Hotel & Restaurant Employees, Etc., Local 343

National Labor Relations Board - Board Decisions

Aug 5, 1964

148 N.L.R.B. 208 (N.L.R.B. 1964)

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, 4459
Federal Building , 1520 Market Street, St. Louis, Missouri , Telephone No. Main
1-8100 , Extension 4142, if they have any questions concerning . this notice or com-
pliance with its provisions.
Hotel & Restaurant Employees & Bartenders International
Union, Local 343, AFL-CIO and Herman Turner and .Resort
Concessions , Inc., Party to the Contract. Case No. 3-CB-678.
August 5, 1964
DECISION AND ORDER
On April 1, 1964, Trial Examiner James T. Barker issued his Deci-
sion in the above-entitled proceeding, finding that it would not effectu-
ate the policies of the Act to assert jurisdiction over Resort Conces-
sions, Inc., and recommending that the complaint herein be dismissed,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the Respondent filed a brief in support of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision, the ex-
ceptions and briefs, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE - -
Upon a charge filed on June 21, 1963, by Herman Turner, an individual , the Act-
ing Regional Director of the National Labor Relations Board for Region 3, on Sep-
tember 4 , 1963, issued a complaint and notice of hearing designating Hotel &
Restaurant Employees & Bartenders International Union, Local 343, AFL-CIO, as
Respondent , and alleging violations of Section 8(b)(1)(A) and 8 (b)(2) of the
National Labor Relations Act, as amended, hereinafter called the Act. In its answer
the Respondent asserted that the operations of Resort Concessions , Inc., have no im-
pact upon commerce and, consequently, Resort Concessions , Inc., is not -engaged in-
commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent
further denied the commission of any unfair labor practices.
Pursuant to notice , a hearing was held before Trial Examiner James T. Barker at
Monticello , New York, on September 26, 1963. All parties were represented at the
hearing and were afforded full opportunity to be heard , to introduce relevant evidence,;
to present oral argument , and to file briefs with me. The General Counsel ' presented^
oral argument and on November 12, 1963, the Respondent filed-a memorandum of
law with me. - n^
148 NLRB No. 20.
HOTEL & RESTAURANT EMPLOYEES, ETC., LOCAL 343 209
Upon a consideration of the entire record, the oral argument of the General
Counsel, and the memorandum of the Respondent, and upon my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESORT CONCESSIONS, INC.
Resort Concessions, Inc., hereinafter called Resort, is a New York corporation en-
gaged in the concession and catering business at Monticello Raceway in the State of
New York.'
Monticello Raceway, hereinafter called Raceway, is a harness-racing track owned
and operated by Sullivan County Harness Racing Association, Inc. Resort has no
ownership interest in the track. Raceway derives its revenues from track admissions,
parimutuel wagering, and income from concession rentals and fees. It is subject
to regulation by the New York Harness Racing Commission. The raceway operates
annually from late May to the third week in September?
Resort leases from Raceway the space occupied at the track facility for the opera-
tion of its food and beverage concessions. These consist of several combination
stands at which food and beverages are sold; several bars at which alcoholic liquor
is dispensed; tobacco, candy, and ice cream stands; a pretzel stand; a grandstand
cafeteria; a stable cafeteria, and the Ichabod Crane Room restaurant. The stable
cafeteria is located in the paddock-stable area of the raceway while all other eating
facilities and concession stands operated by Resort are situated and installed through-
out the entire upper level grandstand area of the track. The fixtures used in con-
nection with the operation of Resort's facilities are owned by Resort 3
At the hearing, the parties stipulated that during the period ending December 1962,
Resort in the course and conduct of its business operations sold and distributed
products, the gross value of which exceeded $500,000 During the same period of
time, Resort received goods valued in excess of $50,000 transported to its place
of business either directly or indirectly from States of the United States other than
the State of New York. The parties further stipulated, with respect to the direct and
indirect purchases, that goods in the amount of approximately $20,000 were trans-
ported directly to Resort from outside the State of New York, while goods valued
in excess of $30,000 were received by Resort from enterprises located in the State
of New York which enterprises had received said goods and materials from States
other than the State of New York?
The General Counsel introduced credible evidence establishing that during the fiscal
year ending September 30, 1962, the total income of Resort from all- facets of its
raceway operations totaled $532,569 38. From this amount were deducted dis-
counts allowed on Diners Club and American Express credit cards and track charges.
