Upon determining that certain carpentry work in petitioner's
department store was being done by men who had not been dispatched
from its hiring hall, respondent Union established picket lines on
petitioner's property. When the Union refused petitioner's demand
to remove the pickets, petitioner filed suit in the California
Superior Court and obtained a preliminary injunction against the
continuing trespass, and the Court of Appeal affirmed. The
California Supreme Court reversed, holding that, because the
picketing was both arguably protected by § 7 of the National Labor
Relations Act and arguably prohibited by § 8, state jurisdiction
was preempted under the guidelines of
San Diego Building Trades
Council v. Garmon, 359 U. S. 236.
Held:
1. The reasons why preemption of state jurisdiction is normally
appropriate when union activity is arguably prohibited by federal
law do not apply to this case, and therefore they are insufficient
to preclude the State from exercising jurisdiction limited to the
trespassory aspects of the Union's picketing. Pp.
436 U. S.
190-198.
(a) The critical inquiry is not whether the State is enforcing a
law relating specifically to labor relations or one of general
application, but whether the controversy presented to the state
court is identical to or different from that which could have been,
but was not, presented to the National Labor Relations Board, for
it is only in the former situation that a state court's exercise of
jurisdiction necessarily involves a risk of interference with the
NLRB's unfair labor practice jurisdiction that the arguably
prohibited branch of the
Garmon doctrine was designed to
avoid. Pp.
436 U. S.
190-197.
(b) Here the controversy that petitioner might have presented to
the NLRB is not the same as the controversy presented to the state
court. Had petitioner filed an unfair labor practice charge with
the NLRB, the issue would have been whether the picketing had a
recognitional or work reassignment objective, whereas, in the state
court, petitioner only challenged the location of the picketing.
Accordingly, permitting the state court to adjudicate petitioner's
trespass claim creates
Page 436 U. S. 181
no realistic risk of interference with the NLRB's primary
jurisdiction to enforce the statutory prohibition against unfair
labor practices. P.
436 U. S.
198.
2. Nor does the arguably protected character of the Union's
picketing provide a sufficient justification for preemption of the
state court's jurisdiction over petitioner's trespass claim. Pp.
436 U. S.
199-207.
(a) The "primary jurisdiction" rationale of
Garmon,
requiring that, when the same controversy may be presented to the
state court or the NLRB, it must be presented to the NLRB, does not
provide a sufficient justification for preempting state
jurisdiction over arguably protected conduct when, as in this case,
the party who could have presented the protection issue to the NLRB
has not done so, and the other party to the dispute has no
acceptable means of doing so. Pp.
436 U. S.
202-203.
(b) While it cannot be said with certainty that, if the Union
had filed an unfair labor practice charge against petitioner, the
NLRB would have fixed the locus of the accommodation of
petitioner's property rights and the Union's § 7 rights at the
unprotected end of the spectrum, it is "arguable" that the Union's
peaceful picketing, though trespassory, was protected, but,
nevertheless, permitting state courts to evaluate the merits of an
argument that certain trespassory activity is protected does not
create an unacceptable risk of interference with conduct that the
NLRB, and a court reviewing the NLRB's decision, would find
protected. Pp.
436 U. S.
203-207.
17 Cal. 3d
893, 553 P.2d 603, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined. BLACKMUN, J.,
post, p.
436 U. S. 208,
and POWELL, J.,
post, p.
436 U. S. 212,
filed concurring opinions. BRENNAN, J., filed a dissenting opinion,
in which STEWART and MARSHALL, JJ., joined,
post, p.
436 U.S. 214.
Page 436 U. S. 182
MR. JUSTICE STEVENS delivered the opinion of the Court.
The question in this case is whether the National Labor
Relations Act, as amended, [
Footnote 1] deprives a state court of the power to
entertain an action by an employer to enforce state trespass laws
against picketing which is arguably -- but not definitely --
prohibited or protected by federal law.
I
On October 24, 1973, two business representatives of respondent
Union visited the department store operated by petitioner (Sears)
in Chula Vista, Cal., and determined that certain carpentry work
was being performed by men who had not been dispatched from the
Union hiring hall. Later that day, the Union agents met with the
store manager and requested that Sears either arrange to have the
work performed by a contractor who employed dispatched carpenters
or agree in writing to abide by the terms of the Union's master
labor agreement with respect to the dispatch and use of carpenters.
The Sears manager stated that he would consider the request, but he
never accepted or rejected it.
Two days later, the Union established picket lines on Sears'
property. The store is located in the center of a large rectangular
lot. The building is surrounded by walkways and a large parking
area. A concrete wall at one end separates the lot from residential
property; the other three sides adjoin public sidewalks which are
adjacent to the public streets. The pickets patrolled either on the
privately owned walkways next to the building or in the parking
area a few feet away. They carried signs indicating that they were
sanctioned by the "Carpenters Trade Union." The picketing was
peaceful and orderly.
Sears' security manager demanded that the Union remove
Page 436 U. S. 183
the pickets from Sears' property. The Union refused, stating
that the pickets would not leave unless forced to do so by legal
action. On October 29, Sears filed a verified complaint in the
Superior Court of California seeking an injunction against the
continuing trespass; the court entered a temporary restraining
order enjoining the Union from picketing on Sears' property. The
Union promptly removed the pickets to the public sidewalks.
[
Footnote 2] On November 21,
1973, after hearing argument on the question whether the Union's
picketing on Sears' property was protected by state or federal law,
the court entered a preliminary injunction. [
Footnote 3] The California Court of Appeal
affirmed. While acknowledging the preemption guidelines set forth
in
San Diego Building Trades Council v. Garmon,
359 U. S. 236,
[
Footnote 4] the court held
that the Union's continuing trespass fell within the longstanding
exception for conduct which touched interests so deeply rooted in
local feeling and responsibility that preemption could not be
inferred in the absence of clear evidence of congressional intent.
[
Footnote 5]
Page 436 U. S. 184
The Supreme Court of California reversed.
17 Cal. 3d
893, 553 P.2d 603. It concluded that the picketing was arguably
protected by § 7 of the Act, 29 U.S.C. § 157, because it was
intended to secure work for Union members and to publicize Sears'
undercutting of the prevailing area standards for the employment of
carpenters. The court reasoned that the trespassory character of
the picketing did not disqualify it from arguable protection, but
was merely a factor which the National Labor Relations Board would
consider in determining whether or not it was in fact protected.
The court also considered it "arguable" that the Union had engaged
in recognitional picketing subject to § 8(b)(7)(C) of the Act, 29
U.S.C. § 158(b)(7)(C), which could not continue for more than 30
days without petitioning for a representation election. Because the
picketing was both arguably protected by § 7 and arguably
prohibited by § 8, the court held that state jurisdiction was
preempted under the
Garmon guidelines.
Since the Wagner Act was passed in 1935, this Court has not
decided whether, or under what circumstances, a state court has
power to enforce local trespass laws against a union's peaceful
picketing. [
Footnote 6] The
obvious importance of this problem led us to grant certiorari in
this case. 430 U.S. 905. [
Footnote
7]
Page 436 U. S. 185
II
We start from the premise that the Union's picketing on Sears'
property after the request to leave was a continuing trespass in
violation of state law. [
Footnote
8] We note, however, that the scope of the controversy in the
state court was limited. Sears asserted no claim that the picketing
itself violated any state or federal law. It sought simply to
remove the pickets from its property to the public walkways, and
the injunction issued by the state court was strictly confined to
the relief sought. Thus, as a matter of state law, the location of
the picketing was illegal, but the picketing itself was
unobjectionable.
As a matter of federal law, the legality of the picketing was
unclear. Two separate theories would support an argument by Sears
that the picketing was prohibited by § 8 of the NLRA, and a third
theory would support an argument by the Union that the picketing
was protected by § 7. Under each of these theories, the Union's
purpose would be of critical importance.
If an object of the picketing was to force Sears into assigning
the carpentry work away from its employees to Union members
Page 436 U. S. 186
dispatched from the hiring hall, the picketing may have been
prohibited by § 8(b)(4)(D). [
Footnote 9] Alternatively, if an object of the picketing
was to coerce Sears into signing a prehire or members-only type
agreement with the Union, the picketing was at least arguably
subject to the prohibition on recognitional picketing contained in
§ 8(b)(7)(C). [
Footnote 10]
Hence, if Sears had filed an unfair labor practice charge against
the Union, the Board's concern would have been limited to the
question whether the Union's picketing had an objective proscribed
by the Act; the location of the picketing would have been
irrelevant.
On the other hand, the Union contends that the sole objective of
its action was to secure compliance by Sears with
Page 436 U. S. 187
area standards, and therefore the picketing was protected by §
7.
Longshoremen v. Ariadne Shipping Co., 397 U.
S. 195. Thus, if the Union had filed an unfair labor
practice charge under § 8(a)(1) when Sears made a demand that the
pickets leave its property, it is at least arguable that the Board
would have found Sears guilty of an unfair labor practice.
Our second premise, therefore, is that the picketing was both
arguably prohibited and arguably protected by federal law. The case
is not, however, one in which "it is clear or may fairly be
assumed" that the subject matter which the state court sought to
regulate -- that is, the location of the picketing -- is either
prohibited or protected by the Federal Act.
III
In
San Diego Building Trades Council v. Garmon,
359 U. S. 236, the
Court made two statements which have come to be accepted as the
general guidelines for deciphering the unexpressed intent of
Congress regarding the permissible scope of state regulation of
activity touching upon labor-management relations. The first
related to activity which is clearly protected or prohibited by the
federal statute. [
Footnote
11] The second articulated a more sweeping prophylactic
rule:
"When an activity is arguably subject to § 7 or § 8 of the Act,
the States, as well as the federal courts, must defer to the
exclusive competence of the National Labor Relations
Page 436 U. S. 188
Board if the danger of state interference with national policy
is to be averted."
Id. at
359 U. S.
245.
While the
Garmon formulation accurately reflects the
basic federal concern with potential state interference with
national labor policy, the history of the labor preemption doctrine
in this Court does not support an approach which sweeps away state
court jurisdiction over conduct traditionally subject to state
regulation without careful consideration of the relative impact of
such a jurisdictional bar on the various interests affected.
[
Footnote 12] As the Court
noted last Term:
"Our cases indicate . . . that inflexible application of the
doctrine is to be avoided, especially where the State has a
substantial interest in regulation of the conduct at issue and the
State's interest is one that does not threaten undue interference
with the federal regulatory scheme."
Farmer v. Carpenters, 430 U. S. 290,
430 U. S. 302.
Thus, the Court has refused to apply the
Garmon guidelines
in a literal, mechanical fashion. [
Footnote 13] This refusal demonstrates that
Page 436 U. S. 189
"the decision to preempt . . . state court jurisdiction over a
given class of cases must depend upon the nature of the particular
interests being asserted and the effect upon the administration of
national labor policies"
of permitting the state court to proceed.
Vaca v.
Sipes, 386 U. S. 171,
386 U. S. 180.
[
Footnote 14]
Page 436 U. S. 190
With this limitation in mind, we turn to the question whether
preemption is justified in a case of this kind under either the
arguably protected or the arguably prohibited branch of the
Garmon doctrine. While the considerations underlying the
two categories overlap, they differ in significant respects, and
therefore it is useful to review them separately. We therefore
first consider whether the arguable illegality of the picketing as
a matter of federal law should oust the state court of jurisdiction
to enjoin its trespassory aspects. Thereafter, we consider whether
the arguably protected character of the picketing should have that
effect.
IV
The enactment of the NLRA in 1935 marked a fundamental change in
the Nation's labor policies. Congress expressly recognized that
collective organization of segments of the labor force into
bargaining units capable of exercising economic power comparable to
that possessed by employers may produce benefits for the entire
economy in the form of higher wages, job security, and improved
working conditions. Congress decided that, in the long run, those
benefits would outweigh the occasional costs of industrial strife
associated with the organization of unions and the negotiation and
enforcement of collective bargaining agreements. The earlier notion
that union activity was a species of "conspiracy," and that strikes
and picketing were examples of unreasonable restraints of trade,
was replaced by an unequivocal national declaration of policy
establishing the legitimacy of labor unionization and encouraging
the practice of collective bargaining. [
Footnote 15]
Page 436 U. S. 191
The new federal statute protected the collective bargaining
activities of employees and their representatives and created a
regulatory scheme to be administered by an independent agency which
would develop experience and expertise in the labor relations area.
The Court promptly decided that the federal agency's power to
implement the policies of the new legislation was exclusive and the
States were without power to enforce overlapping rules. [
Footnote 16] Accordingly, attempts
to apply provisions of the "Little Wagner Acts" enacted by New York
[
Footnote 17] and Wisconsin
[
Footnote 18] were held to
be preempted by the potential conflict with the federal regulatory
scheme. Consistently with these holdings, the Court also decided
that a State's employment relations board had no power to grant
relief for violation of the federal statute. [
Footnote 19] The interest in uniform development
of the new national labor policy required that matters which fell
squarely within the regulatory jurisdiction of the federal Board be
evaluated in the first instance by that agency.
The leading case holding that, when an employer grievance
against a union may be presented to the National Labor
Relations
Page 436 U. S. 192
Board it is not subject to litigation in a state tribunal is
Garner v. Teamsters, 346 U. S. 485.
Garner involved peaceful organizational picketing which
arguably violated § 8(b)(2) of the federal Act. [
Footnote 20] A Pennsylvania equity court
held that the picketing violated the Pennsylvania Labor Relations
Act, and therefore should be enjoined. The State Supreme Court
reversed because the union conduct fell within the jurisdiction of
the National Labor Relations Board to prevent unfair labor
practices.
