Lion Country Safari

National Labor Relations Board - Board Decisions

Aug 18, 1976

225 N.L.R.B. 969 (N.L.R.B. 1976)

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 J ENKINS
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