Hialeah Race Course, Inc.

National Labor Relations Board - Board Decisions

Nov 25, 1959

125 N.L.R.B. 388 (N.L.R.B. 1959)

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hialeah Race Course, Inc.' and Carpenters ' District Council of
Miami, Florida and Vicinity,2 Petitioner. Case No. 12-RC-611.
November 25, 1959
DECISION AND ORDER
On May 20, 1959, the Petitioner duly filed a petition under Section
9(c) of the National Labor Relations Act. On May 25, 1959, the
Regional Director dismissed this petition on the ground that it would
not effectuate the purposes of the Act to assert jurisdiction herein.
Thereafter, on July 7, 1959, the Board reinstated the petition and a
hearing was held before Claude B. Calkin, hearing officer. The hear-
ing officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Upon the entire record in this case, the Board finds : 3 The Employer
operates a racetrack and public park in Hialeah, Florida. Its revenue
is derived principally from the track's percentage of the parimutuel
pools and catering concessionaire's receipts, sale of programs, and
admission and parking lot fees. The Employer's expenses consist
chiefly of the purses paid to owners of horses participating in the
races conducted at the track, rental fees for parimutuel equipment, and
incidental expenditures for track maintenance and local advertising.
Hialeah is not connected with any other enterprise; it is not a
subsidiary corporation of any other company; it does not own any
real estate outside the State of Florida; it does not own any horses;
it does not transport horses into or out of the State of Florida; it does
not furnish feed, equipment, or personnel directly to horse owners;
it does not operate any restaurants; it does not do any manufacturing;
and it does not receive any income from radio and television although
several of its races were broadcast and seven telecast during the 1959
season. However, the track admittedly derived a great deal of
publicity from the telecasts. Claiming races, the main purpose of
which is to assure that horses of similar quality race against each
other, conducted at Hialeah during its last meet netted independent
horsemen $1,166,000 from the sale of horses entered therein. Approx-
imately 50 percent of the horses claimed were out-of-State horses
which had been shipped into the State of Florida. Somewhere
around 50 percent of the horses that run at Hialeah come from
Florida farms. The remainder come principally from breeding cen-
ters located in Kentucky, Maryland, Virginia, and California.
Hialeah has a summertime sightseeing center with a gift shop and
soda fountain which do the track's only retailing. From 5 to 10 per-
' Employer's name appears as amended at the hearing.
a Petitioner's name appears as amended at the hearing.
8 The Employer's request for oral argument is denied as the record in this case and the
briefs of the parties adequately present the issues for decision.
125 NLRB No. 57.
HIALEAH RACE COURSE, INC. 389'
cent of the souvenirs sold in the gift shop are Japanese imports. All
of the track's employees, 85 percent of whom, by statute, must be resi-
dents of Florida, are licensed by the State of Florida. Hialeah ship&
two tram trains to Garden State Park each year for which it receives,
a rental of $7,500. Some typewriters and adding machines are also
shipped and, on one occasion, Hialeah's water truck was sent to,
Garden State Park.
For the year ending March 31, 1959, during which a total in excess
of $66,000,000 4 was wagered, Hialeah Race Course, Inc., received the
following income :
Parimutuel commissions (track's share) ------------- $4,788,493.15,
Admissions. (excluding taxes collected) ------------- 1, 024, 278. 53
Parking lot and valet service----------------------- 149, 966.001
Programs---------------------------------------- 149,581.92
Turf cards--------------------------------------- 11,879.96'
Food and beverage concessions--------------------- 112, 469. 16
Other income------------------------------------- 40,355.11
Total income------------------------------- $6, 277, 023.83'
During the course of the year the Employer paid in excess of
$200,000 to the American Totalisator Company, a Maryland corpo-
ration, for rental and operation of its tote board and totalizator ma-
chines. The Employer's advertising expenses included expenses in
an unspecified amount for occasional advertisements in the Morning-
Telegraph, a racing publication widely distributed throughout the,
East.
This case and the Jefferson Downs case 5 present the Board with the
opportunity to reconsider its long-standing policy of declining to
assert jurisdiction over racetrack operations. That policy was first
enunciated in Los Angeles Turf Club,' wherein the Board held that
such operations, although not wholly unrelated to commerce, were
essentially local in character, and that therefore, it would not effectu-
ate the policies of the Act to assert jurisdiction as to them. This
policy was later reaffirmed in the Pinkerton case.7 Subsequent to the
issuance of that decision, the Supreme Court held, in an analogous.
situation,' that the Board's declination of jurisdiction over hotel em-
ployers solely on the ground of its "long-standing policy not to exer-
cise jurisdiction over the hotel industry" was beyond the Board's
power under the Labor Management Relations Act of 1947. As a
Exact figure not shown.
c Jefferson Downs, Inc ., 125 NLRB 386.
e Los Angeles Turf Club , Inc., 90 NLRB 20. See also Olympia Stadium Corporation,.
85 NLRB 389.
7 Pinkerton 's National Detective Agency, Inc., 114 NLRB 1363.
8 Hotel Employees Local No . 255, et al. v . Boyd S. Leedom, at al., 358 U.S. 99.
535828-60-vol. 125=26
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
direct result of that decision the Board reconsidered its jurisdictional
policy as to hotels, and concluded that it did not have the power to
decline to assert jurisdiction over all such employers as a class, and
accordingly, it fashioned a jurisdictional standard to govern the exer-
cise of jurisdiction in that field.'
Since the Supreme Court's decision in Hotel Employees, Congress
amended the Act 10 by providing in a new subsection 14(c) (1) that:
The Board, in its discretion, may, by rule of decision . . . de-
cline 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 sub-
stantial to warrant the exercise of jurisdiction : Provided, that
the Board shall not decline to assert jurisdiction over any labor
dispute over which it would assert jurisdiction under the stand-
ards prevailing upon August 1, 1959. [Emphasis supplied.]
It is thus clear that the Board now has the authority to adopt a policy
of nonassertion of jurisdiction as to an entire class or category of
employers subject, however, to the qualification that it may not decline
to assert jurisdiction over labor disputes over which it would assert
tinder its standards as they existed on August 1, 1959.11 Since, on
August 1, 1959, the Board had no standard for racetrack operations,
but was following a policy of nonassertion of jurisdiction as to them,
the proviso does not limit the extent to which the Board may decline
jurisdiction over racetrack operations. It may decline to assert juris-
diction as to all such operations, as long as the effect on commerce of
labor disputes in that industry is not so substantial as to warrant the
Board's exercise of jurisdiction.
As to that question, it is our opinion that the effect on commerce
of such labor disputes is not sufficiently substantial to warrant the
exercise of the Board's jurisdiction. In the first place, in Los Angeles
'Floridan Hotel of Tampa, Inc., 124 NLRB 261. (Member Jenkins concurring and
dissenting in part).
1O Public Law 86-257, 86th Congress , cited as Labor-Management Reporting and Dis-
closure Act of 1959. Section 701 ( a) of which amends the National Labor Relations Act
by adding to Section 14 thereof , a new subsection ( c) (1) and (2).
n Although Member Jenkins heretofore has strongly objected to the Board ' s utilization
of arbitrary and mechanical monetary standards as the basis for determining jurisdic-
tional questions ( see his separate opinions in Siemons Mailing Service , 122 NLRB 81,
and Floridan Hotel of Tampa , Inc., supra ) he recognizes that, in amending the Act,
Congress has ratified Board practices in this area. As Mr. Jenkins stated in an article
in the Rocky Mountain Law Review (31 R.M.L.R. 315, at p. 340) :
I. venture to suggest that the proper solution to the whole problem is Congressional
action . If the courts are left to fashion a Federal Common Law of Labor Relations
over the years , the "Judicial lag" between action and adjudication will inevitably
cause disruption and friction . However, if Congress were to take the matter in hand
and itself set forth the "Common Law" that the Supreme Court instructed the
Federal District Courts to formulate ; If it would itself draw up the line of de-
marcation between Federal and State authority ; and if it would itself iron out
many of the inconsistencies still existing in the Act , it would be rendering a service
of inestimable value to the American people.
DES MOINES ELECTROTYPERS' UNION NO. 84, ETC. 391
-Turf Club, the Board had occasion to consider racetrack operations
.of comparable size and character to the ones involved herein, and
found that such operations, although not wholly unrelated to com-
merce, were essentially local in character.12 The instant record does
not compel a contrary conclusion, and, for the same, reasons, we find
that-racetrack operations are essentially local in nature. In the second
place, Board declination of jurisdiction will not leave the labor rela-
tions of such operations unregulated. Congress, in addition to estab-
lishing the Board's discretionary authority to decline jurisdiction,
specifically provided for State assumption of jurisdiction in such
situations.13 Given the character of racetrack operations, which are
permitted to operate by reason of special State dispensation, and are
subject to detailed regulation by the States, we can assume that the
States involved will be quick to assert their authority to effectuate
such regulation as is consonant with their basic policy. In these cir-
cumstances, we anticipate little interference or obstruction with com-
merce resulting from labor disputes in the racetrack industry as a
result of our decision to decline to assert jurisdiction over such
operations.
Consistent with the foregoing, we find that it would not effectuate
the policies of the Act to assert jurisdiction herein, and, accordingly,
we grant the Employer's motion, to dismiss: the petition.
[The Board dismissed the petition.]
"The two racetracks involved in that case were "among the leading racetracks in the
United States in the amount of money distributed as prizes and stakes , the number of
large stake races conducted , the size 'of the attendance, and the amount of money
wagered." The Employer ranks about 10th in the country in terms of money wagered.
13 Section 14(c) (2) of the Act, as amended , by Public Law 86-257, 86th Congress.
Des Moines Electrotypers ' Union No. 84 and the International
Stereotypers' and Electrotypers' Union of North America,
AFL-CIO and Meredith Publishing Company. Case No.
18-CD-20. . November 27, 1959
DECISION AND DETERMINATION OF DISPUTE
STATEMENT OF THE CASE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that, "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of
section 8(b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair practice shall have
.arisen... ."
125 NLRB No. 49.