Hotel Employees Local No. 255, Hotel and Restaurant Employees and Bartenders International Union v. Leedom

PETITIONER:Hotel Employees Local No. 255, Hotel and Restaurant Employees and Bartenders International Union
RESPONDENT:Leedom
LOCATION:Union Station

DOCKET NO.: 21
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 358 US 99 (1958)
ARGUED: Nov 10, 1958
DECIDED: Nov 24, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – November 10, 1958 in Hotel Employees Local No. 255, Hotel and Restaurant Employees and Bartenders International Union v. Leedom

Earl Warren:

Number 21, Hotel Employees Local Number 255, Hotel Restaurant Employees et al., Petitioners, versus Boyd Leedom.

Mr. Brown, you may proceed.

J. W. Brown:

Mr. Chief Justice and may it please the Court.

This case involves the right of the National Labor Relations Board to exclude the entire hotel industry from the operation of the Act.

You have heard in the earlier cases some detail of how the case originally arose.

Frustrated and somewhat, bewildered in Miami, the union ultimately turned to the National Labor Relations Board to obtain the election, which it was singularly unsuccessful in getting in Miami.

Although one must say, we certainly tried.

The Board — the Regional Director of the National Labor Relations Board dismissed our petition for certification without hearing and without investigation.

He did so on the ground, as he stated, that the National Labor Relations Board had a long standing policy not to take jurisdiction in the hotel industry as such.

You have heard some of the details of the Miami case that gave rise to our subsequently filing an unfair labor practice charge against the hotels that were involved and it might illuminate a question asked earlier to say that we did allege dismissals of strikers and employees for union activity and we did allege in these charges blacklisting.

These —

Earl Warren:

When was the relation to these cases that we have just heard, that the Board hold that they had no jurisdiction?

Was it before or after —

J. W. Brown:

We — we —

Earl Warren:

— after they started?

J. W. Brown:

It was shortly after the case has started.

They were still somewhat in the temporary injunction stage.

Earl Warren:

The first — is that the first time the — they had ever ruled on — on that definitively?

J. W. Brown:

In — in our case, no.

The — the Board has so ruled in the St. Louis Hotel Association case to the same effect.

Earl Warren:

What year was that?

J. W. Brown:

That was 1952.

We filed these petitions in 1955.

Earl Warren:

I understood counsel in the other case to say that this union had consistently refused to admit the — that the Board had jurisdiction.

J. W. Brown:

It is true that this union has on occasion.

It has been on both sides of the fence.

Its consistency has been in its inconsistency.

At times, the — the union has complained that the ad hoc treatment given it by the Board was not satisfactory.It took some cases and did not take some cases.

And then in 1952, in the St. Louis Hotel Association case, this union asked the Board not to — and to exercise a discretionary authority and not take jurisdiction.

And as a matter of fact, I argued that case myself and I am arguing today in exactly a contrary thing from bitter experience, the most bitter appeal of which was Miami, Florida where we were so completely frustrated that only the Board’s relief was the — the only thing we could think of other than a long history in court, what you can see we’ve had.

J. W. Brown:

So —

William J. Brennan, Jr.:

After the 1952 case, the Board has consistently refused to take any, hasn’t it?

Has it —

J. W. Brown:

That’s —

William J. Brennan, Jr.:

— discontinued the ad hoc practice?

J. W. Brown:

That’s correct.

After 1952, the Board has never taken jurisdiction in a hotel case.

Now —

Potter Stewart:

Here in the District of Columbia?

J. W. Brown:

Since 1952 —

Potter Stewart:

Well, it’s —

J. W. Brown:

Yes, in the District of Columbia.

I think — yes, in the District of Columbia, too.

It hasn’t taken any either.

Well, no, I’m not so certain about it.

Potter Stewart:

Well, it’s not —

J. W. Brown:

But I think there have been some cases —

Potter Stewart:

But —

J. W. Brown:

— in the District of Columbia.

Potter Stewart:

— it’s true that —

J. W. Brown:

But they —

Potter Stewart:

— that they exercised their discretion for a while, at least, not to take them —

J. W. Brown:

In —

Potter Stewart:

— elsewhere than in the District of Columbia and in one of the positions (Voice Overlap) —

J. W. Brown:

That is correct.

The Board’s position has not been consistent either even with regard to the District of Columbia.

Now, when — and our charge that was filed with the Board was dismissed subsequently by the general counsel of the Board on the basis of the Board’s dismissal of our certification proceedings.

The same policy, he said, extended to his division.

We filed a — a suit, the complaint with the District Court here, asking that a declaratory judgment be granted finding that the Board may not withhold this processes from an entire group of employers on the sole ground that those employers are hotels.

We also asked that the Board be directed to extend its processes to us.

J. W. Brown:

The District Court found that it had jurisdiction of the case, but it granted a summary judgment against us.

The Court of Appeals affirmed that the judgment with Judge Fay dissenting.

I’m not going to burden you with the record of interstate commerce in Miami, Florida, but just briefly supplementing what has been said.

That record indicates a substantial effect of the hotels which we sought to represent upon commerce.

We were -– we filed 464 hotels.

We said that the unit concerned was 6000 employees and there were many, many more outside the unit that we claim.

The hotel industry is the largest in all of South Florida.

It has a sales volume annually of $2.5 million — two — $101 million and has 2.5 million visitors annually from outside the State.

The package tour method is used in selling the business of the trip to Miami.

The Eastern Airlines sold 55,000 of these package tours in 1954 alone and these tours include hotel, meals, transportation back and forth to Miami.

Now, no one can argue very soundly that the hotel industry is either local in nature in Miami or that the hotel industry of Miami does not have a substantial impact upon commerce.

Would your — would your position in this case admit of any discretion in the Board to decline to take a hotel case, simply because it was a hotel case?

J. W. Brown:

No, sir.

I —

Handed over.

J. W. Brown:

It is our position that the hotels do not — that the Board does not have the jurisdiction or the discretion to decline to take jurisdiction over hotels because they are hotels.

In any degree?

J. W. Brown:

In any degree other than of course the de minimis rule which is —

Yes.

Charles E. Whittaker:

Now, may I —

William J. Brennan, Jr.:

— which would apply to everything.

Charles E. Whittaker:

Now, may I ask in that connection, sir.

Is that your position both with respect to 9 (b) proceedings as well as 10 (c) of unfair labor practice procedure, please?

J. W. Brown:

No.

It is not our position with regard to both.

We say that the — the — in its language, of 9 (c) is mandatory and that the Board does not have discretion to turn down a certification case.

