Elliott Burch

National Labor Relations Board - Board Decisions

Jul 26, 1977

230 N.L.R.B. 1161 (N.L.R.B. 1977)

ELLIOTT BURCH
Elliott Burch, Employer-Petitioner and Truckdrivers
Local No. 807 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America. Case AO- 191
July 26, 1977
ADVISORY OPINION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS, PENELLO, AND MURPHY
A petition and attachment were filed on October
28, 1976, by Elliott Burch, herein called the Employ-
er, for an advisory opinion, pursuant to Sections
102.98 and 102.99 of the Board's Rules and Regula-
tions, Series 8, as amended, seeking to determine
whether the Board would assert jurisdiction over the
activities of the Employer. On November 9, 1976, the
New York State Labor Relations Board, herein
called the State Board, filed a response to the
petition.
In pertinent part, the petition and the State Board's
response allege as follows:
i. There is presently pending before the State
Board a petition for investigation and certification of
representatives, docket No. SE-49939, filed by
Truckdrivers Local No. 807, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, seeking
certification as bargaining representative of "all
stable employees, licensed by the State of New York,
excluding supervisors, foremen and watchmen, em-
ployed by the Employer at any racetrack in New
York State." Race Track and Backstretch Employees
Division International Union of Dolls, Toys, Play-
things, Novelties and Allied Products of the United
States and Canada, AFL-CIO, intervened in the
State Board proceeding.
2. The Employer is a horse trainer for a private
stable which keeps horses at Belmont racetrack in
New York, and breeds horses in Virginia and
Kentucky and in England. The stable races horses in
New York and various other States, and also in
foreign countries. The Employer's stable employees
spend the majority of their working time in New
York State. At various times during the year, the
stable employees perform their work in other States.
In 1975, the Employer's stable spent over $160,000
for feed and bedding, much of which originated in
i Under Sec. 103.3 of the Board's Rules, the Board will not assert
jurisdiction in any proceeding "involving the horseracing and dogracing
industries."
2 Member Murphy would agree that the Board should extend the
substance of its advisory) opinions beyond the routine question of whether
the Board's discretionary dollar volume standard is met. Cf. her dissenting
opinion in Springfield Library and Museums Association, 221 NLRB 1209,
1210 (1975). in which she indicated that statutory and discretionary
230 NLRB No. 169
States other than that to which it was delivered;
spent over $115,000 to transport horses to and from
New York State; and its payroll, including costs and
benefits, was approximately $800,000, of which about
75 percent was paid to employees involved in
racetrack activities in New York State and 25 percent
for time spent outside of New York State. In 1975,
the Employer's stable spent about $450,000 to
purchase horses and received over $4,900,000 for the
sale of horses. The purchase and sale transactions
involved the delivery of horses to and from New
York State. The Employer's gross purses won in 1975
were approximately $475,000, of which about 70
percent was won in New York State.
3. The above commerce data has been neither
admitted nor denied by the Unions, nor has the State
made any findings with respect thereto.
4. There are no representation or unfair labor
practice proceedings involving this labor dispute
pending before this Board.
5. Although served with a copy of the petition for
advisory opinion, the Unions have filed no response.
As noted above, the State Board has filed a response
to the petition.
On the basis of the above, the Board is of the
opinion that:
1. The Employer is a horse trainer for a private
stable and breeds horses in Virginia, Kentucky, and
England. The stable races horses in the United States
and in foreign countries. The Employer's stable
employees perform their work in New York State
and other States.
2. The thrust of the Employer's petition is that in
view of the Board's assertion of jurisdiction over the
gambling industry, private hospitals and nursing
homes, nonprofit colleges and universities, and
professional baseball, the Board should reexamine its
policy of declining to assert jurisdiction over the
horseracing industry.' The State Board in its re-
sponse to the petition for advisory opinion contends
that the Board should advise the parties that it would
not assert jurisdiction by virtue of Section 103.3, fn.
