The Macke Co.

National Labor Relations Board - Board Decisions

May 31, 1974

211 N.L.R.B. 90 (N.L.R.B. 1974)

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Macke Company and Hotel & Restaurant Em-
ployees Union, AFL-CIO, Local 217, Petitioner.
Case 2-RC-16405
May 31, 1974
DECISION ON REVIEW
On February 27, 1974, the Regional Director for
Region 2 issued a Decision and Direction of Election
in the above-entitled proceeding, in which he found
appropriate the Petitioner's requested unit combining
99 part-time students and 44 nonstudent employees
working at food service facilities operated by the
Employer on the campus of Fairfield University,
under contract with that private educational institu-
tion in Fairfield, Connecticut. Thereafter, in accord-
ance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, as amended,
the Employer filed a timely request for review of the
Regional Director's Decision on the grounds, inter
alia, that, by including the student employees in the
unit, he departed from precedent. The Petitioner
filed an opposition thereto.
By telegraphic order dated April 8, 1974, the
National Labor Relations Board granted the request
for review. However, it directed the Regional
Director to proceed with the election, to challenge
the ballots of students, and to impound all ballots
cast pending decision on review.
Thereafter, the Employer filed a request for
reconsideration of the Board's order directing an
election pending decision on review. On April 19,
1974, the Board denied the request as lacking in
merit.
In accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, as
amended, the Employer, the Petitioner, and the
Hotel and Restaurant Employees and Bartenders
International Union, as amicus curiae, filed briefs on
review. The Board has considered the entire record
in this case with respect to the issues under review,
and makes the following findings:
The Employer, in providing food services at the
Fairfield University campus facilities, serves about
3,300 meals daily, 7 days a week during the school
year, and provides a greatly reduced servi^,e during
the summer months. Of its 44 regular nonstudent
employees, 35 are full-time, i.e., working 30 or more
hours per week, and 9 are part-time, working 20 to 25
hours per week. Thirty-three of the nonstudent
employees work at the campus center cafeteria where
the overwhelming majority of the 99 student employ-
ees also work. The remaining employees are divided
among the three smaller campus food service
facilities.
The Employer contends that, under the Board's
policy, the part-time student employees lack a
community of interest with the nonstudent employ-
ees and should therefore be excluded from the unit.
We find merit in the Employer's contention.
The nonstudent employees primarily work during
the daytime hours. They prepare and serve the
breakfast and lunch meals on weekdays and perform
cleaning and maintenance duties. As found by the
Regional Director, all job classifications are filled
both by student and nonstudent employees with the
exception of the more skilled cooking and baking
jobs which are performed exclusively by nonstudent
employees. Most of the student employees are hired
by the Chief student manager of the Employer and
with minor exceptions are supervised by student
manager's.'
Unlike the other employees, the students work
predominantly in the evening hours and on week-
ends, and their hours are apparently tailored to
accommodate their commitments as students. The
students normally work between 4 and 16 hours per
week. They generally perform such duties as salad
preparation, serving on the cafeteria line, checking
student identification cards, dishwashing, and bus-
ing. Although the work schedules of the student
employees are fixed and regular, the Employer does
not require them to work the night before exams, and
students are permitted to vary their shifts if they
obtain a student employee replacement. In contrast
to part-time nonstudent employees who earn from
$2.10 to $2.20 per hour, the student employees' initial
wage rate is $1.85 per hour. Moreover, it appears
that, unlike nonstudent employees, students do not
receive fringe benefits.2 Although many students
apparently return to work for the Employer after
their summer vacation, it is clear that no student
expects to remain in his job after graduation.
The Regional Director, in an effort to distinguish
the instant case from earlier Board precedents
excluding student employees, relied, inter alia, on the
fact that the students are not employed by the
educational institution which they attend and that
the university exercises no control over the terms or
conditions of their employment. However, the facts
of the instant case disclose that virtually all of the
student employees are treated differently from the
nonstudent employees in a number of significant
ways because of their status as students, particularly
i The record reveals that occasionally as many as six students have 2 In an affidavit of Division Manager Unger , submitted with Employer's
worked at lunchtime under the supervision of a nonstudent There are also request for review , it is averred that the student employees do not receive
two or three nonstudents who work evenings in the dish room under the holiday and vacation pay, which is given to all regular employees, among
supervision of a student manager other benefits
211 NLRB No. 17
THE MACKE COMPANY
with respect to their work schedules, rates of pay,
lack of fringe benefits, separate supervision by
student managers , and other aspects of their employ-
ment relationship.
The Board has excluded students from units of
employees at campus-related facilities whether oper-
ated by the universities involved or by contractors in
behalf of the universities , on the basis that the
students ' employment was incidental to their aca
demic objectives.3 On the record as a whole, we
conclude that the students do not share a community
of interest with the regular employees who depend on
their employment for a livelihood. It is evident that
3 Barnard College, 204 NLRB No. 155; Cornell University, 202 NLRB
No. 41; The President and Directors of Georgetown College for Georgetown
University, 200 NLRB No 14, ITT Canteen Corporation, a subsidiary of
International Telephone and Telegraph Corporation, 187 NLRB 1; Scope
Associates, d/b/a Westbridge, 172 NLRB 1789
4 The record indicates that included among the student employees is an
unspecified number of high school students and at least one student from
the University of Bridgeport Since there are no facts in the record to
indicate that their pattern of work is any different from that of the Fairfield
students , they are excluded as well.
During the hearing , Robert Roy , a graduate student who works over 30
hours per week , was reclassified to the status of a regular employee. In
excluding the part-time student employees , we do not exclude Robert Roy
91
the primary concern of the students is the completion
of their studies, which prepare them for different
occupations or fields of endeavor, and that their
present employment is only incidental to their
academic objectives. Therefore, we shall exclude the
students from the unit and the challenges to their
ballots are hereby sustained.4
Accordingly, the unit found appropriate by the
Regional Director is hereby modified to conform
with this Decision and the case is hereby remanded
to the Regional Director for the purpose of counting
the impounded ballots, issuing an appropriate tally
of the ballots, and other appropriate action.5
5 Member Fanning would affirm the Regional Director and grant the
unit sought combining the 44 full -time employees and the 99 regular part-
time student employees The latter include high school students and some
college students who do not attend Fairfield University Consistent with his
position in Barnard College, 204 NLRB No. 155, In. 3, he would not exclude
regular part-time employees who are not students at Fairfield University
And, as these student employees from Fairfield are not paid in meals or
limited in any financial aid received by reason of this work , and as the
University does not involve itself in their hire by this Employer, Member
Fanning agrees with the Regional Director that their status is similar to that
of students generally who work as regular part-tune employees during the
school year