Volusia Jai Alai, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1975

221 N.L.R.B. 1280 (N.L.R.B. 1975)

1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Volusia Jai Alai , Inc.' and General Sales Drivers &
Allied Employees Union, Local No. 198, Petition-
er. Case 12-RC-4851
December 29, 1975,
DECISION AND DIRECTION 'OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Robert L.
Westheimer of the National Labor Relations Board.
Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure, Series
8, as amended, and by direction of the Regional
Director for Region 12, this case was transferred to
the National Labor Relations Board for decision.
Thereafter, the Employer and the Petitioner filed
briefs in support of their respective positions.
Pursuant to the provisions of Section 3(b) of the
National, Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer, Volusia Jai Alai, Inc., is a
public stock Florida corporation and is a subsidiary
of Sports Systems Corporation operating out of
Buffalo, New York. The Employer owns and
operates a jai alai fronton in Daytona Beach,
Florida.
The threshhold question is whether the Board
should assert jurisdiction over an Employer which
operates a jai alai fronton. Before resolving this
question, we must first examine the nature of the
game involved and then must review the extensive
degree of regulation exercised by the State of Florida
over the jai alai industry.
Jai alai is a game similar to handball. The object is
for the players to catch and throw a latex ball, a
pelota, with a basket-like scoop, a cesta, within a
three-walled court. The game may be played by one
player against another (singles) or by one team of
two players against another such team (doubles). The
jai alai games are characterized by pari-mutuel
wagering. This means that the Employer is a
commissioned state agent which receives 12 percent
of the money bet. All of the winners share from a
pool comprised of 83 percent of the wagers, and the
State receives the remaining 5 percent. The bettors
observe the games through ,a fourth wall of wire
mesh. They may place their bets on the players to
win, place, show, quiniela (picking first and second in
either order), perfecta (picking first and second in
specific order), Big Q (picking two quinielas in a
row), and/or daily double (picking the winners in
two consecutive games).
The State's interest in jai alai, operations is
protected by the Division ,of Pari-Mutuel Wagering,
hereinafter called the Division. This, office is respon-
sible for supervising all fronton activities and for
ensuring their compliance with the extensive state
statutes, rules, and regulations.
The State requires that all employees, including
players and concession workers, be licensed prior to
working in a fronton. Some managerial employees, in
fact, must be approved by the Division for employ-
ment before each season. Furthermore, 85 percent of
these employees, excluding players and exempt
supervisory personnel, must be Florida residents.
The State also employs six or seven people on a
permanent basis at the fronton in various capacities
in order to maintain the integrity of the game and the
betting procedures, as well as to guarantee that the
game is being played according to the rules.
Additionally, the State conducts surprise audits to
insure Employer's compliance with the Division's
rules. This compliance is further monitored by the
submission of numerous reports by the Employer as
required by the regulations.
In addition to all the above restrictions on the
Employer, the Division has developed a set of rules
governing the behavior of the players. These restric-
tions include, inter alia, the time at which they must
report prior to a game, a prohibition against smoking
in certain areas, and a prohibition against wagering
by the players or their wives.
It should also be noted that virtually all of the 48
participants are natives of Spain or Mexico who have
been brought to the United States to play jai alai
after having been trained in Employer-financed
schools in their home countries. The granting of visas
to these individuals is dependent upon their having a
contract to play in the United States. These contracts
appear to run for the period of 1 or 2 years and to be
regularly renewed. Two jai alai players working for
Employer testified that they had been playing full
time for Employer for 3 and 6 years, respectively.
Two other jai alai players engaged at another fronton
testified that their employment there had been long
and continuous, i.e., 5 and 7 years, respectively.
1 The name of the Employer appears as amended at the heanng
221 NLRB No. 224
VOLUSIA JAI ALAI, INC.
Furthermore, in addition to the fact that all of the
players live in Florida, two have become citizens and
four are resident aliens.
The player contracts and all state regulations
concerning jai alai are printed in English, despite the
fact that almost all the jai alai players are Spanish-
speaking with little or no knowledge of English.
There is, in fact, evidence that there is little or no
opportunity for the players to negotiate for better
wages and working conditions upon contract renew-
al. This lack of opportunity is supported by the fact
that on at least one occasion half or more of the
roster of players signed their contracts during one
evening's performance.
