agreement to the “parts and warehouse em-
ployees” in this case has been the subject of discussion
between the parties on various occasions dating back to
at least 1987. From that time to the present, however,
despite their continuous relationship and negotiation of
successive collective-bargaining agreements, the parties
seemingly have been unsuccessful in reaching an agree-
ment regarding the representation of these employees.
Moreover, given the fact that the Board has concluded
that the disputed employees have been historically ex-
cluded from the unit, the parties would be foreclosed
from now adding them to the unit through the collective-
bargaining process without a showing of majority status
on the part of the Union. See United Parcel Service, 303
NLRB 326, 327 (1991) (holding that an employer and
union committed violations of Sec. 8(a)(1), (2), and (3)
and Sec. 8(b)(1)(A) and (2) of the Act, respectively, by
executing a collective-bargaining agreement that in-
cluded a group of employees who had been historically
excluded from the unit and a majority of whom did not
support the union); see also Williams Transportation,
supra at 838 (“It is axiomatic that, where a classification
has been historically excluded from a unit, it cannot be
added by means of the accretion doctrine, i.e., without
affording employees in that classification an opportunity
to select or reject the bargaining representative”). Fur-
thermore, our decision to clarify the unit to confirm the
historical exclusion of the “parts and warehouse employ-
ees” does not preclude the Union from later seeking rep-
resentation of those employees through the filing of a
petition for an election, nor does it foreclose any oppor-
tunity or remedy that otherwise would have been avail-
able to the parties.
For all the foregoing reasons, we conclude that the in-
stant unit clarification petition should be processed to
ZIEGLER, INC. 951
exclude the “parts and warehouse employees” from the
bargaining unit represented by the Union.
ORDER
It is hereby ordered that the classification of “parts and
warehouse employees” is excluded from the unit of the
Employer-Petitioner’s employees represented by the In-
ternational Union of Operating Engineers, Local No. 49,
AFL–CIO.

MEMBER HURTGEN, concurring.
I agree with the principal opinion’s conclusion that
Bethlehem Steel Corp., 329 NLRB 243 (1999) is distin-
guishable. I write separately, however, to make it clear
that I do not agree with Bethlehem Steel. I also wish to
emphasize a disagreement with the dissent.
Consistent with my position in Bethlehem Steel, supra,
I agree to entertain the petition here to exclude the dis-
puted employees. Where, as here, a group of employees
has been historically excluded from the unit and their
function has not changed, and a party nonetheless grieves
to include them in the unit, the Board, on the filing of a
UC petition by the other party, has the responsibility of
resolving the issue. Consistent with that position, I agree
to resolve that issue here by excluding the disputed
group.
Further, even accepting the majority opinion in Beth-
lehem Steel as the law, I agree that the case is distin-
guishable. In that case, the grievance was withdrawn,
and thus there was no prospect that an arbitral award
would be contrary to Board principles concerning unit
placement. In the instant case, the grievance is proceed-
ing to arbitration, and thus there is that prospect.
Finally, I disagree with the dissent’s contention that
the Board should withhold its processes, pending resort
to collective bargaining. The instant dispute is a repre-
sentational dispute. That is, the dispute is about who is
in the unit; it is not about the terms and conditions of
employment of employees who are indisputably within
the unit. Although collective bargaining can permissibly
be used to resolve representational issues, the parties
here have not been able to resolve the matter. In these
circumstances, I believe that the Board, on a petition, has
a responsibility to resolve the representational issue.

MEMBER LIEBMAN, dissenting in part.
The majority’s decision to grant the Employer-
Petitioner’s request for review and clarify the unit to ex-
clude the disputed employees deviates from established
and proper unit clarification procedure. Unit clarification
is not appropriately used to clarify the placement of em-
ployees who have been historically excluded from a unit.
Based on that sound principle, I would affirm the Re-
gional Director’s dismissal of the petition.1
The Union represents a single unit of service depart-
ment employees at nine facilities and warehouse em-
ployees at two facilities. The Union filed a grievance to
include warehouse employees at certain other facilities;
those employees have been outside the unit since at least
the 1970’s. In apparent response to the grievance, the
Employer-Petitioner filed this unit clarification petition
seeking to exclude the disputed warehouse employees
from the unit. The Regional Director dismissed the peti-
tion because the disputed employees have been histori-
cally excluded.
The Regional Director’s dismissal accords with Board
procedure. The majority’s decision does not. In Bethle-
hem Steel Corp., 329 NLRB 243, 244, (1999), the Board
dismissed an employer’s petition which, like the Em-
ployer’s petition in this case, sought to clarify a unit to
confirm the exclusion of employees who had been his-
torically excluded by the parties. The Board held,
“where a position or classification has historically been
excluded from or included in the unit . . . the Board gen-
erally will not entertain a petition to clarify the status of
that position or [classification], regardless of when in the
bargaining cycle the petition is filed.” In so holding, the
Board quoted Union Electric Co., 217 NLRB 666, 667
(1975):