We also say that 10 (a), the unfair labor practice section is discretionary with the Board and that the Board does not have to handle every unfair labor practice case which presents itself anymore than a prosecutor must press a prosecution of every complaint that comes to him.

He uses his discretion in those instances and determines whether it’s willful intent and so on.

Some of them are very minor, of course.

Charles E. Whittaker:

Is that based wholly or only partially upon the fact that 9 (b) has mandatory words, 10 (a) only empowers words?

J. W. Brown:

Yes.

That — our position is, first, that there is not — that hotels are employers within the meaning of the Act.

There is no exemption of hotels in this Act that is before you, Section 22 of the National Labor Relations Act defining employers.

When Congress intended to exempt a particular employer, it named that industry in the Act.Hotels are not so named in the Act.

So we say that they come within that definition.

Then we go on to the jurisdiction of the 9 (c) section, we say that that section is mandatory.

Once it is established, you are an employer within the meaning of the Act, which we say hotels are, then the Board shall take jurisdiction.

It’s the way the statute now reads.

It formally read under the Wagner Act period, “May take — may investigate, may conduct an election.”

But that language was changed in 1947 to read, “The Board shall investigate, shall hold the hearing, shall conduct an election and shall certify the results of that election.”

On that basis, we say that the Board does not have any discretionary authority, barring of course, that de minimis rule to withhold its jurisdiction from anyone covered by the Act and hotels are in that in that category.

Potter Stewart:

Mr. Brown, even under 10 (a), which of course is not corrected here, I suspect.

But it’s your position, is it not that even though there may be discretion in the Board under 10 (a) as to unfair labor practices, the Board would not be warranted in so exercising its discretion as to exclude a whole industry just because it happens to be a particular industry.

Is that —

J. W. Brown:

Yes.

Potter Stewart:

— your position?

J. W. Brown:

That is my position.

I think that’s consistent with the intention of the law.

The Board couldn’t — by a — an obvious indiscretion of that sort, an arbitrary decision say we’re not going to handle unfair labor practices of the hotels.

It — it would be —

Potter Stewart:

Any more than they could — would say we’re not going to handle unfairly labor practices of the steel industry?

J. W. Brown:

No.But it could do this.

If an unfair labor practice charge arose out of a hotel case and it might be one individual claiming he was blacklisted.

Such was our complaint in Miami.

The Board could listen to the story of the complainant and it could determine whether that particular complaint and that particular case had such an impact on commerce or whether it was of such importance that it warranted further proceedings.

But it could not say to anyone complaining, “You, your case arises out of the hotel and therefore, we will not take jurisdiction in your case.”

Charles E. Whittaker:

Let me see — see if I understand that, do you say then the Board shall not have discretion as to whether it will institute unfair labor practice complaints as to a complete industry?

J. W. Brown:

Yes, I would say that the Board does not have that authority.

Now as —

Charles E. Whittaker:

Can you file complaints — somebody in the courts have some control over when the Commission shall affirmatively — the Board shall file a complaint, you argue that?

J. W. Brown:

No, I’m sorry.

I don’t understand.

Charles E. Whittaker:

Do you argue that the courts have control over the situations in which the Board must file complaints?

J. W. Brown:

No, no, I do not, Your Honor.

I do not.

The language of the Act is very broad and discretionary with regard to its — the Board’s right to process unfair labor practice charges.

In the first instance, that is given to the general counsel.

I only say to you that if the general counsel made a ruling saying, “I will not, under any circumstances, take jurisdiction in a case arising out of a hotel.”

I would say that that determination would be as arbitrary as the one of which I’m complaining and that the courts should set it asides.

Charles E. Whittaker:

Or let’s do not use the words take jurisdiction unless we must for what I’m concerned about now, that has relationship to me to 9 —

J. W. Brown:

9 (c), actually, Your Honor.

Charles E. Whittaker:

— (c) proceedings, but the matter of instituting a complaint, who can compel the Board to do so?

Is there anyone?

Can the courts do it?

J. W. Brown:

No, I don’t think the courts can, Your Honor.

Charles E. Whittaker:

We wouldn’t part (Voice Overlap) —

J. W. Brown:

I — I —

Charles E. Whittaker:

— we wouldn’t (Voice Overlap) —

J. W. Brown:

I agree.

If I’d given that impression that I think the courts can compel that complaint I don’t think that’s so.

I don’t anymore than a prosecutor can be compelled to —

Yes.

J. W. Brown:

— present a case to the grand jury.

Charles E. Whittaker:

Thank you.

J. W. Brown:

Now, our position in this case is based, first, on Office Employes decided by this Court.

We say that Office Employees controls ours squarely.

We say that in that case, you held that the union was an employer within the meaning of the Act.

And then you went on to say that the Board may not exclude an entire class of employers, even the partial dissent in Office Employes said that while an entire class of the employees conceivably could be excluded from the operation of the Act, such exclusion would have to be for a valid reason.

In Office Employes, no such valid reason was found and the result of the case was a unanimous concurrence in the result.

Now, before, I have indicated to you that the industry in Miami is a — consider — has a considerable impact on commerce and I — before applying Office Employes to our case, I want to correct one misapprehension which may have gotten around inadvertently.

J. W. Brown:

And that is that the Board has ever found that the Board has never found.

It is our contention the Board has never found that the hotel industry is local in character.

There is no such finding anywhere.

William O. Douglas:

What do you say about Senator Taft’s statement that the District Court relied on?

J. W. Brown:

The — Senator Taft’s statement took place in 1949.

The — he was announcing to the world his opinion of what the Taft-Hartley Act meant.

Potter Stewart:

Which had been enacted two years earlier.

J. W. Brown:

Which had been enacted two years earlier.

And I might say, it was with full knowledge that the Greenbrier case was pending.

But then that’s — I really shouldn’t make the statement because it’s not in the record.

But having been a little bit involved in some of the earlier history of this conflicting position of our own Union, I’m aware of what went on.

For instance, is Senator Taft’s colloquy with Senator Pepper anymore impressive as to what the Act meant at the time of enactment in 1947, than the colloquy of the five senators which took place in 1955, which colloquy was quite the contrary of the Taft-Pepper discussion on the Florida Senate.

Senators Lyman, I believe, Morse, Humphrey and a few others.

And I am free to admit that they were fully aware of our Miami Beach case.

And I suggest that if you read the colloquy between Senator Pepper and Senator Taft, you can — you get sense that it was a sort of inspired colloquy.

Now, is it determinative of what the law meant in 1947?

I suggest, no.

And we say that there is no, not a single word in the record preceding he enactment of the Taft-Hartley Law indicating that Congress intended to exempt hotels from the jurisdiction of the National Labor Relations Act.

