June 30, 1983
HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION LOCAL 54, AND FRANK GERACE, PRESIDENT HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION LOCAL 54 AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL 331, INTERVENOR
MARTIN DANZIGER, ACTING CHAIRMAN, DONALD THOMAS, COMMISSIONER, MADELINE MC WHINNEY, COMMISSIONER, CARL ZEITZ, COMMISSIONER, CONSTITUTING THE CASINO CONTROL COMMISSION, STATE OF NEW JERSEY, G. MICHAEL BROWN, DIRECTOR DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF GAMING ENFORCEMENT, STATE OF NEW JERSEY, AND THOMAS KEAN, GOVERNOR, STATE OF NEW JERSEY, HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION LOCAL 54 AND FRANK GERACE, PRESIDENT, HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION LOCAL 54, APPELLANTS IN NO. 82-5210, THE CASINO CONTROL COMMISSION, APPELLANT IN NO. 82-5234, G. MICHAEL BROWN, DIRECTOR, DEPT. OF LAW AND PUBLIC SAFETY, DIVISION OF GAMING ENFORCEMENT AND THOMAS KEAN, GOVERNOR, APPELLANTS IN NO. 82-5260
SUR PETITION ON REHEARING
Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges
The petitions for rehearing files by appellants Casino Control Commission, et al. and Division of Gaming Enforcement, et al. in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Judges Hunter, Weis, Garth, Sloviter and Bewcker would grant rehearing. A statement by Judge Adams' Sur Petition for Rehearing is attached.
ADAMS, ADAMS, Circuit Judge, statement sur petition for rehearing.
This appeal presents an extremely important issue concerning the proper balance of state and federal authority over labor unions in the casino industry, an industry which by its very nature must be regulated carefully and perhaps extensively by state governments. The decision by this Court not to rehear this matter in banc, should not be taken as a sign that it considers the matter unworthy of careful scrutiny by the full Court. Rather, I believe that the determination not to consider this case in banc may be understood as an acknowledgement of the thorough discussions set forth in the majority and dissenting opinions which have laid out the arguments for each side in considerable detail.
Because this appeal raises a question central to the concept of federalism, it would appear most appropriate, at least to me, that it be addressed at the first opportunity by the Supreme Court, so that all federal courts would have the benefit of guidance by the nation's highest tribunal on this crucial topic. Given the magnitude of a state's interest in regulating an industry such as the casino industry, and the contention vigorously advanced that such regulation does not inexorably stand as an obstacle to the purposes and objectives of the Congress in the labor area, whether the National Labor Relations Act preempts a provision such as section 93 of the Casino Control Act would seem a question worthy of full exploration by the Supreme Court.
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