This Court affirmed because Congress had "taken in hand this
particular type of controversy . . . [i]n language almost identical
to parts of the Pennsylvania statute," 346 U.S. at
346 U. S. 488.
Accordingly, the State, through its courts, was without power to
"adjudge the same controversy and extend its own form of relief."
Id. at
346 U. S. 489.
This conclusion did not depend on any surmise as to "how the
National Labor Relations Board might have decided this controversy
had petitioners presented it to that body."
Ibid. The
precise conduct in controversy was arguably prohibited by federal
law, and therefore state jurisdiction was preempted. The reason for
preemption was clearly articulated:
"Congress evidently considered that centralized administration
of specially designed procedures was necessary to obtain uniform
application of its substantive rules and to avoid these diversities
and conflicts likely to result from a variety of local procedures
and attitudes toward labor controversies. Indeed, Pennsylvania
passed a statute the same year as its labor relations Act reciting
abuses of the injunction in labor litigations attributable more to
procedure and usage than to substantive rules. A multiplicity of
tribunals and a diversity of procedures are quite as apt to produce
incompatible or conflicting adjudications as are different rules of
substantive law. The same
Page 436 U. S. 193
reasoning which prohibits federal courts from intervening in
such cases, except by way of review or on application of the
federal Board, precludes state courts from doing so.
Cf. Myers
v. Bethehem Shipbuilding Corp., 303 U. S.
41;
Amalgamated Utility Workers v. Consolidated
Edison Co., 309 U. S. 261."
Id. at
346 U. S.
490-491 (footnote omitted). "The conflict lies in
remedies. . . . [W]hen two separate remedies are brought to bear on
the same activity, a conflict is imminent."
Id. at
346 U. S.
498-499.
This reasoning has its greatest force when applied to state laws
regulating the relations between employees, their union, and their
employer. [
Footnote 21] It
may also apply to certain laws of general applicability which are
occasionally invoked in connection with a labor dispute. [
Footnote 22] Thus, a State's
antitrust law may not be invoked to enjoin collective activity
which is also arguably prohibited by the federal Act.
Capital
Service, Inc. v. NLRB, 347 U. S. 501;
Weber v. Anheuser-Busch, Inc., 348 U.
S. 468. [
Footnote
23] In each case, the pertinent inquiry is whether
Page 436 U. S. 194
the two potentially conflicting statutes were "brought to bear
on precisely the same conduct."
Id. at
348 U. S. 479.
[
Footnote 24]
On the other hand, the Court has allowed a State to enforce
Page 436 U. S. 195
certain laws of general applicability even though aspects of the
challenged conduct were arguably prohibited by § 8 of the NLRA.
Thus, for example, the Court has upheld state court jurisdiction
over conduct that touches
"interests so deeply rooted in local feeling and responsibility
that, in the absence of compelling congressional direction, we
could not infer that Congress had deprived the States of the power
to act."
San Diego Building Trades Council v. Garmon, 359 U.S.
at
359 U. S. 244.
See Construction Workers v. Laburnum Constr. Corp.,
347 U. S. 656
(threats of violence);
Youngdahl v. Rainfair, Inc.,
355 U. S. 131
(violence);
Automobile Workers v. Russell, 356 U.
S. 634 (violence);
Linn v. Plant Guard Workers,
383 U. S. 53
(libel);
Farmer v. Carpenters, 430 U.
S. 290 (intentional infliction of mental distress).
In
Farmer, the Court held that a union member, who
alleged that his union had engaged in a campaign of personal abuse
and harassment against him, could maintain an action for damages
against the union and its officers for the intentional infliction
of emotional distress. One aspect of the alleged campaign was
discrimination by the union in hiring hall referrals.
Page 436 U. S. 196
Although such discrimination was arguably prohibited by §§
8(b)(1)(A) and 8(b)(2) of the NLRA, and therefore an unfair labor
practice charge could have been filed with the Board, the Court
permitted the state action to proceed.
The Court identified those factors which warranted a departure
from the general preemption guidelines in the "local interest"
cases. Two are relevant to the arguably prohibited branch of the
Garmon doctrine. [
Footnote 25] First, there existed a significant state
interest in protecting the citizen from the challenged conduct.
Second, although the challenged conduct occurred in the course of a
labor dispute and an unfair labor practice charge could have been
filed, the exercise of state jurisdiction over the tort claim
entailed little risk of interference with the regulatory
jurisdiction of the Labor Board. Although the arguable federal
violation and the state tort arose in the same factual setting, the
respective controversies
Page 436 U. S. 197
presented to the state and federal forums would not have been
the same. [
Footnote 26]
The critical inquiry, therefore, is not whether the State is
enforcing a law relating specifically to labor relations or one of
general application, but whether the controversy presented to the
state court is identical to (as in
Garner) or different
from (as in
Farmer) that which could have been, but was
not, presented to the Labor Board. For it is only in the former
situation that a state court's exercise of jurisdiction necessarily
involves a risk of interference with the unfair labor practice
jurisdiction of the Board which the arguably prohibited branch of
the
Garmon doctrine was designed to avoid. [
Footnote 27]
Page 436 U. S. 198
In the present case, the controversy which Sears might have
presented to the Labor Board is not the same as the controversy
presented to the state court. If Sears had filed a charge, the
federal issue would have been whether the picketing had a
recognitional or work reassignment objective; decision of that
issue would have entailed relatively complex factual and legal
determinations completely unrelated to the simple question whether
a trespass had occurred. [
Footnote 28] Conversely, in the state action, Sears only
challenged the location of the picketing; whether the picketing had
an objective proscribed by federal law was irrelevant to the state
claim. Accordingly, permitting the state court to adjudicate Sears'
trespass claim would create no realistic risk of interference with
the Labor Board's primary jurisdiction to enforce the statutory
prohibition against unfair labor practices.
The reasons why preemption of state jurisdiction is normally
appropriate when union activity is arguably prohibited by federal
law plainly do not apply to this situation; they therefore are
insufficient to preclude a State from exercising jurisdiction
limited to the trespassory aspects of that activity.
Page 436 U. S. 199
V
The question whether the arguably protected character of the
Union's trespassory picketing provides a sufficient justification
for preemption of the state court's jurisdiction over Sears'
trespass claim involves somewhat different considerations.
Apart from notions of "primary jurisdiction," [
Footnote 29] there would be no objection to
state courts' and the NLRB's exercising concurrent jurisdiction
over conduct prohibited by the federal Act. But there is a
constitutional objection to state court interference with conduct
actually protected by the Act. [
Footnote 30]
Page 436 U. S. 200
Considerations of federal supremacy, therefore, are implicated
to a greater extent when labor-related activity is protected than
when it is prohibited. Nevertheless, several considerations
persuade us that the mere fact that the Union's trespass was
arguably protected is insufficient to deprive the state
court of jurisdiction in this case.
The first is the relative unimportance in this context of the
"primary jurisdiction" rationale articulated in
Garmon. In
theory, of course, that rationale supports preemption regardless of
which section of the NLRA is critical to resolving a controversy
which may be subject to the regulatory jurisdiction of the NLRB.
Indeed, at first blush, the primary jurisdiction rationale provides
stronger support for preemption in this case when the analysis is
focused upon the arguably protected, rather than the arguably
prohibited, character of the Union's conduct. For to the extent
that the Union's picketing was arguably protected, there existed a
potential overlap between the controversy presented to the state
court,
Page 436 U. S. 201
and that which the Union might have brought before the NLRB.
[
Footnote 31] Prior to
granting any relief from the Union's continuing trespass, the state
court was obligated to decide that the trespass was not actually
protected by federal law, a determination which might entail an
accommodation of Sears' property rights and the Union's § 7 rights.
In an unfair labor practice proceeding initiated by the Union, the
Board might have been required to make the same accommodation.
[
Footnote 32]
Although it was theoretically possible for the accommodation
issue to be decided either by the state court or by the Labor
Board, there was, in fact, no risk of overlapping jurisdiction in
this case. The primary jurisdiction rationale justifies preemption
only in situations in which an aggrieved party has a reasonable
opportunity either to invoke the Board's jurisdiction himself or
else to induce his adversary to do so. In this case, Sears could
not directly obtain a Board ruling on the question whether the
Union's trespass was federally protected. Such a Board
determination could have been obtained only if the Union had filed
an unfair labor practice charge alleging that Sears had interfered
with the Union's § 7 right to engage in peaceful picketing on
Sears' property. By demanding that the Union remove its pickets
from the store's property, Sears in fact pursued a course of action
which gave the Union
Page 436 U. S. 202
the opportunity to file such a charge. But the Union's response
to Sears' demand foreclosed the possibility of having the
accommodation of § 7 and property rights made by the Labor Board;
instead of filing a charge with the Board, the Union advised Sears
that the pickets would only depart under compulsion of legal
process.
In the face of the Union's intransigence, Sears had only three
options: permit the pickets to remain on its property; forcefully
evict the pickets; or seek the protection of the State's trespass
laws. Since the Union's conduct violated state law, Sears
legitimately rejected the first option. Since the second option
involved a risk of violence, Sears surely had the right -- perhaps
even the duty -- to reject it. Only by proceeding in state court,
therefore, could Sears obtain an orderly resolution of the question
whether the Union had a federal right to remain on its
property.
The primary jurisdiction rationale unquestionably requires that,
when the same controversy may be presented to the state court or
the NLRB, it must be presented to the Board. But that rationale
does not extend to cases in which an employer has no acceptable
method of invoking, or inducing the Union to invoke, the
jurisdiction of the Board. [
Footnote 33] We are therefore persuaded that the primary
jurisdiction rationale does not provide a
sufficient
justification for preempting state jurisdiction over arguably
protected conduct when the party who
Page 436 U. S. 203
could have presented the protection issue to the Board has not
done so and the other party to the dispute has no acceptable means
of doing so. [
Footnote
34]
This conclusion does not, however, necessarily foreclose the
possibility that preemption may be appropriate. The danger of state
interference with federally protected conduct is the principal
concern of the second branch of the
Garmon doctrine. To
allow the exercise of state jurisdiction in certain contexts might
create a significant risk of misinterpretation of federal law and
the consequent prohibition of protected conduct. In those
circumstances, it might be reasonable to infer that Congress
preferred the costs inherent in a jurisdictional hiatus to the
frustration of national labor policy which might accompany the
exercise of state jurisdiction. Thus, the acceptability of
"arguable protection" as a justification for preemption in a given
class of cases is, at least in part, a function of the strength of
the argument that § 7 does, in fact, protect the disputed
conduct.
Page 436 U. S. 204
The Court has held that state jurisdiction to enforce its laws
prohibiting violence, [
Footnote
35] defamation, [
Footnote
36] the intentional infliction of emotional distress, [
Footnote 37] or obstruction of
access to property [
Footnote
38] is not preempted by the NLRA. But none of those violations
of state law involves protected conduct. In contrast, some
violations of state trespass laws may be actually protected by § 7
of the federal Act.
In
NLRB v. Babcock & Wilcox Co., 351 U.
S. 105, for example, the Court recognized that, in
certain circumstances, nonemployee union organizers may have a
limited right of access to an employer's premises for the purpose
of engaging in organization solicitation. [
Footnote 39] And the Court has indicated that
Babcock extends to § 7 rights other than organizational activity,
though the "locus" of the
accommodation of § 7 rights and private property rights . . .
may fall at differing points along the spectrum depending on the
nature and strength of the respective § 7 rights and private
property rights asserted in any given context.
Hudgens v. NLRB, 424 U. S. 507,
424 U. S.
522.
For purpose of analysis, we must assume that the Union could
have proved that its picketing was, at least in the absence of a
trespass, protected by § 7. The remaining question is whether,
under
Babcock, the trespassory nature of the
Page 436 U. S. 205
picketing caused.it to forfeit its protected status. Since it
cannot be said with certainty that, if the Union had filed an
unfair labor practice charge against Sears, the Board would have
fixed the locus of the accommodation at the unprotected end of the
spectrum, it is indeed "arguable" that the Union's peaceful
picketing, though trespassory, was protected. Nevertheless,
permitting state courts to evaluate the merits of an argument that
certain trespassory activity is protected does not create an
unacceptable risk of interference with conduct which the Board, and
a court reviewing the Board's decision, would find protected. For
while there are unquestionably examples of trespassory union
activity in which the question whether it is protected is fairly
debatable, experience under the Act teaches that such situations
are rare, and that a trespass is far more likely to be unprotected
than protected.
Experience with trespassory organizational solicitation by
nonemployees is instructive in this regard. While
Babcock
indicates that an employer may not always bar nonemployee union
organizers from his property, his right to do so remains the
general rule. To gain access, the union has the burden of showing
that no other reasonable means of communicating its organizational
message to the employees exists or that the employer's access rules
discriminate against union solicitation. [
Footnote 40] That the burden imposed on the union is a
heavy one is evidenced by the fact that the balance struck by the
Board and the courts under the
Babcock accommodation
principle has rarely been in favor of trespassory organizational
activity. [
Footnote 41]
Page 436 U. S. 206
Even on the assumption that picketing to enforce area standards
is entitled to the same deference in the
Babcock
accommodation analysis as organizational solicitation, [
Footnote 42] it would be unprotected
in most instances. While there does exist some risk that state
courts will on occasion enjoin a trespass that the Board would have
protected, the significance of this risk is minimized by the fact
that, in the cases in which the argument in favor of protection is
the strongest, the union is likely to invoke the Board's
jurisdiction, and thereby avoid the state forum. Whatever risk of
an erroneous state court adjudication does exist is outweighed by
the anomalous consequence of a rule which would deny the employer
access to any forum in which to litigate either the trespass issue
or the
Page 436 U. S. 207
protection issue in those cases in which the disputed conduct is
least likely to be protected by § 7.
