Teamsters Local 386 (Yosemite Concession Services)

National Labor Relations Board - Board Decisions

May 29, 1998

325 N.L.R.B. 843 (N.L.R.B. 1998)

843
325 NLRB No. 157
TEAMSTERS LOCAL 386 (YOSEMITE CONCESSION SERVICES)
General Teamsters Local Union No. 386, IBT,
AFL–CIO and Yosemite Concession Services
Corporation, a subsidiary of Delaware North
Park Services, Inc. and Service Employees
International Union, Local 752, AFL–CIO.
Case 32–CD–153
May 29, 1998
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
The charge in this Section 10(k) proceeding was
filed on January 12, 1998, by Yosemite Concessions
Services Corporation (Yosemite or the Employer), al-
leging that the Respondent, General Teamsters Local
Union No. 386, IBT, AFL–CIO (Teamsters Local
386), violated Section 8(b)(4)(D) of the National Labor
Relations Act by engaging in proscribed activity with
an object of forcing Yosemite to assign certain work
to employees it represents rather than to employees
represented by Service Employees International Union,
Local 752, AFL–CIO (SEIU Local 752). The hearing
was held on February 11, 1998, before Hearing Officer
Irma Valencia.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Yosemite Concession Services Corporation is a sub-
sidiary of Delaware North Park Services, Inc., which
is an operating company of Delaware North Compa-
nies, a Delaware corporation with its principal place of
business in Buffalo, New York. Yosemite is a contrac-
tor engaged in the business of providing recreation and
guest services for the National Park Service. During
the 12 months preceding the hearing, Yosemite pro-
vided services valued in excess of $50,000.00 to Yo-
semite National Park. The parties stipulate, and we
find, that Yosemite is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Teamsters Local 386 and SEIU Local 752 are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
II. THE DISPUTE
A. Background and Facts of Dispute
On approximately October 1, 1993, the National
Park Service awarded a contract to the Employer’s par-
ent corporation, Delaware North Companies, to operate
the concessions at Yosemite National Park. Upon the
award of the contract, Yosemite hired its predecessor’s
employees and adopted the extant collective bargaining
agreements. Among the Unions representing employee
groups at the park were Teamsters Local 386, whose
contract covered the Park’s transportation systems,
maintenance duties, and service station duties, and
SEIU Local 752, whose contract covered the service
workers at the hotels, restaurants, and grocery stores in
the Park.
Among the concessions Yosemite assumed at the
Park was the operation of the Park’s four service sta-
tions. At issue in this dispute is the service station op-
erated at Crane Flat. Prior to September 1997, the
Crane Flat station contained both a grocery store com-
ponent, with retail goods, such as snacks, groceries,
and souvenirs, available for sale to park visitors, and
a service station component, which offered visitors
self-service gasoline pumps and routine automotive
maintenance, such as oil and tire checks, windshield
cleanings, and replacement of hoses, belts, filters, and
fluids. Prior to September 1997, Crane Flat was only
open during the Park’s ‘‘high season,’’ and closed dur-
ing the winter months. During the high season, the re-
tail side of the operation was staffed by approximately
two clerk/cashiers and one manager, all represented by
SEIU Local 752, who performed traditional retail work
such as ordering goods, stocking shelves, assisting cus-
tomers with their purchases, and transacting sales at
the cash register. The automotive side of the operation
was staffed by some configuration of two to three em-
ployees—a manager, an assistant manager, and service
station attendants, all represented by Teamsters Local
386. The service station maintained a small retail oper-
ation, which sold automotive supplies, such as motor
oil, wiper fluid, fan belts, and the like, to customers.
In the Fall of 1997, the Crane Flat station was
closed for a week and renovated so that it could be op-
erated more as a ‘‘mini-mart’’ convenience store.
When the station reopened, its automotive function
was greatly reduced. The station no longer offered the
customer any automotive assistance beyond either as-
sisting a disabled customer with the pumps or calling
a tow truck to take a disabled car to the nearest full-
service garage in the Park. In addition, new ‘‘fast-pay’’
pumps were installed, which were self-serve pumps
that permitted the customer to pay for the gasoline at
the pump using a credit card. Only customers paying
for gas with cash needed to go inside to see the cash-
ier. The new pumps are reset inside the store by a
clerk, thus eliminating the need for a service station
worker to reset the pumps manually outside after each
sale.
As a result of the reconfiguration at Crane Flat, the
Employer eliminated the positions of the employees
represented by Teamsters Local 386, and now operates
the store entirely with employees represented by SEIU
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844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local 752. The store is now open on a year-round
basis, and has thus far been staffed by one assistant
manager and two cashiers, who perform the same retail
work that they performed prior to the reconfiguration
as well as the residual gas station functions. There are
presently no attendants at the self-serve pumps. By let-
ter to Yosemite dated October 15, 1997, Teamsters
Local 386 Secretary-Treasurer John P. Souza protested
the elimination of the work performed by the Team-
sters-represented employees at Crane Flat, and threat-
ened ‘‘to take economic action unless the residual
manager and attendant work at the station is restored
to Teamster employees.’’
B. The Work in Dispute
The dispute concerns work formerly performed at
the Crane Flat Station by the service station manager,
assistant manager, and service station attendants rep-
resented by Teamsters Local 386.
C. Contentions of the Parties
Yosemite and SEIU Local 752 contend that after the
reconfiguration at Crane Flat, the work in dispute of
assisting customers with automotive services has be-
come so minimal that it is economically necessary to
