WIlliam H. Dixon

National Labor Relations Board - Board DecisionsMar 3, 1961

130 N.L.R.B. 1204 (N.L.R.B. 1961)

1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Angeles Turf Club, Inc., 90 NLRB 20, at 21-22, and Olympia Stadium Corporation, 85 NLRB 389, point to the conclusion, which we reach, that the Employer's operations, while not unrelated to commerce, are essentially local in character. As, in our opinion, the effect of labor disputes involving such operations is not sufficiently substantial to warrant the exercise of our jurisdiction, and as we have declined to assert jurisdiction over racetracks which are indispensable to such operations, we have determined to decline jurisdiction over the Em- ployer and similar operations, thereby leaving the States free to assert their jurisdiction. See Pinkerton's National Detective Agency, Inc., supra. Cases like Radovich v. National Football League, 352 U.S. 445; U.S. v. International Boxing Club, 348 U.S. 236; and United States v. Shubert, 348 U.S. 222, do not compel a different result. They hold the activities there discussed constituted commerce; but, as pointed out above, we recognize that the operations of the Employer in the instant case are not wholly unrelated to commerce. Similarly, we do not regard Toolson v. New York Yankees, 346 U.S. 356, and Federal Base- ball Club v. National League, 259 U.S. 200, as dispositive. In view of the foregoing disposition we do not reach the question of which part of the Employer's operations, if any, have been excluded from our jurisdiction as a matter of law, under Section 2(3) of our Act, because they employ "agricultural labor." Accordingly, the parties are advised that the Board would not assert jurisdiction over the operations of Meadow Stud, Inc., with respect to labor disputes cognizable under Sections 8, 9, or 10 of the Act. William H . Dixon and Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent. Case No. A0-18. March 3, 1961 ADVISORY OPINION In this case we are requested to render an advisory opinion as to whether we would assert jurisdiction over the operations of an em- ployer engaged as a public trainer of thoroughbred racehores. The case is before us on a petition filed by William H. Dixon, the Em- ployer, pursuant to Section 102.98 (a) of our Rules and Regulations, Series 8. Preliminarily, we believe it relevant to observe that the petition does not conform to long-recognized practices that pleadings, al- though setting forth all'relevant facts, should not plead the support- ing evidence, and should be clearly legible. In the instant case the petition incorporates and sets forth ad verbum the testimony of one 130 NLRB No. 122. WILLIAM H. DIXON 1205 Gerard S. Smith before the New York State Labor Relations Board. Mr. Smith's testimony, in question-and-answer form, also in part in- cludes matter which does not bear upon the present case, such as testi- mony qualifying him as a witness, and his military service. This testimony, which is set forth in 38 pages attached to the petition, appears to be a photographic reproduction of a transcript and in many instances is quite blurred as to be very difficult to read. We are of the opinion that Mr. Smith's testimony could and should have been succinctly summarized in narrative form, thus enabling the respond- ent herein to reply to factual assertions, and that the photographic copy of typewritten matter should have been submitted in more legible form. However, we have considered the entire petition. I. In relevant part, the petition discloses the following: On November 3, 1960, Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, of America, In- dependent, filed a petition with the New York State Labor Relations Board, docketed as Case No. SE-33844, to be certified as the repre- sentative of the Employer's grooms. About 57 other petitions in- volving other trainers and owners "who are similarly situated" are also pending before that Board. The Employer, a resident of Pennsylvania with his principal office in that State, "will have bred, foaled , raised and raced thoroughbred horses" in West Virginia, Pennsylvania, Delaware, Maryland, New Jersey, Lousiana, and New York in 1960. He is described as a public trainer. A public trainer is a person engaged in training the horses of others. Training a horse is necessary to prepare it for racing. Such training generally occurs in one or more places where the owners bring their horses and at which the public trainer operates. Such places may be in more than one State. The horses are then moved from State to State to race, and are accompanied by grooms. A flat per diem per horse is paid the trainer by the owner, which includes feed, bedding, grooms, shoeing, and training fee. Trainers are licensed in each State in which they operate. Trainers, grooms, own- ers, and employees of trainers and owners must be licensed to work at New York tracks. The Employer has a farm in Malverne, Pennsylvania, where he keeps a brood mare and another horse, and where he keeps his books and receives and pays "all bills." He keeps other thoroughbreds in need of breaking, rest, or recuperation at a nearby farm in Union- ville, Pennsylvania. He breeds and sells thoroughbred horses for his own account. During 1960, he trained and raced horses for owners who were residents of New Jersey, Delaware, Pennsylvania, and Virginia. 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During 1960 the Employer "shipped more than 24 racehorses worth hundreds of thousands of dollars over state lines many times." His "income inflow" from training fees and sales of horses "from out of the State" of Pennsylvania has exceeded $50,000, of which but $800 was received for operations in New York. During the past year the Employer's "outflow in expenses" has exceeded $50,000. Such "out- flow" consisted of salaries and wages earned by his employees in West Virginia, New York, Delaware, Maryland, and Virginia; animal feed purchased in these States but "originally ... raised and shipped" from Canada and various Western States; travel; transportation; equipment; and track. The petition also alleges that the Employ- er's operations "have ben examined by field auditors of the Wage, Hour and Public Contracts Division of the Department of Labor and [he] is subject to the jurisdiction of said divisions." II. A response has been submitted by Local 917. It fails to conform to Section 102.101 of