Wheeling Island Gaming, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 637 (N.L.R.B. 2010)

WHEELING ISLAND GAMING
355 NLRB No. 127
637
Wheeling Island Gaming, Inc. and United Food and
Commercial Workers International Union, Lo-
cal 23, Petitioner. Case 6–RC–12664
August 27, 2010
DECISION ON REVIEW AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On April 6, 2009, the Acting Regional Director for
Region 6 issued a Decision and Direction of Election
(pertinent portions of which are attached as an appendix),
in which he found that the petitioned-for unit of poker
dealers was not appropriate because poker dealers did not
have a community of interest separate and distinct from
that of craps, roulette, and blackjack dealers. The Acting
Regional Director directed an election among all the
Employer’s dealers. Thereafter, in accordance with Sec-
tion 102.67 of the National Labor Relations Board’s
Rules and Regulations, the Petitioner filed a timely re-
quest for review. The Employer filed an opposition. On
July 30, 2009, the Board granted the Employer’s request
for review.1 The Employer filed a brief on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record, we af-
firm the Acting Regional Director’s finding that a unit
limited only to poker dealers is not an appropriate unit
for collective-bargaining purposes.2

1 Having carefully considered the matter, the panel reaffirms the ear-
lier decision to grant review.
2 We agree with our colleague that in making unit determinations,
the Board’s task is not to determine the most appropriate unit, but sim-
ply to determine an appropriate unit. See P. J. Dick Contracting, 290
NLRB 150, 151 (1988), and Overnite Transportation Co., 322 NLRB
723 (1996). In so doing, the Board looks first to the unit sought by the
petitioner, and if it is an appropriate unit, the Board’s inquiry ends. See
Boeing Co., 337 NLRB 152, 153 (2001). However, the Board’s in-
quiry “never addresses, solely and in isolation, the question whether the
employees in the unit sought have interests in common with one an-
other. Numerous groups of employees fairly can be said to possess
employment conditions or interests ‘in common.’ Our inquiry—though
perhaps not articulated in every case—necessarily proceeds to a further
determination whether the interests of the group sought are sufficiently
distinct from those of other employees to warrant the establishment of a
separate unit.” Newton-Wellesley Hospital, 250 NLRB 409, 411–412
(1980) (emphasis added). The Board has a long history of applying this
standard in initial unit determinations. See, e.g., Monsanto Co., 183
NLRB 415 (1970) (maintenance unit sought is not composed of a dis-
tinct and homogeneous group of employees with interests separate from
those of other employees), and Harrah’s Illinois Corp., 319 NLRB 749,
750 (1995) (same).
The dissent also questions cases in which the Board has disapproved
a petitioned-for unit as “too narrow” in scope because there is no statu-
tory basis for determining appropriate units on “size alone.” The issue,
however, is not whether there are too few or too many employees in the
unit, but rather whether the unit “is too narrow in scope in that it ex-
ORDER
The Acting Regional Director’s Decision and Direc-
tion of Election is affirmed. This proceeding is re-
manded to the Regional Director for further appropriate
action consistent with this Decision on Review and Or-
der.

MEMBER BECKER, dissenting.
The petitioned-for unit contains all the employees who
do the same job at the same location. From the perspec-
tive of employees, this is one of the most logical and
appropriate units within which to organize for the pur-
pose of engaging in collective bargaining. I would find
that the proposed unit is an appropriate unit and I there-
fore dissent.
In this case, the approximately 60 poker dealers em-
ployed by the Employer at the casino sought to organize
together. The poker dealers all performed the same du-
ties, and their common job description was different
from the job descriptions of the other dealers. While
other dealers performed some functions similar to those
performed by the poker dealers, only the poker dealers
had an identical set of job duties. The poker dealers all
worked together within the casino, physically separated
from, in fact on a different floor than, the other dealers.
The poker dealers all shared common supervision dis-
tinct at both the first and second levels from the other
dealers. The poker dealers punched one timeclock while
other dealers used another. When they were not work-
ing, the poker dealers used their own break room. The
poker dealers were also accorded a longer break than that
enjoyed by the other dealers. The poker dealers received
tips directly from customers; other dealers received their
tips from a pool. The poker dealers all had the same
training, different from the other dealers, leading to a
different certification and different state license.