I, supra, or dismiss the petition as inappropriate
because, under Section 102.98 of the Board's Rules
and Regulations, Series 8, as amended, the only
purpose for which an advisory opinion may be
obtained is whether the Board would assert jurisdic-
tion on the basis of its current standards. 2
jurisdiction should be determined in the same proceeding: and American
Federation of Television and Radio Artists, AFL-CIO (William F Buckley,
Jr.), 222 NLRB 197 (and particularly the last paragraph of fn. 14 at 199)
(1976), which involved a petition for a declaratory order. Member Murphy
notes that Chairman Fanning in this case has reached issues other than the
Board's discretionary jurisdictional standard notwithstanding that those
other issues and arguments have not been made here and are not before the
Board. Although Member Murphy would be pleased to see this approach
(Continued)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under Section 103.3 of the Board's Rules, the
Board will not assert jurisdiction over any portion of
the horseracing industry, including that portion in
which the Employer herein is involved. Moreover,
the Board's advisory opinion proceedings are de-
signed primarily to determine questions of jurisdic-
tion by application of the Board's discretionary
monetary standards to the "commerce" operations of
an employer,3 and reexamination or reconsideration
of Board policy or of its Rules does not fall within
the intendment of the Board's advisory opinion rules.
Accordingly, we shall dismiss the petition herein.
It is hereby ordered that, for the reasons set forth
above, the petition for an advisory opinion herein be,
and it hereby is, dismissed.
CHAIRMAN FANNING, concurring:
While I agree that reconsideration of a Board rule
does not fall within the intendment of the Board's
advisory opinion rules, I will set forth the reasons
why I believe Section 103.3 of the Board's Rules is
wrong, why the Board should reconsider its rule
upon the filing of a proper proceeding, and why the
Board should assert jurisdiction over the horseracing
industry, as the Employer-Petitioner urges us to do.
In Walter A. Kelley, 139 NLRB 744 (1962), which
involved RM petitions filed by five owners or
trainers of racehorses, the Board declined jurisdic-
tion over the horseracing industry on the grounds
that horseracing was subject to extensive state and
local regulation. As a weak "moreover," the Board
said that it was unlikely that a labor dispute in this
industry would have very serious repercussions on
interstate commerce. It added that its declination
was not irrevocable and that it would not hesitate to
reconsider its policy in this area.
Thereafter in El Dorado, Inc., d/b/a El Dorado
Club, 151 NLRB 579 (1965), the Board asserted
jurisdiction over legalized gambling in Nevada in the
face of a strong argument that it should decline
jurisdiction in view of the extent of state regulation
of the industry. Nevertheless, although the "extent of
state regulation" as a ground for declining jurisdic-
tion apparently vanished with El Dorado, the Board
in Centennial Turf Club, Inc., 192 NLRB 698 (1971)
(I dissented), again declined jurisdiction over horse-
racing; the grounds were that it had declined
jurisdiction over horseracing in the past, that
horseracing is essentially local in character, and that
the effect of labor disputes involving racetracks is not
adopted by the Board, and commends Chairman Fanning for apparently
adopting her view on the expansion of the function of advisory opinions, she
is not taking any position herein on the possibility of modifying the Board's
jurisdictional holding concerning the horseracing industry.
3 See Follet Corporation, 223 NLRB 800 (1976): Pennsylvania Labor
Relations Board (George Junior Republic), 215 NLRB 323 (1974): Globe
sufficiently substantial to warrant asserting jurisdic-
tion.
Next came Section 103.3 of the Board's Rules,
from which I also dissented, by which the Board
formally indicated it would not assert jurisdiction
over the horseracing and dogracing industries. The
reasons given were: that the Board had declined
jurisdiction in the past; that the States have extensive
control over the industries; the sporadic nature of
employment in the industries which encourages
temporary part-time workers; much turnover and an
unstable work force; and that there have been
relatively few labor disputes in the industries in
recent years.
