Harry M. Stevens, Inc.

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harry M. Stevens, Inc. and Godfrey P. Schmidt and Robert V. Ferrari and Celso M. Gomez. Case AO-108 February 14, 1968 ADVISORY OPINION This is a petition filed on November 13, 1967, by Harry M. Stevens, Inc., herein called the Em- ployer, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the National Labor Relations Board Rules and Regulations, Series 8, as amended. Thereafter, on November 21, 1967, the Employer filed a brief in support of its petition for Advisory Opinion urging that the Board assert ju- risdiction over its operations. Although served with a copy of the petition for Advisory Opinion, none of the parties to the proceeding pending before the New York State Labor Relations Board, herein called the State Board, has filed a response to the petition as provided by the Board's Rules and Regulations. In pertinent part, the petition and brief allege as follows: 1. Pursuant to charges filed by Godfrey P. Schmidt, Robert V. Ferrari, and Celso M. Gomez with the State Board in Cases SU-40835, SU-41367, and SU-41478, the State Board issued a consolidated complaint which alleges that the Em- ployer had violated the New York State Labor Relations Act in the termination of 13 of its em- ployees. These 13 employees had been employed by the Employer at its restaurant and food vending concession at Yonkers Raceway, Yonkers, New York, a harness or trotting track. 2. The Employer, a New York corporation, with principal office at 421 Fifth Avenue, New York, and its five wholly owned subsidiaries incorporated in other States are basically retail concessionaires and caterers. They own and operate, on a conces- sion basis, restaurants, bars, cafeterias, foodstands, snackbars, coffeeshops, vending services, and other related activities and are engaged in the distribution and retail sale of food, beverages, and souvenirs and in the publication, distribution, and retail sale of programs and books at parks and stadia for baseball and other sporting events, convention and exhibi- tion halls, a hotel, a bowling alley, county fairs, thoroughbred and harness racetracks, dogracing tracks, and other similar establishments located at more than 30 locations in New York and 12 other States. Each of the concessions, except those located at the hotel and convention and exhibition halls, operates on a seasonal basis during the period ' Although racetrack employees as well as concession employees at the three harness or trotting tracks, including Yonkers, must be licensed by the New York State Harness Racing Commission , concession employees at the three New York thoroughbred racetracks are not licensed by the New York State Racing Commission which licenses only horse owners, when the establishment in which it is located is operating and open to the public. 3. Annually, the Employer and its subsidiary corporations employ approximately 17,000 em- ployees , of whom approximately 4,000 to 5 ,000 are employed at concessions in two or more States. Not only is there interchange of food , equipment, and goods from one establishment to another, but also there is extensive interchange , on an intrastate and interstate basis , of numbers of employees between racetrack concessions , as well as between racetrack and nonracetrack concessions . The Employer alone retains direct supervision over all its racetrack em- ployees , some of whom are licensed and other of whom are not licensed. t 4. The labor relations of the Employer and its subsidiaries with respect to racetrack employees are conducted on a unified and integrated basis with the Racetrack Advisory Council of the Hotel and Restaurant Employees and Bartenders Interna- tional Union , AFL-CIO, herein called the Adviso- ry Council. The 18 labor contracts entered into between the Employer, its subsidiary corporations, and the Advisory Council are almost uniform in wording. As to employees employed at the non- racetrack concessions , the Employer and its sub- sidiaries also have collective -bargaining agreements with other unions. 5. The gross annual revenue from retail sales at each of the 30 or more establishments , including that located in Yonkers Raceway, exceeds $500,000. Thus , the total gross annual revenue of the Employer and of its subsidiaries exceeds $15 million. The Employer's annual purchase of goods, supplies, and commodities , made directly or in- directly from outside the State of New York, ex- ceed $50 ,000; while its annual sales of goods, products , and commodities made directly or in- directly outside the State of New York exceed $ 50,000. 