Servomation Mathias Pa, Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1972

200 N.L.R.B. 1063 (N.L.R.B. 1972)

SERVOMATION MATHIAS, PA, INC 1063
Servomation Mathias Pa, Inc and Local 1199, Drug
and Hospital Union , Retail, Wholesale and Depart-
ment Store Union , AFL-CIO Case 29-CA-2527
December 21, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 23, 1972, Administrative Law Judge'
Henry L Jalette issued the attached Decision in this
proceeding Respondent filed exceptions and a
supporting brief Thereafter, it filed a Motion to
Dismiss Complaint The General Counsel filed an
Opposition to Motion to Dismiss Complaint
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 attached Decision,
Respondent's exceptions and brief, and the entire
record in the case and finds merit in certain of
Respondent's exceptions relating to the jurisdiction
of the Board The Board has decided not to assert
jurisdiction in this case It therefore adopts only
those findings of the Administrative Law Judge that
are consistent with this Decision and does not adopt
his conclusions and recommendations
The Administrative Law Judge found that Re-
spondent entered into a contract, effective from
September 1971 until August 31, 1972, with the State
University of New York at Stony Brook, New York
(SUNY), to supply cafeteria food and related
services to students, faculty, and guests on the
university campus, that SUNY is not an "employer"
as defined in Section 2(2) of the Act and therefore is
not within the Board's jurisdiction, 2 that Respon-
dent is not a joint employer with SUNY, and that
Respondent's food service operation is not so
essential to SUNY's educational purposes as to be,
with SUNY, outside of the Board's Jurisdiction The
Administrative Law Judge recommended that the
Board assert jurisdiction He further found that
Respondent was a successor to the previous food
service contractor, Prophet Foods, that the Charging
Union had been the collective-bargaining representa-
tive for Prophet Food's employees, and that Respon-
dent had a continuing duty to bargain with the
Union under Section 8(a)(5) of the Act, as alleged in
the complaint 3 He therefore recommended that the
Board order Respondent to bargain, upon request,
with the Union
At the outset we must meet the jurisdictional
issue 4 There is no dispute that SUNY, as part of the
University System of the State of New York, is not
an included "employer" under the Act Whether the
Board will assert jurisdiction over a SUNY contrac-
tor depends on the relationship of the contractor's
services to operations of the State University, an
institution which is excluded from the Act's jurisdic-
tion 5 That relationship depends in large part upon
the degree of control exercised by SUNY over
Respondent The facts show that such control was
extensive
SUNY has 12,500 students on an 1,100-acre
campus on Long Island, 50 miles distant from New
York City Six thousand of the students reside on
campus SUNY owns five cafeterias for the use of the
students, their families, and guests Respondent, a
multistate food service supplier, supplied food and
services for this limited group It also provided like
service for special state programs, such as high
school equivalency, paid by SUNY The campus
cafeterias could each accommodate about 1,000
persons The only other commercial food service on
the campus was a cafeteria, buffet, and snack bar
operated by the Student Union, having about the
same capacity as a Respondent-operated cafeteria
There was credible testimony that the only other
food facilities, about 1-1/2 miles distant from the
campus, were inadequate to serve students' needs 6
i The title Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 Sec 2(2) of the Act excludes from the definition of employer any
wholly owned Government corporation or any State or political
subdivision thereof
3 The Administrative Law Judge also found that Respondent had no
duty to honor the collective-bargaining agreement that had existed between
the predecessor employer Prophet Foods and the Union He therefore
dismissed that allegation of the complaint The General Counsel did not file
exceptions
A We do not need to decide the issue whether Respondent and SUNY
are joint employers
5 Slater Corporation 197 NLRB No 183 The Prophet Co 150 NLRB
1559
6 We credit the testimony of Herbert Davis corroborated by that of
Roger Phelps We find no probative the seemingly contrary testimony of
James Soch which the Administrative Law Judge foreclosed Respondent
from developing at the hearing but nevertheless relied on in his Decision
Davis at the time of the hearing, was manager of one cafeteria operated
by Respondent He had been employed by Respondent s predecessor and
before that, had been the Student Union building manager He had been in
the food service business for more than 10 years had lived in the area 40
years and had visited all of the nearby off campus eating places within the
recent past Davis testified that there were only a few off campus public
eating places that they accommodated an insignificant number of people
and that their facilities would be inadequate in the event of a shutdown of
campus cafeterias
Roger Phelps director of university housing and a witness for the
General Counsel testified similarly Phelps said that he did not believe that
the off campus facilities could meet mealtime needs
The testimony of James Soch Respondent s director of food services was
