Los Angeles Turf Club, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1950

90 N.L.R.B. 20 (N.L.R.B. 1950)

In the Matter of Los ANGELES TURF CLUB , INC. and DONALD
MOYNAHAN
In the Matter of HoLLYwooD TURF CLUB and DONALD MOYNAHAN
In the Matter of BUILDING SERVICE EMPLOYEES INTERNATIONAL
UNION, A. F. L., ITS AFFILIATE PARI MuTUEL EMPLOYEES GUILD,
LOCAL No. 280, AND ITS LOCAL UNIONS No. 76, 399, AND 193; INTER-
NATIONAL BROTHERHOOD OF HOD CARRIERS , BUILDING AND COMMON
LABORERS UNION OF AMERICA , A. F. L., AND ITS AFFILIATES SOUTH-
ERN CALIFORNIA DISTRICT COUNCIL OF LABORERS , LOCAL NO. 300 AND
LOCAL No. 1082; GARAGE , AUTOMOTIVE AND SERVICE STATION EM-
PLOYEES UNION , LOCAL No. 495, AFFILIATED WITH THE INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN
AND HELPERS OF AMERICA , A. F. L. and DONALD MOYNAHAN
Cases Nos. 21-CA-320, 21-CA-349, 01-CB-68, and 21-CB-115.-
Decided June 2, 1950
DECISION AND ORDER
On October 6, 1949, Trial Examiner Frederic B. Parkes 2nd, issued
his Intermediate Report in the above-entitled proceeding, recommend-
ing that the complaint be dismissed upon the grounds that the opera-
tions of the Respondents Los Angeles Turf Club, Inc., and Holly-
wood Turf Club,' while not unrelated to commerce, are essentially
local in character, and that the assertion of jurisdiction in these cases
would not effectuate the policies of the Act, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, briefs in
support of the Intermediate Report were filed by Respondents Holly-
wood, Building Service Employees' Union, and Garage, Automotive
and Service Station Employees' Union. The charging party, Donald
Moynahan, filed a. brief in opposition to the Intermediate Report. The
General Counsel filed exceptions to the Intermediate Report and a
supporting brief.'
1 Hereinafter referred to collectively as Respondent Tracks and individually as Respond-
ent Los Angeles and Respondent Hollywood, respectively.
2 The General Counsel also filed a motion requesting that the Board Issue an order
directing the Trial Examiner to prepare and issue a Supplemental Intermediate Report,
setting forth findings of fact , conclusions of law, and recommendations with respect to
90 NLRB No. 10
20
LOS *ANGELES TURF CLUB, INC. 214
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate,
Report, the exceptions and briefs, and the entire record in the cases,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions and modifications :
As fully detailed in the Intermediate Report, the Respondent,
Tracks are engaged solely in conducting race meets. Their revenues.
are derived principally from their percentages of the pari mutuel
pools at the tracks and catering concessionaire receipts, and from.
admission, and parking lot fees. Their principal expenses are,purses;
to winners of races and rental fees for pari mutuel betting machinery.
paid to the American Totalizator Company, hereinafter called Tote.,
There are also small expenditures for maintenance of the tracks,
almost all of which are made locally and advertising expenses, which:
are also almost entirely local.
It is not seriously contended that the Respondent Tracks, in their
immediate operations, are engaged in commerce. However,, the Gen-
eral Counsel contends that mainly by reason of the interstate ship-,
ment of horses, the relationship to Tote and the Daily Racing Form,
and the conduct of claiming races, jurisdiction must be asserted.3 We,
do not agree.
With respect to the shipment of horses across State lines, this activ-
ity, effected by the individual owners, is clearly analogous to the trans-
portation of participants in baseball games considered by the Supreme
Court in the Baseball case.' The Court in an opinion by Mr. Justice;
Holmes there held that such transportation was merely incidental to,:
and not an essential element of, the sporting events concerned and did
not serve to alter the intrastate character of those events so as to!
bring the baseball clubs within the purview of the Sherman Anti-
legal jurisdiction and the unfair labor practices alleged in the complaint herein. In sup-'
port of his motion, the General Counsel contends that a Trial Examiner does not have:
power to dismiss a case on policy grounds alone , where there is no showing of a clear lack
of legal jurisdiction . For reasons fully stated in Row Construction Company, 88 NLRB"
580, we find no merit in this contention . Accordingly , the General Counsel ' s motion is
hereby denied.
