Where the National Labor Relations Board had asserted general
jurisdiction over unions of foremen employed by industries subject
to the National Labor Relations Act, but had refused to certify
such unions as collective bargaining representatives on the ground
that to do so at the time would obstruct, rather than further,
effectuation of the purposes of the Act, certification of such
unions by the New York State Labor Relations Board under a State
Act similar to the National Act
held invalid as in
conflict with the National Labor Relations Act and the Commerce
Clause of the Federal Constitution. Pp.
330 U. S.
771-777.
295 N.Y. 601, 607, 64 N.E.2d 350, 352, reversed.
No. 55. A New York state court issued an order to enforce a
subpoena
duces tecum issued by the New York State Labor
Relations Board in a proceeding for the certification as a
collective bargaining representative under the New York State Labor
Relations Act of a union of foremen of an employer whose business
was predominantly interstate. 9 C.C.H. Labor Cases (1945) � 62,
611. The Appellate Division of the Supreme Court of New York
affirmed. 269 App.Div. 805, 56 N.Y.S.2d 195. The New York Court of
Appeals affirmed. 295 N.Y. 601, 664, 64 N.E.2d 350, 65 N.E.2d 54.
On appeal to this Court,
reversed, p.
330 U. S.
777.
No. 76. A New York state court dismissed a suit by an employer
whose business was predominantly interstate for a declaratory
judgment decreeing that the New York
Page 330 U. S. 768
State Labor Relations Board was without jurisdiction to
determine representation of its foremen and enjoining the Board
from ordering the employer to bargain collectively with their
union. 184 Misc. 47, 49 N.Y.S.2d 762. The Appellate Division of the
Supreme Court of New York affirmed. 269 App.Div. 805, 56 N.Y.S.2d
196. The Court of Appeals of New York affirmed. 295 N.Y. 607, 64
N.E.2d 352. On appeal to this Court,
reversed and
remanded, p.
330 U. S.
777.
MR. JUSTICE JACKSON delivered the opinion of the Court.
These appeals challenge the validity of the Labor Relations Act
of the New York as applied to appellants to permit unionization of
their foremen. Conflict is asserted between it and the National
Labor Relations Act, and hence with the Commerce Clause of the
Constitution.
After enactment by Congress of the National Labor Relations Act,
July 5, 1935, 49 Stat. 449, 29 U.S.C. § 151
et seq., New
York adopted a State Labor Relations Act
Page 330 U. S. 769
following the federal pattern. Laws of New York 1937, Chap. 443,
30 McKinney's Consolidated Laws of New York, §§ 700-716. In the
administrative boards they create, the procedures they establish,
the unfair labor practices prohibited, the two statutes may be
taken for present purposes to be the same. But, in provision for
determination of units of representation for bargaining purposes,
the two Acts are not identical. Their differences may be made plain
by setting forth § 9(b) of the Federal Act, with that part which is
omitted from the State Act in brackets and additions made by the
State Act as amended, Laws of New York, 1942, Chap. 518, in
italics:
"The board shall decide in each case whether, in order to insure
to employees the full benefit of their right to self-organization
[and] to collective bargaining and otherwise to effectuate the
policies of this act, the unit appropriate for the purposes of
collective bargaining shall be the employer unit,
multiple
employer unit, craft unit, plant unit, or [subdivision
thereof]
any other unit; provided, however, that in any case
where the majority of employees of a particular craft shall so
decide, the board shall designate such craft as a unit appropriate
for the purpose of collective bargaining."
The procedures prescribed for the two boards for investigation,
certification, and hearing on representation units and for their
election are substantially the same except that the State law adds
the following limitation not found in the Federal Act:
". . . provided, however, that the board shall not have
authority to investigate any question or controversy between
individuals or groups within the same labor organization or between
labor organizations affiliated with the same parent labor
organization."
Laws of New York, 1937, Chap. 443, as amended, Laws 1942, Chap.
518, 30 McKinney's Consolidated Laws of New York § 705.3.
Page 330 U. S. 770
The two boards have at times pursued inconsistent policies in
applying their respective Acts to petitions of foremen as a class
to organize bargaining units thereunder. The State Board has in
these cases recognized that right; the National Board for a time
recognized it.
Union Collieries Coal Co., 41 N.L.R.B. 961;
Godchaux Sugars, Inc., 44 N.L.R.B. 874. Later, there was a
period when, for policy reasons but without renouncing
jurisdiction, it refused to approve foremen organization units.
Maryland Drydock Co., 49 N.L.R.B. 733;
Boeing Aircraft
Co., 51 N.L.R.B. 67;
General Motors Corp., 51
N.L.R.B. 457. Now, again, it supports their right to unionize.
Packard Motor Car Co., 61 N.L.R.B. 4, 64 N.L.R.B. 1212;
L. A. Young Spring & Wire Corp., 65 N.L.R.B. 298. The
foremen of these appellants, at a time when their desire to
organize was frustrated by the policy of the National Board, filed
applications with the State Board. It entertained their petitions,
and its policy permitted them as a class to become a bargaining
unit. Both employers, by different methods adequate under State law
to raise the question, challenged the constitutionality of the
State Act as so applied to them. Their contentions ultimately were
considered and rejected by the New York Court of Appeals, and its
decisions sustaining state power over the matter were brought here
by appeals.
Both of these labor controversies arose in manufacturing plants
located in New York, where the companies employ large staffs of
foremen to supervise a much larger force of labor. But both
concerns have such a relation to interstate commerce that, for the
reasons stated in
Labor Board v. Jones & Laughlin Steel
Corp, 301 U. S. 1, federal
power reaches their labor relations. On this basis, the National
Board has exercised power to certify bargaining agents for units of
employees
Page 330 U. S. 771
other than foremen of both companies.