Each of the characteristics shared by the poker dealers
and each of the distinctions between the poker dealers’
and the other dealers’ terms and conditions of employ-
ment was created by the Employer (or, in the case of the
licensing and certification requirements, by the State of
West Virginia). In other words, the employees here have
chosen to organize within a unit defined by their Em-
ployer’s own policies and practices.

cludes employees who share a substantial community of interest with
employees in the unit sought.” Colorado National Bank of Denver, 204
NLRB 243 (1973) (emphasis added).
Member Schaumber notes that the Board’s long-established standard
for determining whether a petitioned-for unit is appropriate, which his
dissenting colleague seeks to change, gives effect to the statutory pro-
hibition against defining a unit based on the extent of a union’s organiz-
ing. See Sec. 9(c)(5). Thus, he disagrees that Member Becker’s dis-
senting views are consistent with the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638
The poker dealers clearly share a community of inter-
est, as they have virtually identical terms and conditions
of employment. They share a stronger community of
interest than that shared by the employees who would
comprise the unit their Employer argues is the only ap-
propriate unit—the unit of all dealers. To be sure, the
poker dealers may also share a community of interest
with the other dealers, but that is not the relevant statu-
tory standard. The statute makes clear, and the Board
has repeatedly held, that the only question before us is
whether the proposed unit is an appropriate unit, not
whether it is the most appropriate unit. It bears repeating
here that “[t]here is nothing in the statute which requires
that the unit for bargaining be the only appropriate unit,
or the ultimate unit, or the most appropriate unit; the Act
requires only that the unit be ‘appropriate.’” Morand
Bros. Beverage Co., 91 NLRB 409, 418 (1950) (empha-
sis original).
The Board has held that it will not approve “fractured
units, i.e., combinations of employees that are too narrow
in scope or that have no rational basis.” Seaboard Ma-
rine, Ltd., 327 NLRB 556, 556 (1999). Here, however,
the proposed unit has a rational basis, as explained
above. Indeed, it should be emphasized that from the
perspective of employees seeking to exercise their rights
under the Act, one clearly rational and appropriate unit is
all employees doing the same job and working in the
same facility. Absent compelling evidence that such a
unit is inappropriate, the Board should hold that it is an
appropriate unit.
As to whether the proposed unit is “too narrow,” the
Board has no statutory authority to judge units based on
their size alone. If the proposed unit has a rational basis
rooted in the employer’s policies and practices so that
employees in the unit share a community of interest, it is
neither “too narrow” nor “too broad.” An inappropriate
“fractured unit” in this case might include only some of
the poker dealers or some of the poker dealers and some
of the other dealers. Such gerrymandered units are inap-
propriate. In contrast, a unit of all poker dealers is ap-
propriate. Moreover, if employees choose to be repre-
sented in an appropriate unit and, thereafter, the parties’
experience with collective bargaining suggests to them
that bargaining would be more productive in a larger or
differently contoured unit, the parties are free to change
the unit to better suit their mutual interests. For example,
they may add additional employees to the initial unit so
long as a majority of the added employees demonstrate
their support for representation in the expanded, existing
unit. Collective bargaining is a dynamic and evolving
process and that evolution may include adjustment of the
shape of the unit. The parties are free, based on their
experience in bargaining, to seek to reshape the unit into
the most appropriate unit. But the Board’s task is more
limited—simply to decide if the proposed unit is an ap-
propriate unit.
American Cyanamid Co., 131 NLRB 909 (1961),
should control here. In that case, the Board, after grant-
ing a motion for reconsideration and hearing oral argu-
ment, reversed its earlier decision that had found a sepa-
rate unit of maintenance employees to be inappropriate.
In reversing its own prior decision, the Board found:

The record in this case fails to establish that the Em-
ployer’s operation is so integrated, as alleged herein,
that maintenance has lost its identity as a function sepa-
rate from production, and that maintenance employees
are not separately identifiable.