that off campus food facilities were adequate for residential students
Respondent s attorney sought to question Soch (Respondent s witness) as to
whether such facilities could feed all students at one time The Admimstra
tive Law Judge sustained objection to the question and rejected Respon
dent s offer of proof that off campus eating facilities were inadequate to
(Continued)
200 NLRB No 136
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Early in its contract term Respondent operated
four cafeterias with 90 employees At the time of the
hearing, it operated but one, employing only man-
agement personnel Respondent had undertaken to
supply food service on a cash basis by which students
were to pay Respondent directly for food Students
were free to use or not to use the facilities
SUNY owned and maintained the capital equip-
ment and food service facilities It made them
available to Respondent without charge SUNY
employed maintenance personnel assigned exclu-
sively to servicing such facilities
Respondent 's food service contract required it to
comply with detailed specifications and conditions
established by SUNY Such specifications covered,
inter alia, the number of days and hours of operation,
number of cafeteria lines to be provided, the kind of
detergents to be used, type and amount of insurance
coverage , and the University audit of Respondent's
accounts and register tapes
Under the contract SUNY had the right to
supervise Respondent ' s operation with respect to a
host of details including quality and quantity of
service, method of service, cleanliness , appearance
and behavior of Respondent 's employees , opening
and closing hours, safety , and sanitation SUNY
closely controlled the food service by requiring
Respondent to submit menus 2 weeks in advance,
and SUNY had the right to revise them The kind,
amount, and size of food items, as well as meal
combinations that Respondent could provide, were
itemized in the contract The contract provided for a
food committee , formed by SUNY, to evaluate
Respondent 's performance and recommend changes
Under this provision SUNY employed students who
served on the committee to check on the quality of
food service , review complaints , and suggest changes
Respondent 's labor relations were similarly con-
trolled by SUNY As part of its bid Respondent was
required to submit, for university review and approv-
al, its table of organization , listing the names and
qualifications of management personnel Further, the
University had the right to dismiss Respondent's
managers for conduct it considered unacceptable
The contract contained the understanding that the
staff of Respondent 's predecessor would be given
first consideration for employment Respondent was
required to submit ajob grade, wage scale, and fringe
benefit program to be offered to the food service
staff Respondent was required to abide by an hour
and minimum wage scale for students , as established
by SUNY
The record amply demonstrates that SUNY re-
tained a substantial degree of control over the
services and labor relations of Respondent The
Administrative Law Judge 's contrary view is conclu-
sionary and not based on a factual analysis of
Respondent's contract relationship to SUNY 7 In
The Slater Corporation, 197 NLRB No 183, and in
The Prophet Co, 150 NLRB 1559, the Board declined
to assert jurisdiction over food service contractors
supplying services to state universities The relation-
ship of the food service contractor to the state
university in this case is similar to the relationships in
the earlier cases We therefore find that it would not
effectuate the policies of the Act to assert jurisdic-
tion Accordingly, we shall dismiss the complaint 8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety
MEMBER JENKINS, concurring
I concur in the result reached by my colleagues
meet the University s needs on the ground that the witness was not
competent to testify on the offer Thereafter in his Decision the
Administrative Law Judge relied on Soch s statement In view of the fact
that Such s testimony was incomplete , we cannot find it probative of the
issue which the Administrative Law Judge considered proved by Soch s
testimony
9 The decision in Herbert Harvey Inc 171 NLRB 238 cited as authority
by the Administrative Law Judge for asserting jurisdiction is inapposite
We base our decision on facts showing a high degree of control exercised by
SUNY over Responaent contractor The facts in Herbert Harvey do not
parallel these In that case unlike this one the exempt employer retained
much less control over operations of the respondent contractor
8 After the Administrative Law Judge issued his Decision Respondent
moved to dismiss the complaint on the ground that its contract with SUNY
had not been renewed and that it would have no presence at Stony Brook
after August 31 1972 In view of our dismissal of the complaint on
jurisdictional grounds we find it unnecessary to pass on the merits of
Respondent s Motion to Dismiss Complaint
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY L JALETTE, Trial Examiner This case involves
allegations that Respondent is a successor-employer
obligated to recognize and bargain with the above-named
Union, certified as a representative of the employees of a
predecessor-employer and obligated to honor the collec-
tive-bargainmg agreement entered into between the Union
and the predecessor-employer Respondent's refusal to