Resort's total income during said fiscal period was $527,452.47.5
Except for the stable cafeteria, discussed specifically below, the facilities of Resort
at the raceway operate only during the racing season and, during the season, only
on days when racing actually occurs. If the track is closed at any time during the
season because of inclement weather or for other reasons, Resort's facilities do not
operate.
The stable cafeteria, or paddock-sportsman cafeteria, as it is also designated, is
maintained in the stable area and serves drivers, trainers, and owners of the horses
stabled at the raceway.6 The general public is served at the cafeteria only if allowed
1 The findings of fact herein are predicated upon credited testimony of Gilbert Singer
and Leon Greenberg as supported by documents in evidence and stipulations of the parties.
2In 1963 the season was from May 30 to September 21, inclusive, while in 1962'it ex-
tended from May 31 to September 22
8 These include refrigerators, soda master units, autobar units to serve the liquor, steam-
tables, tables, chairs, dishes, and silverware.
4 The General Counsel amended the commerce allegations 'of the complaint at the hear-
Ing and the stipulation conforms in pertinent aspects to the amended complaint
'Diners Club and American Express credit card charges during the fiscal period in
question totaled approximately $22,000. From this gross amount is deducted a crl'eetion
charge of from 6 to 7 percent, and the net amount realized by Resort from each trans-
action is-accordingly diminished by the amount of the credit charge The parties stipu-
lated that both Diners Club and American Express do business in States other than the
State of New York.
6 Also in the stable area is a commissary which is part of the leased premises and Is
the area in which Resort stores its commodities and supplies. -
760-577-65-vol. 148-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the paddock area by the guard whose duty it is to restrict unauthorized individuals
from entering the paddock area. Thus, during racing season and during the period
of approximately a month prior to the opening of the racing season no security
regulations are enforced and friends and relatives of owners and drivers, as well
as dignitaries and Government officials, are permitted into the paddock area without
regard to normal security regulation or the payment of an admission fee to the
track. When so admitted they may patronize the cafeteria. During 1962, receipts
from the stable cafeteria totaled $32,000.
Under the terms of a 16-year lease which became effective on September 26, 1961,
and will terminate on October 13, 1977, Resort is granted the exclusive right to
operate all food and beverage concessions located at the track. In exchange therefor,
and as rental upon the space and facilities occupied, Resort pays a semimonthly
rental during the racing season. The rental is based upon a percentage of the gross
receipts from all facilities, save the stable cafeteria, which, under the terms of the
lease Resort undertakes to operate so that the charges to the personnel using the
cafeteria do not exceed the cost of its operations.
The terms of the lease require that Resort keep and make available to Raceway all
accounts and records of gross receipts (as partially determined by daily cash reg-
ister readings); maintain the food and beverage concessions in a proper manner,
observing high standards of quality and cleanliness in the service of food and
beverages; comply with all statutes and ordinances of Federal, State, and village
governments; comply with all rules and regulations of the New York State Harness
Racing Commission and of the raceway; and employ only personnel licensed by the
New York State Harness Racing Commission. Further, under the terms of the
lease Resort is required to obtain and to continue in force liability insurance. More-
over, Resort is required annually to submit to Raceway a list of its stockholders.
Additionally, Resort is also subject to regulation and control by the New York
State Harness Racing Commission in that it must be licensed by the Commission,
paying an annual fee therefor, and is required to observe the rules and regulations
of the Commission with respect to the filing of reports and financial statements and
the maintenance of proper decorum at the raceway. The Commission's rules and
regulations, in conformance with the Pari-Mutuel Revenue Law of 1940, as amended
1954, require that officers of licensee companies and each employee thereof employed
at the raceway be licensed by the Commission, and as a requisite to being licensed
each applicant is fingerprinted and photographed. Penalties are assessed for violation
of the Commission's rules and regulations, and the penalty may include denial, revoca-
tion , or suspension of a license or a fine. Resort is required to submit a weekly
report to the Commission listing each of its employees and the amount of his
compensation.
Resort determines the retail price of meals and other foods which it serves at its
restaurant , cafeteria, and stands, and neither Raceway nor the Harness Racing Asso-
ciation has a voice in this determination.
