Illini Tower

National Labor Relations Board - Board Decisions

Apr 30, 1974

210 N.L.R.B. 355 (N.L.R.B. 1974)

ILLINI TOWER 355
Allen & O'Hara Developments, Incorporated d/b/a
Illini Tower and American Federation of State,
County & Municipal Employees , AFL-CIO, Peti-
tioner. Case 38-RC-1345
April 30, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Michael B.
Ryan on May 9, 1973. Thereafter, on June 25, 1973,
the Regional Director for Region 13 issued his
Decision and Direction of Election in the above-
entitled proceeding in which he found the following
unit to be appropriate:
All full-time employees in the Employer's food
service operations at the Illini Tower, Champaign,
Illinois, but excluding part-time student employ-
ees, office clerical employees , guards, professional
employees, supervisors as defined in the Act, and
all other employees.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Petitioner filed a
request for review, contending that the Regional
Director had erred in not finding a separate unit of
part-time students employed in the food service to be
appropriate.
On October 2, 1973, by telegraphic order, the
National Labor Relations Board, while denying the
request for review, remanded the case to the
Regional Office for further hearing on the limited
issue of the assertion of jurisdiction over the
Employer in view of the Board's decision in Slater
Corporation, 197 NLRB 1282.
Thereafter, the record was reopened and on
November 7, 1973, a further hearing was held before
Hearing Officer Michael B. Ryan limited to the issue
of jurisdiction. Following the hearing, and pursuant
to Section 102.67 of the Board's Rules, the Regional
Director transferred this case to the Board for
decision. Thereafter, the Employer and the Petitioner
filed briefs.
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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free of prejudicial error. They are hereby affirmed.
Upon the entire record in this case , the Board
finds:
The parties have stipulated that the Employer has
gross annual revenues in excess of $500,000. We find
this amount sufficient to meet our discretionary
standards.'
The Employer owns and operates a dormitory and
food service in Champaign, Illinois, for University of
Illinois students . The University is a nonprofit
institution operated by the State. The dormitory
building , as well as the land upon which it is located,
is privately owned, although it is considered to be
within the boundaries of the campus.
A University rule requires that all students with
less than 60 hours of credit (primarily freshmen and
sophomores) live in certified housing.2 Certified
housing can be either University-owned or privately
owned. The privately owned certified housing is
made necessary by the fact that the University does
not have adequate space to house all the students
with less than 60 hours of credit.
In order to have its housing certified by the
University, the owner must agree to abide by certain
regulations formulated to insure the safety and
welfare of the students. In order to maintain his
certification , an owner must agree not to rent space
to anyone other than University of Illinois students.
It should be noted that an owner is not required to
provide food service in order to receive certification.
Thus, the food service may be provided to nonstu-
dents, and no other restrictions are placed on the
food service with the exception of the requirement
that the food service pass the inspections given all
restaurants by the state health department.
The certified housing program is entirely voluntary
in the sense that an owner may leave the program at
any time. Upon leaving the program, the owner may
rent his facilities to any student (as well as nonstu-
dents) with more than 60 hours of credit. Further-
more, the owner can have his building put on the list
of available housing maintained in the university
office.
The owners of certified housing are completely free
to set their rental prices at whatever level the market
will bear. The leases for the rooms are solely between
the student and the owner. If a building loses its
certification, it is up to the student to break his lease
without any help from the University.
With the exception of the resident advisors, the
owner has complete freedom to hire, fire, and
discipline employees. As to the resident advisors, the
I Karl Gerber, Max Taetle, Nathan Metz & Estate of Bernard Katz, Co- 2 The university's director of housing testified that the University is in
Partners d/b/a Parkview Gardens, 166 NLRB 697. the process of eliminating this requirement.
210 NLRB No. 41
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
University interviews applicants and makes hiring
recommendations to the property owner.
The Employer contends that this case is controlled
by our decision in Slater Corporation, supra, and thus
we should decline to assert jurisdiction. We disagree.