If there is a strong argument that the trespass is protected in
a particular case, a union can be expected to respond to an
employer demand to depart by filing an unfair labor practice
charge; the protection question would then be decided by the agency
experienced in accommodating the § 7 rights of unions and the
property rights of employers in the context of a labor dispute. But
if the argument for protection is so weak that it has virtually no
chance of prevailing, a trespassing union would be well advised to
avoid the jurisdiction of the Board and to argue that the protected
character of its conduct deprives the state court of
jurisdiction.
As long as the union has a fair opportunity to present the
protection issue to the Labor Board, it retains meaningful
protection against the risk of error in a state tribunal. In this
case, the Union failed to invoke the jurisdiction of the Labor
Board, [
Footnote 43] and
Sears had no right to invoke that jurisdiction, and could not even
precipitate its exercise without resort to self-help. Because the
assertion of state jurisdiction in a case of this kind does not
create a significant risk of prohibition of protected conduct, we
are unwilling to presume that Congress intended the arguably
protected character of the Union's conduct to deprive the
California courts of jurisdiction to entertain Sears' trespass
action. [
Footnote 44]
Page 436 U. S. 208
The judgment of the Supreme Court of California is therefore
reversed, and the case is remanded to that court for further
proceedings not inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
49 Stat. 449, as amended, 29 U.S.C. §§ 151-169 (1970 ed. and
Supp. V). Hereinafter, the National Labor Relations Act will be
referred to as the Act or the NLRA.
[
Footnote 2]
Although Sears claimed that some deliverymen and repairmen
refused to cross the picket lines on the public sidewalks, the
Union ultimately concluded that the picketing was then too far
removed from the store to be effective. The picketing was
discontinued on November 12
[
Footnote 3]
The Superior Court apparently rested its decision on two
grounds: (1) that the injunction was not prohibited by state law,
and (2) that the picketing was not protected by the First and
Fourteenth Amendments of the Federal Constitution. Transcript of
Preliminary Injunction Hearing, App. 32. Thus, the precise issue
presently before the Court was not decided until the case reached
the Court of Appeal.
[
Footnote 4]
The court was referring to this statement in the
Garmon
opinion:
"When an activity is arguably subject to § 7, or § 8 of the Act,
the States as well as the federal courts must defer to the
exclusive competence of the National Labor Relations Board if the
danger of state interference with national policy is to be
averted."
359 U.S. at
359 U. S.
245.
[
Footnote 5]
The court also reaffirmed the conclusion of the Superior Court
that the injunction was not prohibited by either state law or the
Federal Constitution.
In concluding that the state courts were "not preempted from
exercising their general jurisdiction in matters of trespass
related to labor disputes," App. to Pet. for Cert. A-10, the Court
of Appeal noted that the right to peaceful possession of property
was regarded as basic in California, and that the assumption of
state jurisdiction would not directly infringe on the jurisdiction
of the National Labor Relations Board, since no attempt had been
made to invoke that jurisdiction. In a subsequent amended opinion,
the Court of Appeal also emphasized the fact that the trial court
injunction was narrowly confined to the
"'location' of the controversy, as opposed to the purpose of the
acts . . . , and did not deny the Union effective communication
with all persons going to Sears."
125 Cal. Rptr. 245, 252 (1975).
[
Footnote 6]
The issue was left open by the Court in
Meat Cutters v.
Fairlawn Meats, Inc., 353 U. S. 20,
353 U. S. 24 25.
Cf. Taggart v. Weinacker's, Inc., 283 Ala. 171,
214 So. 2d
913 (1968),
cert. dismissed, 397 U.
S. 223.
[
Footnote 7]
The state courts have divided on the question of state court
jurisdiction over peaceful trespassory activity. For cases in
addition to this one in which preemption was found,
see, e.g.,
Reece Shirley & Ron's, Inc. v. Retail Store Employees, 222
Kan 373,
565 P.2d 585
(1977);
Freeman v. Retail Clerks, 58 Wash. 2d
426,
363 P.2d
803 (1961). For cases reaching a contrary conclusion,
see,
e.g., May Department Stores Co. v. Teamsters, 64 Ill. 2d
153,
355 N.E.2d 7
(1976);
People v. Bush, 39 N.Y.2d 529, 349 N.E.2d 832
(1976);
Hood v. Stafford, 213 Tenn. 684,
378
S.W.2d 766 (1964).
[
Footnote 8]
The State Superior Court and the Court of Appeal concluded that
the Union's activity violated state law. Because it concluded that
the state courts lacked jurisdiction to entertain the state
trespass claim, the California Supreme Court did not address the
merits of the lower court rulings. The Union contends that those
rulings were incorrect. Though we regard the state law issue as
foreclosed in this Court, there is of course nothing in our
decision on the preemption issue which bars consideration of the
Union's arguments by the California Supreme Court on remand.
[
Footnote 9]
Section 8(b)(4)(D) provides in part that it shall be an unfair
labor practice for a labor organization or its agents --
"to threaten, coerce, or restrain any person engaged in commerce
or in an industry affecting commerce, where . . . an object thereof
is -- "
"
* * * *"
"forcing or requiring any employer to assign particular work to
employees in a particular labor organization or in a particular
trade, craft, or class rather than to employees in another labor
organization or in another trade, craft, or class, unless such
employer is failing to conform to an order or certification of the
Board determining the bargaining representative for employees
performing such work."
29 U.S.C. § 158(b)(4)(D). There are two provisos to § 8(b)(4)
which exempt certain conduct from its prohibitions, but they appear
to have no application in this case.
[
Footnote 10]
Section 8(b)(7)(C) provides in part that
"[i]t shall be an unfair labor practice for a labor organization
or its agents -- "
"
* * * *"
"to picket . . . any employer where an object thereof is forcing
or requiring an employer to recognize or bargain with a labor
organization as the representative of his employees . . . unless
such labor organization is currently certified as the
representative of such employees:"
"
* * * *"
"where such picketing has been conducted without a petition . .
. [for a representation election] being filed within a reasonable
period of time not to exceed thirty days from the commencement of
such picketing. . . ."
29 U.S.C. § 158(b)(7)(C).
[
Footnote 11]
As to conduct clearly protected or prohibited by the federal
statute, the Court stated:
"When it is clear or may fairly be assumed that the activities
which a State purports to regulate are protected by § 7 of the
National Labor Relations Act, or constitute an unfair labor
practice under § 8, due regard for the federal enactment requires
that state jurisdiction must yield. To leave the States free to
regulate conduct so plainly within the central aim of federal
regulation involves too great a danger of conflict between power
asserted by Congress and requirements imposed by state law."
359 U.S. at
359 U. S.
244.
[
Footnote 12]
This sensitivity to the consequences of preemption is
undoubtedly attributable, at least in part, to the way in which the
labor preemption doctrine has evolved. The doctrine is, to a great
extent, the result of this Court's ongoing effort to decipher the
presumed intent of Congress in the face of that body's steadfast
silence. Mr. Justice Frankfurter aptly described the difficulty of
this never-completed task:
"The statutory implications concerning what has been taken from
the States and what has been left to them are of a Delphic nature,
to be translated into concreteness by the process of litigating
elucidation."
Machinists v. Gonzales, 356 U.
S. 617,
356 U. S. 619.
And it is
"because Congress has refrained from providing specific
directions with respect to the scope of preempted state regulation,
[that] the Court has been unwilling to 'declare preempted all local
regulation that touches or concerns in any way the complex
interrelationships between employees, employers, and unions. . .
.'"
Farmer v. Carpenters, 430 U. S. 290,
430 U. S.
295-296 (citation omitted).
[
Footnote 13]
"We have refused to apply the preemption doctrine to activity
that otherwise would fall within the scope of
Garmon if
that activity"
"was a merely peripheral concern of the Labor Management
Relations Act . . . [or] touched interests so deeply rooted in
local feeling and responsibility that, in the absence of compelling
congressional direction, we could not infer that Congress had
deprived the States of the power to act. . . ."
"We also have refused to apply the preemption doctrine"
"where the particular rule of law sought to be invoked before
another tribunal is so structured and administered that, in
virtually all instances, it is safe to presume that judicial
supervision will not disserve the interests promoted by the federal
labor statutes."
Id. at
430 U. S.
296-297.
The Court's rejection of an inflexible preemption approach is
reflected in other situations as well. Where only a minor aspect of
the controversy presented to the state court is arguably within the
regulatory jurisdiction of the Labor Board, the Court has indicated
that the
Garmon rule should not be read to require
preemption of state jurisdiction.
Hanna Mining Co. v. Marine
Engineers, 382 U. S. 181. The
Court has also indicated that, if the state court can ascertain the
actual legal significance of particular conduct under federal law
by reference to "compelling precedent applied to essentially
undisputed facts,"
San Diego Building Trades Council v.
Garmon, 359 U.S. at
359 U. S. 246,
the court may properly do so and proceed to adjudicate the state
cause of action. Permitting the state court to proceed under these
circumstances deprives the litigant of the argument that the Board
should reverse its position, or, perhaps, that precedent is not as
compelling as one adversary contends.
[
Footnote 14]
"In addition to the judicially developed exceptions referred to
in [n.
13 supra],
Congress itself has created exceptions to the Board's exclusive
jurisdiction in other classes of cases. Section 303 of the Labor
Management Relations Act, 1947, 61 Stat. 158, as amended, 29 U.S.C.
§ 187, authorizes anyone injured in his business or property by
activity violative of § 8(b)(4) of the NLRA, 61 Stat. 140, as
amended, 29 U.S.C. § 158(b)(4), to recover damages in federal
district court even though the underlying unfair labor practices
are remediable by the Board.
See Teamsters v. Morton,
377 U. S.
252 (1964). Section 301 of the LMRA, 29 U.S.C. § 185,
authorizes suits for breach of a collective bargaining agreement
even if the breach is an unfair labor practice within the Board's
jurisdiction.
See Smith v. Evening News Assn.,
371 U. S.
195 (1962). Section 14(c)(2) of the NLRA, as added by
Title VII, § 701(a) of the Labor-Management Reporting and
Disclosure Act of 1959, 73 Stat. 541, 29 U.S.C. § 164(c)(2),
permits state agencies and state courts to assert jurisdiction over
'labor disputes over which the Board declines, pursuant to
paragraph (1) of this subsection, to assert jurisdiction.'"
Farmer v. Carpenters, supra at
430 U. S. 297
n. 8.
[
Footnote 15]
For a brief summary of the development of this national policy,
see R. Gorman, Labor Law 1-6 (1976).
[
Footnote 16]
"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."
"
* * * *"
"We therefore conclude that it is beyond the power of New York
State to apply its policy to these appellants as attempted
herein."
Bethehem Steel Co. v. New York Labor Relations Bd.,
330 U. S. 767,
330 U. S.
775-777.
[
Footnote 17]
See n 16,
supra.
[
Footnote 18]
LaCrosse Telephone Corp. v. Wisconsin Employment Relations
Bd., 336 U. S. 18,
336 U. S. 226.
[
Footnote 19]
Plankinton Packing Co. v. Wisconsin Employment Relations
Bd., 338 U.S. 953.
[
Footnote 20]
The apparent objective of the picketing was to pressure an
employer into coercing employees into joining the union.
[
Footnote 21]
This Court has summarily reversed several cases in which the
state court purported to regulate labor union activities under
provisions of state labor laws comparable to the prohibitions of
the federal Act.
See, e.g., Pocatello Building & Constr.
Trades Council v. C. H. Elle Constr. Co., 352 U.S. 884,
rev'g 78 Idaho 1, 297 P.2d 519 (1956);
Electrical
Workers v. Farnsworth & Chambers Co., 353 U.S. 969,
rev'g 201 Tenn. 329,
299
S.W.2d 8 (1957).
[
Footnote 22]
As the Court noted recently in
Farmer v.
Carpenters:
"[I]t is well settled that the general applicability of a state
cause of action is not
sufficient to exempt it from
preemption."
"[I]t [has not] mattered whether the States have acted through
laws of broad general application, rather than laws specifically
directed towards the governance of industrial relations. . . ."
"Instead, the cases reflect a balanced inquiry into such factors
as the nature of the federal and state interests in regulation and
the potential for interference with federal regulation."
430 U.S. at
430 U. S. 300
(emphasis added).
[
Footnote 23]
As Professor Cox has noted:
"[A]n antitrust statute is not the kind of general law [which
should avoid the reach of the preemption doctrine]. Such statutes
are based upon a view of policy towards combinations and collective
action in the marketplace which is the very subject addressed by
Congress in the NLRA. That the state laws primarily apply to
business combinations and merely sweep collective action by
employees within the same rule does not sufficiently lessen the
narrowness of focus."
Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337, 1357
(1972).
[
Footnote 24]
"Respondent argues that Missouri is not prohibiting the IAM's
conduct for any reason having to do with labor relations, but
rather because that conduct is in contravention of a state law
which deals generally with restraint of trade. It distinguishes
Garner on the ground that, there, the State and Congress
were both attempting to regulate labor relations as such."
"We do not think this distinction is decisive. In
Garner, the emphasis was not on two conflicting labor
statutes, but rather on two similar remedies, one state and one
federal, brought to bear on precisely the same conduct."
348 U.S. at
348 U. S.
479.
Motor Coach Employees v. Lockridge, 403 U.
S. 274, reaffirmed the notion that state regulation of
activity arguably prohibited by the federal Act cannot avoid
preemption simply because it is pursuant to a law of general
application. In
Lockridge, a union member who failed to
pay his monthly dues was suspended from membership in the union and
discharged from employment at union request. The union's conduct in
securing Lockridge's discharge was arguably prohibited by §§
8(b)(1)(A) and 8(b)(2) or protected by § 7. But rather than filing
an unfair labor practice charge with the Labor Board, Lockridge
brought suit in state court on a breach of contract theory. He
alleged that the union breached a promise implicit in the union
constitution that it would not secure his discharge pursuant to the
union security clause in the collective bargaining agreement for
missing one month's dues.