Raceway draws its principal patronage from the tristate area of New York,
Pennsylvania, and New Jersey. The Rand McNally & Co. Standard Highway
Mileage Guide reveals that the city of Monticello, New York, near which the race-
way is located, is approximately 20 miles from the New Jersey State line and virtually
the same distance from the Pennsylvania border. Surveys conducted at the raceway
during July, August, and September, 1962, revealed that between 20 to 27 percent
of Raceway' s patronage traveled to the racetrack from the States of New Jersey
or Pennsylvania. Raceway spent approximately 35 percent of its advertising budget
in the State of Pennsylvania and approximately 16 percent in the State of New
Jersey.
In this connection , in order to attract patrons, Raceway through a variety of
advertising media offers a single price "package" arrangement which may 'include
in the price lodging , track admission , and dinner. Principally, however, its "pack-
age" features dinner in Resort's Ichabod Crane restaurant, a multilevel trackside
restaurant situated in the grandstand area of the raceway. Under the "package"
arrangement, the patron may dine in the Ichabod Crane Room while viewing, the
races. The cost of this "package" is the sum of the statutory $1.50 admission price
and the dinner price as set by Resort.' No other fees are included.
A "package" arrangement is offered to civic and service clubs, as well as other
groups. These groups vary in size from 15 individuals to 200. During 1963
approximately 300 such groups patronized the raceway and Resort on the basis
of "package" arrangements . One hundred and twenty-two of the groups were from
either the State of New Jersey or State of Pennsylvania . Resort's president, Gilbert
HOTEL & RESTAURANT EMPLOYEES, ETC., LOCAL 343 211
Singer, estimated that in 1962 , Resort realized approximately $23,000 in gross
revenue from dinners served under the "package " arrangement and that its 1963
gross from this source was approximately double.?
Conclusions as to Jurisdiction
The initial determination essential to be made in this proceeding is whether Resort
meets the Board's discretionary standards for the assertion of jurisdiction. The
stipulation of the parties clearly establishes legal jurisdiction, and the Respondent
does not dispute this. Respondent, however, contends, in effect, that in view of
the Board's declination of jurisdiction over racetracks, and the extensive integration
of Resort's operations with those of Raceway, which is subject to stringent regulations
by the State of New York, the impact of Resort's operations upon commerce is too
insubstantial to warrant the Board taking jurisdiction herein.
On the other hand, the General Counsel contends that the Board should assert
jurisdiction on the basis of its standard applicable to restaurants. It is the General
Counsel's position that it is the nature of Resort's enterprise and not considerations
respecting its location at a racetrack that should be decisionally determinative. The
General Counsel further contends that Resort's substantial impact upon interstate
commerce is established by reason of its gross volume of business which exceeds
$500,000 annually, its direct and indirect inflow which exceeds $50,000 annually,
and the interstate character of its clientele attracted by advertising conducted in a
tristate area.
Thus, presented is the question whether the Board will assert jurisdiction over a
restaurant and food concession enterprise that concededly meets the dollar amounts
established by the Board for the assertion of jurisdiction, but whose operations are
conducted exclusively at a racetrack.
The Board has determined that restaurants are retail establishments for jurisdic-
tional purposes and, accordingly, has asserted jurisdiction over restaurant operations
when the annual gross volume of business of the employer involved exceeds
$500,000.8
On the other hand, the Board has refused to assert jurisdiction over racetracks and
enterprises engaged in the horseracing industry.9
Recently, in the Walter A. Kelley case, the Board had occasion to consider whether
it would assert jurisdiction in a representation case involving the operations of an
employer who owned and trained thoroughbred racehorses and operated training
stables in two States. In declining to assert jurisdiction, the Board stated:
The Board has considered the evidence in the case and the arguments of the
Employer-Petitioners and concludes that, although the operations of the racing
industry affect commerce, the effect of labor disputes involving these employers
"is not sufficiently substantial to warrant the exercise of its jurisdiction." We
do so for the following reasons:
Horseracing as it now exists is a State-created monopoly, subject as such to
extensive local regulations. Practically every individual working at a track,
including grooms and exercise boys, the employees involved in these proceedings,
must be licensed by State regulatory authorities. Because of the important
revenue derived from racing activities, State governments have a strong interest
in insuring uninterrupted operations at racetracks. This interest extends not
only to the tracks, but to the owners and trainers of horses without whom tracks
could not operate. Consequently, unless the hands of State authorities are tied,
no labor dispute in this industry is likely to be permitted to last sufficiently long
to interfere seriously with interstate commerce. We believe that, because of
the unique nature of the racing industry, the regulation of labor matters govern-
ing employees should be left to the States, which under Section 14(c) (2) are
in a position to assume jurisdiction if the Board declines to do so. The Board's
° President Singer also estimated that the "groups average" in size from 100 to 175
individuals; I discount the accuracy of this for the reason that an application of even
the lower average to the number of groups served in 1963 under the "package" plan
would at the $4.25 realized by Resort from the package result in gross revenues nearly
three times that which Singer estimated Resort received from this source in 1963. I am
inclined, however, to believe Singer's estimate of the gross revenues derived from "package"
arrangements is reasonably accurate.