6. No findings have been made by the State Board with respect to the commerce data set forth above which has not been denied by any of the parties to the State Board proceedings.2 7. Although no unfair labor practice proceeding is now pending before the Board , five charges in- volving the same alleged labor dispute had previ- ously been filed against the Employer in Cases 2-CA-11157- 1 through-5 by five individuals, in- cluding some named in the instant State Board com- plaint. On November 30, 1966 , Ivan C. McLeod, the Board's Regional Director for Region 2, herein called Regional Director , refused to issue a com- plaint on any of these charges because , "[T]he un- fair labor practices described in the Charge are al- trainers, jockeys, jockey agents, and stable employees. 2 According to commerce data submitted by the Employer to the State Boar d, the Employer's gross annual income exceeds $1 million while its direct and indirect out-of-State purchases and sales each exceed $2 mil- lion per annum. 169 NLRB No. 116 HARRY M. STEVENS, INC. leged to have involved the above-named employer's operations at Yonkers Raceway. These are closely regulated by the New York State Racing Commis- sion and are inextricably-associated with the opera- tions of the Raceway. Inasmuch as the Raceway is an enterprise engaged in the racing industry over which the National Labor Relations Board as a matter of policy does not assert jurisdiction, the em- ployer's operations involved here are not such as to warrant the assertion of jurisdiction herein. See: Hotel & Restaurant Employees, etc. (Resort Con- cessions, Inc.), 148 NLRB 208, and Pinkerton's National Detective Agency, Inc., 114 NLRB 1363." Although advised of their right to appeal, none of the Charging Parties filed a request with the General Counsel to review the Regional Director's ruling. 8. In support of its position that the Board should assert jurisdiction over it, the Employer in its brief argues that: (1) the business of the Em- ployer and its wholly owned subsidiaries is essen- tially a retail restaurant and food service chain - multistate and multioperation in character - which grosses in excess of $15 million per annum, and the Board has consistently asserted jurisdiction over such retail enterprises; (2) since the Board, prior to August 1, 1959, had not "by rule of decision or published rules" determined that restaurant conces- sionaires located at racetracks are excepted from the general rule pertaining to retail restaurant operations (the Board's decisions in Resort Conces- sions and Pinkerton being distinguishable), Section 14(c)(1) of the Act precludes the Board from declin- ing to assert jurisdiction over the Employer; and (3) there is no adequate reason for the preservation of the rule, reaffirmed in WalterA. Kelley, 139 NLRB 744, excepting from Board jurisdiction cases at racetracks because the impact on interstate com- merce from racetrack operations is substantial. On the basis of the above, the Board is of the opinion that: 1. In view of the common ownership, the exten- sive interchange of employees and equipment and goods, and the unified and integrated labor rela- tions, particularly at the racetracks, the Employer and its five wholly owned subsidiaries appear to be one integrated operation under common control and therefore constitute a single employer for jurisdic- tional purposes. As such they are basically a retail enterprise engaged as concessionaires and caterers generally servicing the public in the sports and amusement industry at more than 30 locations in New York and 12 other States. 2. The Board's current standard for the assertion of jurisdiction over retail enterprises within its statutory jurisdiction is an annual gross volume of business of at least $500,000 (Carolina Supplies and Cement Co., 122 NLRB 88, 89). Even con- sidering the Employer apart from its subsidiaries, its more than $50,000 annual purchases made directly or indirectly from outside the State of New 807 York and its more than $50,000 annual sales made directly or indirectly outside the State of New York constitute inflow and outflow, direct or indirect, sufficient to bring its operations within the Board's statutory jurisdiction. The Employer's annual gross revenue of business (as well as of that of each of its five wholly owned subsidiaries) exceeds $500,000 and therefore satisfies the monetary test for the Board's discretionary assertion of jurisdiction over retail enterprises. 3. Despite the fact that the Employer's opera- tions satisfied the Board's discretionary monetary criteria for the assertion of jurisdiction over retail enterprises, the Regional Director on November 30, 1966, on the authority of the Board's decisions in Pinkerton and Resort Concessions, supra, declined to assert jurisdiction because the labor dispute before him - the same as that herein - in- volved the Employer's operations at the Yonkers Raceway, an enterprise engaged in the racing indus- try over which the Board, as a matter of policy, does not assert jurisdiction. Contrary to the Re- gional Director, we believe that the Pinkerton and Resort Concessions precedents are not properly ap- plicable to the Employer's operations and that it would effectuate the policy of the Act to assert ju- risdiction herein. 