recognize and bargain with the Union and its refusal to
honor the collective-bargaining agreement are alleged to
constitute conduct violative of Section 8(a)(1) and (5) of
the Act The charge was filed on September 16, 1971, and
pursuant thereto complaint issued on December 20, 1971
Hearing was held on February 22 and 23, 1972, in
Brooklyn, New York
Upon the entire record, including my observation of the
SERVOMATION MATHIAS, PA, INC 1065
witnesses, and after due consideration of the brief filed by
Respondent, I make the following 1
FINDINGS OF FACT
I INTRODUCTION
Respondent is a food service contractor engaged in
providing cafeteria food and related services in various
States, including the State of New York In July 1971,
Respondent entered into a contract to provide its services
to State University of New York at Stony Brook (hereinaf-
er referred to as SUNY) By entering into this contract,
Respondent was to follow another food service contractor,
Prophet Foods Company, which had been providing food
service to SUNY since August 1970 Prophet Foods had
itself followed yet another food service contractor, ABC-
Gladieux Corporation, which had provided food service to
SUNY during the period from 1968 to 1970 During the
time ABC-Gladieux was food service contractor at SUNY,
the Union herein had been certified by the Board as
bargaining representative of its employees 2 When Prophet
Foods followed ABC-Gladieux as food service contractor,
it honored the certification, recognized the Union, and
negotiated a collective-bargaining agreement This agree-
ment was for a term from January 8, 1970, to August 31,
1972, and when Respondent followed Prophet Foods as
food service contractor at SUNY, employing the same
employees previously employed successively by ABC-
Gladieux and Prophet Foods, the Union requested
recognition and that Respondent honor the collective-
bargaining agreement Respondent refused, and this
proceeding followed
Respondent defends its refusal to recognize the Union
on several grounds Respondent contends that the Board
should not assert jurisdiction herein because its food
service operations involved herein are intimately connected
with the operations of SUNY, an institution exempt from
the Board's jurisdiction Should jurisdiction be asserted,
Respondent contends it is not a "successor-employer "
Should it be found to be a successor, Respondent contends
it has no obligation to bargain with the Union because the
certified unit is inappropriate
II JURISDICTION
A The Facts
SUNY is part of the university system of the State of
New York and is exempt from the jurisdiction of the Board
under Section 2(2) of the Act Stony Brook where SUNY is
located is on Long Island in Suffolk County, New York, 50
miles east of New York City SUNY has approximately
12,500 students on an 1,100-acre campus, which includes
26 residential colleges within 5 quadrangles that house
6,000 students Included among the campus facilities
owned by SUNY are five cafeterias for the use of students
and faculty and their families and guests Although the
public may use the cafeterias, they are not solicited to do
so SUNY does not operate these cafeterias , it contracts
with food service companies such as Respondent to
provide the food service The contract SUNY entered into
obliges SUNY to provide and maintain the cafeteria
facilities, including all necessary equipment The food
service company undertakes to provide food service to
students and faculty according to specified rates
The contract contains somewhat detailed provisions
governing the operation of the cafeterias Thus, it contains
detailed provisions about the menus to be offered, specifies
meal service hours, sets forth various meal plans to be
offered to the users of the cafeteria, and specifies the price
of meals The contract gives SUNY the right of supervision
of Respondent's performance "with respect to the quality
and quantity of food service, the method of service, the
cleanliness , appearance, and behavior of the contractor's
employees, opening and closing hours, and generally with
respect to safety, sanitation and the maintenance of said
premises "
With respect to Respondent's labor force, the contract
provides that all management personnel shall continue
service only as long as their work is acceptable to SUNY,
and all personnel of Respondent are subject to dismissal
for conduct considered unacceptable by SUNY 3 As part
of its contract proposal, Respondent was required to
submit to SUNY a job grade, wage rate, and fringe benefit
program to be offered to its staff All personnel are
required to undergo a complete physical examination
The contract requires Respondent to provide work
opportunities for students at an hourly rate equal to the
New York minimum wage and specifies the maximum
number of hours they can work The minimum wage
provision never came into play because Respondent's rate
of pay exceeded the minimum wage
The contractor is required to submit monthly operating
profit and loss statements, and to keep complete account-
ing records of its operations under the agreement,
including a record of daily sales and receipts SUNY has
the right to examine and audit the contractor's records
The first food service contractor about which the record
contains evidence is ABC-Gladieux Corporation which
had the food service contract from September 1, 1968, to
August 31, 1970 At that time , SUNY had in effect a
