American Toalisator Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Totalisator Company, Inc. and The New York Racing Association Inc. and Service Employ- ees International Union (SEIU) July 3, 1979 ORDER DENYING PETITIONS Pursuant to Section 102.124 of the Board's Rules and Regulations, Series 8, as amended, petitions herein were filed by American Totalisator Company, Inc. (hereinafter called ATC) on February 9, 1979, and by The New York State Racing Association Inc. (hereinafter called NYRA) on March 26, 1979, seek- ing to repeal or, in the alternative, to amend Section 103.3 of the Board's Rules and Regulations and to assert jurisdiction over the horseracing and dogracing industries. On May 11, 1979, the Service Employees International Union (hereinafter called SEIU) re- quested permission to intervene and file its own peti- tion. On May 22, 1979, the Board granted SEIU's request. On June 14, 1979, SEIU filed a statement of position in support of its petition urging the Board to amend Section 103.3 and assert jurisdiction. In pertinent part, the petitions allege that: ATC is engaged in supplying parimutuel betting equipment and services to racetracks throughout the United States and Canada. ATC regularly employs several hundred persons at such tracks and is a party to a nationwide collective-bargaining agreement covering such employees. NYRA is a New York corporation whose principal business is the conduct of thoroughbred horseracing and parimutuel wagering at three facilities-Aque- duct Race Track, Belmont Park Race Track, and Saratoga Race Course. Alternating between these three facilities, NYRA conducts such services 52 weeks each year. NYRA employs approximately 1,500 employees. During 1978, NYRA's racing and parimutuel wagering activities generated gross rev- enues in excess of $189 million (including television revenues from nationwide and international broad- casts). The Board, pursuant to Section 102.135 of the Board's Rules and Regulations, has considered the petitions. Although the operations of the Petitioners herein as a part of the horseracing industry are re- lated to interstate commerce, the Board has consis- tently declined to assert jurisdiction over labor dis- putes in the horseracing and dogracing industries, as well as over labor disputes involving employers whose operations are an integral part of' these racing indus- tries. See Los Angeles Turf Club, Inc., 90 NLRB 20 (1950) (horseracing track): Jefferson Downs, Inc., 125 NLRB 386 (1959) (horseracing track); Meadow Stud, Inc., 130 NLRB 1202 (1961) (horse owner/breeder); Hialeah Race Course, Inc., 125 NLRB 388 (1959) (horseracing track); Walter A. Kelley, 139 NLRB 744 (1962) (horse owners/breeders); Centennial Turf Club, Inc., 192 NLRB 698 (1971) (horseracing track); Yon- kers Raceway, Inc.. 196 NLRB 373 (1972) (horserac- ing track): Jacksonville Kennel Club, Case 12 RC- 3815, May 5, 1971 (dogracing track) (not reported in NLRB volumes). See also Section 103.3 of the Board's Rules and Regulations. Our dissenting colleagues point to the congres- sional action regulating interstate commerce with re- spect to wagering on horseracing, in order to further the horseracing and legal off-track betting industries in the United States, selecting from the legislative his- tory those statements they deem to support their view. However, they quote those portions out of con- text of the congressional findings that:' ( I ) the States should have the primary respon- sibility for determining what forms of gambling may legally take place within their borders; (2) the Federal Government should prevent interference by one State with the gambling poli- cies of another, and should act to protect identi- fiable national interests; and (3) in the limited area of interstate off-track wagering on horseraces, there is a need for Fed- eral action to ensure States will continue to coop- erate with one another in the acceptance of legal interstate wagers. Obviously, Congress was concerned only with off- track wagering and with the protection of the rela- tions between the States themselves; it was not con- cerned with the other aspects of racing to which our colleagues allude. Congress is well aware of the Board's historic stance of declining to assert jurisdic- tion over horseracing and dogracing, and if Congress had wished to modify this it could easily have done so by using less restrictive language in enacting the "In- terstate Horseracing Act of 1978," as it did in modify- ing the Act to extend jurisdiction over health care facilities.2 Consequently, while the selected com- ments, taken out of context, may appear to support the dissenters' position, an examination of the entire quote shows they are in error. There is absolutely no valid basis for their conclusion. Absent an indication from Congress that the Board's refusal to assert jurisdiction is contrary to congressional mandate, we are not persuaded that we should exercise our discretion to reverse our prior holdings on this issue. The fact that two members of the Board would exercise their discretion differently and assert jurisdiction is of no significance. 