Major League Rodeo, Inc.

National Labor Relations Board - Board DecisionsDec 5, 1979

246 N.L.R.B. 743 (N.L.R.B. 1979)

MAJOR l.EAGitI ROI(()O. IN('. Major League Rodeo, Inc. and its Constituent Mem- bers and Major League Rodeo Players Association, Petitioner. Case 31 RC-4263 December 5. 1979 DECISION AND DIRECTION OF ELECTION BY CIAIRMAN FANNING ANI MEMII RS PI NI.I I.() ANI) TRtlt SI)AI I Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Richard R. Paradise. After the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regu- lations, Series 8, as amended, this proceeding was transferred to the Board for decision. Thereafter, Ma- jor League Rodeo, Inc., and Major League Rodeo Players Association filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: I. Major League Rodeo, Inc. (hereinafter MIR or the League), is an association of professional rodeo teams which was formed in 1977 as a nonstock, non- profit corporation under the laws of Nevada. Its pur- pose is to administer and coordinate professional team rodeo. During its first season, 1978, the League consisted of teams in Denver, Colorado: Kansas City. Missouri: Los Angeles, California: Salt Lake City, Utah; San Antonio, Texas: and Tulsa. Oklahoma. t League policy is made by a board of representa- tives consisting of the principal owners of the teams. The chief executive officer of the League is the com- missioner, a position currently held by Michael Sha- piro. All teams are subject to the provisions of the MLR constitution, bylaws, fiscal rules, operating rules, playing rules, and decisions of the board of rep- resentatives. Each team pays uniform dues, assessed from time to time by the board of representatives, to finance the operations of the League. The eague, through its staff and/or the board of representatives, inter a/lira. establishes team size, schedules the games, conducts the annual player draft, and enforces the various rules. 'The commis- sioner has the power to act as a final and binding ' As of' the time of the hearing, the San Antonlo team had been expelled froim the eague and the eague was expecting to have arranged tfr a re- placement Texas team by the beginning it the 1979 season. arbitrator over disputes which arise within the league. He also "speaks fOr the teams on most mat- ters. 'The League is also involved in the contractual rela- tionship between the team and the player. The com- missioner has the power to discipline, including the power to fine, suspend, or expel a player f)r a breach of specific provisions of the contract. or for conduct injurious to the League. The commisioner's arbitra- tion powers extend to disputes between a team and a plaver. inally, the League can declare a contract null and void if the team fails to meet its obligations under the contract. In 1978, each team played approximately 14 home games, and traveled to other States for approximately 14 away games.' In addition to the regular season, the League sponsored an All-Star game. playoff games, and a championship game. The petition herein was filed on August 30. 1978. On October 24, 1978, the Regional Director for Re- gion 31 ordered that a hearing be held on November 13, 1978. Board subpoenas duces tecunm were sent b Petition- er's counsel on October 27, 1978. to the League and each team, ordering a detailed production of records relating to revenues and expenditures. On November 1, 1978, the Regional Office sent additional suhpoenal duces tecum to Michael Shapiro and to the custodian of the records of each team, ordering the presence of Shapiro and the custodians, together with detailed records relating to the ownership, business structure, gross revenues, and interstate sales and expenditures of the League and teams. The subpenas issued by the Regional Office allowed the production of a notarized statement signed by a duly authorized representative. setting forth the requested information in lieu of pro- duction of the actual documents. No motion to re- voke the subpenas was subsequently submitted. Petitioner and the Employer appeared at the hear- ing and were represented by counsel. Shapiro testified and produced documents regarding the revenues of the League. Michael Gottsegen. president and major stockholder of the Los Angeles team. the Rough- riders, testified and produced unaudited documents relating to the revenues of his team. Most of his testi- mony, however, was stricken from the record because he refused,. as directed by his counsel, to answer sev- eral questions on cross-examination relating to juris- 2 Ihe parties agreed at the hearing, and we find. that Majo.r I.eague Ro- deo, Inc., and its (Constituent Members prioperl consilltul I Ja inl-emploer bargaining unit ereinafter, Maj.or League Rxleo, Inc iani its (nstituent Members will be referred to as the mpl,ser A professional team rodeo game consisls o tOi teams conlpetlng in he tradltional rodeo events of bareback (horse) riding. brrel racing. team rop- ing (of a steer). saddle brolnc riding. call rping steer wrestling. and bull nding. Unlike a traditional rdeo. howeser. a member ofo tne e.art conlpeles in a;i ev en s ul ltaneousls against aI member