Matter of Allegheny
Ludlum Steel Corporation, Case No. III-R-411, N.L.R.B. June
29, 1942;
Matter of Bethlehem Steel Corp. and CIO, 30
N.L.R.B. 1006, 32 N.L.R.B. 264, 1941 (production and maintenance
employees);
Matter of Bethlehem Steel Corp. and A.F. of
L., 47 N.L.R.B. 1330, 1943 (plant protection employees);
Matter of Bethlehem Steel Corporation and CIO, 52 N.L.R.B.
1217, 1943 (employees in order department);
Matter of Bethlehem
Steel Co. and A.F. of L., 55 N.L.R.B. 658, 1944 (fire
department employees). The companies contend that the National
Board's jurisdiction over their labor relations is exclusive of
state power; the State contends, on the contrary, that, while
federal power over the subject is paramount, it is not exclusive,
and, in such a case as we have here, until the federal power is
actually exercised as to the particular employees, State power may
be exercised.
At the time the courts of the New York were considering this
issue, the question whether the Federal Act would authorize or
permit unionization of foremen was in controversy, and was
unsettled until our decision in
Packard Motor Car Co. v.
NLRB, 330 U. S. 485.
Whatever constitutional issue may have been presented by earlier
phases of the evolution of the federal policy in relation to that
of the State, the question now is whether, Congress having
undertaken to deal with the relationship between these companies
and their foremen, the State is prevented from doing so. Congress
has not seen fit to lay down even the most general of guides to
construction of the Act, as it sometimes does, by saying that its
regulation either shall or shall not exclude state action.
Cf. Securities Act of 1933, § 18, 48 Stat. 85, 15 U.S.C. §
77r; Securities Exchange Act of 1934, § 28, 48 Stat. 903, 15 U.S.C.
§ 78bb; United States Warehouse
Page 330 U. S. 772
Act, § 29, before and after 1931 amendment, 39 Stat. 490, 46 Sta
. 1465, 7 U.S.C. § 269. Our question is primarily one of the
construction to be put on the Federal Act. It long has been the
rule that exclusion of state action may be implied from the nature
of the legislation and the subject matter, although express
declaration of such result is wanting.
Napier v. Atlantic Coast
Line R. Co., 272 U. S. 605.
In determining whether exclusion of state power will or will not
be implied, we well may consider the respective relation of federal
and state power to the general subject matter as illustrated by the
case in hand. These companies are authorized to do business in New
York State, they operate large manufacturing plants in that state,
they draw their labor supply from its residents, and the impact of
industrial strife in their plants is immediately felt by state
police, welfare, and other departments. Their labor relations are
primarily of interest to the state, are within its competence
legally and practically to regulate, and, until recently, were left
entirely to state control. Thus, the subject matter is not so
"intimately blended and intertwined with responsibilities of the
national government" that its nature alone raises an inference of
exclusion.
Cf. Hines v. Davidowitz, 312 U. S.
52,
312 U. S.
66.
Indeed, the subject matter is one reachable, and one which
Congress has reached, under the federal commerce power not because
it is interstate commerce, but because, under the doctrine given
classic expression in the
Shreveport case, Congress can
reach admittedly local and intrastate activities
"having such a close and substantial relation to interstate
traffic that the control is essential or appropriate to the
security of the traffic, to the efficiency of the interstate
service, and to the maintenance of conditions under which
interstate commerce may be conducted upon fair terms and without
molestation or hindrance. "
Page 330 U. S. 773
Houston, East & West Texas Ry. v. United States,
234 U. S. 342,
234 U. S. 351.
See also Labor Board v. Fainblatt, 306 U.
S. 601.
In the National Labor Relations Act, Congress has sought to
reach some aspects of the employer-employee relation out of which
such interferences arise. It has dealt with the subject or
relationship but partially, and has left outside of the scope of
its delegation other closely related matters. Where it leaves the
employer-employee relation free of regulation in some aspects, it
implies that, in such matters, federal policy is indifferent, and,
since it is indifferent to what the individual of his own volition
may do, we can only assume it to be equally indifferent to what he
may do under the compulsion of the state. Such was the situation in
Allen-Bradley Local v. Board, 315 U.
S. 740, where we held that employee and union conduct
over which no direct or delegated federal power was exerted by the
National Labor Relations Act is left open to regulation by the
state. However, the power of the state may not so deal with matters
left to its control as to stand "as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress."
Hill v. Florida, 325 U.
S. 538,
325 U. S. 542.
Cf. Maurer v. Hamilton, 309 U. S. 598.
When Congress has outlined its policy in rather general and
inclusive terms and delegated determination of their specific
application to an administrative tribunal, the mere fact of
delegation of power to deal with the general matter, without agency
action, might preclude any state action if it is clear that
Congress has intended no regulation except its own.
Oregon-Washington R. & Nav. Co. v. Washington,
270 U. S. 87. In
other cases, Congress has passed statutes which initiate regulation
of certain activities, but where effective regulation must wait
upon the issuance of rules by an administrative body. In the
interval before those rules are established,
Page 330 U. S. 774
this Court has usually held that the police power of the state
may be exercised.
Northwestern Bell Telephone Co. v. Nebraska
State Commission, 297 U. S. 471.
Welch Co. v. New Hampshire, 306 U. S.
79. But when federal administration has made
comprehensive regulations effectively governing the subject matter
of the statute, the Court has said that a state regulation in the
field of the statute is invalid even though that particular phase
of the subject has not been taken up by the federal agency.
Napier v. Atlantic Coast Line R. Co., 272 U.
S. 605. However, when federal administrative regulation
has been slight under a statute which potentially allows minute and
multitudinous regulation of its subject,
cf. Atlantic Coast
Line R. Co. v. Georgia, 234 U. S. 280, or
even where extensive regulations have been made, if the measure in
question relates to what may be considered a separable or distinct
segment of the matter covered by the federal statute and the
federal agency has not acted on that segment, the case will be
treated in a manner similar to cases in which the effectiveness of
federal supervision awaits federal administrative regulation.
