20. EFFECT OF STATUS OR TENURE ON UNIT

PLACEMENT AND ELIGIBILITY TO VOTE 

In both unit placement and eligibility to vote, the status of employees and their tenure are

major considerations. The job classifications of employees do not always determine whether or

not they will be included in a unit. Treated here are questions which pertain to (1) part-time 

employees; (2) temporary employees; (3) seasonal employees; (4) student workers; (5) dualfunction employees; and (6) probationary employees, including trainees and clients in 

rehabilitation settings. 

20-100 Part-Time Employees 

20-110 Generally 

362-6712 

460-5067-4200 

Part-time employees are included in a unit with full-time employees whenever the part-time

employees perform work within the unit on a regular basis for a sufficient period of time during 

each week or other appropriate calendar period to demonstrate that they have a substantial and 

continuing interest in the wages, hours, and working conditions of the full-time employees in the 

unit. New York Display & Die Cutting Corp., 341 NLRB No. 121 (2004); Arlington Masonry 

Supply, Inc., 339 NLRB 817 (2003); Fleming Foods, 313 NLRB 948 (1994). Pat’s Blue Ribbons, 

286 NLRB 918 (1987); Farmers Insurance Group, 143 NLRB 240, 245 (1979). Such part-time 

employees are described as “regular part-time employees.” 

In Arlington Masonry Supply, Inc., supra at 819, the Board described its policy for

determining part-time eligibility:

The test to determine whether one is a regular part-time employee versus a casual 

employee “takes into consideration such factors as regularity and continuity of employment, 

tenure of employment, similarity of work duties, and similarity of wages, benefits, and other 

working conditions.” Muncie Newspapers, Inc., 246 NLRB 1088, 1089 (1979). “In short,

the individual’s relationship to the job must be examined to determine whether the employee

performs unit work with sufficient regularity to demonstrate a community of interest with

remaining employees in the bargaining unit.” Pat’s Blue Ribbons, 286 NLRB 918 (1987). 

The standard frequently used by the Board to determine the regularity of part-time 

employment is to examine whether the employee worked an average of 4 or more hours a 

week in the quarter preceding the eligibility date. See Davison-Paxon [infra at sec. 20-120]. 

Thus, where the number and identity of drivers and other employees fluctuated from week to 

week but a substantial number reported and worked fairly regularly over a period of several

months, and during an 8-month period 70 of approximately 120 to 125 drivers worked in three or 

more consecutive weekly pay periods, with many more working in 10 or more consecutive 

weeks, the Board concluded that this “is scarcely the pattern of a temporary, part-time or casual 

work force.” Fresno Auto Auction, 167 NLRB 878 (1967). The brevity of the employee’s tenure

may be a factor in determining part-time status, but it is not dispositve. In New York Display & 

Die Cutting Corp., supra, the Board found regular part-time status for an employee who was hired 

9 days before the election. 

The Board in this case made the further comment that “In determining the relative regularity

or permanence of the employment in the proposed unit, we believe this fact outweighs those 

considerations having to do with the individual’s freedom to determine his own work schedule or 

to report for work intermittently.” The fact that they were carried on the payroll as part-time

workers did not “alter the character of the work force as a cohesive group of individuals with a 

235
236 EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE

strong mutual interest in their working conditions.” Id. See also Henry Lee Co., 194 NLRB 1107

(1972). 

Following this principle, part-time employees who worked principally on weekends 

performing the same work as full-time workers were included in a unit of full-time employees. 

Bob’s Ambulance Service, 178 NLRB 1 (1969). And where for a representative 2-week payroll 

period each employee averaged 33 hours of work, they were found to be regular part-time 

employees. Shannon & Luchs, 166 NLRB 1011 (1967). 

As has been noted, the similarity of interests between full-time and part-time employees is a

determinative factor. Newburgh Mfg. Co., 151 NLRB 763 (1965); Berea Publishing Co., 140

NLRB 516 (1963); Great Atlantic & Pacific Tea Co., 119 NLRB 603 (1957). In evaluating the 

part-time status of employees, consideration is given to regularity and continuity of employment,

the similarity of duties and functions to those of full-time employees, the similarity of wages, 

benefits, and other working conditions, and the supervision of the part-time employees. V.I.P. 

Movers, 232 NLRB 14 (1977); L & A Investment Corp., 221 NLRB 1206, 1207 (1975);

Lancaster Welded Products, 130 NLRB 1478 (1961); Mensh Corp., 159 NLRB 156, 158 (1966). 

The work history of the employees in question is also considered (Columbus Plaza Hotel, 148 

NLRB 1053 (1964)), as is the turnover rate among that classification of employees (Lewis & 

Coker Supermarkets, 145 NLRB 970 (1964); Vindicator Printing Co., 146 NLRB 871 (1964)). 

