President and Trustees of Bowdoin College

BOWDOIN COLLEGE President and Trustees of Bowdoin College ' and Indus- trial Union of Marine & Shipbuilding Workers of America, AFL-CIO,' Petitioner. Case 1-RC-11,339 April 29, 1971 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Gerald Wolper. Fol- lowing the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended, by direction of the Regional Director for Region 1, the case was transferred to the Board for decision. The Employer and Petitioner have filed briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer, incorporated in the State of Maine and the Commonwealth of Massachusetts, is an educa- tional organization engaged in the operation of a pri- vate, nonprofit college at its location in Brunswick, Maine. The Employer annually receives gross revenue in excess of $1 million exclusive of contributions which, because of limitations placed thereon by the grantor, are not available for operating expenses. The Employer annually receives materials valued in excess of $50,000 directly from locations outside the State of Maine. In view of the foregoing facts, we find that the Employer is engaged in commerce within the meaning of the Act, and inasmuch as its gross volume of business meets the Board's standard for assertion of jurisdiction over pri- vate nonprofit colleges or universities, we find that it will effectuate the policies of the Act to assert jurisdic- tion herein.' 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. The name of the Employer appears as amended at the hearing : The name of the Petitioner appears as amended at the hearing National Labor Relations Board's Rules and Regulations, Sec 103.1, published in 35 F R 18370, December 3, 1970 193 4. Petitioner seeks to represent all regular full-time and part-time employees, including maintenance em- ployees (building and equipment), groundskeeping em- ployees, janitorial and housekeeping employees, food service employees, warehouse employees, delivering and driving employees employed by the Employer at its Brunswick, Maine, campus and at other facilities in- cluding warehouses, fraternity houses, and dormitories in Brunswick, Maine; but excluding all clerical em- ployees, teaching employees, technical employees, sales employees, part-time student employees, guards and supervisors as defined in the Act.' At the hearing, the parties agreed that the following classifications of employees should be included in the unit: non-fraternity custodians who perform general housekeeping duties, tradesmen, groundsmen, heating plant attendants, all non-fraternity kitchen and cafete- ria helpers, food service warehouse personnel, and grounds and building stockroom personnel. The parties also agreed that the following classifica- tions of employees should be excluded from the unit: campus security personnel, custodial foremen, grounds foremen, heating plant foreman, physics department technicians, theater technicians, physical education stockroom attendants, chemistry department stock clerks, bookstore stockroom attendants, student em- ployees, and the campus mail delivery man. The Employer would also exclude, but the Petitioner would include, all fraternity employees and the campus chefs. The Employer contends that the fraternity em- ployees are not employees of the college but are em- ployees of the various fraternities, and that, even it found to be employees of the college, all chefs should be excluded on the ground that they are supervisors within the meaning of the Act. There is no bargaining history. The 10 fraternities are located approximately 100 to 1,000 yards from the college campus. Each is a separate corporation which owns its house and the property on which it is situated. Each fraternity house is operated by a steward who is an elected student and a board of trustees who are college alumni and, in some instances, also officers of the college. All fraternities must be offi- cially recognized and approved by the college for stu- dent living and dining accommodations. Recognition also entitles the fraternities to the college's food con- sulting services and the purchase of food staples and groceries from the college warehouse. The fraternities buy most of their food supplies from the warehouse for which the college charges them 10 percent of their gross food service income for bookkeeping and consult- ing services. They are billed by the college for mainte- nance and other services. ' The Petitioner amended its proposed unit at the hearing. 190 NLRB No. 41 194- DECISIONS OF NATIONAL LABOR RELATIONS BOARD The college keeps all the fraternity books and records, including personnel records, and collects and disburses all funds, including paychecks for all em- ployees except fraternity custodial employees, debiting and crediting each fraternity accordingly. Employees working both on campus and at a fraternity house re- ceive a single paycheck. Approximately 600 of the 950 students eat at the fraternity dining rooms, and all students pay the same amount for room and board to the college whether they live in a college or fraternity residence or whether they eat in college or fraternity dining rooms. All employees, except for fraternity custodians, when hired receive the college employee handbook which sets forth wage rates, hours, and other terms and conditions of employment, including fringe benefits for all employees. Payroll deductions are made by the col- lege and social security taxes are paid by college check for all employees. The Workmen's Compensation in- surance policy carries the name of the college president and college trustees. The college pays all costs of the Employees Retirement Plan and a scholarship program for all employees' children. Employee service at the various fraternities is credited for retirement, as well as for probationary period and seniority, purposes. All applicants for employment fill out the college application form and all employees use college time- cards. The college personnel office recruits personnel for the fraternities as well as the college and refers applicants to them. Employees may be interviewed ei- ther by the college personnel office or by the fraternity steward and trustees, and in certain instances by both. Myron L. Crowe, director of dining services at the college, testified that his position is that of adviser to the fraternities and that he could effectively recom- mend hiring of fraternity employees. There is also tes- timony that the steward usually determines the wage within the handbook range, and makes the final deci- sion to hire fraternity employees. However, the chef at one fraternity testified that he was interviewed for his job by the head of the central dining service, Crowe's predecessor, who told him what his wages would be and by the fraternity steward who inquired only as to his qualifications as a cook, and that he received the employee handbook. There also is evidence that when the chef is unable to report for work, the director of dining services arranges for a substitute, and on one occasion a second cook on campus filled in at a frater- nity until a chef was hired. Clara Rigdon, who is em- ployed at two fraternity houses and also works as a dishwasher on campus, testified that she was hired for all three positions by Crowe. In these circumstances, including the degree of con- trol