Centennial Turf Club, Inc

National Labor Relations Board - Board Decisions

Aug 17, 1971

192 N.L.R.B. 698 (N.L.R.B. 1971)

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Centennial Turf Club, Inc and Local 961, Affiliated
with ' the 'Internatlonal .;Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-,
ca. Case AO-134
August 17, 1971
ADVISORY OPINION
BY CHAIRMAN Mu .ER AND MEMSERs
FANNING AND KENNEDY
Petition herein was filed April 20, 1971, by Local
961, affiliated with the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, pursuant to
Sections 102.98 and 102.99 of the National Labor
Relations Board's Rules and Regulations , Series 8, as
amended. Thereafter, Centennial Turf Club, Inc.,
herein called the Employer, filed on April 21,1971, a
Response to Petition for Advisory Opinion and
Motion To Dismiss Same.
In pertinent part, the petition and response allege
that:
1. There are presently pending before the courts of
the State of Colorado, two proceedings; one before
the Supreme Court of the State of Colorado, docketed
as Case No. 24900 and the other in the District Court
for the County of Arapahoe, State of Colorado,
docketed as Civil Action No. 28816. The Supreme
Court proceeding results from an attempt by the
Director of the Division of Labor of the State of
Colorado to enjoin the Union from picketing the
premises of the Employer, and his appeal from the
trial court's refusal to grant the injunction. In the
district court proceeding, the Union is seeking judicial
review of a determination of the director of the
division of labor that the Employer was not guilty of
certain unfair labor practice charges brought against
it by the Union.
2. The Employer is a Colorado corporation which
operates a thoroughbred horseracing meet for ap-
proximately 60 racing days each summer in Littleton,
a suburb of Denver, Colorado, and, through a
subsidiary, The Rocky Mountain Quarter Horse
Racing Association, it operates a quarter 'horse race
meet for an additional 30 racing days each year. The
principal stockholder of the Employer is Emprise
Corp., which either directly or through controlled
subsidiaries has controlling interests in the operation
of dog- or horse-racing meets in Arkansas, Arizona,
New Mexico, and New York. In addition, Emprise
Corp., either directly or through its majority stock
1 Walter A. Kelley, 139 NLRB 744.
2 On March 22, 1970, the Regional Director dismissed the Employer's
representation petition in Case 27-RM 318 and on April 22, 1970, he
dismissed the union's unfair labor practice charge in Case .27-CA-2937.
holders, controls one or more subsidiaries 'which
operate concessions both at the tracks controlled by
Emprise Corp., and at other tracks in Nebraska and
South Dakota
3. The Union alleges that the Employer's share of
track revenues during the most recent annual period
for which a report is available was $2 ,075,886. During
the same period the quarter horse subsidiary's share
was $428,960.
4. In its response the Employer requests that the
petition be dismissed on the grounds that the Board,
having declined jurisdiction over the horseracing
industry,' has not established a jurisdictional stand-
ard for racetracks and that a petition for advisory
opinion is not a proper vehicle for raising the issues
presented in this matter . The Employer asserts
generally that the Union's allegations relating to the
nature of its business and commerce data furnished
by the Union are incomplete and misleading. Except
for this broad statement, the Employer has not denied
the nature of its business and the commerce dollar
volume allegations nor has it affirmatively alleged
what such nature and volume are , despite its peculiar
knowledge of them.
5. Neither the director of the division of labor, nor
the state trial court has made findings with respect to
the aforesaid commerce data.
6. There is no representation or unfair labor
practice proceeding involving the same labor dispute
pending before the National Labor Relations Board.2
On the basis of the foregoing, the Board is of the
opinion that:
1. The Employer is a Colorado corporation
engaged in the operation of a thoroughbred horse-
racing meet in Littleton, Colorado.
2. Although the operations of the Employer as a
part of the racing industry are related to interstate
commerce, the Board has repeatedly declined to
assert jurisdiction over horseracing and cognate
enterprises, thereby leaving the State free to assert its
jurisdiction. Walter A. Kelley, supra; Hialeah Race
Course, Inc., 125 NLRB 338; Jefferson Downs, Inc,.
125 NLRB 386; Pinkerton 's National Detective Agen-
cy, Inc., 114 NLRB 1363; and Los Angeles Turf Club,
Inc., 90 NLRB 20. These cases have concluded that
racetrack operations, such as the Employer's herein,
while exercising some impact upon interstate com-
merce, are essentially local in character . Since we are
still of the opinion that the effect of labor disputes
involving racetrack enterprises is not sufficiently
substantial to warrant the assertion of our jurisdic-
tion, we shall decline to do so over the Employer.
The Employer did not appeal the dismissal of the representation case,
while the Union's appeal from the dismissal of the unfair labor practice
charges was denied by the General Counsel.
192 NLRB No. 97
i
CENTENNIAL TURF CLUB
Accordingly, the parties are advised under Section
102.103 of the Board's Rules and Regulations , Series
8, as amended, that the Board would not assert
jurisdiction over the, operation of Centennial Turf
Club, Inc., with respect to labor disputes cognizable
under Sections 8, 9, or 10'of the Act.
MEMBER FANNING, dissenting,
To advise these,parties that the Board would not
assert jurisdiction over this Employer is, in my view,
misleading. Themajorityrelies, principally, on Walter
Kelley, 139 NLRB 744.-The decision in Kelley was
based almost entirely on the extent to which racing is
regulated by the States. Much has happened since
Kelley was decided. In El Dorado, 151 NLRB 579, the
Board asserted jurisdiction over gambling, despite a
699
strong argument that it should not do so because of
the extent to which that industry was regulated by the
State of Nevada . And the . Board has since - asserted
jurisdiction over private hospitals and nursing homes
(Butte Medical Properties, d/b/a Medical Center
Hospital, 168 NLRB 266 University Nursing Home,
Inc., 168 NLRB 263), over nonprofit colleges and
universities (Cornell University and Syracuse Universi-
ty, 183 NLRB No. 41), and over professional baseball
(The American League of Professional Baseball Clubs,
180 NLRB No. 30). After those cases I can see no
basis for adherence to Kelley other than that we once
decided it that way. That is not enough, and I would
advise these parties that the Board, upon a proper
proceeding, would reach a different result now.