Various standards, such as hours worked per day or week, or days worked per calendar 

period, have been applied in different industries to determine whether a part-time employee is 

regular or casual. Davison-Paxon Co., 185 NLRB 21, 23–24 (1970); C. T. L. Testing 

Laboratories, 150 NLRB 982 (1965); Motor Transport Labor Relations, 139 NLRB 70 (1962). 

Examples of such determinations follow: 

In retail department stores, part-time employees who worked a minimum of 15 days in the

calendar quarter before the eligibility date were considered regular part-time. Scoa, Inc., 140 

NLRB 1379 (1963). 

Part-time taxi drivers working 1 or 2 days a week were included in the unit found 

appropriate. Jat Transportation Corp., 128 NLRB 780 (1960); Cab Operating Corp., 153

NLRB 878 (1965); Checker Cab Co., 141 NLRB 583 (1963). 

All part-time employees who worked at least 8 hours per week were included (Chester

County Beer Distributors, 133 NLRB 771 (1961)), as were employees who worked 20 hours 

per week. (Farmers Insurance Group, supra.) 

Part-time blood collectors who work an average of 5 to 25 hours per week and whose 

hours are scheduled in advance were included in the unit. St. Luke’s Episcopal Hospital, 222 

NLRB 674, 678 (1976). See also Leaders Nameoki, Inc., 237 NLRB 1269 (1978) (4 hours for

department store personnel). 

Employees who regularly averaged 4 hours a week for the last quarter prior to the

eligibility date were regarded as having a sufficient community of interest to warrant

inclusion. V.I.P. Movers, supra; Allied Stores of Ohio, 175 NLRB 966 (1969). 

Part-time employees working approximately one-quarter of the available workdays in the

quarter of a year preceding an election were included in a production and maintenance unit of

a newspaper printer and publisher. Suburban Newspaper Group, 195 NLRB 438 (1972). 

An annuitant working regularly but limited in hours and pay so as not to decrease his annuity 

was included in the unit. Consolidated Supply Co., 192 NLRB 982, 986 (1971). 

Where there is a wide disparity in the numbers of hours worked by part-time employees, the 

Board may fashion an appropriate standard to assure an equitable formula. Compare Marquette 

General Hospital, 218 NLRB 713 (1975), with Sisters of Mercy Health Corp., 298 NLRB 483

(1990), and Northern California Nurses Assn., 299 NLRB 980 (1990). See also Beverly Manor

Nursing Home, 310 NLRB 538 (1993). 
EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE 237

Regular part-time employees are characteristically included in a retail store unit. Where all

part-time selling employees worked a regular and substantial amount of time and had a sufficient 

community of interest with full-time employees, the Board dismissed a petition for a proposed 

unit which was restricted to so-called regular sales employees. Sears, Roebuck & Co., 172 NLRB 

1266 (1968). 

The fact that an employee has a regular full-time position elsewhere does not destroy his 

community of interest with employees at his part-time employment if the other criteria are met. 

Tri-State Transportation Co., 289 NLRB 356 (1988); Joclin Mfg. Co., 144 NLRB 778 (1963).

But where such an employee will only work at his part-time job as his full-time position allows, 

and there is therefore no established working pattern, the employee may be considered irregular 

and casual. Haag Drug Co., 146 NLRB 798 (1964). Compare, V.I.P. Radio, 128 NLRB 113

(1960). 

See also section 20-120 and 140 

20-120 “On-Call” Employees 

362-6734 

460-5067-8200 

“On-call” employees may or may not be considered regular part-time employees, depending

on the specific nature of their employment. Where they are employed sporadically, with no 

established pattern of regular continuing employment, they are excluded from the unit. Piggly 

Wiggly El Dorado Co., 154 NLRB 445, 451 (1965); G. C. Murphy Co., 128 NLRB 908 (1960). 

But where “on-call” employees have a substantial working history, with a substantial 

probability of employment and regular hiring, and meet any other criteria established by the 

Board, they are considered regular part-time employees. Davison-Paxon Co., supra; Steppenwolf 

Theatre Co., 342 NLRB No. 7 (2004), applying the Davis–Paxon formula and distinguishing the 

Juilliard School, 208 NLRB 153 (1974), formula.; Berlitz School of Languages, 231 NLRB 766 

(1977); Newton-Wellesley Hospital, 219 NLRB 699, 703 (1975); Columbus Plaza Motor Hotel, 

supra; Bailey Department Stores Co., 120 NLRB 1239 (1958). See also Saratoga County Chapter 

NYSARC, 314 NLRB 609 (1994). 

The Board used “dual function” analysis in determining whether employees were eligible to 

vote in an election of parking lot employees where the individuals worked full time for the 

employer in other positions. The Board rejected the “on call” analysis of the Regional Director. 

Syracuse University, 325 NLRB 162 (1997). 