mandatory food plan pursuant to which resident students
were required to subscribe to food service and the cost
thereof was part of a student's fees Under this system,
ABC-Gladieux contracted to provide each student with 21
meals per week at a specified daily rate No cash was paid
to ABC-Gladieux by the students, rather, ABC-Gladieux
was paid by SUNY
Prophet Foods replaced ABC-Gladieux, and the contract
it entered into with SUNY also provided that Prophet
1 Respondent filed a posthearing motion to dismiss the complaint in its
entirety In light of the Supreme Court s decision in N L R B v Burns
International Security Service Inc 406 U S 272 decided May 15, 1972 the
motion to dismiss is granted as to the complaint allegation respecting
Respondents refusal to honor the collective bargaining agreement between
the Union and the predecessor-employer In all other respects the motion to
dismiss is denied for the reasons given herein
2 The certification issued on June 3 1970 Case 29-RC-1458
3 There is no evidence this provision was ever invoked in Respondent s
case When Prophet Foods was food service contractor SUNY objected to
the employment of a student ( for reasons apparently not related to his work
performance) and its objection was honored An objection to the
employment of three management people was not honored
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foods would provide each student 21 meals per week at a
specified daily rate, which varied depending on the number
of students subscribing to the meal plan
Effective March 7, 1971, as a result of student com-
plaints about the quality of the food they were receiving,
resident students were no longer required to subscribe to
the meal plan, rather, SUNY adopted an optional meal
plan which permitted students to remove themselves from
the mandatory meal plan and a cash plan was substituted
pursuant to which students purchased their own meals
When this optional meal plan was adopted, the number of
students subscribing to the meal plan dropped from 3,500
to 500
Respondent's contract with SUNY is for the period from
September 1971, to August 31, 1972 The contract provides
that Respondent is responsible for collecting directly for all
charges for food service rendered with certain exceptions
and, in effect, is based on an optional meal plan for
resident students
The adoption of an optional meal plan has had a
significant impact on the operations of the food service
contractors Thus, during the time Prophet was food
service contractor, it operated all 5 cafeterias and em-
ployed as many as 250 employees, however, when
Respondent became the food service contractor it began
by operating 3 cafeterias, later opened a fourth and
employed as many as 90 employees, but gradually ceased
operating 3 of the 4 so that at the time of the hearing,
although the University was on a full-time basis, Respon-
dent was operating only 1 cafeteria employing only
management personnel and no unit employees
The 5 SUNY-owned cafeterias can each feed 1,000
students and are adequate for the entire resident student
body Since most of the students are obviously not eating
in the cafeterias, they must be eating elsewhere The
dormitories which house the students have minimal eating
facilities (e g, a kitchenette for each 100 students designed
for casual cooking), and even where there are no such
facilities, they are cooking in their rooms In addition,
there is a cafeteria in the Student Union building operated
by the Student Union On the campus, there are food
vendors purveying a variety of foods and on the perimeter
of the campus there are restaurants and fast food
operations According to Herbert Davis, manager of one of
Respondent's cafeterias, the restaurants and other food
service operations near the campus are inadequate to serve
the student body of SUNY, but his opinion appears to be
at odds with that of James Soch, Respondent's director of
food service, who testified "there are food facilities
available that could feed, oh, I would say the entire
residential students on the campus at different areas "
B Analysis and Conclusions
As indicated above, Respondent is a food service
contractor engaged in providing cafeteria food and related
services in various States, including the State of New York
Respondent is a Maryland corporation with its principal
office and place of business in Baltimore, Maryland In the
course and conduct of its operations, it annually receives
revenues in excess of $500,000 from all its food service
operations and it annually causes to be transported in
interstate commerce equipment, food, and materials valued
in excess of $50,000 On the basis of these facts, it is clear
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
that it meets the Board's standards for the assertion of
jurisdiction
However, the complaint herein is predicated on Respon-
dent's operations as a food service contractor at SUNY, a
State-operated institution exempt from the Board's juris-
diction, and Respondent contends that the food service it
provides is a function so intimately connected with
SUNY's exempted operations that it would not effectuate
the purposes of the Act for the Board to assert jurisdiction
herein In support of this position, Respondent relies, in the
main, on The Prophet Co, 150 NLRB 1559 and The Horn
and Hardart Company, 154 NLRB 1368 I find both cases
factually distinguishable from the instant case 4
In Herbert Harvey, Inc, 171 NLRB 283, the Board
