Illini Tower

ILLINI TOWER 355 Allen & O'Hara Developments, Incorporated d/b/a Illini Tower and American Federation of State, County & Municipal Employees, AFL-CIO, Peti- tioner. Case 38-RC-1345 April 30, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Michael B. Ryan on May 9, 1973. Thereafter, on June 25, 1973, the Regional Director for Region 13 issued his Decision and Direction of Election in the above- entitled proceeding in which he found the following unit to be appropriate: All full-time employees in the Employer's food service operations at the Illini Tower, Champaign, Illinois, but excluding part-time student employ- ees, office clerical employees, guards, professional employees, supervisors as defined in the Act, and all other employees. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended, the Petitioner filed a request for review, contending that the Regional Director had erred in not finding a separate unit of part-time students employed in the food service to be appropriate. On October 2, 1973, by telegraphic order, the National Labor Relations Board, while denying the request for review, remanded the case to the Regional Office for further hearing on the limited issue of the assertion of jurisdiction over the Employer in view of the Board's decision in Slater Corporation, 197 NLRB 1282. Thereafter, the record was reopened and on November 7, 1973, a further hearing was held before Hearing Officer Michael B. Ryan limited to the issue of jurisdiction. Following the hearing, and pursuant to Section 102.67 of the Board's Rules, the Regional Director transferred this case to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free of prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: The parties have stipulated that the Employer has gross annual revenues in excess of $500,000. We find this amount sufficient to meet our discretionary standards.' The Employer owns and operates a dormitory and food service in Champaign, Illinois, for University of Illinois students. The University is a nonprofit institution operated by the State. The dormitory building, as well as the land upon which it is located, is privately owned, although it is considered to be within the boundaries of the campus. A University rule requires that all students with less than 60 hours of credit (primarily freshmen and sophomores) live in certified housing.2 Certified housing can be either University-owned or privately owned. The privately owned certified housing is made necessary by the fact that the University does not have adequate space to house all the students with less than 60 hours of credit. In order to have its housing certified by the University, the owner must agree to abide by certain regulations formulated to insure the safety and welfare of the students. In order to maintain his certification, an owner must agree not to rent space to anyone other than University of Illinois students. It should be noted that an owner is not required to provide food service in order to receive certification. Thus, the food service may be provided to nonstu- dents, and no other restrictions are placed on the food service with the exception of the requirement that the food service pass the inspections given all restaurants by the state health department. The certified housing program is entirely voluntary in the sense that an owner may leave the program at any time. Upon leaving the program, the owner may rent his facilities to any student (as well as nonstu- dents) with more than 60 hours of credit. Further- more, the owner can have his building put on the list of available housing maintained in the university office. The owners of certified housing are completely free to set their rental prices at whatever level the market will bear. The leases for the rooms are solely between the student and the owner. If a building loses its certification, it is up to the student to break his lease without any help from the University. With the exception of the resident advisors, the owner has complete freedom to hire, fire, and discipline employees. As to the resident advisors, the I Karl Gerber, Max Taetle, Nathan Metz & Estate of Bernard Katz, Co- 2 The university's director of housing testified that the University is in Partners d/b/a Parkview Gardens, 166 NLRB 697. the process of eliminating this requirement. 210 NLRB No. 41 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD University interviews applicants and makes hiring recommendations to the property owner. The Employer contends that this case is controlled by our decision in Slater Corporation, supra, and thus we should decline to assert jurisdiction. We disagree. The Employer in Slater Corporation, maintained food service operations at a state college for the use of students, faculty, staff, alumni, and guests. The general public was not admitted. The building in which the food service was located, as well as the fixed equipment and nonperishable goods, was owned by the college. With the exception of vending machines, the employer owned none of the capital equipment located at the college. All students residing in on-campus housing were required to participate in a meal plan whereby they purchased a meal ticket from the college, good for a set number of meals per week in the dining room. Pursuant to its contract with the college, the employer in Slater was required to maintain a staff of employees that was acceptable to the college, and the employees were expected to comply with the rules and regulations established by the college. Further- more, the contract required the employer to comply with fair employment practices established by the college and to give a preference to students in filling temporary positions, as well as paying them the state minimum wage. In addition, the college reserved the right to make rules and regulations governing the employees and the operation of the food service with 3 Ja-Ce Company, Inc., 205 NLRB No. 92. Like Member Kennedy, we do not construe The Prophet Co., 150 NLRB 1559, as overruled by Ja-Ce, supra. It is, however, clearly distinguishable on the facts from Ja-Ce. (See fn. 4.) 