Centennial Turf Club, Inc

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Centennial Turf Club, Inc and Local 961, Affiliated with ' the 'Internatlonal .;Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri-, ca. Case AO-134 August 17, 1971 ADVISORY OPINION BY CHAIRMAN Mu .ER AND MEMSERs FANNING AND KENNEDY Petition herein was filed April 20, 1971, by Local 961, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, pursuant to Sections 102.98 and 102.99 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended. Thereafter, Centennial Turf Club, Inc., herein called the Employer, filed on April 21,1971, a Response to Petition for Advisory Opinion and Motion To Dismiss Same. In pertinent part, the petition and response allege that: 1. There are presently pending before the courts of the State of Colorado, two proceedings; one before the Supreme Court of the State of Colorado, docketed as Case No. 24900 and the other in the District Court for the County of Arapahoe, State of Colorado, docketed as Civil Action No. 28816. The Supreme Court proceeding results from an attempt by the Director of the Division of Labor of the State of Colorado to enjoin the Union from picketing the premises of the Employer, and his appeal from the trial court's refusal to grant the injunction. In the district court proceeding, the Union is seeking judicial review of a determination of the director of the division of labor that the Employer was not guilty of certain unfair labor practice charges brought against it by the Union. 2. The Employer is a Colorado corporation which operates a thoroughbred horseracing meet for ap- proximately 60 racing days each summer in Littleton, a suburb of Denver, Colorado, and, through a subsidiary, The Rocky Mountain Quarter Horse Racing Association, it operates a quarter 'horse race meet for an additional 30 racing days each year. The principal stockholder of the Employer is Emprise Corp., which either directly or through controlled subsidiaries has controlling interests in the operation of dog- or horse-racing meets in Arkansas, Arizona, New Mexico, and New York. In addition, Emprise Corp., either directly or through its majority stock 1 Walter A. Kelley, 139 NLRB 744. 2 On March 22, 1970, the Regional Director dismissed the Employer's representation petition in Case 27-RM 318 and on April 22, 1970, he dismissed the union's unfair labor practice charge in Case .27-CA-2937. holders, controls one or more subsidiaries 'which operate concessions both at the tracks controlled by Emprise Corp., and at other tracks in Nebraska and South Dakota 3. The Union alleges that the Employer's share of track revenues during the most recent annual period for which a report is available was $2,075,886. During the same period the quarter horse subsidiary's share was $428,960. 4. In its response the Employer requests that the petition be dismissed on the grounds that the Board, having declined jurisdiction over the horseracing industry,' has not established a jurisdictional stand- ard for racetracks and that a petition for advisory opinion is not a proper vehicle for raising the issues presented in this matter. The Employer asserts generally that the Union's allegations relating to the nature of its business and commerce data furnished by the Union are incomplete and misleading. Except for this broad statement, the Employer has not denied the nature of its business and the commerce dollar volume allegations nor has it affirmatively alleged what such nature and volume are, despite its peculiar knowledge of them. 5. Neither the director of the division of labor, nor the state trial court has made findings with respect to the aforesaid commerce data. 6. There is no representation or unfair labor practice proceeding involving the same labor dispute pending before the National Labor Relations Board.2 On the basis of the foregoing, the Board is of the opinion that: 1. The Employer is a Colorado corporation engaged in the operation of a thoroughbred horse- racing meet in Littleton, Colorado. 2. Although the operations of the Employer as a part of the racing industry are related to interstate commerce, the Board has repeatedly declined to assert jurisdiction over horseracing and cognate enterprises, thereby leaving the State free to assert its jurisdiction. Walter A. Kelley, supra; Hialeah Race Course, Inc., 125 NLRB 338; Jefferson Downs, Inc,. 125 NLRB 386; Pinkerton's National Detective Agen- cy, Inc., 114 NLRB 1363; and Los Angeles Turf Club, Inc., 90 NLRB 20. These cases have concluded that racetrack operations, such as the Employer's herein, while exercising some impact upon interstate com- merce, are essentially local in character . Since we are still of the opinion that the effect of labor disputes involving racetrack enterprises is not sufficiently substantial to warrant the assertion of our jurisdic- tion, we shall decline to do so over the Employer. The Employer did not appeal the dismissal of the representation case, while the Union's appeal from the dismissal of the unfair labor practice charges was denied by the General Counsel. 192 NLRB No. 97 i CENTENNIAL TURF CLUB Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that the Board would not assert jurisdiction over the, operation of Centennial Turf Club, Inc., with respect to labor disputes cognizable under Sections 8, 9, or 10'of the Act. MEMBER FANNING, dissenting, To advise these,parties that the Board would not assert jurisdiction over this Employer is, in my view, misleading. Themajorityrelies, principally, on Walter Kelley, 139 NLRB 744.-The decision in Kelley was based almost entirely on the extent to which racing is regulated by the States. Much has happened since Kelley was decided. In El Dorado, 151 NLRB 579, the Board asserted jurisdiction over gambling, despite a 699 strong argument that it should not do so because of the extent to which that industry was regulated by the State of Nevada. And the .Board has since - asserted jurisdiction over private hospitals and nursing homes (Butte Medical Properties, d/b/a Medical Center Hospital, 168 NLRB 266 University Nursing Home, Inc., 168 NLRB 263), over nonprofit colleges and universities (Cornell University and Syracuse Universi- ty, 183 NLRB No. 41), and over professional baseball (The American League of Professional Baseball Clubs, 180 NLRB No. 30). After those cases I can see no basis for adherence to Kelley other than that we once decided it that way. That is not enough, and I would advise these parties that the Board, upon a proper proceeding, would reach a different result now.