Unit clarification, as the term itself implies, is appropri-
ate for resolving ambiguities concerning the unit
placement of individuals who, for example, come
within a newly established classification of disputed
unit placement, or, within an existing classification
which has undergone recent, substantial changes in the
duties and responsibilities of the employees in it so as
to create a real doubt as to whether the individuals in
such classification continue to fall within the cate-
gory—excluded or included—that they occupied in the
past. Clarification is not appropriate, however, for up-
setting . . . an established practice of such parties con-
cerning the unit placement of various individuals.
[Emphasis added by Bethlehem Steel, supra.]

See also Boston Cutting Die Co., 258 NLRB 771 (1981),
which dismissed a petition to clarify the unit to include
historically excluded employees.
A limited exception to the procedure to dismiss clarifi-
cation petitions involving historically excluded employ-
ees was created in Williams Transportation Co., 233
NLRB 837 (1977). In that case, an arbitration committee

1 I agree with my colleagues that the Union’s request for review should
be denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 952
found that an historically excluded shop office clerk
should be added to the unit, the Regional Director de-
ferred to the committee’s award and included the em-
ployee in the unit, and the Board reversed, finding that
the unit should be clarified to exclude the disputed em-
ployee. The Board explained its holding as follows: “By
giving effect to the Committee’s decision, the Regional
Director has in effect mandated the inclusion of the shop
office clerk via the forbidden accretion route.” Id. at
838.
In other words, under Williams Transportation, the
Board will intervene in unit clarification cases involving
historical exclusion if there is an arbitral ruling that is
clearly at odds with Board policy. This case involves no
such arbitral award. Thus, the majority’s reliance on
Williams Transportation is misplaced. Nor is there any
compelling reason to expand the limited exception which
Williams Transportation created.
My colleagues explain that “there is a pending griev-
ance that ultimately could result in an incongruous arbi-
tration award.” My colleagues jump the gun. A “pend-
ing grievance” is hardly the equivalent of an arbitral
award, much less one at odds with Board policy as in
Williams Transportation. At the core of the Board’s de-
cision in William Transportation was its conclusion that
the arbitration committee had, in effect, accreted the
classification into the unit in direct contravention of
Board policy. “It is axiomatic,” the Board said, “that,
where a classification has been historically excluded
from a unit, it cannot be added by means of the accretion
doctrine.” Id. at 838. The Board was unwilling to equate
the arbitral award with “collective bargaining,” finding
that it was not based on an interpretation of the contract,
as the contract neither mentioned the disputed classifica-
tion nor listed any existing wage rate for the position.
The Board was therefore unwilling to allow the arbitral
award to take effect. Id.
No comparable award exists in this case that contra-
venes Board policy and would take effect if the Board
were to follow its normal procedure and dismiss this unit
clarification petition. In this context, the collective-
bargaining process should be allowed to work. There is
no indication that the parties will not engage in good-
faith collective bargaining to resolve their dispute, either
within or outside the grievance procedure, in a manner
that conforms to Board policy. Collective bargaining is a
flexible, adaptable process, and the grievance procedure
is an integral part of that process, with which we should
not interfere unless there is some reason connected with
our statutory duties that compels us to do so. The parties
could utilize that process to settle their dispute in any
number of ways, most of which we could not even begin
to predict. In these circumstances, we should follow
established Board law and not make the unit clarification
procedure available to the parties to settle their dispute,
but should stay our hand and allow them to work it out
themselves through good-faith collective bargaining.
Accordingly, I would follow established Board law
and dismiss the Employer’s unit clarification petition.
APPENDIX
The Employer/Petitioner seeks to clarify the existing
bargaining unit to exclude warehouse employees at its
branch facilities in Crookston, Duluth, Fergus Falls,
Marshall, Rochester, and St. Cloud, Minnesota, who per-
form duties in addition to their duties as warehouse em-
ployees. The Employer/Petitioner contends that these
employees have been historically excluded from the unit
and argues that the unit should be clarified in a manner
consistent with this historical exclusion. The Union con-
tends that because these employees perform the duties of
“branch warehouse” employee, a classification included
in the unit, they are members of the bargaining unit.
The Employer/Petitioner is engaged in the sale and
service of heavy equipment, and it maintains nine facili-
ties throughout the State of Minnesota. The Em-
ployer/Petitioner’s main facility is located in Blooming-
ton, Minnesota.3 At this facility, the Employer/Petitioner
maintains a sales staff, a parts department, a service de-
partment, and its administrative offices. The branch fa-
cilities (Buhl, Crookston, Duluth, Fergus Falls, Marshall,
Rochester, St. Cloud, and Shakopee) are basically
smaller versions of the Bloomington facility. Each main-
tains a sales staff, a parts department, and a service de-
partment. The parts departments at the Bloomington,
Buhl, and Shakopee locations are comprised of parts
employees and warehouse employees.
The employees in the parts department at these loca-
tions are separately identified as either “warehouse em-
ployees” or “parts employees.” However, the parts de-
partment employees at the other six facilities are not
separately identified as either “parts employees” or
“warehouse employees.” Rather, they perform the func-
tions of both.
There are approximately 25 warehouse employees at
the Bloomington facility, and they are represented by the
International Brotherhood of Teamsters, Local No. 221.
The 15 to 20 parts employees at the Bloomington facility
are not represented by any labor organization. The parts
employees at the Buhl and Shakopee facilities also are
not represented by any labor organization.

