Hialeah Race Course, Inc.

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hialeah Race Course, Inc.' and Carpenters' District Council of Miami, Florida and Vicinity,2 Petitioner. Case No. 12-RC-611. November 25, 1959 DECISION AND ORDER On May 20, 1959, the Petitioner duly filed a petition under Section 9(c) of the National Labor Relations Act. On May 25, 1959, the Regional Director dismissed this petition on the ground that it would not effectuate the purposes of the Act to assert jurisdiction herein. Thereafter, on July 7, 1959, the Board reinstated the petition and a hearing was held before Claude B. Calkin, hearing officer. The hear- ing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 3 The Employer operates a racetrack and public park in Hialeah, Florida. Its revenue is derived principally from the track's percentage of the parimutuel pools and catering concessionaire's receipts, sale of programs, and admission and parking lot fees. The Employer's expenses consist chiefly of the purses paid to owners of horses participating in the races conducted at the track, rental fees for parimutuel equipment, and incidental expenditures for track maintenance and local advertising. Hialeah is not connected with any other enterprise; it is not a subsidiary corporation of any other company; it does not own any real estate outside the State of Florida; it does not own any horses; it does not transport horses into or out of the State of Florida; it does not furnish feed, equipment, or personnel directly to horse owners; it does not operate any restaurants; it does not do any manufacturing; and it does not receive any income from radio and television although several of its races were broadcast and seven telecast during the 1959 season. However, the track admittedly derived a great deal of publicity from the telecasts. Claiming races, the main purpose of which is to assure that horses of similar quality race against each other, conducted at Hialeah during its last meet netted independent horsemen $1,166,000 from the sale of horses entered therein. Approx- imately 50 percent of the horses claimed were out-of-State horses which had been shipped into the State of Florida. Somewhere around 50 percent of the horses that run at Hialeah come from Florida farms. The remainder come principally from breeding cen- ters located in Kentucky, Maryland, Virginia, and California. Hialeah has a summertime sightseeing center with a gift shop and soda fountain which do the track's only retailing. From 5 to 10 per- ' Employer's name appears as amended at the hearing. a Petitioner's name appears as amended at the hearing. 8 The Employer's request for oral argument is denied as the record in this case and the briefs of the parties adequately present the issues for decision. 125 NLRB No. 57. HIALEAH RACE COURSE, INC. 389' cent of the souvenirs sold in the gift shop are Japanese imports. All of the track's employees, 85 percent of whom, by statute, must be resi- dents of Florida, are licensed by the State of Florida. Hialeah ship& two tram trains to Garden State Park each year for which it receives, a rental of $7,500. Some typewriters and adding machines are also shipped and, on one occasion, Hialeah's water truck was sent to, Garden State Park. For the year ending March 31, 1959, during which a total in excess of $66,000,000 4 was wagered, Hialeah Race Course, Inc., received the following income : Parimutuel commissions (track's share) ------------- $4,788,493.15, Admissions. (excluding taxes collected) ------------- 1, 024, 278. 53 Parking lot and valet service----------------------- 149, 966.001 Programs---------------------------------------- 149,581.92 Turf cards--------------------------------------- 11,879.96' Food and beverage concessions--------------------- 112, 469. 16 Other income------------------------------------- 40,355.11 Total income------------------------------- $6, 277, 023.83' During the course of the year the Employer paid in excess of $200,000 to the American Totalisator Company, a Maryland corpo- ration, for rental and operation of its tote board and totalizator ma- chines. The Employer's advertising expenses included expenses in an unspecified amount for occasional advertisements in the Morning- Telegraph, a racing publication widely distributed throughout the, East. This case and the Jefferson Downs case 5 present the Board with the opportunity to reconsider its long-standing policy of declining to assert jurisdiction over racetrack operations. That policy was first enunciated in Los Angeles Turf Club,' wherein the Board held that such operations, although not wholly unrelated to commerce, were essentially local in character, and that therefore, it would not effectu- ate the policies of the Act to assert jurisdiction as to them. This policy was later reaffirmed in the Pinkerton case.7 Subsequent to the issuance of that decision, the Supreme Court held, in an analogous. situation,' that the Board's declination of jurisdiction over hotel em- ployers solely on the ground of its "long-standing policy not to exer- cise jurisdiction over the hotel industry" was beyond the Board's power under the Labor Management Relations Act of 1947. As a Exact figure not shown. c Jefferson Downs, Inc., 125 NLRB 386. e Los Angeles Turf Club, Inc., 90 NLRB 20. See also Olympia Stadium Corporation,. 85 NLRB 389. 7 Pinkerton's National Detective Agency, Inc., 114 NLRB 1363. 8 Hotel Employees Local No . 255, et al. v. Boyd S. Leedom, at al., 358 U.S. 99. 