The Court noted that both the state court and the Board
would
"inquire into the proper construction of union regulations in
order to ascertain whether the union properly found [Lockridge] to
have been derelict in his dues-paying responsibilities, where his
discharge was procured on the asserted grounds of nonmembership in
the union."
403 U.S. at
403 U. S. 293.
The Court further noted that the
"possibility that, in defining the scope of the union's duty to
[Lockridge], the state courts would directly and consciously
implicate principles of federal law . . . was real and immediate. .
. . Lockridge's entire case turned upon the construction of the
applicable union security clause, a matter as to which . . .
federal concern is pervasive and its regulation complex."
Id. at
403 U. S. 296.
Preemption was required, in the Court's view, because the state
court was exercising jurisdiction over a controversy which was
virtually identical to that which could have been presented to the
Board. Permitting the state court to exercise jurisdiction pursuant
to a law of general application in these circumstances would have
entailed a "
real and immediate' potential for conflict with the
federal scheme. . . ." Farmer v. Carpenters, 430 U.S. at
430 U. S. 301
n. 10.
An identical result would undoubtedly obtain were an employer
subjected to recognitional or secondary picketing to seek
injunctive relief in state court on the theory that the union was
tortiously interfering with his freedom to contract.
Cf. Retail
Clerks v. J. J. Newberry Co., 352 U.S. 987,
summarily
rev'g 78 Idaho 85, 298 P.2d 375 (1956).
[
Footnote 25]
One of the factors identified by the Court was that the conduct
giving rise to the state cause of action (
e.g., violence,
libel, or intentional infliction of emotional distress), if proved,
would not be protected by § 7 of the NLRA, and therefore there
existed no risk that state regulation of the conduct alleged in the
complaint would result in prohibition of conduct protected by the
federal Act. To this extent, the instant case is not controlled by
the decision in
Farmer. Sears' state cause of action was
for trespass, and some trespassory union activity may be protected
under the federal Act.
See 436 U. S.
infra. However, two points must be made regarding the
apparent distinction between
Farmer and the case at bar.
First,
Farmer itself involved some risk that protected
conduct would be regulated; for, while the complaint
alleged outrageous conduct, there remained a possibility
that the plaintiff would only have been able to
prove a
robust intra-union dispute, and that the state tribunal would have
found that sufficient to support recovery. Second, the distinction
between this case and
Farmer, to the extent that it
exists, has significance only with respect to the arguably
protected branch of the
Garmon doctrine, which we
discuss in
436 U. S. it
does not detract from the support
Farmer provides for our
conclusion with respect to preemption under the arguably
prohibited branch of the doctrine.
[
Footnote 26]
As the Court explained:
"If the charges in Hill's complaint were filed with the Board,
the focus of any unfair labor practice proceeding would be on
whether the statements or conduct on the part of union officials
discriminated or threatened discrimination against him in
employment referrals for reasons other than failure to pay union
dues. . . . Whether the statements or conduct of the respondents
also caused Hill severe emotional distress and physical injury
would play no role in the Board's disposition of the case, and the
Board could not award Hill damages for pain, suffering, or medical
expenses. Conversely, the state court tort action can be
adjudicated without resolution of the 'merits' of the underlying
labor dispute. Recovery for the tort of emotional distress under
California law requires proof that the defendant intentionally
engaged in outrageous conduct causing the plaintiff to sustain
mental distress. . . . The state court need not consider, much less
resolve, whether a union discriminated or threatened to
discriminate against an employee in terms of employment
opportunities. To the contrary, the tort action can be resolved
without reference to any accommodation of the special interests of
unions and members in the hiring hall context."
"On balance, we cannot conclude that Congress intended to oust
state court jurisdiction over actions for tortious activity such as
that alleged in this case. At the same time, we reiterate that
concurrent state court jurisdiction cannot be permitted where there
is a realistic threat of interference with the federal regulatory
scheme."
430 U.S. at
430 U. S.
304-305.
[
Footnote 27]
While the distinction between a law of general applicability and
a law expressly governing labor relations is, as we have noted, not
dispositive for preemption purposes, it is of course apparent that
the latter is more likely to involve the accommodation which
Congress reserved to the Board. It is also evident that enforcement
of a law of general applicability is less likely to generate rules
or remedies which conflict with federal labor policy than the
invocation of a special remedy under a state labor relations
law.
[
Footnote 28]
Moreover, decision of that issue would not necessarily have
determined whether the picketing could continue. For the Board
could conclude that the picketing was not prohibited by either §
8(b)(4)(D) or § 8(b)(7)(C) without reaching the question whether it
was protected by § 7. If the Board had concluded that the picketing
was not prohibited, Sears would still have been confronted with
picketing which violated state law and was arguably protected by
federal law. Thus, the filing of an unfair labor practice charge
could initiate complex litigation which would not necessarily lead
to a resolution of the problem which led to this litigation .
[
Footnote 29]
In this opinion, the term "primary jurisdiction" is used to
refer to the various considerations articulated in
Garmon
and its progeny that militate in favor of preempting state court
jurisdiction over activity which is subject to the unfair labor
practice jurisdiction of the federal Board. This use of the term
should not be confused with the doctrine of primary jurisdiction,
which has been described by Professor Davis as follows:
"The precise function of the doctrine of primary jurisdiction is
to guide a court in determining whether the court should refrain
from exercising its jurisdiction until after an administrative
agency has determined some question or some aspect of some question
arising in the proceeding before the court."
"The doctrine of primary jurisdiction does not necessarily
allocate power between courts and agencies, for it governs only the
question whether court or agency will
initially decide a
particular issue, not the question whether court or agency will
finally decide the issue."
3 K. Davis, Administrative Law Treatise § 19.01, p. 3 (1958)
(emphasis in original). While the considerations underlying
Garmon are similar to those underlying the primary
jurisdiction doctrine, the consequences of the two doctrines are
therefore different. Where applicable, the
Garmon doctrine
completely preempts state court jurisdiction unless the Board
determines that the disputed conduct is neither protected nor
prohibited by the federal Act.
[
Footnote 30]
Although it is clear that a state court may not exercise
jurisdiction over protected conduct, it is important to note that
the word "protected" may refer to two quite different concepts:
union conduct which the State may not prohibit and against which
the employer may not retaliate because it is covered by § 7 or
conduct which a State may not prohibit even though it is not
covered by § 7 of the Act. The Court considered protected conduct
in the latter sense in
Machinists v. Wisconsin Employment
Relations Comm'n, 427 U. S. 132.
There, the Court relied on a line of preemption analysis
"focusing upon the crucial inquiry whether Congress intended
that the conduct involved be unregulated because left 'to be
controlled by the free play of economic forces.'
NLRB v.
Nash-Finch Co., 404 U. S. 138,
404 U. S.
144 (1971)."
Id. at
427 U. S.
140.
The Union does not claim that trespassory picketing is protected
from state interference under this doctrine. We merely identify
this line of preemption analysis in order to make it perfectly
clear that it is unaffected by our consideration of the
significance of the status of the picketing as arguably protected
under § 7 of the Act. We also note, however, that, in the cases in
which preemption exists even though neither § 7 nor § 8 of the Act
is even arguably applicable, there is, by hypothesis, no
opportunity for the National Labor Relations Board to make the
initial evaluation of the controversy. In these cases, the
preemption issue is necessarily addressed in the first instance by
a state tribunal, and that tribunal must decide whether or not the
conduct is actually privileged from governmental regulation.
[
Footnote 31]
As noted in
436 U. S.
supra, the primary jurisdiction rationale of
Garmon did not require preemption of state jurisdiction
over the Union's picketing insofar as it may have been prohibited
by § 8, since the controversy presented to the state court was not
the same controversy which Sears could have presented to the Board.
In deciding the state law issue, the Court had no occasion to
interpret or enforce the prohibitions in § 8 of the federal Act; in
deciding the unfair labor practice question, the Board's sole
concern would have been the objective, not the location, of the
challenged picketing.
[
Footnote 32]
That accommodation would have been required only if the Board
first found that the object of the picketing was to maintain area
standards. Of course, if Sears had initiated the proceeding before
the Board, the location of the picketing would have been entirely
irrelevant, and no question of accommodation would have arisen.
See n 31,
supra.
[
Footnote 33]
Even if Sears had elected the self-help option, it could not
have been assured that the Union would have invoked the
jurisdiction of the Board. The Union may well have decided that the
likelihood of success was remote and outweighed by the cost of the
effort and the probability that Sears, in turn, would have charged
the Union with violating § 8(b)(4)(D) or § 8(b)(7)(C) of the Act.
Moreover, if Sears had elected this option, and the pickets were
evicted with more force than reasonably necessary, it might have
exposed itself to tort liability under state law. We are unwilling
to presume that Congress intended to require employers to pursue
such a risky course in order to ensure that issues involving the
scope of § 7 rights be decided only by the Labor Board.
[
Footnote 34]
"If the National Labor Relations Act provided an effective
mechanism whereby an employer could obtain a determination from the
National Labor Relations Board as to whether picketing is protected
or unprotected, I would agree that the fact that picketing is
'arguably' protected should require state courts to refrain from
interfering in deference to the expertise and national uniformity
of treatment offered by the NLRB. But an employer faced with
'arguably protected' picketing is given by the present federal law
no adequate means of obtaining an evaluation of the picketing by
the NLRB. The employer may not himself seek a determination from
the Board, and is left with the unsatisfactory remedy of using
'self-help' against the pickets to try to provoke the union to
charge the employer with an unfair labor practice."
"So long as employers are effectively denied determinations by
the NLRB as to whether 'arguably protected' picketing is actually
protected except when an employer is willing to threaten or use
force to deal with picketing, I would hold that only labor activity
determined to be actually, rather than arguably, protected under
federal law should be immune from state judicial control. To this
extent,
San Diego Building Trades Council v. Garmon,
359 U. S.
236 (1959), should be reconsidered."
Longshoremen v. Ariadne Shipping Co., 397 U.
S. 195,
397 U. S.
201-202 (WHITE, J., concurring).
[
Footnote 35]
Youngdahl v. Rainfair, Inc., 355 U.
S. 131;
Construction Workers v. Laburnum,
347 U. S. 656.
[
Footnote 36]
Linn v. Plant Guard Workers, 383 U. S.
53.
[
Footnote 37]
Farmer v. Carpenters, 430 U. S. 290.
[
Footnote 38]
Automobile Workers v. Russell, 356 U.
S. 634.
[
Footnote 39]
As the Court stated:
"The employer may not affirmatively interfere with organization;
the union may not always insist that the employer aid organization.
But when the inaccessibility of employees make ineffective the
reasonable attempts by nonemployees to communicate with them
through the usual channels, the right to exclude from property has
been required to yield to the extent needed to permit communication
of information on the right to organize."
351 U.S. at
351 U. S. 112.
See also Central Hardware Co. v. NLRB, 407 U.
S. 539.
[
Footnote 40]
As the Court noted in
Babcock & Wilcox:
"It is our judgment . . . that an employer may validly post his
property against nonemployee distribution of union literature if
reasonable efforts by the union through other available channels of
communication will enable it to reach the employees with its
message and if the employer's notice or order does not discriminate
against the union by allowing other distribution."
351 U.S. at
351 U. S.
112.
[
Footnote 41]
In the absence of discrimination, the union's asserted right of
access for organizational activity has generally been denied except
in cases involving unique obstacles to non-trespassory methods of
communication with the employees.
See, e.g., NLRB v. S & H
Grossinger's, Inc., 372 F.2d 26 (CA2 1967);
NLRB v. Lake
Superior Lumber Corp., 167 F.2d 147 (CA6 1948).
[
Footnote 42]
This assumption, however, is subject to serious question.
Indeed, several factors make the argument for protection of
trespassory area standards picketing as a category of conduct less
compelling than that for trespassory organizational solicitation.
First, the right to organize is at the very core of the purpose for
which the NLRA was enacted. Area standards picketing, in contrast,
has only recently been recognized as a § 7 right.
Hod Carriers
Local 41 (Calumet Contractors Assn.), 133 N.L.R.B. 512 (1961).
Second,
Babcock makes clear that the interests being
protected by according limited access rights to nonemployee, union
organizers are not those of the organizers, but of the employees
located on the employer's property. The Court indicated that "no .
. . obligation is owed nonemployee organizers"; any right they may
have to solicit on an employer's property is a derivative of the
right of that employer's employees to exercise their organization
rights effectively. Area standards picketing, on the other hand,
has no such vital link to the employees located on the employer's
property. While such picketing may have a beneficial effect on the
compensation of those employees, the rationale for protecting area
standards picketing is that a union has a legitimate interest in
protecting the wage standards of its members who are employed by
competitors of the picketed employer.
[
Footnote 43]
Not only could the Union have filed an unfair labor practice
charge pursuant to § 8(a)(1) of the Act at the time Sears demanded
that the pickets leave its property, but the Board's jurisdiction
could have been invoked and the protection of its remedial powers
obtained even after the litigation in the state court had commenced
or the state injunction issued.
See Capital Service, Inc. v.
NLRB, 347 U. S. 501;
NLRB v. Nash-Finch Co., 404 U. S. 138.
[
Footnote 44]
The fact that Sears demanded that the Union discontinue the
trespass before it initiated the trespass action is critical to our
holding. While it appears that such a demand was a precondition to
commencing a trespass action under California law,
see 122
Cal. Rptr. 449 (1975), in order to avoid a valid claim of
preemption it would have been required as a matter of federal law
in any event.