asserted jurisdiction over a contractor providing mainte-
nance services to the World Bank, an exempt institution
The Board there distinguished not only Horn and Hardart
and The Prophet Co, supra, but also distinguished their
progenitor, Crotty Brothers, Inc, 146 NLRB 755, wherein
the Board declined to assert jurisdiction
In Crotty Brothers, 70 percent of the student body were
resident students subscribing to a mandatory food plan,
there was no other establishment within 1 mile where
students could obtain their meals, and the college exercised
substantially complete control over Crotty's operations and
labor relations policies
In Horn and Hardart, the food service was principally for
patients, menus were prepared by the hospital dieticians
who also decided the times at which food was to be served
to patients, and the contractor's employees in the perform-
ance of their duties were subject to direction by members
of the hospital's supervisory staff
In Prophet Co, almost one half of the students
subscribed to a board plan (which was mandatory for
resident students) and 79 percent of the contractor 's sales
was made under student meal contracts for which the
university paid a fixed fee for each subscribing student
There were no comparable eating facilities for students
within reasonable distance of the campus
Although, as I have indicated, I find the facts of those
cases distinguishable from the facts herein, I do not rely on
any differences in the food service contracts While I do
not have the contracts in those cases before me, it seems
evident that they are not essentially different from the
contract in this case But I find nothing in the contract to
justify a finding that SUNY has such control over
Respondent's operations and labor relations policies to
extend SUNY's exemption to Respondent or to find
SUNY to be anoint employer In myjudgment, the control
4 Respondent also relies on an unpublished Decision and Order by a denied a request for review of a dismissal of the petition I find these cases
Regional Director in Slater Corporation Case 6-RC-5923 in which also factually distinguishable and for the reasons set forth above I deem
apparently no request for review was made and on Slater Corporation A them not to be controlling
Subsidiary of ARA Services, Inc, Case 11-RC-3386, in which the Board
SERVOMATION MATHIAS, PA, INC
retained over Respondent's operations by SUNY is typical
of that retained over cost -plus-fixed fee contractors and is
of the type deemed insufficient by the Board to warrant a
refusal to exercise its j unsdiction 5
Insofar as Respondent 's labor relations policies are
concerned, it is clear that they are a matter for it to
determine , and not SUNY This is shown by the fact that
when Prophet Foods negotiated a collective-bargaining
agreement with the Union herein, SUNY did not inter-
vene , participate , or inject itself into the negotiations in any
manner , all that SUNY did was send an observer to a
couple of meetings
The cases differ in the essentiality of the food service
insofar as the students are concerned In the cases relied on
by Respondent, resident students were required to sub-
scribe to a meal plan and the cost was part of tuition and
fees This was the situation here before Respondent
became the contractor, but, since March 1971, the
mandatory food plan has been abolished and the cafeterias
are operated on a cash basis Except for some insubstantial
special programs , SUNY does not pay Respondent for
meals to students The cafeterias are operated on an a to
carte cash basis , and students are free to use or not to use
the facilities
Respondent contends that here, as in the cited cases,
there are no comparable eating facilities for the students I
have pointed out above what alternative facilities do exist
and they appear to me to be adequate to the needs of the
student body The most convincing proof of their adequa-
cy is the fact that since abolition of the mandatory food
plan students have opted to eat elsewhere In my judgment,
there can be no more significant proof that the food service
operation is not essential to the exempt operations of
SUNY than the fact that students are not using the
cafeterias , only one of five being in use , and that one being
operated by management personnel only Moreover, in
acquiescing to the abandonment of the mandatory meal
plan, SUNY appears to have concluded that providing
food service in a campus setting is not essential to the
educational purposes of the university
Respondent submits in its brief that in view of the
investment in the five cafeterias it must be presumed that
SUNY will not permit such facilities to remain idle In
support of this, Respondent has submitted a letter from
SUNY to Respondent stating, inter alia, that "It is our
intent at the present time to institute a compulsory board
plan for all entering freshmen beginning with fall 1972 " I
attach no weight to this letter which is dated December 14,
1971, and which was not properly offered into evidence at
the hearing in February 1972 But even were the letter in
evidence I would not deem it sufficient to warrant a
finding that food service is essential to SUNY's operation
I just don't see how one could close his eyes to the fact that
facilities asserted to be essential have lain idle for several
months with no indication that students , for whom the
services are designed , have protested the lack of adequate