535828-60-vol. 125=26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD direct result of that decision the Board reconsidered its jurisdictional policy as to hotels, and concluded that it did not have the power to decline to assert jurisdiction over all such employers as a class, and accordingly, it fashioned a jurisdictional standard to govern the exer- cise of jurisdiction in that field.' Since the Supreme Court's decision in Hotel Employees, Congress amended the Act 10 by providing in a new subsection 14(c) (1) that: The Board, in its discretion, may, by rule of decision . . . de- cline to assert jurisdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently sub- stantial to warrant the exercise of jurisdiction : Provided, that the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the stand- ards prevailing upon August 1, 1959. [Emphasis supplied.] It is thus clear that the Board now has the authority to adopt a policy of nonassertion of jurisdiction as to an entire class or category of employers subject, however, to the qualification that it may not decline to assert jurisdiction over labor disputes over which it would assert tinder its standards as they existed on August 1, 1959.11 Since, on August 1, 1959, the Board had no standard for racetrack operations, but was following a policy of nonassertion of jurisdiction as to them, the proviso does not limit the extent to which the Board may decline jurisdiction over racetrack operations. It may decline to assert juris- diction as to all such operations, as long as the effect on commerce of labor disputes in that industry is not so substantial as to warrant the Board's exercise of jurisdiction. As to that question, it is our opinion that the effect on commerce of such labor disputes is not sufficiently substantial to warrant the exercise of the Board's jurisdiction. In the first place, in Los Angeles 'Floridan Hotel of Tampa, Inc., 124 NLRB 261. (Member Jenkins concurring and dissenting in part). 1O Public Law 86-257, 86th Congress , cited as Labor-Management Reporting and Dis- closure Act of 1959. Section 701 ( a) of which amends the National Labor Relations Act by adding to Section 14 thereof , a new subsection ( c) (1) and (2). n Although Member Jenkins heretofore has strongly objected to the Board's utilization of arbitrary and mechanical monetary standards as the basis for determining jurisdic- tional questions ( see his separate opinions in Siemons Mailing Service, 122 NLRB 81, and Floridan Hotel of Tampa, Inc., supra ) he recognizes that, in amending the Act, Congress has ratified Board practices in this area. As Mr. Jenkins stated in an article in the Rocky Mountain Law Review (31 R.M.L.R. 315, at p. 340) : I. venture to suggest that the proper solution to the whole problem is Congressional action . If the courts are left to fashion a Federal Common Law of Labor Relations over the years, the "Judicial lag" between action and adjudication will inevitably cause disruption and friction . However, if Congress were to take the matter in hand and itself set forth the "Common Law" that the Supreme Court instructed the Federal District Courts to formulate ; If it would itself draw up the line of de- marcation between Federal and State authority ; and if it would itself iron out many of the inconsistencies still existing in the Act, it would be rendering a service of inestimable value to the American people. DES MOINES ELECTROTYPERS' UNION NO. 84, ETC. 391 -Turf Club, the Board had occasion to consider racetrack operations .of comparable size and character to the ones involved herein, and found that such operations, although not wholly unrelated to com- merce, were essentially local in character.12 The instant record does not compel a contrary conclusion, and, for the same, reasons, we find that-racetrack operations are essentially local in nature. In the second place, Board declination of jurisdiction will not leave the labor rela- tions of such operations unregulated. Congress, in addition to estab- lishing the Board's discretionary authority to decline jurisdiction, specifically provided for State assumption of jurisdiction in such situations.13 Given the character of racetrack operations, which are permitted to operate by reason of special State dispensation, and are subject to detailed regulation by the States, we can assume that the States involved will be quick to assert their authority to effectuate such regulation as is consonant with their basic policy. In these cir- cumstances, we anticipate little interference or obstruction with com- merce resulting from labor disputes in the racetrack industry as a result of our decision to decline to assert jurisdiction over such operations. Consistent with the foregoing, we find that it would not effectuate the policies of the Act to assert jurisdiction herein, and, accordingly, we grant the Employer's motion, to dismiss: the petition. [The Board dismissed the petition.] "The two racetracks involved in that case were "among the leading racetracks in the United States in the amount of money distributed as prizes and stakes , the number of large stake races conducted , the size 'of the attendance, and the amount of money wagered." The Employer ranks about 10th in the country in terms of money wagered. 13 Section 14(c) (2) of the Act, as amended , by Public Law 86-257, 86th Congress. Des Moines Electrotypers' Union No. 84 and the International Stereotypers' and Electrotypers' Union of North America, AFL-CIO and Meredith Publishing Company. Case No. 18-CD-20. . November 27, 1959 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF THE CASE This proceeding arises under Section 10 (k) of the Act, which pro- vides that, "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 8(b), the Board is empowered and directed to hear and deter- mine the dispute out of which such unfair practice shall have .arisen... ." 125 NLRB No. 49.