When a contract specifically covered in one bargaining unit all the employer’s film servicing

locations, the on-call technicians performed the same work as the full-time technicians, and the 

contract also specifically provided for the employment of on-call technicians and for their 

remuneration on a flight-serviced basis, the on-call technicians were included in the unit. Bell & 

Howell Airline Service Co., 185 NLRB 67 (1970). 

In determining the number of working hours, the Board counted time spent by home health

care workers in completing paperwork and in delivering mandatory paperwork to the office. It did 

not count time spent consulting with other personnel. Five Hospital Homebound Elderly 

Program, 323 NLRB 441 (1997). 

For related discussion see Irregular Part-Time Employees, section 20-140 below.

For a discussion of “on-call” nurses see the health care cross listed in section 20-110 above. 

For a related discussion of “on-call employees,” see section 23-450.

20-130 Part-Time Faculty Members 

460-5067-4200 

The Board determined in New York University, 205 NLRB 4 (1973), that the differences 

between members of the full-time and members of the part-time faculty are so substantial in most 
238 EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE

colleges and universities that it would no longer adhere to the principle announced in University

of New Haven, 190 NLRB 478 (1971), of including regular, part-time faculty in the same unit 

with full-time faculty. Thus, the Board now “excludes adjunct professors and part-time faculty 

members who are not employed in ‘tenure track’ positions.” Also see Catholic University, 205 

NLRB 130 (1973). However, the Board has found a separate unit of part-time faculty members to 

be appropriate when the employees sought share a community of interest. University of San 

Francisco, 265 NLRB 1221 (1982). Cf. Goddard College, 216 NLRB 457 (1975). 

20-140 Irregular Part-Time Employees 

362-6730 

460-5067-7700 

We turn now to part-time employees whose work periods are sporadic or casual. These are 

normally termed “irregular part-time employees.” Within the framework of the basic rationale

which delineates the dichotomy between “regular” and “irregular,” close cases often arise. The

absence of the required factors for finding regular part-time status inevitably leads to a finding of 

“casual” status. Royal Hearth Restaurant, 153 NLRB 1331 (1965). Considerations such as the 

ability of an employee to accept or reject employment or to vary the number of hours worked 

according to personal choice are relevant to the determination. Thus, the option of employees on 

a list subject to call to reject or accept employment is relevant to but not determinative of casual

employment. Pat’s Blue Ribbons, 286 NLRB 918 (1987); Tri-State Transportation Co., 289 

NLRB 356, 357 (1988); and Manncraft Exhibitors Services, 212 NLRB 923 (1974). Infrequent

employment also leads to such a finding. Callahan-Cleveland, Inc., 120 NLRB 1355, 1357

(1958); Colombia Music & Electronics, 196 NLRB 388 (1972). 

In Mercury Distribution Carriers, 312 NLRB 840 (1993), the Board held that an employee’s 

option to turn down work and the fact that the employee did not call in every day does not

preclude a finding of regular part-time employee. 

For related discussion see On-Call Employees, section 20-120 above. 

20-200 Temporary Employees 

362-6718 

460-7000 

The test for determining the eligibility of individuals designated as temporary employees is

whether they have an uncertain tenure. Marian Medical Center, 339 NLRB 127 (2003). If the

tenure of the disputed individuals is indefinite and they are otherwise eligible, they are permitted

to vote. Personal Products Corp., 114 NLRB 959 (1955); Lloyd A. Fry Roofing Co., 121 NLRB 

1433 (1958); United States Aluminum Corp., 305 NLRB 719 (1991); NLRB v. and New England 

Lithographic Co., 589 F.2d 29 (1st Cir. 1978). On the other hand, where employees are employed

for one job only, or for a set duration, or have no substantial expectancy of continued 

employment and are notified of this fact, and there have been no recalls, such employees are

excluded as temporaries. Indiana Bottled Gas Co., 128 NLRB 1441 fn. 4 (1960); Owens-Corning 

Fiberglas Corp., 140 NLRB 1323 (1963); Sealite, Inc., 125 NLRB 619 (1959); and E. F. Drew & 

Co., 133 NLRB 155 (1961). 

A permanent and regular nonunit employee who is temporarily transferred to a unit position 

is not eligible to vote if the assignment is finite and reasonably ascertainable. Marian Medical

Center, supra. 

Temporary employees who have achieved permanent status prior to the eligibility date are 

eligible to vote. Gulf States Telephone Co., 118 NLRB 1039, 1041 (1957). Thus, where 

employees were hired to fill full-time or part-time jobs with the understanding that their 

employment may be terminated at any time but remained in continuous service for a period 

longer than 1 year and under company policy achieved permanent status, they were found eligible 
EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE 239

to vote. It is the employee’s status as of the eligibility date that is determinative. Events occurring 

after the eligibility date are irrelevant to such a determination. Pen Mar Packaging Corp., 261 

NLRB 874 (1982); and St. Thomas-St. John Cable TV, 309 NLRB 712 (1992). See also Apex 

Paper Box, 302 NLRB 67 (1991), concerning laid-off employees recalled after the eligibility date 

but prior to the election, and WDAF Fox 4, 328 NLRB 3 (1999), where a divided Board found

that the employer changed what had been a fixed termination date. 