3 This facility is also referred to as the Employer/Petitioner’s Min-
neapolis facility.
ZIEGLER, INC. 953
The service department employees at each of the Em-
ployer/Petitioner’s nine facilities are included in a single
unit which is represented by the Union. The Em-
ployer/Petitioner’s “branch warehouse employees” are
also included in this bargaining unit. The Em-
ployer/Petitioner currently maintains “branch warehouse
employees” at only two of its eight branch facilities
(Buhl and Shakopee).
The Union has represented this unit, which is made up
of approximately 300 employees, since at least 1952,
although the record does not reflect whether the Union
was certified as the unit’s bargaining representative or
the Employer/Petitioner voluntarily recognized it as
such. Currently, this unit is made up of all the Em-
ployer/Petitioner’s service department employees at all
nine facilities and the Employer/Petitioner’s warehouse
employees at its Buhl and Shakopee facilities.
The present dispute involves the warehouse employees
who perform additional duties at the Em-
ployer/Petitioner’s facilities in Crookston, Duluth, Fer-
gus Falls, Marshall, Rochester, and St. Cloud. As stated
above, these employees work in the parts department, but
they are not separately identified as either “parts employ-
ees” or “warehouse employees.” Rather, these employ-
ees are responsible to perform the duties of both, and it is
undisputed that the employees in question perform duties
beyond their responsibilities in the warehouse.
The record demonstrates that the warehouse employ-
ees who perform additional duties at the Em-
ployer/Petitioner’s Crookston, Duluth, Fergus Falls,
Marshall, Rochester, and St. Cloud facilities have not
been included in the unit represented by the Union since
at least the 1970’s. The record further demonstrates that
the nature of their position and job responsibilities have
remained virtually unchanged during that period. The
parties have discussed the unit status of these employees
on numerous occasions. In 1987, the Union asked that
two warehouse employees who perform additional duties
at the Crookston facility be placed in the unit. The Em-
ployer/Petitioner agreed that one of the two should be
included, but this employee was discharged shortly
thereafter. His replacement was never considered to be
in the unit. Mostly recently, during contract negotiations
in 1998, the Union requested that the employees in ques-
tion be placed in the unit. However, each party provided
a separate account of what occurred. Jack Schouveller,
the Union’s chief negotiator, testified that, during the
July 1998 negotiations, he stated that union members
were upset that the warehousemen (the warehouse em-
ployees who perform additional duties at the six facilities
in question) were not in the unit. He further testified that
Barb Vermeer, the Employer/Petitioner’s human re-
sources director, stated that there was not a problem and
that the warehousemen were in the unit. Vermeer testi-
fied, however, that Schouveller asked about the ware-
house employees at the St. Cloud facility, and that she
just responded that those employees were never in the
unit.
The Board in Bethelem Steel Corp., 329 NLRB at 244,
stated:

Unit clarification, as the term itself implies, is appropri-
ate for resolving ambiguities concerning the unit
placement of individuals who, for example, come
within a newly established classification of disputed
unit placement, or, within an existing classification
which has undergone recent, substantial changes in the
duties and responsibilities of the employees in it so as
to create a real doubt as to whether the individuals in
such classification continue to fall within the cate-
gory—excluded or included—that they occupied in the
past.

Id. at 243, 244, quoting Union Electric Co., 217 NLRB 666,
667 (1975).

Clarification is not appropriate, however, for upsetting
. . . an established practice of such parties concerning
the unit placement of various individuals.” Id., citing
Union Electric Co., 217 NLRB at 667. Unless a posi-
tion or classification that has been historically excluded
has undergone recent, substantial changes, “the Board
generally will not entertain a petition to clarify the
status of that position.” Id.; see also Plough, Inc., 203
NLRB 818, 819 fn. 4 (1973). There is no requirement
that the Union has acquiesced to the historical exclu-
sion; it is the fact of the historical exclusion that is de-
terminative. Robert Wood Johnson University Hospi-
tal, 328 NLRB 912, 914 (1999), citing United Parcel
Service, 303 NLRB 326, 327 (1991).
Based on the foregoing and the evidence as a whole, I
conclude that the petition should be dismissed. As set
forth above, the evidence establishes that warehouse em-
ployees who perform additional duties at the Em-
ployer/Petitioner’s Crookston, Duluth, Fergus Falls,
Marshall, Rochester, and St. Cloud facilities have existed
for at least the last 20 years (or since they opened); and
that the employees working in these positions have per-
formed the job responsibilities of both warehouse and
parts employees. Additionally, no employee occupying
such a position is included in the unit and the warehouse
employees that perform additional duties at these six
facilities have been historically excluded from the unit.
It further appears that their exclusion from the unit has
always been based on the fact that they perform the job
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 954
duties of parts employees in addition to their warehouse
duties. Furthermore, there is no evidence of recent
changes in the duties and/or responsibilities of the indi-
viduals occupying such positions. Finally, the evidence
reveals that the Employer/Petitioner and the Union are
currently parties to a collective-bargaining agreement.
Under these circumstances, the petition for unit clarifica-
tion is inappropriate as processing it would be disruptive
of, and would undermine, the established bargaining re-
lationship between the parties.
Furthermore, the Union’s reliance on John P. Scripps
Newspaper Corp., 329 NLRB 854 (1999), is misplaced
for two reasons. First, the holding in that case was
predicated on the fact that bargaining unit was defined by
the work performed rather than defined by job classifica-
tion. Additionally, the Board specifically limited its
holding to situations where the bargaining unit is defined
by the work performed. In the present case, however, the
bargaining unit is defined by job classifications. Accord-
ingly, John P. Scripps Newspaper Corp. is not applicable
to the present case.
Second, in John P. Scripps Newspaper Corp., there
was no historically excluded classification of employees.
However, in the present case, the warehouse employees
at the branch facilities who perform additional duties
have been historically excluded from the unit. No collec-
tive-bargaining agreement has been applied to these em-
ployees for at least 20 years and since that time the par-
ties have negotiated six successor agreements. There-
fore, John P. Scripps Newspaper Corp. is distinguished
from the present case.
Additionally, it appears that the Union misconstrues
the nature of the historical exclusion. In its brief, the
Union argues that branch warehouse employees have
been included in the unit since its inception, and they
should not now be deemed to have been historically ex-
cluded. As the record shows, the historical exclusion
does not encompass pure “branch warehouse employ-
ees.” Rather, the historical exclusion encompasses those
warehouse employees at the branch facilities who also
perform the functions of parts employees. In fact, the
Employer/Petitioner appears to recognize that the ware
house employees who do not perform the additional du-
ties of parts employees are members of the bargaining
unit. However, pure warehouse employees just do not
exist at the six branch facilities in question. Accord-
ingly, the Union’s argument that the branch warehouse
employees have never been excluded from the unit is
misplaced.
As I concluded above, the warehouse employees at the
Employer/Petitioner’s branch facilities who also perform
the duties of parts employees have been historically ex-
cluded from the bargaining unit. In this situation, it is
inappropriate to entertain a unit clarification petition.
Bethlehem Steel Corp., 329 NLRB 243, 244. Accord-
ingly, I shall dismiss the petition.4

4 The Employer/Petitioner argues because the evidence supports a
conclusion that branch warehouse employees who perform additional
duties have been historically excluded from the bargaining unit, clarify-
ing the unit accordingly merely recognizes the reality of the situation.
However, I am bound by Board precedent to dismiss the petition.
While the concurring opinion of Members Hurtgen and Brame in Beth-
lehem Steel Corp., supra, supports the Employer/Petitioner’s position, it
was clearly rejected by the majority.
In its brief, the Employer/Petitioner argued that because the Union
subpoenaed the Employer/Petitioner’s expert, it should be ordered to
pay his witness fee. As I believe the Employer/Petitioner’s request is
beyond the scope of my authority, I decline to issue such an order.