And not a single word recognizing what the Board claims was its long-standing policy since 1935, that it did not take jurisdiction over hotels.

No evidence exists of this long-standing policy.

Prior to 1949, the first time it was ever publicly announced.

And when I say no evidence, I mean, not in the annual report of the Board, not in any of its press releases and not in any of the recorded cases.

So how could Congress have — or anyone else have known of a policy of the Board not to take jurisdiction?

I suggest to this Court that taking jurisdiction in the Greenbrier case was for the purpose of announcing that policy for the first time, and that — that it wasn’t done too successfully in the Greenbrier case and so they had to take jurisdiction again in the St. Louis Hotel Association case to clarify it and make it clear that they were not going to take jurisdiction over hotels as such.

In Greenbrier, they made a mistake of also talking about effectuating the purposes of the Act.

Charles E. Whittaker:

You participated in the St. Louis case, did you not?

J. W. Brown:

I did, Your Honor.

Charles E. Whittaker:

And — and urged the Board to take the position it did take.

J. W. Brown:

You’re right, Your Honor, I did, and I regret it to this day.

But I represented the client that looked — and you might understand this.

J. W. Brown:

In those days, in 1947 when the Taft-Hartley Act was passed, unions were somewhat horrified and frightened by many — had problems that perhaps didn’t come to pass ultimately.

And they — what they didn’t know frightened them.

And so the position of unions was one of expediency and our Union was in that category.

Felix Frankfurter:

Now you’re on principles.

J. W. Brown:

No, sir.

Your Honor, we are on law.

William J. Brennan, Jr.:

You mean since — and since employees —

J. W. Brown:

We — we took the position of expediency then, we found out that we were wrong, we found out that we could, perhaps, live with some of the Taft-Hartley features and that it had certain advantages too.

And when — now, we — in 1955, we sought the use of the Board’s authority.

Felix Frankfurter:

Whatever posit effect, it’s like this form that you push your position because you didn’t want to get before the Board?

J. W. Brown:

Because we felt —

Felix Frankfurter:

Did the Board — did the Board pass a fortiori?

J. W. Brown:

That might have been our opinion, Your Honor.

We felt in those days that there were a lot of penalties in this new law and we felt that we would make a sacrifice —

Felix Frankfurter:

At least heard of at the time.

You (Voice Overlap) —

J. W. Brown:

Yes, exactly.

We thought we would still clear the penalties and give up the advantages.

Felix Frankfurter:

And our problems have — out of the case that you’re now finding more reason to this.

J. W. Brown:

Well, may I say that not all of them have appeared, Your Honor.

At least, we have found — effected a new balance of the merits and the demerits in this matter.

Now, Your Honor, the — the St. Louis case was turned on this point.

I — I might say that our case, the Board declined jurisdiction based on the St. Louis case.

In the St. Louis case, which affects us, the Board held that the reason it would not take jurisdiction was because Congress had intended to exempt the hotel industry.

It reasoned in this fashion.

You can’t find the exemption in the law, but it reasoned this way.

Our policy has been of long-standing.

It was known to Congress in 1947.

When Congress reenacted the basic National Labor Relations Act in 1947 it, therefore, reestablished our policies and wrote them into the law in effect.

Now, —

Charles E. Whittaker:

Is it fair to assume that that’s the argument you made to the Board or not?

J. W. Brown:

Pardon?

Charles E. Whittaker:

Is it fair to assume that that is the argument you made to the Board in that case?

J. W. Brown:

No, I did not make that argument to the Board.

When I argued in 1952, you mean?

Charles E. Whittaker:

Yes.

J. W. Brown:

In 1952, I did not argue that at all.

I simply said that the — I was suggesting that the Board use its discretionary authority to — not to take jurisdiction in our case.

And I’ve made it very plain that we — we felt that the Board did have jurisdiction, but I urged only the discretionary position.

Now, the policy of the Board’s — though incidentally, the position that the Board took in St. Louis Hotel Association case and in our case in 1955, is its position today.

Two months ago, the Board announced its rules — of the jurisdictional rules, terminations that it uses to determine whether it will take a case, and it indicated that it would not take jurisdiction over hotels and in making that indication it said, and I quote from Page 15 of our brief, “The Board’s long-standing refusal to assert jurisdiction over the hotel industry itself has rested on the conclusion that Congress intended to exempt the hotel industry.”

Now, I’ve indicated the false assumptions that the Board made in coming to the conclusion that Congress intended to exempt the hotel industry.

First, there never was any long-standing policy.

It’s never been recorded anywhere.

And secondly, the only recorded cases are once in the District of Columbia where the Board did take jurisdiction.

And since the Board was talking about hotels, as such, as an industry, it’s inconsistent that they took jurisdiction over any hotels, whether they were in the District of Columbia or not.

Felix Frankfurter:

Mr. Brown, may I ask you this?

That before, the Board reasoned enunciate this or understand this assumption of the cases.

Am I wrong in recalling, that that power representation before the appropriate — Appropriations Committee by the Board that they will take more cases and they will relax some of their restrictions if Congress gives them more money?

And Congress did appropriate more money.

Thereupon, the Board says, “We now have more money, therefore, we can have more conclusions, therefore we have more facilities and therefore it will be wiser, et cetera, et cetera.”

J. W. Brown:

That —

Felix Frankfurter:

Now, what’s the variable of that on the intention of Congress?

J. W. Brown:

I don’t think that the —

Felix Frankfurter:

Was it for these matters — these — that I am dreadful.

J. W. Brown:

Well —

Felix Frankfurter:

20 of the chairmen or whoever spoke to the Board.

But I gather from what I have read that that was put before the Committee in the Congress as a reason for their restricted assumption.

J. W. Brown:

Yes, but, Your Honor —

Felix Frankfurter:

Congress then responded to them.

Felix Frankfurter:

Even the matter must have been or am I wrong in thinking there were before Congress.

J. W. Brown:

Again, they are post — post enactment situations.

Felix Frankfurter:

No, no.

This is not post-enactment.

This is an appropriation which as much a legislative action as a bill is passed.

J. W. Brown:

Are you referring to the — what year?

Felix Frankfurter:

I’m referring to 1958.

J. W. Brown:

Current — oh, currently.

Well if, Your Honor, please, the Board has always assumed that it has the — a discretionary authority.

Now, Congress in applying 9 (c), even though the language of 9 (c) is mandatory.

Now, it has persuaded — it has gone to Congress and said, “Either we do have jurisdiction or we just — but we can’t — we simply can’t handle it with the funds we have and, therefore, there’s a limitation on our exercising or doing our duty under the law —

Felix Frankfurter:

It’s not our duty, we’re talking about (Inaudible) of classifying the cases that we obtain, not picking them one by one, but classifying and saying we have limited resources of men and materials, we can’t do all of it.

