The Macke Co.

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Macke Company and Hotel & Restaurant Em- ployees Union, AFL-CIO, Local 217, Petitioner. Case 2-RC-16405 May 31, 1974 DECISION ON REVIEW On February 27, 1974, the Regional Director for Region 2 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found appropriate the Petitioner's requested unit combining 99 part-time students and 44 nonstudent employees working at food service facilities operated by the Employer on the campus of Fairfield University, under contract with that private educational institu- tion in Fairfield, Connecticut. Thereafter, in accord- ance with Section 102.67 of the National Labor Relations Board Rules and Regulations, as amended, the Employer filed a timely request for review of the Regional Director's Decision on the grounds, inter alia, that, by including the student employees in the unit, he departed from precedent. The Petitioner filed an opposition thereto. By telegraphic order dated April 8, 1974, the National Labor Relations Board granted the request for review. However, it directed the Regional Director to proceed with the election, to challenge the ballots of students, and to impound all ballots cast pending decision on review. Thereafter, the Employer filed a request for reconsideration of the Board's order directing an election pending decision on review. On April 19, 1974, the Board denied the request as lacking in merit. In accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, as amended, the Employer, the Petitioner, and the Hotel and Restaurant Employees and Bartenders International Union, as amicus curiae, filed briefs on review. The Board has considered the entire record in this case with respect to the issues under review, and makes the following findings: The Employer, in providing food services at the Fairfield University campus facilities, serves about 3,300 meals daily, 7 days a week during the school year, and provides a greatly reduced servi^,e during the summer months. Of its 44 regular nonstudent employees, 35 are full-time, i.e., working 30 or more hours per week, and 9 are part-time, working 20 to 25 hours per week. Thirty-three of the nonstudent employees work at the campus center cafeteria where the overwhelming majority of the 99 student employ- ees also work. The remaining employees are divided among the three smaller campus food service facilities. The Employer contends that, under the Board's policy, the part-time student employees lack a community of interest with the nonstudent employ- ees and should therefore be excluded from the unit. We find merit in the Employer's contention. The nonstudent employees primarily work during the daytime hours. They prepare and serve the breakfast and lunch meals on weekdays and perform cleaning and maintenance duties. As found by the Regional Director, all job classifications are filled both by student and nonstudent employees with the exception of the more skilled cooking and baking jobs which are performed exclusively by nonstudent employees. Most of the student employees are hired by the Chief student manager of the Employer and with minor exceptions are supervised by student manager's.' Unlike the other employees, the students work predominantly in the evening hours and on week- ends, and their hours are apparently tailored to accommodate their commitments as students. The students normally work between 4 and 16 hours per week. They generally perform such duties as salad preparation, serving on the cafeteria line, checking student identification cards, dishwashing, and bus- ing. Although the work schedules of the student employees are fixed and regular, the Employer does not require them to work the night before exams, and students are permitted to vary their shifts if they obtain a student employee replacement. In contrast to part-time nonstudent employees who earn from $2.10 to $2.20 per hour, the student employees' initial wage rate is $1.85 per hour. Moreover, it appears that, unlike nonstudent employees, students do not receive fringe benefits.2 Although many students apparently return to work for the Employer after their summer vacation, it is clear that no student expects to remain in his job after graduation. The Regional Director, in an effort to distinguish the instant case from earlier Board precedents excluding student employees, relied, inter alia, on the fact that the students are not employed by the educational institution which they attend and that the university exercises no control over the terms or conditions of their employment. However, the facts of the instant case disclose that virtually all of the student employees are treated differently from the nonstudent employees in a number of significant ways because of their status as students, particularly i The record reveals that occasionally as many as six students have 2 In an affidavit of Division Manager Unger , submitted with Employer's worked at lunchtime under the supervision of a nonstudent There are also request for review , it is averred that the student employees do not receive two or three nonstudents who work evenings in the dish room under the holiday and vacation pay, which is given to all regular employees, among supervision of a student manager other benefits 211 NLRB No. 17 THE MACKE COMPANY with respect to their work schedules, rates of pay, lack of fringe benefits, separate supervision by student managers, and other aspects of their employ- ment relationship. The Board has excluded students from units of employees at campus-related facilities whether oper- ated by the universities involved or by contractors in behalf of the universities , on the basis that the students' employment was incidental to their aca demic objectives.3 On the record as a whole, we conclude that the students do not share a community of interest with the regular employees who depend on their employment for a livelihood. It is evident that 3 Barnard College, 204 NLRB No. 155; Cornell University, 202 NLRB No. 41; The President and Directors of Georgetown College for Georgetown University, 200 NLRB No 14, ITT Canteen Corporation, a subsidiary of International Telephone and Telegraph Corporation, 187 NLRB 1; Scope Associates, d/b/a Westbridge, 172 NLRB 1789 4 The record indicates that included among the student employees is an unspecified number of high school students and at least one student from the University of Bridgeport Since there are no facts in the record to indicate that their pattern of work is any different from that of the Fairfield students, they are excluded as well. During the hearing, Robert Roy, a graduate student who works over 30 hours per week, was reclassified to the status of a regular employee. In excluding the part-time student employees , we do not exclude Robert Roy 91 the primary concern of the students is the completion of their studies, which prepare them for different occupations or fields of endeavor, and that their present employment is only incidental to their academic objectives. Therefore, we shall exclude the students from the unit and the challenges to their ballots are hereby sustained.4 Accordingly, the unit found appropriate by the Regional Director is hereby modified to conform with this Decision and the case is hereby remanded to the Regional Director for the purpose of counting the impounded ballots, issuing an appropriate tally of the ballots, and other appropriate action.5 5 Member Fanning would affirm the Regional Director and grant the unit sought combining the 44 full -time employees and the 99 regular part- time student employees The latter include high school students and some college students who do not attend Fairfield University Consistent with his position in Barnard College, 204 NLRB No. 155, In. 3, he would not exclude regular part-time employees who are not students at Fairfield University And, as these student employees from Fairfield are not paid in meals or limited in any financial aid received by reason of this work , and as the University does not involve itself in their hire by this Employer, Member Fanning agrees with the Regional Director that their status is similar to that of students generally who work as regular part-tune employees during the school year