Northwestern Bell Telephone Co. v. Nebraska State Ry.
Commission, supra; Welch Co. v. New Hampshire, supra. The
states are, in those cases, permitted to use their police power in
the interval.
Terminal Railroad Assn. v. Brotherhood of
Railroad Trainmen, 318 U. S. 1.
However, the conclusion must be otherwise where failure of the
federal officials affirmatively to exercise their full authority
takes on the character of a ruling that no such regulation is
appropriate or approved pursuant to the policy of the statute.
Napier v. Atlantic Coast Line R. Co., 272 U.
S. 605;
compare Oregon-Washington R. & Nav. Co.
v. Washington, 270 U. S. 87,
with Parker v. Brown, 317 U. S. 341;
cf. Mintz v. Baldwin, 289 U. S. 346.
It is clear that the failure of the National Labor Relations
Board to entertain foremen's petitions was of the
Page 330 U. S. 775
latter class. There was no administrative concession that the
nature of these appellants' business put their employees beyond
reach of federal authority. The Board several times entertained
similar proceedings by other employees whose right rested on the
same words of Congress. Neither did the National Board ever deny
its own jurisdiction over petitions because they were by foremen.
Soss Manufacturing Co., 56 N.L.R.B. 348. It made clear
that its refusal to designate foremen's bargaining units was a
determination and an exercise of its discretion to determine that
such units were not appropriate for bargaining purposes.
Maryland Drydock Co., 49 N.L.R.B. 733. We cannot,
therefore, deal with this as a case where federal power has been
delegated, but lies dormant and unexercised.
Comparison of the State and Federal statutes will show that both
governments have laid hold of the same relationship for regulation,
and it involves the same employers and the same employees. Each has
delegated to an administrative authority a wide discretion in
applying this plan of regulation to specific cases, and they are
governed by somewhat different standards. Thus, if both laws are
upheld, two administrative bodies are asserting a discretionary
control over the same subject matter, conducting hearings,
supervising elections and determining appropriate units for
bargaining in the same plant. They might come out with the same
determination, or they might come out with conflicting ones, as
they have in the past.
Cf. Matter of Creamery Package Mfg.
Co., 34 N.L.R.B. 108; Wisc. Emp.Rel.Bd.Case III, No. 348
E.-117. But the power to decide a matter can hardly be made
dependent on the way it is decided. As said by Mr. Justice Holmes
for the Court, "[w]hen Congress has taken the particular subject
matter in hand, coincidence is as ineffective as opposition. . .
."
Page 330 U. S. 776
Charleston & W.C. R. Co. v. Varnville Furniture
Co., 237 U. S. 597,
237 U. S. 604.
See also Southern Railway Co. v. Railroad Commission of
Indiana, 236 U. S. 439,
236 U. S. 448;
Missouri Pacific R. Co. v. Porter, 273 U.
S. 341,
273 U. S.
345-346. If the two boards attempt to exercise a
concurrent jurisdiction to decide the appropriate unit of
representation, action by one necessarily denies the discretion of
the other. The second to act either must follow the first, which
would make its action useless and vain, or depart from it, which
would produce a mischievous conflict. The State argues for a rule
that would enable it to act until the federal board had acted in
the same case. But we do not think that a case-by-case test of
federal supremacy is permissible here. The federal board has
jurisdiction of the industry in which these particular employers
are engaged, and has asserted control of their labor relations in
general. It asserts, and rightfully so, under our decision in the
Packard case,
supra, its power to decide whether
these foremen may constitute themselves a bargaining unit. We do
not believe this leaves room for the operation of the state
authority asserted.
The National and State Boards have made a commendable effort to
avoid conflict in this overlapping state of the statutes. We find
nothing in their negotiations, however, which affects either the
construction of the federal statute or the question of
constitutional power insofar as they are involved in this case,
since the National Board made no concession or delegation of power
to deal with this subject. The election of the National Board to
decline jurisdiction in certain types of cases, for budgetary or
other reasons, presents a different problem which we do not now
decide.
We therefore conclude that it is beyond the power of New York
State to apply its policy to these appellants, as
Page 330 U. S. 777
attempted herein. The judgments appealed from are reversed, and
the causes remanded for further proceedings not inconsistent
herewith.
Reversed.
Separate opinion of MR. JUSTICE FRANKFURTER in which MR. JUSTICE
MURPHY and MR. JUSTICE RUTLEDGE join.
The legal issue in these cases derives from our decision in
Packard Motor Car Co. v. Labor Board, 330 U.
S. 485. The Court there held that foremen are
"employees" within § 2(3) of the National Labor Relations Act, 49
Stat. 449, 450, and, as such, are entitled to the rights of
self-organization under the Act. As the
Packard case
points out, the exercise of this authority over foremen has had a
chequered history before the National Labor Relations Board. There
was a period when the Board, in the exercise of its discretion,
denied resort to its authority by foremen seeking collective
bargaining representation. During that period, foremen of the two
petitioning steel companies invoked the jurisdiction of the New
York State Labor Board to certify them as a bargaining unit under
the New York law, descriptively characterized as a "Little Wagner
Act" because it enforces the same policies by the same means as
does the Wagner Act. The State Board assumed jurisdiction, and the
New York Court of Appeals sustained that assumption. Our problem is
whether the National Labor Relations Act in its entirety -- the law
as Congress gave it to the National Board for administration --
precluded this exercise of State authority.
If the Court merely held that, having given the National Board
jurisdiction over foremen, Congress also gave it discretion to
determine that it may be undesirable, as a matter of industrial
relations, to compel recognition of foremen's unions; that the
Board had so exercised its discretion,
Page 330 U. S. 778
and, by refusing to sanction foremen's unions, had determined
that foremen, in enterprises like those before us, could not exact
union recognition; that, therefore, New York could not oppose such
federal action by a contrary policy of its own, I should concur in
the Court's decision whatever the differences of interpretation to
which the course of events before the National Board may lend
itself. But the Court's opinion does not, as I read it, have that
restricted scope, based on the individual circumstances before us.
