Cornell University

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cornell University and Chauffeurs, Teamsters, Ware- housemen ,and Helpers Local Union #65, Petition- er. Case 3-RC-5432 March 8, 1973 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Richard C. Heffern of the National Labor Relations Board. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, by direction of the Regional Director for Region 3, this case was transferred to the Board for decision. Thereafter the Employer and the Petitioner' filed briefs. 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. On the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein.2 2. The labor organizations involved claim to represent certain employees of the Employer.3 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The petition, as amended, seeks a unit of all full-time and regular part-time employees, including students, employed at 10 of the 18 dining facilities operated by Cornell University on its Ithaca, New York, campus, excluding all academic, professional, technical, confidential, and clerical employees, and all guards and supervisors as defined in the Act. There are also five fraternity houses, owned by the University, on the Ithaca campus whose chefs are University employees; these chefs are not sought by Petitioner. The Employer takes the position that the appropriate unit should consist of all nonacademic, 1 With the Board's consent the following parties submitted amicus curiae briefs supporting the exclusion of student employees from any unit found appropriate for purposes of collective bargaining : Columbia University, Hofstra University, Harvard College, Amherst College, Brown University, The Catholic University of America, Hobart & William Smith Colleges, the University of Chicago, the Association of Independent Colleges and Universities in New Jersey, Northeastern University, Yale University, Wheaton College, Colgate University , Massachusetts Institute of Technolo- gy, Georgetown University, the University of Rochester, Duquesne University of the Holy Ghost, Manhattan College, Servomahon, Inc., Fordham University, Drake University, and Vanderbilt University. 2 Cornell University, 183 NLRB No 41, Sec 103.1 of the Board's Rules and Regulations, Series 8, as amended 3 At the hearing, Local 200 Service Employees International Union, nonsupervisory employees employed by the Univer- sity throughout the State of New York,4 excluding employees of the Medical School and Nursing School in New York City, and all student employees. There is no bargaining history. Cornell University is a private nonprofit education- al institution with an enrollment of approximately 14,000 students. The University has about 5,700 nonacademic employees throughout the State. There are approximately 329 employees, including stu- dents, in the unit sought by Petitioner. Although the University's facilities are widely scattered throughout the State of New York, its operations are highly centralized: the personnel department in Ithaca establishes employment and labor relations policy for the entire University, interviews prospective employees and refers them to job vacancies (although the actual hiring is done by the various departments), classifies jobs according to 1 of 280 job classifications, and determines benefits to which employees are entitled. Job vacancies are posted throughout the University and longevity dates from an employee's initial hiring by the University. There is a uniform grievance procedure, and wage rates and other benefits are generally uniform throughout the State, with some local variations. The unit sought by Petitioner consists of all "food handlers, cafeteria workers, vending operators, cash- iers, store employees, dishwashers, custodians, cooks, waitresses, bus boys, pantry men, counter men, soda bar workers, laborers, kitchen helpers, pot washers, coffee hostesses, salad makers, grill men, etc.," Including students, employed at Willard Straight Hall Dining, Clara Dickson, Noyes Center, North Campus Union, Sage Dining, Noyes Lodge, Risley Dining, Balch Dining, Martha Van Renssalaer, and Hughes Hall. All of these facilities report through A. A. Jaeger, the University's director of dining services, as do the five chefs who work in fraternity houses owned by the University. In addition to the dining halls included in the petitioned-for unit and the fraternity houses there are eight other dining facili- ties on the Ithaca campus: Moakley House, The Green Dragon, Statler Hall, Sage Infirmary, The Commons, The Temple of Zeus, The Dairy Bar, and AFL-CIO, indicated that it would seek to intervene and thereafter was permitted to take part in the hearing by the Heanng Officer, although it is not clear in the record whether Local 200 formally was granted the status of Intervenor. It took no position with respect to the unit issue but stated that it desired to participate in any election held in whatever unit was ultimately found to be appropriate While it was somewhat irregular for the Heanng Officer to permit Local 200 to participate in the hearing without resolving its status as an intervenor one way or the other , we shall permit it a place on the ballot providing it has submitted a sufficient timely showing of interest to the Regional Director for Region 3. 4 The University's main campus is at Ithaca but it also has about 55 smaller facilities scattered throughout the State , three of which include dining facilities 202 NLRB No. 41 CORNELL UNIVERSITY 291 Phileas Fogg. Except for Statler Hall and Sage Infirmary, these facilities, located in various campus buildings, are all snack bars or coffeehouses which report through various academic department or college heads. Statler Hall is a hotel run by the Hotel Management School and Sage Infirmary's dining facility is part of the Department of Health Services and is only open to the Infirmary's patients and staff. The record shows that employees in the facilities Petitioner seeks to exclude perform the same job functions under the same working conditions as employees in the petitioned-for unit, and that six employees laid off from the petitioned-for unit now work in other university-owned dining facilities on the Ithaca campus. Further, although most of the petitioned-for facilities are dining rooms or cafeterias and most of the excluded facilities are snackbars or coffeehouses, Clara Dickson, one of the facilities sought in the petition, offers only delicatessen and vending machine services, while Statler Hall, Sage Infirmary, and the five university-owned fraternity houses, which Petitioner would exclude from the unit,5 offer full dining services. Thus it appears that the only substantial distinction between the facilities Petitioner seeks and those it would exclude is that the petitioned-for facilities report through Jaeger while the excluded ones, with the exception of the chefs, do not. However, the record