4. Pinkerton was a representation case involving detectives who worked as ushers and patrolmen at the harness racetrack in Yonkers. These em- ployees, who constituted an autonomous division of Pinkerton, were subject to the special New York laws regulating racetrack employees and, pursuant to contract, were directly supervised by the trotting association which ran the track. The effect of this practice was to identify the employees closely and to an unusual degree with the work and interests of the association and made them "part and parcel of the association's racetrack operations." While not- ing that it generally did not concern itself with the type of operation conducted by the customer of the service contractor, the Board concluded that, "[T] his is an atypical situation in which the service contractor has, in effect, compartmentalized one phase of his operations so that, unlike his main operation, his employees have been closely in- tegrated and virtually included in an industry in which the Board, as a matter of policy, does not as- sert jurisdiction." Accordingly, the Board, on the basis of these particular circumstances, declined to assert jurisdiction. On the other hand, the Employer's operations herein are substantially different from those of Pinkerton, supra, and are not atypical. Not only is there no separate autonomous division of Yonkers Raceway employees but, in fact, racetrack em- ployees are extensively interchanged with other employees at the more than 30 concessions located at the different racetrack and nonracetrack establishments in New York and 12 other States. While subject to New York State regulation, the 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yonkers employees are directly supervised by the Employer itself so that unlike the employees in Pinkerton they are not part and parcel of the racing association's operation at Yonkers. In these cir- cumstances and in rendering this Advisory Opinion, we have followed not the Pinkerton exception but our general policy and have con- sidered only the operations of the Employer, the service contractor, and not those of the operator of the racetrack, its customer. 5. There remains for consideration the decision in Resort Concessions, supra, where the Board adopted a Trial Examiner's recommended decision declining to assert jurisdiction on the authority of Pinkerton. In that case, the employer was a racetrack concessionaire and caterer whose annual gross volume of business barely met the Board's monetary standard for the assertion of jurisdiction over retail establishments,3 and whose operations were conducted exclusively at the Monticello, New York, harness racetrack only during the 4-month season when the track was open and running. The concessionaire did not appear to have operated else- where than at this single racetrack. His opera- tions were exclusively at this one location and only for a 4-month period. Thus, the impact of a labor dispute upon commerce would have been limited lo- cally to the racetrack and only during a relatively short period of time. On the other hand, the opera- tions of the Employer herein are not so limited in time and space but encompass year-round racetrack and nonracetrack establishments in 13 different States, involving thousands of employees who work at these mulitstate concessions and many of whom interchange with other employees on an intrastate and interstate basis. A single Advisory Council represents the racetrack employees throughout the nation, while various other unions represent non- racetrack employees at other locations. It would thus appear that, unlike the situation in Resort Con- cessions, a labor dispute involving the Employer and its employees could proliferate to all its opera- tions and its thousands of employees and therefore could disrupt commerce substanitally throughout 13 States for an extended period of time. Because of the mulitstate, multiestablishment nature of the Employer's operations, involving as they do thousands of employees and millions of dollars, we do not believe that the Resort Concessions precedent, involving a single local racetrack operat- ing only 4 months of the year, should be applied to the Employer herein, considering that a labor dispute arising from its substantial and highly in- tegrated interstate activity potentially could be of long duration and have a most significant impact upon commerce.4 Accordingly, the parties are advised under Sec- tion 102.103 of the Board's Rules and Regulations that, upon the allegations submitted herein, the Board would assert jurisdiction over the operations of the Employer and its subsidiaries as a single en- terprise, with respect to disputes cognizable under Section 8, 9, and 10 of the Act. 3 The employer's annual income was $527,452 47, although its direct and indirect inflow exceeded $50,000 4 See El Dorado Club, 151 NLRB 579