Therefore, impliedly, there’s authority in us to effectuate the statutes by — by taking — taking those discrimination that will best enforce the law and (Inaudible) more amenable than some others.

J. W. Brown:

Oh, what I don’t recognize as the Board made any — had any discussion on industry classification.

The classification was on a — the basis of size.

It was a question of how far down the ladder they went.

Felix Frankfurter:

That is one — that’s one of its distinctions.

J. W. Brown:

But I don’t know anything about the classification of industry because I don’t know —

Felix Frankfurter:

Is it in your case?

J. W. Brown:

I — I don’t know them — of them representing that to Congress, Your Honor.

I have one more point that I want to make before saving about two or three minutes for rebuttal.

And that is that Section 9 (c) of the Act is mandatory.

I’ve indicated how the language was changed in 1947.

The “mays” in 9 (c) were changed to “shall”, and I’ve indicated that if the Board has found a commerce impact in the case, it has no discretion.

The Board will argue that — that the history of the Act doesn’t support the language, but that’s quite a novel theory that the history must support the language.

If the language is clear, I think it stands on its own feet.

The Board will — will also argue that certification is only preliminary to — to an unfair labor practice procedure and that if they have discretion in the unfair labor practice section of — under 10 (a) that, therefore, they should have discretion under 9 (c).

We say that that is entirely fallacious that the certification procedure is equally important to the unfair labor practice procedure, that it is not merely preliminary, it’s a separate division, a separate function of the Board and that it is perfectly proper for the Board to — the Congress to grant discretion in one case and make the other — that is the unfair labor practice end of it — and to make the handling of certifications a mandatory function of the Board.

Earl Warren:

Mr. Manoli?

Dominick L. Manoli:

May it please the Court.

Dominick L. Manoli:

I think at the outset I should make clear, perhaps it hasn’t been made clear, and as for the Chief Justice’s question that the Board throughout its 23-year history has not asserted its statutory power over hotels in the several States.

Now, I think it is not entirely without significance.

As Mr. Brown has already indicated, that four years before the Board decided the case, which is now before this Court, the International Union, which is the petitioner here, appeared before the Board and at that time, the International defended the policy which it so vigorously attacks today.

Indeed, I might say that I for one is tempted to read — to answer the arguments that’s been made here today by simply reading excerpts from the argument that was made by petitioner’s counsel before the Board at that time.

Now, at that time, petitioner argued before the Board that this was a long-standing policy which had received the approval, the endorsement, not only of the union, the largestunion in this field, but as of management as well and of Congress.

Secondly, it urged the Board not to depart from this policy.

And finally, it warned the Board they would be making a serious mistake if it departed from this policy.

Now, it may well be that the wisdom of the Board’s policy may be open to argument, but I suggest, Your Honors, that the pendulum has not swung so far that this policy which the union so strongly endorsed has now become arbitrary, capricious and — and beyond the Board’s policy to adopt.

Now, let me explore — let me explore the basis of this change — change of attitude.

Initially, it is argued that the Board does not have the power to decline, would assert jurisdiction on representation cases such as this one.

Of course, this argument goes beyond a hotel.

It covers everybody.

And if this argument is valid, then, of course, all of the Board’s jurisdictional window through all the Board’s jurisdictional standards, its administrative criteria for exercising this legal jurisdiction are knocked out, insofar as representation cases are involved.

William O. Douglas:

Well, some of them went with the opposite, the employees case, didn’t they?

Dominick L. Manoli:

Well, the only one that went out, Your Honor, was the — was the standard relating to unions when they were acting as “employers.”

Now, if I may by way of anticipation of my argument, I do not believe that the decision of this Court stands for the proposition that the Board may never exclude a group of employers as a class.

What I think that decision stands for is that in that particular case, the reason which the Board had given for excluding labor organizations as — when acting as employers for excluding them as a class, that those reasons were without rational basis and both the majority and the concurring opinion agreed on that.

But — and then the second part was that the express inclusion of unions within the — within the definition of the term employer in the statute plus the legislative history, be it — be behind that — behind that precluded the Board from adopting a standard with respect — with respect to the labor organizations when acting as employers, which would exclude all of them.I suggest, Your Honors, that the teaching of that decision, the significance of that decision is that the critical factor is not whether the Board has excluded a group of employers as a class, but rather the critical factor is whether the considerations, which underlies such a policy are rational and within the Board’s competence to make.

Felix Frankfurter:

You’re — you’re making me feel that the concurring dissented opinion under that with four of us is quite redundant, and all of a sudden, they’re confederates of majority.

Dominick L. Manoli:

No, Your Honor.

No, Your Honor, because where you parted company there, it seemed to me, where the minority or the concurring members of the Court parted company from the majority was on the question whether the history — whether the history of the inclusion of labor organizations when — within the definition of the term “employer” whether that precluded the Board from — from — declined to a certain jurisdiction over them as a class.

The concurring members of this Court thought that it did not.

The majority thought that it did.

That was the difference between — that was the crucial difference between the two.

Felix Frankfurter:

I think — I think we restricted, if I understood you, the Court’s decision to the specific situation before the Court, namely (Inaudible) and they would also — unions present the employers but this flavor of majority, this have to very different (Inaudible) of this redundancy, wasn’t it?

Dominick L. Manoli:

I think so.

I think I may concede that much.

The —

Hugo L. Black:

You don’t go by a flavor.[Laughter]

Dominick L. Manoli:

I’m sorry, sir.

Dominick L. Manoli:

I didn’t hear you.

Hugo L. Black:

Well, you don’t go by the flavor.[Laughter]

Dominick L. Manoli:

Well, sometimes it may be important in tasting food.

Felix Frankfurter:

You might as having flavor in this Court.

Dominick L. Manoli:

The Court —

William J. Brennan, Jr.:

Mr. Manoli, may I ask —

Dominick L. Manoli:

Certainly, sir.

William J. Brennan, Jr.:

— the administrative criteria would exclude how much of this industry if otherwise you want to handle hotel cases?

Dominick L. Manoli:

The administrative criteria?

William J. Brennan, Jr.:

Yes.

How much of the industry would they exclude?

Do you have any idea?

Dominick L. Manoli:

It excludes all of them.

William J. Brennan, Jr.:

No, no.

I say if you ought to be taking hotel cases —

Dominick L. Manoli:

Yes.

William J. Brennan, Jr.:

— they would still be applied to individual hotels, your administrative criteria.