The Employer in Slater Corporation, maintained
food service operations at a state college for the use
of students, faculty, staff, alumni, and guests. The
general public was not admitted. The building in
which the food service was located, as well as the
fixed equipment and nonperishable goods, was
owned by the college. With the exception of vending
machines , the employer owned none of the capital
equipment located at the college. All students
residing in on-campus housing were required to
participate in a meal plan whereby they purchased a
meal ticket from the college, good for a set number
of meals per week in the dining room.
Pursuant to its contract with the college, the
employer in Slater was required to maintain a staff of
employees that was acceptable to the college, and the
employees were expected to comply with the rules
and regulations established by the college. Further-
more, the contract required the employer to comply
with fair employment practices established by the
college and to give a preference to students in filling
temporary positions, as well as paying them the state
minimum wage. In addition, the college reserved the
right to make rules and regulations governing the
employees and the operation of the food service with
3 Ja-Ce Company, Inc., 205 NLRB No. 92. Like Member Kennedy, we
do not construe The Prophet Co., 150 NLRB 1559, as overruled by Ja-Ce,
supra. It is , however, clearly distinguishable on the facts from Ja-Ce. (See fn.
4.)
4 Member Penello believes this case is distinguishable from Transporta-
tion Enterprises, Inc, Case 23-RC-3973 (an unpublished ruling on
administrative appeal). In that case the employer 's business , including the
phase of its operations in which the employees sought were involved, was
limited almost solely to the transportation of college and university students
and faculty at various institutions in the State of Texas The unit employees
operated a shuttle bus service on the Austin campus of the University of
Texas . The students using the service did not have a contract with the
employer, but rather, with the university The students were charged a set
fee per semester by the university and the university would then pay the
employer.
The present case is clearly distinguishable on the basis of the fact that the
employees sought herein are involved in providing a service which is open to
the general public rather than being limited to the students and faculty and
the students ' contract is solely with the Employer; the University playing no
part in either establishing the fees to be charged or in the collection of those
fees . If a student wishes to break his contract with the Employer, the
University will not help him in any way . In addition, the University places
no restrictions on the operation of the food service with the exception of the
requirement that it pass the state health inspections that are required of all
restaurants in the State. Member Penello feels that the above is sufficient to
support a finding that the "intimate relationship" referred to by Member
Kennedy is lacking in this case.
Member Penello also believes that Member Kennedy 's reliance on The
Prophet Co., 150 NLRB 1559, and Slater Corporation 197 NLRB 1282, is
misplaced . Those decisions relied on the exempt institutions ' control over
the employers ' labor relations, in finding that the Board did not have
jurisdiction. That kind of control is simply not present in the instant case.
We have already pointed out the distinguishing factors in Slater, supra In
Prophet, supra, the petitioner sought to represent employees working in the
food service facilities operated by the employer at Whitewater State
regard to the quantity and quality of food served,
methods of service , prices , hours, safety, sanitation,
and maintenance . The Board concluded in Slater
that the college retained a substantial degree of
control over the labor relations of the employer and
therefore that it would not effectuate the purposes of
the Act to assert jurisdiction.
We feel that the amount of control exercised by the
University over the operations and labor relations of
the Employer herein is minimal as compared to the
control exercised in Slater. Unlike Slater, the
Employer here owns the building and all the
equipment contained in it. Furthermore, with the
exception of the resident advisors (who are not
members of the unit found appropriate) the Universi-
ty exerts no control over the Employer's labor
relations. In addition , the Employer can release itself
from complying with any University regulations by
dropping out of the certified housing program. After
doing so, the Employer can rent to any nonstudent
or any student with more than 60 hours of credit
(and eventually to all students when the certified
housing requirement is eliminated).3
In light of the above, we see no reason not to assert
jurisdiction herein.4 Accordingly, we shall remand
this case to the Regional Director for the purpose of
conducting an election pursuant to his Decision and
Direction of Election.5
University in Whitewater, Wisconsin . Unlike the instant case , the facilities
were for the sole use of students , faculty, staff, and alumni . The largest
share of the employer 's income (79 percent) was derived from the university
which paid the employer a set fee for each student enrolled in the food plan.