' The General Counsel also contends that the functions of the catering company which
operates the numerous eating places at the Tracks , afford a substantial basis for assert-,
ing jurisdiction over the Tracks . This contention is without merit. As indicated, in;
the Intermediate Report, although an unspecified portion of the foodstuffs used by the,
catering company may originate outside the State, 4l1 Its purchases are made from local
wholesalers and all its sales are made locally . Cf. Child's Company, 88 NLRB 720;
Bartenders Union Local 52, AFL, 85 NLRB 412.
4 Federal Baseball Club of Baltimore , Inc. v. National League, 259 U. S. 200. The Court
of Appeals for the Second Circuit has recently observed that this case is still controlling,
precedent . Martin v. National League Baseball Club, 174 F . 2d 917 ( C. A. 2).
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trust Act.,' Without holding that case necessarily decisive of the
issue of legal jurisdiction under our own Act, it is strongly persuasive
of the propriety of treating the Respondent Tracks as essentially local
enterprises.
As !to the relationship between the Respondent Tracks and Tote
and the Daily Racing Form, the General Counsel argues, in sub-
stance, that the latter 2 companies and the Respondent Tracks con-
stitute, in effect, a single functionally related enterprise, although
there are no elements of common management or control, and that,
as Tote and the Daily Racing Form are in commerce, the Tracks must
be so held. However, the Respondent Tracks are only 2 of Tote's 70
customers, and similarly are only 2 of the Daily Racing Form's many
subscribers. Moreover, with respect to Tote, the machinery ]eased
from it is in the nature of capital equipment and, as we have recently
held, interstate purchase of capital equipment is not a sufficient factor
to cause us to assert jurisdiction over an otherwise local enterprise.6
Accordingly; we find no merit in this contention.
Finally, with respect to the claiming races,' the General Counsel
contends that because of such races, Respondent Tracks are com-
parable to stockyards which have been held to be in commerce.,, The
analogy is not persuasive. In the case of stockyards, the provision
of a market place is the major, or possibly the sole, purpose of the
organization concerned. In the instant proceeding, however, it is
clear that the purpose of claiming races is not to provide a market
place for thoroughbred horses but to equalize competition on the
theory that a horse will not be entered in a race below his class where
he is subject to purchase at a bargain price. In this connection, it
is significant that, at Respondent Los Angeles' Track, of about 30
horses entered daily in claiming races, only about 1 horse is claimed.
Accordingly, upon the entire record, we find that, while the opera-
tions of the Respondent Tracks are not wholly unrelated to commerce,
assertion of jurisdiction in these cases would not effectuate the policies
of the Act." We shall, therefore, affirm the Trial Examiner's order
dismissing the complaint herein.
5 "The business is giving exhibitions of baseball which are purely state affairs. . . .
But the fact that in order to give the exhibitions the Leagues must induce free persons
to cross state lines and must arrange and pay for their doing so is not enough to change
the character of the business."
Richter Transfer Company, 80 NLRB 1246.
Any horse entered in a claiming race is thereby subject to purchase under conditions,
including price, which are set by the track.
8 See, for example , Stafford v. Wallace, 258 U. S. 495. Cf. International Trade Mart,
87 NLRB 616.
Cf. Olympia Stadium Corporation, 85 NLRB 389.