With respect to the reasons given for Rule 103.3, as
stated above, it appears obvious that the fact that the
Board had declined jurisdiction in the past is, in fact,
no reason at all. The Board specifically stated in
Walter Kelley that it would not hesitate to reconsider
its policy. Likewise, the fact that the States have
extensive control over the industry is no longer a
valid reason in light of our assertion of jurisdiction
over not only gambling but jai alai, 4 where the States
exercise even more extensive control than over
horseracing. The next reason for declining-the
sporadic nature of employment in the industry-also
has little validity. For the trend toward year-round
racing in the various States, for example, New York,
New Jersey, and Maryland, has produced, even
among employees who work directly for the race-
track, stable work forces which move from track to
track within these States. Employment of stable
employees involved here, who work directly for
trainers or owners, has always been quite stable since
the horses involved must be cared for on a year-
round basis.
The last reason asserted for declining jurisdiction,
the relatively few labor disputes in the industry, also
appears to be just another supportive type nonrea-
son. However, I note that just recently (March-April
1977) a labor dispute in Maryland closed down the
Maryland thoroughbred racetracks (Bowie and
Pimlico) for about a month and threatened to
destroy that State's horseracing industry.
Finally there is the assertion, left over from
Centennial, that horseracing is essentially local in
character. If anyone seriously believes that, a look at
the undisputed facts herein should dispel that belief.
Petitioner Elliott Burch keeps horses at the New
York tracks, at breeding farms in Virginia and in
England; breeds horses in Virginia and Kentucky;
Security Systems, Inc., 209 NLRB 35 (1974); Robert C Coleman, et al., 180
NLRB 529 (1969); International Air Service, Inc. of San Juan, Puerto Rico,
165 NLRB 584(1967).
4 Volusia Jai Alai, Inc., 221 NLRB 1280 (1975); Grand Resorts, Inc., 221
NLRB 539 (1975).
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ELLIOTT BURCH
and races horses in New York and various other
States. Burch spent over $160,000 for feed and
bedding in 1975, $70,000 of which was for feed
delivered to New York, and over $115,000 to
transport horses. Burch's payroll costs were about
$800,000 of which $555,000 was for employees
engaged in racetrack activities, and Burch won
purses of about $475,000 in 1975 of which 30 percent
came from races outside New York. Burch is only
one of many trainers who have similar operations
and are based primarily in New York.
It is clear that the activities of the Petitioner can
hardly be characterized as local in nature. And the
Petitioner represents only a microcosm of the
industry. For, according to the National Association
of State Racing Commissioners, figures for 1975
thoroughbred horseracing revenues to States
amounted to $581,645,638, the total parimutuel
turnover was $4,651,718,795, and $237,480,527 was
distributed in purses. Total attendance was
43,147,257 in 1975.
On the basis of the above figures alone, it is almost
inconceivable that the Board continues to decline
jurisdiction over the horseracing industry. But that is
: By coincidence such a dispute arose at Aqueduct on May 20, 1977.
" How many hot dogs do 43,147,257 people eat?
See the Fanning-Penello dissent in Bodle, Fogel, Julber, Reinhardr &
Rothchild, 206 NLRB 512, 515 (1973).
only part of the picture, for my colleagues have not
even considered the tremendous impact that the
horseracing industry has on other industries in
commerce. For example, we should consider the
impact that a labor dispute at Aqueduct5 or Belmont
would have on such industries as the food industry, 6
or the beverage industry, or the transportation
industry, to name only a few. In fact, in view of the
size of the horseracing industry and its substantial
impact upon commerce, I seriously question whether
the Board under Section 14(c)(1) of the Act can
exercise its discretionary authority to decline juris-
diction. For, under that section, the Board may
decline jurisdiction only if the industry involved does
not exert a substantial impact on commerce.7
Moreover, in making such determinations, the Board
must consider the impact on commerce of the totality
of operations of all employers, large and small, in
that industry.8
In conclusion, I believe the Board should assert
jurisdiction over horseracing and I again register my
opposition to Section 103.3 of the Board's Rules and
the view of my colleagues.
8 Id. See also N.LR.B. v. Fainblatt, 306 U.S. 601, 607-608 (1939), as
cases cited therein.
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