Lion Country Safari

LION COUNTRY SAFARI 969 Lion Country Safari and Hospital and Service Em- ployees Union, Local 399, SEIU, AFL-CIO, Peti- tioner. Case 21-RC-14576 August 18, 1976 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Roberto G. Chavarry.' Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Pro- cedure, Series 8, as amended, by direction of the Re- gional Director for Region 21, this case was transfer- red to the National Labor Relations Board for decision. The Employer and the Petitioner have filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case the Board finds: 1. The Employer is a California corporation en- gaged in the operation of an African wildlife preserve and amusement park in Irvine, California. During the 12-month period ending March 31, 1976, the Em- ployer derived gross revenues in excess of $500,000. During the same period, the Employer purchased goods valued in excess of $50,000 directly from sources located outside the State of California. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Petitioner and the Intervenor are labor or- ganizations within the meaning of the Act. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. Petitioner seeks to represent a unit of the i Orange County District Council of Carpenters and its affiliated Local 2665, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, the Intervenor herein, was permitted to intervene at the outset of the hearing because of collective-bargaining agreements covering other employ- ees of the Employer It did not, however, participate further in the hearing Employer's operations department employees. The operations department, which seasonally varies in size from 40 to 62 employees, includes ticket sellers, ticket takers (also referred to as front and back gate- men), tower observers, groundskeepers, and ride op- erators. The Employer contends, inter alia, that the gatemen and tower observers are guards within the meaning of the Act. We find no merit in the Employer's contention. The Employer operates an African wildlife pre- serve and amusement park. The preserve consists of 200 acres, divided into four sections. One section houses ostriches and grazing animals, a second lions, a third cheetahs and elephants, and a fourth tigers. The animals roam freely within their particular sec- tion of the preserve, confined only by the fences se- parating one section from another. There is no factual dispute about the duties and responsibilities of the gatemen and the tower observ- ers at the wildlife preserve. The front gateman takes customers' tickets and gives them cassette tape play- ers. He also advises customers about the Employer's safety rules and checks their automobiles for condi- tions that could be dangerous to customers or the animals. If an unsafe condition exists, he refers the customer to the Employer's automobile maintenance or rental facility. The back gateman collects the cas- sette tape players, rewinds them, and directs the cus- tomers back to the entertainment area. During the time that the customers are inside the wildlife preserve, the tower observers, who are sta- tioned in five elevated towers located throughout the preserve, watch to make sure the customers observe the Employer's rules and that the animals remain in their designated sections of the preserve. If a custom- er disobeys a rule (e.g., opens a car door or window), the tower observer relays a message by two-way ra- dio to a ranger stationed inside the preserve. The ranger then drives to the customer and enforces the rule. If an animal strays from its designated section, the tower observer closes the gate separating the sec- tions and uses the two-way radio to call a ranger to herd the animal back into the central portion of the section. We find that neither the gatemen nor the tower observers perform duties that are guard duties within the meaning of the Act.' These employees merely ob- serve and report violations of rules designed to pro- tect park patrons and the animals in the wildlife pre- serve during the normal operation of the Employer's business. They do not enforce rules against employ- ees. They have only limited contact with customers 2 Sec 9(b)(3) of the Act defines guards as individuals who "enforce against employees and other persons rules to protect property of the em- ployer or to protect the safety of persons on the employer's premises " 225 NLRB No. 136 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insofar as enforcement of the Employer's rules are concerned and they do not interchange with the rangers who actually enforce the Employer's rules in the preserve area. They wear the same uniform as other employees in the preserve and park. They are neither deputized nor armed and no operations de- partment employee patrols the preserve. By contrast, the Employer has a contract with a private security agency to provide security during the hours the park is closed. Such private security guards wear special uniforms, are armed with mace, and patrol the prem- ises. Moreover, we do not believe that Congress intend- ed that duties such as those performed by gatemen and tower observers here should be treated as guard duties under the Act. It is apparent from the legisla- tive history that the separation of guards and other employees for the purpose of union representation was intended to avoid conflicting loyalties, and to insure an employer that he would have a core of plant protection employees, during a period of indus- trial unrest and strikes.' Here, the duties of the gate- men and tower observers are directed toward preser- vation of safety during the normal operation of the Employer's wildlife preserve. These are not the cir- cumstances in which Congress felt conflicting loyal- ties might exist. In sum, we find that the gatemen and tower observers are not guards within the meaning of the Act.4 J See McDonnell Aircraft Corporation, 109 NLRB 967, 969 (1954) In view of this finding, we find no merit in the Employer's contention (I) that other operations department employees are guards within the meaning Finally, the Employer contends that its operational manager, Michael Levy, and its assistant operations manager, Michael Hartley, are supervisors within the meaning of the Act. In its posthearing brief, Peti- tioner concedes that Levy is a supervisor but takes no position on Hartley. The record reveals that Hartley has authority to hire and has exercised authority to fire employees, that he is substantially higher paid and salaried as compared to other hourly paid unit employees, that he does not perform unit work, and that he is in charge of the operations department 2 days a week when Levy is not present. On the basis of these facts and the entire record, we find that Har- ley, like Levy, is a supervisor within the meaning of the Act. We find the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All ticket sellers, ticket takers, tower observers, groundskeepers, and ride operators of the Em- ployer at its facility located at 8800 Moulton Parkway, Irvine, California; excluding guards and supervisors, as defined in the Act, as amended, and other employees covered by col- lective-bargaining agreement with other labor organizations. [Direction of Election and Excelsior footnote omit- ted from publication.] of the Act because of their high degree of interchange with gatemen and tower observers, and (2) that the Board is precluded from certifying the Petitioner as the collective-bargaining representative of the petitioned-for unit because Petitioner admits nonguards to membership