Notwithstanding the extensive state regulation of
the industry, it is clear that the Division has no
interest in the negotiations or in the terms of the
contracts entered into between the players and
management. In fact its director asserted that it is not
the Division's function to provide job or wage
protection for the players, and that his office would
only get involved in a dispute if a provision of a
player's contract violated'one of the State's rules.
There is, in addition to, the dispute concerning the
effectiveness of contract negotiations, disagreement
as to the adequacy of the appeal procedure outlined
in the regulations. This procedure permits the player
to appeal to the Division`,any decision of the fronton
including discharges and suspensions, as well as any
fine in excess of $50. The Division investigates, holds
a hearing, and renders a decision. Although all
decisions are subject to appeal up to the Florida
supreme court, it was doubted by the director that an
order of the Division could be taken to court for
enforcement. Moreover, although a player may, for
example, be ordered by the Division eligible for
reinstatement or have his fine reduced, this eligibility
does not require the Employer to reinstate him.
Furthermore, with regard 'to the State's participa-
tion' in jai alai labor relations, there exists a "15 day
rule" which requires that, 15 days' notice be given of
any possible, interruption of the fronton's operations.
Upon receipt of this notice, the Division attempts to
settle the dispute in order to avoid loss of state
revenue. Recently, however, the efforts made by the
Division to settle a dispute under this rule in the
dogracing industry were unsuccessful, requiring the
2 The playing season in each fronton is 105 days long with a substantial
majority of the players obligated to play a second season (an additional 105
days) at another jai alai fronton, in the case of the employees herein, one
located in Melbourne, Florida, operated by Sports Palace, Inc., like
Employer, a subsidiary of Sports Systems Corporation
3 National Labor Relations Board Rules and Regulations and State-
ments of Procedure
,
Series 8, as amended, Sec 103.3
Prior to this time the Board had consistently declined to assert
jurisdiction in these industries on a case-by -case basis Los Angeles Turf
Club, Inc., 90 NLRB 20 (1950) (horseracing track), Jefferson Downs, Inc,
125 NLRB 386 (1959) (horseracing track ), Hialeah Race Course, Inc, 125
1281
State to obtain an injunction to end the strike. In jai
alai, it should be noted, there has never been a
dispute which resulted in a cessation of work.
The Petitioner urges the Board to assert jurisdic-
tion herein, contending that the Employer's opera-
tions have a substantial impact on interstate com-
merce, the state laws are inadequate to prevent labor
disputes, and the State does not regulate the terms
and conditions of employment of the jai alai players.
It argues, in addition, that jai alai does not fall within
the same category as horseracing and dogracing but
is more similar to professional sports. Furthermore, it
asserts that it can be effectively regulated by the
Board because of its 210-day playing season?
The Employer contends that its operations are
local in nature, rendering unwarranted the assertion
of jurisdiction. It also maintains that extensive state
regulation, substantial state interest, and the estab-
lished Board policy against asserting jurisdiction in
the horseracing and dogracing industries militates
against asserting jurisdiction over jai alai frontons.
The Board has, in fact, consistently declined to
assert jurisdiction over, the dogracing and horserac-
ing industries. On July 18, 1972, the Board published
in the Federal Register a notice of proposed
rulemaking concerning these industries. After con-
sideration of the information received, the Board
(Member Fanning dissenting) concluded that:
The Board will not assert its jurisdiction in any
proceeding under sections 8, 9, and 10 of the act
involving the horseracing and dogracing indus-
tries.3
In support of this rule the Board noted, inter alia, the
extensive state control over these industries. With
regard to the unstable work force in these industries,
the Board reasoned as follows:-
the sporadic nature of the employment in
these industries encourages a high percentage of
temporary part-time workers and results in a high
turnover of employees and a relatively unstable
work force. This is further evidenced by a pattern
of short workhours and sporadic and short
periods of active employment with any given
employer.
NLRB 388 (1959) (horseracmg track); Wafter .4 Kelley, 139 NLRB 744
(1962) (horse owners / breeders); Centennial Turf Club, Inc, 192
NLRB 698 (1971 ) (horseracing track) (Member Fanning, dissenting),
Yonkers Raceway, Inc., 196 NLRB 373 (1972) (horseracing track);
Jacksonville Kennel Club, Case 12-RC-3815,° May 5, 1971 (dogracing
track-not reported in NLRB volumes). It had also refused to take
jurisdiction over those employers whose operations were intimately related
with the racing business . See, e.g , Pinkerton 's National Detective Agency,
Inc., 114 NLRB 1363 (1955); Hotel & Restaurant Employees & Bartenders
International Union, Local 343, AFL-CIO (Resort Concessions, Inc.), 148
NLRB 208 (1964).
