[Marxism] Union organizing at the race track

Stuart Lawrence stuartlawrence at earthlink.net
Wed Dec 15 13:11:27 MST 2004

One might wonder why California racetrack workers don't seek protection 
for their organizing activity under the National Labor Relations Act 
(aka the Wagner Act), the 1935 federal law that covers workers in most 
private businesses. The answer is simply that, long ago, the National 
Labor Relations Board decided that it would decline to exercise 
jurisdiction over the horse racing industry, and federal courts have 
since upheld the authority of the NLRB to do so, even though this leaves 
racetrack workers not covered by state labor laws essentially 
unprotected. An appeals court explained this anomalous situation in a 
1983 case involving a New York racetrack operator:

"The Racing Association conducts thoroughbred horse racing and 
pari-mutuel wagering at three racetracks in New York. There is no 
dispute that the Racing Association's activities affect interstate 
commerce and generate hundreds of millions of dollars of gross income. 
The relations between the Racing Association and its some 1,700 
employees are nevertheless regulated by defendant-appellant New York 
State Labor Relations Board (the State Board) rather than by the NLRB. 
This is because the NLRB has always declined to take jurisdiction over 
labor relations in the horse racing and dog racing industries. Indeed, 
since its creation the NLRB has never exercised all of its broad 
statutory jurisdiction, which extends to the limits of the commerce 
clause. See NLRB v. Children's Baptist Home, 576 F.2d 256, 258 n.1 (9th 
Cir. 1978); NLRB v. Marinor Inns, Inc., 445 F.2d 538, 541 (5th Cir. 
1971). Over the years, however, the NLRB has from time to time 
reconsidered its policy of not regulating a particular industry, and in 
some instances, it has reversed its position and exercised jurisdiction. 
E.g., Cornell University, 183 NLRB 329 (1970) (non-profit education). 
Cf. Volusia Jai Alai, Inc., 221 NLRB 1280 (1975) (jai alai); El Dorado 
Inc., 151 NLRB 579 (1965) (casino gambling)."

"In 1975, the NLRB considered such a reversal of its position regarding 
the horse racing and dog racing industries. Following the informal 
rule-making procedures of the Administrative Procedure Act, 5 U.S.C. § 
553, it announced in the Federal Register its intention to consider 
promulgating a rule asserting jurisdiction over these industries and 
inviting comment by interested parties. The NLRB received approximately 
90 responses to this notice, the vast majority of which opposed the 
assertion of jurisdiction by the NLRB. After considering this record, 
the Board decided to continue to decline jurisdiction, and in April 
1973, promulgated HN1Rule 103.3, which provides as follows:

'The Board will not assert its jurisdiction in any proceeding under 
sections 8, 9, and 10 of the act involving the horseracing and dogracing 

38 Fed. Reg. 9507 (1973), codified at 29 C.F.R. § 103.3 (1982). The 
Board noted in an accompanying explanatory statement that the states 
exercised extensive control over the horse racing and dog racing 
industries, including some aspects of labor relations. It also found 
that employment in these industries was generally part-time, short-term, 
and sporadic, suggesting the impact on commerce was minimal and that 
national regulation would be difficult and ineffective. Finally, the 
NLRB mentioned that few labor disputes had occurred in these industries 
in recent years. Its conclusion was that 'the impact of labor disputes 
in these industries is insubstantial and does not warrant the Board's 
exercise of jurisdiction.' 38 Fed. Reg. 9537 (1973)."

New York Racing Association. v. NLRB, 708 F.2d 46, 47-48 (2d Cir. 1983)

* * *

Ultimately, however, this decision not to extend federal labor law to 
cover racetracks probably originated in the same racist political 
compromise that excluded agricultural and domestic workers from coverage 
not only under the National Labor Relations Act of 1935, but also from 
the social insurance programs established by the Social Security Act 
passed in the same year. Insulating Southern employers of farm and 
domestic labor from the burdens imposed by these central New Deal 
measures was key to getting them through the Senate. Today, it's 
extremely hard to posit any subtantive justification for the continued 
exclusion of racetrack workers under the NLRA -- so instead the NLRB and 
the courts simply reduce it to a matter of unfettered discretion for the 
presidentially-controlled NLRB.

Stuart Lawrence

----- Original Message ----- 

Historically, the backstretch workers in California were exempted from
state labor laws until the California Legislature enacted the new
regulations three years ago. Those regulations gave backstretch 
the right to unionize, outlined minimum housing standards and required
trainers to keep accurate payroll records of their employees.

The California Horse Racing Board was charged with oversight, but the 
is composed of prominent thoroughbred owners, including its chairman, 
Harris, a cattle rancher and horse breeder.

State labor officials say the laws are not enforced. "They're cheating,"
Dean Fryer, a spokesman for the California Department of Industrial
Relations, the state labor department, said of the trainers. None of the
state's seven thoroughbred tracks and nine racing fairs have been 
in more than two years, he said, because when inspectors arrive, they 
given the stall. 

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