Florida Bd. of Business Regulation Dept. of Business Regulation, Div. of Pari-Mutual Wagering v. N.L.R.B., PARI-MUTUEL
| Decision Date | 27 September 1982 |
| Docket Number | No. 80-5905,PARI-MUTUEL,80-5905 |
| Citation | 686 F.2d 1362 |
| Parties | 111 L.R.R.M. (BNA) 2478, 95 Lab.Cas. P 13,791 FLORIDA BOARD OF BUSINESS REGULATION DEPARTMENT OF BUSINESS REGULATION, DIVISION OFWAGERING, a state agency, and the State of Florida, Plaintiffs-Appellants, v. NATIONAL LABOR RELATIONS BOARD, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Daniel C. Brown, Deputy Gen. Counsel, Harold F. X. Purnell, Tallahassee, Fla., for plaintiffs-appellants.
W. Reynolds Allen, Mark E. Levitt, Tampa, Fla., for amicus curiae Volusia Jai-Alai, Inc. & Florida Jai-Alai, Inc.
Margery E. Leiber, Deputy Asst. Gen. Counsel, Sp. Litigation, Ruah Donnelly Lahey, N.L.R.B., Washington, D.C., for defendants-appellees.
Before TJOFLAT, HILL and ANDERSON, Circuit Judges.
In two cases of first impression, the National Labor Relations Board (the Board) ordered a representation election in a unit of employees of a privately owned and operated, and state-regulated, pari-mutuel jai alai 1 business in Florida. 2 In the first case, Volusia Jai Alai, Inc., 221 NLRB 1280 (1975), the unit consisted of professional jai alai players. In the second case, Florida Jai Alai, Inc., Board Case No. 12-RC-5737 (1979), the unit comprised nonplaying pari-mutuel employees such as cashiers, counters, and pari-mutuel clerks. 3 Following the entry of the election order in each case, the State of Florida, acting through the Department of Business Regulation, Division of Pari-Mutuel Wagering (the State), brought suit in the district court seeking a declaration that, inter alia, the Board's exercise of jurisdiction in the jai alai industry was prohibited by the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1976) (the Act), and, if not, by the tenth amendment to the Constitution. The district court concluded that the Board acted lawfully in each case and dismissed the State's suits. The State appeals, raising the same issues it presented in the district court. We conclude that the Board acted within its statutory authority with respect to the jai alai players, but not as to the non-playing pari-mutuel employees, and that the tenth amendment poses no bar to the Board's exercise of jurisdiction over the players.
On May 5, 1975, the General Sales Drivers and Allied Employees Union, Local No. 198, (the Players Union) filed a representation petition with the Board seeking an election in a unit of jai alai players employed by Volusia Jai Alai, Inc., at its fronton in Daytona Beach, Florida. The matter was referred to a hearing officer. On June 24, 1975, he convened a hearing and received evidence and legal argument from the Players Union and the employer. See 29 U.S.C. § 159(c). He then forwarded the record to the Board for decision. 4
The Board considered the case one of first impression, since it had never been asked to assert jurisdiction over labor disputes in the jai alai industry. The Board's initial task was to determine whether the labor dispute posed by the representation proceedings affected interstate commerce. 29 U.S.C. § 159(c) (1). If interstate commerce were affected, the Board's next step would be to determine, under section 14(c)(1) of the Act, 29 U.S.C. § 164(c)(1), whether it should decline to assert jurisdiction over the dispute because the effect of the dispute on interstate commerce was not "sufficiently substantial." If the Board concluded that the players' dispute with Volusia Jai Alai affected interstate commerce and that it should not decline to assert jurisdiction, the Board's final step would be to decide whether the Players Union's petition should be granted and an election ordered.
The Board decided the initial question summarily: it held that the players were protected by the Act. 5 The Board next held that it should assert jurisdiction over the Players Union's petition. Volusia Jai Alai, Inc., 221 NLRB 1280 (1975). It found that the employment characteristics of jai alai players were like those of employees in the casino gambling industry, a state-regulated industry over which the Board previously had asserted jurisdiction. El Dorado, Inc., 151 NLRB 579 (1965). Much like casino employees, the jai alai players constituted a stable work-force with sufficient continuity to enable the Board to conduct meaningful elections and to effectuate remedies for violations of the Act. The Board also found that, as with the casino industry, the State's extensive regulation of the jai alai industry would not conflict with the Board's regulation of the employment relationship between the players and their employer. This relationship was subject to few State rules and Florida had "no interest in the negotiations or in the terms of the contracts entered into between the players and management." Volusia Jai Alai, Inc., 221 NLRB at 1281. Finally, the Board found that the Volusia players had a special need for union representation: all player contracts were printed in English while almost all the players were Spanish speaking natives of Mexico or Spain who understood little or no English.
In deciding to assert jurisdiction over this jai alai labor dispute, the Board rejected the employer's argument that the Board was bound by its precedent in cases involving the dog and horse racing industries in Florida. In those cases the Board declined to entertain union petitions for elections in units of race track employees because the employee units were plagued by rapid turnover and irregular employment, so that effective regulation was not possible. See Volusia Jai Alai, Inc., 221 NLRB at 1281-82, citing the Board's "Declaration of Assertion of Jurisdiction" at section 103.3 of its Rules and Regulations. The Board concluded that this was not the situation at Volusia's jai alai fronton, however. It thus considered the dog and horse track cases inapposite and ordered a representation election at the Volusia fronton. Volusia Jai Alai, Inc., 221 NLRB at 1282.