Dominick L. Manoli:

We don’t have one that applies to hotels.

Now, conceivably, the Board might — might — if it wanted to assert jurisdiction over hotels.

William J. Brennan, Jr.:

Well, may I ask, aren’t none of — aren’t none of the current criteria adaptable for application to a hotel?

Dominick L. Manoli:

Well, possibly we could use the one say dealing with — with office buildings where the standard is 200,000.

Now, if we took its tenure like 200,000 and I haven’t had figures about 300,000.

So if you don’t mind —

William J. Brennan, Jr.:

Yes.

Dominick L. Manoli:

— I’ll give you those.

The statistics are that there are approximately about 25,000 hotels in the country.

And of that number, only 6% — only 6% do a business of 300,000 or more annually.

So assuming that the Board did adopt such a standard as 300,000, we would cover approximately 6% of the 25,000 hotels.

William J. Brennan, Jr.:

Something like 1200 hotels.

Dominick L. Manoli:

That’s correct, sir.

Dominick L. Manoli:

That’s correct.

Potter Stewart:

So we can also assume that this could not be a stupendous burden for the Board in its financial or personal — or personal resources?

Dominick L. Manoli:

It may not — it may not be, Your Honor.

It may not be very burdensome duty for the Board to take, but I think that there are considerations — there are considerations which point the other way.

And namely, if I may briefly summarize it, the Board has thought of the fact that which has made for the exclusion of the industry, have made for exclusion of the industry as a whole.

And secondly, if the Board were to adopt such a standard, that I just suggested, 300,000, we would be taking control or regulating a — a disproportionately small fraction of the industry.

And that it may well appear to the Board that on that it is better to leave them on an equal footing rather than take, let’s say a very disproportionate small percentage of the industry as a whole.

Does it —

Felix Frankfurter:

So as the burden on the Board is concerned, the burden would be more or less, if the officers has gone the other way.

Dominick L. Manoli:

I’m sorry, sir.

I’m —

Felix Frankfurter:

So far as burden on the — on the Board’s facility in time, et cetera, appropriation.

Dominick L. Manoli:

Yes, sir.

Felix Frankfurter:

Am I wrong in guessing that the burden probably would be less if the officers are subject with — if the burden would be less, but the officers will be put on to your jurisdiction in then —

Earl Warren:

Officers?

Felix Frankfurter:

I mean, the officer’s case.

The office building — the office building or the Union — the Union case.

Dominick L. Manoli:

In — in the union case —

Felix Frankfurter:

Yes.

Dominick L. Manoli:

— that the burden would be what?

I’m sorry.

I — I misunderstood the connection.

Felix Frankfurter:

The number of cases in the (Inaudible) the volume of business that we’re asking will come to you now on the assumption that unions are within the statute?

Dominick L. Manoli:

Yes, sir.

Felix Frankfurter:

We’d like to (Inaudible)

Am I wrong —

Dominick L. Manoli:

Yes.

Felix Frankfurter:

— about that?

Dominick L. Manoli:

Yes.

Oh, that’s quite true.

Dominick L. Manoli:

That’s quite true.

Charles E. Whittaker:

Mr. Manoli, what was the first reason if you handled only certification issues —

Dominick L. Manoli:

Well —

Charles E. Whittaker:

— for all of them?

Dominick L. Manoli:

Though at times consuming, too, Your Honor, just like they perhaps they — they don’t present a series of problems of the unfair labor practice this case is due, but these cases do present more than simply the problem of holding an election and counting of votes.

They very frequently involve some very serious legal questions, size of units, contract bar questions and other questions.

And many of these cases go to the Board itself.

Go to the Board itself, the five-member Board for final decision.

And I might say that the case load — the case load is very, very great with respect representation cases.

That it is also with respect to unfair labor practice cases.

As — during — currently — currently, our case load is running approximately 1000 per month and roughly 60% of that figure are representation cases and I don’t have the percentage of those of which ultimately reach the Board for decision, but the percentage is substantial.

Felix Frankfurter:

Aren’t there some questions also that the procedure of the elections of different situations?

There isn’t a uniform procedure (Inaudible)

Dominick L. Manoli:

No, no.

And there —

Felix Frankfurter:

(Voice Overlap) in your case but these are not now, needing to be tried in this date on or the other but that is fact, isn’t it?

Dominick L. Manoli:

That’s a — that’s a fact, Your Honor.

That’s right.

Now —

William J. Brennan, Jr.:

I would suppose the hotel you might have some serious unit questions, would you not?

Dominick L. Manoli:

Well, I —

William J. Brennan, Jr.:

Meaning cooks, waiters or they’re all in this hotel employees group?

Dominick L. Manoli:

I — I don’t know what the answer to that is, Your Honor, without having a full record, but these are those potential problems involved.

William J. Brennan, Jr.:

May I ask one other thing?

You suggested before that a $300,000 test would exclude roughly, I think, you said about 94% of the industry in any event.

Dominick L. Manoli:

Yes, sir.

William J. Brennan, Jr.:

Your present tests — can you give us any idea what do they exclude of the industries to which they’re applied generally?

Dominick L. Manoli:

The others?

I don’t have that — those figures, Your Honor.

I know what the tests are, but I don’t have the percentage.

Dominick L. Manoli:

I don’t have the percentage.

Felix Frankfurter:

You’ve expanded them now, haven’t you?

Dominick L. Manoli:

Yes, we have.

We have, after the Congress voted us in several substantial increase in our appropriations, we’ve expanded and partly, in response to this Court’s suggestion in Guss.

In Guss that we tried to eliminate as much of this no-man’s-land that has existed — that existed in this — in this field.

Now, to continue with the argument that the Board is required, the Board is required to — to entertain, process representation petitions.

We think that that argument is insubstantial.

And if I may very briefly summarize our position on that, then I will go on and speak about hotels.

In essence — in that, the Board — the Board from its — from the very beginning of its history as the — asserted the problem not to exercise its statutory jurisdiction to the hilt.

Prior to 1950, it did this on a case-by-case basis and since 1950, that’s done so on the basis of former administrative standard which had adopted.

Now, essentially — essentially, the Board’s practicing this with respect the rest, I think, upon necessity.

The — from the very beginning, from the very beginning, and this has been a continuing practice, the Board has been compelled as Chairman Herzog once testified before a Congressional Committee, the Board has been compelled to avoid a diffusion of its resources and facilities and to allocate its time and energy in such a manner as we’re permitted to do it to carry out its function in the most effective manner, in such a manner that it was permitted to effectuate the purposes of the statute.