LOS ANGELES TURF CLUB, INC. 23
ORDER
Upon the entire record in the cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the consolidated complaint issued
herein against the Respondents Los Angeles Turf Club, Inc. ; Holly-
wood Turf Club; Building Service Employees' International Union,
AFL, its affiliate, Pari Mutuel Employees' Guild, Local No. 280, and
its Local Unions No. 76, 399, and 193; International Brotherhood
of Hod Carriers, Building and Common Laborers Union of America,
AFL, and its affiliates, Southern California District Council of
Laborers, Local No. 300 and Local No. 1082; Garage, Automotive.,
and Service Station Employees Union, Local No. 495, affiliated with
the International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, A. F. L., be, and it hereby is, dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
MEMBER REYNOLDS, dissenting :
I would assert jurisdiction in this proceeding.
INTERMEDIATE REPORT
James W. Cherry, Jr., Esq. and Charles Hackler, Esq., for the General Counsel.
Victor Ford Collins, Esq. and Arnold M. Cannan, Esq., of Los Angeles , Calif.,
for the Respondent Los Angeles.
Arthur Freston , Esq. and Ralph E. Lewis, Esq ., of Los Angeles , Calif., for the
Respondent Hollywood.
Daniel D. Carmell , Esq., by Lester Asher, Esq., of Chicago , Ill., and John C.
Stevenson , Esq., of Los Angeles , Calif., for the Respondent Building Service
Employees and affiliates and for the Respondent Teamsters.
David Sokol , Esq., of Los Angeles , Calif., for the Respondent Hod Carriers
and affiliates.
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Donald Moynahan, an in-
dividual , and in accordance with an order of the General Counsel of the Na-
tional Labor Relations Board,' dated January 25 , 1949, consolidating the four
cases, the General Counsel , by the Regional Director for the Twenty-first Region
(Los Angeles, California), issued a complaint dated January 25, 1949, against
Los Angeles Turf Club, Inc., Arcadia, California, herein called the Respondent
Los Angeles ; Hollywood Turf Club, Inglewood, California, herein called the
Respondent Hollywood ; 2 Building Service Employees International Union,
i The General Counsel and his representatives at the hearing are herein referred to as
the General Counsel. The National Labor Relation s Board is herein called the Board.
2 Respondent Los Angeles and Respondent Hollywood are herein collectively referred to as
the Respondent Companies.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. F. L., its affiliate Par! Mutuel Employees Guild, Local No. 280, and its Local
Unions No. 76, 399, and 193, herein called the Respondent Building Service
Employees; International Brotherhood of Hod Carriers, Building and Common
Laborers Union of America, A. F. L., and its affiliates, Southern California
District Council of Laborers, Local No. 300 and Local No. 1082, herein called
the Respondent Hod Carriers ; and Garage, Automotive and Service Station
Employees Union, Local No. 495, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., herein
called the Respondent Teamsters,' alleging that the Respondent Companies had
engaged in and were engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7)
of the National Labor Relations, 61 Stat. 136, herein called the Act, and that
the Respondent Unions had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (b), subsections
(1) (A) and (2) and Section 2 (6) and (7) of the Act. Copies of the charges,
the complaint, and notice of hearing were served upon the Respondent Companies
and the Respondent Unions.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged in substance that: (1) on or about December 16, 1947, and
December 22, 1948, the Respondent Companies and the Respondent Unions entered
into collective bargaining agreements containing illegal closed-shop provisions,
have enforced and given effect to such agreements, and have required membership
in the Respondent Unions as a condition of employment ; ` (2) these agreements
and subsequent renewals were entered into at a time when the Respondent
Companies' race tracks were not in operation, when the Respondent Companies
had no employees in the classes of work covered by the contracts, and when none
of the Respondent Unions represented a majority of the employees in the bargain-
ing units covered by the contracts ; 6 and (3) from on or about December 1948, the
Respondent Los Angeles denied employment to Donald Moynahan for the reason
that the Respondent Pari Mutuel Employees' Guild, Local No. 280 refused to
accept Moynahan into membership or issue him a work permit e The com-
plaint alleged that by the foregoing conduct the Respondent Companies engaged
in violations of Section 8 (a) (1), (2), and (3) of the Act and the Respondent
Unions engaged in violations of Section 8 (b), subsections (1) (A) and (2) of
the Act.