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Besides minimizing the impact on commerce of
the industries, this pattern of short-term employ-
ment also gives us pause with respect to the
effectiveness of any proposed exercise of our
jurisdiction in view of the serious administrative
problems which would be posed both by attempts
to conduct, elections and to make effective any
remedies for alleged violations of the act within
the highly compressed timespan of active employ-
ment which is characteristic of the industries.4
The Board has, however, taken jurisdiction in the
gambling industry. In El Dorado, 7nc.,5 the Board
asserted jurisdiction 'over all, of the employer's
gambling casino employees. It rejected the employ-
er's argument that intervention by the Board would
"paralyze" the enforcement of the extensive state
regulations by the state commission'. The Board
stated that the State's long history of collective
bargaining with other employees in the gambling
industry6 ". . . in no way indicates- that their [the
employees] representation under, the Act has inter-
fered with the State's imposition and administration
of the strict standards required in the industry." 7
After a careful analysis, we have decided that the
assertion of the Board's jurisdiction is warranted in
the jai alai industry. In the instant case, unlike in the
horseracing and dogracing cases which we have
previously considered, the desired unit is character-
ized by a stable work force with regard to hours,
duration of employment, and tenure of employment.
Thus,'unlike those industries, no difficult administra-
tive problems would be posed by the Board's
extension of the Act's coverage to jai alai players.;
We therefore find, contrary to the Employer's
contention, that the horseracing and dogracing cases
previously decided by the Board are inapposite.
Furthermore, we have determined, as we did in El
Dorado, Inc., supra, that the administration of the
Act would not interfere with the enforcement of state
laws in the, extensively regulated jai alai industry.
Thus, it is our opinion that state regulation in this
industry can successfully coexist with the Board's
assertion of jurisdiction.
In view of the foregoing factors, especially the
presence of a stable work force and the industry's
substantial impact on commerce, we find that it will
4 See Board's statement of "Declination of Assertion of Jurisdiction" at
Sec. 103 .3 of the Rules and Regulations
5 151 NLRB 579 (1965).
6 The record indicated that for at least 15 years employees closely
associated with gambling casinos , i.e., waiters, bartenders , cocktail waitress-
0s, and casino change girls , had been represented by a union Id at 583.
7 Id. at 583
8 Member Fanning does not believe these alleged distinctions are
effectuate the policies of the Act to assert jurisdiction
herein.
During the 1973 season (1974 figures are not
representative due to an extensive fire in the
fronton), the handle or the amount wagered at the
Employer's facility was $2,400,000. The Employer
also received $161,000 from admissions; $21,000
from , "breaks"; 9 $70,000 from concessions (25
percent of the concessions' sales); $2,000 to $3,000
from , parking; . $11,000 from program sales; and
$220,000 from interest on loans. In addition, it paid
an annual fee,of $90,000 for the out-of-state lease of
a, totalizer machine. Based on the foregoing facts, we
find that the Employer is engaged in commerce
within the -meaning of-=the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein. -
2. The labor organization involved - claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees: of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act. ,
4. General Sales Drivers &. Allied Employees
Union, Local No. 198, herein referred to as Petition-
er,1-0 seeks to represent the unit stipulated to by the
parties as being an appropriate unit. This unit
includes all jai alai players employed by the
Employer at the Volusia Jai Alai fronton who engage
in playing jai alai covered under the Florida Division
of Pari-Mutuel Wagering, and excludes all other
employees, guards, and supervisors as defined in the
Act.
In accordance, with that stipulation, we find that
the following unit is appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All jai alai players employed by the Employer at
the Volusia Jai Alai fronton who are engaged in
playing jai alai covered under the Florida Divi-
sion of Pari-Mutuel Wagering, excluding all other
employees, guards, and supervisors as defined in
the Act.
[Direction of Election and Excelsior fn. omitted
from publication.]
meaningful . He would assert jurisdiction here and also over the horseracing
and dogracing industry for reasons set forth in his dissent in Centennial Turf
Club, Inc-, 192 NLRB 698 (1971)
9 "Breaks" is the money remaining after the wager is paid off to the next
lowest 10 cents; that is if a bet paid $3.58, the patron would receive $3.50,
while the Employer and the State would split the 8 cents "break "
10 The Petitioner is an affiliate of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America.