° See, e.g., Colonial Catering Company, 137 NLRB 1607, and cases cited therein.
9 'Walter A. Kelley, 139 NLRB 744; William H. Dixon, 130 NLRB 1204 ; Meadow Stud,
Inc., 130 NLRB 1202; Hialeah Race Course, Inc., 125 NLRB 388; Jefferson Downs, Inc.,
125 NLRB 386 ; Los Angeles Turf Club, Inc., 90 NLRB 20.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
limited resources can be better devoted to industries and operations where labor
disputes are likely to have a more substantial impact on commerce than disputes
in the racing industry.
The fact that the employees involved move across State lines is not alone
sufficient to justify the Board in asserting jurisdiction. It still remains true, in
our opinion , that a labor dispute in this industry is not likely to have very serious
repercussions on interstate commerce, and it is this latter factor which is deter-
minative of a decision whether to assert jurisdiction. Moreover, the employees
involved are already licensed and regulated by every State in which they work.
To subject other aspects of their relationship to possible multistate regulation
would therefore be merely to follow a pattern which already exists and to which
the employers presumably have accommodated themselves. Finally, the Board's
declination of jurisdiction is not irrevocable. If the Board's expectations are not
realized, it will not hesitate to reconsider its policy in this area. [Footnote
citations deleted.]
The Kelley case, like Dixon, Meadow Stud, Hialeah, Jefferson Downs, and Los
Angeles Turf, involved employers directly engaged in some phase of racing. How-
ever, in the instant proceeding, Resort, unlike the employers in the cases cited, is
engaged not in an enterprise, profession, or other capacity normally associated with
some recognized phase of horseracing but in an adjunct capacity.
The Respondent, however, in effect, cites the Board's decision in Pinkerton's Na-
lional Detective Agency, Inc., 114 NLRB 1363, as a case wherein the Board refused
to assert jurisdiction even though the employer was not engaged directly in the horse-
racing industry.
In Pinkerton, the Board declined to assert jurisdiction over an autonomous, com-
partmentalized division of Pinkerton's employees employed as guards on the premises
of a New York harness racing track. In Pinkerton, the Board stated:
The Petitioner in the instant proceeding seeks an election among certain em-
ployees s of Pinkerton's National Detective Agency, Inc ,herein called the Em-
ployer, and employed by the Employer solely on the premises of the Empire
Raceway, a harness racing track operated at Yonkers, New York, by the Yonkers
Trotting Association, herein called the Association. The record shows that,
while the employees concerned are those of the Employer, these employees are
handled by a separate autonomous division of the Employer and are, to an
unusual degree , closely identified with the work and interests of the Associa-
tion. Thus, the labor relations of the instant employees are, like those of the
Association's employees, equally the subject of special laws 4 enacted by the
State of New York for the regulation of employment at race tracks and for the
representation of race track employees by labor organizations. In addition,
the evidence discloses that the Employer, by agreement with the Association,
has permitted the Association to assume the direct supervision of these em-
ployees.5 The effect of this practice has been to make such employees of the
Employer part and parcel of the Association's race track operations.
The Board has not generally been concerned with the type of operation con-
ducted by the customer of a service contractor where the latter was otherwise
S These employees are in the classification of usher and patrolman.