Thereafter, the Respondent Los Angeles, the Respondent Hollywood, the Re-
spondent Hod Carriers, and the Respondents Building Service Employees and
Teamsters duly filed answers, denying that any of them engaged in any of the
unfair labor practices alleged in the complaint and that the Respondent Com-
panies were engaged in commerce within the meaning of the Act.
Pursuant to notice, a hearing was held from March 1 to 11, 1949, at
Los Angeles, California, before Frederic B. Parkes, 2nd, the undersigned Trial
Examiner duly designated by the Chief Trial Examiner. The General Counsel,
3 The Respondent Building Service Employees , the Respondent Hod Carriers , and the
Respondent Teamsters are collectively referred to herein as the Respondent Unions.
* The complaint was amended at the hearing to allege that illegal contracts were entered
into on December 22, 1948.
5 The complaint was further amended to allege that the contracts were executed at a
time when none of the Respondent Unions represented a majority of the employees within
the bargaining units.
6 Similar allegations of the complaint with respect to the Respondent Hollywood were
dismissed on motion of the General Counsel inasmuch as the provisions of Section 10 (b)
had not been fulfilled.
LOS ANGELES TURF CLUB, INC. 25
the Respondent Companies, and the Respondent Unions were each represented by
counsel and participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties.
At the outset of the hearing, the undersigned denied motions for a continuance
made by the Respondent Unions and a motion that the complaint be dismissed,
urged by the Respondents Building Service Employees and Teamsters. Ruling
was reserved upon the motion for dismissal of the complaint as to the Respondent
Hod Carriers, pending development of the facts as to the contractual status
between the Respondent Companies and the Respondent Hod Carriers. The mo-
tion is hereby denied. At the conclusion of the General Counsel's case-in-chief,
the Respondents Building Service Employees and Teamsters moved that the
complaint be dismissed. The motion was denied. At the close of the hearing, the
motion was renewed and ruling thereon was reserved. Consistent with the find-
ings hereinafter set forth, the motion is granted. At the conclusion of the hear-
ing, the undersigned granted a motion by the General Counsel to conform the
pleadings to the proof as to dates, spelling, and minor variances. Upon the con-
clusion of the hearing, the undersigned advised the parties that they might argue
before, and file briefs or proposed findings of fact and conclusions of law, or both,
with the Trial Examiner. The parties waived oral argument, although the Gen-
eral Counsel stated his position briefly on several issues. Thereafter, the Re-
sphndent Hollywood filed a brief, joined in by the Respondent Los Angeles. The
Respondent Hod Carriers and the Respondent Building Service Employees and
Teamsters also filed briefs.
Upon the entire record in the case and from his observation of the witnesses, the
undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESSES OF THE RESPONDENT COMPANIES
A. In general
The Respondent Los Angeles Turf Club, Inc., a California corporation with its
principal office and place of business in Arcadia, California, is engaged in the
business of conducting the racing of thoroughbred horses at its race track, com-
monly called the Santa Anita Park. Its race track was constructed in 1934 and
1935 at an approximate cost of $1,000,000 upon land valued at approximately
.$500,000. In the succeeding years, Respondent Los Angeles has erected addi-
tional construction to its track in the approximate value of three or four million
dollars. Its race meet customarily is held from late December until the following
March for a total of 50 racing days, scheduling 8 races per day. Approximately
half of these races are claiming races, a condition of which all horses entered
are subject to claim or purchase for a stipulated price prior to the race by anyone
who had registered for racing in the meet and had started a horse in a race at such
meet. The claiming price of these races ranges between $3,000 and $10,000. In
the 1948-49 meet at the Respondent Los Angeles' track, 52 horses were claimed.
The claiming prices for these horses totalled $280,000. During the meet, the
Respondent Los Angeles employs between.1,500 and 2,000 employees. The re-
mainder of the year, approximately 125 employees maintain the property.
Prior to the meet, the Respondent Los Angeles distributes stake books,
describing its racing program and the conditions of principal races, to horse
owners upon request and sends supplies of the stake books to other race tracks for
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distribution. Some of these brochures are sent to points outside the State of
California.