Apart from the suggestion that the National Board's declination of
jurisdiction "in certain types of cases, for budgetary reasons"
might leave room for the State in those situations, the Court's
opinion carries at least overtones of meaning that, regardless of
the consent of the National Board, New York is excluded from
enforcing rights of collective bargaining in all industries within
its borders as to which Congress has granted opportunity to invoke
the authority of the National Board.
The inability of the National Board to exercise its dormant
powers because of lack of funds ought not to furnish a more
persuasive reason for finding that concurrent State power may
function than a deliberate exercise of judgment by the National
Board that industrial relations having both national and state
concern can most effectively be promoted by an appropriate division
of administrative resources between the National and the State
Boards. This states abstractly a very practical situation. Based on
the realization that, as a practical matter, the National Board
could not effectuate the policies of the Act committed to it over
the whole range of its authority, an arrangement was worked out
whereby the National Board leaves to the State Board jurisdiction
over so-called local industries covered by the federal Act, while
the State Board does not entertain matters over which the National
Board has consistently taken jurisdiction. This practical
Federal-State working arrangement, arrived at by those
Page 330 U. S. 779
carrying the responsibility for breathing life into the bare
bones of legislation, is so relevant to the solution of the legal
issues arising out of State-Nation industrial interaction that I
have set forth the agreement in full in an
330
U.S. 767app|>Appendix. Particularly when dealing with legal
aspects of industrial relations is it important for courts not to
isolate legal issues from their workaday context. I cannot join the
Court's opinion, because I read it to mean that it is beyond the
power of the National Board to agree with State agencies enforcing
laws like the Wagner Act to divide, with due regard to local
interests, the domain over which Congress had given the National
Board abstract discretion, but which, practically, cannot be
covered by it alone. If such cooperative agreements between State
and National Boards are barred because the power which Congress has
granted to the National Board ousted or superseded State authority,
I am unable to see how State authority can revive because Congress
has seen fit to put the Board on short rations.
Since we are dealing with aspects of commerce between the States
that are not legally outside State action by virtue of the Commerce
Clause itself, New York has authority to act so long as Congress
has not interdicted her action. While what the State does, she does
on sufferance, in ascertaining whether Congress has allowed State
action, we are not to consider the matter as though Congress were
conferring a mere bounty the extent of which must be viewed with a
thrifty eye. When construing federal legislation that deals with
matters that also lie within the authority, because within the
proper interests, of the States, we must be mindful that we are
part of the delicate process of adjusting the interacting areas of
National and State authority over commerce. The inevitable
extension of federal authority over economic enterprise has
absorbed the authority that was previously left to the States. But,
in legislating, Congress is not indulging in doctrinaire,
Page 330 U. S. 780
hard-and-fast curtailment of the State powers reflecting special
State interests. Federal legislation of this character must be
construed with due regard to accommodation between the assertions
of new federal authority and the functions of the individual
States, as reflecting the historic and persistent concerns of our
dual system of government. Since Congress can, if it chooses,
entirely displace the States to the full extent of the far-reaching
Commerce Clause, Congress needs no help from generous judicial
implications to achieve the supersession of State authority. To
construe federal legislation so as not needlessly to forbid
preexisting State authority is to respect our federal system. Any
indulgence in construction should be in favor of the States,
because Congress can speak with drastic clarity whenever it chooses
to assure full federal authority, completely displacing the
States.
This is an old problem, and the considerations involved in its
solution are commonplace. But results not always harmonious have
from time to time been drawn from the same precepts. In law also,
the emphasis makes the song. It may make a decisive difference what
view judges have of the place of the States in our national life
when they come to apply the governing principle that, for an Act of
Congress completely to displace a State law, "the repugnance or
conflict should be direct and positive, so that the two acts could
not be reconciled or consistently stand together."
Sinnot v.
Davenport, 22 How. 227,
63 U. S. 243.
Congress can speak so unequivocally as to leave no doubt. But real
controversies arise only when Congress has left the matter in
doubt, and then the result depends on whether we require that
actual conflict between State and federal action be shown, or
whether argumentative conflict suffices.
Our general problem was only recently canvassed in the three
opinions in
Hill v. Florida, 325 U.
S. 538. But the
Page 330 U. S. 781
frequent recurrence of the problem and the respective
legislative and judicial share in its proper solution justify some
repetition. It may be helpful to recall the circumspection with
which federal absorption of authority previously belonging to the
States was observed in the control of railroad rates.
In the
Minnesota Rate Cases, 230 U.
S. 352, this Court, after elaborate argument and
extended consideration, held that State rates covering intrastate
transportation could not be stricken down judicially even though it
may be shown that such rates adversely affect carriers in their
interstate aspects. This decision was based largely on the respect
to be accorded to the respective functions of State and national
authority, as evinced by Congressional and judicial history. But a
year later, the Court held that, when the Interstate Commerce
Commission found that State regulation of local rates was designed
to operate discriminatorily against related interstate commerce,
the Interstate Commerce Act authorized removal of the
discrimination against the interstate rates.
Houston, East
& West Texas Ry. Co. v. United States, 234 U.
S. 342. Nevertheless, so important did this Court deem
respect for State power that it would not allow the
Shreveport doctrine to be loosely used as a curtailment of
State authority. Accordingly, it insisted on precision and
definiteness in the orders of the Interstate Commerce Commission in
this interacting area.
Illinois Central R. Co. v. State Public
Utilities Commission, 245 U. S. 493.
Subsequently, by the Transportation Act of 1920, Congress
formalized the
Shreveport doctrine and extended its scope.