Like Slater, supra, all the fixed equipment and nonperishable goods used in
the dining facility were supplied and owned by the university . Furthermore,
under its contract with the university, the employer agreed to comply with
all rules and regulations of the university ; to maintain service at such hours
as the university and the employer mutually determined ; to submit menus
for approval by the university at least I week in advance ; to use necessary
student help at the campus student wage scale; and to assign to duty only
employees acceptable to the university . As stated previously , the Employer
herein , exerts practically no control over the food service , and the control
exerted over the remainder of the Employer's operation is far more limited
than that in Prophet or Slater.
5 Member Fanning sees no enlargement of jurisdiction or improvident
expenditure of funds incident to this Decision and Direction of Election.
See, for example , Ja-Ce Company, Inc., In. 3, above, where a Board panel
asserted jurisdiction over a contractor for food service in the New Jersey
public school system. The dissent assumes that this housing and food
service, though privately owned and located on privately owned land, and
operated with a minimum of University control over its student housing
aspects and no control over its food service, is "inextricably related" to the
operation of the University.
If this University itself owned and operated the building and food
service, the Act would dictate dismissal ; there would be no question that the
University as employer constituted a political subdivision of a State . But the
University has effectually transferred to an employer in commerce some of
its inherent authority to provide housing for students. This Employer meets
the Board's discretionary standards for asserting jurisdiction and the
University has retained virtually no control over its operations and labor
relations. Thus, it is the Board's duty to assert jurisdiction rather than look
for an "out" based on a slender strand of relationship between the employer
supplying the "essential" service and the University which certifies that
students may use it
ILLINI TOWER 357
ORDERS
This proceeding is hereby remanded to the Region-
al Director for the purposes of conducting an
election pursuant to his Decision and Direction of
Election, except that the payroll date for determining
eligibility shall be that immediately preceding the
date of issuance of this Decision and Order.
MEMBER KENNEDY, dissenting:
A defendant accused of murdering his parents
should not expect sympathy from a court on the
ground that he is an orphan. Similarly, this Board
should not expect a sympathetic reception to the
Board's repeated pleas for understanding with
respect to our ever increasing caseload when the
Board rarely misses an opportunity to enlarge the
types of enterprise over which we decide to assert
jurisdiction.7
My colleagues stated in Modine Manufacturing
Company, 203 NLRB No. 77;
We must . . . consider the prudent husbandry of
the funds appropriated to us for administering
this Act, and also the effect on our promptness in
handling not only the matter before us but also
the handling of the myriad other matters regularly
brought to us for action by citizens entitled so to
do.
It appears that in asserting jurisdiction over Illini
Tower we have failed to consider "the prudent
husbandry" of which my colleagues recently com-
mented in Modine, supra.
The University of Illinois is a state owned and
operated university. As such, it is exempt from
coverage of the Act by virtue of Section 2(2). The
Employer's facility, which provides housing and food
services for a part of the 6,000 single University
undergraduates who cannot be housed in a Universi-
ty facility, is vital to the continued orderly operation
of the University. Thus, this certified facility is
essential to and intimately related with the operation
of the University, which retains a substantial degree
of control over the Employer's operation by the
promulgation and enforcement of rules, regulations,
and standards.
My colleagues' decision to assert jurisdiction over
an employer whose operation is so clearly and
inextricably related to the operation of an exempt
state university is also inconsistent with the underly-
ing policy consideration for declining to assert
jurisdiction expressed in a Ruling on Administrative
Appeal, dated January 16, 1974, in Transportation
Enterprises, Inc., Case 23-RC-3973. There the Board
affirmed, with Chairman Miller and Member Fan-
ning dissenting, the administrative dismissal of a
petition on jurisdictional grounds. The employer in
that case was engaged primarily in the transportation
of students and faculty: (1) between Austin, Texas,
and the campus of Southwest Texas State College at
San Marcos; (2) between Dallas, Texas, and the
campus of North Texas State University at Denton,
Texas; (3) between Fort Worth, Texas, and the
campus of North Texas State University at Denton,
Texas; and (4) between Corpus Christi, Texas, and
the campus of Texas A & I University at Kingsville,
Texas. I fail to perceive how it can be said that the
operation of the student dormitory, Illini Tower, is
any less in aid of the higher educational system of
Illinois than the bus service of Transportation
Enterprises, Inc., is to the higher educational system
of Texas.