During the fiscal year ending November 30, 1948, the Respondent Los Angeles
purchased general supplies in the amount of $38,471.81 and mechanical equip-
ment valued at $48,550.25. All such purchases were made locally in California.
However, among the mechanical equipment was a Cadillac automobile and pos-
sibly a truck. During the same period, the Respondent Los Angeles spent $26,-
949.83 in advertisements in newspapers published in the State of California, $204
in advertisements in 2 magazines published in States other than California, $240
in advertisements in the New York edition of the Daily Racing Form, and $240
in advertisments in the Chicago edition of the same publication.
The Respondent Hollywood Turf Club, a California corporation with its
principal office and place of business in Inglewood, California, is engaged in the
business of conducting the racing of thoroughbred horses at its race track, com-
monly called the Hollywood Park. Its race track was built about 1938 and at
the time of the hearing was valued in excess of $6,000,000, excluding the value
of its real estate purchased at a cost of more than $1,000,000. Its race meet of 50
days is customarily held from May to July each year. Approximately 70 percent
of its races are claiming races. During 1948, the Respondent Los Angeles pur-
chased materials and supplies and equipment valued at approximately $175,000.
Included among these purchases was a "Dodge stake truck" bought from a local
dealer. All such purchases were made locally in California with the exception
of equipment valued at $920 which was purchased outside the State. of. California?
In 1948, the Respondent Hollywood spent $54,000 in advertising. Of this amount,
$437 was the cost of token advertisments in 6 magazines published outside the
State of California and $1,885 was for advertisements in editions of the Daily
Racing Form published outside California. The remainder was for advertise-
ments in California publications.
Prior to its meeting, the Respondent Hollywood distributes approximately
1,000 stake books, of which approximately 25 percent are sent upon request to
horse owners outside the State of California.
Each of the Respondent Companies has facilities for stabling approximately.
1,300 horses during their race meetings. Prior to the meeting, horse owners
file applications for stall space for their horses. Determining factors in the
acceptance or rejection of the applications are the general reputation of the
horse owners themselves and the proved or prospective abilities, of. the • horses
and the known value of the horses. Upon the granting of stall space, the
Respondent Companies exercise no control over the care or management of the
horses. The horse owners determine whether to participate in the racing pro-
gram, supply the grooms, handlers, and trainers to care for the horses, provide
food for the horses and equipment (such as beds, linens, etc.) for the grooms,
handlers, and trainers. The Respondent Companies merely supply empty stall
space for the horses, empty tack rooms for equipment and supplies necessary
to care for the horses, and vacant rooms to house the horse owners' retinue
of employees. Free electricity and water is provided by the Respondent Com-
panies. The horse owners also bear the cost of transportation of their horses
to the track, by Railway Express, vans, trailers, or aeroplane, as well as the
cost of insurance on their stables.
7 At one point , the record reflects that the out -of-State purchases totalled $ 920,000.
This is obviously a typographical error . Elsewhere the amount is stated to be $920, which
concurs with the undersigned's trial notes.
LOS ANGELES TURF CLUB, INC. 27
Of the approximately 1,300 horses stabled at the Respondent Hollywood's track
in its 1948 meet, only 45 were shipped to the track from points outside the
State of California. However, 10 of the 45 horses were recent purchases by
residents of California who had acquired them outside the State. Consequently,
only 35 horses were shipped into California by nonresident owners for the
Respondent Hollywood's 1948 race meeting.
The records of the past performances of horses scheduled to run races in
the 1948-1949 race meeting of the Respondent Los Angeles were introduced into
evidence. These records reveal, according to the undersigned's analysis, that
approximately 820 horses had never participated in race meetings outside the
State of California, and that approximately 252 had raced at tracks located
outside the State of California.'
The operations of the Respondent Companies are regulated by statutes of the
State of California, administered by the California Horse Racing Board.'
During the 1948 race meeting of the Respondent Hollywood, the Horse Racing
Board issued licenses to race to approximately 35 out-of-State horse owners.