The Commission was expressly authorized to correct State rates that
were unreasonable with reference to related interstate rates, and
was also given control over State rates which adversely affected
interstate commerce as such.
See § 13, par. 4 of the
Interstate Commerce Act, as amended by
Page 330 U. S. 782
§§ 416 and 422 of the Transportation Act of 1920, 41 Stat. 456,
484, 488;
Wisconsin Railroad Commission of Wisconsin v. C.B.
& Q.R. R. Co., 257 U. S. 563;
New York v. United States, 257 U.
S. 591. It is not without significance that, in
exercising this new power, Congress associated with the Interstate
Commerce Commission the appropriate State agencies in an advisory
capacity. Even where foreign commerce is involved, as to which
State control is naturally viewed with less favor, this Court has
not ruled out State authority derived from a State interest where
State regulation was found to be complementary to federal
regulation.
Union Brokerage Co. v. Jensen, 322 U.
S. 202,
322 U. S.
208-209.
No doubt, as indicated, case have not always dealt with such
scrupulous regard for State action where Congress has not patently
terminated it. Metaphor -- " occupied the field" -- has at times
done service for close analysis. But the rules of accommodation
that have been most consistently professed, as well as the dominant
current of decisions, make for, and not against, the
modus
vivendi achieved by the two agencies in the labor relations
field, which the Government, as
amicus curiae, here
sponsored. Such an arrangement assures the effectuation of the
policies which underlie both the National Labor Relations Act and
the "Little Wagner Act" of New York in a manner agreed upon by the
two Boards for dealing with matters affecting interests of common
concern. "Where the Government has provided for collaboration, the
courts should not find conflict."
Union Brokerage Co. v.
Jensen, 322 U. S. 202,
322 U. S.
209.
What is before us is a very real and practical situation. The
vast range of jurisdiction which the National Labor Relations Act
has conferred upon the Board raises problems of administration
wholly apart from available funds. As a result of this Court's
decision in
Labor Board v. Fainblatt, 306 U.
S. 601, untold
Page 330 U. S. 783
small enterprises are subject to the power of the Board. While
labor difficulties in these units, in the aggregate, may
unquestionably have serious repercussions upon interstate commerce,
in their individualized aspects, they are equally the concern of
their respective localities. Accordingly, the National Labor
Relations Board, instead of viewing the attempt of State agencies
to enforce the principles of collective bargaining as an
encroachment upon national authority, regards the aid of the State
agencies as an effective means of accomplishing a common end. Of
course, as Mr. Justice Holmes said, "[w]hen Congress has taken a
particular subject matter in hand, coincidence is as ineffective as
opposition" to save the State law. But surely this is so only when
the State seeks "to enforce a state policy differently conceived. .
. ."
Charleston & Western Carolina R.R. Co. v. Varnville
Furniture Company, 237 U. S. 597,
237 U. S.
604.
The National Board's business explains the reason, and supports
the reasonableness behind its desire to share burdens that may be
the State's concern no less than the Nation's. The Board's Annual
Reports show increasing arrears. At the end of the fiscal year
1944, 2602 cases were pending; at the end of 1945, 3244; at the end
of 1946, there were 4605 unfinished cases. A shrewd critic has thus
expressed the considerations that, in the past, have often lain
below the surface of merely doctrinal applications:
"Formally, the enterprise is one of interpretation of the Act of
Congress to discover its scope. Actually, it is often the
enterprise of reaching a judgment whether the situation is so
adequately handled by national prescription that the impediment of
further state requirements is to be deemed a bane, rather than a
blessing."
T. R. Powell, Commerce Clause and State Police Power, 12
Minn.L.Rev. 607. In the submission by the Board before us, we have
the most authoritative
Page 330 U. S. 784
manifestation by national authority that State collaboration
would be a blessing, rather than a bane, and yet judicial
construction would forbid the aid which the agency of Congress
seeks in carrying out its duty. It is surely a responsible
inference that the result will be to leave uncontrolled large areas
of industrial conflict. Neither what Congress has said in the
National Labor Relations Act, nor the structure of the Act, nor its
policy, nor its actual operation should be found to prohibit the
Board from exercising its discretion so as to enlist the aid of
agencies charged with like duties within the States in enforcing a
common policy by a distribution of cases appropriate to respective
State and National interests.
* Together with No. 76,
Allegheny Ludlum Steel Corp. v.
Kelley et al., appeal from the Supreme Court of New York for
Chautauqua County.
|
330
U.S. 767app|
APPENDIX
Documents Indicating Understanding Between the New
York
and the National Labor Relations Boards
NEW YORK STATE LABOR RELATIONS BOARD
250 West 57th Street
NEW YORK 19
WILLIAM E. GRADY, Jr.
General Counsel
rj:
JULY 10, 1945
lj:
ALVIN J. ROCKWELL, Esquire
General Counsel,
National Labor Relations Board,
Washington, D.C.
DEAR MR. ROCKWELL: The Board has examined your memorandum of our
conference of April 20, 1945, and considers that it represents a
fair statement of the proceedings.
As to insurance companies (page 6 of your memo), you will recall
that we mentioned our prior experience with
Page 330 U. S. 785
such companies and the fact that units of less than statewide
scope have been established and upheld by the courts. In such
cases, therefore, we think it would be to the benefit of both
Boards that you clear with us. A situation may very easily arise in
which you would prefer to have us entertain a petition which had
been filed with us.
Best regards.
Sincerely,
/s/ WILLIAM E. GRADY, Jr.
NATIONAL LABOR RELATIONS BOARD
Washington 25, July 26, 1945
WILLIAM E. GRADY, Jr.,
General Counsel
New York State Labor Relations Board
250 West 57th Street
New York City 19, N.Y.
DEAR MR. GRADY: In Mr. Rockwell's absence on vacation this week,
I am replying to your letter of July 10.