Where the employer calls back a substantial number of the same employees, even though 

they are described as “temporary,” each year, they are included in the unit. Tol-Pac, Inc., 128 

NLRB 1439 (1960). Compare Recipe Foods, 145 NLRB 924 (1964); LaRonde Bar & Restaurant, 

145 NLRB 270 (1963). 

Temporary employees, who, despite that characterization, are retained beyond their original 

term of employment, and whose employment is thereafter for an indefinite period, are included in 

the unit. MJM Studios, 336 NLRB 1255 (2001); Orchard Industries, 118 NLRB 798 (1957). Also 

included are so-called temporary employees who have worked for substantial periods where there

is no likelihood that their employment will end in the immediate foreseeable future. Horizon 

House 1, Inc., 151 NLRB 766 (1965). See also Textile Workers UTWA, 138 NLRB 269 fn. 3 

(1962); Lloyd A. Fry Roofing Co., 121 NLRB 1433 (1958); and Personal Products Corp., 114 

NLRB 959 (1955). Even when an employee knows that a replacement is being sought, the

employee remains eligible to vote if no definite date is set for the termination of employment. 

NLRB v. New England Lithographic, supra. 

Temporary employees drawn from the same labor force each year, employed every year in 

substantial numbers for substantial periods of time, composed primarily of former employees, and

working with and doing the same kind of work as the permanent employees have a sufficient

interest in the conditions of employment to be included despite difference in working conditions, 

remuneration, and the temporary nature of the work. F. A. Bartlett Tree Expert Co., 137 NLRB 

501 (1962). 

Employees in a labor pool who are hired out to employer’s customers on a day-to-day basis 

are casual laborers similar to stevedores and are entitled to the protection of the Act even though 

the employer does not exercise control over the entire employment relationship. All-Work, Inc.,

193 NLRB 918 (1971). Eligibility, however, was limited to employees who had worked at least 7

days in the 90-day period preceding the Board’s decision and direction of election at least 1 of

which days was in the 30-day period preceding the decision. 

In Evergreen Legal Services, 246 NLRB 964 (1979), the Board found that employees 

working under Comprehensive Employment and Training Act programs (CETA) were not

temporary and should be included in a unit with regular full-time employees. See section 20-620 

for a discussion of Trainees. 

In one post-M.B. Sturgis case (see 14-600) (M.B. Sturgis, Inc., 331 NLRB 1298 (2000) (the 

Board included the contingent employees supplied by a staffing agency in the unit of user 

employees. In doing so the Board found a “strong” community of interest. The Board did not

however analyze the case under traditional temporary analysis even though the employees 

worked for a maximum of 15 months. Outokumpu Copper Franklin, Inc., 334 NLRB 263 (2001).

Although Sturgis has been overruled by Oakwood Care Center, 343 NLRB No. 76 (2004), on the 

issue of consent for inclusion in multiemployer units, presumably, community of interest 

standards apply where that consent is given. 

For a discussion of students or temporary employees see section 20-400, infra. 
240 EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE

20-300 Seasonal Employees 

460-5067-5600 

Regular seasonal employees are those who have a reasonable expectation of reemployment in

the foreseeable future; they are included in the bargaining unit. L & B Cooling, 267 NLRB 1 

(1983); P. G. Gray, 128 NLRB 1026 (1960); Musgrave Mfg. Co., 124 NLRB 258 (1959);

California Vegetable Concentrate, 137 NLRB 1779 (1962); Baumer Foods, 190 NLRB 690

(1971); Knapp-Sherrill Co., 196 NLRB 1072 fn. 2 (1972). 

For discussion of students or temporary employees, see section 20-400, infra. 

Temporary or casual seasonal employees are excluded. L & B Cooling, supra; Post Houses, 

161 NLRB 1159, 1172–1173 (1966); Root Dry Goods Co., 126 NLRB 953 fn. 10 (1960); F. W. 

Woolworth Co., 119 NLRB 480 (1957). 

It is Board policy that unit placement and voting eligibility are inseparable issues; any

employee who may be represented as the result of an election has the right to vote in the election. 

This policy, restated in Post Houses, supra; Sears, Roebuck & Co., 112 NLRB 559 fn. 28 (1955), 

is applicable not only to seasonal employees but to all employees who are entitled to be included 

in the bargaining unit. 

