Saga Food Service of California, Inc.

786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Saga Food Service of California, Inc. and Local Joint Executive Board of Culinary Workers, Bartenders, Hotel-Motel Service Workers, Hotel & Restaurant Employees & Bartenders International Union, Peti- tioner. Case 20-RC-11862 August 8, 1974 DECISION ON REVIEW By CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO On March 22, 1974, the Acting Regional Director for Region 20 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found appropriate the Petitioner's requested unit of all full-time and part-time food service employees working at a cafeteria operated by the Employer in a dormitory complex located near the campus of the University of California at Davis, California . Thereaf- ter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations , Series 8, as amended, the Employer filed a timely request for review of the Acting Regional Director's Decision on the grounds, inter alia, that by including in the unit the part-time employees, all of whom are students, he departed from officially reported precedent and made erroneous findings as to substantial factual issues. The Petitioner filed opposition thereto. By telegraphic order dated April 15, 1974, the Na- tional Labor Relations Board granted the request for review and stayed the election pending decision on review. Thereafter, the Employer filed a brief on re- view.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three -member panel. The Board has considered the entire record in this case with respect to the issues under review , including the briefs on review, and makes the following find- ings: In concluding that an overall unit of all food service employees at the above-mentioned facility is appro- priate, the Acting Regional Director relied primarily on his findings that both the part-time student em- ployees and the full-time nonstudent employees per- form the same work in the same physical area and are under common supervision. He found , therefore, that they share a sufficient community of interest to war- rant inclusion in the same unit. The Employer con- 'By letter dated April 19, 1974, the Petitioner requested the Board to consider all its briefs previously filed in the case as constituting its brief on review tends in its request for review that under Board policy there is no such community of interest since the stu- dents' employment is related to their educational en- vironment and is thus merely incidental to their studies which are preparing them for a different occu- pation. We find merit in the Employer's contentions. The Employer operates the cafeteria pursuant to a contract with the owner of the premises in which it is located, and subject to regulation by the University of California at Davis. The dining facility connects two residence halls which house 672 students, all of whom eat there under a meal plan, the cost of which is in- cluded in the room fee.2 The Employer employs 73 students'who work on a part-time basis, as well as 11 full-time nonstudent employees. All part-time em- ployees are students, while all full-time employees are nonstudents.3 While most of the student employees are enrolled at the University of California at Davis, there are a few who attend other schools, including one who is a high school student. Of those student employees who attend the University, most live in the dormitory complex in which the cafeteria is located.4 The cafeteria is operational 7 days a week during the academic year and is open on a limited basis during the summer months. Student employees work only during the school year, including weekends and eve- nings. Nonstudent employees work primarily during the daytime hours and during the summer recess as needed. As found by the Acting Regional Director, both categories of employees perform similar tasks, often working side by side preparing the food, serving it to the customers on line, and cleaning the floor. Howev- er, while nonstudent employees are assigned specific job classifications, student employees perform all functions as needed. The arrangement of work sched- ules also reflects the different treatment accorded the two categories of employees. Class hours and other factors (such as other jobs which a student might hold) are taken into consideration when formulating work schedules for student employees. These sched- ules are changed every quarter,5 even occasionally within a given quarter if necessary, and are specifical- ly designed so that a student's work assignment will not interfere with his class schedule. With respect to supervision, the Employer con- tends, and the record establishes, that while all em- 2 The cafeteria is open to the public on either a single meal or meal plan basis 3 During the payroll period ended February 6, 1974, 9 student employees worked more than 16 hours per week, and 19 worked more than 10 hours per week The remaining 52 student employees averaged 5 8 hours per week. 4 In recruiting its student work force, the Employer gives preference to those who live in the dormitory complex as well as to those who have worked for the Employer on previous occasions. 5 The University operates on a quarter system rather than on the tradi- tional semester system. 