The magnitude of the test before the Board, I think, is indicated as I said by a moment ago, by this current case in load that exceeds 1000 per month and our backlog at the end of fiscal 1958 was over 6000 cases, and quite recently, the present Chairman of the Board testified before the Congress that if the Board has to do is work in an effective manner, its case load should not — it’s backlog — its backlog of cases should not exceed 3000 per year.

Now, the point that I’m making, Your Honor —

Felix Frankfurter:

How much (Inaudible)

What would it be in years or months?

Dominick L. Manoli:

About 1000 a month they’re running now, the intake of cases —

Felix Frankfurter:

So that’s four times as much as the Chairman said you can (Inaudible) these cases?Yes.

Dominick L. Manoli:

The Chairman said we shouldn’t have a backlog of more than 3000 cases.

Felix Frankfurter:

What it that now?

Dominick L. Manoli:

Our backlog is, at the end of Fiscal 1958 was around 6000 cases, Your Honor.

Now, the point —

Earl Warren:

At that time — at that time, didn’t the Board represent in Congress that — that it didn’t need any more money to carry out its (Voice Overlap)

Dominick L. Manoli:

Oh, no, Your Honor.

Earl Warren:

I thought we found that in the Guss case.

Dominick L. Manoli:

I understand, but we’ve gone back to the Congress today in this last year.

We went back there and we said that in effect that if Congress wanted us to take on more of a load, it should give us more money so we can —

Felix Frankfurter:

Just merely a million dollars, isn’t it?

Dominick L. Manoli:

A million and a half, Your Honor.

A million and a half and I might say that we are —

Felix Frankfurter:

(Voice Overlap) the Congress say a million and a half?

Dominick L. Manoli:

Yes, sir.

The — perhaps that was the — there were other factors that I won’t mention here — [Laughter]

The — what I’m suggesting, Your Honors, is that in the Court’s power to decline to assert its jurisdiction they have, if there were nothing else, sure, would have to be implied from sheer necessity.

But then we need not rest upon that.

The underlying theory of the statute, I think, makes evidences a congressional purpose not to require the Board to assert its jurisdiction to the hilt.

I’m not going to go into the legislative history because I haven’t got the time.

We’ve set it forth in our — we’ve set it forth in our — our brief.

Congress has repeatedly looked into the Board’s policies with respect to decline to assert its statutory jurisdiction to the hilt.

Between 1948 and 1950, at least three different congressional committees looked into this problem and they did nothing about it.

Now, the argument is made that — that Section 9, Section 9 of the statute, unlike Section 10 which deals with — which deals with unfair labor practices and Section 9 which deals with representation cases is phrased in mandatory language.

Now, you — and that because it’s phrased in mandatory language, the Board cannot decline to process representation and petitions unless they are of a de minimis character.

Now, there are several answers to this contention.

In the first place, one would have supposed that in the face of the Board’s 23-year history of declining to assert jurisdiction to the hilt.

Its legal power to the hilt whether over representation cases or unfair labor practices, one would have supposed that in the face of that history, there would be some mention of this problem in connection with Section 9 that Congress intended to change that policy and yet, there is not a word about it in either the legislative debates or the legislative history.

Secondly, it would be something of an anomaly to force the Board to assert its jurisdiction to the hilt in representation cases, and yet permit the Board, and petitioner acknowledges the Board has this power and yet permit the Board to decline to assert its jurisdiction to the hilt and the unfair labor practices which looks to the enforcement of the certification.

Charles E. Whittaker:

May I ask you then, Mr. Manoli, if it not true, sir, that in 1947 Congress, did change the wording for —

Dominick L. Manoli:

It did, Your Honor.

Charles E. Whittaker:

— Section 9.

Dominick L. Manoli:

Yes.

It did, Your Honor.

It — it changed the wording, but I venture to say that we cannot look merely to the word — use of the word “shall” and stop right there.

Looking to the statute as a whole, if particularly — if particularly in the — in the light of the absence of any talk, of any talk by Congress, that it meant to change this 20 — as I say this policy of the Board extending back for 22 years of not asserting its jurisdiction to the full.

Looking at it in that light, I think that there is an explanation of why Congress changed it from “may” in the Wagner Act to “shall”.

And the explanation, I believe, lies in this Court’s decision in the Inland Empire case.

In that case, which was decided in 1945, the problem came up whether the Board could hold a representation hearing, which, of course, is part of the investigation after the election.

The Board did that for reasons I won’t go into at the moment.

It held an election and then subsequently held a — the hearing with respect to the contentions of the parties as to units and what have you.

This Court — this Court said that the statute did not require the Board to hold the representation hearing prior to the election.

Indeed, the statute didn’t require the Board to hold an election at all, that the Board could determine whether a union was a representative of a particular group of employees on the basis of something other than an election.

Dominick L. Manoli:

Now, I think, although I cannot point to any legislative history that supports this, my — my own — my own notion is that the language of the statute was designed to meet that problem.

In other words, it was designed to make the Board hold a representation hearing prior to the election and it was also designed to preclude the Board from certifying a union except on the basis of — of an election.

Charles E. Whittaker:

And do I understand that the counsel provided (Inaudible)

Dominick L. Manoli:

Yes, sir.

Charles E. Whittaker:

(Inaudible)

Dominick L. Manoli:

It — sir, this section, Your Honor, was simply not — they were not concerned with this problem.

It would be unreal.

It would be unreal to say that Congress in here — in this particular section of the statute intended to change to what I’ve — to what I’ve characterized as a 22-year-old policy on the part of the Board of declining to assert its jurisdiction to the hilt in representation cases without saying a word about it in the legislative debates and the legislative history.

Such a change would have been so significant that it could not have escaped comment and there is no comment in the legislative history on this problem.

Earl Warren:

Why wouldn’t they carry the same thing through to — to Section 10 that use the word “shall” there as well as “may” and —

Dominick L. Manoli:

Well —

Earl Warren:

(Inaudible)

Dominick L. Manoli:

The —

Earl Warren:

Why do they use — didn’t that two words set off against each other have some meaning in 9 and 10?

I think not, Your Honor.

And, again, I come back to my explanation that Congress left Section 9 — Section 10 rather, as it was in the original Act, said “empower”.

But when they came to Section 9, they were concerned with different kind of a problem.

They were not thinking of Section 9 if that was a test in permissive terms and it is my own — my own view — my own view that what Congress was concerned here was to make clear what Section 9 had not made — had either not made clear or simply was the other way.

And namely, that they want to make sure that the Board would hold an election prior to or — or to conduct the investigation including the representation hearing prior to the — to the election.

And secondly, that the Board could not issue a formal certificate as it had been doing under the Wagner Act on the basis of — of cards that it would have to issue a certification solely on the basis of a Board election.

