Yosemite Park and Curry Co.

National Labor Relations Board - Board Decisions

Aug 27, 1968

172 N.L.R.B. 1740 (N.L.R.B. 1968)

1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yosemite Park and Curry Co. and Charles E.
Parker , Petitioner. Case 20-RD-523
August 27, 1968
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
Upon a petition duly filed on January 22, 1968,
under Section 9(c) of the National Labor Relations
Act, as amended , a hearing in this case was held on
February 15, 1968, before Albert Schneider, Hear-
ing Officer . Pursuant to Section 102.67 of National
Labor Relations Board Rules and Regulations, the
above -entitled matter was duly transferred by the
Regional Director for Region 20 to the Board for
consideration . The Petitioner and Employer filed
briefs.'
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion with this case to a three -member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case , the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.'
2. The Brotherhood of Railroad Trainmen,
Lodge 472, Intervenor herein , claims to represent
certain employees of the Employer . Petitioner, an
employee of the Employer in the unit involved
herein , asserts that the Union no longer is the bar-
gaining representative , as defined in Section 9(a) of
the Act , of the employees petitioned for.
3. The Employer and the Intervenor entered into
a collective -bargaining agreement on April 1,
1967.3 None of the parties herein asserts that the
contract is a bar to this petition.
The Employer asserts that the terms of its con-
i The Employer has requested oral argument This request is hereby de-
nied because the record and the briefs adequately present the issues and
positions of the parties
' During the recent calendar year the Employer 's revenues were in ex-
cess of $500,000 For the same period, the Employer's purchases exceeded
$50,000 from sources outside the State of California The Employer's
operations being essentially retail in character , the Board 's jurisdictional
standards have been satisfied herein Carolina Supplies and Cement Co , 122
NLRB 88, Floridan Hotel ofTampa, Inc, 124 NLRB 261
' The unit as covered by the collective-bargaining agreement and agreed
to by the Employer and Intervenor as an appropriate unit would include
"all bus , truck , and shuttle drivers , excluding supervisors , as defined in the
Act and all other employees of the Employer "
' The Company, as concessioner, is engaged almost exclusively in the
operation of accomodations , facilities , and services to the general public in
Yosemite National Park . California The park is under exclusive jurisdic-
tion of the United States Government The Company operates its conces-
tract with the National Park Service ( U.S. Depart-
ment of Interior ) so rigidly regulate the Employer
as a concessioner that collective bargaining as en-
compassed by the Act would be impossible between
it and its employees .' Further , the Employer con-
tends that it is only a nominal employer and that
the Federal Government through its control of the
Yosemite National Park is the real employer. We
find these contentions to be without merit.
The Employer , although having entered in to a
collective -bargaining agreement with the Brother-
hood of Railroad Trainmen , refuses to concede that
the employees included in such agreement are its
employees but insists they are employees of the
Government . The record shows that these em-
ployees are not hired by the Park Service but are
hired directly by the Employer, that the Employer
is responsible for the direction of their work, and
that the Employer , among other things , determines
their rates of pay and working conditions , controls
their tenure of employment , and pays them from its
own funds . In addition , the Employer pays for
workmen 's compensation and unemployment in-
surance premiums.
It is true that the evidence indicates that the
Government exercises some regulatory control over
the operations of the concessioner.s For example,
under its contract with the concessioner, the
Government requires uniforms and badges for some
of the concessioner 's employees , reserves the right
to prohibit the concessioner from retaining or em-
ploying any person declared by the Secretary of the
Interior to be unfit for employment or otherwise
objectionable , requires the filing of collective-bar-
gaining agreements between the concessioner and
its employees on July 1 of each year," and retains
the right to review all of the Employer's charges.
Nevertheless , there clearly remains with the Em-
ployer an extensive area of effective control over
the labor policies affecting its employees and over
the basic subjects of collective bargaining with
these employees.
sions under a concessioner 's contract dated May 9, 1963, covering the
period of October 1963 through September 30, 1993 , with the National
Park Service of the U S Department of Interior These concessions include
the operations of a general store, hotels , restaurants, cabins , camps, a
transportation company , and stables, all located within the 1,189 square