The Board has taken the position that "a resort to court action
. . . does not violate § 8(a)(1)."
NLRB v. Nash-Finch Co.,
supra, at
404 U. S. 142.
If the employer were not required to demand discontinuation of the
trespass before proceeding in state court and the Board did not
alter its position in cases of this kind, the union would be
deprived of an opportunity to present the protection issue to the
agency created by Congress to decide such questions. While the
union's failure to invoke the Board's jurisdiction should not be a
sufficient basis for preempting state jurisdiction, the employer
should not be permitted to deprive the union of an opportunity to
do so.
MR. JUSTICE BLACKMUN, concurring.
I join the Court's opinion, but add three observations:
1. The problem of a no-man's land in regard to trespassory
picketing has been a troubling one in the past because employers
have been unable to secure a Labor Board adjudication whether the
picketing was "actually protected" under § 7 of the National Labor
Relations Act except by resorting to self-help to expel the pickets
and thereby inducing the union to file an unfair labor practice
charge. The unacceptable possibility of precipitating violence in
such a situation called into serious question the practicability
there of the
Garmon preemption test,
see Longshoremen
v. Ariadne Shipping Co., 397 U. S. 195,
397 U. S. 202
(1970) (WHITE, J., concurring), despite the virtues of the
Garmon test in ensuring uniform application of the
standards of the NLRA.
In this case, however, the NLRB as
amicus curiae has
taken a position that narrows the no-man's land in regard to
trespassory picketing, namely, that an employer's mere act of
informing nonemployee pickets that they are not permitted
Page 436 U. S. 209
on his property
"would constitute a sufficient interference with rights arguably
protected by Section 7 to warrant the General Counsel, had a charge
been filed by the Union, in issuing a Section 8(a)(1)
complaint"
against the employer. Brief for NLRB as
Amicus Curiae
18. Hence, if the union, once asked to leave the property, files a
§ 8(a)(1) charge, there is a practicable means of getting the issue
of trespassory picketing before the Board in a timely fashion
without danger of violence.
In this case, as the Court notes, the Union failed to file an
unfair labor practice charge after being asked to leave. In such a
situation, preemption cannot sensibly obtain because the
"risk of an erroneous state court adjudication . . . is
outweighed by the anomalous consequence of a rule which would deny
the employer access to any forum in which to litigate either the
trespass issue or the protection issue."
Ante at
436 U. S.
206-207. It should be made clear, however, that the
logical corollary of the Court's reasoning is that, if the union
does file a charge upon being asked by the employer to
leave the employer's property and continues to process the charge
expeditiously, state court jurisdiction is preempted until such
time as the General Counsel declines to issue a complaint or the
Board, applying the standards of
NLRB v. Babcock & Wilcox
Co., 351 U. S. 105
(1956), rules against the union and holds the picketing to be
unprotected. Similarly, if a union timely files a § 8(a)(1) charge,
a state court would be bound to stay any pending injunctive or
damages suit brought by the employer until the Board has concluded,
or the General Counsel by refusal to issue a complaint has
indicated, that the picketing is not protected by § 7. As the Court
also notes,
ante at
436 U. S. 202,
the primary jurisdiction rationale articulated in
Garmon
"unquestionably requires that, when the same controversy may be
presented to the state court or the NLRB, it must be presented to
the Board." Once the no-man's land has been bridged, as it is once
a union files a charge, the importance of
Page 436 U. S. 210
deferring o the Labor Board's case-by-case accommodation of
employers' property rights and employees' § 7 rights mandates
preemption of state court jurisdiction.
*
2. The opinion correctly observes,
ante at
436 U. S. 205,
that in implementing this Court's decision in
Babcock the
NLRB only occasionally has found trespassory picketing to be
protected under § 7. That observation is important, as is
noted,
Page 436 U. S. 211
ante, at
436 U. S. 203,
in that even the existence of a no-man's land may not justify
departure from
Garmon's preemption standard if the
exercise of state court jurisdiction portends frequent interference
with actually protected conduct. But in its conclusion that
trespassory picketing has been found in "experience under the Act"
to be only "rare[ly]" protected and "far more likely to be
unprotected than protected,"
ante at
436 U. S. 205,
I take the opinion merely to be observing what the Board's past
experience has been, not as glossing how the Board must treat the
Babcock test in the future, either in regard to
organizational picketing or other sorts of protected picketing. The
Babcock test provides that,
"when the inaccessibility of employees makes ineffective the
reasonable attempts by nonemployees to communicate with them
through the usual channels, the right to exclude from property [is]
required to yield to the extent needed to permit communication of
information on the right to organize."
351 U.S. at
351 U. S. 112.
A variant of that test has been applied by the Board when
communication with consumers is at stake.
See Scott
Hudgens, 230 N.L.R.B. 414 (1977). The problem of applying the
test in the first instance is delegated to the Board, as part of
its "responsibility to adapt the Act to changing patterns of
industrial life."
NLRB v. Weingarten, Inc., 420 U.
S. 251,
420 U. S. 266
(1975);
Hudgens v. NLRB, 424 U. S. 507,
424 U. S. 523
(1976). When, for a number of years, the First Amendment holding of
Food Employees v. Logan Valley Plaza, 391 U.
S. 308 (1968), overruled in
Hudgens v. NLRB,
diverted the Board from any need to consider trespassory picketing
under the statutory test of
Babcock, it would be unwise to
hold the Board confined to its earliest experience in administering
the test.
3. The acceptability of permitting state court jurisdiction over
"arguably protected" activities where there is a jurisdictional
no-man's land depends, as the Court notes, on whether the exercise
of state court jurisdiction is likely to interfere frequently with
actually protected conduct. The
Page 436 U. S. 212
likelihood of such interference will depend in large part on
whether the state courts take care to provide an adversary hearing
before issuing any restraint against union picketing activities. In
this case, Sears filed a verified complaint seeking an injunction
against the picketing on October 29, 1973. The Superior Court of
California entered a temporary restraining order that day. So far
as the record reveals, the Union was not accorded a hearing until
November 16, on the order to show cause why a preliminary
injunction should not be entered. The issue of a prompt hearing was
apparently not raised before the Superior Court and was not raised
on appeal, and hence does not enter into our judgment here
approving the exercise of state court jurisdiction. But it may be
remiss not to observe that in labor-management relations, where
ex parte proceedings historically were abused,
see F. Frankfurter & N. Greene, The Labor Injunction
60, 64-66 (1930), it is critical that the state courts provide a
prompt adversary hearing, preferably before any restraint issues
and in all events within a few days thereafter, on the merits of
the § 7 protection question. Labor disputes are frequently
short-lived, and a temporary restraining order issued upon
ex
parte application may, if in error, render the eventual
finding of § 7 protection a hollow vindication.
MR. JUSTICE POWELL's concern,
post at
436 U. S. 213,
that there is an unacceptable delay in waiting for the General
Counsel to act is answered in main part by this Court's previous
holdings that any obstructive picketing or threatening conduct may
be directly regulated by the State.
See Electrical Workers v.
Wisconsin Employment Relations Bd., 315 U.
S. 740 (1942);
Youngdahl v. Rainfair, Inc.,
355 U. S. 131
(1957);
cf. Automobile Workers v. Russell, 356 U.
S. 634 (1958). There was no hint of such a problem in
this case. As the California Supreme Court notes:
"It is not disputed that at all times . . . the pickets
conducted themselves in a peaceful and orderly fashion. The record
discloses no acts of violence, threats of violence, or obstruction
of traffic."
17 Cal. 3d
893, 896, 553 P.2d 603, 606 (1976). There is no claim made that
the pickets annoyed members of the public who wished to patronize
the store of petitioner Sears; such conduct would be enjoinable,
Youngdahl, supra, if it had occurred. And, of course,
under current NLRB law, pickets would have no right to carry on
their activity within a store.
Marshall Field & Co. v.
NLRB, 200 F.2d 375 (CA7 1953). With respect, I do not see what
"danger of violence" remains in such a situation, any more than for
a business that fronts upon a public sidewalk.
The possibility of delay to which my Brother POWELL adverts is a
double-edged sword. The question really is upon whom the burden of
delay should be placed. If it takes the General Counsel "weeks" to
decide whether to issue a § 8(a)(1) complaint, by the same token,
there would be no relief available against an erroneous state court
injunction interfering with protected picketing for an equal length
of time. Section 10(j) permits the Board to seek injunctive relief
only after the issuance of a complaint. The Board arguably might
seek dissolution of a state court order under
NLRB v.
Nash-Finch Co., 404 U. S. 138
(1971), but that remedy, too, would encompass some delay. It is
worth noting that here, by November 12, 1973, the picketing,
confined to the public sidewalks by the California Superior Court's
temporary restraining order, was abandoned as ineffective. Delay in
remedy is desired by neither party in a labor dispute.
MR. JUSTICE POWELL, concurring.
Although I join the Court's opinion, MR. JUSTICE BLACKMUN's
concurrence prompts me to add a word as to the "no-man's land"
discussion with respect to trespassory picketing. MR. JUSTICE
BLACKMUN, relying on the
amicus brief of the National
Labor Relations Board, observes that "there is a practicable means
of getting the issue of trespassory picketing before the Board in a
timely fashion without danger of violence,"
ante at
436 U. S. 209,
if the union -- having been requested to leave the property --
files a § 8(a)(1) charge.
With all respect, this optimistic view overlooks the realities
of the situation. Trespass upon private property by pickets,
Page 436 U. S. 213
to a greater degree than isolated trespass, is usually
organized, sustained, and sometimes obstructive without initial
violence -- of the target business and annoying to members of the
public who wish to patronize that business. The "danger of
violence" is inherent in many -- though certainly not all --
situations of sustained trespassory picketing. One cannot predict
whether or when it may occur, or its degree. It is because of these
factors that, absent the availability of an equivalent remedy under
the National Labor Relations Act, a state court should have the
authority to protect the public and private interests by granting
preliminary relief.
In the context of trespassory picketing not otherwise violative
of the Act, the Board has no comparable authority. If a § 8(a)(1)
charge is filed, nothing is likely to happen "in a timely fashion."
The Board cannot issue, or obtain from the federal court, a
restraining order directed at the picketing. And it may be weeks
for the General Counsel to decide whether to issue a complaint.
Meanwhile, the "no-man's land" prevents all recourse to the courts,
and is an open invitation to self-help. I am unwilling to believe
that Congress intended, by its silence in the Act, to create a
situation where there is no forum to which the parties may turn for
orderly interim relief in the face of a potentially explosive
situation.*
Page 436 U. S. 214
I do not minimize the possibility that the Board may find that
trespassory activity under certain circumstances is necessary to
facilitate the exercise of § 7 rights by employees of the target
employer.
See NLRB v. Babcock & Wilcox Co.,
351 U. S. 105
(1956);
Central Hardware Co. v. NLRB, 407 U.
S. 539 (1972). The Union's conduct in this case,
however, involved a publicity campaign maintained by nonemployees
and directed at the general public. Such "area standards"
trespassory picketing is certainly not at the core of the Act's
protective ambit. In any event, it is open to the Board upon the
issuance of a complaint to seek temporary relief under § 10(j) of
the Act, 29 U.S.C. § 160(j), against the employer's interference
with § 7 rights.
Cf. Capital Service, Inc. v. NLRB,
347 U. S. 501
(1954). Moreover, it is not an unreasonable assumption that state
courts will be mindful of the determination of an expert federal
agency that there is probable cause to believe that conduct
restrained by state process is protected under the Act. But I find
no warrant in the Act to compel the employer to endure the
creation, especially by nonemployees, of a temporary easement on
his property pending the outcome of the General Counsel's action on
a charge.
In sum, I do not agree with MR. JUSTICE BLACKMUN that "the
logical corollary of the Court's reasoning" in its opinion today is
that state court jurisdiction is preempted forthwith upon the
filing of a charge by the union. I would not join the Court's
opinion if I thought it fairly could be read to that effect.
* It is true that, under this Court's decisions, state courts
are not precluded from providing relief against actual or
threatened violence. But in light of the "danger of violence"
inherent in many instances of sustained trespassory picketing,
relief often may come too late to prevent interference with the
operation of the target business.
Cf. People v. Bush, 39
N.Y.2d 529, 349 N.E.2d 832 (1976). Moreover, as Mr. Justice Clark
noted for the Court in
Linn v. Plant Guard Workers,
383 U. S. 53,
383 U. S. 64 n.
6 (1966),
"[t]he fact that the Board has no authority to grant effective
relief aggravates the State's concern, since the refusal to redress
an otherwise actionable wrong creates disrespect for the law and
encourages the victim to take matters into his own hands."
The "imminent threat of violence [that] exists whenever an
employer is required to resort to self-help in order to vindicate
his property rights," has prompted at least one state court to
retain jurisdiction to enjoin trespassory picketing even after the
filing of an unfair labor practice charge with the Board.
May
Department Stores Co. v. Teamsters, 64 Ill. 2d
153, 162-163,
355 N.E.2d 7,
111 (1976).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR.
JUSTICE MARSHALL join, dissenting.
The Court concedes that both the objective and the location of
the Union's peaceful, nonobstructive picketing of
Page 436 U. S. 215
Sears' store may have been protected under the National Labor
Relations Act. [
Footnote 2/1]
Therefore, despite the Court's transparent effort to disguise it,
faithful application of the principles of labor law preemption
established in
San Diego Building Trades Council v.
Garmon, 359 U. S. 236
(1959), [
Footnote 2/2] would compel
the conclusion that the California Superior Court was powerless to
enjoin the Union from picketing on Sears' property: that the
trespass was arguably protected is determinative of the state
court's lack of jurisdiction, whether or not preemption limits an
employer's remedies.