our Rules and Regulations which requires that the response admit or deny the allegations of the petition. Nevertheless we have considered it. Insofar as it confirms the allegations of the petition, its allegations need not be narrated. But the response also avers that the Employer, a public trainer, does not engage in breeding or transporting horses "except for a horse [he] may own"; that breeding and transporting are done by owners; that the petition is inaccurate when it states that the Employer ships horses, because he merely arranges for the shipping of an owner's horses; that a trainer does not sell horses, but that he may arrange for a sale on behalf of the owner; and that thoroughbreds are bred, bought, and sold by owners. Other facts pleaded by the response de- clare that sales of horses usually take place at regularly held local auctions; that horseracing is generally local in nature; that breeding is local, so that mares are sent to the place where the stud is located; and that much of the activity connected with horseracing, other than breeding, occurs in New York during the 81/2 months the tracks op- erate there. It concludes with the contention that horseracing is pri- marily local in nature as indicated in Hialeah Race Course, Inc., 125 NLRB 338, "and other cases," and that the Board has declined to exercise jurisdiction over "such activities." III. A brief submitted by the Employer contends that the Board should assert jurisdiction over the operations of public trainers whose volume of business meets the Board's standards for assuming jurisdiction over nonretail enterprises. Succinctly summarized, this position is based on three major factors, as follows: WILLIAM H. 'DIXON 1207, 1. The business of breeding, training, and racing thoroughbred horses, being a multistate operation, and involving much transporta- tion, has a wide substantial impact on commerce. 2. This Board has never declined jurisdiction over the business of breeding, training, and racing of thoroughbred racehorses. Cases like Hialeah Race Course, Inc.,' 125 NLRB 338, and Pinkerton's National Detective Agency, Inc., 114 NLRB 1363, are alleged to be distinguish- able on the ground that in those cases, unlike here, the racetrack (a) owned real estate in only one State, (b) did not transport horses into or out of the State, (c) 85 percent of the racetrack employees "were required" to be local residents, and (d) the racetrack employees worked for their employers only in that State. 3. No single State can effectively control labor relations in this field. In addition, only 3 States out of 15 where training and racing occur have any general labor relations acts. Hence Board declination of such labor relations will leave them to "ineffectual, partial" jurisdiction. A supplemental brief was also filed by the Employer and has been considered. On the other hand, Local 917, as noted above, argues that such op- erations are primarily local and, as indicated by Hialeah Race Course, supra, "and other cases," the Board should withhold its jurisdiction over such activities. We recognize that we have not previously passed upon the precise question of whether we should extend the powers conferred on us by the Act to embrace the operations of public trainers. We are of the opinion that we are vested with legal jurisdiction over the Employer's operations and that they are not entirely unrelated to commerce. Nevertheless, to the extent that they are not agricul- tural within the meaning of Section 2(3) of our Act, we consider them to be essentially local in nature. Hence we do not believe that it would effectuate the policies of the Act to assert jurisdiction here. In Meadow Stud, Inc., AO-17, 130 NLRB No. 121, we set forth the underlying considerations which prompted us to adopt a policy of nonassertion of jurisdiction as to racehorse owners. Because the train- ing of such horses by public trainers is so closely interwoven with the functions of the owners in ultimately entering such horses in races, similar consideration should govern the policy to be followed in ac= serting or not asserting jurisdiction over them. Consonant with the decision in Meadow Stud, Inc., supra, and for the reasons there ex- pressed, we decline to exercise jurisdiction over the operations of the Employer herein. Contrary to the assertion of the Employer, we do not believe that our declination of jurisdiction over public trainers will leave this area of labor relations unregulated. We do not believe that State "labor 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relations acts" are the only means of regulation. Nor do we regard State labor relations boards as the only State tribunals through which a State may assert jurisdiction over labor disputes, especially in view of the congressional policy ceding to any State agency or any State court jurisdiction in those areas where we decline it. Since our decli- nation of jurisdiction over public trainers, as well as nearly all other closely related phases of racing, leaves the States free to assert juris- diction, we adhere to the conclusion that our declination of jurisdiction will not defeat the purposes of our Act. Since we had not established any standard for such enterprises prior to August 1, 1959, nothing in Section 14(c) (1) of our Act prevents us from declining jurisdiction over public trainers. By reasons of the above result it has become unnecessary to deter- mine which specific activities of the Employer, if any, are agricultural under Section 2 (3) of our Act. Redwing Carriers , Inc. and Rockana Carriers , Inc. and Team- sters, Chauffeurs and Helpers Local Union No. 79, Inter- national Brotherhood of Teamsters , Chauffeurs,. Warehouse- men and Helpers of America and Willie P. May. Cases Nos. 10-CA-1021,'12-CA-1022, 12-CA-1023,12-CA-1025, 12-CA-10061 . 12-CA-1027, 12-CA-1008,12-CA-1060, and 12-CA-1102. March 6, 1961 DECISION AND ORDER On May 19, 1960, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report atached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent that they are consistent with the following Decision and Order.' The Respondent is a common carrier and for years has carried on regular hauling operations by truck from and to the plants and mines ' The Respondent's request for oral argument is denied as the record, including the briefs, adequately presents the issues and the positions of the parties. 130 NLRB No. 113.