Mr. Rockwell's memorandum of our conference of April 20 and your
letter were discussed with and approved by the Members of the
Board.
We are accordingly circulating copies of this memorandum to the
members of our staffs in the Buffalo and New York City offices.
This memorandum and your letter will hereafter be followed as a
guide in relations between the two Boards as regards cases arising
in New York State.
Sincerely yours,
/s/ Oscar S. Smith
OSCAR S. SMITH
Director of Field Division
Page 330 U. S. 786
MEMORANDUM RE CONFERENCE BETWEEN REPRESENTATIVES OF
NEW YORK STATE LABOR RELATIONS BOARD AND NATIONAL
LABOR RELATIONS BOARD, HELD FRIDAY, APRIL 20, 1945
A conference was held at the offices of the New York State Labor
Relations Board on Friday, April 20, 1945, attended by Father
Kelley, Chairman, and Board Members Goldberg and Lorenz, Executive
Secretary Goldberg, General Counsel Grady, and Associate General
Counsel Feldblum, of the New York State Labor Relations Board, and
by Field Director Smith, New York Regional Director Howard LeBaron,
General Counsel Rockwell, and New York Regional Attorney Perl, of
the National Labor Relations Board. The subject of the conference
was the proper division of jurisdiction between the National and
State Boards.
This conference followed an earlier conference held on January
9, 1945, in Washington, between Messrs. Smith and Rockwell and
Buffalo Regional Director Ryder, representing the NLRB, and Messrs.
Goldberg and Feldblum, representing the New York Board. At the
conference in Washington, the principal subject discussed was the
action of the State Board in entertaining election petitions
involving the employees of large interstate manufacturing
establishments over which the National Board has customarily
asserted jurisdiction. The cases in question related to petitions
filed by labor organizations which sought to be certified as
representatives of units of supervisory employees or, in one case,
a labor organization which sought to represent nonsupervisory
employees but whose membership was composed of a substantial number
of supervisors. At the time of the January conference, the Board's
decision in the
Packard case, 61 N.L.R.B. No. 3, had not
been issued; it appeared that in certifying a labor organization
for supervisory employees the State
Page 330 U. S. 787
Board was taking action contrary to that which would have been
taken by the National Board had the petition been filed with it. It
was also believed that the action of the State Board in proceeding
to a certification of a labor organization for nonsupervisory
employees whose membership included supervisors in substantial
number might be contrary to the National Board's disposition of the
case under its decision in
Matter of Rochester & Pittsburgh
Coal Co., 56 N.L.R.B. 1760. No understanding was reached with
regard to these types of cases at the January conference. In the
meantime, on March 26, 1945, the Board issued its decision in the
Packard case, holding that it would proceed to certify
unaffiliated unions as representative of supervisory employees and
leaving open the question of whether it would proceed to certify
affiliated unions as such representatives. The New York conference
was arranged in order to discuss the types of cases which were the
subject of the January conference and also to canvass in general
the question of the respective jurisdictions of the two Boards.
The New York conference began with consideration of Father
Boland's letter to Mr. Madden dated July 12, 1937, which has
constituted the principal basis of understanding between the two
Boards during the ensuing years. The Boland letter states:
"Unless there are unusual circumstances, the New York State
Labor Relations Board will assume jurisdiction over all cases
arising in the following trades and industries, without clearing,
except as a matter of record, with the National Board's officials:
"
"1. Retail stores,"
"2. Small industries which receive all or practically all raw
materials from within the New York, and do not ship any material
proportion of their product outside the State,"
"3. Service trades (such as laundries), "
Page 330 U. S. 788
"4. Office and residential buildings,"
"5. Small and clearly local public utilities (this includes
local traction companies, as well as gas and electric light
corporations),"
"6. Storage warehouses,"
"7. Construction operations,"
"8. Other obviously local businesses."
A copy of the letter of July 12, 1937, is attached to this
memorandum.
At the time of the preparation of the letter of July 12 and the
conference which preceded it and upon which it is based, their was
relatively little case law as to the jurisdiction under the
commerce clause of the National Board under the National Act. Since
that time, there has been a large number of decisions in the
federal circuit courts of appeals and several in the Supreme Court
which have substantially extended the Board's jurisdiction beyond
that which was understood to exist in July 1937. To take only one
pertinent example: in July, 1937, the Board had not asserted
jurisdiction over retail establishments. Since 1937, the Board has
accepted a considerable number of cases involving retail
establishments such as department stores, and the Board's power in
this respect has been sustained by the courts. Notwithstanding this
extension of jurisdiction under the National Act, the National and
State Boards, respectively, have, in general, followed the
understanding reflected by the letter of July 12, 1937. Thus, in
New York State, the National Board has not asserted jurisdiction
over retail establishments. The representatives at the conference
of April 20 expressed the view that, by and large, the
understanding had worked out well as applied to the types of
businesses there dealt with. The position was repeatedly expressed
by the representatives of both National and State Boards that, as a
working matter, the jurisdiction between the two Boards must be
allotted on the basis of the type of industry
Page 330 U. S. 789
or business involved (rather, for example, than on the basis of
which Board a petition or charge is initially filed with), and
that, when one Board, pursuant to common understanding, has
asserted jurisdiction in the past over a particular employer, the
other Board should thereafter refer any matters coming to it to the
Board which had entertained the earlier case or cases. [
Footnote 1]
Following reference to the letter of July 12, there was detailed
discussion of the eight categories there listed, which are quoted
above. The gist of this discussion was as follows:
Retail
stores. Where the same company operates retail stores and also
does a substantial interstate mail order business from within New
York State, representatives of the National Board pointed out that
probably the National Act should be applied to the company. The
understanding was reached that, before the State Board asserted
jurisdiction in the future over any such companies, the case would
be cleared with the National Board through the New York City or
Buffalo offices, depending upon the region in which the case arose.
