Before MILLER, FAHY and BASTIAN, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT. 1957.CDC.140
Hotel Employees Local 255, Hotel and Restaurant Employees
and Bartenders International Union, and Hotel and
Restaurant Employees and Bartenders
PER CURIAM: We affirm on the opinion of District Judge Morris, 147 F.Supp. 306.
FAHY, C.J., dissenting: I would reverse. It seems to me to be inconsistent with the terms of Section 9(c) of the Labor Relations Act, as amended, and therefore to constitute unlawful action by the Board, for it to refuse to assume jurisdiction over any representation case involving any hotel, notwithstanding "a question of representation affecting commerce exists."1 The Act says that the Board shall take jurisdiction of questions of representation affecting commerce. The verb "shall" was incorporated into Section 9(c) by the Taft-Hartley Act in place of "may" in the older Wagner Act.2 The language is also to be contrasted with that relating to unfair labor practice cases,3 where the Board is not required to file a complaint but is "empowered" to do so.4
There is no intimation in the Act that the public5 or employees or employers should be denied the benefits of the representation provisions simply because a hotel is involved. We need not decide whether the Board as a matter of discretion or policy can validly decline jurisdiction of some representation questions involving hotels, though commerce should be affected within the meaning of the Act. See NLRB v. Denver Bldg. Council, 341 U.S. 675.6 For in the present case the refusal of the Board to go forward was on the basis of a decision to exclude all questions of representation involving hotels. I think this is inconsistent with Office Employes v. NLRB, 353 U.S. 313, in which the opinion was handed down after the present case was decided by our District Court.
1 49 Stat. 453 (1935), as amended 29 U.S.C. § 159(c) (1952).
2 See 29 U.S.C. § 159(c) (1946).
3 Section 10 of the Act, 49 Stat. 453 (1935), as amended 29 U.S.C. § 160 (1952).
4 Of the four labor cases on which the District Court below relied for its decision on this point, three, NLRB v. Denver Bldg. Council, 341 U.S. 675; NLRB v. Stoller, 207 F.2d 305 (9th Cir.); NLRB v. Townsend, 185 F.2d 378 (9th Cir.), dealt with unfair labor practices. The fourth, Optical Workers v. NLRB, 227 F.2d 687 (5th Cir.), though a representation case, was a denial of jurisdiction by the Board "in that case," see note 6 (infra ) because of the small amount of interstate business done by the company involved. There was no declination of jurisdiction over an entire industry. In fact, in none of the cases relied upon below was there ...