4 Member Penello believes this case is distinguishable from Transporta- tion Enterprises, Inc, Case 23-RC-3973 (an unpublished ruling on administrative appeal). In that case the employer's business, including the phase of its operations in which the employees sought were involved, was limited almost solely to the transportation of college and university students and faculty at various institutions in the State of Texas The unit employees operated a shuttle bus service on the Austin campus of the University of Texas. The students using the service did not have a contract with the employer, but rather, with the university The students were charged a set fee per semester by the university and the university would then pay the employer. The present case is clearly distinguishable on the basis of the fact that the employees sought herein are involved in providing a service which is open to the general public rather than being limited to the students and faculty and the students' contract is solely with the Employer; the University playing no part in either establishing the fees to be charged or in the collection of those fees. If a student wishes to break his contract with the Employer, the University will not help him in any way . In addition, the University places no restrictions on the operation of the food service with the exception of the requirement that it pass the state health inspections that are required of all restaurants in the State. Member Penello feels that the above is sufficient to support a finding that the "intimate relationship" referred to by Member Kennedy is lacking in this case. Member Penello also believes that Member Kennedy's reliance on The Prophet Co., 150 NLRB 1559, and Slater Corporation 197 NLRB 1282, is misplaced. Those decisions relied on the exempt institutions' control over the employers' labor relations, in finding that the Board did not have jurisdiction. That kind of control is simply not present in the instant case. We have already pointed out the distinguishing factors in Slater, supra In Prophet, supra, the petitioner sought to represent employees working in the food service facilities operated by the employer at Whitewater State regard to the quantity and quality of food served, methods of service, prices, hours, safety, sanitation, and maintenance . The Board concluded in Slater that the college retained a substantial degree of control over the labor relations of the employer and therefore that it would not effectuate the purposes of the Act to assert jurisdiction. We feel that the amount of control exercised by the University over the operations and labor relations of the Employer herein is minimal as compared to the control exercised in Slater. Unlike Slater, the Employer here owns the building and all the equipment contained in it. Furthermore, with the exception of the resident advisors (who are not members of the unit found appropriate) the Universi- ty exerts no control over the Employer's labor relations. In addition, the Employer can release itself from complying with any University regulations by dropping out of the certified housing program. After doing so, the Employer can rent to any nonstudent or any student with more than 60 hours of credit (and eventually to all students when the certified housing requirement is eliminated).3 In light of the above, we see no reason not to assert jurisdiction herein.4 Accordingly, we shall remand this case to the Regional Director for the purpose of conducting an election pursuant to his Decision and Direction of Election.5 University in Whitewater, Wisconsin. Unlike the instant case, the facilities were for the sole use of students, faculty, staff, and alumni. The largest share of the employer's income (79 percent) was derived from the university which paid the employer a set fee for each student enrolled in the food plan. Like Slater, supra, all the fixed equipment and nonperishable goods used in the dining facility were supplied and owned by the university . Furthermore, under its contract with the university, the employer agreed to comply with all rules and regulations of the university ; to maintain service at such hours as the university and the employer mutually determined ; to submit menus for approval by the university at least I week in advance; to use necessary student help at the campus student wage scale; and to assign to duty only employees acceptable to the university. As stated previously, the Employer herein, exerts practically no control over the food service , and the control exerted over the remainder of the Employer's operation is far more limited than that in Prophet or Slater. 5 Member Fanning sees no enlargement of jurisdiction or improvident expenditure of funds incident to this Decision and Direction of Election. See, for example, Ja-Ce Company, Inc., In. 3, above, where a Board panel asserted jurisdiction over a contractor for food service in the New Jersey public school system. The dissent assumes that this housing and food service, though privately owned and located on privately owned land, and operated with a minimum of University control over its student housing aspects and no control over its food service, is "inextricably related" to the operation of the University. If this University itself owned and operated the building and food service, the Act would dictate dismissal ; there would be no question that the University as employer constituted a political subdivision of a State . But the University has effectually transferred to an employer in commerce some of its inherent authority to provide housing for students. This Employer meets the Board's discretionary standards for asserting jurisdiction and the University has retained virtually no control over its operations and labor relations. Thus, it is the Board's duty to assert jurisdiction rather than look for an "out" based on a slender strand of relationship between the employer supplying the "essential" service and the University which certifies that students may use it ILLINI TOWER 357 ORDERS This proceeding is hereby remanded to the Region- al Director for the purposes of conducting an election pursuant to his Decision and Direction of Election, except that the payroll date for determining eligibility shall be that immediately preceding the date of issuance of this Decision and Order. MEMBER KENNEDY, dissenting: A defendant accused of murdering his parents should not expect sympathy from a court on the ground that he is an orphan. Similarly, this Board should not expect a sympathetic reception to the Board's repeated pleas for understanding with respect to our ever increasing caseload when the Board rarely misses an opportunity to enlarge the types of enterprise over which we decide to assert jurisdiction.7 My colleagues stated in Modine Manufacturing Company, 203 NLRB No. 77; We must . . . consider the