of the other tea m 246 NLRB No. 113 743 IC)('ISIONS OF NAll(ONAI l.ABO()R REL.ATIONS BOARI) diction. No representative or custodian of records for any of the other teams appeared at the hearing. The Employer produced the following documents relating to jurisdiction: (I) the unaudited books and records of the Denver Stars; (2) an unnotarized sum- mary of revenues, including an unaudited second quarter 1978 profit-and-loss statement, on the letter- head of the Kansas City Trailblazers; (3) a notarized. signed statement from the president of the Salt ake City Buckaroos giving his "best estimate" of income and expenses from April through September 1978: (4) an unnotarized, unaudited estimate of income for the San Antonio team through August 1, 1978; and (5) an unnotarized unaudited estimate of income for the Tulsa Twisters for the period January through June 1978, and an unnotarized letter from the president of the Tulsa team giving estimated income for the pe- riod July through September 1978. At the direction of the Hearing Officer, a Board agent examined these documents while the hearing proceeded. This exami- nation revealed that team revenues exceeded $247,000. The Hearing Officer then added eague revenues and income from the championship game. and concluded that the Employer had received in ex- cess of $271,000 during its first season. Shapiro produced a notarized statement from him- self, giving league and team revenue figures indicating that the Employer's gross income exceeded $281,000. He conceded that the revenue figures provided for the teams were based on information given to him by the teams over the telephone, or found in the other docu- ments produced at the hearing. Shapiro further testi- fied that, in addition to the figures listed in his own notarized statement, the League received $50.000 from Caesar's Palace of Las Vegas for the All-Star game prize money. At the hearing, the parties stipulated that Major League Rodeo, Inc.'s constituent members during the fiscal year ending September 30, 1978, purchased goods and services valued in excess of $50,000 di- rectly from sellers or suppliers outside the State of California, and outside the home States of the respec- tive constituent members. They further stipulated that each constituent member of the League, during the fiscal year ending September 30, 1978, directly purchased from sellers or suppliers located outside their respective home States in excess of'$15,000 each for goods and services. The Employer asserts that the Board lacks statu- tory jurisdiction because professional team rodeo is essentially local in character, and has no substantial impact on interstate commerce.4 It also contends that 4 At the close of the hearing, the Employer argued that the Board lacks jurisdiction over it because its employees were agricultural employees and/or independent contractors. The Employer has not raised these contentions in its bnef to us. In any event, the record is devoid of evidence supporting such contentions. and we find them without merit. the Board should decline to assert its discretionary jurisdiction, because professional team rodeo is simi- lar to horseracing, an industry over which the Board has declined to assert jurisdiction. In the alternative, the Employer argues that the Board should apply its $500,0(00 retail standard to the Employer, and, since the gross revenues of MLR and its teams total far less than this amount, the Board should decline to assert jurisdiction. Petitioner contends that the Board has statutory jurisdiction over the Employer, and that the Board should assert its discretionary jurisdiction because professional team rodeo is an interstate enterprise by nature, similar to other professional sports over which the Board has asserted jurisdiction without establish- ing a specific monetary jurisdictional standard. It fur- ther argues that even accepting, arguendo, the Em- ployer's asserted 1978 gross income as valid, its revenues are not insubstantial. Finally, Petitioner ar- gues that the Board should assert jurisdiction on the basis of Tropicana Products, Inc.,5 because the Em- ployer failed to respond adequately to the subpenas relevant to the Board's jurisdictional determination. The stipulation of the parties with respect to the out-of-state expenditures of' the League and its con- stituent members establishes that the Employer is en- gaged in commerce within the meaning of Section 2(6) of the Act, and that, therefore, the Board has statutory jurisdiction over the Employer. In addition, we conclude that assertion of our discretionary juris- diction over professional team rodeo is warranted. Professional team rodeo is an interstate enterprise. The games are held in six States in the western por- tion of the country, and involve travel across state lines by the teams. Thus, any labor disputes which may arise in the industry will be at least regional in scope, and will radiate their impact far beyond indi- vidual state boundaries.' The gross income information in the record varies considerably and, as discussed in/ra, is largely unreli- able. The Employer, however, in the document it sub- mitted summarizing its revenues, conceded that it re- ceived in excess of $281,000 during its first season. Furthermore, as set forth above, the parties stipulated that, during the past fiscal year. each constituent member of the League, respectively, made out-of- state purchases in excess of $50,000. Based on the foregoing, we find that the Employer has a substan- tial impact on interstate commerce. 