Factors which militate in favor of finding employees regular seasonal employees warranting 

inclusion are: 

20-310 Same Labor Force 

460-5067-5600 

The employer draws from the same labor force each season. Seneca Foods Corp., 248 NLRB

1119 (1980); Maine Apple Growers, Inc., 254 NLRB 501 (1981); Kelly Bros. Nurseries, 140 

NLRB 82 (1962); Carol Management Corp., 133 NLRB 1126 (1961); and Baumer Foods, supra. 

20-320 Former Employees 

460-5067-5600 

Former employees are given preference in rehiring or recall, whether the employer uses a 

preferential hiring list or not. Bogus Basin Recreation Assn., 212 NLRB 833 (1974); Aspen Skiing

Corp., 143 NLRB 707 (1963); Brown Cigar Co., 124 NLRB 1435 (1959); and Micro Metalizing

Co., 134 NLRB 293 (1962). 

20-330 Similarity of Duties, etc. 

460-5067-5600 

Duties, working conditions, supervision, and/or benefits are substantially similar for both 

permanent and seasonal employees. Kelly Bros. Nurseries, supra; California Vegetable 

Concentrate, supra. 

20-340 Transition 

460-5067-5600 

The ability to go from seasonal to permanent employment. California Vegetable 

Concentrates, supra; Micro Metalizing, supra. Where there is a relatively stabilized demand for,

and dependence on, such employees by the employer, and there is likewise reliance by a 

substantial number of the employees on a return to the employer each year, the employees in

question have a sufficient community of interest with the permanent employees to be included in

the unit. Maine Apple Growers, supra; Kelly Bros. Nurseries, supra; California Vegetable 

Concentrates, supra. 
EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE 241

Factors which militate against finding employees regular seasonal employees may be found 

in the following cases: 

Where there is a high turnover rate among seasonal employees, the employer does not follow 

a recall policy, and the seasonals rarely become permanent employees and do not share in the 

benefits received by the permanent employees, the employees are temporary or irregular seasonal 

employees without sufficient interests to be included in the unit. Freeman Loader Corp., 127 

NLRB 514 (1960). 

“Christmas extras,” who do not generally return each year and have no expectation of 

continued employment, are excluded from the unit. Root Dry Goods Co., supra at fn. 10. 

Where at the time of the hearing there had been only 1 recall of laid-off employees and a total 

of 75 temporary seasonal employees were hired, but there was no precise evidence as to what

percentage of this number was returning from prior layoffs, the Board could not, on the basis of 

the 1 recall alone, find that “a sufficiently large number of temporary seasonal employees has a

demonstrable expectation of being rehired.” They were therefore excluded from the unit and 

deemed ineligible to vote in the election. Maine Sugar Industries, 169 NLRB 186 (1968). 

Where employees hired during a seasonal peak are uncertain of reemployment, receive no 

fringe benefits, receive less pay than the regular employees in the unit, and have permanent fulltime employment elsewhere, they are excluded from the unit. Georgia Highway Express, 150

NLRB 1649 fn. 4 (1965). See also Candy Shops, 202 NLRB 538 (1973), and L & B Cooling, 

supra. 

Where a year-round operation had a fluctuating need for extra or on-call employees in a 

seasonal pattern, and the timing of the election may tend to exclude employees with substantial

records of employment during peak periods, the Board included in the unit employees who

worked a minimum of 15 days in either of the two 3-month periods immediately preceding the 

date of issuance of the direction of election. Daniel Ornamental Iron Co., 195 NLRB 334 (1972). 

As the Board will not give controlling weight to bargaining history to the extent that it 

departs from clearly established Board policy, seasonal employees were included in the

bargaining unit where they worked for a substantial portion of the year, had a near certain

expectation of reemployment from year to year, worked alongside year-round employees under 

the same supervision, and where the employer under its new owners had undertaken new policies 

tending to eliminate distinctions previously existing between seasonal and year-round employees.

William J. Keller, Inc., 198 NLRB 1144 (1972). 

20-350 Timing of Seasonal Elections 

370-0750-4900 

Board policy is to direct elections involving seasonal employees at as near the peak of the 

season in order to provide as many voters as possible with the opportunity to cast their ballots. 

Libby, McNeill & Libby, 90 NLRB 279, 281 (1950); Brooksville Citrus Growers Assn., 112 

NLRB 707 (1955); Bogus Basin Recreation Assn., supra. On the other hand, circumstances may

be such that the highest peak is not required. Elsa Canning Co., 154 NLRB 1810 (1965); Fall

River Dyeing Corp., 272 NLRB 839 (1984), enfd. 775 F.2d 435 (1st Cir. 1985), affd. 482 U.S. 27 

(1987). See also Saltwater, Inc., 324 NLRB 343 ( 1997). 

