Ray, Davidson & Ray

RAY, DAVIDSON & RAY 433 WE WILL offer to John M. Goodson immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered as the result of our discrimination against him. SOUTHERN WIRES, 'INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Walter Carl Ray, Hugh M. Ray, Mrs. Ruby Ray Cunningham, W. C. Ray Jr., W. B. Ray, W. M. Davidson, Pearl Ray Long, Bonnie Ray Richardson, and Harriet Ray Berman, d/b/a Ray, Davidson & Ray and Local Union No. 925, International Union of Operating Engineers, AFL-CIO, Petitioner. Case No. 12-RC-1083. May 4, 1961 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, the parties executed a stipulation waiving a hearing and providing that the record made in Case No. 12-RC-976, together with the Board exhibits in this case, including said stipulation, shall constitute the sole and full record for the determination of the issues herein. Upon the entire record in this case, the Board finds : 1. The Employer contends that the Board should not assert juris- diction in this matter because the Employer's operations are essen- tially local in character and, at best, only remotely related to com- merce within the meaning of the Act. Alternatively, the Employer contends that the Board should adhere to its alleged policy of not asserting jurisdiction over the "amusement" industry. Accordingly, the Employer moves to dismiss the petition. The Employer is a partnership which operates sightseeing tours and related enterprises in Silver Springs, Florida. The site is readily accessible over three Federal highways which intersect at Ocala. The operations are commonly known as "Silver Springs" and "Paradise Park." The tours consist of rides in glass-bottom boats over a course on the Silver River, a navigable river under the jurisdiction of the United States Coast Guard. In addition to the tours, the Employer operates two gift shops. Also, the Employer grants concessions to several other enterprises, including a deer ranch, a reptile institute, a bathing beach, a jungle cruise, a carriage cavalcade, the Prince of Peace memorial, a restaurant, and various gift shops. 131 NLRB No. 54. 599198-62-vol. 131-29 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is estimated that 11/2 million tourists visit the Employer's grounds yearly. It is unknown what percentage of these tourists are from out- of-State, but the Employer is a member of the Florida Attractions Association, whose object is to promote tourism in the State. The Em- ployer supplies literature, which advertises its operation, for distri- bution by the Florida Development Commission. The Employer also furnishes its facilities for the making of commercial motion pictures on location, but the record is not clear as to the extent of this activity. During its fiscal year ending January 31, 1960, the Employer had a gross income of more than $2,000,000 from the foregoing operations. The gross income was derived as follows : Sightseeing boats----------------------------- $1,271,668.45 Gift shops----------------------------------- 577,621.42 Concessions --------------------------------- 197,032.33 Miscellaneous -------------------------------- 37,898.16 During the same period, the Employer made the following purchases from directly outside the State, amounting to more than $100,000: Merchandise for gift shops, in excess of------------ $50, 000.00 Paint and Fiberglas------------------------------ 1,797.52 Motor parts------------------------------------- 224.71 One electric motor ------------------------------- 929.00 Batteries --------------------------------------- 25,245.12 Maps and folders for advertising------------------ 30, 970.90 The Employer also spent about $40,000 on out-of-State advertising, and its field representatives in the publicity department contacted various motels, hotels, etc., arranging for the distribution of its literature. As appears from the foregoing facts, the Employer's operations are designed for the ultimate consumer; they are thus primarily retail in character, and its annual gross revenues satisfy the applicable juris- dictional minimum of $500,000 of gross annual revenue.' Moreover, the Employer makes out-of-State purchases in substantial amounts. The Employer's principal operations take place on a river which is a channel of commerce under Federal jurisdiction, and its boats and operating employees are accordingly licensed by the United States Coast Guard. In addition, the Employer spends a substantial amount outside the State to advertise its enterprises. The Employer nevertheless contends that the Board should not as- sert jurisdiction, because its operations may be classified as in the amusement or entertainment industry, over which the Board in certain ' Carolina Supplies and Cement .Co , 122 NLRB 88; Park Plaza Amusement Company, 124 NLRB 428; Combined Century Theatres, Inc., 123 NLRB 1759, 120 NLRB 1379. RAY, DAVIDSON & RAY 435 cases has declined to assert jurisdiction.2 However, the Board has not excluded all entertainment or amusement enterprises from the sweep of its jurisdiction .3 Significantly, in a case issued earlier this year the Board rejected an argument