See Longshoremen v. Ariadne Shipping
Co., 397 U. S. 195,
397 U. S.
200-201 (1970);
Garmon, supra; Meat Cutters v.
Fairlawn Meats, Inc., 353 U. S. 20
(1957);
Guss v. Utah Labor Relations Bd., 353 U. S.
1 (1957). [
Footnote
2/3]
By holding that the arguably protected character of union
activity will no longer be sufficient to preempt state court
jurisdiction, the Court creates an exception of indeterminate
dimensions to a principle of labor law preemption that has been
followed for at least two decades. Now, when the employer
Page 436 U. S. 216
lack a "reasonable opportunity" to have the Board consider
whether the challenged
aspect of the employee conduct is
protected and when employees having that opportunity have not
invoked the Board's jurisdiction, a state court will have
jurisdiction to enjoin arguably protected activity if the "risk of
an erroneous . . . adjudication [by it does not outweigh] the
anomalous consequence [of denying a remedy to the employer]."
Ante at
436 U. S. 206.
In making this rather amorphous determination, the lower courts
apparently are to consider the strength of the argument that § 7 in
fact protects the arguably protected activity, their own
assessments of their ability correctly to determine the underlying
labor law issue, and the strength of the state interest in
affording the employer an opportunity to have a state court
restrain the arguably protected conduct.
This drastic abridgment of established principles is unjustified
and unjustifiable. The
Garmon test, itself fashioned after
some 15 years of judicial experience with jurisdictional conflicts
that threatened national labor policy,
see Motor Coach
Employees v. Lockridge, 403 U. S. 274,
403 U. S.
290-291 (1971), has provided stability and
predictability to a particularly complex area of the law for nearly
20 years. Thus, the most elementary notions of
stare
decisis dictate that the test be reconsidered only upon a
compelling showing, based on actual experience, that the test
disserves important interests. Emphatically, that showing has not
been and cannot be made. Rather, the
Garmon test has
proved to embody an entirely acceptable, and probably the best
possible, accommodation of the competing state-federal interests.
That an employer's remedies in consequence may be limited, while
anomalous to the Court, produces no positive social harm; on the
contrary, the limitation on employer remedies is fully justified
both by the ease of application of the test by thousands of state
and federal judges and by its effect of averting the danger that
state courts may interfere with national labor policy. In
Page 436 U. S. 217
sharp contrast, today's decision creates the certain prospect of
state court interference that may seriously erode § 7's protections
of labor activities. Indeed, the most serious objection to the
decision today is not that it is contrary to the teachings of
stare decisis, but rather that the Court's attempt to
create a narrow exception to the principles of
Garmon
promises to be applied by the lower courts so as to disserve the
interests protected by the national labor laws.
I
It is appropriate to recall the considerations that have shaped
the development of the doctrine of labor law preemption. The
National Labor Relations Act (Act), of course, changed the
substantive law of labor relations. Prior to its enactment many
courts treated concerted labor activities of employees as tortious
conspiracies or restraints of trade to be enjoined unless the
activities related to a specific benefit sought by the employees
from their employer; activity directed at strengthening the union
was, for these courts, impermissible.
See F. Frankfurter
& N. Greene, The Labor Injunction 26-29 (1930) (hereafter
Frankfurter & Greene). While some courts regarded peaceful
picketing as permissible if intended to attain lawful objectives,
others regarded picketing as always enjoinable.
Id. at
30-46. Section 7 abrogated these state laws. It declares that
"concerted activities for the purpose of collective bargaining or
other mutual aid or protection," including specific types and forms
of picketing, are protected from interference from any source.
Section 7 further provides that employers no longer have an
absolute right to prohibit concerted activities occurring on their
properties; unwilling employers frequently are required to suffer
the presence of organizational activities on their premises.
See NLRB v. Magnavox Co., 415 U.
S. 322 (1974);
NLRB v. Babcock & Wilcox
Co., 351 U. S. 105
(1956);
Republic Aviation Corp. v. NLRB, 324 U.
S. 793 (1945).
Page 436 U. S. 218
But the Act did more than displace certain state laws. Section
8(a) of the Act declares that it is an unfair labor practice for an
employer to interfere with employee exercise of § 7 rights, and §
8(b) of the Act provides that certain forms of employee activity,
including several types of picketing, are unfair labor practices.
Congress created the National Labor Relations Board to administer
these provisions and prescribed a detailed procedure for the
imposition of restraint on any conduct that is violative of the
Act: charge and complaint, notice and hearing, and an order pending
judicial review.
The animating force behind the doctrine of labor law preemption
has been the recognition that nothing could more fully serve to
defeat the purposes of the Act than to permit state and federal
courts, without any limitation, to exercise jurisdiction over
activities that are subject to regulation by the National Labor
Relations Board.
See Motor Coach Employees v. Lockridge,
supra at
403 U. S. 286.
Congress created the centralized expert agency to administer the
Act because of its conviction -- generated by the historic abuses
of the labor injunction,
see Frankfurter & Greene --
that the judicial attitudes, court procedures, and traditional
judicial remedies, state and federal, were as likely to produce
adjudications incompatible with national labor policy as were
different rules of substantive law.
See Garner v.
Teamsters, 346 U. S. 485,
346 U. S.
490-491 (1953). Although Congress could not be
understood as having displaced "all local regulation that touches
or concerns in any way the complex interrelationships between
employers, employees, and unions,"
Motor Coach Employees v.
Lockridge, supra at
403 U. S. 289,
the legislative scheme clearly embodies an implicit prohibition of
those state and federal court adjudications that might
significantly interfere with those interests that are a central
concern to national labor policy.
The Act's treatment of picketing illustrates the nature of the
generic problem, and at the same time highlights the issue in this
case. While this Court has never held that the prescription
Page 436 U. S. 219
of detailed procedures for the restraint of specific types of
picketing and the provision that other types of picketing are
protected implies that picketing is to be free from all restraint
under state law,
see, e.g., Automobile Workers v. Russell,
356 U. S. 634
(1958) (state courts may restrain violent conduct on picket lines),
it by the same token necessarily is true that to permit local
adjudications, without limitation, of the legality of picketing
would threaten intolerable interference with the interests
protected by the Act. As the Court recognizes, the nature of the
threatened interference differs depending on whether the picketing
implicates the Act's prohibitions or its protections.
See
ante at
436 U. S. 190.
As to arguably prohibited picketing, there is a risk that the state
court might misinterpret or misapply the federal prohibition and
restrain conduct that Congress may have intended to be free from
governmental restraint. [
Footnote
2/4] But even when state courts can be depended upon accurately
to determine whether conduct is in fact prohibited, local
adjudication may disrupt the congressional scheme by resulting in
different forms of relief than would adjudication by the NLRB. By
providing that an expert, centralized agency would administer the
Act, Congress quite plainly evidenced an intention that, ordinarily
at least, this expert agency should, on the basis of its experience
with labor matters, determine the remedial implications of
violations of the Act. If state courts were permitted to administer
all the Act's prohibitions, the divergences in relief would add up
to significant departures from federal policy. These considerations
led the Court to fashion the rule, announced in
Garmon,
359 U.S. at
359 U. S. 245,
that
Page 436 U. S. 220
state courts have no jurisdiction over "arguably prohibited"
conduct.
This aspect of
Garmon has never operated as a flat
prohibition. [
Footnote 2/5] There
are circumstances in which state courts can be depended upon
accurately to determine whether the underlying conduct is
prohibited and in which Congress cannot be assumed to have intended
to oust state court jurisdiction. Illustrative are decisions
holding that States may regulate mass picketing, obstructive
picketing, or picketing that threatens or results in violence.
See Automobile Workers v. Russell, supra; Automobile Workers v.
Wisconsin Employment Relations Bd., 351 U.
S. 266 (1956);
Construction Workers v. Laburnum
Constr. Corp., 347 U. S. 656
(1954);
Electrical Workers v. Wisconsin Employment Relations
Bd., 315 U. S. 740,
315 U. S. 749
(1942). Because violent tortious conduct on a picket line is
prohibited by § 8(b) and because state courts can reliably
determine whether such conduct has occurred without considering the
merits of the underlying labor dispute, allowing local
adjudications of these tort actions could neither fetter the
exercise of rights protected by the Act nor otherwise interfere
with the effective administration of the federal scheme. And the
possible inconsistency of remedy is not alone a sufficient reason
for preempting state court jurisdiction.
Page 436 U. S. 221
In view of the historic state interest in "such traditionally
local matters as public safety and order,"
Electrical Workers
v. Wisconsin Employment Relations Bd., supra, at
315 U. S. 749,
the Act could not, in the absence of a clear statement to the
contrary, be construed as precluding the imposition of different,
even harsher, state remedies in such cases.
See Automobile
Workers v. Russell, supra at
356 U. S.
641-642. Indeed, in view of the delay attendant upon
resort to the Board, it could well produce positive harm to
prohibit state jurisdiction in these circumstances. Our decisions
leave no doubt that exceptions to the
Garmon principle are
to be recognized only in comparable circumstances.
See Farmer
v. Carpenters, 430 U. S. 290,
430 U. S.
297-301 (1977);
Vaca v. Sipes, 386 U.
S. 171 (1967);
Linn v. Plant Guard Workers,
383 U. S. 53
(1966).
When, on the other hand, the underlying conduct may be
protected by the Act, the risk of interference with the
federal scheme is of a different character. The danger of
permitting local adjudications is not that timing or form of relief
might be different from what the Board would administer, but rather
that the local court might restrain conduct that is in fact
protected by the Act. This might result not merely from attitudinal
differences, but even more from unfair procedures or lack of
expertise in labor relations matters. The present case illustrates
both the nature and magnitude of the danger. Because the location
of employee picketing is often determinative of the meaningfulness
of the employees' ability to engage in effective communication with
their intended audience, employees often have the right to engage
in picketing at particular locations, including the private
property of another.
See Hudgens v. NLRB, 424 U.
S. 507 (1976); Scott Hudgens,
230 N.L.R.B. 414,
95 LRRM 1351 (1977); cf.
NLRB v. Babcock & Wilcox
Co.,
351 U. S. 105
(1056). The California Superior Court here entered an order,
ex
parte, broad enough to prohibit all effective picketing of
Sears' store for a period of 35 days.
See opinion of my
Brother BLACKMUN,
ante at
436 U. S.
212.
Page 436 U. S. 222
Since labor disputes are usually short lived,
see
ibid., this possibly erroneous order may well have irreparably
altered the balance of the competing economic forces by prohibiting
the Union's use of a permissible economic weapon at a crucial time.
Obviously it is not lightly to be inferred that a Congress that
provided elaborate procedures for restraint of prohibited picketing
and that failed to provide an employer with a remedy against
otherwise unprotected picketing could have contemplated that local
tribunals with histories of insensitivity to the organizational
interests of employees be permitted effectively to enjoin protected
picketing.
In recognition of this fact, this Court's efforts in the area of
labor law preemption have been largely directed to developing
durable principles to ensure that local tribunals not be in a
position to restrain protected conduct. Because the Court today
appears to have forgotten some of the lessons of history, it is
appropriate to summarize this Court's efforts. The first approach
to be tried -- and abandoned -- was for this Court to proceed on a
case-by-case basis and determine whether each particular final
state court ruling "does, or might reasonably be thought to,
conflict in some relevant manner with federal labor policy,"
Motor Coach Employees v. Lockridge, 403 U.S. at
403 U. S.
289-291;
see Automobile Workers v. Wisconsin
Employment Relations Bd., 336 U. S. 245
(1949). Not surprisingly, such an effort proved institutionally
impossible. Because of the infinite combinations of events that
implicate the central protections of the Act, this Court could not,
without largely abdicating its other responsibilities, hope to
determine on an
ad hoc, "generic situation by generic
situation" basis whether applications of state laws threatened
national labor policy. In any case, such an approach necessarily
disserved national labor policy because decision by this Court came
too late to repair the damage that an erroneous decision would do
to the congressionally established balance of power and was no
substitute for decision in the first instance by the Board. The
Page 436 U. S. 223
Court soon concluded that protecting national labor policy from
disruption or defeat by conflicting local adjudications demanded
broad principles of labor law preemption, easily administered by
state and federal courts throughout the Nation, that would
minimize, if not eliminate entirely, the possibility of decisions
of local tribunals that irreparably injure interests protected by §
7. The only rule [
Footnote 2/6]
satisfying these dual requirements was
Garmon's flat
prohibition:
"When an activity is arguably subject to § 7 or § 8 of the Act,
the States as well as the federal courts must defer to the
exclusive competence of the . . . Board."
359 U.S. at
359 U. S.
245.
While there is some unavoidable uncertainty concerning the
arguably
prohibited prong of
Garmon, I emphasize
that it has heretofore been absolutely clear that there is no state
power to deal with conduct that is a central concern of the Act
[
Footnote 2/7] and arguably
protected by it,
see Longshoremen v. Ariadne Shipping
Co., 397 U. S. 195
(1970);
Garmon, supra; Meat Cutters v. Fairlawn Meats,
Inc., 353 U. S. 20
(1957);
Guss v. Utah Labor Relations Bd., 353 U. S.
1 (1957). As the Court itself recognizes,
see
ante at
436 U. S.
194-197 and
436 U. S. 204,
none of the
Garmon exceptions have ever been or could ever
be applied to local attempts to restrain such conduct. But the
Garmon approach to "arguably protected" activity does not
"swee[p] away state court jurisdiction over conduct traditionally
subject to
Page 436 U. S. 224
state regulation without careful consideration of the relative
impact of such a jurisdictional bar on the various interests
affected."