212 NLRB No. 113 SAGA FOOD SERVICE OF CALIFORNIA, INC. 787 ployees are under the overall supervision of the food service director, the student employees are under the immediate supervision of student managers. The rec- ord indicates that the latter have almost exclusive con- trol over formulating student work schedules. Indeed, the food service director testified that he is rarely consulted on these matters. Likewise, if a student can- not report to work on a given day, he notifies a stu- dent manager whose responsibility it is to find a substitute.6 The student managers also have the au- thority to assign work to student employees according to need, whereas they have no such authority over nonstudent employees. Furthermore, the record re- veals that student employees are often hired directly by student managers without consultation with the food service director, while nonstudent employees are hired only by the director. Should it become neces- sary, student managers can also recommend to the director that certain disciplinary action be taken against a student employee. The record indicates disparate treatment of student and nonstudent employees in the area of wages and benefits. Nonstudent employees are paid according to their job classification' while student employees are compensated according to their length of service. Fur- thermore, student employees are entitled to none of the benefits received by nonstudent employees, such as sick pay, insurance, vacation, etc. There is a high rate of turnover among student employees. More than one-half have been with the Employer less than 5 months and more than one-quarter have been em- ployed less than 2 months. Moreover, there is evi- dence that no student'employee has ever left school to become a full-time nonstudent employee. Contrary to the Acting Regional Director, we con- clude that as to many significant aspects of their em- ployment, especially because of their student status, student employees receive markedly different treat- ment from that given the nonstudent employees, par- ticularly with respect to their separate supervision by student managers, the arrangement of their work schedules to fit their class schedules, and the lack of fringe benefits. The Board has excluded students from units of employees at campus-related facilities, wheth- er operated by the universities involved or by contrac- 6 Similarly, if a student has a problem , he will see the student managerrwho has the authority to take whatever action is necessary to resolve it, including allowing the student employee to leave early and asking another student employee to work beyond his usual quitting time tors in behalf of the universities, on the basis of their separate interests and the fact that the students' em- ployment was incidental to their academic objectives.' We shall, for these same reasons, exclude the students from the requested unit herein.' We find the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: 9 All food service employees employed by the Employer at 550 Oxford Circle, Davis, Califor- nia; excluding all other employees, student em- ployees, guards, and supervisors as defined in the Act. Accordingly, we shall remand the case to the Re- gional Director for the purpose of conducting an elec- tion pursuant to his Decision and Direction' of Election, as modified herein, except that the election shall be held after normal operations begin on a date to be determined by the Regional Director, among the employees in the appropriate unit who are employed during the payroll period immediately preceding the date of issuance of Notice of Election 10 by the Re- gional Director. ? The Macke Company, 211 NLRB No. 17 (1974); Barnard College, 204 NLRB 1134 (1973); Cornell University, 202 NLRB 290 (1973); The President and Directors of Georgetown College for Georgetown University, 200 NLRB 215 (1972), ITT Canteen Corporation, a subsidiary of International Telephone and Telegraph Company, 187 NLRB 1 (1970), Scope Associates, d/b/a Westbridge, 172 NLRB 1789 (1968) Contrary to the Acting Regional Director, we do not view the facts in the Scope case as significantly distinguishable 8 The record indicates that included among the student employees are an undetermined number who attend other schools and one high school student. Since there are no facts in the record to indicate that their pattern of work is any different from that of the students attending the university , they are excluded as well The Macke Company, supra 9 The Petitioner sought in the alternative a unit comprising solely the student employees. In view of the nature of their employment tenure and our conclusion that their primary concern is their studies rather than their part- time employment, we find that it would not effectuate the policies of the Act to direct an election among them as a separate unit for purposes of collective bargaining 1 in order to assure 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 addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236 (1966), N.L R B v Wyman-Gordon Co, 394 US. 759 (1969). 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 Employer with tthe Regional Director for Region 20 within 7 days of the date of the Notice of Election . The Regional Director shall make this 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 extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed