Shady Oaks

National Labor Relations Board - Board Decisions

Apr 19, 1977

229 N.L.R.B. 54 (N.L.R.B. 1977)

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-
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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.
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