* The Pari-Mutuel Revenue Law of 1940, Chapter 254 as amended, governing har-
ness horse racing in the State of New York provides in part as follows:
Section 41 ( a) provides for the licensing by the State harness commission of "all
persons exercising their occupation or employed at harness race meets "
Section 44(a) provides for the filing with the State harness commission of a copy
of all agreements made by any racing association and concerning among other matters
labor management relations and the hiring of designated classes of officers, employees,
or contractors specified by the commission, or any such other contract as the racing
commission may from time to time prescribe
Section 52 (a) prohibits the making of union-security agreements covering the em-
ployment of any person at a pari-mutuel track for harness racing, unless such agree-
ment is with a labor organization which has been certified as bargaining repre-
sentative after an election pursuant to the provisions of the New York State Labor
Relations Act. Any party who wilfully violates this section is subject upon con-
viction to a fine of not more than $5,000, or to imprisonment for not more than
1 year, or both.
6 The Employer's service contract with the Association, as amended in April 1951,
specifically provides for direct supervision by the general manager and president of
the Association over all of the employees of the Employer situated at the Yonkers
track. The record reveals that such supervision is in fact exercised by Association
officials.
HOTEL & RESTAURANT EMPLOYEES, ETC., LOCAL 343 213
within the Board's jurisdictional plan. However, this is an atypical situation
in which the service contractor has, in effect, compartmentalized one phase of his
operation so that, unlike his main operations, his employees have been very
closely integrated and virtually included in an industry over which the Board,
as a matter of policy, does not assert jurisdiction. Consequently to assert juris-
diction here would, in effect, contravene our policy as to that industry. Accord-
ingly, upon the basis of the particular circumstances of this case, we believe that
the assertion of jurisdiction over this portion of the Employer's employees would
not effectuate the purposes of the Act. We shall therefore dismiss the petition.
The General Counsel, in effect, asserts that there is not here present the same
degree of integration of operations as was present in Pinkerton and that, accordingly,
Pinkerton is distinguishable and not controlling herein. The General Counsel cor-
rectly points out that there is totally lacking here any assumption by Raceway of
direct supervision or control over Resort's employees. Additionally, here, unlike
Pinkerton, restaurant and food concession personnel are specifically excluded from
the union-security provision of the Pari-Mutuel Revenue Law, as amended, with the
apparent resultant effect that certification by the New York State Labor Board is not
a prerequisite to the making of a union-security agreement between a labor organiza-
tion and an employer-restaurateur or food concessionaire at a harness racing track.
To that extent, the regulation by the State of New York of the employment relation-
ship is here less comprehensive than was the case in Pinkerton.10 However, not-
withstanding this apparent distinction, there remains here, as in Pinkerton, a sub-
stantial element of State regulation of the employer's personnel as is revealed by
the requirements that each employee be photographed, fingerprinted, and licensed;
that weekly personnel reports be submitted by each employer listing its employees
and their compensation, and that all personnel comply with the rules and regulations
pertaining to the maintenance of proper decorum at the racetrack. These require-
ments were found by the Board in the Walter A. Kelley case , supra, as well as in the
Pinkerton case, to be important indicia of State regulation. Upon careful con-
sideration of the Board's decision in Pinkerton, I am persuaded that it is not entirely
distinguishable. Rather, I am convinced that it has significance and applicability
to the instant matter.
Viewing the Board's Pinkerton decision in the context of its later decisions, par-
ticularly Walter E. Kelley and William H. Dixon,11 it appears that the decisional
touchstone in the instant case is the extent to which Resort's operations are integrated
with and a part of those of Raceway, clearly an enterprise engaged in the racing
industry over which the Board as a matter of policy does not assert jurisdiction. If
the extent of integration is substantial, so that a disruption in the continuity of
Resort's operations caused by a labor dispute would have an adverse effect on the
unimpeded operations of Raceway, in which the Board has, in effect, recognized
the State of New York has a substantial interest, it would appear that jurisdiction
should not be asserted. This would be so, as I interpret the policy considerations
underlying the Board's decision with respect to jurisdiction in the racing industry,12
even though, as here, the gross volume of business of Resort is sufficient to meet
the Board jurisdictional standards.