And I think if that section was designed to — to reach only that problem and no more.

Now, let me go on now to the Board’s hotel policy.

As I said earlier, this policy has been the Board’s policy throughout its history.

The Board has not asserted jurisdiction over hotels in the several States.

It has, as Mr. Justice Stewart pointed out a moment ago, we have asserted jurisdiction over hotels in the District of Columbia, and until recently, in the — in the territories.

Now, this policy of the Board is part of its overall program of utilizing its time and its energies —

Felix Frankfurter:

Over the district, you say it more or less.

Dominick L. Manoli:

Yes, we do.

Felix Frankfurter:

Yes.

Dominick L. Manoli:

Yes, we do.

Dominick L. Manoli:

And the reason we do —

Felix Frankfurter:

Yes.

That was different.

That would take care of your differentiations.

That would take care of your points, that you — you don’t want to take on your practice at the end of this.

Dominick L. Manoli:

Well, we take him in the — we take him in the district, Your Honor, because as we read our statute, we have plenary power.

Felix Frankfurter:

It doesn’t have to concern it but — therefore taking care of the point that if — if this jurisdiction is requested by the petitioner, you’d be taking only a small fraction if it isn’t — where the district can’t decide.

Dominick L. Manoli:

Yes, we’ve — that’s right.

Earl Warren:

Do you take care of all the hotels in the district regardless of size —

Dominick L. Manoli:

We do.

Earl Warren:

— or do you have any de minimis rules?

Dominick L. Manoli:

None that I know of, Your Honor.

Felix Frankfurter:

Your (Inaudible) as well as the United States, and the district.

Dominick L. Manoli:

That’s correct.

We were like a State Board within the district.

Now —

(Inaudible)

Dominick L. Manoli:

Yes, I’m getting to them right now.

And before I get to the reasons, I would like to say this as a preliminary matter that I think the problem before this Court in this case is not whether this — this Court or any other reviewing court would make the same kind of a policy judgment with respect to a hotel that the Board has made.

Indeed, I think that our problem here is not whether even the Board’s decision, policy is a wise one, but rather, the question here, whether this is a permissible judgment within the Board’s competence to make.

And in —

Potter Stewart:

In that connection, Mr. Manoli, may I ask you this?

Is there any other entire industry affecting interstate commerce over which the Board has refrained from exercising any jurisdiction?

Dominick L. Manoli:

Under our present standard, the hotel industry is the only one.

Potter Stewart:

Is the only one.

Dominick L. Manoli:

That’s right, under our present standards.

We have had other — other industries over which we have declined to assert our jurisdiction generally among them under in the Wagner Act based, for example, with the construction industry, local transit, taxi cabs, hotels, and so forth, but under — our standards —

Potter Stewart:

It remains today only the hotel industry.

Dominick L. Manoli:

Only the hotel is the only one on the Board’s present standard.

That’s right.

Dominick L. Manoli:

Now, let’s examine the reasons which underlie the Board’s policy with respect to hotels.

I think it’s perfectly clear, by now, that we do not deny — we do not deny that — that the hotel industry, generally, is beyond our legal power and it may well be that many hotels come within our statutory jurisdiction.

But saying that — saying that, nevertheless, the hotel industry as a whole does have what might be phrased as a — “an essentially local flavor”.

The industry here is — the business of the industry — the business of the industry is furnishing of lodgings, furnishing of lodgings to more or less transient customers.

And the business as a whole is composed of relatively small units.

As I’ve indicated earlier in answer to Mr. Justice Brennan’s question, of the 25,000 hotels in this country, 85% of these hotels do a business of less than 100,000 per year.

(Inaudible)

Dominick L. Manoli:

Pardon me?

(Inaudible)

Dominick L. Manoli:

Gross, that’s right.

That’s right.

Potter Stewart:

That’s dollars, not people.

Dominick L. Manoli:

That’s dollars.

That’s dollars [Laughs]

Earl Warren:

Mr. Manoli, have you done the same thing in the other — in territories to — which have a state government?

Let’s take the Virgin Islands.

I — I understood that over there, the Board had refused to take jurisdiction.

Dominick L. Manoli:

We —

Earl Warren:

Why would you do that?

Dominick L. Manoli:

The Board there in a decision they issued about there on the Virgin Island case issued in 1955 or there —

Earl Warren:

What is the distinction there between — between the District of Columbia, let us say and — and there, you — you justified or keep the distinction between the District of Columbia, the other States?

Dominick L. Manoli:

Well, Your Honor, I’ve examined that decision of the Board in Virgin Islands, and I’m afraid I cannot give you an explanation or a rational distinction between the two, and I will not attempt it.

The — now, to continue then with the reasons which underlie the Board’s policy — I’m sorry, Your Honor, I mean that.

I cannot venture on my own a rational explanation why we don’t take jurisdiction over hotels in the Virgin Islands.

The —

William O. Douglas:

Well, the Virgin Islands case represented a change of policy.

Dominick L. Manoli:

Yes, it did, Your Honor.

Yes, it did.

But we (Voice Overlap) continue our — well, we still continue to assert plenary jurisdiction over hotels within the district.

And I have to say, “I cannot advance any rational explanation for the difference between taking jurisdiction over hotels in the district and not taking them in the territories.”

Charles E. Whittaker:

(Inaudible)

Dominick L. Manoli:

Pardon me?

Charles E. Whittaker:

Rational or not, there are some evidence.

We — that’s a nice place to take a vacation.[Laughs]

Dominick L. Manoli:

Well, perhaps someday I would (Inaudible).

The — now, a still further factor that I think that has played a part in the (Inaudible) and here as to this policy, has been the fact that the industry as a whole has enjoyed and I’m quite aware of the difficulties that had been going into and the case was argued before this one.

But the industry looked at as a whole and over the years has enjoyed, a relatively stable, labor relations (Voice Overlap) —

William J. Brennan, Jr.:

Tell me, Mr. Manoli, do you know offhand, I know your time is short, but this is the part that really interests me.

Do you know whether in the States where the 6% of hotels are located?

There are State Labor Relations Act, primarily.

I know there would be in New York that are not in New Jersey.

You have only that manage to the hotels.

It’s not —

Dominick L. Manoli:

Well —

William J. Brennan, Jr.:

— not —

Dominick L. Manoli:

Well I —

William J. Brennan, Jr.:

— how about the problem in the —

Dominick L. Manoli:

I had me a study made of that, but I’m not sure I could give it to you accurately.

But in my recollection here, that these larger hotels are in the cities — in Miami area, also in the New York area and the Chicago area and that and beyond the West Coast, most likely.