The State of Florida, through its Department of Business Regulation, Division of Pari-Mutuel Wagering, pervasively regulates jai alai and dog and horse racing. See Fla.Stat. §§ 550, 551 (1981); Fla.Code of Administrative Rules 7E. The State licenses every jai alai fronton operator and every fronton employee, including the players. The State regulates employee conduct both on and off the job. For example, employees cannot engage in wagering, legal or illegal, at their frontons; they cannot associate with known criminals; and they must submit to searches, without probable cause, of their persons and belongings. In the case of a labor dispute, an employee is required to notify the Division of Pari-Mutuel Wagering if he intends to go out on strike, in which case he must stay on the job for fifteen days to enable the Division to mediate the dispute. 6
The State viewed the Board's decision with alarm. The Board had earlier declined involvement in dog and horse racing in order, the State presumed, to avoid inevitable and unnecessary conflict with the State's regulatory machinery. Now the Board was reversing itself and entering the equally state-regulated jai alai industry. 7 The State perceived a real potential for federal-state conflict. The Board has implied authority to protect its jurisdiction over a labor dispute from state interference and may, for example, obtain a federal court injunction to prevent an employer from regulating through state court a labor activity which is within the scope of the Board's jurisdiction. NLRB v. Nash-Finch Company, 404 U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971). The State envisioned the possibility of the Board seeking the same remedy against it in the event the State sought to exercise its regulatory authority in a labor dispute context.
In January 1976, Volusia Jai Alai moved the Board to reconsider its decision. The State moved to intervene, and the Board granted its motion. The Board then denied reconsideration on the ground that neither Volusia nor the State had raised an issue not previously considered by the Board. The Board scheduled a representation election by the Volusia jai alai players for May 12, 1976.
On April 27, 1976, the State filed suit in the district court to enjoin the election and to obtain a declaratory judgment that the Board lacked authority over labor disputes involving jai alai players. 8 The State advanced several theories in support of its claim for declaratory relief. Two are presented in this appeal: that the Board should have declined jurisdiction under section 14(c)(1) of the Act; alternatively, that the tenth amendment barred Board regulation of labor disputes in this state-regulated jai alai industry. 9
The district court refused to enjoin the representation election, and the election proceeded as scheduled. The players' vote defeated the Players Union, and the Board certified the result of the election.
On August 19, 1976, the district court directed the parties to brief the question whether the election result mooted the State's suit. On December 30, 1976, the court dismissed the case as moot, rejecting arguments to the contrary by both the Board and the State, and consequently did not address the merits of the State's claim for declaratory relief. The Board acquiesced in this ruling, but the State appealed. Florida Board of Business Regulation v. NLRB, 605 F.2d 916 (5th Cir. 1979) (Jai Alai I ).
In Jai Alai I, we considered only whether the Players Union's election loss mooted the State's case. Jai Alai I, 605 F.2d at 918. We concluded that the portion of the State's complaint seeking to enjoin the May 12 election no longer presented a live controversy and was therefore moot, but that the State's request for a declaratory judgment regarding the Board's anticipated assertion of jurisdiction over all labor disputes involving jai alai players in Florida remained extant. Id. at 918-19. Stating that the remaining portions of...
To continue reading
Request your trial
-
Bd. of Dental Exam'rs of Ala. v. Fed. Trade Comm'n
...should only be applied in extraordinary circumstances. See Florida Bd. of Business Regulation Dept. of Business Regulation, Div. of Pari-Mutuel Wagering v. National Labor Relations Board , 686 F.2d 1362, 1368 (11th Cir. 1982) (recognizing Leedom can permit pre-election challenges to NLRB or......
-
Lipscomb v. Federal Labor Relations Authority, Civ.A. 401CV158LN.
...representation order...." Florida Board of Business Regulation, Dept. of Business Regulation, Div. of Pari-Mutual Wagering v. National Labor Relations Board, 686 F.2d 1362 (11th Cir. 1982) (citing Bishop v. NLRB, 502 F.2d 1024, 1027 (5th Cir.1974)). The first is when a case presents a "publ......
-
Little River Band of Ottawa Indians v. Nat'l Labor Relations Bd.
...Court of Appeals supports a contrary conclusion. Plaintiff relies on the Eleventh Circuit's decision in Florida Bd. of Bus. Regulation v. NLRB, 686 F.2d 1362 (11th Cir.1982), where the State of Florida and its Board of Business Regulation sought review of two rulings of the NLRB asserting j......
-
New York Racing Ass'n, Inc. v. N.L.R.B., s. 832
...in its brief that the lack of review denies it due process.6 The Racing Association relies heavily upon Florida Board of Business Regulation v. NLRB, 686 F.2d 1362 (11th Cir.1982), in which the Eleventh Circuit held that the district court had jurisdiction to rule on the request of a Florid......