Shady Oaks

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lake City Home for Aged, Inc., d/b/a Shady Oaks and Professional Health Care Division, Local No. 30, Retail Clerks International Association, AFL- CIO, Petitioner. Case 18-RC-11157 April 19, 1977 DECISION ON REVIEW BY MEMBERS JENKINS, MURPHY, AND WALTHER On November 26, 1976, the Regional Director for Region 18 issued a Decision and Direction of Election in the above-entitled proceeding, finding appropriate a unit of all full-time and regular part- time employees employed by the Employer at its Lake City, Iowa, facility, including, inter alia, I I high school student employees who work part time in the Employer's dietary and nursing departments. There- after, in accordance with Section 102.67 of the National Labor Relations Board's Rules and Regula- tions, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the ground that the inclusion of the high school students in the unit was a departure from officially reported precedent. By telegraphic order dated December 17, 1976, the National Labor Relations Board granted the request for review and stayed the election pending decision on review. 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 considered the entire record in this case with respect to the issues under review and makes the following findings: The question before us is whether the Employer's II high school student employees should be included in a unit of full-time and regular part-time employ- ees. The Employer operates a health care facility for the elderly at Lake City, Iowa. The facility is administra- tively divided into a nursing division and an administrative services division. The nursing division consists of professional nurses and nursing assistants. The administrative services division consists of office, dietary, housekeeping, laundry, and activity department employees. The Employer employs 48 nonsupervisory nonprofessional employees in its nursing and administrative divisions. These employ- ees are classified by the Employer as being either full-time, "regular part-time," or part-time. The Employer's I I high school student employees fall into the last category. 229 NLRB No. 5 The Employer's full-time and "regular part-time" employees (who must work at least 30 hours a week to enjoy regular part-time status) receive wages as follows: nursing assistants $2.30 to $2.91 an hour; office clerical $2.69 an hour; dietary employees $2.48 to $3 an hour; housekeepers $2.48 to $2.80 an hour; and laundry employees $2.48 to $2.91 an hour. The full-time employees in addition receive double pay on five named holidays, birthdays off with pay, a vacation, insurance, and eligibility to participate in profit sharing after I year of employment. The "regular part-time" employees receive the same or similar fringe benefits. The Employer's 11 high school student employees, 8 of whom work as nursing assistants and 3 of whom work as dietary department employees, are employed on a year-round basis. Under an agreement with the U.S. Department of Labor, the Employer is permit- ted to pay the student employees less than the minimum wage. As a condition to this agreement, the student employees cannot be employed during school hours, cannot work more than 8 hours a day or 20 hours a week when school is in session, cannot work more than 40 hours a week during vacations and holidays, and cannot work more than a set percentage of the total hours worked by all employ- ees during the month. This set percentage normally ranges from 10 to 13 percent. Students generally work 15 hours a week and may work for as much as 40 hours a week during Christmas and summer vacations. They are paid wages that range from $2 to $2.26 an hour and receive none of the fringe benefits the other employees receive (except for double pay on five named holidays). Scheduling accommodations are made for students to permit them to participate in extracurricular and cocurricular school activities. Although the work schedules are posted 2 weeks in advance, changes are frequently made after posting to accommodate these special activities. There is no agreement between the Employer and the student employees that the students will be hired on a full-time basis after graduation from high school. In fact, only 3 of the 57 student employees who have worked for the Employ- er since 1968 are currently employed on a full-time basis. At least with respect to the commercial sector, the Board has traditionally included part-time students in units of full-time and regular part-time employees where the students have a substantial and continuing interest in the wages, hours, and working conditions of the other unit employees. In determining whether students have the requisite community of interest with other unit employees, the Board conducts an analysis along the same lines that it normally employs when determining "regular part-time" sta- 54 SHADY OAKS tus. Under this analysis, the Board takes into consideration such things as: (1) regularity and continuity of employment; (2) tenure of employ- ment; (3) similarity of work duties; and (4) similarity of wages, benefits, and other working conditions.' Where students' employment is shown to be sporadic, temporary, or seasonal in nature or where it is shown that students are treated differently with respect to wages, benefits, and other working conditions, the Board excludes them from the regular full-time unit. 2 Where, on the other hand, students' employment is regular and of substantial duration and the students are treated the same as other unit employees, the Board includes them in the unit.3 The students in the present case, although em- ployed on a year-round basis, receive substantially different wages and benefits than the other employ- ees and are restricted in the number of hours they I The Board, in cases involving students holding part-time jobs at the educational institution they attend, has traditionally considered, in addition to the above traditional community-of-interest analysis, whether students' campus employment is "incidental to their academic objectives." See Saga Food Service of California, Inc., 212 NLRB 786 (1974), and cases cited therein. This latter factor, appropriately highlighted in the university context, where the secondary nature of students' employment interest and their limited job tenure can readily be presumed, is not as important a consideration in the commercial context. If carried to its logical extension, this factor might well dictate the exclusion of all students from bargaining units everywhere. 2 See Post Houses, Inc., 161 NLRB 1159, 1171-72 (1966); Crest Wine and Spirits, Lid, 168 NLRB 754 (1967); and California Inspection Rating Bureau, 215 NLRB 780(1974). may work by the Department of Labor agreement. Scheduling changes are frequently made to accom- modate their participation in school activities and there is no agreement that the student employees can continue employment after graduation. Only an extremely small number of students have been hired as regular employees after graduation. On the basis of these factors, we find contrary to the Regional Director that the 11 high school students should be excluded from the unit found appropriate by the Regional Director.4 Accordingly, the case is hereby remanded to the Regional Director for Region 18 for the purpose of conducting an election in accordance with his Decision and Direction of Election, as modified herein, except that the payroll period for determining eligibility shall be that immediately preceding the issuance date of this Decision on Review. [Excelsior footnote omitted from publication.] I see Pittsburgh Metallurgical Company, Inc., 95 NLRB I (1951); Giordano Lunmber Co., Inc., 133 NLRB 205 (1961): Gruber's Super Market, Inc., 201 NLRB 612 (1973); Hearst Corporation, San Antonio Light Division, 221 NLRB 324 (1975). 4 See Pawating Hospital Association, 222 NLRB 672 (1976), and Highview, Incorporated 223 NLRB 646 (1976). In Pawating, a case virtually indistinguishable from this one, high school students employed at a subminimum wage pursuant to an agreement with the Department of Labor were excluded from the regular unit on the grounds that they were paid less than the regular employees, received no fringe benefits, had their hours rescheduled to accommodate school functions, usually worked only I year, and rarely remained as permanent employees. 55