Prior to the 1948-1949 race meeting of the Respondent Los Angeles, the Cali-
fornia Horse Racing Board issued licenses to race to approximately 75 out-of-
State horse owners. During the same period prior to the race meeting of the
Respondent Los Angeles, the California Horse Racing Board issued licenses to
race to between 400 and 500 horse owners, residents in the State of California.
In the spring of each year, the Western Harness Racing Association conducts
a meet of 35 days, leasing the facilities of the Respondent Companies alterna-
tively from year to year.
The record shows that the Respondent Companies are among the leading
race tracks in the United States in the amount of money distributed as prizes
and stakes, the number of large stake races conducted, the size of attendance,
and the amount of money wagered.1°
B. The American Totalisator Co.
By lease agreement, the American Totalisator Co., herein called the Tote
Company, furnishes and maintains electrical mechanical equipment to both of
the Respondent Companies for the purpose of selling wager tickets, summation of
the wagers, and supplying information of the wagering of each race to the pari
mutuel department of the Respondent Companies and to the public assembled
at the race. The Tote Company, whose main office is in Baltimore, Maryland,
furnishes similar equipment and services to some 70 race tracks located in New
Hampshire, Massachusetts, Rhode Island, New York, New Jersey, Delaware,
Maryland, Florida, Illinois, Ohio, Kentucky, Louisiana, Arkansas, Nebraska,
California, Oregon, Washington, and Arizona. Its district office in Pasadena,
California, services 11 race meetings in California, as well as others in Oregon,
Washington, and Arizona. The Tote Company maintains shops for construction
and repair of its equipment in Baltimore, Maryland, New York, New York, Chi-
cago, Illinois, and Pasadena, California.
8 Of these horses, 47 had raced at tracks in Maryland, 136 In New York, 28 In Washing-
ton, 15 in Kentucky, 56 in Illinois, 8 in Canada, 43 in New Jersey, 27 in Delaware, 1 in
Ohio, 5 in Michigan, 9 In Massachusetts, 8 in Rhode Island, 6 in New Mexico, 3 in Oregon,
4 in Florida, 1 in New Hampshire, 2 In Nebraska, 16 in Mexico, 1 in England, and 1 in
Ireland.
9 Business and Professional Code of the State of California, Sections 1400 to 2038, in-
clusive, and Section 19561.
"Dixon-Bell Press supplies racing programs to the Respondent Companies by contract.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Generally speaking, the equipment consists of selling machines, adding ma-
chines, and indicator boards to display to the public the total of the wagers
and the odds. The selling machines are manufactured in England and adapted
for use in this country by the Tote Company at one of its various plants.
The adding machine equipment in use presently in California was manufactured
by the Tote Company in Baltimore but the equipment has not been shipped out
of the State of California since it was sent there in 1947. The indicator boards
are made by various concerns, some within the State of California and some
without. The equipment is utilized at the various race tracks in California
-consecutively. Some of the ticket selling machines and indicator equipment is
'used at the race tracks in Washington and Oregon. The value of the Tote
Company's equipment in use at the Respondent Los Angeles' track in the 1948-
•19.49 meet ranged between $100,000 and $500,000. The equipment used at the
'Respondent Hollywood's meet in 1948 was valued between $75,000 and $400,000.
The rental fee paid by the Respondent Los Angeles was approximately $200,000
.for its usual meet. In addition, a portion of the insurance premium on the Tote
Company's equipment is borne by the Respondent Companies as part of the
rental fee.
'The equipment is installed and maintained by approximately 25 employees on
.the staff of the Tote Company. The record reveals that neither the Respondent
.Companies nor Respondent Unions has any control or direction over the em-
'ployees of the Tote Company or the purchase and transfer of equipment of the
Tote Company.
