TRAYNOR, J. I dissent.
The crucial question in this case is whether the union is committing an unfair labor practice that affects interstate commerce within the meaning of the Labor Management Relations Act. If it is, exclusive jurisdiction is vested in the National Labor Relations Board. (Garner v. Teamsters etc. Union, 346 U.S. 485, 501 [74 S.Ct. 161, 98 L.Ed. 228].) Jurisdiction of the subject matter may not be conferred upon the court by the parties (Sampsell v. Superior Court, 32 Cal.2d 763, 773, 776 [197 P.2d 739]), and lack of such jurisdiction may be raised for the first time on appeal. (Costa v. Banta, 98 Cal.App.2d 181, 182 [219 P.2d 478].) In the present case the jurisdictional question was not only raised on appeal but before, during, and after the trial; and proof was taken on that issue. Seven Up Bottling Co. v. Grocery Drivers Union, 40 Cal.2d 368, 372 [254 P.2d 544, 33 A.L.R.2d 327], is not in point, for there the question of interstate commerce was not raised. (See Seven Up Bottling Co. v. Grocery Drivers Union, ante, p. 625 [320 P.2d 892].) In the present case the defendants raised the issue in a demurrer, which was overruled, wherein it was pleaded that the complaint was uncertain in that “it cannot be ascertained therefrom: ... (d) Whether or not the closed-shop agreements referred to in paragraph V, page 3, line 10, involve theaters engaged in interstate or intrastate business.
“(e) Whether or not the job at Center Theater, referred to in paragraph XIII, page 10, constitutes employment at a theater engaged in interstate or intrastate commerce. ’ ’
Furthermore, the trial court permitted defendants to in[636]troduce evidence over objections by plaintiff that theaters with which Local 162 has closed-shop contracts were members of interstate chains. The evidence indicated that different theaters were members of chains such as Fox West Coast, Inter-Mountain Fox, Stanley Werner Theatres (a chain of about 200), National Theatres (a chain of about 425), Loew’s, Incorporated (a chain of about 300), Paramount-Dumont (a chain of about 250), and RKO (a chain of about 200). It was estimated that 30 per cent of the theaters in San Francisco were connected with interstate chains. This evidence was undisputed.
The defendants also submitted proposed amendments to the findings of fact and conclusions of law that “said motion pictures theaters are engaged in and affect interstate commerce; that said employers are engaged in commerce within the meaning of the Labor Management Relations Act . . .” and that “sole and exclusive jurisdiction for any claimed unlawful activities of Local 162 falls under the Labor Management Relations Act. ...”
The fact that there is no evidence or finding that the Center Theater was engaged in interstate commerce does not make the action local in nature, for plaintiff could have been displaced from any theater by a member of Local 162 under the contracts, and the refusal of Local 162 to dispatch plaintiff to suitable employment is a refusal as to all the theaters. The discrimination caused by Local 162 applies to all theaters, for no theater will hire plaintiff unless he is dispatched by Local 162. Moreover, plaintiff’s prayer substantiates the involvement of all theaters, for he prays for a mandatory injunction 1 ‘ compelling defendants forthwith to dispatch plaintiff to suitable employment as a moving picture machine operator or projectionist within the jurisdiction of Local 162,” which involves all the theaters in San Francisco, and in the alternative for an injunction to prevent defendants from interfering with plaintiff’s right to employment “at the Center Theater in the City and County of San Francisco or at any other motion picture theater in said City and County. ’ ’ The involvement of all theaters is further emphasized by plaintiff in his Supplemental Memorandum wherein he states: “Here the entire controversy is between Thorman and the union” and that “he [plaintiff] is not suing to get back a job at Center Theater. ...” Thus the union’s unfair labor practice, if any, encompasses all the theaters in San Francisco, and plaintiff so alleges.
[637]In Guss v. Utah Labor Relations Board, 353 U.S. 1, 3, 10 [77 S.Ct. 598, 1 L.Ed.2d 601], it is stated that by the use of the language “affecting commerce” in the Labor Management Relations Act, Congress meant to ‘‘ reach the full extent of its power under the Commerce Clause” even though a “no-man’s land” is created when the National Labor Relations Board refuses to exercise jurisdiction and state courts are precluded from acting. If the effect on commerce is more than de minimis, it is covered by the Labor Management Relations Act. (National Labor Relations Board v. Denver Building & Construction Trades Council, 341 U.S. 675, 684-685 [71 S.Ct. 943, 95 L.Ed.2d 1284].) When an unfair labor practice affects a single theater that is one of a multistate chain, the effect on commerce is sufficient to fall within the Labor Management Relations Act. (In the Matter of American Federation of Musicians, Local No. 24, 92 N.L.R.B. 1528, aff’d sub nom. Gamble Enterprises, Inc. v. National Labor Relations Board, 203 F.2d 565; In the Matter of Balaban & Katz, 87 N.L.R.B. 1071, 1072.) The sole method by which a state may acquire jurisdiction, when interstate commerce is affected, is by a cession of jurisdiction under section 10(a) of the Labor Management Relations Act (Guss case, supra, 353 U.S. at 9) and there is no such cession here.
Plaintiff’s allegations charge an unfair labor practice within the meaning of the Labor Management Relations Act, section 8(b)(2), 29 U.S.C.A. section 158(b)(2), which reads as follows:
“(b) It shall be an unfair labor practice for a labor organization or its agents— . . .
“ (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. ”
Subsection (a) (3) refers to discrimination by an employer “in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. ...” It is obvious that it is because of such discrimination resulting from the contracts between Local 162 and the theaters that plaintiff seeks relief in the courts to compel the union to admit him to membership. Numerous similar cases demonstrate that the National Labor [638]Relations Board can not only terminate the unfair labor practice but order the union to make the plaintiff whole for loss of wages. (Radio Officers’ Union v. National Labor Relations Board, 347 U.S. 17, 54-55 [74 S.Ct. 323, 98 L.Ed. 455]; Born v. Laube, 213 F.2d 407, 409, rehearing denied 214 F.2d 349, certiorari denied 348 U.S. 855 [75 S.Ct. 80, 99 L.Ed. 674]; National Labor Relations Board v. Philadelphia Iron Works, 211 F.2d 937, 943; National Labor Relations Board v. George D. Auchter Co., 209 F.2d 273, 276-277; National Labor Relations Board v. Bell Aircraft Corp., 206 F.2d 235, 236; National Labor Relations Board v. International Union, 194 F.2d 698, 700; National Labor Relations Board v. Kingston Cake Co., 191 F.2d 563, 566; Union Starch & Refining Co. v. National Labor Relations Board, 186 F.2d 1008, 1014.) Other state courts in similar cases have refused both injunctive and compensatory relief on the ground that exclusive jurisdiction therefor is vested in the National Labor Relations Board. (Collins v. Merritt-Chapman & Scott, 91 Ga.App. 856 [87 S.E.2d 337, 340]; Sterling v. Local 438, 207 Md. 132 [113 A.2d 389, 396]; Real v. Curran, 285 App.Div. 552 [138 N.Y.S.2d 809, 812]; Ryan v. Simons, 277 App.Div. 1000 [100 N.Y.S.2d 18, 19]; Mahoney v. Sailors’ Union of the Pacific, 45 Wn.2d 453 [275 P.2d 440, 444-445].) Although International Sound Technicians v. Superior Court, 141 Cal.App.2d 23, 30 [296 P.2d 395], held that the plaintiff need not seek relief from the National Labor Relations Board and upheld the state court’s jurisdiction to award damages for loss of wages, that case is no longer law. State courts may not afford a parallel remedy to one the National Labor Relations Board is empowered to give; the board’s jurisdiction is exclusive. (Amalgamated Meat Cutters v. Fairlawn Meats, Inc., 353 U.S. 20, 23; Born v. Laube, supra, 213 F.2d at 409; see dissenting opinion in Garmon v. San Diego Building Trades Council, ante, p. 595 [320 P.2d 473].)
Plaintiff contends nevertheless that the National Labor Relations Board cannot compel the union to admit him to membership and that the state court has jurisdiction to grant that relief. (Real v. Curran, supra, 138 N.Y.S.2d at 813.) It is clear, however, that the board could order the union to terminate the unfair labor practice. If the union did so by admitting plaintiff to membership, he would receive the very relief requested. If the union did so by terminating the discrimination, it would thereby terminate the closed-shop, and plaintiff would not be entitled to relief in the courts of this state under James v. Marinship Corp., 25 Cal.2d 721, 730 [639][155 P.2d 329, 160 A.L.R. 900]. In either event plaintiff would obtain from the National Labor Relations Board all the relief to which he is entitled.
I would reverse the judgment and remand the case with directions to the trial court to dismiss the action for lack of jurisdiction.
Gibson, C. J., and Carter, J., concurred. Appellants’ petition for a rehearing was denied February 13, 1958. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.