(dissenting in part and concurring in part and in the result) .
I regret that I am unable to concur in the able and painstaking opinion of my colleague, Judge Fahy. I do concur in part III and in the result. I find myself completely unable to concur in parts I and II.
I do not believe that on the face of Judge Fairy's excellent statement of the facts, which need not be repeated, any showing whatever appears of interstate commerce in this case. Indeed, quite the contrary appears. It is conceivable that a building operation might be affected in some degree in interstate commerce but this would be most unusual. The operation described by the majority is characteristically an intrastate transaction. Therefore, the National Labor Relations Board had no jurisdiction. Indeed Congress would have no power to confer such jurisdiction.
As to part II, I am of the opinion that the action of the United States District Court in Denver rendered the matter res judicata. It was a court of competent jurisdiction — indeed the jurisdiction is expressly conferred by the statute. The issues were identically the same. The action of the court was directly adverse to the contentions of the Board. No appeal was taken.
For these reasons, I cannot concur in parts I and II but I do concur in part III and in the result.