Pari-Mutuel Clerks Union of Louisiana, Local Union 328 (Jefferson Downs, Inc.)

DECISIONS OF NATIONAL L.ABOR REIA lIONS B()ARD Pari-Mutuel Clerks Union of Louisiana, Local Union 328 and Jefferson Downs, Inc. Case AO-239 15 August 1983 ADVISORY OPINION A petition, and a memorandum in support there- of, was filed on 26 August 1982 and 30 August 1982, respectively, by Pari-Mutuel Clerks Union of Louisiana, Local Union 328, herein called the Peti- tioner, for an Advisory Opinion pursuant to Sec- tions 102.98 and 102.99 of the National Labor Rela- tions Board's Rules and Regulations, Series 8, as amended, seeking to determine whether the Board would assert jurisdiction over labor disputes in- volving the horseracing industry. On 30 August 1982 Jefferson Downs, Inc., herein called the Re- spondent, filed a reply to the petition. In pertinent part, the petition and supporting memorandum and the Respondent's reply allege as follows: i. The Petitioner asserts that there are currently pending before the Louisiana State Racing Com- mission, the Louisiana Department of Labor, and the Twenty-Fourth Judicial District Court for the Parish of Jefferson, State of Louisiana, docket No. 270, 725, labor disputes involving the parties.' The Respondent asserts that there is no pending action before either the Louisiana State Racing Commis- sion or the State Department of Labor, and that the pending state court action for damages was filed on 17 August 1982 after the Board's Regional Office had dismissed the charge on jurisdiction grounds and after dismissal of the Petitioner's appeal to the Board's General Counsel. 2. The commerce data available to the Petitioner indicates that: the Respondent's gross parimutuel income was in excess of $53 million in 1981; in conducting its business activities, the Respondent purchased considerable goods and services, and employs many individuals, all of which have an impact on interstate commerce. 3. The above commerce data is admitted by the Respondent. i An unfair labor practice charge filed by the Petitioner with the Board's Regional Office alleging various unfair labor practices by the Re- spondent was dismissed for lack of jurisdiction. 4. There are no representation or unfair labor practice proceedings involving this labor dispute pending before this Board. 5. As noted above, the Respondent has filed a reply to the petition. On the basis of the above, the Board is of the opinion that: The thrust of the Petitioner's argument is that the Board should "reconsider" its policy of declin- ing jurisdiction in labor disputes involving the horseracing industry, 2 or, alternatively, direct the General Counsel to reopen the case and investigate the charges because the considerations applied to horseracing and their impact on commerce are no longer meaningful. The Respondent contends that the Board should advise that it would not assert jurisdiction by virtue of Section 103.3, footnote 2, supra, or dis- miss the petition as inappropriate because under Section 102.98 of the Board's Rules and Regula- tions the only purpose for which an advisory opin- ion may be obtained is whether the Board would assert jurisdiction on the basis of its current standards. Under Section 103.3 of the Board's Rules, the Board will not assert jurisdiction over the horse- racing industry. Moreover, as the Board's advisory opinion proceedings are designed primarily to de- termine questions of jurisdiction by application of the Board's discretionary monetary standards to the "commerce" operations of an employer,3 and as reconsideration of Board policy or of its rules does not fall within the intendment of the Board's advisory opinion rules,4 we shall dismiss the peti- tion herein. 5 Accordingly. it is hereby ordered that, for the reasons set forth above, the petition for an advisory opinion herein be, and it hereby is, dismissed. Under Sec. 103.3 of the Board's Rules and Regulations, Series 8, as anletided, the HBoard will not assert jurisdiction in any proceeding "in- volving the horseracing or dogracillg industries." I See Follett Corp.., 223 NLRB 800 (1976); Pennsylvania Labor Relations Board (GeIorge Junior Republic), 215 NLRB 323 (1974); Globe Security Sys- tem.s Inc., 209 NL.RB 35 (1974). 4 Compare MUax Hirsch v. Irank McCulloch, 303 F.2d 208 (D.C. Cir. 1962). r, See The New York Racing Association Inc. I NVLRB, 708 F.2d 46 (2d Cir 1983). 267 NLRB No. 39 174