indicates that the separate lines of supervision have minimal impact on the operation of any of the dining facilities and we do not find this distinction sufficient to show that the employees of the excluded facilities do not share a substantial community of interest with the employees in the petitioned-for unit. Accordingly, in view of all the factors noted above, we find that the unit sought by Petitioner is too limited to be appropriate for purposes of collective bargaining. The Employer contends that because of its central- ized operations, common labor policy and generally uniform wage rates and benefits, and the fact that a number of jobs performed by employees in the petitioned-for unit are also performed elsewhere on its campuses, all of its nonacademic, nonsupervisory employees throughout the State of New York share a substantial community of interest, and thus, only an overall unit is appropriate. However, the record shows that there is considerable geographic diversity among Cornell's various facilities and considerable 5 Petitioner originally sought to exclude Statler Hall on the grounds that the student employees there were employed as part of the curriculum in hotel management, but the record showed that 37 of the 112 students working at the Statler were not enrolled in the Hotel School at all and many of the remainder were regular student employees most of the time and only worked a few hours per week for academic credit . Petitioner's basis for excluding the Infirmary was that it is open only to patients and staff, but of the facilities sought to be included in the unit, Balch Dining is open only to special conference participants and Risley Dining apparently serves only residents of the building in which it is located. distances between many of them. Furthermore, there is a minimal degree of interchange of employees within dining services with employees of other departments.6 Moreover, the food service facilities function to provide a common service that is not offered by any of the other university departments or services, and its employees comprise a homogeneous and distinct group performing similar duties that, with the exception of custodians, laborers, and cashiers, are not performed elsewhere on the campus. These factors, plus the fact that no labor organiza- tion is actively seeking a statewide unit, lead us to the conclusion that something less than the statewide unit urged by the Employer may be appropriate. We have in the past held that the same general guidelines employed in making unit determinations in the industrial sphere should be utilized in college cases where the employer operates a number of facilities.? Applying this principle, we find that an analogy can be made between a university such as Cornell which operates dining facilities for its students and a hotel or club which operates a restaurant for its guests. In the latter situation we have held that the functions of a restaurant and the rest of a hotel's operation are not necessarily so highly integrated that only an overall unit is appropriate, and that a restaurant may constitute an appropriate units In view of the foregoing facts that establish the similarity of the above-named dining facilities to one another, we find that the employees of all the Employer's dining facilities share a substantial community of interest separate from that of other university employees, and that a unit comprised of all the Employer's dining facilities on the Ithaca campus,9 including the five fraternity chefs, is appropriate for purposes of collective bargaining. Petitioner contends that students who work part time in the dining services should be included in the unit, while the Employer would exclude them. The record shows that, although students frequently perform the same jobs under the same working conditions as nonstudent employees and the same grievance procedure applies to student and nonstu- dent employees alike, the University treats students differently in a number of ways. Students are hired through the student employment office or by the individual managers of the various dining halls 6 Eleven employees now in dining services transferred from other departments and 23 employees laid off from the petitioned-for unit now work in other departments. 7 Claremont Colleges, 198 NLRB No. 121; Cornell University, supra. 9 77 Operating Company, 160 NLRB 927 (1966 ), Denver Athletic Club, 164 NLRB 677 (1967). 9 Three food services located at three other of the Employer's facilities within New York State are not included in the unit found to be appropriate since they are open only in the summer and are geographically distant from the main Ithaca campus. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rather than through the personnel office, and, students are hired for work on a semester basis while nonstudent employees are hired for an indefinite period. Students are paid at a different and generally lower wage rate and do not receive the same fringe benefits as nonstudent employees. Furthermore, in the dining facilities most student employees have supervisors who are also students, while the nonstu- dent employees are supervised by regular full-time supervisors. Finally, for the great majority of student employees, since they have no expectation of remaining permanently in their present jobs, their employment is incidental to their academic objec- tives. In consideration of these facts and in conformi- ty with our recent decision in Georgetown University, 200 NLRB No. 14, we find that students do not share a substantial community of interest with regular nonstudent full-time and part-time employees.10 Accordingly, we shall exclude them from the unit. We find the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All food handlers, cafeteria workers, vending operators, cashiers, store employees, dishwashers, custodians, cooks, waitresses, bus boys, pantry men, counter men, soda bar workers, laborers, kitchen helpers, pot washers, coffee hostesses, salad makers, grill men, etc., employed by the Employer at all of the dining facilities operated by the Employer on its Ithaca, New York, campus, including the five chefs employed in fraternity houses owned by the Employer, and excluding all other nonacademic employees, office clericals, professionals, students, guards and supervisors as defined within the meaning of the Act. [Direction of Election 11 and Excelsior footnote omitted from publication.] 10 The parties are agreed, and we find, that regular part-time nonstudent here found appropriate, the Direction of Election is subject to an employees who work 20 or more hours per week are to be included in any administrative determination by the Regional Director for Region 3 that the unit found appropriate Petitioner's showing of interest in the unit of employees here found 11 As the Petitioner's showing of interest was in a smaller unit than is appropriate is sufficient