miles of Yosemite National Park. All of the expenses of operations are
borne by the concessioner As consideration for the concessions , the Em-
ployer pays the Government a yearly franchise fee of $5,000 plus the addi-
tional sum of three -fourths of I percent of the Employer 's adjusted gross
receipts
s See 36 CFR Ch 1, Pt 8. Regulations of National Park Service , provid-
ing for the observance of fair labor standards by concessioners in National
Parks towards their employees
• The required filing and review of the concessioner 's labor agreements
may be attributed to the Park Service interest in ascertaining that the fair
labor standards requirements reqired to be observed by concessioners are
being met
172 NLRB No. 199
YOSEMITE PARK AND CURRY CO. 1741
We find nothing in the concessioner 's contract
and the National Park Service Regulations per-
tinent thereto that would support the Employer's
contention that the Federal Government is in fact
the employer of the employees of the concessioner.
The Employer's status here is that of a Government
contractor and not that of an agent of the Govern-
ment so as to entitle it to the immunity of the
Government under the Act.7
We are satisfied that, whatever its powers, the
National Park Service of the U.S. Department of
Interior has elected to exercise only nominal con-
trol over the employees of the concessioner, as
evidenced by the Service's regulations and the con-
tract provisions , without limiting the rights of the
employees as guaranteed by the Act, and that the
real control over wages, terms, and conditions of
employment, and the activities of its employees
have remained with the Employer-Concessioner.8
Consequently, we are of the opinion that there is
sufficient evidence of the existence of an employer-
employee relationship within the meaning of the
Act.9
We find that a question affecting commerce ex-
ists concerning the representation of the employees
of the Employer, within the meaning of Sections
9(c)(1) and 2(6) and (7) of the Act. Further, we
find that the Employer's operations have a close,
intimate , and substantial relation to trade, traffic,
and commerce among the States and that the Em-
ployer is engaged in commerce within the meaning
of the Act. As the Employer's operations satisfy the
Board's jurisdictional standards for retail industries,
we further find that it will effectuate the policies of
the Act to assert jurisdiction herein.
For the purposes of this election we find that the
unit sought herein is an appropriate unit. It is the
unit recognized by the Employer and the Union in
their contract of April 1, 1967.'0
In accordance with the collective-bargaining
agreement between the parties, we find that the fol-
lowing employees of the Employer constitute a unit
appropriate for collective bargaining within the
meaning of the Act: All bus, truck, and shuttle
drivers, employed by the Yosemite Transportation
System of the Yosemite Park and Curry Company,
in Yosemite National Park, California, excluding
supervisors as defined in the Act, and all other em-
ployees of the Employer in Yosemite National
Park, California.
[Direction of Election" 12 omitted from publica-
tion. ]
r National Food Corp., 88 NLRB 1500, Carbide and Carbon Chemicals
Corp, 73 NLRB 134, Roane-Anderson , 71 NLRB 266, Reynolds Corp, 61
NLRB 1446, Air Terminal Services, Inc , 67 NLRB 702
" The aforementioned collective -bargaining agreement between the Em-
ployer and the Brotherhood of Trainmen contains, inter aha, provisions for
wage rates , seniority, maintenance of membership, medical examinations,
leaves of absence , pensions , sick leave, layoffs, vacations, hours of work,
discharge , discipline , grievances , and hearings before employer-union
committees The agreement is subject to the regulations of the National
Park Service insofar as they be applicable thereto
s N L RB v Hearst Publications , Inc, 322 U S 1 1 1, N L R B v Atlini
and Co, 331 U S 398
IS An appropriate unit in a decertification petition must conform to
either the recognized unit or a certified unit As the recognized union
herein represents a contract unit which does not include dispatchers
therein we shall not include them , and we direct an election in the recog-
nized unit , which conforms to the contract unit with the exception of the
deletion of taxi drivers , substituting therefor shuttle drivers due to the Em-
ployer's change of operations , the latter substitution having previously
been agreed to by the Employer and the Union
" The Employer employs in the recognized unit approximately 12 em-
ployees on a year-round basis and approximately an additional 33 em-
ployees during the peak summer season ( April through October), the peak
of employment being reached about June 15 Accordingly, we shall direct
the Regional Director to hold the election at such time as he, in his discre-
tion , deems appropriate
i' An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 20 within 7 days after the date of this Decision and
Direction of Election The Regional Director shall make the list available
to all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Excelsior Underssear
Inc, 156 NLRB 1236