combine it with the retail sales duties of the SEIU-rep-
resented employees and to assign that work to the
SEIU-represented employees because it is predomi-
nantly retail work.
Teamsters Local 386 contends that the work should
be awarded to employees it represents because a por-
tion of the work remains automotive related, and be-
cause the employees it represents are trained and able
to perform the nonautomotive retail sales work.
D. Applicability of the Statute
Before the Board may proceed with determining a
dispute pursuant to Section 10(k) of the Act, two juris-
dictional prerequisites must be met. First, the Board
must find reasonable cause to believe that Section
8(b)(4)(D) of the Act has been violated. Second, the
Board must find that the parties have no agreed on
method for the voluntary adjustment of the dispute.
Both jurisdictional prerequisites have been met.
First, as noted above, Teamsters Local 386 informed
Yosemite that it would take ‘‘economic action’’ unless
the disputed work was assigned to the Teamsters-rep-
resented employees. Given virtually identical language,
the Board has found reasonable cause to believe that
Section 8(b)(4)(D) was violated. Sea-Land Service,
Inc., 322 NLRB 830, 832 (1997). Thus, we find rea-
sonable cause to believe that Section 8(b)(4)(D) of the
Act has been violated. Second, the parties stipulated
that they have not agreed on a method to adjust this
dispute voluntarily. Accordingly, we find that the
Board has jurisdiction to resolve this dispute.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board’s determination in a jurisdictional dispute is an
act of judgment based on common sense and experi-
ence, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402, 1410–1411 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining
agreements
Both Unions represented that the Board has certified
them as representative of the respective employee
groups involved in this case.
While both employee groups have extant collective
bargaining agreements with Yosemite—the Teamsters
Local 386 contract covers the service station work at
Crane Flat and the SEIU Local 752 contract covers the
grocery store work at Crane Flat—the parties have
stipulated that ‘‘there is no agreement in effect be-
tween the employer and [either] union allocating the
work in dispute.’’
We find that these factors do not favor an award of
the disputed work to employees represented by either
labor organization.
2. Employer preference
John Huey, Yosemite’s director of human resources,
testified that the Employer has no preference regarding
which employee group performs the work in dispute.
We find that this factor does not favor an award of the
work in dispute to either employee group.
3. Employer past practice and current assignment
The Employer’s past practice has been to assign re-
tail sales work to employees represented by SEIU
Local 752. Since the reconfiguration at Crane Flat and
the virtual elimination of the automotive services per-
formed there, the remaining work at Crane Flat pre-
dominantly involves retail sales. As a result, the Em-
ployer has currently assigned the reconfigured Crane
Flat work to employees represented by SEIU Local
752. Because the Employer’s past practice has been to
assign retail sales work to employees represented by
SEIU Local 752, and the work is now predominantly
retail sales, we find that past practice and current as-
signment favor an award of the disputed work to em-
ployees represented by SEIU Local 752.
4. Area and industry practice
The record contains no evidence on the subject of
area and industry practice. This factor does not favor
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845TEAMSTERS LOCAL 386 (YOSEMITE CONCESSION SERVICES)
an award of the work in dispute to either employee
group.
5. Economy and efficiency of operations
Prior to September 1997, a total of four to six em-
ployees was required to operate the Crane Flat sta-
tion—two to three employees represented by SEIU
Local 752 and two to three employees represented by
Teamsters Local 386. After the reconfiguration and the
elimination of most of the automotive services, the
Crane Flat station now requires only two to three em-
ployees to operate—one assistant manager and two
clerk/cashiers—and that work predominantly involves
retail sales and only a very small portion of residual
service station work. We conclude that it is more eco-
nomical and efficient for the Employer to combine the
residual gas station work with the predominant retail
sales work, and assign that work to the employees rep-
resented by SEIU Local 752. Therefore, this factor fa-
vors an award of the work to employees represented
by SEIU Local 752.
6. Relative skills and training
The record indicates that both employee groups are
trained and able to perform the work in dispute. There-
fore, we find that this factor does not favor an award
to employees represented by either union.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by SEIU Local 752
are entitled to perform the work in dispute. We reach
this conclusion relying on the Employer’s past practice
and current assignment, and the economy and effi-
ciency of operations. In making this determination, we
are awarding the disputed work to employees rep-
resented by SEIU Local 752, not to that Union or to
its members. This determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Yosemite Concession Services Cor-
poration, represented by Service Employees Inter-
national Union, Local 752, AFL–CIO, are entitled to
perform the work formerly performed at the Crane Flat
Station by the service station manager, assistant man-
ager, and service station attendants.
2. General Teamsters Local Union No. 386, IBT,
AFL–CIO is not entitled by means proscribed by Sec-
tion 8(b)(4)(D) of the Act to force Yosemite Conces-
sion Services Corporation to assign the disputed work
to employees represented by it.
3. Within 10 days from this date, General Teamsters
Local Union No. 386, IBT, AFL–CIO shall notify the
Regional Director for Region 32 in writing whether it
will refrain from forcing the Employer, by means pro-
scribed by Section 8(b)(4)(D), to assign the disputed
work in a manner inconsistent with this determination.
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