If the employer, despite hiring some employees seasonally, is engaged in virtually year-round 

production operations, and the number of employees in the year-round complement is relatively 

substantial, the employer’s operation may be deemed “cyclical” and an immediate election

directed. Aspen Skiing Corp., supra; Baugh Chemical Co., 150 NLRB 1034 (1965); See Candy

Shops, supra. 

The delay in conducting the election will not require a new showing of interest. Bogus Basin

Recreation Assn., supra. 
242 EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE

20-400 Student Workers 

362-6736 

460-5067-4500 

The voting eligibility of students presents a number of issues. In St. Clare’s Hospital, 229 

NLRB 1000 (1977), the Board described four categories of cases in which the issue of 

student eligibility to vote is presented: 

1. Students employed by a commercial employer in a capacity unrelated to the student’s

course of study are eligible to vote if they otherwise meet the community-of-interest test. 

2. Students employed by their own educational institution in a capacity unrelated to their

course of study are generally excluded from voting on the view that their relationship to the 

unit is normally viewed as transitory. But they will be included if they share a community of 

interest with the unit employees. University of West Los Angeles, 321 NLRB 61 (1996). 

3. Students employed by a commercial employer in a capacity that is related to the 

student’s course of study are excluded from the unit because the students’ relationship is 

primarily educational. 

4. Students who perform services at their educational institution that are directly related to

their educational program. Examples of this kind of relationship are medical interns and

residents. In Boston Medical Center, 330 NLRB 152 (1999), the Board overruled CedarsSinai Medical Center, 223 NLRB 251 (1976), and held that interns and residents are 

employees under the Act. In Brown University, 342 NLRB No. 42 (2004), the Board found

that graduate assistants are not employees who are eligible for collective bargaining. 

Similar tests are applied to students employed on a part-time or temporary basis as are

applied to all nonpermanent employees. Thus, for example, students who worked for a constant 

number of hours each weekend as night telephone operators, performing duties regularly required 

by the employer during these hours, were held to be regular part-time employees and included in 

the unit. Fairfax Family Fund, 195 NLRB 306 (1972). See also Mount Sinai Hospital, 233 NLRB 

507, 508 (1977), and System Auto Park & Garage, 248 NLRB 948 (1980). 

Student firefighters were excluded from a craft-type unit sought because they did not possess 

the skills or exercise the responsibility typically associated with firefighters. Leland Stanford Jr. 

University, 194 NLRB 1210 (1972). 

Although the Board generally excludes summer employees from the appropriate unit, such 

employees nonetheless are deemed eligible to vote if, upon returning to school, their employment

evidences regular part-time status. This should be distinguished from “a pattern of intermittent,

sporadic employment.” Crest Wine & Spirits, Ltd., 168 NLRB 754 (1968). See also Beverly 

Manor Nursing Home, 310 NLRB 538 fn. 3 (1993). 

In another case, a student who continued to work on Saturdays on a regular part-time basis

when school began was found to be a regular part-time employee, but another student, as to

whom there was no evidence that he continued his employment after resuming school on a fulltime basis, was excluded from the unit. Sandy’s Stores, 163 NLRB 728, 729 (1967). See also

Giordano Lumber Co., 133 NLRB 205, 207 (1961). 

Where summer students were hired to fill seasonal vacancies, did not enjoy the same fringe

benefits, and had no commitment for rehire during subsequent summers, they were held to be 

temporary employees and excluded from the unit. J.K. Pulley Co., 338 NLRB 1152 (2003); 

Fisher Controls Co., 192 NLRB 514 (1971). See also Walgreen Louisiana Co., 186 NLRB 129,

130 (1970); Hygeia Coca-Cola Bottling Co., 192 NLRB 1127 (1971); Georgia-Pacific Corp.,

201 NLRB 831 (1973). 

In Saga Food Service, 212 NLRB 786 fn. 9 (1974), the Board declined to find appropriate a 

separate unit of student cafeteria employees. 
EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE 243

20-500 Dual-Function Employees 

177-8501-7000 

362-6790 

460-5067-4900 

For the most part, the same community-of-interest tests are applied to dual-function 

employees as are applied to part-time employees. Berea Publishing Co., 140 NLRB 516 (1963);

Wilson Engraving Co., 257 NLRB 333 (1980). 

In enunciating this policy, the Board pointed out that the policies of the Act are best 

effectuated by according to each employee the same rights and privileges in the selection of the 

majority representative for the unit in which he works. It would perceive “no distinction between 

the part-time employee, who may work for more than one employer, and the employee who

performs dual functions for the same employer.” (140 NLRB at 519.) Thus, employees who 

perform more than one function for the same employer may vote, even though they spend less

than a majority of their time on unit work, if they regularly perform duties similar to those 

performed by unit employees for sufficient periods of time to demonstrate that they have a

substantial interest in working conditions in the unit. See Harold J. Becker Co., 343 NLRB No. 