food service facilities
For the foregoing reasons, I find that the food service
operations of Respondent at SUNY are not essential to
5 See Herbert Harvey supra fn 8 and cases cited therein
6 There is no evidentiary support for the employment figure of 400 which
1067
SUNY's exempt operations and I shall recommend that the
Board assert jurisdiction herein
III THE REFUSAL TO BARGAIN
A The Successor Issue
Respondent and Prophet Foods are both engaged in the
food service business on a nationwide scale , both contract-
ed with SUNY to provide the same service at the same
cafeteria facilities , and although Respondent used its own
supervisors its employees were all former employees of
Prophet Based on identical considerations , the Supreme
Court affirmed the Board's finding in Burns, supra, that
Burns was a successor to Wackenhut
Respondent contends , however, in effect, that its
operations at SUNY have only a semblance of the
operations of its predecessors Respondent contends that
the facts and circumstances of the food service operation
have changed so materially in 1971-72 from what it was in
1969-70, or 1970-71 that no successorship can result As
Respondent puts it , "Certainly, the basic precepts of
quantum mechanics are applicable to the circumstances
obtaining herein, namely, that at some point a significant
quantitative change constitutes a qualitative change "
The facts and circumstances relied upon by Respondent
are that in 1969-70, when ABC-Gladieux was the food
service contractor, the food service contract was based on a
mandatory food plan serving a substantial percentage of
the university community, using all of SUNY's cafeteria
facilities , and employing nearly 400 employees Prophet
Foods similarly operated all the cafeterias , employed about
400 employees , and, at least initially, operated on the basis
of a mandatory food plan s Under a mandatory food plan,
although there are cash sales, the major receipts of the food
service contractor are from SUNY
Respondent contrasts the foregoing with the evidence
that it never operated all the cafeterias , never employed
over 90 employees , and that, as a result of the abandon-
ment of the mandatory food plan , it operated only on a
cash basis Respondent also adverts to the evidence that
whereas Prophet operated on a four-shift basis, it operated,
at least for a time , on a continuous 9 a in to 7 p in basis
I am not persuaded that any of the differences adverted
to by Respondent warrant a finding that it was not a
successor to Prophet Respondent is still contractually
obligated to render the same service at the same facilities
and the work force that it gradually acquired consisted
exclusively of former Prophet employees , employed in the
same job classifications , and performing the same duties as
had been performed by Prophet employees Neither the
change to a full cash operation , already partly in effect
while Prophet was still the contractor, nor the change in
hours of operation can be deemed differences of such
consequences as to justify a finding that there has been a
change in the employing industry
The evidence that at the time of hearing Respondent was
operating only one cafeteria and employing no unit
personnel does not require a different conclusion The
gravamen of the complaint is that in August 1971, when
Respondent uses in its beef
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent took over the food service operation, and
thereafter, when Respondent's work force numbered about
90 former employees of Prophet, Respondent refused to
recognize the Union It is at that point in time that one
must evaluate Respondent's status as a successor-employ-
er
In its argument against a finding of successorship,
Respondent injects an assertion about the Union's majon-
ty status Thus, it states that "Although the bulk of
Servomation's rank and file employees in the early fall
were former Prophet employees, their number never
constituted a majority of the projected numbers of workers
Servomation would have had to employ had its operations
ever been comparable to ABC-Gladieux's or even Proph-
et's " I don't know on what Respondent bases this
assertion It had contractually agreed with SUNY to give
first preference in employment to former Prophet employ-
ees, and, in discussions with the Union, it had gone so far
as to agree to follow seniority in hiring based on
employment not only by Prophet, but also by ABC-
Gladieux On the basis of these facts, Respondent had a
pool of about 300 former Prophet and ABC-Gladieux
employees to draw from
Finally, Respondent contends that a finding of succes-
sorship must discount its quantum mechanics theory and
must be predicated on a finding that the circumstances
under which Respondent is operating are temporary only,
which would require a further finding that the food
services would again be substantial in volume and
therefore an important part of SUNY's operations and
intimately related to its operations as an exempt institu-
tion, so that jurisdiction should not be asserted herein on
the principle discussed under the jurisdiction heading
above Such a result would misconceive the meaning
behind my finding that Respondent's operations are not
essential to SUNY's operations as an exempt institution
Stated briefly, my finding in this case is that the facts
herein demonstrate clearly, contrary to the facts in the
cases cited by Respondent in support of its argument
