Harry M. Stevens, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1968

169 N.L.R.B. 806 (N.L.R.B. 1968)

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