Ante at
436 U. S. 188.
Quite the contrary, such careful consideration is subsumed by the
determination whether the underlying conduct may be protected by §
7. By enacting § 7, Congress necessarily intended to preempt
certain state laws:
e.g., those prohibiting concerted
activities as conspiracies or unlawful restraints of trade. In any
instance in which it can seriously be maintained that the
congressionally established scheme protects the employee activity,
the assessment of the relative weight of the competing state and
federal interests has to be regarded as having been made by
Congress. By drafting the statute so as to permit a Board
determination that the underlying conduct is in fact within the
ambit of § 7's protections, Congress necessarily indicated its view
that the historic state interest in regulating the conduct, however
defined, may have to yield to the attainment of other objectives
and that the state interest thus must be regarded as less than
compelling. And, of course, there is necessarily a possibility that
to permit state court jurisdiction over arguably protected conduct
could fetter the exercise of rights protected by the Act and
otherwise interfere with the congressional scheme. A local tribunal
could recognize an activity as arguably protected, yet, given its
attitude toward organized labor, lack of expertise in labor
matters, and insensitive procedures, misapply or misconceive the
Board's decisional criteria and restrain conduct that is within the
ambit of § 7.
II
The present case illustrates both the necessity of this flat
rule and the danger of even the slightest deviation from it. The
present case, of course, is a classic one for preemption. The
question submitted to the state court was whether the Union had a
protected right to locate peaceful nonobstructive pickets on the
privately owned walkway adjacent to Sears'
Page 436 U. S. 225
retail store or on the privately owned parking lot a few feet
away.
A
That the trespass was arguably protected could scarcely be
clearer.
NLRB v. Babcock & Wilcox Co., 351 U.S. at
351 U. S. 112,
indicates that trespassory § 7 activity is protected when
"reasonable efforts . . . through other available channels" will
not enable the union to reach its intended audience. This standard,
which was developed in the context of a rather different factual
situation, is but an application of more general principles.
"[T]he basic objective under the Act [is the] accommodation of §
7 rights and private property rights 'with as little destruction of
one as is consistent with the maintenance of the other.' The locus
of that accommodation, however, may fall at differing points along
the spectrum depending on the nature and strength of the respective
§ 7 rights and private property rights asserted in any given
context."
Hudgens v. NLRB, 424 U.S. at
424 U. S. 522,
quoting
NLRB v. Babcock & Wilcox Co., supra at
351 U. S. 112;
see Scott Hudgens, 230 N.L.R.B. at 417, 95 LRRM, at
1354.
Here, it can seriously be contended that the locus of the
accommodation should be on the side of permitting the trespass. The
§ 7 interest is strong: the object of the picketing was arguably
protected on one of two theories -- as "area standards" [
Footnote 2/8] or as "recognitional"
[
Footnote 2/9] picketing -- and the
record suggests that the relocation of the picketing to the nearest
public area -- a public sidewalk 150 to 200 feet away -- may have
so
Page 436 U. S. 226
diluted the picketing's impact as to make it virtually
meaningless. [
Footnote 2/10] The
private property interest, in contrast, was exceedingly weak. The
picketing was confined to a portion of Sears' property which was
open to the public and on which Sears had permitted solicitations
by other groups. [
Footnote 2/11]
Thus, while Sears to be sure owned the property, it resembled
public property in many respects. Indeed, while Sears' legal
position would have been quit different if the lot and walkways had
been owned by the city of Chula Vista, it is doubtful that Sears
would have been any less angered or upset by the picketing if the
property had in fact been public.
But the Court refuses to follow the simple analysis that has
been sanctioned by the decisions of the last 20 years. Its reasons
for discarding prior teachings, apparently, is a belief that
faithful application of
Garmon to the generic situation
presented by this case causes positive social harm. I disagree.
It bears emphasizing that
Garmon only partially
preempts an employer's remedies against unlawful trespassory
picketing. A state court may, of course, enjoin any picketing that
is clearly unprotected by the Act:
e.g., peaceful,
nonobstructive picketing occurring within a retail store.
See Brief for Respondent 30 n. 14, citing
NLRB v.
Fansteel Corp., 306 U. S. 240
(1939);
Marshall Field & Co. v. NLRB, 200 F.2d 375
(CA7 1953); Brief for NLRB as
Amicus Curiae 15 n. 9. And,
as already indicated, state courts have jurisdiction over
picketing
Page 436 U. S. 227
that is obstructive, or involves large groups of persons, or
otherwise entails a serious threat of violence.
Automobile
Workers v. Russell; Construction Workers v. Laburnum Constr. Corp.;
Automobile Workers v. Wisconsin Employment Relations Bd.;
Electrical Workers v. Wisconsin Employment Relations Bd. These
decisions constitute an almost dispositive answer to my Brother
POWELL's suggestion that state trespass laws should be allowed full
play,
see ante at
436 U. S. 213: most of the factual situations that
concern him fall within a recognized
Garmon exception.
Finally, an employer may file an unfair labor practice charge under
§ 8(b) and obtain a "cease and desist" order from the Board where
the picketing has an objective prohibited by § 8(b).
Thus, preemption of state court jurisdiction to deal with
trespassory picketing has been largely, if not entirely, confined
to situations such as presented in this case,
i.e., in
which the interest of the employer in preventing the picketing is
weak, the § 7 interest in picketing on the employer's property
strong, and the picketing peaceful and nonobstructive. In this
circumstance, I think the denial to the employer of a remedy is an
entirely acceptable social cost for the benefits of a preemption
rule that avoids the danger of state court interference with
national labor policy. The Court's arguments to the contrary are
singularly unpersuasive. Because an employer's remedies are only
preempted in the narrow circumstances of a case such as the present
one, any suggestion that the faithful application of
Garmon creates a "no-man's land" which results in a
substantial risk of violence,
see opinion of my Brother
BLACKMUN,
ante at
436 U. S. 208; opinion of my Brother POWELL,
ante at
436 U. S. 213;
cf. opinion of the Court,
ante at
436 U. S. 202,
can be dismissed as the most unfounded speculation. An employer
like Sears may be angered or outraged by the presence of peaceful,
nonobstructive picketing close to its retail store. But the Act
requires the employer's toleration of peaceful picketing when § 7
affords the union the right to engage in this form of
Page 436 U. S. 228
economic pressure. There is simply no basis whatsoever for a
conclusion that the risk of violence is any greater when an
employer is told by a state court that
Garmon bars his
state trespass action than when he is told either that § 7 protects
picketing on a public area immediately adjacent to his business,
cf. Longshoremen v. Ariadne Shipping Co., or that § 7 in
fact privileges the entry onto his property.
Cf. Scott
Hudgens.
In apparent recognition of this indisputable fact, the Court
places no great reliance on the likelihood of violence. But the
only other reason advanced for a conclusion that
Garmon
produces socially intolerable results is that it is "anomalous" to
deny an employer a trespass remedy. Since the Act extensively
regulates the conditions under which an employer's proprietary
rights must yield to the exercise of § 7 rights, I am at a loss as
to why the anomaly here is any greater than that which results from
the preemption of state remedies against tortious conspiracies,
compare § 7 of the Act with Frankfurter & Greene
26-39, or from the preemption of state remedies against
nonmalicious libels.
See Linn v. Plant Guard Workers,
383 U. S. 53
(1966).
B
That this Court's departure from
Garmon creates a great
risk that protected picketing will be enjoined is amply illustrated
by the facts of this case and by the task that was assigned to the
California Superior Court. To decide whether the location of the
Union's picketing rendered it unlawful, the state court here had to
address a host of exceedingly complex labor law questions, which
implicated nearly every aspect of the Union's labor dispute with
Sears and which were uniquely within the province of the Board.
Because it had to assess the "relative strength of the § 7 right,"
see Hudgens v. NLRB, 424 U.S. at
424 U. S. 522,
its first task necessarily was to determine the nature of the
Union's picketing. This picketing could have
Page 436 U. S. 229
been characterized in one of three ways: as protected area
standards picketing,
see opinion of the Court,
ante at
436 U. S.
186-187; as prohibited picketing to compel a
reassignment of work,
see ante at
436 U. S.
185-186, and n. 9; or as recognitional picketing that is
protected at the outset but prohibited if no petition for a
representative election is filed within a reasonable time, not to
exceed 30 days.
See supra at
436 U. S. 225
n. 9;
ante at
436 U. S. 186,
and n. 10. Notably, if the state court concluded that the picketing
was prohibited by § 8(b)(4) -- or unprotected by § 7 on any other
theory -- that determination would have been conclusive against
respondent: whether or not the state court agreed with the Union's
contention that effective communication required that picketing be
located on Sears' premises, the court would enjoin the trespassory
picketing on the ground that no protected § 7 interest was
involved. Obviously, since even the Court admits that the
characterization of the picketing "entail[s] relatively complex
factual and legal determinations,"
see ante at
436 U. S. 198,
there is a substantial danger that the state court, lacking the
Board's expertise and specialized sensitivity to labor relations
matters, would err at the outset and effectively deny respondent
the right to engage in any effective § 7 communication. [
Footnote 2/12]
But even if the state court correctly assesses the § 7 interest,
there are a host of other pitfalls. A myriad of factors are or
Page 436 U. S. 230
could be relevant to determining whether § 7 protected the
trespass:
e.g., whether and to what extent relocating the
picketing on the nearest public property 150 feet away would have
diluted its impact; whether the picketing was characterized as
recognitional or area standards; whether or the extent to which
Sears had opened the property up to the public or permitted similar
solicitation on it; whether it mattered that the pickets did not
work for Sears, etc. And if relevant, each of these factors would
suggest a number of subsidiary inquiries.
It simply cannot be seriously contended that the thousands of
judges, state and federal, throughout the United States can be
counted upon accurately to identify the relevant considerations and
give each the proper weight in accommodating the respective rights.
Indeed, the actions of the California courts illustrate the danger.
Not only was the
ex parte order of the California Superior
Court entered under conditions precluding careful consideration of
all relevant considerations, even the Court of Appeal, presumably
able to devote more time and deliberation to isolate the correct
decisional criteria, failed properly to appreciate the significance
of a criterion critical to the application of national law: that
the distance of the picketing from a store entrance is largely
determinative of its effectiveness.
Cf. Scott Hudgens, 230
N.L.R.B. at 417, 95 LRRM at 1354 ("a message announced . . . by
picket sign . . . a [substantial] distance from the focal point
would be too greatly diluted to be meaningful"). Nothing better
demonstrates the wisdom of the heretofore settled rule that "the
primary responsibility for making [the] accommodation [between § 7
rights and private property rights] must rest with the Board in the
first instance."
Hudgens v. NLRB, supra at
424 U. S.
522.
The Court does not deny that its decision may well result in
state court decisions erroneously prohibiting or curtailing conduct
in fact protected by § 7. But it identifies two considerations
Page 436 U. S. 231
that persuade it that the risk of interference is minimal and
that, in any case, the risk does not outweigh the anomalous
consequence of denying the employer a remedy.
The first is its belief that the generic type of activity --
which the Court characterizes as trespassory organizational
activity by nonemployees -- is more likely to be unprotected than
protected.
Ante at
436 U. S.
205-206. In so concluding, the Court relies on
NLRB
v. Babcock & Wilcox Co., 351 U. S. 105
(1956), for the proposition that there is a strong presumption
against permitting trespasses by nonemployees. But the Court
overlooks a critical distinction between
Babcock and the
case at bar.
Babcock involved a trespass on industrial
property which the employer had fenced off from the public at
large, and it is a grave error to treat
Babcock as having
substantial implications for the generic situation presented by
this case. To permit trespassory § 7 activities in the
Babcock fact pattern entails far greater interference with
an employer's business than does allowing peaceful nonobstructive
picketing on a parking lot which is open to the public and which
has been used for other types of solicitation. As my Brother
BLACKMUN's concurring opinion notes, this Court's short-lived
holding that picketing at shopping centers is protected by the
Fourteenth Amendment,
see Food Employees v. Logan Valley
Plaza, 391 U. S. 308
(1968), overruled in
Hudgens v. NLRB, supra, has resulted
in a situation where neither this Court nor the Board has
considered, in any comprehensive fashion, the quite different
question of the conditions under which union representatives may
enter privately owned areas of shopping centers to engage in
protected activities such as peaceful picketing. But the Court's
own opinion in
Hudgens v. NLRB, supra, and the Board's
decision in
Scott Hudgens, supra, [
Footnote 2/13] both suggest that
Page 436 U. S. 232
trespasses in such circumstances will often be protected. Quite
apart from the fact the Court has no basis for blithely assuming
that all private property is fungible, that this Court would fail
to appreciate so possibly vital a distinction in assessing the
strength of a § 7 claim illustrates the danger of permitting lower
courts, which lack even this Court's exposure to labor law, to rule
on the question whether trespassory picketing by nonemployees is
protected.
The Court's second reason is more problematic still. It urges
that the risk that local adjudications will interfere with
protected § 7 activity is
"minimized by the fact that in the cases in which the argument
in favor of protection is the strongest, the union is likely to
invoke the Board's jurisdiction and thereby avoid the state
forum."
Ante at
436 U. S. 206.
That, with all respect, betrays ignorance of the conduct of
adversaries in the real world of labor disputes. Whether a union
will seek the protection of a Board order will depend upon whether
that tactic will best serve its self-interest, and that
determination will depend in turn on whether the employer's request
inhibits or interferes with the union's ability to engage in
protected conduct. A request that a trespass cease may or may not
so threaten the union as to lead it to go to the trouble and
expense of attempting to invoke the Board's jurisdiction, and the
strength of the argument that the conduct is protected will
frequently be a factor of no relevance. For example, if the union
perceives the employer's request as a hollow threat or believes
that the employer's legal position in any case has no merit, the
union will have no reason to turn to the Board.