C. The Harry Curland Catering Company.
Both Respondent Companies by formal agreement have granted to The Harry
Curland Catering Company, herein called the Catering Company, a concession to
operate bars, restaurants, food counters, and cafeterias at both tracks." The
agreements provide that the Catering Company should furnish all equipment and
pay the Respondent Companies 25 percent of its gross income from the conces-
sions. At the track of the Respondent Los Angeles, the Catering Company main-
tains 14 bars, 27 food counters, a stable cafeteria, and restaurants in a coffee
'shop , club house, turf club, and paddock room. At the Respondent Hollywood's
track, the Catering Company maintains 15 bars, 17 food counters, a stable cafe-
'teria, and a restaurant in a coffee shop, club house, turf club, and terrace. On
'week days the Catering Company employs between 450 and 500 employees at each
-of the Respondent Companies and approximately 600 employees on holidays and
`Saturdays. The following table reflects the purchases and sales of the Catering
,Company:
Respondent Los Angeles 1947-8: Purchases Sales
Beer------------------------------------------ $69,000 $80,250
Liquors--------------------------------------- 180,000 675,000
Food------------------------------------------
Supplies--------------------------------------
360,000
105,000
675,000
------
Respondent Los Angeles 1948-9, first month of
operations:
Beer-----------------------------------.------ $13,000 $40,000
Liquors--------------------------------------- 90,000 300,000
Food----------------------------------------- 160,000 300,000
11 The Catering Company has similar concessions at three other race tracks in California.
LOS ANGELES TURF CLUB, INC. 29•
Respondent Hollywood 1948: Purchases' Sales, ": ,
Beer-----------------------------------.------ $72,000 $140,000.
Liquors--------------------------------------- 125,000 700,000
Food----------------------------------------- 405,000 630,000
Supplies-------------------------------------- 120,000 ------
All purchases are made from local California wholesalers and suppliers, who
purchase a considerable amount of the goods from sources outside the State of
California and who store 'the goods in their warehouses for an indeterminate'
period of time before delivery to the Catering Company.
D. Conclusions
Inasmuch as the purchase of supplies from out-of-State sources, advertise-
ments in out-of-State publications, and distribution of stake books out of the
State of California by the Respondent Companies are so negligible in amount as
to have little probative effect in determining whether the Respondent Companies
are subject to the jurisdiction of the Board, the General Counsel apparently
relies upon the shipment of race horses into California by out-of-State owners
and upon the operations of the Tote Company and the Catering Company to
establish the Board's jurisdiction over the Respondent Companies.
Although the operations of the Respondent Companies, in some measure, affect
commerce, the undersigned is persuaded that the effect is so remote and indirect
that the horse racing industry is one over which the Board does not assume
jurisdiction. In a recent case dealing with a professional hockey club, the Board
declined to assert jurisdiction, stating :
Although we do not find that the operations of the Employer are wholly
unrelated to commerce, we believe that the Employer's operations are essen-
tially local in character and that to assert jurisdiction in this case would not
effectuate the policies of the Act "
The undersigned believes that the Board's determination in the Olympia Stadium
case, above quoted, is controlling on the jurisdictional issue herein," and will
accordingly recommend that the complaint be dismissed.
RECOMMENDATIONS
For the reasons above set forth, the undersigned recommends that the com-
plaint herein be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof; and any party may,
within the same period, file an original and six copies of a brief in support of the
Intermediate Report. Immediately upon the filing of such statement of excep-
tions and/or briefs, the party filing the same shall serve a copy thereof upon each
" Olympia Stadium Corporation, 85 NLRB 389.
" Cf. White Sulphur Springs Company, 85 NLRB 1487. See also Herbert Bayard Swope
et al., 24 LRRM 1065, a decision of the New York Labor Relations Board rendered on April
26, 1949, and cases cited therein.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the other parties. Statements of exceptions and briefs shall designate by
precise citation the portions of the record relied upon and shall be legibly printed
or mimeographed, and if mimeographed shall be double spaced. Proof of service
on the other parties of all papers filed with the Board shall be promptly made
as required by Section 203.85. As further provided in said Section 203.46 should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
.and Regulations, be adopted by the Board and become its findings, conclusions,
.and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 6th day of October 1949.
FREDERIC B. PARKEs, 2nd,
Trial Ea,aminer.