prudent husbandry of the funds appropriated to us for administering this Act, and also the effect on our promptness in handling not only the matter before us but also the handling of the myriad other matters regularly brought to us for action by citizens entitled so to do. It appears that in asserting jurisdiction over Illini Tower we have failed to consider "the prudent husbandry" of which my colleagues recently com- mented in Modine, supra. The University of Illinois is a state owned and operated university. As such, it is exempt from coverage of the Act by virtue of Section 2(2). The Employer's facility, which provides housing and food services for a part of the 6,000 single University undergraduates who cannot be housed in a Universi- ty facility, is vital to the continued orderly operation of the University. Thus, this certified facility is essential to and intimately related with the operation of the University, which retains a substantial degree of control over the Employer's operation by the promulgation and enforcement of rules, regulations, and standards. My colleagues' decision to assert jurisdiction over an employer whose operation is so clearly and inextricably related to the operation of an exempt state university is also inconsistent with the underly- ing policy consideration for declining to assert jurisdiction expressed in a Ruling on Administrative Appeal, dated January 16, 1974, in Transportation Enterprises, Inc., Case 23-RC-3973. There the Board affirmed, with Chairman Miller and Member Fan- ning dissenting, the administrative dismissal of a petition on jurisdictional grounds. The employer in that case was engaged primarily in the transportation of students and faculty: (1) between Austin, Texas, and the campus of Southwest Texas State College at San Marcos; (2) between Dallas, Texas, and the campus of North Texas State University at Denton, Texas; (3) between Fort Worth, Texas, and the campus of North Texas State University at Denton, Texas; and (4) between Corpus Christi, Texas, and the campus of Texas A & I University at Kingsville, Texas. I fail to perceive how it can be said that the operation of the student dormitory, Illini Tower, is any less in aid of the higher educational system of Illinois than the bus service of Transportation Enterprises, Inc., is to the higher educational system of Texas. The Board has long followed a policy of not asserting jurisdiction over food service contractors at state universities and colleges because of their intimate relationship with institutions over which we The dissent cites no precedent for husbanding Board funds when jurisdiction depends upon the application of a statutory exemption. In fact, in Modme Manufacturing Company, 203 NLRB No. 77, "the prudent husbandry of funds" was considered appropriate by the Board because the context involved administrative practices and procedures in conducting elections. The Board said these were merely an outgrowth of the Board's administrative expertise, "not in fulfillment of a direct statutory command." In the circumstances of this case it would be unreasonable to hold that the Employer is exempt as a political subdivision of the State The Board is without authority to decline to hold this election simply to save funds. 6 Member Fanning, contrary to the Regional Director, would include in the unit of full-time employees those students who regularly work part time for this Employer and in so doing work in close proximity with the full-time employees. As is clear from the record here, the University of Illinois is not the employer Also, it appears that the University makes no attempt to regulate the employment of its students by this contractor. Therefore, the normal criteria of regular part-time employment should apply in assessing the community of interest among regular part-timers some of whom happen to be students on campus Cf. ITT Canteen Corporation, a subsidiary of International Telephone and Telegraph Company 187 NLRB 1, 2, where college students-who worked only for meals ere excluded from a food service unit partly because their employment was, in effect, related to their living conditions at school. See also Barnard College, 204 NLRB No. 155, fn. 3, where the college itself was the employer , and Member Fanning would have included non-Barnard students working part time for Barnard , citing Giordano Lumber Co., Inc., 133 NLRB 205, 207 . There the Board included in a production and maintenance unit students who regularly worked on Saturdays during the school year. r Illustrative of the genuine concern of all Board Members are the following remarks of Chairman Miller to the Labor Law Section of the American Bar Association on August 7, 1973: I honestly do not see how it will be physically possible for five Board Members to handle many more cases than are projected for the current fiscal year. We already have too little time adequately to consider our present cases, and any substantial further caseload will either make us rubber stamps for whatever decisions our Administra- tive Law Judge make, or we will gradually develop a hopelessly insurmountable backlog. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cannot assert jurisdiction. See The Prophet Co., 150 NLRB 1559.8 We recently followed this precedent in Slater Corporation, 197 NLRB 1282. In sum, I would not assert jurisdiction over this Employer's operation. The University here at issue is exempt from the Act and the Employer's facility is clearly providing a service which is inextricably re'ated to the operation of that University. Prudence dictates that for policy reasons jurisdiction should not be asserted over an operation such as Illini Tower, which is clearly essential to an exempt state university. Accordingly, I would dismiss the petition. s in Crotty Brothers, N.Y., Inc., 146 NLRB 755, the Board refused to unmistakably clear from Slater Corporation supra, however, that the Board assert jurisdiction over a food service contractor at a private nonprofit did not intend to overrule The Prophet Co., supra I did not participate in the college. In ITT Canteen Corporation, 187 NLRB 1, the Board overruled decision in Ja-Ce Company, Inc., cited by Members Fanning and Penello, Crotty Brothers, supra, because the university would no longer be exempt but I do not construe that panel decision as overruling The Prophet Co. under current Board standards. Cornell University, 183 NLRB 329. It is Normally, Board precendent is not overruled by panel decisions.