It might, on the other hand, be the case that the union
Page 436 U. S. 233
would have more of an incentive to file a § 8(a)(1) charge if it
believed that resort to the Board were necessary to protect itself
against adjudications by hostile state tribunals. Of course, even
then, the union may not believe that invocation of the Board's
jurisdiction is worth the trouble and expense in those instances in
which it believes its own legal position unassailable. But there is
no point in conjecturing on this score. The Court assiduously
avoids holding that resort to the Board will oust a state court's
jurisdiction [
Footnote 2/14] and
is divided on this question.
Compare opinion of my Brother
BLACKMUN,
ante at
436 U. S. 209-210,
with opinion of my Brother
POWELL,
ante p.
436 U. S. 212.
The Court cannot have it both ways: unless and until the Court
decides that the filing of a charge preempts adjudications by local
tribunals, speculation as to the conditions under which there would
or would not be a failure to file is an idle exercise. [
Footnote 2/15]
Page 436 U. S. 234
III
But what is far more disturbing than the specific holding in
this case is its implications for different generic situations.
Whatever the shortcomings of
Garmon, none can deny the
necessity for a rule in this complex area that is capable of
uniform application by the lower courts. The Court's new exception
to
Garmon cannot be expected to be correctly applied by
those courts, and thus most inevitably will threaten erosion of the
goal of uniform administration of the national labor laws. Even
though the Court apparently intends to create only a very narrow
exception to
Garmon -- largely if not entirely limited to
situations in which the employer first requested the nonemployees
engaged in area standards picketing on the employer's property to
remove the pickets from the employer's land and the union did not
respond by filing § 8(a)(1) unfair labor practice charges -- the
approach the Court today adopts cannot be so easily cabined, and
thus threatens intolerable disruption of national labor policy.
Because 8(b) only affords an employer a remedy against certain
types of unprotected employee activity, there necessarily will be a
myriad of circumstances in which an employer will be confronted
with possibly unprotected employee or union conduct, and yet be
unable directly to invoke the Board's processes to receive a
determination of the protected
Page 436 U. S. 235
character of the conduct. Today's decision certainly opens the
door to a conclusion by state and federal courts that the Court's
new exception applies in any situation where the employer has
requested that the labor organization cease what the employer
claims is unprotected conduct and the union has not responded by
filing a § 8(a)(1) charge. In that circumstance, today's decision
sanctions a three-step process by the state or federal court.
First, the court must inquire whether the employer had a
"reasonable opportunity" to force a Board determination. What
constitutes a "reasonable opportunity"? I have to assume from
today's decision that the employer can never be deemed to have an
acceptable opportunity when nonemployees are engaged in the
arguably protected activity. But what if employees are involved?
Will the fact that the employer can provoke the filing of an unfair
labor practice charge by disciplining the employee always
constitute an acceptable alternative? Perhaps so, but the Court
provides no guidance that can help the local judges. Some may
believe that the fact that any discipline will enhance the
seriousness of the unfair labor practice renders that course
unacceptable. Similarly, what of the instances in which employer
discipline might not, under the circumstances, provoke the filing
of a charge:
e.g., if an economic strike were in
progress?
Second, if the lower court concludes that the employer did not
have an acceptable means of placing the protection issue before the
Board, it must then proceed to inquire whether, in light of its
assessment of the strength of the argument that § 7 might protect
the generic type of conduct involved, there is a substantial
likelihood that its adjudication will be incompatible with national
labor policy. This is a particularly onerous task to assign to
judges having no special expertise or specialized sensitivity in
the application of the federal labor laws, and it is not
clairvoyant to predict that many local tribunals will misconceive
the relevant criteria and erroneously
Page 436 U. S. 236
conclude that they are capable of correctly applying the labor
laws. With all respect, the Court's opinion proves my point. As I
have already observed, in concluding, that peaceful picketing upon
Sears' walkway was more likely to be unprotected than protected,
the Court makes an entirely unfounded assumption concerning the
approach the Board is likely to apply to the organizational
activities of nonemployees at shopping centers. Since the great
majority of state and federal judges around the Nation rarely, if
ever, have this Court's exposure to the federal labor laws, local
tribunals surely will commit far more grievous errors in assessing
the likelihood that its adjudication will subvert national labor
policy. But the final step in the Court's new preemption inquiry is
the most troublesome: the range of circumstances in which local
tribunals might conclude that the anomaly of denying an employer a
remedy outweighs the risk of erroneous determinations by the state
courts is limitless. Many erroneous determinations of
non-preemption are certain to occur, and the local adjudications of
the protection issues will inevitably often be inconsistent and
contrary to national policy.
This prospect should give the Court more concern than its
opinion reflects. It is no answer that errors remain correctible
while this Court sits. The burden that will be thrown upon this
Court finally to decide, on an
ad hoc, "generic situation
by generic situation" basis, whether the employer had a "reasonable
opportunity" to obtain a Board determination and, if not, whether
the risk of interference outweighs the anomaly of denying the
employer a remedy, should give us pause. Inconsistency and error in
decisions below may compel review of an inordinate number of cases,
lest lower court adjudications threaten irretrievable injury to
interests protected by § 7. Indeed, the experience of 30 years ago
should, I would have thought, taught us the folly of such an
approach. And our burden will be even greater if, as my Brother
BLACKMUN suggests,
ante at
436 U. S.
211-212, this Court must fashion a code of
Page 436 U. S. 237
"labor law due process" to minimize the risk of erroneous state
court determinations of protection questions.
I do not doubt that this Court could, if it wished, minimize the
deleterious consequences of today's unfortunate decision. But the
Court cannot prevent it from introducing inconsistency and
confusion that will threaten the fabric of national labor policy
and from imposing new and unnecessary burdens on this Court.
Adherence to
Garmon would spare us and the Nation these
burdens. Because the Court has not demonstrated that
Garmon produces an unacceptable accommodation of the
conflicting state and federal interests, I respectfully
dissent.
[
Footnote 2/1]
See infra at
436 U. S.
225-226.
[
Footnote 2/2]
Garmon announced the following test of labor law
preemption:
"When it is clear or may fairly be assumed that the activities
which a State purports to regulate are protected by § 7 of the
[Act] or constitute an unfair labor practice under § 8, due regard
for the federal enactment requires that state jurisdiction must
yield. . . . [And] [w]hen an activity is arguably subject to § 7 or
§ 8 of the Act, the States as well as the federal courts must defer
to the exclusive competence of the National Labor Relations Board
if the danger of state interference with national policy is to be
averted."
359 U.S. at
359 U. S.
244-245.
This rule, which was implicit in earlier decisions, has been
repeatedly reaffirmed.
See, e.g., Farmer v. Carpenters,
430 U. S. 290
(1977);
Machinists v. Wisconsin Employment Relations
Comm'n, 427 U. S. 132,
427 U. S.
138-139 (1976);
Motor Coach Employees v.
Lockridge, 403 U. S. 274
(1971).
[
Footnote 2/3]
Although the Court also misapplies the "arguably prohibited"
prong of the
Garmon test,
see 436
U.S. 180fn2/1|>n. 12,
infra, I concentrate on its
modification of the "arguably protected" prong because this aspect
of the decision has far greater significance.
[
Footnote 2/4]
One danger, of course, is that a state court's misinterpretation
of the federal prohibition may result in restraining conduct that
in fact is protected by the Act. The "arguably protected" prong of
Garmon addresses this risk. A second danger is that the
state court's misconception or misapplication of the law may result
in the imposition of restraints on conduct that is neither
protected nor prohibited by the Act, but which Congress intended to
be free from government control.
See Machinists v. Wisconsin
Employment Relations Comm'n, 427 U. S. 132
(1976).
[
Footnote 2/5]
There are several arguably discrete exceptions to
Garmon, all sharing a common characteristic. Each applies
only in circumstances in which local adjudications will not
threaten important interests protected by the Act:
e.g.,
when a state court can ascertain the actual legal significance of
particular conduct by reference to "compelling precedent applied to
essentially undisputed facts,"
Garmon, 359 U.S. at
359 U. S. 246;
when the rule to be invoked before the state tribunal is
"so structured and administered that, in virtually all
instances, it is safe to presume that judicial supervision will not
disserve the interests promoted by the [Act],"
Motor Coach Employees v. Lockridge, 403 U.S. at
403 U. S.
297-298;
"where the activity regulated was merely a peripheral concern of
the [Act or] . . . touched interests so deeply rooted in local
feeling and responsibility that, in the absence of compelling
congressional direction, we could not infer that Congress had
deprived the States of the power to act."
Garmon, supra at
359 U. S.
243-244.
[
Footnote 2/6]
A second approach was suggested and rejected by
Garmon
itself: that state court jurisdiction be preempted only when "it is
clear or may fairly be assumed that the activities which a State
purports to regulate are protected by § 7 of the . . . Act." 359
U.S. at
359 U. S. 244.
This Court recognized that state and federal courts, quite simply,
lack the familiarity and requisite sensitivity to labor law matters
to be counted on accurately to determine which combinations of
facts could "fairly be assumed" to fall within the ambit of §
7.
[
Footnote 2/7]
If an activity were merely a "peripheral concern" of the Act,
state and federal courts presumably may restrain it even if
arguably protected.
See Garmon, 359 U.S. at
359 U. S.
246.
[
Footnote 2/8]
See Longshoremen v. Ariadne Shipping Co., 397 U.
S. 195 (1970).
[
Footnote 2/9]
The Act provides that recognitional picketing is prohibited if
no representation petition is filed within a reasonable time, not
to exceed 30 days.
See ante at
436 U. S. 186,
and n. 10. Although the Board has never held that recognitional
picketing is protected at the outset and for up to 30 days
thereafter, this conclusion would seem to follow from its holding
that "area standards" picketing is protected.
See Hod Carriers
(Calumet Contractors Assn.), 133 N.L.R.B. 512 (1961).
[
Footnote 2/10]
Although the matter is disputed, a Union representative
testified that picketing from the public sidewalk adjacent to the
outer perimeters of Sears' parking lot was totally ineffective, and
that, for this reason, the California Superior Court's temporary
restraining order required the Union to abandon the picketing. App.
28.
[
Footnote 2/11]
Sears permitted solicitation and distribution of literature on
its property in the cases of the Lion's Club white cane drive, the
Salvation Army at Christmas time, and the League of Women Voters
for voter registration.
Id. at 14. The fact of prior
solicitation simply confirms what would have been clear in any
case: that the Union picketing was not incompatible with the retail
operations.
[
Footnote 2/12]
Since the whole premise for an order effectively terminating all
picketing of the Sears store could be the state court's conclusion
that the picketing was prohibited by § 8(b), it is difficult to
understand how the Court can assert that this is a case in which
the "arguably prohibited" prong of the
Garmon test is not
implicated. Even if the Court is correct that the crucial
consideration under that aspect of
Garmon is whether the
controversy in the state court would be the same as that which
would have been presented to the NLRB,
see ante at
436 U. S. 197,
the test surely is satisfied here. More fundamentally, to permit a
state court to enter an order which, in law and fact, prohibits
picketing because of an interpretation of § 8(b) entails a
substantial risk of interference with the objectives Congress
sought to achieve by giving the Board exclusive jurisdiction to
enforce § 8(b).
[
Footnote 2/13]
In
Scott Hudgens, the Board held that warehouse
employees of a shoe company had a § 7 right to engage in protected
picketing on a privately owned shopping mall that contained one of
the shoe company's retail outlets. Since the warehouse employees
were no more "rightfully on the employer's premises" than were the
pickets in the present case,
see Hudgens v. NLRB, 424 U.S.
at
424 U. S.
521-522, n. 10,
Scott Hudgens at least
indicates that the fact that an individual has no right to be on
the premises is not a factor of any special significance in the
context of shopping center picketing. It would be a small step to
conclude that the fact the pickets were nonemployees did not,
standing alone at least, counsel strongly against a finding that
the trespass was unprotected.
[
Footnote 2/14]
The Court leaves open a host of questions concerning the
availability of state court remedies to the precise type of
trespassory picketing that here occurred: is state court
jurisdiction preempted when a § 8(a)(1) charge is filed before the
institution of state suit? What if the § 8(a)(1) charge is filed
after the employer files the state court complaint, or after the
state court has issued temporary, preliminary, or final relief;
must the state court action and state court order be stayed pending
the Board proceedings or is it up to the Board to take action to
protect its jurisdiction? Since the generic situation is one in
which there is no realistic possibility of violence, I think my
Brother BLACKMUN's logic in answering some of these questions is
unassailable,
see ante at
436 U. S.
208-210. Indeed, I would think the Court would be
compelled to extend it to a situation my Brother BLACKMUN does not
address: when the state court has entered final relief. But
especially in light of my Brother POWELL's differing views,
see
ante p.
436 U. S. 212,
it can safely be predicted that the state and federal courts around
the country will answer these questions in a variety of ways. A
consequence surely will be that erroneous determinations of
non-preemption will occur and rights and interests protected by the
Act will be irreparably damaged before any corrective action can be
taken by this Court.
[
Footnote 2/15]
It should be apparent that to require employees to file §
8(a)(1) charges to avoid hostile local adjudications itself would
entail a certain disruption of the congressional scheme. Section
8(a)(1) was intended to afford employees a remedy in those
circumstances in which they felt it was in their self-interest to
seek protection by the Board. Congress by the same token plainly
intended not to afford employers a remedy before the Board whenever
they were confronted with arguably unprotected conduct. If the
Court takes the position that employees can avoid hostile state
court adjudications of their rights only by filing § 8(a)(1)
charges whenever employers threaten interference with arguably
protected activity, the effect would be to stand the congressional
scheme on its head. The employers would in effect be invoking the
Board's jurisdiction under conditions in which the employees have
no interest in obtaining the Board's protection.