against asserting jurisdiction over em- ployers in the amusement field or the entertainment industry, par- ticularly where, as here, regulation by other public authority was substantially less "detailed" than over the racetrack involved in the Hialeah case.4 V Te find it additionally significant that the amusement or entertainment industry, although once regarded as being out of the main stream of commerce, is no longer a negligible factor in our na- tional life. On the contrary, we find that the Employer's enterprises here have a close, intimate, and substantial relation to trade, traffic, and commerce, and are not merely transitory or casual but rather are permanent year-round operations with comparatively stable and reg- ular employment. In these circumstances, we find that it would not effectuate the pol- icies of the Act for the Board to exercise its discretion under Section 14(c) (1) of the Act to decline jurisdiction herein.5 We further find that the operations of the Employer satisfy the Board's applicable retail standard for asserting jurisdiction over enterprises of this nature, and substantially affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Accordingly, we deny the Employer's motion to dismiss the petition. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all regular employees of the Employer, excluding temporary employees, guards, professional employees, and supervisors as defined in the Act. The Employer con- tends that such a unit is not appropriate, on the ground that the em- ployees therein lack mutuality of interest in wages, hours, and other 2 Hialeah Race Course, Inc, 125 NLRB 388; Jefferson Downs, Inc , 125 NLRB 386; Tanner Motor Tours, Ltd , 112 NLRB 275; Philadelphia Orchestra Association, 97 NLRB 548; Los Angeles Turf Club, Inc, 90 NLRB 20; Olympia Stadium Corporation, 85 NLRB 389. But compare Magic Mountain, Inc, 123 NLRB 1170. 3 Edward Small Producta,ons, Inc, at at., 127 NLRB 283; Independent Motion Picture Producers Association, Inc., 123 NLRB 1942; Raritan Valley Broadcasting Company, Inc, 122 NLRB 90 ; Combined Century Theatres , Inc, supra ; Television Film Producers Asso- ciation, at al., 93 NLRB 929 Cf. Park Plaza Amusement Company, supra 4 The League of New York Theatres, Inc, 129 NLRB 1429. 5 Section 14(c) (1 ) provides : "The Board, in its discretion, may . . . decline 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 substantial to warrant the exercise of its jurisdiction : Provided, That the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert juris- diction under the standards prevailing upon August 1, 1959." 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms and conditions of work; but the Employer advances no argu- ment as to what exclusions would render the unit appropriate. There is no history of collective bargaining for any of the employees here involved. Although the employees vary widely in skill, many are not skilled, and others work as office clerical employees, our policy in the analogous retail industry and hotel industry is not to exclude any employee for such a reason.6 Accordingly, we reject the Employer's contention. A different question is raised, however, as to the alleged supervisory status of the boat starters (Bingham, Hughes, and Teuton). In addi- tion to their nonsupervisory duties as starters, they assist and sub- stitute for Head Starter Cheatham in the supervision of certain oper- ations. However, the record is not clear as to whether their super- visory authority is merely of a routine or clerical nature, or whether it requires the use of independent judgment within the meaning of Section 2 (11) of the Act. Hence, we shall permit them to vote in the election, hereinafter directed, subject to challenge. We find that all regular employees of the Employer, excluding tem- porary employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBER LEEDOM, dissenting : I would dismiss the petition in this case. The Employer is engaged primarily in operating sightseeing tours within the State of Florida. This is an essentially local activity serv- ing no other purpose than to provide amusement and entertainment, the Employer's operation of gift shops being clearly incidental to this primary activity. In my view, the operations of this Employer closely resemble those of other employers in this industry as to which the Board has declined to assert jurisdiction (see footnote 2, supra). While it is true that the Board has asserted jurisdiction in the motion picture and broadcasting cases (footnote 3, supra) those enterprises are plainly distinguishable in that they provided facilities for the interstate transmission of news and other forms of intelligence, as well as amusement and entertainment. I am of the opinion that it will not effectuate the policies of the Act to depart from precedent and expend time and funds on cases affecting local enterprises in the amusement industry, such as the Employer here, when there are so many other cases demanding our attention in industries having a substantial impact - on interstate commerce. O Arlington Hotel Company, Inc., 126 NLRB 400; J. J. Moreau & Son, Inc., 107 NLRB 999.