11 (2004); Medlar Electric, Inc., 337 NLRB 796 (2003); Ansted Center, 326 NLRB 1208 (1998);

Air Liquide America Corp., 324 NLRB 661 (1997). Continental Cablevision, 298 NLRB 973

(1990); Alpha School Bus Co., 287 NLRB 698 (1987); Oxford Chemicals, 286 NLRB 187 (1987);

but see Benson Contracting Co. v. NLRB, 941 F.2d 1262 (D.C. Cir. 1991), in which the circuit 

court denied enforcement of a Board Order inasmuch as Board determination that dual-function

employees were entitled to vote in two separate units would require such employees to join two 

different unions to maintain their employment with the employer. Berea was reaffirmed in Avco

Corp., 308 NLRB 1045 (1992). In KCAL-TV, 331 NLRB 323 (2000), the Board concluded that 

the dual function employee there had sufficient interest in each of the two units in which she

worked as to permit her to vote in both elections. 

However, in a situation where alleged dual-function employees had only 3 percent or less of

their time devoted to the type of work done by the employees in the unit, they had no such 

community of interest with them that would warrant their inclusion in the unit. They did not 

spend a substantial period of their time performing “identical” functions. Davis Transport, 169 

NLRB 557 (1968). Moreover, where an employee, who was primarily involved in running a parts 

department and performing mechanic’s duties, did some truckdriving on all or part of only 20

days in a year but without regularity, pattern, or consistent schedule, the Board found that he did 

not perform a sufficient amount of work in the truckdriver unit to demonstrate that he had a 

substantial interest in the unit to warrant inclusion. Mc-Mor-Han Trucking Co., 166 NLRB 700,

702 (1967). See also Arlington Masonry Supply, Inc., 339 NLRB 817 (2003); Martin Enterprises, 

325 NLRB 714 (1998); W. C. Hargis & Sons, Inc., 164 NLRB 1042 (1967); Continental 

Cablevision of St. Louis, supra; Landing Construction Co., 273 NLRB 1288 (1984); U.S. 

Pollution Control, 278 NLRB 274 (1986). In Pacific Lincoln-Mercury, 312 NLRB 901 fn. 4 

(1993), the Board noted that 5 to 10 percent of an employee’s time doing unit work was 

insufficient to include him in the unit under the Berea standard. Compare Medlar Electric, supra 

(25 to 30 percent of time sufficient for dual-function status). 

The inclusion of a dual-function employee within a particular unit does not require a showing

of community of interest factors in addition to the regular performance of a substantial amount of 

unit work. Fleming Industries, 282 NLRB 1030 fn. 1 (1987). 

Historical note: The Berea decision overruled Denver-Colorado Spring-Pueblo Motor Way, 

129 NLRB 1184 (1961), which required that an employee spend over 50 percent of his time in

unit work to be included in the unit, and restored the “sufficient interest” test and the equation of

dual-function and part-time employees initially used in Ocala Star Banner, 97 NLRB 384 (1951).
244 EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE

While Grocers Supply Co., 160 NLRB 485 fn. 2 (1966), cited the Denver case, the result reached 

was consistent with the Berea rule. 

The dual-function issue is also presented in situations where the employees have out-of-unit 

supervisory responsibilities. In Adelphi University, 195 NLRB 639 (1972), the Board included an

individual in a unit of faculty members even though he had supervisory authority over his 

secretary. See also New York University, 221 NLRB 1148, 1156 (1975). 

Later in Detroit College of Business, 296 NLRB 318 (1989), the Board rejected what had

become the 50-percent rule—“any individual who supervises nonunit employees less than 50 

percent of his time is not a supervisor.” Instead, the Board stated that determinations of 

supervisory status would be made on the basis of a “complete examination of all the factors 

present to determine the nature of the individual’s alliance with management.” See also Rite Aid

Corp., 325 NLRB 717 (1998), and Legal Aid Society of Alameda County, 324 NLRB 796 (1997). 

Note—Contract bar—In Otasco, Inc., 278 NLRB 376 (1986), the Board held that contract 

bar principles preclude the inclusion of dual-function employees in a petitioned-for unit where 

they are already included in a unit covered by the contract. Similarly, the Berea principle cannot

work to result in two units where otherwise there would be one. Sunray Ltd., 258 NLRB 517

(1981). 

In Meadow Valley Contractors, 314 NLRB 217 (1994), the Board rejected a dual-function

analysis where the employee had ceased performing nonunit work by the election eligibility date. 