The Board has long followed a policy of not
asserting jurisdiction over food service contractors at
state universities and colleges because of their
intimate relationship with institutions over which we
The dissent cites no precedent for husbanding Board funds when
jurisdiction depends upon the application of a statutory exemption. In fact,
in Modme Manufacturing Company, 203 NLRB No. 77, "the prudent
husbandry of funds" was considered appropriate by the Board because the
context involved administrative practices and procedures in conducting
elections. The Board said these were merely an outgrowth of the Board's
administrative expertise, "not in fulfillment of a direct statutory command."
In the circumstances of this case it would be unreasonable to hold that the
Employer is exempt as a political subdivision of the State The Board is
without authority to decline to hold this election simply to save funds.
6 Member Fanning, contrary to the Regional Director, would include in
the unit of full-time employees those students who regularly work part time
for this Employer and in so doing work in close proximity with the full-time
employees. As is clear from the record here, the University of Illinois is not
the employer Also, it appears that the University makes no attempt to
regulate the employment of its students by this contractor. Therefore, the
normal criteria of regular part-time employment should apply in assessing
the community of interest among regular part-timers some of whom happen
to be students on campus Cf. ITT Canteen Corporation, a subsidiary of
International Telephone and Telegraph Company 187 NLRB 1, 2, where
college students-who worked only for meals ere excluded from a food
service unit partly because their employment was, in effect, related to their
living conditions at school . See also Barnard College, 204 NLRB No. 155,
fn. 3, where the college itself was the employer , and Member Fanning would
have included non-Barnard students working part time for Barnard , citing
Giordano Lumber Co., Inc., 133 NLRB 205, 207 . There the Board included
in a production and maintenance unit students who regularly worked on
Saturdays during the school year.
r Illustrative of the genuine concern of all Board Members are the
following remarks of Chairman Miller to the Labor Law Section of the
American Bar Association on August 7, 1973:
I honestly do not see how it will be physically possible for five
Board Members to handle many more cases than are projected for the
current fiscal year. We already have too little time adequately to
consider our present cases, and any substantial further caseload will
either make us rubber stamps for whatever decisions our Administra-
tive Law Judge make, or we will gradually develop a hopelessly
insurmountable backlog.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cannot assert jurisdiction. See The Prophet Co., 150
NLRB 1559.8 We recently followed this precedent in
Slater Corporation, 197 NLRB 1282.
In sum, I would not assert jurisdiction over this
Employer's operation. The University here at issue is
exempt from the Act and the Employer's facility is
clearly providing a service which is inextricably
re'ated to the operation of that University. Prudence
dictates that for policy reasons jurisdiction should
not be asserted over an operation such as Illini
Tower, which is clearly essential to an exempt state
university.
Accordingly, I would dismiss the petition.
s in Crotty Brothers, N.Y., Inc., 146 NLRB 755, the Board refused to unmistakably clear from Slater Corporation supra, however, that the Board
assert jurisdiction over a food service contractor at a private nonprofit did not intend to overrule The Prophet Co., supra I did not participate in the
college . In ITT Canteen Corporation, 187 NLRB 1, the Board overruled decision in Ja-Ce Company, Inc., cited by Members Fanning and Penello,
Crotty Brothers, supra, because the university would no longer be exempt but I do not construe that panel decision as overruling The Prophet Co.
under current Board standards . Cornell University, 183 NLRB 329. It is Normally, Board precendent is not overruled by panel decisions.