Service trades. Where a New York concern is in the
business of furnishing guards, window washers, laundry, or some
other type of service within the State, it was felt that the
business is essentially local in character, and should be subject
to the State Act even though the services are
Page 330 U. S. 790
furnished to a number of large interstate enterprises which, in
themselves, are subject to the jurisdiction of the National Act.
(An exception is the case of detective agencies doing business on a
national scale, concerning which, it is understood, the State Board
will clear with the National Board before asserting jurisdiction.)
On the other hand, where the interstate enterprise, over which the
National Board would customarily assert jurisdiction, supplies its
own guard, window washing, laundry, or other service for itself, it
was believed that the employees involved would rightly come within
the jurisdiction of the National Act. The test here is whether the
service is performed by a separate business establishment which can
properly be considered a local enterprise even though services are
rendered to interstate businesses, or whether the service is
rendered by the interstate enterprise itself as an incident of its
own business.
Office buildings. The same test applicable
to the service trades was also thought to be applicable to office
buildings. Thus, if the employer involved is in the business of
operating office buildings, he is subject to the State Act even
though tenants consist of interstate enterprises. On the other
hand, where the office building is owned or operated, or both, by
an interstate enterprise, over which the National Board would
customarily assert jurisdiction, and is used by the interstate
enterprise in conducting its interstate business, the National
Board would expect to assert jurisdiction.
Public
utilities. It was agreed that the New York Board could
properly assert jurisdiction over such utilities, including
electric, gas, traction, bus companies, and the like, which are not
themselves engaged in supplying service across the State line. In
short, where the National Board could only base its jurisdiction on
the "affecting commerce" principle (plus the shipment into the fuel
and capital equipment, not for resale), it was believed in general
that the National Board
Page 330 U. S. 791
could properly leave jurisdiction to the State Board. An
exception to this working rule is provided by a few very large
utilities, such as the Consolidated Edison Company, over which the
National Board originally asserted jurisdiction. Warehouses. The
test applied in the case of service trades and office buildings
seems applicable to warehouses, the question being whether they are
operated as separate local enterprises or as incidents of the
operation of interstate business over which the National Board
would customarily take jurisdiction.
Construction
business. The New York Board is expected to assert
jurisdiction over the construction industry except, for example, in
the case of the construction of ships, which is thought of as
falling within the field of manufacturing, over which, in general,
the National Board asserts jurisdiction.
In addition to the foregoing lines of activity, referred to in
the letter of July 12, 1937, two other businesses not dealt with in
that letter were also discussed.
Insurance companies. In
the past, both the State and the National Boards have
intermittently asserted jurisdiction over insurance companies. So
far as small insurance, bonding, casualty companies, etc., doing
business primarily within the State are concerned, it was felt that
the State Board should occupy this filed. So far as the large
national companies are concerned, however, the representatives of
the National Board expressed the view that, hereafter, cases
involving such companies should be handled by the latter Board. In
this connection, it was pointed out that, as organization has
matured among the large companies, statewide and even larger units
are being established, and that this type of activity had therefore
advanced to the stage where it was peculiarly the interest of the
National Board. It was agreed that the State Board would not
entertain any cases involving the large national companies without
prior clearance with the National Board.
Newspapers. The
National Board has taken jurisdiction
Page 330 U. S. 792
over large daily newspapers in New York and other States and,
where challenged, has been uniformly sustained in this by the
courts. At the same time, the circulation departments of such
newspapers, to the extent that the distributing activity is
confined within a single State, are in many aspects local in
character. In New York State, and particularly in New York City,
where news vendors are subject to local licensing requirements, the
National Board feels that cases involving the distribution of
newspapers should properly be handled by the State Board.
Consistent with this approach, the New York Regional Office of the
National Board has recently referred to the State Board news vendor
cases involving four of the largest afternoon newspapers in New
York City. The representatives of the State Board expressed
agreement with this approach, and indicated that the proper line of
division might come at the level of the circulation managers. It
was agreed that, hereafter, neither Board will accept cases at the
circulation manager level without prior clearance with the other
Board; that cases above this level will be handled by the National
Board, and that cases below this level will be handled by the State
Board. Of course, small newspapers of limited circulation will
properly be handled by the State Board.
Concurrent jurisdiction. [
Footnote 2] The letter of July 12, 1937, left open the
question of "concurrent jurisdiction" -- by which, it is
understood, was meant the procedure to be followed in the case of
employers who might simultaneously be subject to the requirements
of both the State and National Acts. The letter stated:
"So far as concurrent jurisdiction is concerned, we assume that
even a tentative understanding must await mutual study of the
memorandum which Mr. Fahy is now preparing."
It
Page 330 U. S. 793
appears that the memorandum referred to was never prepared, and
that no subsequent understanding was reached as to such concurrent
jurisdiction. In practice, this does not seem to have been a
problem, except in the situation discussed below, since the State
Board has by and large confined its activities to the businesses
detailed in the letter of July 12 and the National Board, in turn,
has left this field open to the State Board. The problem of
so-called "concurrent jurisdiction" has arisen in recent months
because, following the National Board's decision in
Matter of
Maryland Drydock Company, 49 N.L.R.B. 733, a number of labor
organizations have filed election petitions with the State Board
which they knew would not be entertained by the National Board.
(See the second paragraph of this memorandum above, concerning the
conference of January 9, 1945, in Washington.) Prior to the
Maryland Drydock case, the State Board, it is understood,
had refrained from entertaining cases involving large intestate
manufacturers and the National Board had asserted exclusive
jurisdiction over such employers.
