Saga Food Service of California, Inc.

National Labor Relations Board - Board Decisions

Aug 8, 1974

212 N.L.R.B. 786 (N.L.R.B. 1974)

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