Id. at 910. After this statement, the Board cited what it con-
sidered to be the factors to be considered in determining if
the employees were “separately identifiable,” including
placement within the employer’s organizational structure,
supervision, duties, and skills. The Board concluded, based
on an analysis of those factors, that the maintenance em-
ployees were “readily identifiable as a group whose similar-
ity of function and skills create a community of interest such
as would warrant separate representation.” Id. Here, for
each of the reasons stated above, the poker dealers are
clearly “separately identifiable” and “readily identifiable as
a group.”
In American Cyanamid, supra, the Board did not re-
quire a showing that the terms and conditions of em-
ployment of the maintenance employees substantially
differed from all other employees of their employer. The
Board has occasionally suggested, however, that there is
a requirement of an “affirmative showing” that a peti-
tioned-for unit possess “special and distinct interests as
would outweight [sic] and override the community of
interest shared with other plant employees.” Kalamazoo
Paper Box Corp., 136 NLRB 134, 137 (1962); see also
Boeing Co., 337 NLRB 152 (2001) (finding a unit of
recovery and modification employees at an air base inap-
propriate because the petitioned-for group did not share a
community of interest sufficiently distinct from all pro-
duction and maintenance employees at the base); Tran-
serv Systems, 311 NLRB 766 (1993) (finding a peti-
tioned-for unit of bicycle messengers inappropriate be-
cause they did not share “a sufficiently distinct commu-
nity of interest” from driver messengers). But Kalama-
zoo Paper Box was a severance case. Requiring a
heightened showing of distinctiveness might be appro-
priate to justify severing a group of employees from an
existing unit, but it is not appropriate in determining
WHEELING ISLAND GAMING 639
whether a proposed unit of unorganized employees is an
appropriate unit.
Finally, the statutory goal of promptly resolving dis-
putes concerning representation counsels against expand-
ing the grounds upon which the unit designated in the
petition can be challenged beyond those intended by
Congress. The Board has repeatedly recognized “the
Act’s policy of expeditiously resolving questions con-
cerning representation.” Northeastern University, 261
NLRB 1001, 2001 (1982). The fact that, unlike in elec-
tions for public office, districting must occur before
every election among previously unrepresented employ-
ees poses a challenge for the Board in the administration
of Federal labor policy. The fact that today, 75 years
after the Act’s passage, litigation, often protracted litiga-
tion, over the scope of the unit occurs prior to almost
every contested election suggests the Board could do
better.1 Too often, parties dispute the scope or shape of
the proposed unit as a means of delaying an election or
obtaining other strategic advantages. Rather than assur-
ing “to employees the fullest freedom in exercising the
rights guaranteed by this Act,” as Congress commanded,
the Board’s unit determinations have accumulated into a
complex and uncertain jurisprudence that threatens to
thwart employees’ efforts to exercise their right to
choose a representative. A standard more consistent with
the statutory commands would sharply limit opportuni-
ties to use litigation over the appropriateness of the unit
for collateral purposes and thereby better accomplish the
purposes of the Act.2
APPENDIX
ACTING REGIONAL DIRECTOR’S DECISION
AND DIRECTION OF ELECTION
The Employer, Wheeling Island Gaming, Inc., oper-
ates a hotel, racetrack, and casino in Wheeling, West
Virginia, where it employs about 240 table games deal-
ers. The Petitioner, United Food and Commercial Work-
ers International Union, Local 23, filed a petition with

1 But see 29 CFR Secs. 103.30, et seq. (establishing appropriate units
in acute care hospitals), and American Hospital Assn. v. NLRB, 499
U.S. 606 (1991) (upholding the rules).
2 Nothing in Sec. 9(c)(5) of the Act precludes this approach. That
provision of the Act prevents the Board from making “the extent to
which employees have organized . . . controlling” in its determination
of whether a proposed unit is appropriate. As construed by the Su-
preme Court in NLRB v. Metropolitan Life Insurance Co., 380 U.S.
438, 441 (1965), the provision was “intended to overrule Board deci-
sions where the unit determined could only be supported on the basis of
the extent of organization.” Here, as shown, the unit is consistent with
the Employer’s policies and practices and the employees in the unit
clearly share a community of interest. Finding the proposed unit to be
an appropriate unit is fully consistent with the commands of Sec. 9 and
the purposes of the Act as a whole.
the National Labor Relations Board under Section 9(c) of
the National Labor Relations Act seeking to represent a
unit of all full-time and regular part-time poker dealers.
A hearing officer of the Board held a hearing and the
parties filed timely briefs with me.
As evidenced at the hearing and in the briefs, the par-
ties disagree on the following issue: whether a unit lim-
ited to the poker dealers constitutes an appropriate unit.
Contrary to the Petitioner, the Employer asserts that the
poker dealers do not share a community of interest sepa-
rate and distinct from the other table games dealers.
The Employer contends that the smallest appropriate
unit consists of all table games dealers, while the Peti-
tioner contends that the petitioned-for poker dealers con-
stitute an appropriate unit. The Petitioner has indicated a
willingness to proceed to an election in any unit found
appropriate. The unit sought by the Petitioner has ap-
proximately 60 employees, while the unit the Employer
seeks would include about 240 employees. There is no
history of collective bargaining for any of the employees
involved herein.
I have considered the evidence and the arguments pre-
sented by the parties on the issue presented. As dis-
cussed below, I have concluded that the poker dealers do
not have a community of interest separate and distinct
from the other table games dealers, and therefore do not
constitute a separate appropriate unit. Rather, I have
concluded that the smallest appropriate unit must include
all table games dealers. Accordingly, I have directed an
election in a unit that consists of approximately 240 em-
ployees.
To provide a context for my discussion of the issue
presented, I will first provide an overview of the Em-
ployer’s operations. Then, I will present in detail the
facts and reasoning that supports my conclusions on the
issue raised herein.
I. OVERVIEW OF OPERATIONS
As noted, the Employer is engaged in the operation of
a hotel, dog-racing track, and casino at its Wheeling,
West Virginia facility. Solely involved in these proceed-
ings is the Employer’s gaming casino. At its gaming
casino, the Employer offers slot machines as well as
poker and other table (or pit) games; the other table
games are craps, roulette, and blackjack.
The Employer’s racing, table games, including poker,
and slots operations are under the direction of Vice
President of Gaming Operations Michael Maestle. The
table games, including poker, are under the direction of
Director of Table Games Michael Tusken. Reporting
directly to Tusken are shift managers, who have overall
responsibility for the operation of poker and the other
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
table games on their respective shifts.2 Reporting to the
shift managers are a poker manager and table games man-
agers. Further, reporting to the poker manager are poker
supervisors and reporting to the table games managers are
table games supervisors. There are four supervisors who
are certified and/or licensed to supervise both poker deal-
ers and the other table games dealers.3
The Employer employs approximately 240 dealers, con-
sisting of approximately 40 full-time and 20 part-time
poker dealers, and approximately 145 full-time and 35
part-time other table game dealers.
There is no history of collective bargaining for any of
the poker or other table games dealers. However, other
groups of employees of the Employer are represented by
either the Petitioner or by other labor organizations. Spe-
cifically, the Petitioner presently represents approximately
300 employees covered under a current collective-
bargaining agreement. These employees are valets, facili-
ties cleaning and maintenance employees, cage associates,
and slots associates.4 In addition, UNITE HERE repre-
sents approximately 300 to 350 food service employees
who are covered by a contract.5 UNITE HERE also repre-
sents about 70 hotel employees who are covered by a
separate contract. Further, UNITE HERE represents about
50 security guards covered by a separate contract. Finally,

2 One poker dealer testified that the shift manager is in the poker
room for a couple minutes a day and at that time, speaks to the poker
supervision.
3 However, the record does not indicate whether these supervisors
actually supervise both groups of dealers.
4 The hearing officer properly rejected the Petitioner’s attempt to in-
troduce testimony regarding the circumstances by which it came to
represent a diverse group of employees under one contract. The Peti-
tioner made an offer of proof to the effect that in the early 1990s, an
independent union representing the parimutuel employees approached
the Petitioner to merge with it; a year later, a unit of maintenance de-
partment employees was certified and then joined the existing unit;
after that, other departments were voluntarily recognized or certified
following an election, and then joined the existing unit.
While the parties’ past collective-bargaining history is a factor given
consideration in community-of-interest determinations, in the present
case, there is no collective-bargaining history for any of the petitioned-
for poker dealers or for the other table games dealers whose inclusion is
urged, and the sole collective-bargaining history involves unrelated
groups of employees.
Further, the Employer’s past willingness to agree to the merger of
small groups of employees into an existing unit does not compel the
Employer to take the same position in the present case. Stated other-
wise, the fact that the Employer in the past may have agreed to recog-
nize under one contract a unit which may not have been an appropriate
unit under Board precedent, does not preclude the Employer from con-
testing the appropriateness of the petitioned-for unit in this case or the
Board from determining that the petitioned-for unit is inappropriate.
See, e.g., Alley Drywall, Inc., 333 NLRB 1005 (2001) [Narrow unit in
8(f) agreement does not preclude broader petitioned-for 9(a) unit].
5 Food service employees work in the poker room and other table
game areas as well as in other areas of the Employer’s operations.
IATSE represents about 10 to 15 stagehands who are cov-
ered by a contract.
The poker room is located on the lower level of the Em-
ployer’s casino; the other table games are located on the
upper level. This particular layout is in place solely as a
result of the Employer’s expansion of its facility because
of the addition of games.
II. THE DEALERS
The duties and functions of all of the dealers are sub-
stantially similar, with individual variations depending on
the particular game for which they are responsible. Each
dealer is responsible for ensuring that the particular game
is played according to set procedures, for handling the
“tools” of the particular game—cards, dice, roulette wheel,
for collecting wagers, and for paying winnings. The deal-
ers are not active participants in the games and do not ex-
ercise discretion either in the manner in which the games
are played or in the manner by which the winnings are
determined.
The record discloses that the differences in duties and
functions of the dealers are relatively minor. Specifically,
the poker dealers do not actively play hands, while the
blackjack dealers play hands. Also, the poker dealers do
not handle cash transactions at the table, while craps and
blackjack dealers handle cash at the table.6
The job qualifications for all of the dealers is similar,
with variations depending solely on the particular game
involved. All applicants go through the same hiring proc-
ess. Applicants for dealer positions must either possess a
certificate from a school verifying completion of a training
program in a specific game, or have equivalent experi-
ence.7 All applicants must audition for the particular game
involved to demonstrate that they meet the Employer’s
standards. All applicants must pass a drug test and back-
ground check. Upon satisfaction of these requirements,
the applicant is issued a license from the State of West
Virginia. Although the dealers are licensed for either
poker or for other table games collectively, the dealers
actually deal only the specific games for which they are
certified or have otherwise successfully auditioned.8
There are approximately four dealers who are certified
and/or licensed in both poker and another table game.

6 The Employer’s method of generating revenue on the games is also
different: in poker, the Employer gets a percentage of each pot, and at
the other table games, the Employer takes the losing bets of customers.
The dealers must take this difference into consideration when paying
winners, but it does not otherwise affect the dealers’ terms and condi-
tions of employment.
7 Separate 6-week training courses are offered for poker, craps, rou-
lette, and blackjack through the local community college.
8 The similarity in the duties, functions, and skills of the poker deal-
ers and the other table games dealers is reflected in their nearly identi-
cal job descriptions.
WHEELING ISLAND GAMING 641
The work hours of all of the dealers are similar. The
Employer’s table games, including poker, operate around
the clock every day of the year. The Employer operates
three shifts for all of the dealers, with staggered starting
times.9 The record reveals one relatively minor difference
in the hours of the dealers: the poker dealers have a 30-
minute break, and the other table games dealers have a 20-
minute break. Further, although all of the dealers punch
timeclocks, because of the different break periods, the
poker dealers and the other table games dealers are re-
quired to use separate timeclocks.