20-600 Probationary Employees, Trainees, and Clients (Rehabilitation) 

20-610 Probationary Employees 

460-5067-2100 

“Probationary employees . . . receive and hold their employment with a contemplation of 

permanent tenure, subject only to the satisfactory completion of an initial trial period.” National 

Torch Tip Co., 107 NLRB 1271, 1273 (1954); Vogue Art Ware & China Co., 129 NLRB 1253

(1961); and Johnson Auto Spring Service, 221 NLRB 809 (1975). Where their general conditions

of work and their employment interests are like those of the regular employees (Rust Engineering 

Co., 195 NLRB 815 (1972)) and they have a reasonable expectation of continued employment

(Afro Jobbing & Mfg. Corp., 186 NLRB 19 (1970)), probationary employees are included in the 

unit. The requirement of the completion of a probationary period does not militate against a 

finding that the employees are permanent. Pacific Tile & Porcelain Co., 137 NLRB 1358 (1962);

Sheffield Corp., 123 NLRB 1454 (1959). 

20-620 Trainees 

460-5067-1400 

Trainees may or may not be included in the bargaining unit, depending on an evaluation of 

the interests of such employees compared to those of the regular employees. Present duties and

interests are determinative, not future assignments. Heckett Engineering Co., 117 NLRB 1395 

(1957). Thus, an employee who was engaged in a training program which might lead to a 

supervisory position at some indefinite time in the future was included in the bargaining unit. 

Cumberland Shoe Corp., 144 NLRB 1268 (1963). See also Big “N,” Department Store No. 307, 

200 NLRB 935 (1972); Johnson Auto Spring Service, 221 NLRB 809 (1975), and discussion of 

“management trainees” in chapter on Statutory Exclusions (supervisors), section 17-506. 

Beginners with a reasonable expectancy of permanent employment, having a community of

interest with other employees, are likewise eligible. Gulf States Telephone Co., 118 NLRB 1039

(1957); see also Data Technology Corp., 281 NLRB 1005, 1006 fn. 3 (1986). However, where 

trainees have different backgrounds from the employee in the unit and have a good probability of

achieving supervisory status, their interests are different from production and maintenance 
EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE 245

employees and they are excluded from such a unit. Cherokee Textile Mills, 117 NLRB 350

(1957); WTOP, Inc., 115 NLRB 758 (1956). See also M. O’Neil Co., 175 NLRB 514, 517 (1969). 

Even where the Board would exclude a group of trainees from the unit if it were making the 

unit determination, the parties may agree to their inclusion. Montgomery Ward & Co., 123 NLRB 

135 (1959). 

Where “sales trainees” were paid 12 percent more than the beginning rate for warehouse 

employees, received bonuses for which the latter were not eligible, did not punch the clock, if 

successful as “sales trainees” were to become inside salesmen, and, if unsuccessful, terminated,

but under no circumstances were they to become permanent warehouse employees, they were 

excluded from the unit. Garrett Supply Co., 165 NLRB 561, 562 (1967). 

Similarly, where a former shop employee had become a sales trainee and his current duties 

and conditions of employment indicated that his community of interest lay with the sales 

engineers rather than with the rank-and-file employees in the bargaining unit, he was excluded 

from the unit. East Dayton Tool Co., 194 NLRB 266 (1972). 

But where the purpose of a training program was to train employees to become capable of

performing a variety of functions throughout the plant and many of them, although not all, are 

assigned to production classifications on completion of the program, they were included in the 

unit. UTD Corp., 165 NLRB 346 (1967). See also General Electric Co., 131 NLRB 100, 104–

105 (1961). 

See section 20-200 in this chapter concerning employees working under Comprehensive 

Employment and Training Act (CETA) programs. 

20-630 Clients (Rehabilitation) 

177-2478 

460-5067-9500 

Handicapped individuals who perform services for a social service organization as part of a 

rehabilitation program are not statutory employees. See Goodwill Industries of Tidewater, 304

NLRB 767 (1991), and cases cited therein. As the Board indicated in Goodwill, the touchstone for 

this determination is the nature of the relationship between the employer and the individual. If it 

is a typical industrial relationship, Section 2(3) employee status is found. Alternatively, a 

rehabilitative relationship with working conditions that are not typical of the private sector will

not result in a finding of employee status. 

Where the Board has found that client/trainees and client/employees are not statutory

employees and therefore excluded from the unit, it has held that the remaining nonhandicapped

individuals, employed under conditions typical of the private sector, are employees and directed 

an election limited to these employees. Goodwill Industries of Denver, 304 NLRB 764 (1991). 

In Brevard Achievement Center, 342 NLRB No. 101 (2004), the Board (3 to 2) reaffirmed

“the primarily rehabilitative standard” applied in Goodwill Industries of Denver and Goodwill

Industries of Tidewater. 

In Davis Memorial Goodwill Industries, 318 NLRB 1044 (1995), the Board found that a 

group of handicapped workers are employees as their relationship with the employer “is 

characterized by business considerations more typical of service employment in the private 

sectors.” Accord: Huckleberry Youth Programs, 326 NLRB 1272 (1998). 

For a discussion of jurisdiction over these facilities generally, see 1-319.