Pawating Hospital Association

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pawating Hospital Association and Retail Store Em- ployees Union, Local No. 36, of Southern Michigan, Retail Clerks International Association , AFL-CIO, Petitioner. Case 7-RC-12777 January 30, 1976 DECISION ON REVIEW BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On December 18, 1974, the Regional Director for Region 7 issued a Decision and Direction of Election in the above-entitled proceeding, finding appropriate a unit of all full-time and regular part-time employ- ees employed by the Employer at its Niles, Michigan, facility, excluding professional employees, but in- cluding, inter alia, high school student employees em-, ployed pursuant to a co-op program as well as high school students employed on a part-time basis and not participating in the co-op program. Thereafter, in accordance with Section 102.67 of the National La- bor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the ground, inter alia, that the inclusion in the unit of the high school students was a departure from officially reported precedent. By telegraphic order dated January 23, 1975, the National Labor Relations Board granted the request for review and stayed the election pending decision on review. On January 27 and 31, 1975, the Peti- tioner filed unfair labor practice charges I alleging that the Employer violated Section 8(a)(1) and (3) of the Act. On January 31, 1975, the Petitioner filed a motion to proceed with the election, to allow the two disputed groups of employees to vote subject to chal- lenge, and to impound the challenged ballots. By telegraphic order dated March 4, 1975, the Board granted Petitioner's motion to conduct the election and impound the challenged ballots prior to Decision on Review. The Board 2 directed the Regional Direc- tor to conduct the election, to challenge and segre- gate the ballots of both the non-co-op and the co-op high school students and to impound all such chal- lenged ballots. An election by secret ballot was conducted on March 27, 1975. The tally of ballots showed that, of approximately 327 eligible voters, 306 voted. There were 107 votes for, and 147 votes against, the Peti- tioner, and 52 ballots were challenged. Of the 52 i Cases 7-CA-11747 and 7-CA-11747 (2) 2 Former Member Kennedy dissented challenged ballots, 36 were challenged by the Em- ployer as co-op high school student employees.' Thereafter, the Employer and Petitioner filed timely objections to conduct affecting the results of the elec- tion, and the Petitioner filed an additional unfair la- bor practice charge 4 On May 29, 1975, the Regional Director issued an order wherein he overruled the Employer's objec- tions in their entirety, and ordered the issues raised by Petitioner's objections and 16 challenged ballots I consolidated for hearing with the unfair labor prac- tice cases . On June 11, 1975, the parties reached a settlement agreement with respect to the unfair labor practice charges and concurrently stipulated that the instant representation case would be remanded to the Regional Director for Region 7 and that a rerun election would be conducted on a mutually agreed date within 30 days after March 27, 1976. The Board has been administratively advised that it was the un- derstanding of the parties upon execution of the aforementioned stipulation that the Board would re- solve the issue of co-op students prior to a rerun elec- tion.' 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 Employer employs approximately 40 high school students on a part-time basis. Approximately 22 of these students are employed pursuant to a co- op program organized in conjunction with the area high schools. The remaining student employees are not part of a formal co-op program. The co-op program is an educational program for senior students who may be interested in health ca- reers. The co-op students work approximately 4 hours a day, 5 days a week, and receive high school credit for the functions they perform at the hospital. Their working hours are coordinated with their high school schedule. Prior to the commencement of their work at the hospital, they receive a 3-week training course at school, conducted by the co-op coordina- tor. Most of the co-op students work as nurses aides, and the others work in the laboratories, in other de- 3 The record indicates that only 22 students were participating in the co-op program Therefore, we presume that the total of 36 challenged bal- lots includes challenges to both the co-op and non-co-op students, in accor- dance with the Board's Order of March 4, 1975. However , subsequent events, to be discussed infra, particularly the parties' stipulation to a rerun election, eliminate the necessity of determining which students were actually challenged 4 Case 7-CA-I 1890 5 The Regional Director noted that the eligibility of the 36 co-op students was before the Board for decision However, see In 3, supra 6 The Board, of course, is not bound by the understanding of the parties However , inasmuch as the Employer's request for review has been granted and it appears that the eligibility of the high school students will possibly be determinative in the rerun election , we will rule on the eligibility of the co-op and non-co-op high school students 222 NLRB No. 106 PAWATING HOSPITAL ASSOCIATION partments and as clericals. The Employer's proba- tionary period is not applied to the co-op students. The supervision of these students comes from the various department heads and such supervision is coordinated with the personnel office and the high school coordinator. The Employer has special per- mission from the United States Department of Labor to pay not less than 80 percent of the Federal mini- mum wage. In fact, the students are paid $1.70 per hour for the first 4 months and $1.75 per hour there- after. They receive no fringe benefits. The co-op stu- dents are evaluated in conjunction with the school marking period. The schools supply the forms and the co-op coordinator interprets the evaluation into a grade marking for the student. The Employer pro- vides the co-op students with no other evaluation other than the school form. The co-op students un- derstand that their term of employment is for the term of the school year, and when they graduate they will be terminated. About half of the co-op students reapply for temporary part-time work and are em- ployed through the summer at the Federal minimum wage. After the summer, about two or three of the co-op students continue as regular employees. Approximately 20 high school students are em- ployed on a part-time basis, and are not participating in the co-op program. These non-co-op students work after school and weekends and generally aver- age between 12 to 16 hours a week .7 They are not required to participate m the orientation program and although their hours are scheduled some 2 to 4 weeks in advance, they may and do get their hours changed if a school function interferes with their scheduled hours. The non-co-op students are em- ployed in the kitchen, housekeeping,, and nursing de- partments, and several of these students earn high school credits for work performed in the hospital. They are paid at the same subminimum wage rate as the co-op students and receive no fringe benefits ex- 7 According to law, their combined school and workweek may not exceed 54 hours 673 cept for pharmacy discounts. Although there is no official termination policy, usually the non-co-op high school students will terminate their employment at the end of the school year or during the summer following graduation. Students who continue to work during the summer are paid the Federal minimum wage. After the summer, usually only one or two of the non-co-op students continue their employment. Those who do stay on are reclassified by position and wages. Based on the foregoing, we agree with the Employ- er that the co-op students and the non-co-op students should not be included in the unit. The duration of employment of these students generally lasts one school year, and the students rarely remain with the Employer as permanent employees. These students, who are primarily concerned with their high school studies, are paid lower wages than the Employer's other employees including regular part-time employ- ees, work different hours, and receive no fringe bene- fits. Therefore, we conclude that the part-time stu- dent employees lack a community of interest with the Employer's regular employees. We shall therefore ex- clude them from the unit found appropriate by the Regional Director! Inasmuch as the parties have agreed to a rerun election, no useful purpose would be served by our ruling on the challenged ballots of the student em- ployees. Accordingly, we shall remand this proceed- ing to the Regional Director for appropriate action consistent with our Decision. The proceeding is hereby remanded to the Region- al Director for Region 7 for appropriate action con- sistent with the Decision herein. 8 See California Inspection Rating Bureau, 215 NLRB No 145 (1974) Cf Dorance J Benzschawel and Terrence D Swingen Co-Partners , d/b/a Park- wood IGA Foodliner, 210 NLRB 349 (1974), wherein student employees were included in the unit found appropriate In that case , however, the record indicated that the students were an integral part of the store's work force, having substantially the same duties , wages, and working conditions as other unit employees Furthermore , there was no evidence in the record with respect to whether the students' employment continued after the end of the school year