exercised by the college over the functions, the services, and these employees of the fraternities, and the interdependence of the college and the fraternities, we find that the college is, at the very least, a joint employer of the fraternity chefs and kitchen helpers.' Fraternity Chefs: The record shows that, at present, food service employees at each of nine fraternities con- sist of a chef and a kitchen helper. The remaining fra- ternity has only a kitchen helper. Chefs usually work from 9:30 or 10 a.m. until 6 or 7 p.m., although this schedule may vary . The chef's principal duties are or- dering food supplies and preparing two meals daily. The chef at one fraternity testified that he was not told by anyone that he had any supervisory authority and had never exercised any, as the kitchen helper has left for the day before he arrives . The record also shows that the kitchen helper at this fraternity is a part-time employee who works from 6:30 or 7 a.m. until 10 a.m. and has the responsibility for preparing the breakfast. She also works at another fraternity and as a dishwasher on campus . The chef substitutes for the kitchen helper on her days off, Saturday and Sunday, and when otherwise absent, and she substitutes for the chef on his day off, Wednesday, and when he is absent. Crowe, director of dining services, testified that he furnishes temporary chefs and kitchen helpers when needed by the fraternities and that he has authority effectively to recommend hire of fraternity food service employees. He further testified that as a general rule the fraternity would accept his advice regarding food ser- vice personnel. The record shows that fraternity chefs are hourly paid; their wages are in the same rate range , or some- what lower than wages paid campus chefs ; they are paid overtime; and they receive the same fringe benefits as other employees. In view of these facts,' we find insufficient evidence that fraternity chefs either possess or exercise super- visory authority within the meaning of the Act which would warrant their exclusion from the bargaining unit. Accordingly, we shall include fraternity chefs, as well as kitchen helpers, in the unit. Fraternity Custodians: The record shows that cus- todial employees, some of whom are students , perform housekeeping duties at the fraternities and are the only employees who are hired and paid directly by the fra- ternity. They do not receive any of the fringe benefits other employees receive; they are part-time employees. In these circumstances, we find that fraternity cus- todial employees are not employees of the college. Ac- cordingly, we shall exclude them. ' Jewell Smokeless Coal Corporation, 175 NLRB No. 12, enfd. 435 F.2d 1270 (C.A. 4); cf. ParkvueMedical Center and General Hospital, 183 NLRB No. 65. ' We have not relied on the testimony of Vice President Hokanson or Bursar Libby for the duties and authority of the fraternity chefs, as they do not appear to have first-hand knowledge of the subject. BOWDOIN COLLEGE Campus Chefs: There are four campus chefs whose status is in dispute: the executive chef at the Senior Center dining room, the head chef and the night chef at the Moulton Union dining room, and the infirmary chef. Crowe, director of dining services, testified that campus chefs can effectively recommend to him the hiring and firing of employees, but that he has final authority, except as to infirmary food service em- ployees who are under the supervision of the physician in charge of the infirmary. The record shows that the executive chef is in charge of the Senior Center dining room and directs the work of the nine food service employees employed there. He is the only chef who is an officer of the college, is salaried, and is not paid overtime. Because he is an officer of the college, he receives fringe benefits different from other food service employees. In the absence of the director of dining services or his assistant, the executive chef substitutes for them. The Moulton Union dining room is open from 7:30 a.m. (9 a.m. on weekends) to midnight, 7 days a week, and employs 17 food service employees in addition to the 2 chefs. The head chef works from 7 a.m. to 4 p.m., and the night chef 4 p.m. to midnight. These chefs are hourly paid but their rate of pay is higher than that of other food service employees. The head chef testified that he does all the cooking, except certain grill cooking and the baking; makes out the menus; directs the day- to-day work of employees under him; signs their time- cards; and has granted employees time off. The record shows that the night chef, who is responsible for the evening meal, has similar duties and authority; that he effectively recommended the hire of an employee; and that the head chef was consulted as to the hire and trasnfer of certain employees who work under him and whether an employee should receive a wage increase. In view of the foregoing, we conclude that the evi- dence adduced as to the duties of the executive chef, the head chef, and the night chef adequately establishes that they possess supervisory authority within the meaning of the Act.' Accordingly, we shall exclude them from the unit. Tide Water Associated Oil Company, 101 NLRB 570, Sea Life, Incor- porated, 175 NLRB No 168 195 Infirmary Chef: The Employer contends that the infirmary chef has duties similar to those of the chefs found herein to be supervisors and that she had super- visory authority over the kitchen helper . However, the record fails to disclose sufficient evidence to make a determination whether the infirmary chef possesses supervisory authority within the meaning of the Act. Accordingly, we shall permit the infirmary chef to vote subject to challenge on the ground that she is a super- visor within the meaning of Section 2(11) of the Act. In view of the above, we find that the following employees constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and regular part-time em- ployees, including tradesmen , groundsmen, heat- ing plant attendants, non-fraternity custodians, fraternity chefs and kitchen helpers, non- fraternity kitchen and cafeteria helpers, food ser- vice warehouse personnel, grounds and building stockroom personnel employed by the Employer at its Brunswick, Maine, campus and at other facilities including warehouses , fraternity houses and dormitories in Brunswick, Maine; but exclud- ing executive chef at the Senior Center, head chef and night chef at Moulton Union , campus security personnel, custodial foremen, grounds foremen, heating plant foreman, physics department techni- cians, theater technicians, physical education stockroom attendants, chemistry department stock clerks, bookstore stockroom attendants, campus mail delivery man, all clerical employees, teaching employees, technical employees, sales employees, student employees, technical em- ployees, sales employees, student employees, guards and supervisors as defined in the Act. [Direction of Election8 omitted from publication.] In order to insure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Underwear Inc., 156 NLRB 1236, N.L.R.B. v Wyman-Gordon Company, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employers with the Regional Director for Region 1 within 7 days after the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extra- ordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed