Coney Island, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1962

140 N.L.R.B. 77 (N.L.R.B. 1962)

CONEY ISLAND, INC. 77
Coney Island , Inc. and Ice, Storage, Scrap Material and Grain
Warehousemen, Local Union No. 105, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America, Petitioner. Case No. 9-RC-5020. December 11, 1962
DECISION ON REVIEW
On August 3, 1962, the Acting Regional Director for the Ninth
Region issued a Decision and Direction of Election in the above-
entitled proceeding. Thereafter, the Employer and the Intervenor,
Cincinnati Joint Executive Board Hotel and Restaurant Employees
and Bartenders International Union, AFI,-CIO, in accordance with
Section 102.67 of the Board's Rules and Regulations, Series 8, as
amended, filed with the Board timely requests for review on the
ground that the Acting Regional Director improperly asserted juris-
diction over the Employer's operation. The Board, by telegraphic
order dated August 23, 1962, granted the requests for review and
stayed the election.
The Board has considered the entire record in this case with re-
spect to the Acting Regional Director's determination under review,'
together with the parties' briefs, and makes the following findings : 2
The Employer is an Ohio corporation engaged in the operation of
an amusement park in Cincinnati, Ohio, which, including concessions,
consists of a midway, rides, games, and refreshments. The park is
open to the public during the summer months for about a 100-day
season which ends on Labor Day, and employs a maximum of about
500 employees. During each season, the park has approximately a
million visitors, of whom at least 10 percent are from out of the State.
The Employer's annual gross income from the operation of the park
is in excess of $500,000. Its purchases from out of State in 1961 for
items used for resale, or for repair of equipment at the park, were
$71,977; and it received new equipment, such as coaster cars, ticket
machines, and picnic tables, valued at $34,075 which likewise was
shipped from out of State. Newspaper, radio-TV, and miscellaneous
advertising during 1961 within the States of Kentucky and Indiana
amounted to $2,977. The Acting Regional Director found that the
volume of the Employer's business was sufficient to warrant the as-
sertion of jurisdiction over its operation.
5 The Employer , in its brief filed with the Board after review was granted, raised an
issue as to the appropriateness of the requested unit. As such issue was not timely raised
in the request for review, within the meaning of Section 102 67(d) and ( g), of the Board's
Rules and Regulations , Series 8, as amended, we shall not consider it herein.
2 We agree with the Acting Regional Director that the hearing officer properly revoked
the Intervenor 's subpena , as the essential information sought therein concerning the
Employer 's business operations was furnished by the Employer at the hearing and affords
an adequate basis for our jurisdictional determination herein. Monarch Rubber Company,
Inc., 129 NLRB 482, footnote 1.
140 NLRB No. 9.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In their requests for review, the Employer and the Intervenor con-
tend that the Acting Regional Director improperly asserted juris-
diction because the park is a local, seasonal operation whose impact
on commerce is minimal. We do not agree with this contention.
In our opinion, the foregoing circumstances, and particularly the
Employer's considerable out-of-State purchases, clearly demonstrate
that the operation involved has a substantial impact on commerce
within the meaning of Section 2(6) and (7) of the Act. We find,
therefore, in agreement with the Acting Regional Director, that the
Employer's operation, directly serving the consuming public, is retail
in character, and as its annual volume of business satisfies the Board's
jurisdictional standard prescribed for retail enterprises, it will ef-
fectuate the policies of the Act to assert jurisdiction herein.'
In accordance with the usual practice in operations of this kind,
the election shall be held at or about the approximate seasonal peak,
on a date to be determined by the Regional Director, among the em-
ployees in the appropriate unit who are employed during the pay-
roll period immediately preceding the date of the issuance of the no-
tice of election by the Regional Director. Accordingly, the case is
hereby remanded to the Regional Director for the Ninth Region for
the purpose of holding an election pursuant to his Decision and Di-
rection of Election, except that the payroll period for determining
eligibility shall be as described above.
MEMBER RODGERS, dissenting :
I do not agree with the sweeping principle set forth by the Board
majority in the Ray, Davidson and Ray case,' that it would effectuate
the Act's policies for this Board to exercise jurisdiction over enter-
prises forming part of the amusement industry. Such enterprises
are essentially local in character, and have slight, if any, interstate
impact.
The facts in this case show that this Employer's amusement park
operation is essentially local in character. I would, therefore, dis-
miss this petition.
MEMBER LEEDOM , dissenting :
I have already indicated my unwillingness to assert jurisdiction
over local enterprises in the amusement industry in my dissent in the
Ray, Davidson and Ray case, 131 NLRB 433. Since I find the facts
in this case to be strongly indicative of the local nature of the enter-
prise, I would, likewise, refuse to assert jurisdiction here.
Walter Carl Ray, et al, d/b/a Ray, Davidson and Ray, 131 NLRB 433 ( Member
Rodgers not participating and Member Leedom dissenting).
4 The case is reported at 131 NLRB 433. The report erroneously indicates that I joined
in the majority decision . The fact is that I did not participate in deciding the case