The manner of pay for all of the dealers is based on
hourly wages and tips.10 All dealers start at the same pay
rate and are eligible for increases based on their perform-
ance appraisals.11 While the poker dealers receive their
tips directly from the players, and the other table games
dealers share equally in the pooled tips, the record does
not disclose whether there is a variation in the actual
amount of tips received by poker dealers and other table
games dealers. The benefit package available for all of the
dealers is the same.12
The human resources policies and procedures are the
same for all of the dealers. All dealers are covered by the
same associate handbook. All dealers are evaluated using
the same performance appraisal, and as noted, are eligible
for the same wage increases.13 All dealers wear the same
uniform and wear a name tag.14
As noted above, there are about four dealers who are
certified and/or licensed to deal both poker and another
table game. It appears that some dealers possessing dual
certification/licensing in poker and one of the table games
obtained the second certification/license as a result of their
first jobs being eliminated, so that they could then work in
the area of their second certification. Thus, it appears that
there has been some movement, albeit limited, between
the poker dealers and the other table games dealers.

9 The staggered starting times apply to all dealers.
10 Paystubs for poker dealers indicate the payee works in the
“Wheeling Poker Room.”
11 The starting wage rate is $5.15 per hour and increases vary from 0
to 3.5 percent, based on the performance appraisals.
12 This benefit package also applies to all other nonunion employees.
13 The associate handbook is applicable to all other nonunion em-
ployees and the performance appraisal is also used to evaluate all other
nonunion employees.
14 The name tag identifies the dealer as handling poker or table
games.
The dealers have informal contact with each other as a
result of sharing the same locker room,15 sharing the same
smoking area, and attending periodic departmental meet-
ings. There are two break rooms, one on each level, and
they tend to be used by the dealers working on that spe-
cific level, although the dealers can use either one. How-
ever, the only smoking area is in the lower-level break
room.
III. ANALYSIS
It is well established that there is nothing in the Act
which requires that the unit sought be the only unit, the
ultimate unit, or the most appropriate unit. The Act re-
quires only that the unit be appropriate. Overnite Trans-
portation Co., 322 NLRB 723 (1996). In determining
whether unit employees possess a separate community of
interest, the Board examines factors such as common func-
tions and duties, shared skills, functional integration, tem-
porary interchange, frequency of contact with other em-
ployees, commonality of wages, hours, and other working
conditions, permanent transfers, shared supervision, com-
mon work location, and bargaining history. See generally
Casino Aztar, 349 NLRB 603 (2007); Publix Super Mar-
kets, 343 NLRB 1023 (2004); Alley Drywall, Inc., 333
NLRB 1005 (2001); Hotel Services Group, 328 NLRB
116 (1999); Transerv Systems, 311 NLRB 766 (1993);
Phoenician, 308 NLRB 826 (1992). Applying these fac-
tors, I find that Board precedent does not support a sepa-
rate unit of poker dealers apart from other table games
dealers in the circumstances of this case.
The poker dealers cannot be distinguished from the
other table games dealers on the basis of their job func-
tions, duties, or skills. All dealers perform the same basic
function, that is, operating various wagering games for
customers. Moreover, the poker dealers have the same
duties as the blackjack dealers: operating a card game for
customers. The similarity in job functions and duties is
underscored by the fact that all of the dealers must possess
certifications, or equivalent experience, and licensing to
perform their jobs.
Additionally, there is no distinction between the peti-
tioned-for and excluded employees in terms of skill or
training. All applicants for dealer positions, regardless of
whether for a poker dealer or other table games dealer,
undergo the same hiring process. Applicants for all dealer
positions are required to have a certificate from a 6-week
training program, or past experience. They must

15 This locker room is also shared with other employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
pass an audition, a drug test, and a background check.
Thereafter, they are licensed by the State of West Virginia.
While the licensing is for poker or for the other table
games collectively, as a practical matter, a dealer is only
assigned to deal those table games in which the dealer is
certified or has otherwise demonstrated proficiency
through the audition. Thus, the poker dealers do not have
a separate community of interest with regard to their job
function, duties, or skills.