10 As alluded to by the Board in its Pinkerton decision, at footnote 4 therein, the pari-
mutuel revenue law, chapter 254, section 52(a), prohibits the making of union-security
agreements covering the employment of any person at a parimutuel track for harness
racing, unless such agreement is with a labor organization which has been certified as
bargaining representative after an election pursuant to the provisions of the New York
State Labor Relations Act However, an amendment to said section 52(a) provides as
follows
The provisions of this Section [52(a)] shall not apply to employees engaged in
the preparation, service and handling of food and beverages in the operation of a
restaurant or it food or beverage dispensing facility at such track
Similarly under the provisions of section 44(a) of the pari-mutuel law of 1940, as
amended 1954, chapter 254, the licensees of harness racing tracks must file with the
Racing Commission any labor agreements into which they might enter, but I do not read
this provision as requiring concessionaires of the track to similarly file their labor agree-
ments with the Harness Racing Commission.
Supra, at 1207.
In addition to the Kelley and Dixon decisions, I have considered also the Board's
observation in Aspen Skia.ng Corporation, 143 NLRB 707, wherein it stated, "While it is
true that the Board declined to assert jurisdiction over employers' activities in the
horseracing industry, the Board has done so because such industry was subject to exten-
sive and detailed regulation by State authority." [Footnote citation deleted.]
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After a careful analysis of the record evidence and upon a full consideration of
the Board's decisions deemed pertinent herein, I am of the opinion that Resort's
operations are closely integrated with those of the raceway and that jurisdiction
should not be asserted in this proceeding.
Thus, in this connection, like Pinkerton, Resort's employees perform their serv-
ices solely at the racetrack and at locations and work stations physically interspersed
throughout the grandstand area of the track, and to a lesser extent, in other areas
of the raceway as well. Moreover, Resort's operations are devoted entirely to the
service of food and beverages to customers and racetrack personnel. The services
Resort provides, while not absolutely essential to the functioning of the racetrack,
are an integral attribute of a facility such as a racetrack devoted, in the final analy-
sis, to the entertainment and diversion of its patrons, and are, accordingly, a feature
expected and demanded by the track's patrons. Accordingly, I am convinced that
Raceway is dependent upon the restaurant and concession facilities of Resort not
only for revenue but to fulfill the demands of its patrons and track personnel, and
that, as a consequence, there exists an extensive interrelationship between the opera-
tions of Resort and those of Raceway.
A further factor pointing to Resort's close identification with Raceway and the
racing industry generally is the degree of regulation, as found above, exercised by
Raceway and the Harness Racing Commission over aspects of the employment rela-
tionship relating to Resort's hire and retention of personnel, a factor differentiating
Resort from the typical restaurateur which is subject only to the usual licensing
ordinances and health and safety regulations extant in the restaurant industry
generally.
Accordingly, on the basis of the foregoing considerations I conclude that Resort
is an enterprise closely identified with the racing industry, and its operations are in-
extricably associated with those of the raceway. In view thereof, it is apparent that
any disruption of Resort's operations arising out of a labor dispute, either primary
or secondary, involving Resort's employees would have a foreseeable, likely, and
immediate adverse impact upon the operations of the raceway. As the Board
found in the Kelley case, the State of New York has a strong interest in insuring
uninterrupted operations at racetracks. Thus, here, as in Kelley, it would be reason-
able to anticipate that in view of the vital interest the authorities of the State of
New York would act with dispatch to resolve any labor dispute involving Resort's
employees arising at the racetrack.
Moreover, in light of the recognized interest of the State of New York in the un-
interrupted operations of the raceway, and in recognition also of the potential com-
plexities and complications that under the doctrine of Federal preemption fore-
seeably could result from the enmeshing of the legal processes of State and Federal
authorities, if, contrary to my decision here, the Board would assert jurisdiction
over Resort while declining it over Raceway, sound administration of labor rela-
tions policy would seem to be best served by leaving to the State of New York,
authority to act in any labor dispute arising at the raceway involving Resort's
employees.
In view of this consideration, and in light of the expressed policy of the Board
that the effect of labor disputes involving operations in the racing industry is not
likely to have sufficient impact on interstate commerce to warrant the exercise of
its jurisdiction, I shall recommend that the complaint herein be dismissed.
RECOMMENDED ORDER
Upon the foregoing findings and upon the entire record of the case, I recommend
that the complaint herein be dismissed.
St. Paul Printing Pressmen and Assistants ' Union, No. 29 and
Webb Publishing Company . Case No. 18-CD-33. August 5,
1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, following a charge filed April 21, 1964, by Webb
148 NLRB No. 19.