William J. Brennan, Jr.:

Chicago has a state act or does Illinois have a state act?

Dominick L. Manoli:

I don’t know.

Earl Warren:

At least, this State does not —

Dominick L. Manoli:

The State of Florida?

Earl Warren:

(Inaudible)

Dominick L. Manoli:

No, sir.

Potter Stewart:

It has a — it has lot of legislation, but no machinery to —

Dominick L. Manoli:

That’s correct.

Potter Stewart:

— (Voice Overlap) to the National Labor Relations Act.

Felix Frankfurter:

I suppose you would say apparent difference as to state it have (Inaudible)

Dominick L. Manoli:

I would not suggest that difference, Your Honor.

Felix Frankfurter:

But that would be the more rational than the Virgin Islands.[Laughs]

Dominick L. Manoli:

Now, a further factor that I think has played a part in the Board’s — in the Board’s appearance to as far is has been the fact that as I’ve mentioned before that this has received a whole-hearted — its approval, or at least support, at least until this case are both labor and management.

Indeed — indeed, representatives of both labor and management in 1948 appeared before Congress when the Board’s then general counsel indicated that he was going to assert the statutory jurisdiction of the Board to the hilt and issue complaints involving hotels.

Representatives of both this union and of management went before Congress and strangely opposed.

Then it changed in the Board’s policy.

And indeed, in 1951, they came before the Board itself and are advanced in support of the Board’s policy.

All the arguments which I am making today in support of that policy.

William O. Douglas:

What year was this, Mr. Manoli?

Dominick L. Manoli:

1951.

Now, finally — finally, I think there is cogent evidence.

There is cogent evidence of the legislative proof of the Board’s policy and let me mention those very briefly.

In 1947, when Congress was considering to amend — to Taft-Hartley, the suggestion was made that the Board’s policy had left it in doubt as to whether hotels came within the Board jurisdiction or not.

And the suggestion was made that an amendment be passed, which in effect would require the Board to depart from its policy and to assert jurisdiction over hotels.

Nothing came of that proposal.

Second — secondly, in 1940 — in 1948 — in 1948, when the Board’s then general counsel, as I said a moment ago, indicated a purpose to assert the Board’s jurisdiction to the hilt in the issuance of complaints, both representatives of management and of the union went before a congressional committee and opposed to any of the parts from the Board’s policy and the upshot of that was at that committee approved to the Board’s policy.

Again, in 1949, Senator Taft, it’s true that this comes after — after the Act was passed and I think we cannot minimize — we cannot minimize the views of a man like Senator Taft on this piece of legislation.

In 1949, Senator Taft, in answer to a specific question put to him on the floor, the Senate not only implicitly approved the Board’s policy, but went even so far as to say, and while we ourself don’t take the position, but it’s indicative of this, approved of Board’s policy, he went so far as to say that he didn’t think that the hotels were intended to be covered by this statute.

Now, more recently — more recently in 1955, as a result of the difficulty that the union has been experiencing in Florida which have been brought to this Court, in the case that was argued before this one, Senator Lehman introduced a bill which would in effect have required the Board to assert it’s jurisdiction over hotels.

Nothing came of that either.

Now, taking all of these factors into account, we believe that the judgement which the Board has made here is a permissible one which lies within its competence to make.

Charles E. Whittaker:

(Inaudible)

Dominick L. Manoli:

Yes

Charles E. Whittaker:

(Inaudible)

Dominick L. Manoli:

1955, Your Honor.

Charles E. Whittaker:

1955.

Dominick L. Manoli:

Yes.

It’s in our brief.

Earl Warren:

Their hearings were supportive of that bill?

J. W. Brown:

No, they were debates.

They were debates, but no hearings that are — no hearings.

J. W. Brown:

First, I rise to call the Court’s attention to the fact that statutory considerations are not at all behind the Board’s policy of excluding hotels.

The Board has plainly stated its policy and I think I read it to you.

You may have missed it.

It’s on page 15 of our brief.

The Board — the — the Board has — the statement of the Board that it has been its administrative policy, and hereto since 1953, the — the Board’s long-standing refusal to assert jurisdiction over the hotel industry has rested on a conclusion that Congress intended to exempt the industry.

Now, that statement is two months old and that is the basis.

But there are no budgetary considerations.

Felix Frankfurter:

I just want to — wouldn’t it satisfy you that (Inaudible) the facts of the Board to give a more rational —

Dominick L. Manoli:

No, that wouldn’t satisfy me, Your Honor.

Not at all.

Now, Your Honor, I would like to call your attention to a fact that the no man’s land about which there has been so much expectation is a creation of the Board.

And part of that no man’s land is occupied by hotels.

And I — we are asking this Court to at least remove the hotels from the no man’s land that has been the Board’s own creation.

We say that the 9 (c) language is mandatory and I think I have a better theory as to why it was made mandatory, even if the explanation is not given in the congressional record.

At the time the Taft-Hartley Act was instituted, was passed, certain procedures were added.One was of this certification procedure.

Another was an — a — an election procedure on the request of management.

It is my opinion that it was the intention of Congress to make sure that these procedures would — these new procedures would be available and it therefore, changed the language from “may” to “shall” in order to make sure that these procedures would definitely be available, would not be discretionary with the Board.

William J. Brennan, Jr.:

Mr. Brown, did the American Hotel Association or any organized hotel group join forces with you in the St. Louis case?

Dominick L. Manoli:

The American Hotel Association took the same position that we did in the — in the St. Louis case.

I think it furnished counsel, Mr. Brownell to — Brownell to argue that case.

And even, there Mr. Brownell admitted as you will see in our brief or in the record that the Board did have jurisdiction over hotel.

William J. Brennan, Jr.:

I gather since they filed the brief amicus here, that you pointed the company in —

J. W. Brown:

We’ve referred to company at least as far this Court is concerned.

We rubbed shoulders in many other regards.

[Laughter] Now, coming to the hotel industry as a whole, the hotel industry is not a small local-in-nature industry.

It’s does $2.5 billion business per year.

It employs more than 500,000 persons.

Our record indicates it is the seventh largest industry in the United States and over — and half the hotels doing more than $500,000 business per year account for half of that $2.5 billion in sales.

There are some giants like the Sheraton Chain, the Hilton Chain.

The Sheraton does $150 million per year.

J. W. Brown:

The Hilton Chain does $200 million per year.

This is a local-in-nature industry that counsel would have you to say is not the concern of the Board.

The —

(Inaudible)

J. W. Brown:

At least we are not alone in our inconsistency with regard to the — this entire matter.

The Board has joined us at least in — in the Virgin Islands and in other places.