There is also significant functional integration among all
of the dealers. The poker dealers and the other table
games dealers are integral elements of the Employer’s
gaming operations. The functional integration between
these two groups of dealers is evident in the Employer’s
administrative hierarchy. Although the poker dealers and
the other table games dealers have separate immediate
supervision, all table games, including poker, are under the
direction of one manager, who in turn, reports to a senior
manager in charge of racing, slots, and table games.
Based on their method of pay or hours of work, the peti-
tioned-for poker dealers cannot be distinguished from the
other table games dealers. With regard to their pay, all of
the dealers are hourly employees, who are paid the same
starting wage and depend on tips to supplement their
wages. The fact the poker dealers keep individual tips and
the other table games dealers share tips appears to be a
minor difference. See Hotel Services Group, supra (peti-
tioned-for licensed massage therapists did not possess a
separate community of interest apart from the employer’s
other licensed salon and spa personnel even though they
all received different combinations of hourly rates, com-
missions, and gratuities). All dealers receive the same
benefit package. With regard to their hours of work, all
dealers work similar shifts. Thus, the poker dealers do not
have a separate community of interest with regard to their
hours of work and pay.
The poker dealers cannot be distinguished from the
other table games dealers on the basis of human resources
policies or procedures. All of the dealers are subject to the
same associate handbook and are evaluated using the same
performance appraisal.
There are about four dealers who are certified and/or li-
censed to deal both poker and table games. Some of the
dealers possessing dual certification/licensing in poker and
one of the table games apparently obtained the second
certification/license after their first jobs were eliminated.
These dealers were then rehired in the area of their second
certification/licensing. Consequently, there has been some
limited movement between the poker dealers and the other
table games dealers. While there is no evidence of daily
interchange between the poker dealers and other table
games dealers, the absence of daily interchange does not
mandate a finding that the poker dealers constitute a sepa-
rate appropriate unit. See Phoenician, supra at 827.
In addition, all of the dealers have the opportunity to
have informal contact with each other as a result of sharing
the same locker room, sharing the same smoking area, and
attending periodic departmental meetings. Thus, the poker
dealers cannot be distinguished from the other table deal-
ers on the basis of their casual contact with each other.
The poker dealers are separately supervised by the
poker supervisors and poker manager. Although this fac-
tor weighs in favor of a separate poker dealers unit, it does
not compel a finding that such a unit is appropriate. In this
case, this factor is outweighed by all the other factors sup-
porting a conclusion that a separate poker dealers unit is
not appropriate here. In view of the facts as a whole, I find
that the poker dealers’ separate immediate supervision is
insufficient to demonstrate that the poker dealers have a
sufficiently separate and distinct community of interest
apart from the other table games dealers. See Casino Az-
tar, supra; Hotel Services Group, supra.
Based on the above and the record as a whole, I find that
a unit limited to the poker dealers is inappropriate because
those employees do not possess a community of interest
separate and distinct from the other table games dealers.16
In sum, I find that the poker dealers have little community
of interest with each other that is not also shared with all
of the other dealers. Both poker and the other table games
are integral elements of the Employer’s business of operat-
ing a casino. All of the dealers share the same skill set,
work similar hours in the same casino, are paid in a similar
manner, receive the same benefits, and are subject to the
same human resources policies and procedures. Thus, all
dealers have substantially similar terms and conditions of
employment.
While there are some factors which would support find-
ing the petitioned-for unit appropriate, such as separate
immediate supervision, absence of daily interchange and
the relatively small number of employees who have
moved from one group to the other, in the circumstances
of this case, these factors are insufficient to demonstrate
that the poker dealers have a separate community of inter-
est distinct from the other table games dealers. For these
reasons, I find that the poker dealers do not constitute an
appropriate unit in the particular circumstances of this
case. Rather, I find a unit of all of the dealers to be the
smallest appropriate unit. See Silver Spur Casino, 192
NLRB 1124 (1971) (poker department shared commu-
nity of interest with petitioned-for gaming operations).

16 Given the disposition of the issue herein, I need not reach the issue
of whether finding the petitioned-for unit to be an appropriate unit
would contravene Sec. 9(c)(5) of the Act.