Appeal, No. 271, Jan. T., 1955, from order of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1954, No. 3450, in case of Pennsylvania Labor Relations Board V. Overbrook Golf Club. Order affirmed.
Louis H. Wilderman, with him Richard H. Markowitz, Paula R. Markowitz, and Wilderman & Markowitz, for appellant.
William A. Welsh and George W. Alexander, Jr., with them Paul F. Barnes, James F. Wildeman, Special Deputy Attorney General, Leon Ehrlich, Deputy Attorney General, and Herbert B. Cohen, Attorney General, for appellees.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
On a complaint to the Pennsylvania Labor Relations Board by the Hotel and Club Employees Union, Local No. 568, AFL, charging the Overbrook Golf Club with an unfair labor practice, the Board dismissed the complaint for lack of jurisdiction. On appeal by the Union from the Board's final order, the Court of Common Pleas No. 3 of Philadelphia County affirmed the action of the Board in an order which is now before us for review on the Union's appeal.
The Golf Club employed, part-time, a waitress in its dining room for a little less than six weeks when she was summarily dismissed. She charged that her dismissal resulted from her participation in organizational activity for the complaining Union of which she was a member in good standing. The waitress's dismissal for the alleged reason assigned by her formed the basis of the Labor Relations Board's complaint, on the Union's charges, that the Golf Club's action constituted an unfair labor practice under Section 6(1)(a) and (c) of the Pennsylvania Labor Relations Act of June 1, 1937, P.L. 1168, as amended, 43 PS § 211.1 et seq.
In its answer, the respondent Golf Club averred that "it is a purely non-profit organization, is not conducted for business or profit in any way, and is not engaged in an industrial activity or pursuit of any kind." The Club accordingly denied the jurisdiction of the Labor Relations Board to entertain the complaint and also denied that it had discharged the waitress for her union activity but, on the contrary, averred that she was discharged for just and sufficient cause.
The Board conducted a hearing on the complaint and answer and, thereafter, filed an opinion and a nisi order in which it held that it had jurisdiction of the matter and that the respondent was guilty of the unfair
labor practice charged. The respondent filed exceptions to the opinion and order. After argument thereon, the Board ordered that additional testimony be taken to determine the relative magnitude and character of the business done by the respondent's dining room and bar. On the basis of the testimony adduced at the supplemental hearing the Board filed a decision and final order whereby it revoked its nisi order, dismissed the charges and the complaint issued thereon and marked the case "closed" on its records. The final order was based on the Board's conclusion that the Overbrook Golf Club is not an "employer" within the meaning of Section 3, subsection (c), of the Pennsylvania Labor Relation Act for the reason that its operation is neither "industrial" nor "commercial".
The Board based its conclusion on the following findings of fact: "The evidence now discloses that the operation of the bar and the restaurant is primarily for the benefit and enjoyment of the members of the Respondent, and the use thereof by non-members is merely incidental. It appears that all non-member functions must be sponsored and paid for by a member of the Respondent; that the operations of the bar and the restaurant (operated at a substantial loss) are essentially private and not commercial or competitive enterprises; that the operation is not industrial; and that the operations are wholly within the scope of its charter as a non-profit country club. As the Respondent is a non-profit corporation, the operations of the bar and the restaurant [are] conducted not essentially for profit but primarily for the pleasure and accommodation of the members of the Respondent ...." ...