against a finding of jurisdiction, that a food service
operation at a university is no more essential to the
university's exempt operations than are the maintenance
services in issue in Herbert Harvey, supra, and, even if
SUNY reinstituted a mandatory food plan and all
cafeterias were reopened, I would not withhold the exercise
of jurisdiction
B The Appropriateness of the Unit
The certified unit is as follows All cafeteria and kitchen
employees employed by the Employer at the State
University, Stony Brook, New York, excluding all office
clerical employees, guards, and supervisors as defined in
the Act, and all part-time employees who work 8 or less
hours per week
Under this unit description, students at SUNY employed
by the food service contractor would be included in the
unit and would be eligible to vote Whether or not students
did vote in the election held when ABC-Gladieux was food
service contractor does not appear in the record Nor does
it appear whether the Union and Prophet discussed the
inclusion or exclusion of students as such when they
negotiated a contract They evidentiy discussed part-time
employees because they mutually agreed to exclude from
the unit part-time employees working less than 12 hours
per week, rather than 8 as specified in the certification
(Because of this modification by the parties to the
certification, the complaint alleges that the appropriate
unit is as modified As the modification was not substantial
and did not render the unit inappropriate I find the
appropriate unit to be that which excludes part-time
employees working less than 12 hours per week) In the
absence of a specific exclusion of students, I conclude that
they have been included in the unit as part-time employees
Respondent contends that the inclusion of the students
renders the unitper se inappropriate I find no meet to this
contention As Respondent points out, in Scope Associated,
172 NLRB 1789, the Board excluded student janitors on
the ground their major economic interest was in studies in
preparation for a different occupation and thus they had
no community of interest in their employment with
employees who worked full-time and were dependent on
their employment for a livelihood
However, the exclusion of students in any given case
does not mean that their inclusion would render a unit
inappropriate As the Court pointed out in N L R B v
Certified Testing Laboratories, 387 F 2d 275 (C A 3), where
the Court sustained the Board's exclusion of student
employees, "We do not imply that had the Board reached
the opposite result, its position would have been untena-
ble " In Simon Bros Co, 173 NLRB 906, the Board
excluded some college students and included others who
worked regular part-time in contact with regular employ-
ees It appears here that the students work alongside
regular full-time employees in the same classifications on a
regular part-time basis Moreover, the contract between the
Union and Prophet contains provisions relating to part-
time employees which are applicable to students and which
reflect a shared community of interest in working condi-
tions between students and regular employees during that
period of their lives when the students are employed by the
food service contractor Under all the circumstances, the
inclusion of the students in the unit did not render the unit
inappropriate
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section I
and II, above, occurring in connection with its operations
described therein, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act
As noted earlier, Respondent had no unit employees at
the time of the hearing In such a circumstance, a
SERVOMATION MATHIAS, PA, INC
bargaining order would be inappropriate It appears,
however, that such situation is temporary, and I shall
recommend that, in the event Respondent resumes
operations with employees in the appropriate unit, Respon-
dent bargain, upon request , with the Union , and, if an
understanding is reached , embody such understanding in a
signed agreement
CONCLUSIONS OF LAW
I Servomation Mathias Pa, Inc, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and it will effectuate the policies of the
Act to assert jurisdiction over its operations at State
University of New York at Stony Brook
2 Respondent is a successor to Prophet Foods Compa-
ny
3 Local 1199, Drug and Hospital Union, Retail,
Wholesale and Department Store Union , AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act
4 All cafeteria and kitchen employees employed by
1069
Respondent at the State University , Stony Brook, New
York , excluding all office clerical employees, guards, and
supervisors as defined in the Act, and all part-time
employees who work less than 12 hours per week,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act
5 Local 1199, Drug and Hospital Union, Retail,
Wholesale and Department Store Union, AFL-CIO, is the
exclusive representative of the employees of Respondent in
the above-described unit within the meaning of Section
9(a) of the Act
6 By refusing to recognize and bargain with the
aforesaid Union, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and ( 1) and Section 2(6) and (7) of the Act
7 Respondent 's refusal to honor the collective -bargain-
ing agreement between the aforesaid Union and Prophet
Foods did not constitute an unfair labor practice within
the meaning of Section 8(a)(5) and (1) of the Act
[Recommended Order omitted from publication