7 122 NLRB 121 1958). See The American League oI ProJessional Basehbal (lubs 180 NLRB 190 (1969). 7 /lusia Jai.4lai Inc. 221 NLRB 1280 (1975). The Employer urges us to apply our $5(00,.000 retail jurisdictional standard to professional sports em- ployers. he Board, in its assertion of jurisdiction over professional sports employers has not previously established a specific discretionary jurisdic- tional standard, and we decline to do so herein See The North American Soccer lcague and its Constituent Member Clubs, 236 NRB 1317 (1978); 744 MAJOR I.tA(;lF RODI)Ft IN(C. Accordingly. in view of the interstate nature of the industry, and its impact on commerce, we find that a labor dispute involving professional team rodeo will have a substantial effect on commerce. We therefore conclude that the Employer is engaged in commerce within the meaning of the Act. and that it will effectu- ate the purposes of the Act to assert jurisdiction herein.8 Furthermore, we find. based on the facts set forth above, that the Employer has refused, upon reason- able request by Board agents, to provide the Board with information relevant to its jurisdictional deter- mination. The custodians of the records for each team were served with subpoenas duces lecum requiring them to appear with books and records relevant, inter alia, to the gross revenues of their team. or to present a notarized, signed statement from an authorized team representative which provided the requested in- formation. Only one of the teams' custodians of the records appeared at the hearing, and most of his testi- mony was stricken from the record because he re- fused, on advice of counsel, to answer certain ques- tions relevant to jurisdiction on cross-examination. The Employer produced the books and records of only two teams, and produced no notarized state- ments which met the requirements of the subpenas. As a result, the record, with respect to the Employer's gross revenues, consists primarily of unsubstantiated assertions by the Employer. In these circumstances. and inasmuch as the Board's statutory jurisdiction has been established, we find it appropriate, in any event, to assert jurisdiction herein.' 2. Petitioner claims to represent certain employees of the Employer. Major League Rodeo Players Asso- ciation (MLRPA) was organized in July and August 1978 by William Hines, who currently serves as its acting director. Among its purposes, as set forth in its constitution, is to promote and advance all rodeo players through "the negotiation. execution and ad- ministration of collective-bargaining agreements. Hines was aided in his organizing effort by Ernie Wright. western regional director of the National Football League Players Association (NFLPA). and by Professional Athletes International. an affiliation I 'oluluI Jai .4A /, I . upra A4 ncmruan Bavlrhball.4 c AI notl Pc cr .4A solxi aton, 215 N IRB 280 ( 19741; .N'uaonl Fibhuall L eagu' faInieiitrnl ( ound iil 203 NlRB 958 (1973). reversed on other grounds 5()3 2d 12 (lb ('ir 1974): and .4 mcri'an League of Pro/ssioncl Rachcll ( luh.c. supra ('Conlrar, to the Imployer's contentions Member Penello finds nine ot the reasons r the Board's declining to assert jurisdctlion over the horserac- ing indusIr is applicable here. Professional team rodleo is not highly regu- lated b the States. and the industr is essentially interstate. rather than local in nature. t:urther. the work force in the unit sought is suficientlN stable that it does not present the difficult administrative problems assocl- ated with the horseracing industry. Sec. 103 of the National I.abor Rela- tions Board Rules and Regulations. Series 8. as amended. Chairman an- ning and Members ruesdale believe that, In ny event. the Board should reconsider Sec. 103 3 of its Rules and Regulations. See their dissenting opin- ion in .4Amercun *tahsaiocr (ncipan. Inc . 243 Nl.RB 314 (19791 Tropicana Prouc is. lt , upra. of existing sports players' unions. Hines testified with- out contradiction, however, that MI.RPA was not af- filiated with any other labor organization. At the hearing, the Employer contended that Peti- tioner was not a labor organization nor, in the alter- native. that it was affiliated with the NFI.PA. and such affiliation should appear on the ballot in the event an election is directed herein. These contentions were not raised in the lmployer's post-hearing brief to the Board. We find no merit in the Employer's contentions. We conclude that Petitioner is a labor organization within the meaning of Section 2(5) of Act. and that it was not affiliated with any other labor organization at the time of the hearing. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 2(6) and (7) and Sec- tion 9(c)( I) of the Act. 4. Petitioner seeks to represent a unit including all rodeo players on the Employer's active and inactive lists, and all players who have played out their con- tracts, excluding managerial personnel. all other em- ployees and supervisors as defined in the Act. The Employer agrees that players on the active and inac- tive lists are properly included in the unit, but con- tends that players who have played out their con- tracts should not be included in the unit. The record discloses that each player signs a stan- dard contract with his or her team which initially binds the player to the team from the time of signing until December 31 of the same year. The contract provides that during December of the first contract year the team can, b exercising a one-time option. compel the player to play for an additional 2-year period at the same compensation rate as the first year. The contract further allows the team to trade the player or to terminate the contract. it; "in the sole opinion of the team," the player's services are deemed "not sufficient." Also. as noted above. the League can declare a contract null and void if the team fails to meet its obligations under the contract. Players can be on a team's active list or its inactive (or reserve) list. Players on the active list are those currently playing in games. The inactive list includes players held in reserve who do not actually compete in gamnes. players temporarily disabled,. or placers un- der suspension by the commissioner. During the Employer's first season of operation. 1978. each team had 16 players on the active list and 9 on the inactive list. For the 1979 season, the board of representatives decided to increase the active list to 18. and decrease the inactive list to 2. The teams begin their official player selection pro- cess in l)ecember. when they must exercise their op- tions on players with initial contracts. Players are 745 I)t.(ISI()NS OF()1 NA I ()NAI .A13()R Rl.A I I()NS O()ARI) deemed to have played out their contracts if their team fails to exercise their options, or ' ,lhen they have played the full 3 years under a contract. Ihec then become free agents. Players previousl) employed by an expelled team. e.g.. San Antonio, along with all other persons seeking a position on a team, are also free agents. Free agents can sign with any team until they are selected by a team in the League's annual dra ft. The draft occurs in the first few months of the cal- ender year. The frmal procedures for the draft for the 1979 season had not been established by the board of representatives at the time of' the hearing. but the tea ms essentially will take turns selecting players from the pool of free agents. Once a player is selected, he or she may only be employed by the se- lecting team. All teams were to have completed their preliminary hiring by mid-March. Team tryouts and practice ses- sions then were to have been held and, based on these preliminary sessions, the teams were to make their final active and inactive list selections. The 1979 regu- lar season was to begin in early April and continue through August. Petitioner asserts that the appropriate unit also should include players who have played out their contracts because they are essentially between con- tracts, most likely seeking employment with the same or different teams for subsequent seasons and are sub- ject to the League's draft. In addition, Petitioner con- tends that these players share a community of interest with players who continue under contract with regard to wages, hours, and working conditions fr the up- coming season, as well as with respect to procedures lIr. and restrictions on, seeking cmplo nicnt with other tean1s. The t mployer contendts that players who have played out their contraclts are no longer employees of a team, and have no expectation of further employ- ment with a teaini. It argues, therefore, that they should be excluded froim the unit. As of' the time of the hearing, the fimployer had completed its first season of operation, all players were under their initial contracts, and the 1979 draft had not yet been conducted. Thus, as of the time of' the hearing the hiring practices of the teams with re- spect to players who have played out their contracts had not had sutficient time to develop. Further, there is no other basis in the record fr determining the degree to which a player who has played out his or her contract has a reasonable expectation of reem- ployment with the mploer. We therefore shall not include in the appropriate unit players who have played out their contracts. Accordingly we find that the fllowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of' the Act: All professional rodeo players employed by Ma- jor League Rodeo. Inc.. and its constituent mem- bers, including players on the active list and players on the inactive list: excluding all officials of' Major l eague Rodeo. Inc., all managerial or executive personlnel of Major League Rodeo. Inc.. or its constituent members, and all other employees and ,sulpelnisors, as defined in the Act. [D)irection of Il'lection and F.cclso lfootnote omitted from publihcation.] 740