At the conference of April 20, the representatives of the
National Board pointed to the recent decision in the
Packard case and suggested that the State Board should
adhere to its general policy of leaving all cases involving large
manufacturing establishments doing interstate business to the
National Board. The impracticability of both Boards' intermittently
asserting jurisdiction over the same employer was emphasized, and
in addition the question was raised whether under the Federal
Constitution the State Board could lawfully enforce any requirement
against such employers which was inconsistent with or which imposed
restraints in addition to those enforced by the National Board. The
representatives of the New York Board agreed that cases of this
type presented a legal problem, but were of the view that it was
advisable
Page 330 U. S. 794
for the State Board to entertain election petitions for units of
supervisory employees where it was doubtful whether the National
Board would proceed with the case were it filed with the latter
Board. The representatives of the New York Board pointed to their
obligation to contribute to the maintenance of industrial peace
within the borders of New York State, and recalled a provision of
the New York Constitution which guarantees organizational rights to
all employees. The representatives of the latter Board agreed,
however, that their officials should not reach out for cases of
this character, involving large interstate manufacturers, and that
they would keep the National Board advised as to all such cases
they decided to entertain. Thus, no broad understanding was reached
on this score, both Boards reserving their respective positions
with regard to petitions for units of supervisory employees and
other petitions involving large interstate manufacturers.
It was believed that it would be helpful to the work of both
Boards if lists of cases entertained within the State were
periodically exchanged. The details of this were left to be worked
out.
----------
NEW YORK STATE LABOR RELATIONS BOARD
July 12, 1937
Honorable J. WARREN MADDEN
National Labor Relations Board
Washington, D.C.
DEAR MR. MADDEN: We wish, in the first place, to thank you and
your colleagues for your warm reception of last Wednesday. It is
gratifying to know that we can look forward to such wholehearted
cooperation from your Board and its staff. We will gladly
reciprocate.
As requested, we outline our recollection of the understanding
reached. So far as concurrent jurisdiction is
Page 330 U. S. 795
concerned, we assume that even a tentative understanding must
await mutual study of the memorandum which Mr. Fahy is now
preparing.
Unless there are unusual circumstances, the New York State Labor
Relations Board will assume jurisdiction over all cases arising in
the following trades and industries, without clearing, except as a
matter of record, with the National Board's officials:
1. Retail stores,
2. Small industries which receive all or practically all raw
materials from within the New York, and do not ship any material
proportion of their product outside the State,
3. Service trades (such as laundries),
4. Office and residential buildings,
5. Small and clearly local public utilities (this includes local
traction companies, as well as gas and electric light
corporations),
6. Storage warehouses,
7. Construction operations,
8. Other obviously local businesses.
Clearance is certainly going to be required in the case of
industries where the raw materials or most of them come from
without the State, but the product is not shipped beyond the
borders of New York. (The question here is as to the breadth of
application of the "come to rest" doctrine of the
Schechter case.)
You are familiar, of course, with Section 715 of our statute,
part of which reads as follows:
"Application of article. The provisions of this article shall
not apply to the employees of any employer who concedes to and
agrees with the board that such employees are subject to and
protected by the provisions of the national labor relations act or
the federal railway labor act. . . ."
The New York State Board will undoubtedly take the position that
the
Page 330 U. S. 796
words "agrees with" contemplate the necessity of our Board's
agreeing with the employer that his employees are subject to the
national statute, and that no employer can, by unilateral action,
select his jurisdiction.
This, however, does not solve all of the problems created by the
Section, since it is clear that even the agreement of this Board
with the employer will not necessarily bestow federal jurisdiction
under the Constitution. Presumably, every time such a concession is
proffered by an employer, our Board will have to clear with the
National Board officials in the same way it would clear with them
if no such concession were made.
It is our understanding that we should clear on all questions of
jurisdiction with the Regional Directors in New York City and
Buffalo in the first instance, and that you will instruct your
Directors to reciprocate by clearing with us all doubtful cases
which first come to their attention.
Whenever this Board and either of your Regional Directors find
themselves unable to agree, the matter will be taken up with you at
once.
We would appreciate knowing that your recollection and
understanding of the above are in accord with our own.
Very sincerely yours,
/s/ John P. Boland
(Dr.) JOHN P. BOLAND, Chairman.
----------
NATIONAL LABOR RELATIONS BOARD
MINUTES OF AUGUST 16, 1946
An informal inquiry was made to the Board by United Financial
Employees Association asking whether the Board would entertain a
Section 9 representation petition on behalf of the employees of
Harris Upham and Company, a New York brokerage house. The Board was
also
Page 330 U. S. 797
advised that similar petitions were contemplated for the
employees of a number of similar New York brokerage houses . The
Board concluded that it would not at this time entertain a petition
filed on behalf of the employees of Harris Upham and Company or
other such brokerage houses because of budgetary and other
administrative considerations. The Board further concluded that, in
view of this disposition, it had no objection to having the State
Labor Relations Board of the New York entertain such petitions
filed under the State Act.
Dated at Washington, D.C.
August 16, 1946.
Donn N. Bent
DONN N. BENT
Executive Secretary
Approved:
s/ P.M.H.
s/ J.M.H.
Certified to be a true and correct copy.
s/ Donn N. Bent
DONN N. BENT
Executive Secretary
[
Footnote 1]
In
Consolidated Edison Co. v. NLRB, 305 U.
S. 197,
305 U. S. 223,
the Supreme Court indicated that, in deciding whether or not to
assert jurisdiction, the National Board could properly take into
account the existence of State protective legislation, such as the
New York State Labor Relations Act.
The National Act contains no provision authorizing the National
Board to enter into compacts or agreements with State Boards, but
would seem to require the National Board in each case to exercise
its discretion whether or not to proceed. It is believed,
nevertheless, that understanding such as that embodied in the
letter of July 12, 1937, although of no legal effect, assist both
Boards in determining the proper disposition of particular cases as
they arise.
[
Footnote 2]
See Davega City Radio, Inc. v. New York Labor Relations
Board, 281 N.Y. 13, 22 N.E.2d 145; 4 L.R.R.Man. 899 (July 11,
1939).