'Interstate Horseracing Act of 1978. Public aw 95 515. 95th Congress. Stat. 1811. 2 Public L.aw 93 360. 93d Cong.. S3203, 88 Stat. 395. 243 NLRB No. 46 314 AMERICAN TOTALISATOR COMPANY, INC. Furthermore, in the context of the Board's current backlog of work and inability to resolve issues promptly, an extension of our jurisdiction at this time to increase the number of proceedings coming before us would be wholly unwise. Hearings before adminis- trative law judges are scheduled 4 to 6 months after the issuance of complaints instead of the preferred 4 to 6 weeks. Although the Board is now in a crisis situation in this respect, our dissenting colleagues would only multiply the problem by asserting juris- diction over a whole new industry. After carefully considering the statements of posi- tion submitted by the Petitioners in support of their petitions, the Board has decided not to alter its policy with respect to the horseracing and dogracing indus- tries and has concluded that it will continue to decline to assert jursidiction over labor disputes in these in- dustries. Accordingly, It is hereby ordered that ATC's, NYRA's, and SEIU's petitions requesting the Board to repeal or amend Section 103.3 of the Board's Rules and Regu- lations to assert jurisdiction over the horseracing and dogracing industries be, and they hereby are, denied. MEMBER JENKINS, concurring: I would continue not to assert jurisdiction over the horseracing and dogracing industries for the reasons expressed in our prior decisions and in our Rules and Regulations, Section 103.3. Nothing has been ad- duced since then to warrant changing our views. The increase in our workload over the past several years, emphasized by Members Penello and Murphy as a reason for declining jurisdiction, is immaterial. The Board can and should continue to carry out the man- date of Congress and the statute even as more people seek its benefits, instead of excluding industries seri- atim in accordance with our personal notions of who is too unimportant to be allowed to invoke the Act. CHAIRMAN FANNING and MEMBER TRUESDALE, dis- senting: For the reasons stated in Chairman Fanning's dis- senting opinion in Centennial Turf Club, Inc., 192 NLRB 698, 699 (1971), and his concurring opinion in Elliott Burch, 230 NLRB 1161, 1162 (1977), we would process the instant petition. Three tracks in New York State alone require out- of-state goods and services reputedly worth more than $60 million a year. Even if the industry were to be found only in the State of New York, therefore, the viability of Section 103.3 of our Rules continues to be questionable. But the impact of this industry upon commerce between the States as a whole is far broadei than that. As noted by both the Senate Com- merce, Science, and Transportation Committee, and the Senate Judiciary Committee, in their reports on the recently enacted Interstate Horseracing Act:3 The horseracing industry in the United States is a significant industry which provides employ- ment opportunities for thousands of individuals . . . and contributes favorably to the United States balance of trade. ... The racing industry spends more than $7 billion for operating ex- penses and taxes.... Employment in the racing industry far exceeds the 175,000 people who are licensed by the National Association of State Racing Commissioner to make their living at the Nation's racetracks. That figure . . . does not in- clude many thousands of additional employees, such as grooms on the farms, carpenters, plumb- ers, electricians, van drivers, fence builders, sales company personnel, insurance people, veterinar- ians, harness makers, and assorted others who derive their living from the racing and breeding industries.4 Congress' latest recognition of the substantial im- pact on commerce exerted by the horseracing indus- try is further reason for this Board to at least recon- sider the rule. Current press reports also allude to the likelihood of considerable unrest in the industry as new parimutuel wagering equipment is introduced over the opposition of many employees in the indus- try. We should provide the structure for settling those labor disputes, as both labor and management in the industry request. Because the Board continues to fail to provide that structure, seemingly for the sole rea- son that it has always done so, we dissent. ' Public Law 95-515, 92 Stat. 1811, October 25, 1978. 'S. Rept. on SI 185 (Commerce, Science, and Transportation Committee) No. 95 554, October 27, 1977 at 3. Substantially identical language appears in the report on S1185 of the Senate Judiciary Committee, No. 95-1117, August 14, 1978 at 4-5. 315